The Normalisation of Exception in the Biopolitical Security Dispositif

The normalisation of exception in the biopolitical security dispositif

Gonzalo Velasco Arias

Introduction to neutralise circumstances that are unforeseen in the ordinary provisions of the law. According to In this article, I attempt to analyse the way in which Italian philosopher Giorgio Agamben (2003), the the world order that resulted from the terrorist state of exception has become a paradigm for gov- attacks of September 11, 2001 ernment. This thesis, which has altered the relationship has greatly engaged current between security and the Gonzalo Velasco Arias is based in the academic reflection, implies Department of Philosophy of the Universi- future. Security entails an dad Autónoma of Madrid and also at the that the obsession with pro- epistemological relation to Universidad Camilo José Cela. He holds a tecting order from any contin- the future, on the basis of PhD in the “Philosophy of History” from gency not envisaged in the which the present is shaped. the same institution and he is a Fellow of the regulatory and criminal codes The radically unprecedented Research Project “Remains of Evil in Post- entails the generalisation of Totalitarian Societies: Responses from nature of the new terrorism Democratic Politics” (FFI2012-31635). He decisions that, in seeking to has called into question the has recently co-edited the book Normalidad protect law and order, lie possibility of ordering the de la crisis/crisis de la normalidad (Madrid outside the law. The dire con- present in relation to knowl- and Buenos Aires: Katz). He was a Visiting sequence is that they end up edge of the future. The terms Researcher at Cornell University in 2010 denying what they sought and, under Professor Roberto Esposito, at of the political have, since the Istituto Italiano di Scienze Umane di to protect. The scope of 2001, been redefined due to a Napoli in 2009. my analysis is the conflict fear and uncertainty that have Email: [email protected], between civil rights and se- modified even the logic of [email protected] curity in the United States, not criminal law. That the con- only because of its obvious temporary preventive state geopolitical relevance, but exercises excessive control over civil society, in also because the idiosyncrasy of US constitutional which security and rights enter into conflict, is a fact logic radically reveals the conflict between the nor- that the social sciences have been dealing with in the mativity of the law and the unpredictability of the past few years. The specificity of my approach in future. Nevertheless, my objective will be to outline this article lies in an understanding of the present the connections between the concrete case of the and of the organising capacity of politics on the United States and the international reality of this basis of the type of epistemological relation that is issue. established with respect to the future. Another approach I shall take into account are My final objective is to try to clarify whether the recent critical security studies, which, despite the contemporary preventive logic responds to a their internal diversity, share a development and an specific need of our times or whether, on the con- application to the present of the research carried out trary, it reveals a structural trait of our political and by Michel Foucault on governmentality and bio- juridical configuration. To this effect, I shall first politics. From this perspective, contingency examine the political–juridical state of exception, a becomes the principal reason of government, an mechanism whereby the law is suspended in order occasion to legislate.

ISSJ 205–206 © UNESCO 2013. Published by Blackwell Publishing Ltd., 9600 Garsington Road, Oxford, OX4 2DK, UK and 350 Main Street, Malden, MA 02148, USA. 364 Gonzalo Velasco Arias

Through the analysis of these two theoretical the measures aimed at re-establishing the normal approaches, I intend to provide the conceptual conditions for application of the law. The state of tools for a critical understanding of what could exception is thus the acknowledgment by the law perhaps be called the most significant experience of its insufficiency in cases of necessity. However, of our times: the urgent need for security and the it must be noted that necessity is not an absolute impossibility of political contingency. value, but rather one that is relative to that which the law establishes as normal. The normativity of the law involves not only determining the limits for The state of exception: the coexistence, but also establishing acceptable con- certainty of the law in the ditions for its own application. face of uncertainty In that same essay, Schmitt distinguishes between two types of dictatorship, commissarial The political–juridical state of exception has been dictatorship and sovereign dictatorship. The justified throughout history on the basis of the purpose of the former is to re-establish the normal- adage “necessitas non habet legem” (Agamben ity required by the prevailing legal order. The latter, 2003). The state of necessity is that for which there on the other hand, has to do with the employment is no response envisaged in the law; therefore, it of extraordinary powers to establish a new political requires a political action not subject to the law. order. They differ with respect to the decision This prevents the pure fact of necessity from regarding the legitimacy of the anomie resulting becoming a source of law, thus preserving its nor- from suspension of the law: for commissarial dic- mative autonomy. When such an exceptional politi- tatorship, the prevailing order is legitimate and, cal reaction is envisaged in a constitutional code, consequently, the anomie must be suppressed; in the paradox then arises of a legal mechanism that contrast, for sovereign dictatorship, legitimacy includes that which cannot have legal form: the resides in the not yet established order towards state of necessity, emergency, or exception. In this which the exceptional situation tends. Commis- section, I shall focus on this constitutional accom- sarial dictatorship would be subsumed under con- modation of the state of exception by tracing some stituted power while sovereign dictatorship would of its historical institutions, in the light of two represent a constituent power. Nevertheless, both excellent studies on the topic: Dictatorship by of them presuppose the need to institute a legiti- Carl Schmitt, and Constitutional Dictatorship by mate normative order (Huysmans 2006). Clinton L. Rossiter.1 Subsequently, I shall examine Given its recognition of the legitimacy of con- its logical paradoxes in the legislative context of stituted power, commissarial dictatorship is the the United States, not only for the obvious current precedent of the clauses regarding the state of geopolitical reasons, but also because the idiosyn- exception found in the constitutions of liberal politi- crasy of its legislative production and its pre- cal regimes. Both Schmitt and Rossiter trace its cedents in the interpretation of exception make it historical origin back to an institution in republican an especially significant case. Rome, prior to the designation of Caesar as dictator for life in 46 BC. Before that transformation, the Senate granted the title of dictator to an individual The state of exception at the responsible for the execution of a specific mission, boundaries of constituted power within a pre-established period of time, usually six months. During that period, the dictator was not In Dictatorship, Schmitt justifies the juridical subject to ordinary law and had full power over life mechanism of the state of exception through a dis- and death, but he could not modify existing laws or tinction between law and realisation of the law. enact new ones, nor could he amend the republican This distinction implies that the law requires Constitution or reorganise public authority. As certain conditions for its application, which are Rossiter points out, the consuls who elected the considered to be the normal conditions. If these dictator could not perform that role, for purposes of conditions are not met, then, by definition, it would keeping decision and execution separate (Rossiter not be possible to apply a legal mechanism in order 2007, p.25). Sovereignty, therefore, remained with to resolve the problem. On the contrary, it would be the Senate, and the dictator was merely an executor necessary to suspend the law in order to implement of the mission he was charged with.

Schmitt identifies Jean Bodin as the main link necessity of liberal systems for their own perpetu- between that ancient institution and modernity. In ation. Hence the reference to the Roman institu- the context of the theoretical legitimisation of abso- tion, to the separation of the decision regarding the lute and perpetual sovereignty, which constitutes state of exception from its execution, and to the the essence of his magnum opus, The Republic restrictions imposed on the constitutional dictator (1576), the commission is the way to allow contin- regarding the modification of existing legislation gency into the legal order. In contrast with the and ordinary institutions. Exceptional measures in official, whose position is for life and whose duties situations of crisis would not then be mere reac- are envisaged by the law, the commissar “is desig- tions to immediate situations. On the contrary, it is nated selon l’occasion and his activity ends upon precisely those situations that make evident the execution of the mission” (Schmitt 1994, p.375). structural dysfunction of the system, the insuffi- The necessity that motivates the conferral of a com- ciency of the law to protect itself. mission links its action to the concrete requirements of the facts and to the instructions given by the conferring party, as opposed to the case of the The dilemma between constitutional official, whose duties are envisaged by the formality control of the arbitrary and of the law, thus allowing him greater discretion. flexibility in responses to Through the commission, the legal order, which the unpredictable under normal circumstances is organised around the civil servants, prevents the unpredictable, the con- The models of accommodation (Gross and Ní tingency of facts. That is, it strengthens and inocu- Aoláin 2006, p.9) of the state of exception in con- lates sovereignty, without ever questioning it. Even temporary constitutions respond to that principle, in John Locke’s system, which is totally derived albeit stripped of the personal nature that character- from the law, to the point that he considers every- ises the state of exception in the works of Schmitt thing that does not conform to the law to be the way and Rossiter. They are mechanisms for the preven- of beasts, the necessity of the state of exception is tion of the unpredictable through the suspension of assumed through the recognition of a royal preroga- the regular functioning of institutions and of the tive that leaves those things not envisaged by the law balance of power. After the excessive use of excep- to the discretion of whoever holds executive power. tional prerogatives in the face of the political, war- It is also significant that Montesquieu, the theorist related, and economic crises of the first half of the of the balance of power, should recognise that twentieth century, most Western constitutional “there are cases in which a veil should be drawn for systems opted for a diversified recognition of the a while over liberty, as it was customary to cover the emergency situations that could require the excep- statues of the gods” (Schmitt 1994, p.259). With tional suspension of the normative order. Once respect to Rossiter, the meaning given to the term again, a detailed comparative constitutional analy- “dictatorship” must be seen in the light of the his- sis would not be pertinent here. Suffice it to say that torical context in which he wrote his work. Drawing the possible states of emergency were diversified on on this tradition, his proposal for situations of the basis of the individual context. For example, the emergency, that is “constitutional dictatorship”, is constitutions of states in turmoil, both for political “unlimited in its nature and limited in its princi- and natural reasons, such as those of LatinAmerica, ples”. Thus, he achieves a suspension of the consti- have included other categories in addition to the tutional order within the constitutional order itself, classical ones of “state of siege”, “state of war”, and which, therefore, does not cease to exist during the “state of emergency”, such as “state of alarm”, exceptional exercise of unlimited executive power. “state of prevention”, or “state of defence” (Gross The works of Schmitt and Rossiter cited and Ní Aoláin 2006, p.46). This diversification of above are responses to the experience of crisis of the cases in which the ordinary functioning of laws liberal parliamentary systems. They confirm the and institutions would not suffice for their own insufficiency of the legislative power to respond to protection seeks a greater effectiveness in terms of and control the emergence of crises that put the prevention. At the same time, it seeks to prevent the very legitimacy of the system into question. The arbitrary suspension of the civil order in conditions figure of temporary despotism with prerogatives that do not require such a suspension. However, it well-defined by the constitution reveals a structural could be immediately objected that the wider defi-

© UNESCO 2013. 366 Gonzalo Velasco Arias nition of situations that can give rise to exceptional one of the provisions that has been fundamental in measures increases vulnerability to contingency. the current implementation of exceptional meas- No matter how ample their frame of reference is, ures for the prevention of terrorist attacks is the the constitutional categories of exception cannot 14th Amendment, which prohibits depriving an foresee or prevent the demands of future emergency individual of life, liberty, and property, without situations. From this standpoint, it would be naive to due process of law, although it does not specify expect the established exception mechanisms to be the limits of those procedural due process rights able to respond to new threats, to new metamor- (Posner 2006, p.9). phoses of crisis. Therefore, the formulas for the I would like to examine this last case further, constitutional accommodation of the state of excep- since it makes possible the current tendency to tion would be violating the principle of necessitas suspend civil rights through the preventive policies non habet legem: the state of necessity, that is, the implemented after the terrorist attacks of Septem- state that jeopardises law and order, cannot, by ber 11, 2001. In the non-originalist legal tradition of definition, have a legal correlative. The conditions the United States, it is the Supreme Court that, in for exceptional action, if the latter is to be truly the last instance, passes judgment on civil rights, effective, cannot be established by the constitution, through its interpretation of the text of the Consti- but rather by the specific characteristics of the tution. From this pragmatist standpoint, the Justices emergency. of the Supreme Court may act as a sort of link between constituted power and constituent power, The case of the United States: emergency as which, in this way, is protected against petrification source of law in the mere formality of written law. Therefore, in In brief, the capacity of reaction to an unforeseen practice, it is impossible to distinguish between a and unpredictable emergency is inversely propor- law and its interpretation: the law is its interpreta- tional to the degree of constitutional specification tion, an interpretation inevitably marked by the of the cases in which the state of exception is subjectivity of the Justices, the particularity of their applicable. The cost of greater discretion is the historical and social context, or by moral and risk of greater arbitrariness in the declaration of religious meta-principles with respect to which the state of necessity, which, in turn, entails fewer there could never be consensus. The law is, thus, guarantees of rights and freedom. The US consti- always contemporary. As examples of non- tution lies at one of the extremes of this equation. originalist judges could be mentioned Justice In contrast with the above-mentioned accommo- Harry Blackmun, Justice William Brennan, Justice dation models, the Constitution of the United William O. Douglas, or Judge Richard Posner, States does not contain any specific clauses on whose current thesis about the role of law in times states of emergency. Responsibility, in the face of of crisis will be subsequently commented on. The the contingent emergence of an exceptional situa- main argument they hold states that no written tion, is a matter of interpretation of some of its Constitution can anticipate all the means that gov- fundamental amendments, which is possible given ernment might need in the future, so it is sometimes the ambiguous terms in which they are drafted. necessary for judges to fill in the gaps.As intentions Thus, Article One, Section Nine envisages the of framers were sometimes transient, ambiguous possibility of suspending the writ of habeas and often impossible to determine, why not corpus in cases of rebellion or invasion that jeop- produce the result that will best promote the public ardise public safety. The legitimate authority good, with the proper support of judicial prec- responsible for deciding whether situations of risk edents? As a result, non-originalism allows judges legitimise said suspension is not specified. This to head off the crises that could result from the ambiguity is reinforced by the “grey zone” which inflexible interpretation of a provision in the Con- arises between Article One, Section Eight, which stitution that no longer serves its original purpose. grants Congress the power to raise and support On the opposite standpoint, originalists such as armies and provide and maintain a Navy, as well JusticeAntonin Scalia, Justice Clarence Thomas, or as to declare war, and Article Two, which declares Judge Robert Bork, have argued that only the the President Commander in Chief of the armed understanding of the framers and ratifiers of a con- forces. The incomplete separation of powers is stitutional clause could provide the neutral and therefore made clear when crises strike. Another objective criteria to legitimate judges’ decisions.

Otherwise too much room would be led for judges system, in which the law does not suffice in order to to impose their own subjective values. protect itself. Nevertheless, the conditions outlined This controversy cannot be understood from a above, and required in order to keep the state of conservative–progressive political frame, as a exception within the bounds of constitutionality, European observer would tend to do. If the origi- have not been clearly met in the political decisions nalist stance may appear the most conservative, in adopted after September 11. In the first place, the circumstances of political emergencies it sets itself US Executive has been the one to declare the state of as the grant of legal neutrality. As I shall argue exception and, at the same time, to make itself its below, when this situation is accompanied by a executor. On the other hand, this violation of the regime in which the discourse of fear, safety, and principle of separation between decision-maker and precaution prevails, the non-originalist interpreta- executor is rooted in the presidential tradition of the tion of the limits of those due process rights that the United States, starting with Abraham Lincoln who, 14th Amendment leaves unspecified may jeopard- on 12 April 1861, at the beginning of the Civil War, ise the formal guarantee of those rights. The declared himself the protector of the Union, unilat- problem with this system is that the objective ref- erally raised an army, decreed a blockade of the erence, the text of the constitution, is what has to be Southern states, and authorised the Commander of interpreted. The role of the precedent, another one the Navy to suspend the writ of habeas corpus, of the sources of law in common law systems, plays initially between the cities of Philadelphia and a small role in this logic, as Judge Richard Posner Washington, and, later, between Washington and argues (Posner 2006, p.28). And this is so not New York. The authorisation of Congress was only because the constitution was drafted under the obtained after the fact, in a special session held on 4 security and risk conditions of the eighteenth July, in which Lincoln justified his decisions as a century (mainly violations of territorial borders and response to “a demand of the people and to a state of internal rebellions), but because the terrorist attacks public necessity” (cited by Agamben 2003 [2005, constitute an absolutely new threat that invalidates p.36]). On the basis of that precedent, the history of the categories that had prevailed until this moment. the United States has been marked by the vindica- Guaranteeing basic due process rights to a criminal tion of full powers for subsequent presidents in is one of the pillars of political liberalism. Never- situations of crisis. This unilateral nature of deci- theless, according to this point of view, a terrorist sions made by the Executive becomes evident in the attack does not conform to the ordinary stipulations pressure exercised by the latter on the representative for ordinary crimes or war crimes. The mere rea- bodies so that they expedite their decision-making, soning by analogy with the precedent cannot give without the pertinent deliberative mediations. meaning to a radically unprecedented situation. In Responses in the name of security usually force this specific moment, Posner argues, faced with the institutions to face dramatic dilemmas, in which the ambiguity of the constitutional provisions, the only solution is to approve the urgent measures Supreme Court Justices will proceed pragmatically decided on by the Executive. For example, two by comparing the effects of their rulings.According weeks after the September 11 attacks, Attorney to this view, with respect to the suspension of the General John Ashcroft proclaimed: “Every day that writ of habeas corpus and of due process rights, the passes with outdated statutes and the old rules of guarantee of individual freedoms and national engagement is a day that terrorists have a competi- security will have to be weighed in the balance.And tive advantage. Until Congress makes these the Supreme Court Justices will not have the suffi- changes, we are fighting an unnecessarily uphill cient information to do so. Only the Executive will battle” (cited by Huysmans 2004, p.332). The be able to decide whether the suspension of the writ urgency with which security measures are appealed of habeas corpus, indefinite detention without to delegitimises the institutional mechanisms for proven charges, or even torture can be truly valu- representation, deliberation, and control of the able for national security. Thus, in emergency situ- branches of government, by concentrating all ations, the balance of power shifts in favour of the decision-making authority in the executive.2 This, Executive. added to the call for national unity and acceptance This line of argument might seem to be coherent of the Executive as its unequivocal representative, with the justification of constitutional or commis- leads not only to discrediting institutions as the sarial exception as a structural need of the liberal genuine representative instances, but also to the

© UNESCO 2013. 368 Gonzalo Velasco Arias impossibility of dissent, to the absolute depolitici- immigration laws over the past few years. A con- sation of society. stitutional or commissarial exception involves the adoption of extraordinary measures in order to Sovereignty beyond the constitution re-establish the normal conditions for application The second factor that prevents the reaction of the of the law, which have been altered by the emer- United States to the terrorist attacks from conform- gency. But, in this case, it is precisely the ordinary ing to the criteria of constitutional or commissarial laws that are being used exceptionally in order to exception is the fact that the preventive measures re-establish the conditions of their normal applica- adopted since 2001 are not extraordinary, valid for tion. Such is the case of the Immigration Law after a specified period of time and for very specific the enactment of the USA Patriot Act. The latter purposes, but rather, have been validated as part of provides a double definition of terrorist activity: the ordinary code. Thus, for example, if in times of one for American citizens, in keeping with univer- peace and stability, a judge could declare uncon- sal criteria, and another for foreign nationals, stitutional the detention of a suspect without evi- which makes an ordinary crime or violation of dence, in times of crisis, this interpretation of immigration law equivalent to an indication of ter- Article One, Section Nine of the Constitution rorist activity (Cole 2005, p.87).3 Even before that, could be deemed totally constitutional because it is nine days after September 11, the Attorney General required by national security. Let us recall that this changed the regulations regarding the arrest of clause envisaged the possibility of suspending the immigrants: the previous law required their release writ of habeas corpus in cases of danger to national if charges had not been pressed within 24 hours. security, which was combined with the fact that the The new ordinance authorised detention without 14th Amendment does not define the minimum due charges in times of emergency, for an unspecified, process rights. This leads to the justification of “reasonable” period of time (Cole 2005, p.31). The indefinite detention without evidence on the basis self-serving use of immigration law as a pretext for of the need to obtain information that could help preventive detention reaches its most paradoxical prevent new attacks, as well as to relaxing the extreme in the fact that if the non-citizens accept requirement of evidence in times of exception their deportation, there is no reason to keep holding (Posner 2006, p.73). Judge Posner goes even them. But, given that the Government’s interest further: although the United States is a Party to the since 9/11 is not expulsion, as usual, but rather, International Convention against Torture, its Con- prolonged arrest, the acceptance of deportation by stitution does not explicitly prohibit it. Therefore, the affected parties posed a problem that was the use of torture for the acquisition of preventive solved through the use of the Material Witness information might not be justified by the law, but, Law, a law that simply authorises the detention of at the same time, it is not unconstitutional. material witnesses who are reluctant to testify in In this respect, David Dyzenhaus distinguishes court, in order to prolong the detentions until the between “black holes” and “gray holes” in ordi- investigation is completed. The average duration of nary legislation (Dyzenhaus 2006, p.42). The latter these investigations was 80 days, and their are the exceptional measures adopted by the maximum duration, 244 (Cole 2005, p.33). This Executive and to which the Supreme Court confers use of the law to evade the law is no longer a validity ex post, in conformity with the Constitu- commission or a temporary exception. On the con- tion. The “black holes”, on the other hand, are trary, it implies sovereignty beyond the law, not exceptions that are recognised as such, and which, subject to the reciprocal control of the branches of because they are limited in their duration and government. objectives, do not affect political and legal normality (Gross 2003). Indefinite detentions and cases of torture in the name of ordinary code are “gray A present ready for holes” that tinge the ordinary application of the law catastrophe with exceptionality, which goes against the principles of any constitutional state of exception. Preventive detention entails an absolute inversion An analogous case is the use of ordinary laws for of the logic of criminal law. On occasion, the sup- preventive objectives for which they were not porters of sovereign decisionism in situations of conceived, as has frequently been the case with crisis justify it by analogy with the preventive

© UNESCO 2013. The normalisation of exception in the biopolitical security dispositif 369 confinement of potentially dangerous psychotic (Aradau and van Munster 2008, p.25). Risk man- patients (Posner 2006, p.66). However, in these agement is a way of organising reality, domesticat- cases, it is possible to provide objective proof of ing the future, disciplining contingency, and that danger. In contrast, the preventive mechanisms rationalising individual behaviour. The political– that were implemented after the September 11 juridical mechanisms studied in the previous attacks did not require any actual evidence of ter- section can then be the result or part of a dispositif rorist activity: in the case of foreign nationals, an of risk, and, more specifically, following Claudia ordinary crime or the violation of immigration law Aradau and Rens van Munster, of risk understood was enough. Even in those cases in which the as precautionary risk and not as insurance. Insur- defendants accepted the ordinary application of the ance requires a certain degree of identification of law for those violations, for example, deportation, the risk and an estimated calculation of the event the defendants could be retained through mecha- yet to come. In contrast, precaution is a risk dis- nisms such as the Material Witness Law, until the positif that accepts the absolute uncertainty of the competent authority deemed convenient. “Petty future, on the one hand, while structuring the sovereigns abound” (Butler 2004). The burden of present on the basis of the prevention of a future proof no longer falls on the prosecution, but rather catastrophic event, on the other. Precaution dis- it is the defendants who have to prove that they are poses reality according to the possibility of a cata- not going to commit the crime that has not yet been strophic contingency whose occurrence cannot be perpetrated. Their liability is thus uncertain and known. The risk it represents is that of the worst previous to the potential commission of the act case scenario, in which irreparable damages will with which they are charged (Aradau and Van occur. Consequently, there is zero tolerance for risk Munster 2008, p.31). and the burden of proof is shifted to the suspect before he or she has committed any crime whatso- ever (Aradau and van Munster 2008, p.30).4 Risk as dispositif In sum, uncertainty, and, at the same time, the certainty that an absolute catastrophe is possible, In the previous section, I explained the political– justify the need for preventive penal measures that juridical logic of the exception in relation to the lie outside the law and break with ordinary penal preventive control of contingency, as well as logic. Moreover, when the future becomes unpre- the type of sovereignty that is associated with it, in dictable and the unpredictable is deemed cata- the case of the anti-terrorist measures adopted after strophic, the only possible government in the 9/11. It is now time to explain the discourse regime present with respect to the future is decisional that lays the ground for that political–juridical state rather than deliberative.5 Because there are no ele- to be possible and perceived as urgent. This objec- ments for deliberation, arbitrariness imposes itself tive presupposes a certain understanding of the in the face of the risk of an irreparable catastrophe, order of discourse that is related to the idea of a with the depoliticising effects we have already dispositif. In Foucault’s famous formulation, a dis- spoken about. The decisionist sovereignty that positif is an ensemble of “discourses, institutions, characterises the state of exception after September architectural forms, regulatory decisions, laws, 11 is based on this paradoxical relationship to the administrative measures, scientific statements, future (impossibility of both denying and knowing philosophical, moral and philanthropic proposi- the catastrophe). tions” (Foucault 1980, p.194). For purposes of the topic of this article, that is, security and prevention The security dispositif creates in the face of unpredictable contingency, it is contingency important to understand the dispositif of risk. Criti- cal studies on security policies, which interpret risk At the international level, the human security dis- as a dispositif, part ways with the current initiated positif is a variation of the risk dispositif that by the sociologist Ulrich Beck in the 1990s makes possible the exercise of decisionist sover- (Amoore and de Goede 2008; Prieto 2003). The eignty (De Larrinaga and Doucet 2008). The dispositif of risk implies a type of relation to the notion of security as dispositif derives from future that determines interventions in the present Foucault’s research on biopolitics and governmen- aimed at controlling its potential harmful effects tality, which I shall briefly refer to.

Foucault’s study of the changes in the tech- exists in and because of contingency. Mediation by nologies of government since the eighteenth the law has disappeared, fading away into an appa- century revolves around the change in the percep- ratus that sees life as a constant emergency in need tion of contingency. Like the necessity referred to of decisions. The biopolitical paradigm organises in the first section with respect to the justification life in such a way that it is understood as constant of exceptional political interventions, contingency contingency, which, thus, constantly requires in itself is not an absolute value. It requires a pre- exceptional measures. In theory, this would be a existing institutional and discourse apparatus that commissarial sovereignty, given that it operates on makes it possible to perceive the state of things as contingency in order to preserve normality. But, in normal, in some cases, and as extraordinary or practice, normality is reconfigured in each inter- contingent, in others. The change observed by vention. In sum, biopolitics constitutes a new form Foucault comes about due to the appearance of a of sovereignty in which both power and life are new type of knowledge and scientific metrics immanent (Dillon and Reid 2009, p.9). whose object is the population. Since then, the Returning to the international field, this logic political problematisation of security has shifted of exception is made possible by the human se- from territory to population. The contingent events curity dispositif. As at the national level, this that can be detected in the context of this new concept entails identification of risks and manage- episteme are politically relevant phenomena: “phe- ment of contingencies in order to protect and nomena that are [random] and unpredictable when improve the lives of populations subject to interna- taken in themselves or individually, but which at tional action. Health and welfare of populations the collective level, display constraints that are pave the way for international intervention. Going easy or at least possible to establish” (Foucault even further, it could be said that there has been a 1997 [2003, p.246, translation modified]). This is shift in emphasis, from security to insecurity, as a so because they motivate creativity in government justification for intervention, especially since 2001 measures aimed at improving the quality of life of (De Larrinaga and Doucet 2008, p.528). This leads the members of civil society: contingency is thus to the legal mechanism that most significantly an opportunity for government. Health, work, and embodies the general dispositif of human security, birth rates become some of the preferred fields for that is, the international community’s right to inter- regulation. Government thus comes to represent vention. In its 2001 report, The Responsibility to the power of giving life, of making it possible to Protect, the International Commission on Interven- live, as opposed to sovereignty understood as the tion and State Sovereignty (ICISS) outlined the power to suppress life (Foucault 1997 [2003, necessity of international intervention “in cases of pp.240–247]). violence which so genuinely ‘shock the conscience Despite the tendency to establish an epochal of mankind’, or which present such a clear and caesura between a biopolitical paradigm of govern- present danger to international security, that they ment, which would be specifically modern, and the require coercive military intervention” (ICISS preceding paradigm of sovereignty, I believe it is 2001, p.31). The need for intervention in cases of much more accurate to interpret the former as a objective damages to a population whenever the transformation, an adaptation, and even a more sovereign measures of the affected nations do not sophisticated statement of the latter. Let us go back suffice is unobjectionable. But the problem in this to the analysis of exception for a moment. For a case, just as in the case of national legislations such normative system, an anomaly is an indication of as that of the United States, referred to in the first the need for an exceptional intervention, outside section above, is that without a clear delimitation the law itself, in order to re-establish the conditions of the circumstances that require that exceptional for the application of the law. The “here” intervention, this mechanism can end up legitimis- (anomaly) and the “beyond” (sovereignty) of the ing arbitrary interventions. The International Co- law are connected without the mediation of the law. alition for the Responsability to Protect, in its 2005 In the terms of biopolitics, the unpredictable con- World Summit Outcome Document, stated that tingency turns into information for a new govern- the international community, through the United ment regulation, thanks to the techniques for Nations, has the responsibility to use appropriate knowledge of civil society. Contingency does not diplomatic, humanitarian, and other peaceful prevent government; on the contrary, government means, in accordance with Chapters VI and VIII of

© UNESCO 2013. The normalisation of exception in the biopolitical security dispositif 371 the Charter, to help protect populations from geno- can society, like most of the Western international cide, war crimes, ethnic cleansing, and crimes community, is immersed in an institutional and against humanity. In this context, we are prepared discursive apparatus that predisposes it to face the to take collective action, in a timely and decisive future as an uncertain yet plausible catastrophic manner, through the Security Council, in accord- risk. This inability to deny a catastrophe that cannot ance with the Charter, including Chapter VII, “on a be known implies the repression of any type of case-by-case basis and in cooperation with rel- relation of uncertainty to the future: the level of risk evant regional organisations as appropriate, should tolerance is equal to zero. At the same time, the peaceful means be inadequate and national authori- United States is one of the permanent members of ties manifestly fail to protect their populations the United Nations Security Council. Therefore, it from genocide, war crimes, ethnic cleansing and can transfer the priority it has granted to security crimes against humanity. . . . bearing in mind the and to zero-tolerance for risk to the international principles of the Charter and international law”. field by resorting to the international community’s Even though the bearing in mind of international right to intervene. The question which arises once law is distinctly stated, the “case-by-case basis” again concerns who has the authority to decide that turns essential to take into account the risk and in fact the necessary emergency conditions are met, precaution prism, which, as we have analysed, is as if that person were outside that international law based on the worst case scenario, a catastrophe that and had an objective point of view. A member of the causes irreparable damages, and absolute uncer- UN Security Council with veto rights has such an tainty. In that hypothetical situation, in which it is authority, and is, therefore, simultaneously outside impossible to deny or know the catastrophe, any international law yet subject to it.7 It can even be the circumstance can be perceived as exceptional, thus State itself that decides on and executes the interna- legitimising interventions.6 There would be no dis- tional exception, as in the cases of the preventive cretion here since human security, the international interventions carried out in the Middle East since community’s right to intervene, and precautionary 2001. With this, I believe that it has been clearly risk dispositifs make it possible to perceive any established that international sovereignty lies circumstance as exceptional, as a state of exception beyond international law itself. that requires actions beyond those envisaged by international law. The dilemma is the one we have been dealing The immunity paradigm: with throughout this article. The less limitation and between historical dispositif control of discretion there is, the greater the flex- and ontological aporia ibility of political reaction, which, in turn, benefits security. But the problem is that any contingency In this brief closing section, I shall not add any- can be seen as an emergency or a risk, as a state of thing new to what has been stated. I shall limit necessity that calls for exceptional intervention. myself to highlighting the constant logic that Mediation by the law thus becomes a mere formal underlies the different characterisations of the anachronism that is not binding for actually pre- political that we have dealt with and to try to elu- vailing sovereignty. cidate their philosophical status. I propose the term In conclusion, the same paradox of sover- immunity to characterise such a logic; “immunity” eignty reappears at the international level is both a legal and a medical term that, in a broad (Agamben 1995). Who authorises the suspension of sense, implies the protection of an agent who, for international law in the name of human security if purposes of that protection, ceases to be bound by the latter is governed by international law? Who certain obligations considered to be normal. The decides to give priority to human security over agent is thus exonerated in order to be protected. international law? Without expecting to exhaust the This is the principle of the constitutional or com- complexity of the answer that questions such as missarial exception, a prerogative that introduces these require, this article has shown how the dynam- measures that lie outside the system in order to ics of creation of constitutional legislation regard- protect the system. From the medical point of view, ing individual rights is subordinated to national acquired immunity results from the development security (hence the famous phrase: “The Constitu- of antibodies in response to an antigen, as from tion is not a suicide pact”, cf. Posner 2006). Ameri- exposure to an infectious disease or through vac-

© UNESCO 2013. 372 Gonzalo Velasco Arias cination. The state of exception, which is simulta- system into the very heart of the system is, accord- neously within and outside the system (and ing to Esposito, inherent to the political in the form acknowledged as that which is not normal) also of sovereignty. Since Hobbes, sovereignty has plays such an immunitarian role in the medical implied the legitimate use of violence in order to sense: the exposure to the danger entails a redefi- keep violence out of the political system. Thus, the nition and a strengthening of the legal order when violence that is typical of the state of nature is facing other dangers to come. However, as we have preserved at the very core of the political (Esposito tried to show, the catastrophic perception of risk 2008). turns every future tense in a danger which requires From this, it could be deduced that the law is present redefinition of law (Aradau and van grounded in a generalised state of exception. The Munster 2011). Compelling to a radical constitu- law would be dependent on a sovereignty that lies tional pragmatism, the state of exceptions is there- outside the law and that would only be made fore normalised. evident in emergency situations, that is, in those This use of the term “immunity” has been circumstances in which what occurs does not elaborated mainly by the Italian philosopher conform to what had been foreseen. But, at the Roberto Esposito. Although Esposito has partici- same time, as indicated in the last works of pated in the debates initiated by Michel Foucault Derrida, this relation can be inverted. It might seem and continued by Giorgio Agamben, his work has that law-preserving violence is a remnant of the not been appropriated by academic research, par- foundational natural violence. In the end, all vio- ticularly in English, that focuses on the problem of lence would be sovereign violence not subject to security in the contemporary world order.8 The the law. However, at the very moment that it novelty of Esposito’s intellectual project resides in occurs, sovereign violence iterates itself. And in his characterisation of the convergence of the legal iterating itself, it becomes something other, that is, and biomedical fields in the configuration of con- a law, and therefore, defers its occurrence. In other temporary discourse on security. Thus, he makes words, sovereign violence cannot have duration visible the reciprocal influence of different seman- because at the very moment in which it ex-sists, it tic families, which produces a new level of is representing its own act of irruption and thus discourse, by means of complex historical interfer- postulating itself as a norm, which, by definition, ences.9 In so doing, Esposito makes evident that demands its own preservation. According to immunity is a dispositif in the Foucauldian sense, a Derrida, all actually existing violence is law- discourse regime in which we dwell and which preserving violence (Derrida 2002). must be discovered by critical exercise. This In summary, sovereignty needs the law for its article, albeit in a modest and merely indicative own preservation, just as the law needs sovereignty manner, has participated in this genealogical intent in order to protect itself from menacing contingen- by pointing out the role that certain discursive and cies. Sovereignty needs to discharge itself, exoner- institutional apparatuses play in the understanding ate itself in the law, while the law requires of our security and in the relation to the future that sovereign decisions in order to immunise itself it entails. against the unpredictable. Although they are seen Nevertheless, I would like to suggest that as two different interpretations of the law, norma- although this immunitarian orientation is mani- tivity and sovereignty not subject to the law are two fested in concrete historical dispositifs, it responds expressions of the same logical problem: that of the to a transhistorical logic inherent in the relation- law, which postulates the durability of its own ship with the future, which entails security and validity in relation to a future that cannot be totally protection. I had suggested this in passing when I certain. The state of exception analysed in the first commented on Schmitt’s distinction between the section of this article, in both its sovereign and law and the realisation of the law, which implied commissarial versions, presupposed the validity of the insufficiency of the law and, in general, of a normative order to be immunised through pre- every system when it came to protecting itself by rogatives that allowed for some flexibility in the means of actions deduced from itself. The state of face of the unpredictable. On the other hand, the exception would not be an exception, but rather a governmentality paradigm analysed in the second structural expression of the need for protection. section envisages a form of regulation that does not This introduction of something external to the attempt to impose a formal law, but that takes

© UNESCO 2013. The normalisation of exception in the biopolitical security dispositif 373 shape on the basis of the life of the population, interests among national sovereignties, without understood as a constant state of emergency. denying its necessity as a symbolic mediation. This In conclusion, I believe that both paradigms would make it possible to overcome several of the are extreme ways of interpreting the same problem. difficulties we have analysed: on the one hand, it In this sense, I agree that genealogical approaches to would make it impossible to conceal the sover- the issue of security are necessary, if not urgent, eignty that acts under the protection of international since they expose the institutional and discursive law, without falling into a mere decisionism, which apparatuses that condition our interpretation of is the objection usually made to positions that ques- reality with respect to risk, and allow us to adopt a tion the validity of the international legal order. On critical position toward these dispositifs. But I think the other hand, it would make it possible to accept that they are only a preliminary step towards the that international legislation must be prepared to discovery of the aporetic limits to which the issue of adapt to contingent emergencies, multilaterally and security in relation to the future inevitably lead. jointly, thus making it impossible for sovereign These aporias, which have been illustrated through states to execute exceptional intervention clauses the notion of immunity dealt with in the last part of unilaterally in the face of catastrophes that can this article, do not constitute an insurmountable neither be disregarded nor confirmed. With Derrida, barrier to critical action. On the contrary, knowing I would like to finish by recognising that a truly that the law cannot defend itself without resorting to responsible decision is one made without the a type of sovereignty that transcends it can help support of a programme that pre-establishes the prevent recourse to naive defences of international measures to be adopted according to certain circum- law, for example in cases in which it is the interests stances. But that decision is not a decisionist one if of a specific national sovereignty that are operating it accepts the inevitable intervention of others; under the protection of international law. To con- therefore, it will not establish a new sovereign order, clude, I would like to propose a “diplomatic but rather crystallise in a law that reconciles the realism” (Huysmans 2006) that interprets interna- necessity of the facts and the sovereign interest of tional law not as an unconditioned presupposition, each party. This and nothing else is the secret of but as an object of negotiation and relation of heteronomy.

Notes

1. Schmitt is the classical reference mentary systems and the experi- of Homeland Security, which that the tradition accepts as an ence of fascist regimes during the reports that information directly to almost exclusive authority. With his first half of the twentieth century, is the President in order to guarantee famous definition of sovereignty, finally being recovered, especially greater speed in the adoption of Schmitt generated a double debate: in North America, due to the per- measures aimed at preventing on the one hand, a theological– emptory need to question the role new threats. The reduction political debate, and on the other, a of the law in times of crisis after of mediations also reduces diver- strictly juridical–political debate. In the September 11 attacks. See, for sity of opinion and the possibility spite of this, his study on Dictator- example, Dyzenhaus (2006), Gross of dissent (Huysmans 2004, ship has not been published in and Ní Aoláin (2006), and Posner p.332). English until 2013. This essay is a (2006). key to understanding the history of 3. According to declarations by the concept independently of its 2. Both the USA Patriot Act of Attorney General John Ashcroft in later theologico-political version. October 2001 and the British October 2002, it was the judges’ Rossiter’s (2007) excellent and ACTSA of December of the same duty to neutralise “potential terror- almost forgotten essay participates year were approved by the respec- ist threats by getting violators off in the latter, although it is cited by tive houses by restricting the the street by any lawful means pos- Agamben, the main promoter of normal voting mechanisms. sible, as quick as possible. Detain the revival of the debate in the Another example is the centralisa- individuals who pose a national present. That juridical–political tion of information regarding se- security risk for any violations of current, situated in the context of curity that has taken place with criminal or immigration laws” the crisis of the different parlia- the creation of the US Department (cited by Cole 2005, p.22).

4. A significant example of the gence. Here is the advice. Do you 8. With the exception of Campbell rationality expressed by this type of ignore it? But, of course, intelli- (2006). risk is the following statement by gence is precisely that: intelligence. US President George W. Bush in It is not hard fact. It has its limita- 9. Its insufficiency resides pre- 2002: “Many people have asked tions. On each occasion, the most cisely in the one-sidedness of its how close Saddam Hussein is to careful judgment has to be made reconstruction in his work: he developing a nuclear weapon. Well, taking account of everything we limits himself to reproducing the we don’t know exactly, and that’s know and advice available. But in formation of a biomedical dis- the problem. . . Facing clear evi- making that judgment, would you course with political intentions dence of peril [the attacks of Sep- prefer us to act, even if it turns out from the nineteenth to the twentieth tember 11], we cannot wait for the to be wrong? Or not to act and century, without considering the final proof – the smoking gun – hope it’s OK? And suppose we previous use of biological meta- that could come in the form of a don’t act and the intelligence turns phors for political discourse, or the mushroom cloud . . . Understanding out to be right, how forgiving the documented historical precedent of the threats of our time, knowing people will be?”(cited by Aradau juridical terms that were later insti- the designs and deceptions of the and Van Munster 2008, p.32). tutionalised in medical science, as Iraqi regime, we have an urgent immuni- 6. See the justifications for the is the case with the term duty to prevent the worst from tas intervention in Iraq given by , the origins of which date back occurring” (cited by Aradau and to Roman law. Without an inte- van Munster 2008, p.30). former US President George W. Bush and former UK Prime Minis- grated development of this genea- ter Tony Blair, cited above in notes logical project, his position within 5. Then UK Prime Minister Tony 4 and 5. this field of historical research is Blair said the following in 2004 limited to simulating the image of regarding the impossibility of 7. This makes it a “rogue State” in flawless scientificity that derives grounding his decisions about the the terms defined by Noam from the personality and the work war in Iraq in expert knowledge: Chomsky and Jacques Derrida of Michel Foucault (Dubrueil “Sit in my seat. Here is the intelli- (Chomsky 2000; Derrida 2005). 2006).

References

Agamben, G., 1995. Homo sacer: il Campbell, T., 2006. Bios, immunity, life live. London and New York: potere sovrano e la nuda vita. Milan: life: the thought of Roberto Esposito. Routledge. Einaudi. [Homo sacer: sovereign Diacritics, 36 (2), 2–22. power and bare life. Stanford, CA: Dubrueil, L., 2006. Leaving poli- Chomsky, N., 2000. Rogue states: Stanford University Press, 1998.] tics. Bios, Zoé, life. Diacritics,36 the rule of force in world affairs. (2), 83–98. Agamben, G., 2003. Stato di eccezi- London: Pluto Press. one. Turin: Bollati Boringhieri. [State Cole, D. Enemy aliens: Dyzenhaus, D., 2006. The constitu- of exception. Chicago, IL: University , 2005. double standards and constitutional tion of law: legality in a time of of Chicago Press, 2005.] freedoms in the war on terrorism. emergency. Cambridge: Cambridge Amoore,L.and De Goede, M., eds, New York: New Press. University Press. 2008. Risk and the war on terror. Esposito, R., 2008. Bios: biopolitics London and New York: Routledge. De Larrinaga, M. and Doucet, M. G., 2008. Sovereign powers and the and philosophy. Minneapolis, MN: Aradau, C. and van Munster, R., biopolitics of human security. Secu- University of Minnesota Press. 2008. Taming the future: the disposi- rity dialogue, 39 (5), 517–537. tif of risk in the war on terror. In:L. Foucault, M., 1980. The confession Amoore and M. De Goede, eds. Risk Derrida, J., 2002. Force of law: the of the ﬂesh. In: C. Gordon, ed. and the war on terror. London and “mystical foundation of authority”. Power/knowledge: selected interviews New York: Routledge, 23–40. In: G. Anidjar, ed. Acts of religion. and other writings 1972–1977.New London and New York: Routledge, Aradau, C. and van Munster, R. York: Pantheon, 194–228. , 228–299. 2011. Politics of catastrophe. Gene- Foucault, M., 1997. Il faut défendre Derrida, J., 2005. Rogues: two alogies of the unknown. London and la société. Cours au Collège de essays on reason. Stanford, CA: New York: Routledge. France. 1976. Paris: Gallimard/Seuil. Meridian. Butler, J., 2004. Precarious life: the [Society must be defended: lectures at powers of mourning and violence. Dillon, M. and Reid, J., 2009. The the Collège de France 1975–1976. London: Verso. liberal way of war: killing to make New York: Picador, 2003.]

Gross, O., 2003. Chaos and rules: inwardness and the exception. Se- P. Hebberrecht and A. Recasens, eds should responses to violent crises curity dialogue, 37 (1), 11–29. Seguridad en la sociedad de riesgo: always be constitutional? The un debate abierto. Madrid: Atelier. Yale law journal, 112 (5), 1011–1134. ICISS (International Commission on Intervention and State Sov- Rossiter, C. L., 2007. Constitutional Gross, O. and Ní Aoláin, F., 2006. ereignty), 2001. The responsibility dictatorship: crisis government in the Law in times of crisis: emergency to protect. Ottawa: International modern democracies. New Bruns- powers in theory and practice. Development Research Centre. wick, NJ: Transaction Publishers. Cambridge: Cambridge University Schmitt, C., 1994. Die Diktatur. Von Press. Posner, R. A., 2006. Not a suicide pact: the constitution in a time of den Anfängen des modernen Sou- Huysmans, J., 2004. Minding excep- national emergency. New York: veränitätsgedankens bis zum prole- tions: politics of insecurity and Oxford University Press. tarischen Klassenkampf. Berlin: liberal democracy. Contemporary Duncker & Humblot. [English trans- political theory, 3 (3), 321–341. Prieto, E., 2003. Sobre los límites y lation: 2013. Dictatorship. From the posibilidades de la respuesta origin of the modern concept of sov- Huysmans, J., 2006. International jurídica al riesgo. In: J. L. Domínguez ereignty to proletarian class struggle. politics of insecurity. Normativity, da Agra, J. A. García Amado, Cambridge: Polity Press].