The State of Exception: just or unjust?

The theorization of KIHC presented by Larsen and Piché in their Canadian Journal of Law and Society differs from Agamben’s theorization of the camp in a following manner: while Agamben notes the state of exception to be normalized, Larsen and Piché believe the state of exception to be institutionalized. That is, for Agamben, the individuals detained have the status of a bare life. In brief, the subjects are classified as bandits. Bandits are explained as “…subjects deposited (banned) in a netherworld that is neither ‘animal’ nor ‘man’…[t]hese subjects are both banned and abandoned by law as excluded entities” (Pavlich, 2011, p.158). For example, Abu Ghraib, twenty miles west of Baghdad, was one of the world’s most notorious prisons, with torture, weekly executions, and vile living conditions” (Hersh, 2004). Conversely, Larsen and Piché contend that there is “…blurring of mandates [and] the blending of authority…”(Larsen, 2012).

In addition, other theorists such as Butler and Ericson view state of exception in a different manner. On one hand, Butler views the state of exception to be governmentalized; on the other hand, Ericson perceives the state of exception to be legalized. For example, Butler notes that there is not one dictator but different government officials (also referred to as petty sovereigns) who make the decision of whom to detain. However, Ericson brings forward the concept of ‘counter law’ which gives the government the ability to use one type of law to circumvent another law. For instance, there is extensive security at the airport to prevent any unlawful activities from occurring.

Also, in the article, “Exceptional State, Pragmatic Bureaucracy, and Indefinite Detention” by Larsen and Piché, the authors make a normative argument in opposition to the KIHC and to security certificates more generally. The nature of their normative argument is as follows: the authors view security certificate to be problematic for it produces unlawful results. That is, security certificate deals with the concept of indefinite detention. Provided that the detainees are neither charged nor have the right to be brought to trial, it can be said without doubt that using the security certificate in the context of indefinite sentence is indeed problematic. For instance, in Criminology 3305 lecture, it was explained that security certificate allows the arrest to take place basis on the material that the detainee will never see the proof against him or herself. This once again clearly explains how the detainee’s rights get infringed. The question I would like to raise at this point is as such: is it correct to believe that Canadian government protects its residents once we become familiar of the cases discussed under ‘the secret trial five’ which mirrors the negative view of the government. For instance, Hassan Almrei “had been in custody since October 2001, after CSIS accused him of links to al-Qaeda. He was freed to a strict house arrest in January 2009” (CBC, 2009). From becoming familiar with the above mentioned information, I am compelled to believe that society is living in a mere illusion that government protects its resident. As a matter of fact, the truth is that “[o]rganizations are distorted by states of exception carried out under the politics of security” (Larsen, Handout). In addition, I would like to note that I agree with Larsen and Piché’s argument as they are successfully able to prove that security certificate is indeed unlawful. As noted, “[d]etention without trial in Canada is a serious matter, and KIHC warrants explanation-and problematization-on its own terms”(Larsen and Piché, 2009, p.204) .

References:

CBC (2009).  Security certificates and secret evidence. Retrieved from http://www.cbc.ca/news/canada/story/2009/08/21/f-security-certificates.html

Hersh, S.M. (2004).  Annals of National Security: Torture at Abu Ghraib. The New Yorker. Retrieved from http://www.newyorker.com/archive/2004/05/10/040510fa_fact

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), pp.203-229.

Larsen, M. (2012, Fall). Larsen: Exceptional State, Pragmatic Bureaucracy [CRIM 3305-Law and Society –Class Handout]. Surrey, Canada: Kwantlen Polytechnic University.

Pavlich, G. (2011). Law & Society Redefined. Ontario: Oxford University Press. Print.

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1 Comment

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One response to “The State of Exception: just or unjust?

  1. Your initial explanation of the distinction between our theorization of KIHC and Agamben’s theory of the camp is a good start.

    To clarify, our study of the KIHC incorporates the innovations of Butler (2004) and Ericson (2007), and considers the relationship between legal exceptions and the organizations that make up a government. We look at how exceptional authority (for example, the power to detain indefinitely) intersects with the everyday functioning of departments and agencies. And we note that bureaucratic pragmatism plays as important a role in the creation of ‘camps’ as sovereign decisions.

    You note that “the authors view security certificate to be problematic for it produces unlawful results”.

    In point of fact, the certificate mechanism operates through counter-law. It is not unlawful in the technical sense. It would be more accurate to say that the normative argument advanced in the paper is that security certificates are unjust.

    You close with some important questions about the motivations of government. My response is that, in my experience, government officials who are proponents of security certificates appear to believe that they are acting in the best interests of Canada and Canadians. Obviously, I disagree with their means and ends – but I think that they could honestly claim to be well-intentioned. Of course, the best of intentions can lead to some disastrous outcomes …

    By the way, the case against Hassan Almrei was eventually found to be without merit. He is now a free man.