The U.S. has been in a state of exception now for many years, and there appears to be no end in sight. There exists an entire generation who has know life under only this form of government, one that, as Giorgio Agamben explains, takes “a position at the limit between politics and law…an ambiguous, uncertain, borderline fringe, at the intersection of the legal and the political.” In the name of security, the characteristic limiting of constitutional rights, the sanctioning of torture, and the proliferating of NSA surveillance are fast becoming the norm. Recently, much has been written concerning the bio-political consequences of an endless state of exception in which the executive power trumps the judiciary, and a new legal order emerges. This chapter will consider the relationship between corruption and the permanent state of exception.
Since March 9, 1933, the United States has been in a state of declared national emergency. In fact, there are now in effect four presidentially proclaimed states of national emergency:
In addition to the national emergency declared by President Roosevelt in 1933,there are also the national emergency proclaimed by President Truman on December 16, 1950,during the Korean conflict, and the states of national emergency declared by President Nixon on March 23, 1970, and August 15, 1971.
These proclamations give force to 470 provisions of Federal law. These hundreds of statutes delegate to the President extraordinary powers, ordinarily exercised by the Congress, which affect the lives of American citizens in a host of all encompassing
manners. This vast range of powers, taken together, confer enough authority to rule the country without reference to normal Constitutional processes. Under the powers delegated by these statutes, the President may: seize property; organize and control the means of production; seize commodities; assign military forces abroad; institute martial law; seize and control all transportation and communication; regulate the operation of private enterprise; restrict travel; and, in a plethora of particular ways, control the lives of all American citizens (Church, 1973).
It continued that for forty years emergency rule had abridged citizens’ constitutional rights. The NEA was designed to change the endless emergency rule.
Section 201 of the NEA authorizes the President to declare a national emergency, but it also provides certain checks and balances. Once he makes the declaration, he must immediately inform Congress and publish a notice in the Federal Register. Once the National Emergency is declared, the President may use existing rights, which are provided to him in other additional statutes. Further, the International Emergency Economic Powers Act, Title 50, §§1701-1707, enacted in 1977, gives the President the power to declare a state of emergency only when there is a threat to national security, foreign policy, or the U.S. economy, assuming the danger originated completely or mostly outside U.S. borders. Specifically, it permits the President to block transactions and freeze assets to combat the danger. If there is a physical attack on the United States, he can confiscate any property of a country, group, or person responsible in any way for that attack. Also, any expenditures that are “directly attributable” to the exercise and powers of the declaration of a State of Emergency must be reported. A national emergency can be terminated in three different ways: through a declaration by the President, through a joint resolution enacted by congress, and through non-renewal after the anniversary of the declaration of emergency.
However, in response to 9/11, additional provisions blurred the boundaries of internal/external threat. Napoleon’s old concept of a “fictitious or political” state of siege returned. Recall, this one essential distinction in Article 92 of the French Constitution: a state of siege could only be declared in the case of armed revolt or external situations that would threaten the security of the state, directly. In 1811,Napoleon altered the article to allow a “fictitious or political” state of siege, even though there were no actual attacks or external threats by external forces. Consequently, the military was given policing powers including searching private homes, regulating “dangerous” publications and meetings and forming military tribunals to try certain civilian crimes. Likewise, in the United States, Executive Order 13224, the USA Freedom Act, and the Sunsets Extension Act provide similar provisions. Post 9/11, the threat of global terrorism expanded the understanding of external threat. Global terrorist became internal and external threats, and the War on Terror became so complex and pervasive that the definition of an “immediate threat originating outside the border” changed considerably. Thus, many of the concerns expressed by the Special Committee of the Termination of the National Emergency, reemerged.