The laws of war and the state of the American exception

2009 ◽  
Vol 35 (3) ◽  
pp. 631-649 ◽  
Author(s):  
JASON RALPH
Keyword(s):  
War On Terror ◽  
American Exceptionalism ◽  
The State ◽  
Terrorist Attacks ◽  
State Of Exception ◽  
The Us ◽  
Us Supreme Court ◽  
American Liberalism ◽  
American Hegemony ◽  
Alternative Reading

AbstractThis article examines the US response to the 9/11 terrorist attacks using Carl Schmitt's concept of the exception. It argues that the Bush administration's response is consistent with Schmitt's view, which argued that US policy continued the historical practice of drawing lines that separated ‘civilisation’ from zones of exception where the normal laws governing warfare did not apply. This suggests that the state of exception declared after 9/11 is not contingent on the rise and fall of the terrorist threat, rather it is the latest manifestation of ‘global linear thinking’ and therefore a permanent feature of American hegemony. However, the article does not accept this pessimistic conclusion. US policy since 9/11 fits squarely with a Schmittian explanation only because conservative nationalists have used the war on terror to help reconstruct a sense of American ‘exceptionalism’. An alternative reading of how American liberalism should respond to terrorism can be found in the manner in which the Bush administration's policy was rejected by the US Supreme Court.

Deterrence and Democracy

2018 ◽  
Author(s):  
Richard A. Falkenrath
Keyword(s):  
War On Terror ◽  
Terrorist Attacks ◽  
Global War On Terror ◽  
Counter Terrorism ◽  
Liberal Democratic ◽  
The Us ◽  
Democratic Societies ◽  
Global War ◽  
Taking Action ◽  
The Given

This chapter examines strategy and deterrence and traces the shift from deterrence by ‘punishment’ to deterrence by ‘denial’ in Washington’s conduct of the Global War on Terror. The former rested on an assumption that the consequences of an action would serve as deterrents. The latter may carry messages of possible consequences, but these are delivered by taking action that removes the capabilities available to opponents – in the given context, the Islamist terrorists challenging the US. Both approaches rest on credibility, but are more complex in the realm of counter-terrorism, where the US authorities have no obvious ‘return to sender’ address and threats to punish have questionable credibility. In this context, denial offers a more realistic way of preventing terrorist attacks. Yet, the advanced means available to the US are deeply ethically problematic in liberal democratic societies. However, there would likely be even bigger questions if governments failed to act.

Religious Neutrality and the Government’s Freedom of Speech in the Jurisprudence of the us Supreme Court

2015 ◽  
Vol 10 (1) ◽  
pp. 1-23
Author(s):  
András Koltay
Keyword(s):  
Supreme Court ◽  
Freedom Of Speech ◽  
The State ◽  
Social Conditions ◽  
Religious Symbols ◽  
The Us ◽  
Us Supreme Court ◽  
The Government ◽  
Hard Cases

The issue of the use of religious symbols by the State, the Government, the Municipalities and Courts has emerged as a practical constitutional problem during the last quarter of a century. Contradictory examples of us Supreme Court jurisprudence prove that this issue is among the constitutional ‘hard cases’. The relatively recent appearance of the problem clearly indicates the ways in which American social conditions have changed and the transformation of us society’s attitude to religion.

Religion, Violence, and the State

2018 ◽  
pp. 226-262
Author(s):  
Muhammad Qasim Zaman
Keyword(s):  
Political Violence ◽  
War On Terror ◽  
The State ◽  
The Other ◽  
Islamic Tradition ◽  
State And Society ◽  
The Us ◽  
The World ◽  
The Military ◽  
Subsequent Rise

This chapter focuses on religio-political violence, whose widespread incidence—after Pakistan's realignment in the US-led War on Terror in the aftermath of September 11, 2001, and the subsequent rise of a new, Pakistani Taliban—has threatened the very fabric of state and society. It examines the violence in question from two broad and intertwined perspectives, one relating to the state, and the other to Islam and those speaking in its terms. Part of the concern in this chapter is to contribute to an understanding of how the governing elite and the military have often fostered the conditions in which the resort to religiously inflected violence has been justified. It also suggests that the nonstate actors—ideologues and militants—have had an agency of their own, which is not reducible to the machinations of the state. Their resort to relevant facets of the Islamic tradition also needs to be taken seriously in order to properly understand their view of the world and such appeal as they have had in particular circles.

Judicial Review

2021 ◽  
pp. 31-68
Author(s):  
Jeffrey S. Sutton
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
The State ◽  
State Courts ◽  
Court Case ◽  
State Laws ◽  
State Constitutions ◽  
The Us ◽  
Us Supreme Court ◽  
Us Constitution

The conventional account of judicial review starts with a US Supreme Court case, Marbury v. Madison. But judicial review in truth starts with the state courts and the state constitutions, not the US Supreme Court and the US Constitution. Before the US Constitution existed, the state courts established American judicial review and were the first courts to wrestle with the complexities of exercising it. Judicial review also is foremost a structural story, not an individual-rights story. The delegation of power to the judiciary to decide the meaning of our constitutions laid the groundwork for the growth in power of American courts—especially the federal courts, which have become the go-to answer for so many who-decides questions in American government over the last seventy-five years. This chapter begins a search for insights in resolving the dilemma of judicial review by looking at how the state courts innovated the concept and the ways they initially practiced it. It shows that the early state courts were deferential to the democratic branches of government. They rarely invalidated state laws and did so only when these laws violated a clear constitutional rule. That approach offers lessons for federal and state courts alike.

scholarly journals Introduction: The Return of the Exception

2021 ◽  
Vol 96 ◽  
pp. 7-15
Author(s):  
Rafał Mańko ◽  
Przemysław Tacik ◽  
Gian Giacomo Fusco
Keyword(s):  
20Th Century ◽  
War On Terror ◽  
The State ◽  
State Of Exception ◽  
Political Systems ◽  
The Unconscious ◽  
Freedom Of Movement ◽  
Emergency Powers ◽  
History Of ◽  
The One

The history of the 20th century, and more recently the two-decades long war on terror, have taught us the lesson that the normalisation of the state of exception (intended here as the proliferation of legal instruments regulating emergency powers, and their constant use in varied situations of crisis) is never immune from the risk of leaving long-lasting impacts of legal and political systems. With the “Return of the Exception” we intend to bring to the fore the fact that in the pandemic the state of exception has re-appeared in its “grand” version, the one that pertains to round-the-clock curfews and strong limitations to the freedom of movement and assembly, all adorned by warfare rhetoric of the fight against an invisible enemy – which, given the biological status of viruses, it cannot but be ourselves. But “return” here must be intended also in its psychoanalytic meaning. Much like the repressed that lives in a state of latency in the unconscious before eventually returning to inform consciousness and reshape behaviour, the state of exception is an element that remains nested in law’s text before reappearing in a specific moment with forms and intensity that are not fully predictable. Still, it remains cryptic whether the pandemic inaugurates a new epoch of liberal legality – the post-law – or just augurs its structural crisis.

scholarly journals Extra-Legal Legality: Orientalism and Biopolitics in a State of Exception

2018 ◽  
Vol 6 (3) ◽  
pp. 1
Author(s):  
Igbinedion Obaretin
Keyword(s):  
War On Terror ◽  
The State ◽  
State Of Exception ◽  
Careful Attention

With recourse to the poetry of Guantanamo’s detainees, this article describes the extra-legal legality that typifies the conception and activities of post-9/11 terror-suspect prison camps. It argues that the state of exception, which has become integral in the war on terror, is not a product of necessity, but a reflection of the interplay between biopolitics, biopower, and Orientalism in the post-9/11 era. By considering the ways in which Guantanamo detainees employ poetry to plead their innocence and exhibit their suffering body as political subjects and objects, this article pays careful attention to the aesthetics of Guantanamo poetry and how it reveals the poets’ individual humanity against the fabric of the brutality and illegality packaged ironically as the ‘war on terror’.

scholarly journals Rereading Empire, Rethinking History: Rehabilitation of the Vietcong in Lan Cao’s Monkey Bridge

2021 ◽  
Vol 58 (2) ◽  
pp. 78-94
Author(s):  
Yuan Shu
Keyword(s):  
Cold War ◽  
Military Intervention ◽  
Early Stage ◽  
American Exceptionalism ◽  
The State ◽  
The Other ◽  
American Novel ◽  
Us Military ◽  
Vietnamese American ◽  
The Us

Throughits reading of Lan Cao’s Monkey Bridge, credited as the first Vietnamese American novel, this article seeksto investigate the discourse of reconciliation or refugee settlement in the context of the changing US master narratives from Empire to Cold War 2.0. Itarguesthat Cao’s novel in its effort to register a South Vietnamese perspective reorients modern Vietnamese experiences in relation to the US sense of democracy and freedom and in the process challenges what Donald Pease calls the state fantasy of American exceptionalism in the US military intervention in Vietnam. What Cao’s novel achieves is to blur the boundary between nationalism and communism in its representation of the Vietnamese struggle for independence in its early stage and to humanize and rehabilitate the Vietcong soldier as a possibly assimilable “us” rather than as simply “them” in the realm of the other.

A Test of Conscience Without Indispensable Norms: Niklas Luhmann’s War on Terror

2008 ◽  
Vol 14 (1) ◽  
Author(s):  
Niels Werber
Keyword(s):  
Systems Theory ◽  
Social Theory ◽  
War On Terror ◽  
Large Scale ◽  
The State ◽  
State Of Exception ◽  
Normal Functioning ◽  
Media Communication ◽  
Terror Attacks ◽  
The Usa

AbstractIn Niklas Luhmann’s social theory, the state of exception does not exist. His monographs presuppose the »normal« functioning of communication in world society, and this means that the borders of function systems and the differences between media and codes remain intact. Politics is politics, law is law, etc. But is this still true in the case of large scale terror attacks? In the question he posed to jurists in Heidelberg - whether »indispensable norms« are still valid - Luhmann opens a fissure in the heart of normality. By using the scenario of a »ticking bomb,« Luhmann parades the aporias of function codes before our eyes. The state of exception is normatively undecidable, but requires a decision nevertheless. These are the »hard cases« and the »tragic choices.« The essay plays out various scenarios involving dilemmas of decision in moral, legal, political, and mass-media communication and arrives at a type of »aprincipled maneuvering« that places systems theory astonishingly close to the modes of amoral theories current in the USA since »9/11«.

scholarly journals Same Old (Macro-) Securitization? A Comparison of Political Reactions to Major Terrorist Attacks in the United States and France

2019 ◽  
Vol 25 (84) ◽  
pp. 6-35 ◽  
Author(s):  
Elena Dück ◽  
Robin Lucke
Keyword(s):  
United States ◽  
War On Terror ◽  
The United States ◽  
Terrorist Attacks ◽  
State Of Emergency ◽  
Terror Attacks ◽  
The Us ◽  
Securitization Theory ◽  
Emergency Measure ◽  
Successful Establishment

Abstract After the November 2015 terror attacks in Paris, the French government reacted swiftly by declaring a state of emergency. This state of emergency remained in place for over two years before it was ended in November 2017, only after being replaced by the new anti-terror legislation. The attacks as well as the government’s reactions evoked parallels to 9/11 and its aftermath. This is a puzzling observation when taking into consideration that the Bush administration’s reactions have been criticized harshly and that the US ‘War on Terror’ (WoT) was initially considered a serious failure in France. We can assume that this adaption of the discourse and practices stems from a successful establishment of the WoT macro-securitization. By using Securitization Theory, we outline the development of this macro-securitization by comparing its current manifestation in France against the backdrop of its origins in the US after 9/11. We analysed securitizing moves in the discourses, as well as domestic and international emergency measure policies. We find extensive similarities with view of both; yet there are differing degrees of securitizing terrorism and the institutionalisation of the WoT in the two states. This suggests that the WoT narrative is still dominant internationally to frame the risk of terrorism as an existential threat, thus enabling repressive actions and the obstruction of a meaningful debate about the underlying problems causing terrorism in the first place.

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