Boston Marathon Bombings: the Emergency Declaration as a State of Exception

Global civil war has become (or is about to become) our pre­val­ent mode of being-together.

Martha Rosler: Gray-DrapeAt the end of the 60s, American artist Martha Rosler produced a series of photomontages titled House Beautiful: Bringing the War Home. One of those images, “Red Stripe Kitchen”, shows two GI soldiers rummaging through the immaculate kitchen of what looks like a typical American bungalow. It was displayed recently at The Metropolitan Museum of Art as part of the exhibition Faking It: Manipulated Photography Before Photoshop (October 11, 2012—January 27, 2013). I had seen the image during the fall of 2012 and it had made quite an impression at the time.

Many of the recent photos from the aftermath of the Boston Marathon bombings which were made available online ― often uploaded by regular citizens ― depict the so-called lockdown and the manhunt that ensued. Those photos were not produced by means of an artistic photomontage. The sight of law enforcement personnel passing through a living room in full tactical gear made an even greater impression.

Various military units were deployed in Boston, including members of the Massachusetts National Guard. Soldiers are usually believed to be deployed on the outskirts of the body politic: they either work outside or at the frontiers, protecting civilian populations. The use of the Army inside the civilian sphere is even restricted by a congregational act in the United States: the Posse Comitatus Act of 1878.

Up until recently (First World War), warfare had traditionally made a clear distinction between civilian and military targets. The bombings in Boston are yet another striking reminder that things have since drastically changed. The front lines that need to be protected have moved within the most intimate spaces of the civilian sphere. The war zone extends all the way into private living rooms and backyards. In her On Revolution, published in 1963, Hannah Arendt clearly acknowledged the significance of this transformation:

(…) the fact that the seeds of total war developed as early as the First World War, when the distinction between soldiers and civilians was no longer respected because it was inconsistent with the new weapons then used. To be sure, this distinction itself had been a relatively modern achievement, and its practical abolition meant no more than the reversion of warfare to the days when the Romans wiped Carthage off the face of the earth. (1963: 17)

Such a reversion (further) blurs the traditional distinction between what is public and what is private. Indeed, when the front lawn of private homes becomes a theatre for military-like operations in a democratic country, two issues arise. First, the extent of a government’s authority into the intimacy of private lives become spectacularly visible. The fact that such an intervention is conducted for the population’s “own good”, as it was repeatedly argued in the past few days, does not invalidate the relevance of this observation. Second, it raises some questions regarding the democratic principle of the separation of powers.

Exceptional events such as those that happened in Boston last week surely ask for an exceptional response from the government. However, when a state of exception is declared by a democratic government, a state of exceptional awareness should equally be observed by its population.

Which brings us to the question of the Emergency Declaration that was signed by President Barack Obama for the state of Massachusetts on April 17, 2013 (which was far from being the first one he signed). At the time of writing, there doesn’t seem to be much information available online about this presidential declaration. Mainstream media have been very generous in providing the public with various information regarding the events, including extensive coverage about the lifting of the Miranda rule for the captured suspect in the name of a “public safety exception”. However, informed analysis about the legal aspects surrounding an Emergency Declaration is scarce. A couple of informative points relative to the exceptional character of the authorities’ response are worth highlighting.

Legally speaking, an Emergency Declaration is not a declaration of martial law. The expression “martial law” has no precise legal meaning in the United States. That being said, it is commonly understood as the substitution of military authority by civil authority. The FEMA, which intervened in Boston after the bombings, operates under the direction of the U.S. Department of Homeland Security. This department was specifically created after the September 11 attacks to work within the civilian sphere (as opposed to the Department of Defense). The investigation itself was led by the Federal Bureau of Investigation.

Although no official declaration about the city of Boston being placed under martial law was ever made, the presence of military personnel raises some legitimate concerns. The Stafford Act, which defines the parameters under which the Federal Emergency Management Agency (FEMA) can act in emergency situations makes only two mentions of the word “military”. On one hand, it specifies that the evacuation of civilian population should be “non-military”. On the other hand, it states that “passive defense regulations” can be prescribed either by military or civil authorities.1 Interestingly, the Act also authorized the President to utilize the resources of the Department of Defense ―if he determines that such resources are needed―for a maximum period of 10 days.2 This is especially important in the context of a manhunt directed against suspected terrorists. Since September 2001, the laws that apply in such a situation are dictated by various types of ongoing federal emergency acts: making sense of their legal implications is not always easy.

A similar uncertainty presides over the use of the term “lockdown”. It was suggested (after the fact) that it may have been entirely voluntary and not legally imposed. Massachusetts Governor Deval Patrick did indeed ask people “to shelter in place” without referring to the application of sanctions if the request was to be transgressed. However, that was not quite the impression conveyed by the constant and ominous repetition of the word “lockdown” by mainstream media. The strong presence of some 9,000 heavily militarized law enforcement units and vehicles in the street may have had an additional dissuading effect as well. Another way to present this problem is to ask whether it is necessary for military control to be legally declared in order to produce actual coercive effects, i.e. to make the population feel like it is under a military imposed lockdown.

The legal issues regarding the search of private residential properties seems to be similarly ambiguous. First it must be noted that there has not been any kind of massive outcry denouncing it. Instead, what was broadly reported was the sense of cheerful relief following the capture of suspect Dzhokhar Tsarnaev. This relief was likely also associated with the fact that this capture meant both the release of the population and the withdrawal of armed personnel from the streets. In other words, it meant people could return to their normal life, as opposed to the exceptional situation they momentarily experienced.

Certainly, most of the residents spontaneously agreed for their homes to be searched, wishing, undoubtedly, to cooperate with the ongoing efforts to locate and capture the suspect who was still at large. Some residents have even commented to the effect that the searches were conducted in a polite manner. The relief from fear and the thankfulness felt once everything was over could very well legitimate, in the eye of the population, the exceptional measures that momentarily affected their lives. In his essay “The Remains of the Day” about the nature of the current response to terrorist threats, Brian Massumi made the following observation:

Once threat is felt and fear has taken us, the operative logic of preemption kicks in to make it a foregone conclusion that any action taken following that logic will have been right in any case. Whatever actions the police take will come across as justified, based solely on what was felt  –the feeling of threat. Police actions are affectively pre-legitimated.

This alone could explain the perfectly honest and truthful cooperative attitude of the residents in Boston, as well as the equally genuine gratitude they manifestly felt once the capture of the suspect was made official (on the evening of April 19). On the other hand, there are reported cases cases were this willingness to cooperate seem to have been less spontaneous, maybe coerced.

Private property is an unalienable right in the United States guaranteed by the Fourth Amendment of its Constitution. The search of a private property by executive authorities (law enforcement) usually requires a warrant delivered by the judicial branch of the government, once again assuring the separation of powers. However, various legal exceptions already exist which allow authorities to circumvent this rule and legally search a private property even if consent is not granted by the owner. Among those exceptions is the recognition of “exigent circumstances”. The Emergency Declaration itself introduces no additional modification to those rules. It could very well be argued that such “exigent circumstances” indeed prevailed after the bombings in Boston. However, the search of private residences without a court warrant appears to have been an exceptional measure which was momentarily normalized for entire suburbs. Just how many houses were searched during those few couple of days is unknown:

The Watertown police spokesperson, Michael Lawn, wasn’t able to say how many homes had been searched, saying only it was “a lot.” When asked if that was because the FBI was leading on the effort, Lawn indicated that it was just because it was “hard to tell.” (The Atlantic)

Maybe the most important aspect here does not lie in the exceptional nature of those measures, but in the way those exceptions are repeatedly called for and applied. The potential normalization of such exceptions through repetition is something to consider very seriously. It is worth remembering, for example, that the Proclamation 7463 ―the Declaration of National Emergency by Reason of Certain Terrorist Attacks―made by former President George W. Bush on September 14, 2001 has been renewed every year since it was first declared eleven years ago (last time by President Barack Obama on September 2012). That argument about the danger of repetition was recently expressed by Ross Douthat in a op-ed piece he wrote for The New York Times:

I agree that we aren’t likely to make a habit of it endlessly. But the pressure to do absolutely everything to stop a terrorist, and the sense in many quarters that the Boston lockdown “worked,” seems like it might inspire some genuine fiascos in a world where we suddenly had to adjust to a more frequent drumbeat of attacks.

The Emergency Declaration signed by the President on April 17, 2013 may officially have no legal impact on federal constitutional rights. But the events of April 15 authorized, in effect, exceptional measures that tested the limits of those rights by creating zones of legal uncertainty: “We’re trying to get facts on the ground of what really happened,” Carol Rose, executive director of the ACLU of Massachusetts, recently told The Atlantic Wire. Mayor Michael Bloomberg, however, must not have been very interested in the details and uncertainties of what “really happened” when he explicitly declared  following the bombings that the “interpretation of the Constitution […] have to change.” In his seminal book on this issue, State of Exception, Italian philosopher Giorgio Agamben wrote:

Faced with the unstoppable progression of what has been called a “global civil war,” the state of exception tends increasingly to appear as the dominant paradigm of government in contemporary politics. This transformation of provisional and exceptional measure into a technique of government threatens radically to alter―in fact, has already palpably altered―the structure and meaning of the traditional distinction between constitutional forms. Indeed, from this perspective, the state of exception appears as a threshold of indeterminacy between democracy and absolutism. (2005: 2-3)

Writing about this “global civil war”, Giorgio Agamben explicitly refers to the work of Hannah Arendt and Carl Schmitt. This concept also resonates, to some extent, with the way Jean-Luc Nancy is analyzing it in his own work. In his essay The Confronted Community which he wrote a few weeks only after the events of September 2001, Jean-Luc Nancy opens with the following lines:

The present state of the world is not a war of civilisations. It is a civil war: it is the internal war of an enclosed city, of a civility, of an ‘urbanity’, which are in the process of fanning out to the very limits of the world […] (2003: 23)

In regard to the topic at hand here, this “global civil war” finds its expression in the internalization of the front line identified earlier. Such a coexistential dynamic points in turn to the establishment of an order which could potentially become a threat to itself. If such a “global civil war” has become (or is about to become) our prevalent mode of being-together, then the exceptional intrusion of military interventions inside civil society, as it was witnessed in Boston, is an exception that is likely to repeat itself.

The reality of our contemporary lives in common may well have in fact absorbed the surrealist quality of Martha Rosler’s photomontages. This makes it all the more important to think about the way “emergency declarations” and exceptional government measures affect and transform our democracies.

Philippe Theophanidis is a Ph.D.c with the Department of Communication at the University of Montréal where he also taught for five years. He is currently completing a thesis about the loose ends of the ideal of community.

Cited sources

—AGAMBEN, Giorgio ([2003] 2005). The State of Exception, tr. by Kevin Attell, Chicago: University of Chicago Press
—ARENDT, Hannah (1963). On Revolution, New York: Penguin Books; available at archive.org
—NANCY, Jean-Luc ([2001]2003). “The Confronted Community”, tr. by Amanda Macdonald, Postcolonial Studies, Vol. 6, No. 1

Show 2 footnotes

  1. See Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended, and Related Authorities, FEMA 592, June 2007, Sec. 602. Definitions (42 U.S.C. 5195a), a.3.A-B. PDF. The 2013 version is available here.
  2. Again, see the Stanford Act, Sec. 403. Essential Assistance (42 U.S.C. 5170b), c.1.
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