National Security vs. Human Rights: Bureaucratic Pragmatism & Legal Exceptions

“Human rights are praised more than ever—and violated as much as ever but accepted in states of emergencies”

Agamben’s theory of the camp and Larsen’s (2012) theorization of the Kingston Immigration Holding Centre (KIHC) do not differ in regards to explaining the effects produced by the sovereign’s legal exceptions and suspension of law within states of emergencies. Instead Larsen expands on Agamben’s theory in a more contemporary context. Both individuals understand that such sovereign legal exceptions completely violate the rights and freedoms of certain people and leave them outside the realm of law and its main purpose of protection.  It leaves the sovereign unaccountable. They don’t differ on the injustice and wrongs that legal exceptions or the KICH mandate both produce per se, but rather on the views of sovereign reign.  They differ because Larsen (2012) has a more modernist perspective in regards to sovereign power and legal exceptions.  Agamben’s theory generalizes overall that we live within a rule of legal exceptions and constantly in a state of emergency where the sovereign manifests itself as totalitarian and uses law as its tool (Pavlich, 2011).  However, Larsen (2012) explains that this is not the case; exceptions do exist, however, they are subtle in comparison to Agamben’s pessimistic view of the state. Legal exceptions tend to come to effect when there are substantial threats to national security. Usually, national security threats mostly arise from some form of terrorism or a war on terror. Now, people may have different views on what constitutes as terrorism (e.g. ETA in Spain, Al Qaeda, unjust USA wars), but it is still a paradigm that establishes a serious threat. Larsen (2012) views these legal exceptions as ad hoc situations but does not rationalize that it is the norm overall. Agamben views sovereign rule from an older perspective where government was fully centralized within a state instead of noting that government sovereignty has expanded among various governmental management regimes nowadays (e.g. CBSA, CSIS, CSC, CIC). Larsen (2012) views the KIHC issue as a way to emphasize how modern inter-departmental agencies or government can  counteract the law or their own agency’s legal powers to enhance legal exceptions in order to solve problems pre-emptively case by case (Larsen & Piche, 2009).  Consequently, we can lean towards Larsen’s (2012) point of view more often as society is not within a realm of continuous state of emergency at the moment but it is important to realize that both Larsen and Agamben hint at the repercussions that can occur if legal exceptions do take over. We see it already with Guantanamo Bay, the Patriot Act, security certificates and memorandums of understandings that tend to be in secret and which are not restrained by the law. With frequent suspensions of the rule of law as Butler (2004) suggests “a new version of ‘unaccountable’ sovereign power [can emerge]” (as cited in Pavlich, 2011, p. 160) which can be detrimental to human rights and freedoms (e.g. Patriot Act).

The nature of Larsen and Piché’s (2009) argument against the KIHC and security certificates is basically about how vital and unjust it is for governments to impose mandates or agreements in the form of bureaucratic absolutism, which sustain legal exceptions (which violate human rights)and are used for the sake of national security (Larsen & Piché, 2009). They argue that the bureaucratic pragmatism process of creating counter law to circumvent law itself is at the heart of the security certificate paradigm and that adopting such counter laws is clinically masked to depict the government(s) as being “pre-emptive” as opposed to “reactive” in cases of national security (Larsen & Piché, 2009). Furthermore, their argument takes the tone of claiming how security certificates operate as legal tools of normalized exceptionality yet they agree that this mechanism does not suspend the whole Canadian rule of law itself like Agamben believed it would.

Consequently, I agree with the authors’ argument in respect to outlining the injustice and lawlessness that the security certificates produce in the name of suspicion and pre-emptive action in responses to national security; however, at the moment if we abolish such a practice, there will be no way that the citizens of Canada can wholly play a role in developing legislation that effectively balances threats to national security and violation of rights. Taking the parliament way and democratically developing provisions or laws to combat national security threats is very complex and can eventually  reach a point where we’ll have to make a serious choice of violating rights in the end. Although I don’t like the precedents that counter laws can leave behind in regards to enabling exceptional detention or giving agencies the power to circumvent their legal mandates, I still would rather accept such subtle, case by case suspension of certain legislation for managing national security. Having it as a case by case basis and amending certain legislation proficiently is better than completely suspending the rule of law entirely and ending up with chilling legislation such as USA’s Patriot Act that affects all citizens—not just immigrants or refugees.

References:

Pavlich, G. (2011). Law & Society Redefined. New York: Oxford University Press. 152-166

Larsen, M., & Piché, J. (2009).Exceptional State, Pragmatic Bureaucracy, and Indefinite Detention: The Case of the Kingston Immigration Holding Centre. Canadian Journal of Law and Society, 24(2), 203-229.

Larsen, M. (2012, April). Kingston Immigration Holding Centre Closes, Legacy Remains. Prism Magazine. Retrieved from http://prism-magazine.com/2012/04/kingston-immigration-holding-centre-closes-legacy-remains/.

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One response to “National Security vs. Human Rights: Bureaucratic Pragmatism & Legal Exceptions

  1. Excellent comparison of the ideas presented by Agamben and my colleague and I.

    You note that “Consequently, we can lean towards Larsen’s (2012) point of view more often as society is not within a realm of continuous state of emergency at the moment but it is important to realize that both Larsen and Agamben hint at the repercussions that can occur if legal exceptions do take over.”

    It is worth noting that Agamben does not propose that all legal and political relations are exceptional. Rather, he proposes that when the state of exception becomes normalized, there are no limits on the ad hoc creation of exceptional spaces and practices. These cease to be temporally restricted declarations of emergency (for example, the invocation of the War Measures Act) and become open-ended ‘solutions’ to a variety of problems. In this sense, the state of exception becomes a *potentiality* underpinning law and politics. This means that the specific, localized exception of KIHC is not incompatible with Agamben’s argument that the state of exception has become normalized.

    It is interesting to consider the notions of justice and injustice in this case. We often approach law in a positivistic manner and concern ourselves with whether something is lawful or not, whether a right has been breached or not, etc. Security certificates are one of those phenomena that really invite us to think about justice, first and foremost, and then to consider whether and to what extent the law (or counter-law) corresponds to justice.

    You close with this note: ” I still would rather accept such subtle, case by case suspension of certain legislation for managing national security. Having it as a case by case basis and amending certain legislation proficiently is better than completely suspending the rule of law entirely and ending up with chilling legislation such as USA’s Patriot Act that affects all citizens—not just immigrants or refugees.”

    I understand what you are saying. At the same time, though, it is worth noting that, historically, the violation of citizens’ rights almost always begins with the violation of the rights of Others – non-citizens, persons deemed to have diminished legal standing.

    Martin Niemöller’s famous quote regarding the silence of German intellectuals (and citizens, generally) during the ascent of the Nazi party is instructive:

    First they came for the communists,
    and I didn’t speak out because I wasn’t a communist.

    Then they came for the socialists,
    and I didn’t speak out because I wasn’t a socialist.

    Then they came for the trade unionists,
    and I didn’t speak out because I wasn’t a trade unionist.

    Then they came for me,
    and there was no one left to speak for me.