State of Exception (notes from Agamben)

The US Patriot Act issued by the U.S Senate in 2001 allows the attorney general to “take into custody” any alien suspected of activities that endanger “the national security of the United States,” but within seven days the alien has to be either released or charged with the violation of immigration laws or some other criminal offense. What is new about Bush’s order is that it erases any legal status of the individual, thus producing a legally unnamable and unclassifiable being. Neither prisoner nor person accused, but simply “detainee” – the object of a pure de facto rule of a detention that is not indefinite as it is entirely removed from judicial oversight – the state of exception. But the state of exception is not a special kind of law, rather is a suspension of the juridical order itself.

The first idea of a suspension of the constitution reads: “In the case of armed revolt of disturbances that would threaten the security of the State, the law can, in the places and for the time that it determines, suspend the rule of the constitution. In such cases, this suspension can be provisionally declared by a decree of the government if the legislative body is in recess, provided that this body be convened as soon as possible”.

In 1942 Benjamin argues that the state of exception has already become the rule. It not only appears increasingly as a technique of government rather than an exceptional measure, but it also lets its own nature as the constitutive paradigm of the juridical order come to light.

The problem of the state of exception presents analogies to the right of resistance. If resistance were to become a right or even a duty, what is ultimately at issue is the question of the juridical significance. If the state of exception’s characteristic property is a total or partial suspension of the juridical power, how can a suspension be contained within it? In fact, the state of exception is neither external nor internal to juridical order. The problem of defining it concerns a threshold, or a zone of indifference, where inside and outside do not exclude each other but rather blur with each other. The suspension of the norm does not mean its abolition. To understand the problem of exception, one must determine its localization (or illocalization).