Though I do like breaking femurs
You can count me with the dreamers
Like everybody else, I got a dream…
(I’ve got a dream, Tangled)
The jig is finally up, politics isn’t running as normal anymore (although ‘the oppressed’ always knew that the ‘state of emergency’ was normal, reminding us that our ‘amazement’ revealed the paucity of geopolitical and chronopolitical maps). The unanticipated and unpredicted – Brexit, the growing popularity of the right across Europe, and now, my focus here, the election of Trump in the US – have illuminated key blockages and sites of struggle in the contemporary political and economic and cultural landscape as, using proper names as improper political shorthand for what are really movements, Sanders, Corbyn, Sturgeon, Iglesias, Tsipras, and so on try to plot a future-bearing seam of struggles in one direction against, on the one hand, the crisis-laden but still prevailing neoliberal orders globally and locally, and against the pull of Trump, May, Farage, le Pen, Geert (to use that same improper shorthand) in the other direction. Here, I want to focus on the consummate roguish capacity that, as president-elect, Trump inherits. With a Republican majority in both Houses presaging a compliant legislature, and the Supreme Court leaning Trump-wards, he also acquires the formidable executive powers of the presidency. In what follows, I point to the very real dangers of this inheritance; but also, and perversely, I try to unearth some room for manoeuvre for critical theory and radical agency in the least prepossessing site of executive, exceptional powers.
From Executive to Emergency
I’m the decider, and I decide what is best. (George W. Bush).
The powers of the President are encoded in Article Two of the American Constitution: ‘The Executive power shall be invested in a President of the United States of America.’ Broadly, the President has the authority to negotiate treaties with other states; to make appointments to cabinets, courts, and the Supreme Court; to propose legislation; and to grant pardons for federal crimes (except impeachment). ‘Inherent powers’ give the President significant authority in foreign affairs, including the capacity to sign executive agreements with other countries that do not require senate approval. Significantly, ‘executive privilege’ gives the president ownership and control over intelligence, the capacity to determine what information is privileged, or can be redacted, to protect diplomatic or military endeavours. These two aspects, inherent powers, and executive privilege, are particularly fraught areas, giving latitude to Presidential capacity to act in ways that bypass scrutiny and accountability or in ways that circumvent institutionalised ‘checks and balances’ (provided those checks and balances indeed act as scrutinizing and countervailing forces, as Obama has experienced, rather than as enabling and expediting forces, as the Trump presidency may have reason to anticipate).
To put some flesh on the somewhat dry constitutional bones, inherent powers were deployed by the (W.) Bush presidency to extend presidential capacity, especially in the aftermath of 9/11. Countervailing forces were exerted in Congress, as, for example, a congressional resolution of 14 September 2001 specifically refused to grant the extended powers to pre-empt terrorism that the Presidency sought under his constitutional inherent powers. Nevertheless, despite this, Bush was able to, among other things, authorise the National Security Agency (NSA) to surveil calls and emails sent from the USA to other countries without seeking court orders, an act that circumvented the Foreign Intelligence Surveillance Act passed by Congress in 1978. Similarly, in the course of his presidency, Bush did not comply with many laws concerning national security and disclosure, and questioned the authority of Congress to limit force, or actually, violence, in interrogation. His administration claimed that Presidential war powers gave him the authority to detain people indefinitely, to deny access to counsel and courts. In an echo of Nixon (‘when the president does it, that means that it is not illegal’), echoing Agamben in Schmittian mode (‘I, the sovereign, who am outside the law, declare that there is nothing outside the law’) Bush claimed presidential prerogative in the face of US law and international agreements (for instance, the International Covenant on Civil and Political Rights – ICCPR – to which the United States is a party, requires that courts, not executives, decide the legality of detention) and granted new powers to the CIA to disrupt terrorist activity – Bush authorized the creation of the ‘black sites’ beyond oversight that enabled interrogation under torture and rendition practices.
We can trace here, then, that moment in a democratic system of government when executive power turns into emergency power, and when democracy is no longer governed by way of rule of law, but by executive decision – when democracy becomes fascist. Within and against the dominant western liberal tradition, thinkers such as Walter Benjamin, Jacques Derrida and Giorgio Agamben (taking their bearing from Schmitt) have insisted that this morphing of executive power to emergency power is not anomalous to political orders, even and especially democratic or liberal ones, but is constitutive of the sovereignty upon which political order depends. Theorists of the ‘constitutive exception’ have insisted that the state of emergency persists within, and underpins, executive authority – it is not superseded by a state of legitimacy, but rather, exceptionalism underlies the normal order of political life. This perspective is disturbing because it suggests that contemporary political orders are inextricable from violence (i.e., rule of law, rights, and so on, ultimately cannot protect from the potential and actual violence of political belonging): ‘the paradox of sovereignty consists in the fact that the sovereign is, at the same time, outside and inside the juridical order,’ – that is, the sovereign upholds the law, the political and juridical order, but, in declaring a state of exception, can step beyond the law although ostensibly in the name of the law. Exception denotes the constitutionally enshrined sovereign capacity to suspend the rule of law, or to act outwith the paradigm of democratic legitimacy or accountability, in a way that entails some kind of decision of life or death, or on political inclusion or exclusion, or the suspension of rights. The ways that Bush extended executive powers did not simply or straightforwardly ‘tear up the constitution’ insofar as these powers are constitutionally prescribed and protected; Bush, rather, exploited and expanded that ‘anomic’ space (to draw upon Agamben) in which rule of law suspends itself as a matter of course in constitutionally protected ways. Nixon, that is, didn’t get it entirely wrong: executive powers as deployed by Bush evoke a state of a-legality rather than illegality. This is not to underestimate the profoundly dangerous nature of this mode of power, clearly manifest in the Bush presidency. (And this is not the only place where this happens: executive/emergency power disseminates throughout machineries of governance, dispersed throughout governmental apparatuses from the benefits office to the oval office, from illicit practices of torture to the suspension of democracy enacted by the troika – but that’s another story).
But in 2008, the presidency changed hands as a new hope swept Barack Obama to power; emergency over, right? The normal state of politics could resume, right? As it transpired, those who theorised the constitutive nature of exception were on to something after all. On Obama’s third day in office, he launched his first two CIA airstrikes in Pakistan; and during his first 9 and a half months in office he authorized as many aerial strikes as Bush did in his final 3 years. While as presidential candidate, he promised to pull over-reaching executive war powers back under legislative and judicial oversight — (‘that means no more illegal wire-tapping of American citizens. No more national security letters to spy on citizens who are not suspected of a crime. No more tracking citizens who do nothing more than protest a misguided war. No more ignoring the law when it is inconvenient. That is not who we are. And it is not what is necessary to defeat the terrorists. The FISA court works. The separation of powers works. Our Constitution works. We will again set an example for the world that the law is not subject to the whims of stubborn rulers, and that justice is not arbitrary,’ Obama, August 2007) — far from dismantling the apparatuses of covert war and surveillance entrenched through Bush’s deployment of executive powers, Obama’s presidency extended precisely those apparatuses and powers. To be fair, Obama has closed CIA-run black-sites, and ordered that interrogations are conducted in within legal limits, and his failure to close Guantánamo Bay is largely due to opposition in Congress. That said, the NSA’s ability to control a massive surveillance apparatus remains with minor modifications following Edward Snowden’s disclosures (facing prosecution under the Espionage Act of 1917 which does not consider any public service aspects of disclosure, Snowden remains in temporary asylum in Russia, his political subjectivity precisely ‘bare’; former intelligence analyst Chelsea Manning, facing prosecution under the same act for leaking classified information on operations in Baghdad and Afghanistan is currently serving a 35 year sentence that many argue is excessively punitive. All the indications suggest neither will receive a presidential pardon). And most significantly, the drone program, begun under the Bush administration, has been extended and entrenched in the Obama administration. Citing the Authorization for Use of Military Force passed by Congress in September 2001 as the legal authority for drone strikes, the Obama administration has overseen extrajudicial killing directly from the Oval Office, as President Obama takes ultimate responsibility for the designation of targets through a secretive process in which executive decision and responsibility sits alongside routinization (every Tuesday…). Mr Leiter, former head of the National Counterterrorism Center, defended presidential decision in this area, arguing that rule of law lacked discernment with regard to targeting terrorists: ‘He’s the president. … You can pass a lot of laws. Those laws are not going to get Bin Laden dead.’
So, while Obama promised to no longer treat counterterrorism as an area of exception or executive decision he has nevertheless through the course of his presidency normalized extrajudicial murder, targeted assassination, as a tactic of counterterror operations located squarely within the Oval Office. The ‘law-enforcement approach’ has seen the persistence and proliferation of practices of exception in sites executive and otherwise. These apparatuses, these capacities, now pass to president-elect Trump. The violent dreams of sovereign capacity are inherent to the exceptional powers of executive office, in being ‘the decider,’ including, excluding, suspending, detaining, revoking, listening, watching, telling, torturing, killing. In response, liberals and radicals tend to agree on one thing: if the state of emergency and exception is core to executive capacity, and executive capacity is core to sovereignty, then sovereignty is the enemy of politics, properly understood and practised (i.e., rule of law, protection of human rights, electoral democratic politics, for the liberal; and some form of popular sovereignty where the constituent power of the people is not alienated in constituted form for the radical). Very reasonable responses; but we live in unreasonable and twisty times, so I want to explore a supplementary and perhaps perverse option and ask: is there any ethico-political surplus or potential in spaces of sovereign-exception? My wager is this: if there is some kind of ethical surplus in sovereign spaces, then there might be some room for manoeuvre in undoing the ligature between sovereignty and violence that is theorized so compellingly through the concept of exception – executive capacity, sovereignty, exception itself, that is, can be wrested as, at the very least, a site of struggle, as equivocal and plurivocal rather than absolute; as a legitimate target for left and radical critical-political agency. I find a point of intervention again in Article Two of the American Constitution, in the pardon powers of the president.
From Emergency to Mercy:
If sovereign exception is manifest in extrajudicial killings, its merciful counterpart gives life; if exception incarcerates indefinitely, its merciful counterpart releases and exonerates; where exception closes borders, returns or retains, its merciful counterpart offers asylum, hospitality, and safe passage; where exception shoots first, mercy lowers its weapon; where exception punishes and sanctions, mercy extends consideration. What distinguishes practices of sovereign exception and practices of mercy is the disposition of the decision. Just as sovereign exception can constitutionally suspend rule of law, so too can mercy suspend law’s strictures: both sovereign exception and mercy act outwith the paradigm of legal and democratic accountability. But where sovereign exception decides on death, excludes, and suspends the order of rights, mercy decides on life, includes, and suspends the order of punishment. Both sets of practices are at odds with modern liberal conceptions of justice and legitimacy in their indifference to rule of law. Mercy, rather than the other of exception, is as an aspect of sovereign exception, itself an exceptional sovereign capacity in which sovereignty relinquishes something of its capacity while nevertheless reinforcing its status; it is the dispositional other and the structural double of sovereign exception. ‘Latitude’ with respect to law makes mercy a profoundly ambivalent power. Ambivalence is the mark of mercy; but there is an opportunity for critical theory to explore the possibilities of mercy as ameliorative exception. This task has to be undertaken without erasing the profoundly ambivalent qualities of mercy; but just as the malign exception has not been erased by rule of law so to this potentially ameliorative exception has a potential that could be channelled and put to work by theorists and activists. Linda Ross Meyer rightly cautions, ‘we must acknowledge that the “hole in the law” where pardoning and mercy and forgiveness live is also where violence and repression exist. In the end, there is no guarantee that pardoning will always be done right’; but if theorists who stress the constitutive power of exception are correct, then the entire parabola of exceptional possibilities need excavation, exploration – and to be exploited by radical political agency.
Mercy, then, the pardon power of the president, manifests another moment of ‘anomie’ and in fact what we might call the ameliorative exception, the pardon power, is arguably more significant in clarifying why rule of law demands and requires that anomic space to preserve itself. We can see the return of Derrida’s originary exceptional lawgiver in Meyer’s discussion of peace pardons, for instance: ‘The pardon’s role here creates new polity, includes outlaws and in-laws, and expands the borders of legal jurisdiction through legal immunity,’ (87-8). Similarly, where entire subjectivities have been criminalized, the pardon power has the capacity to renew and revise rule of law and to re-enfranchise those who have been symbolically and materially disenfranchised (we might, without effacing the sheer ambivalence and complexity of the pardon, consider Turing’s Law in this light). The pardon power, that is, like Arendtian forgiveness, contains a transformative capacity through which a polity can be reshaped and renewed, new subjectivities and citizens included, old ‘others’ turned into friends. The pardon power can reveal and correct harshness in penal codes when rule of law is implemented in procedurally correct ways (cf. Obama’s ‘Clemency Project 2014’ for drug crimes which aims to ameliorate the prior regimes of ‘war on drugs’ and federal mandatory minimum sentencing). More broadly, the demand for redress against injustice through asserting fundamental principles of equality before the law is crucial; rule of law is vital; but when law itself has been deployed as a tool of exception, a political weapon, then insisting on rule of law and equality might not be as equitable as situations demand. And law, and rule of law, are of course not neutral and apolitical spaces and practices; law itself has at any rate always been situated, contextual, raced, gendered, classed; law does not and cannot stand outside of ongoing struggles and processes of othering; law, that is, is as ‘indigent and distorted’ as the historical moment of its formulation, and practices of mercy provide a crack through which recompense can be made to those variously othered.
Mercy, though, remains what the Scots like to call a thrawn virtue: twisted, perverse, mercy remains a prerogative of the power; but might its ameliorative qualities have the potential to foment prefigurative and pretransformative capacities? Just as the malign or violent exception, in the form of presidential or executive power, creates the conditions in which democracy can morph into something else, what kind of transformative capacity might the ameliorative exception contain? It just might, sometimes, contain the potential to inflect democratic practices in a different direction. As Drucilla Cornell and Stephen D. Seely rightly note, liberal commitments to rule of law are simply not enough in the face of fascism; and constitutional rule of law is indeed one of the hinges that flexes out onto its other, however that may take shape. And of course while the concentration of power that Trump heads up is formidable, it is even more chilling to witness the racism, misogyny, hatred, fascism that his campaign unleashed, shaped, galvanised, inflamed, mobilised and normalised (even if Trump had lost the election, this force would remain). So my wager is this: might it just be possible that one of the possibilities to emerge from the ameliorative exception would be to latch on to mobilizations of a different order and quality? Addressing this means attending to the ways that mass mobilizations sustain an executive, and how can executive actions inflect and support mass mobilizations. So while my intended addressee is Obama while he remains president, I also want to address the movement that opposes everything that has led to president-elect Trump in order to try and work out some of the possibilities of ameliorative exception.
So what can Obama do in the last days of his presidency? Well, he could use his presidential capacity to pardon illegal immigrants. Obama’s record on presidential pardons is as paradoxical as his record on executive actions. His command of drone strikes was a curious combination of executive prerogative (the responsibility, the moral imperative, the judicious targeting process) and due process (the lawyers, the co-ordination of the CIA and the Departments of Justice and State) that functioned so as to make targeted assassinations more possible; conversely, that combination of executive prerogative and due process has made his clemency decisions less likely. Obama’s clemency programme functions in a legalistic way that decides one prisoner at a time. But clemency, constitutionally, is precisely exceptional, an extra-legal, presidential power that Congress cannot interfere with, and that can be used to grant amnesty, to exonerate, groups of people, rather than just individuals (e.g., Jimmy Carter pardoned half a million people who violated draft laws to avoid military conscription in the Vietnam war on his first day in office).
Selecting illegal immigrants as the recipients of a presidential pardon would certainly link-up executive action with mass mobilisations; give the unashamedly racist and anti-immigrant tone and tenor of Trump’s campaign, such an action would be effective both in tone, as a gesture of solidarity, and in extending protection, given Trump’s promised deportation programmes. A presidential pardon would be irrevocable. Indeed, at the time of writing, Californian Democrat, Lucille Roybal-Allard has written to Obama to request he pardon around 750, 000 young undocumented immigrants who are temporarily shielded from deportation through Obama’s 2012 executive order, Deferred Action for Childhood Arrivals; the fear, partly, is that aspects of that programme – work permits and social security cards were issued, and contact details and fingerprints provided – could be used to identify and so facilitate deportation under the Trump presidency. One main obstacle in the way of executive pardons is that an immigrant’s unauthorised presence in the US is not an issue of criminal justice, but of civil justice, which lies outwith the remit of clemency (i.e., the government can deport but the president can’t pardon). First, there’s a distinction between entry and presence: unauthorised entry is a crime (while unauthorised presence is not). In the first instance, then, one could argue that the initial crime can be pardoned, but the concern is that this would be a largely meaningless pardon, since the civil ‘remedy’ of deportation could still be applied against the unauthorised presence of the undocumented. However, there is also historical and legal precedent: post- Civil War, in 1865, former Confederate Senator Augustus Hill Garland was pardoned by President Johnson, and argued that a law that required Federal Court Officers to affirm that he had never served in the Confederate government punished him for a crime for which he had been pardoned. The Supreme Court ruled in his favour 5-4, and Justice Field stated: when the pardon is full, it releases the punishment and blots out the existence of the guilt. … [A full pardon] prevents any of the penalties consequent upon conviction from attaching.’ This suggests that the pardon reverses the state of illegality itself. The result is peculiar: neither bare life nor quite citizen, a new political subjectivity itself would be created that cannot be subject to civil ‘remedies’ of deportation, but neither, quite, assumes full citizenship. Something new, something not yet codified, has the potential to emerge from the ameliorative exception. Mercy is always ambivalent, thrawn. But at the very least, individuals threatened with deportation would be protected; and then the creative political work of reinventing political categories of belonging would have a base from which to work. This would be a huge protection in the struggles that lie ahead.
I’m arguing, then, that critical theorists and radical political agents need to fight to wrest exception in all its manifestations, to resite it as a point of struggle, on the terrain of critical and political agency. Theorists of the constitutive exception have pointed to the irreducibility of the anomic space of exception, and I’ve argued that there is an untapped potential here (just as contemporary agency doesn’t reject organisation and leadership but ‘podemos-izes’ it, so too sovereignty and all it entails shouldn’t be rejected but critically deployed). For all its thrawness, mercy remains vital: it instantiates the claim that noone is illegal in precarious times when sovereignty makes life itself ‘bare.’ My plea to President Obama, while there is still time, is to go rogue himself, to deviate from his caution, his attempt to balance the power of the presidency with the proceduralism of due process, to abandon his conciliatory tone; if he doesn’t, he will hand over a war machine, an assassination machine, a surveillance machine, with vast powers, and few, if any, ameliorative qualities, that will further face attacks on Obama’s Affordable Healthcare Act, attacks on the Paris Agreement on climate change, attacks on women’s rights, reproductive rights, attacks on sexual and gender equality, and, alongside programmes of mass deportation, the building of walls and the registration of Muslims. Critical theorists don’t normally look to executive action as a site of resistance; but this is an emergency.
Susan McManus is Lecturer in Political Theory and Queen’s University,Belfast, researching sovereignty and hope.