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Off-Case

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Detention is not a space of exception but of hyper-legality—reforms result in the naturalization of power


Fleur Johns 05, Co-Director of the Sydney Centre for International Law (with Associate Professor Tim Stephens) and an Associate Professor in the Faculty of Law, “Guantánamo Bay and the Annihilation of the Exception,” The European Journal of International Law Vol. 16 no.4, http://ejil.oxfordjournals.org/content/16/4/613.full.pdf+html

For detention decisions taken at Guantánamo Bay to correspond to Schmitt’s understanding of the exception, however, ‘[t]he precondition as well as the content of jurisdictional competence in such a case must necessarily be unlimited’. ‘From the liberal constitutional point if view’, Schmitt wrote, ‘there would be no jurisdictional competence at all. The most guidance the constitution can provide is to indicate who can act in such a case.’100 Yet in respect of Guantánamo Bay, both the content and competence of the US executive is repeatedly cast as pre-codified in presidential and governmental statements. At times, the ‘code’ is said to be that of ‘freedom’, ‘democracy’ or ‘justice’.101 At other times, it is that of God.102 On still further occasions, constitutional norms are invoked to frame a decision.103 The acts of the would-be sovereign, in each case, are characterized by repeated references to some higher source of competence and direction, overt deference to a pre-determined programme in the course of implementation, and insistence upon the conduit or vessel-like status of executive authority.A little lower down the hierarchy, Secretary of the Navy Gordon England, speaking about the annual administrative review process at a press briefing on 23 June 2004, conceded: ‘[T]here’s no question there’s judgment involved. I doubt if many of these are black and white cases. I would expect most are going to be gray’. When pressed to define his role in the process, he confirmed that he was the one to make the final decision regarding release, transfer or continued detention in respect of each detainee, in the wake of an Administrative Review Board assessment. ‘I operate and oversee, organise the process, and I also make the ultimate decision’, he stated.10¶ Secretary England went on, however, to convey an impression of this judgment as one cabined by broad policy directives, notions of reasonableness, and the institutional demand for standardization: ‘[W]e do have some guidelines; . . . the boards do have some guidelines’, he assured the audience, ‘[e]very board doesn’t have a different standard’. He continued: ‘[I]t will be a judgment based on facts, data available . . . the best decision a reasonable person can make in this situation’. ‘[I]t’s what is the situation today and going forward in terms of a threat to America. And that is what we will decide, and that’s what the decision will be based on’.105¶ From expressing the decision he would be taking in personal, case-specific terms, Secretary England thus moved rapidly into the mode of generalization, depersonalization and necessity. ‘His’ decision became ‘the’ decision of the reasonable person, made not to assess the individual detainee’s responsibility, but rather to assess his or her proximity to a generalized ‘threat to America’.¶ Such an approach is also discernible in the Military Order issued by President Bush in 2001, pursuant to which the Military Commissions were convened before which Guantánamo Bay detainees were, until their suspension in November 2004, in the process of being tried. The ‘findings’ upon which the jurisdiction created by that order is predicated cast the steps taken thereby as inexorable reactions to a state of affairs of immeasurable proportions and persistent duration. Attacks by international terrorists are said to have ‘created a state of armed conflict that requires the use of the United States Armed Forces’.106 Likewise, it is said to be ‘necessary for individuals subject to [the] order . . . to be detained’, just as the issuance of the order itself is stated to be ‘necessary to meet the emergency’.107 Although expressed in terms of ‘an extraordinary emergency’, this order frames the Presidential decisions embodied in its text as matters of exigency – in other words, as non-decisionsdictated by a ‘state of armed conflict’. The only acknowledgement of discretion is buried in the final paragraph of the order’s ‘findings’, where the President is said to have ‘determined that an extraordinary emergency exists for national defense purposes’. The exercise of sovereign discretion is, accordingly, cast as a derivative matter: a question of classification after the fact. One could, of course, read these claims as exercises in public relations, designed to cloak the deployment of unfettered sovereign power in the guise of liberal proceduralism. Yet regardless of how one might characterize the ‘real’ intent behind the military mandates governing Guantánamo Bay, the experience of decision-making reported by figures such as Secretary England seems, to a significant degree, to be one of deferral and disavowal – as though his job were more a matter of implementation than decision. Speaking of the determination, by the Combatant Status Review Tribunal, that one of the first 30 detainees to be heard by the Tribunal was not, in fact, an ‘enemy combatant’, Secretary England explained: ‘[I]n this case we – we set up a process, we’re following that process, we’re looking at all the data . . . Determinations were made he was an enemy combatant. We now have set up another process; more data is available. Time has gone by . . . I believe the process is doing what we asked the process to do, which is to look at the data as unbiased as you can, from a reasonable person point of view . . . and I believe the process is working . . . ’108 This is not the language of Schmittian exceptionalism. Rather, it is suggestive of efforts to construct a series of normatively airtight spaces in which the prospect of agonizing over an impossible decision may be delimited and, wherever possible, avoided. As such, the jurisdiction created at Guantánamo Bay is constituted, in Schmittian terms, in the liberal register of the norm (indeed, an overdetermined version thereof).109

The sovereign gets its power from law—thus appeals to return to legal norms legitimize it and prevent broader resistance


Mark Neocleous 06, Professor of Government at Brunel University, Alternatives, Vol. 31, p. 206-208

To criticize the use of emergency powers in terms of a suspension of the law, then, is to make the mistake of counterpoising normality and emergency, law and violence. In separating “normal” from “emergency,” with the latter deemed “exceptional,” this approach parrots the conventional wisdom that posits normalcy and emergency as two discrete and separable phenomena. This essentially liberal paradigm assumes that there is such a thing as “normalorder governed by rules, and that the emergency constitutes an “exception” to this normality. “Normal” here equates with the separation of powers, entrenched civil liberties, an ongoing debate about public policy and law, and the rule of law, while “emergencies” are thought to require strong executive rule, little time for discussion, and are premised on the supposedly necessary suspension of the law and thus the discretion to suspend key liberties and rights. But this rests on two deeply ideological assumptions: first, the assumption that emergency rule is aberrational; and, second, an equation of the emergency/nonemergency dichotomy with a distinction between constitutional and nonconstitutional action. Thus liberalism seeks to separate emergency rule from the normal constitutional order, thereby preserving the Constitution in its pristine form while providing the executive with the power to act in an emergency.47 But the historical evidence suggests that emergency powers are far from exceptional; rather, they are an ongoing aspect of normal political rule. Emergency, in this sense, is what emerges from the rule of law when violence needs to be exercised and the limits of the rule of law overcome. The genealogy of “emergency” is instructive here. “Emergency” has its roots in the idea of “emerge.” The Oxford English Dictionary suggests that “emerge” connotes “the rising of a submerged body out of the water” and “the process of coming forth, issuing from concealment, obscurity, or confinement.” Both these meanings of “emerge” were once part of the meaning of “emergency,” but the first is now rare and the second obsolete. Instead, the modern meaning of “emergency” has come to the fore, namely a sudden or unexpected occurrence demanding urgent action and, politically speaking, the term used to describe a condition close to war in which the normal constitution might be suspended. But what this tells us is that in “emergency” lies the idea of something coming out of concealment or issuing from confinement by certain events. This is why “emergency” is a better category than exception: Where “emergency” has this sense of “emergent,” exception instead implies a sense of ex capere, that is, of being taken outside. Far from being outside the rule of law, emergency powers emerge from within it. They are thus as important as the rule of law to the political management of the modern state. There is, however, an even wider argument to be made. The idea that the permanent emergency involves a suspension of the law encourages the idea that resistance must involve a return to legality, a return to the normal mode of governing through the rule of law. But this involves a serious misjudgment in which it is simply assumed that legal procedures, both international and domestic, are designed to protect human rights from state violence. Law itself comes to appear largely unproblematic. What this amounts to is what I have elsewhere called a form of legal fetishism, in which law becomes a universal answer to the problems posed by power. Law is treated as an independent or autonomous reality, explained according to its own dynamics. This produces the illusion that law has a life of its own, abstracting the rule of law from its origins in class domination and oppression and obscuring the ideological mystification of these processes in the liberal trumpeting of the rule of law.48 To demand the return to the “rule of law” is to seriously misread the history of the relation between the rule of law and emergency powers and, consequently, to get sucked into a less-than-radical politics in dealing with state violence. Part of what I am suggesting is that emergency measures, as state violence, are part of the everyday exercise of powers, working alongside and from within rather than against the rule of law, as part of a unified political strategy in the fabrication of social order.

The alternative is to reject the 1AC—refusing the legitimacy of any current governance is crucial to remove the sovereign’s power


Mark Neocleous 06, Professor of Government at Brunel University, Alternatives, Vol. 31, p. 206-208

The question to ask, then, is less about how we can bring law to bear on violence than about what it is that the law permits emergency measures to accomplish.49 This rejects any supposed juxtaposition between legality and emergency and allows us to recognize instead the extent to which the concept of emergency is deeply inscribed within the law and the “normal” legal condition of the modern state. Emergency powers are permanent because they are part and parcel of the normal mode of governing. Once this is recognized then the supposed problematic of violence disappears completely. Emergency powers do not involve some kind of suspension of law while violence takes place, but are united with law for the exercise of a violence necessary for the permanent refashioning of order. Far from being a self-evident and peaceful good that might protect us from violence, the bloody and violent world around us is the product of the rule of law.50 In this context it is appropriate to turn briefly to Benjamin’s comment on the state of emergency as the rule rather than the exception. The tradition of the oppressed teaches us that the “state of emergency” in which we live is not the exception but the rule. We must attain to a conception of history that accords with this insight. Then we will clearly see that it is our task to bring about a real state of emergency, and this will improve our position in the struggle against fascism.51 As I noted earlier, this comment has been cited time and again by those seeking to describe the current conjuncture as one of permanent emergency. But what tends to be omitted is Benjamin’s point that we learn about the permanent emergency not from the current conjuncture, either then or now, but from the tradition of the oppressed. If you want to know what emergency power looks like, read the history of the oppressed, for it is this history that reveals the permanent nature of the emergency. In other words, we should understand the state of emergency through a historical understanding of state power as class rule, not a contemporary reading of international relations. And this argument has political implications. If emergency powers are part and parcel of the exercise of law and violence (that is, law as violence), and if historically they have been aimed at the oppressed (in advanced capitalist states against the proletariat and its various struggles, in reactionary regimes against genuine politicization of the people, in colonial systems against popular mobilization), then they need to be fought not by demanding a return to the “normal” rule of law, but in what Benjamin calls a real state of emergency. As Slavoj Zizek puts it, “When a state institution proclaims a state of emergency, it does so by definition as part of a desperate strategy to avoid the true state of emergency and return to the ‘normal course of things.’”52 The permanent state of emergency carried out by the ruling class, then, is part and parcel of the struggle against the real state of emergency carried out by those seeking a real (global, local, political) alternative. Rather than being affronted by the permanent emergency and demanding a return to legality, then, we should be aiming to bring about a real state of emergency. And this is a task that requires violence, not the rule of law. As Benjamin saw, the law’s claim to a monopoly of violence is explained not by the intention of preserving some mythical “legal end” such as peace or normality but, rather, for “the intention of preserving the law itself.” But violence not in the hands of the law threatens it by its mere existence outside the law. A violence exercised not by the state, but used for very different political ends. For “if the existence of violence outside the law, as pure immediate violence, is assured, this furnishes proof that revolutionary violence, the highest manifestation of unalloyed violence by man, is possible.”53


Directory: bin -> download -> Northwestern
Northwestern -> I emphasize this point because
Northwestern -> Congressional oversight is necessary for a pragmatic, flexible approach to threats executive discretion results in knee-jerk policy failure
Northwestern -> A. Interpretation and violation the affirmative should defend topical action grounded in the resolution
Northwestern -> Advantage 1 is accountability
Northwestern -> Contention 1: internment the Internment Cases have not been analyzed by modern courts yet
Northwestern -> “Armed Forces” means the Army, Navy, Air Force, Marine Corps, and Coast Guard
Northwestern -> Contention 1: deterrence global strike Command is focused on its nuclear mission now
Northwestern -> Targeted killing as a first resort outside active hostilities
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