Tag Archives: National Security

Food for Thought: Law, Necessity, and Exceptions

This week’s class focused on legal scholarship concerned with ‘states of exception’, with a particular emphasis on the work of Giorgio Agamben. A portion of our discussion focused on the application of this body of scholarship to cases involving claims of ‘national security’. I would like to continue this discussion here, on our blog.

You have two options:

Food for thought 1:

Write a post that briefly describes the current situation in Ferguson, Missouri, and draws on the ideas of Agamben and Ericson to explain the socio-legal dimensions of this situation. Your post should draw on relevant sources. Be sure to address the nature and implications of the state of emergency.

Food for thought 2:

In response to an event that has been officially deemed an act of terrorism, a government decides that there is an urgent need to create and implement new security powers. The government initially considers two options: 1. Officially declare that a state of emergency is in effect, per the Emergencies Act, and invoke the powers provided for under that Act, or; 2. Draft and rush through Parliament a security bill that provides for expanded powers for police and security services.

Write a post that:

  • Outlines the advantages and disadvantages of each option, both from the perspective of the government and from the perspective of members of the public.
  • Explains which option you believe our government would adopt given this scenario, and why.
  • Describes and discusses a third option.

Your post should engage with Pavlich (2011) and Ericson (2007). You are encouraged to draw on additional sources (to provide examples, support for your arguments, etc.).

Posts prepared in response to either of these questions must be submitted before class on Nov. 25. This gives you one week (only) to prepare your post.

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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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