Tag Archives: United States

Law, Sovereign Power, and States of Exception

The case study I have will review that provides the invocation of a state of exception is the 9/11 terrorists attack on the United States. On September 11, 2001 a terrorist group hijacked four planes, two of which they flew into two skyscrapers in New York City, another plane into the Pentagon destroying a part of it, and the fourth plan crashed in Pennsylvania. The death toll amounted to nearly 3,000 people in the 9/11 attacks. The President of the United States at the time of attack was George W. Bush and as a result Bush declared a state of emergency, “Now, therefore, I, George W. Bush, President of the United States of American, by virtue of the authority vested in me as President by the Constitution and the law of the United States, I hereby declare that the national emergency has existed since September 11, 2001” (Washington’s Blog, 2010).

This historical case of a state of emergency declared by the President of the United States demonstrates the exercise of sovereign power and the creation of a state of exception firstly by the public’s understanding that once President Bush proclaimed a national emergency he active some 500 dormant legal provisions, including those allowing him to impose censorship and martial law. These provisions include enough authority to rule the country without reference to normal constitutional processes, enabling the President to “assign military forces abroad; institute martial law; restrict travel; and in a plethora of particular ways, control the lives of all American Citizens” (Washington’s Blog, 2010).

President Bush launched the war on terrorism on September 20, 2001; he launched 100,000 US troops in Afghanistan to deal with terrorist groups Al Qaeda and the Taliban. The President also established an office of Homeland Security within the presidential Executive Office, leading to Homeland Security creating a Terrorism Screening Center to “consolidate the Government’s approach to terrorism screening.” As a result the No Fly List has been increasing with names of people preventing them from flying because they are now on the Terrorist Watch List, primarily due to having an Arabic sounding name. Homeland Security has also increased the security screenings ongoing at the airport, and there have been multiple expensive additions to ensure the likes of 9/11 do not repeat. I strongly believe that since the President has the power to decide on an exception, such as declaring a state of emergency, I argue that the President either intentionally or unintentionally created international racism towards Muslims, Sikhs, Hindu’s, and other South Asian races. This was executed by declaring publicly that Muslim faith was directly associated and valued by the terrorists, on international television about Muslim belief’s, and how these terrorists were believers of Allah, but besmirched Allah. The President did state that Muslim religion was respected and practiced amongst many in the world including the United States, but this created tension moreover solving the issue and placed blame and slandered the religion and it’s followers. This is a display of sovereign power, starting from George Bush and leading to mass incarcerations of Muslim’s, new stereotypes being created, innocent people placed on no fly lists, and the general society around the entire world gaining a new negative perception of Muslim’s and people who they believed are of Muslim faith. It would never be possible to generalize a certain race on such harsh assumptions until a sovereign declared so, thus leading to the term terrorist and Muslim becoming synonymous around the world after this state of emergency was declared.

Through this exercise of sovereign power and creation of a state of exception the President created a United States military prison, referred to as Guantanamo Bay, located in Cuba that was established to detain dangerous prisoners, interrogate them and prosecute prisoners for war crimes. A prison run by the United States placed in Cuba by state of exception by the President of the United States. This prison was also a forefront of punishment to captives believed to be associated with terrorists groups, they were detained, stripped of their bare life; homo sacer essentially losing all their rights. Detainee’s could be held indefinitely, they had lost their status, basically creating a legal black hole where the detainee’s had no choice but to do as they were told by the United States government officials, until they had enough information to release these individuals.

This sovereign power was justified rhetorically through an appeal of necessity, from the President at the time George W. Bush stating “I can hear you, the rest of the world can hear you and the people who knocked these building down will hear all of us soon.” On September 11, 2001 George Bush was told “American is under attack,” and Bush said he then thought “They had declared war on us, and I made up my mind at that moment that we were going to war” (Walsh, 2008). This sole sentence portrays sovereign power, one individual waging war against terrorism and immediately initiating tactics such as sending U.S. troops to Afghanistan and Iraq, and approving harsh interrogation techniques.

In a conference broadcasted around the world, I have provided a YouTube link for the speech where President Bush states to the Taliban publically to deliver to the United States authorities, all the leaders of Al Qaeda who hide in their land and to also hand over every terrorist and in their support structure to the appropriate authorities. President Bush states “America will never seek a permission slip to defend the security of our people,” (Patriotic quotes, 2001) I enjoy this quote because it clearly depicts the issue of declaring a state of emergency and the simplicity of declaring a war on terror by Mr. Bush himself in comparison to a permission slip, that elementary students get filled out by their parents to go on a field trip, this comparison is directly linked to George Bush as sovereign power and does not need to seek permission, he can do as he pleases simply by stating national emergency for U.S. troops and sending them on a “field trip” to Afghanistan and Iraq.

YouTube links:






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Is Snowden A Hero Or A Criminal?

Edward Snowden, a former CIA technical assistant who has claimed responsibility for leaking information that reveals that the US intelligence community obtains and keeps information on American citizens accumulated off the Internet without ever issuing a search warrant or opening an investigation into that person. On June 14, 2013, the United States federal prosecutors charged Snowden alleging violations of 18 U.S.C. ¨ 641 (theft of government property), 18 U.S.C. ¨ 793(d) (unauthorized communication of national defence information), and 18 U.S.C. ¨ 798(a)(3) (wilful communication of classified communications intelligence information to an unauthorized person). Each crime carries a maximum sentence of 10 years in prison. Snowden fled the United States prior to the publication of his disclosures, first to Hong Kong and then on to Moscow, where he was granted political asylum within Russian borders by the government of Russia at the end of July 2013 and where he now resides at an undisclosed location. When asked about his motive behind becoming a whistle-blower, Snowden replied:

“When you’re in positions of privileged access like a systems administrator for the sort of intelligence community agencies, you’re exposed to a lot more information on a broader scale than the average employee and because of that you see things that may be disturbing but over the course of a normal person’s career you’d only see one or two of these instances. When you see everything you see them on a more frequent basis and you recognize that some of these things are actually abuses. And when you talk to people about them in a place like this where this is the normal state of business people tend not to take them very seriously and move on from them. But over time that awareness of wrongdoing sort of builds up and you feel compelled to talk about. And the more you talk about the more you’re ignored. The more you’re told it’s not a problem until eventually you realize that these things need to be determined by the public and not by somebody who was simply hired by the government.”

Clearly, Snowden had given up his well-paid employment of $200,000 per year and his privileged life because he had a moral obligation to allow the public aware of the abusive (immoral) activities of the government even if it meant to break the “law.” In order to determine whether Snowden is a hero who needs to be awarded or a criminal who needs to be punish, lets looks at the two most dominant legal philosophical prospective, Legal Positivism and Natural Law.

The famous Hart-Fuller debate is an exchange between Lon Fuller and H.L.A. Hart on morality and law, which demonstrated the divide between the positivist and the natural law philosophy. One of the issues at stake in the Hart-Fuller debate was how the post-Nazi West German legal system should respond to heinous acts committed during the Nazi period and purportedly authorized by Nazi law. Being a positivist, Hart argued that because these acts, however reprehensible, were lawful at the time they were committed. Any reasoning suggesting that Nazi laws were not valid laws because they were morally detestable would confuse what the law is with what the law ought to be. For Hart, law is the command of the sovereign backed by the threat of punishment. On the other hand, being a natural law theorist, Fuller maintains that law and morality cannot be divorced from each other and that the post-war courts were entitled to hold Nazi rules not to be law. To call the Nazi system legal and to call its rules laws was a false description of what they were. They were instruments of an arbitrary and tyrannical regime.

If this debate is to take place today, Hart would argue that Snowden’s justification in breaking the law based on morality is invalid. The law forbids acts of espionage and theft of government property; thus, the sovereign power (the US Government) has to grant Snowden punishment as stated by the law. Here the question of morality is irrelevant as morality is subjective and therefore is an obstacle in measuring law. On the other hand, Fuller would argue that Snowden is innocent because the law is immoral as it prohibits moral entrepreneurs, such as, Snowden, revealing the unjust practices of the government agencies to the public.

Ultimately, the question that we should be asking is: which approach to the law leads to greater benefits to the society? Do we as a society benefit from breaking laws that are unjust? After all, laws are made to allow society to flourish though order. Law is an expression of society; therefore, laws should reflect the values of the society. Morality is a set of inherent values of a society. Divorcing morality from law is an artificial concept that leaves a society in the wilderness as the society loses its direction. Whether a society is governed by a democratically elected government or a dictator, ultimately, a small number of people decide which rules should govern the rest of the society. History tells us that lawmakers, whether elected or unelected, often make laws that are detrimental to the wellbeing of the society. If we’re to accept such laws just because they’re laws, then the status quo, no matter how detrimental it is to the social wellbeing, will not be challenged and changed. It would leave the society stagnant and slow the process of progress. By breaking and challenging an unjust law, Snowden has taken the first step towards an amendment. For that reason alone, he’s a hero.

Furthermore, positivism inhibits justice. Imagine that Adolf Hitler (chancellor of Germany during the Second World War) was still alive and not found guilty for killing millions of innocent people simply because he was acting in accordance with the brutal and oppressive law. If this was true, how would the society consolidate the numerous victims of World War II? Rational thoughts dictate that oppressors should be punished not only to establish justice but also discourage any potential oppressors to commits such heinous crime in the future. Anyone disobeying an oppressive law of the Third Reich would generally be looked as a hero. In Snowden’s case, he disobeyed a law that is oppressive. Any law that allows the “Big Brother” to diminish civil liberty by unjustly spying on its population is not worthy to be considered a law. What Snowden did is comparable to a Nazi soldier refusing to carry out an order to shoot at innocent people. Therefore, Edward Snowden is a hero.


Palvich, G. (2011). Law & Society Redefined . Toronto: Oxford University Press.

RT. (2013, October 1). New Snowden leak: NSA is monitoring the Internet histories of millions of Americans. Retrieved from RT News: http://rt.com/usa/nsa-leak-internet-history-549/

Yin, T. (2013, July 15). Is Edward Snowden Guilty of US Espionage Charges? Retrieved from Jurist: http://jurist.org/forum/2013/07/tung-yin-edward-snowden.php

Yost, P. (2013, June 22). NSA leaker Edward Snowden charged with espionage, theft of government property. Retrieved from National Post: http://news.nationalpost.com/2013/06/22/nsa-leaker-edward-snowden-charged-with-espionage-theft-of-government-property/

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by | October 2, 2013 · 10:29 pm