Emergency Powers in Theory and Practice

The Long Shadow of Carl Schmitt

Michael Head

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781134795369
• Edition: 1
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

Why have the early years of the 21st century seen increasing use of emergency-type powers or claims of supra-legal executive authority, particularly by the Western countries regarded as the world's leading democracies, notably the United States? This book examines the extraordinary range of executive and prerogative powers, emergency legislation, martial law provisos and indemnities in countries with English-derived legal systems, primarily the UK, the US and Australia. The author challenges attempts by legal and academic theorists to relativise, rationalise, legitimise or propose supposedly safe limits for the use of emergency powers, especially since the September 2001 terrorist attacks. This volume also considers why the reputation of Carl Schmitt, the best-known champion of 'exceptional' dictatorial powers during the post-1919 Weimer Republic in Germany, and who later enthusiastically served and sanctified the Nazi dictatorship, is being rehabilitated, and examines why his totalitarian doctrines are thought to be of relevance to modern society. This diverse book will be of importance to politicians, the media, the legal profession, as well as academics and students of law, humanities and politics.

Chapter 1
Emergency Powers on the Rise: Case Studies

There has been a resurgence of emergency measures during the opening years of the twenty-first century, primarily in response to 9/11, but also to the wars in Afghanistan, Iraq, Libya, Syria and Yemen; the global financial crisis; climate change; recurring natural disasters; social and political unrest; and revolutionary upheavals. Not only has the frequency of such measures increased, but also the breadth of the situations in which they have been invoked. The following case studies provide a picture of the rise of emergency powers.

Social and Political Unrest: Emergency Powers Invoked in Greece, Egypt and Canada

During 2012 and 2013, governments in Greece, Egypt and Canada adopted or promulgated emergency provisions in response to strikes and protests by working-class people and students against austerity measures. This resort to authoritarian forms of rule highlighted the capacity of emergency measures, including those supposedly intended to deal with natural disasters or terrorist threats, to be used to suppress popular unrest, particularly under deteriorating economic and social conditions.

Greece

In January 2013, the Greek government placed striking a thens metro rail workers under martial law, forcing them back to work under pain of imprisonment. Hundreds of police stormed the central subway depot to break up a workers’ occupation of the depot, arresting a number of workers. Solidarity strikes by other public transport employees were subsequently declared illegal as well.

The ‘civil mobilisation’ law used to attack the strike was supposedly intended for use only in case of a natural disaster, a massive danger to public health or the outbreak of war. since the end of the Greek colonels’ dictatorship in 1974, it had been invoked only nine times – including three times between 2010 and 2013. In 2010, it was utilised to force striking lorry drivers back to work, and in 2011 it was used against sanitation workers.

The strike by subway workers expressed the intense popular opposition to the sweeping attacks on Greek workers’ living standards. The strike was directed against the fifth round of post-2008 austerity measures, passed by parliament on the orders of the ‘troika’ – the European Union (EU), the International monetary Fund and the European Central Bank. The new austerity package included a further 25 per cent public sector wage cut, on top of wage cuts of up to 60 per cent imposed over the previous three years.

After using emergency powers to break the nine-day strike by subway workers, the New Democracy-led coalition government extended its orders to 2,500 rail and tram workers who had struck to protest against the repression of the subway workers. Such ‘civil mobilisation’ orders conscript those targeted into the military and carry the threat of mass firings, arrests and jail sentences of up to five years.

The turn to emergency powers to crush workers’ resistance was by no means confined to Greece. In 2010, as Europe-wide EU austerity programmes began, several major strikes – by Greek truckers, Spanish air traffic controllers and French oil refinery workers – had been ended by police and army interventions.

Egypt

In January 2013, Egyptian President Mohamed Mursi declared a 30-day state of emergency in three Suez Canal cities as protests begun on the second anniversary of the 2011 Egyptian revolution spread throughout the country. Police and army units fired live ammunition, killing dozens of people and injuring hundreds, while protesters attacked police stations and offices of Mursi’s Muslim Brotherhood MB)in cities across Egypt.

Mursi imposed a state of emergency on Port Saïd, Suez and Ismailia, as well as a 9 p.m. to 6 a.m. curfew. The state of emergency allowed the police and military to detain protesters indefinitely without charge and prosecute them in military courts, to suspend constitutional rights and to censor the press.

Before 2011, Hosni Mubarak had ruled throughout his 30-year presidency under a state of emergency. Mursi’s decision to reimpose it to crush protests underscored how quickly the new regime had returned to similar methods, as it also sought to impose austerity measures required by the International Monetary Fund, in return for a $US4.8 billion loan.

Six months later, this repression helped pave the way for a new military coup in July 2013, installing a junta that later imposed an anti-protest law to effectively ‘legalise’ its violent crackdown on protests and strikes, and threatening participants with extensive jail time and heavy fines. In January 2014, having carried out mass arrests and outlawed the muslim Brotherhood, the junta called a referendum to legitimise its coup and enshrine continued military dictatorship in a constitution (Stern 2013).

Ever since the British occupation of Egypt, the country has been under emergency rule of some kind almost continuously. The British first declared martial law in 1914 (see Chapter 4). Since then, its people have suffered a ‘dizzying array of exceptional measures and courts’, making it an example of ‘endless emergency’ (Reza 2006: 533).

Canada

The recourse to emergency powers was not limited to the most impoverished or marginalised countries. Similar measures were invoked in Canada during 2012 in a drive to halt a students’ strike. Although adopted by legislation, the Canadian provisions exemplified the adoption of far-reaching powers to suppress basic democratic rights, including freedom of expression and assembly, and the right to strike.

In May 2012, the government of the province of Quebec introduced Bill 78, officially titled ‘An Act to enable students to receive instruction from the postsecondary institutions they attend’ (LQ, 2012, c. 12/Laws of Quebec, 2012, chapter 12), which was passed by the National Assembly of Quebec. The law restricted protest or picketing on or near university grounds, and required organisers of a protest consisting of 50 or more people in a public venue anywhere in Quebec to submit their proposed venue and/or route to the relevant police for approval.

Bill 78 suspended winter semester classes at 11 universities and 14 colleges where over 150,000 students were demonstrating or continued to demonstrate, and specified that classes for the autumn and winter semesters at those locations would be completed later in 2012. The minister of Education, Recreation and Sports was granted the ability to deem as not applicable certain other regulations or laws or to ‘[prescribe] any other necessary modification to’ Bill 78 so as to provide for any dispositions deemed necessary to ensure the continuation of classes throughout the duration specified by the act.

The law made it illegal to deny a person access to any place where that person had a right to be, and further restricted ‘any form of gathering’ that might cause such denial from assembling inside any educational building, on the grounds of such a building and within 50 metres of the limits of those grounds. The bill established a date after which all education employees had to return to work, and prohibited them from striking should this, ‘by act or omission’, prevent students from receiving instruction or indirectly impede services (Jones 2012).

The Obama Administration and Emergency Powers

As well as being closely involved in the states of emergency declared by state governors in Ferguson, Missouri, in 2014 and Baltimore, Maryland, in 2015, President Obama personally invoked emergency or extraordinary powers on numerous occasions. Three prominent instances indicated an ongoing trend.

1. The Military-Police Boston Lockdown of 2013

In April 2013, a major American city was placed under the equivalent of martial law. On 15 April, two bombs exploded near the finish line of the Boston Marathon in the city’s centre. Three people were killed and over 170 were injured, some seriously. This was a criminal act with tragic consequences. But it became the pretext for a massive mobilisation of military, police and intelligence forces. Thousands of heavily armed police and National Guard troops occupied the streets, backed up by machine gun-mounted armoured vehicles, Humvees and Black Hawk helicopters in scenes that resembled the US occupation of Baghdad.

President Obama declared an emergency in Massachusetts and ordered the Department of Homeland Security Federal Emergency Management Agency (FEMA) to coordinate all disaster relief efforts and ‘provide appropriate assistance for required emergency measures, authorised under Title V of the Stafford Act, to save lives and to protect property and public health and safety, and to lessen or avert the threat of a catastrophe’ (Obama 2013a).

The people were told to remain indoors while police, with automatic weapons drawn, conducted warrantless house-to-house searches. Some of those who strayed out of doors were surrounded by police and ordered to go home. The mass transit system was shut down; passenger train service along the northeastern corridor was halted; businesses, universities and other public facilities were closed.

Boston – the cradle of the American Revolution, and the country’s premier centre of higher education – was turned into an armed camp, all supposedly to track down a 19-year-old youth allegedly involved in the bomb attacks. Following the capture of the suspect, Dzhokhar Tsarnaev, President Obama issued a late-night statement from the White House in which he stressed the role of his administration in the police-state mobilisation, boasting that he had ‘directed the full resources of the federal government … to increase security as needed’. Ignoring the presumption of innocence, he referred to the captured suspect and his dead brother as ‘these terrorists’ (Obama 2013b).

The Justice Department announced that it would not read the suspect his ‘Miranda right’ to remain silent and obtain legal counsel before speaking to police investigators. It would instead question the seriously injured youth ‘extensively’ not just on matters related directly to public safety, but more broadly on ‘intelligence matters’. This sets a precedent for denying these rights to anyone arrested under anti-terrorism statutes, which has already included political dissidents such as Occupy Wall Street and anti-NATO protesters (Cockburn 2013).

2. President Obama's Drone Assassination Memorandum

A long-suppressed Justice Department memorandum released in 2014 established that President Obama, in the most calculated and criminal manner, authorised the murder of an American citizen, Anwar al-Aulaqi. The memo supported the targeting and drone killing of a man far from any battlefield, who was never charged with a crime (Miller 2014). Its tortured logic underscored the premeditated character of the act.

The drone attack that killed Aulaqi and three others in Yemen on 30 September 2011 – including a second US citizen, Samir Khan – was not carried out in the heat of battle. Neither was the drone attack one month later that obliterated Aulaqi’s teenage son. The assassinations of selected US citizens was part of the White House’s ongoing campaign of drone attacks, which have killed many thousands of people in Afghanistan, Pakistan, Yemen, Somalia and other countries.

Obama’s secret decision to place Aulaqi on his ‘kill list’ was leaked to the press in April of 2010. The memo by the then head of the Justice Department’s Office of Legal Counsel, David Barron, claiming that the Constitution and US laws gave the president the power to kill a US citizen without charge or trial, was sent to Attorney General Eric Holder in July 2010. Aulaqi’s father filed a suit in federal court to remove his son from the kill list, but the case was thrown out in December 2010 (see Chapter 3).

Thus the extra-judicial killing of Aulaqi was organised over a protracted period of time. Aulaqi had not been indicted prior to his killing. In fact, it was not established that he had committed a criminal act. None of the assertions by the government of his role as an ‘operational leader’ of an Al Qaeda group or his alleged involvement in terror plots against the US were substantiated, although Barron’s memo treated them all as indisputable fact.

Even if Aulaqi engaged in propaganda hostile to the policies of the US government, such behaviour is not necessarily criminal, let alone grounds for execution without trial. There has been no congressional investigation into the killing of Aulaqi. There have been no public hearings. There has been no move to impeach Obama or prosecute him.

It is notable that the memorandum deals only cursorily with the Fifth Amendment to the US Constitution, which states: ‘[N]or shall any person … be deprived of life, liberty, or property, without due process of law’. These words were not cited in the memo.

Instead, the memo restated the pseudo-legal argument that in prosecuting the ‘war on terror’ against Al Qaeda and ‘associated forces’, the president and his unelected military/ intelligence aides have virtually unlimited powers, including the power to wage war and carry out killings, kidnappings and indefinite detention anywhere in the world, including within the US itself.

The memo repeatedly cited the congressional Authorization for Use of Military Force (AUMF), passed three days after the 9/11 attacks, as legal support for any and all actions taken in the name of fighting terrorists, including the assassination of US citizens and other repressive measures against Americans. At the time it was passed, the AUMM was presented as a narrowly defined sanction for retaliation against those responsible for the attacks.

Barron accepted uncritically all the assertions of the government about Aulaqi – his role as an ‘operational leader’ of Al Qaeda and involvement in previous terror plots against the US; the ‘imminent’ threat to Americans he supposedly represents; the ‘infeasibility’ of capturing him etc. – in order to declare that the government could kill him without any independent trial of the facts or any opportunity for the victim to defend himself in a court of law. The presumption of innocence was a dead letter.

On this basis, the memo concluded: ‘[W]e do not believe that al-Aulaqi’s US citizenship imposes constitutional limitations that would preclude the contemplated lethal action under the facts represented to us by DoD [Department of Defense], the CIA and the Intelligence Community’.

The document was carefully worded so as not to limit the president’s asserted power to order the murder of Americans to the specific circumstances surrounding Aulaqi. It stated, for example, that the use of lethal force is acceptable ‘at least’ where government officials have determined capture is not feasible. It also defined ‘imminent’ in such a way as to render the term meaningless, declaring that the government did not need to know ‘precisely when such attacks will occur’.

In testimony during 2014 before the Senate Foreign Relations Committee, Defense Department and State Department lawyers argued that the president has unlimited war powers and does not even require congressional authorisation. The lawyers declared that the White House had the power to authorise the invasions of Afghanistan and Iraq, the air war against Libya, indefinite detention, drone assassinations and all the other military actions of the Bush and Obama administrations without reference to the Authorization for Use of Military Force.

‘The US has the authority to target individuals, including Americans, who pose an imminent threat to attack our country’, State Department Deputy Legal Adviser Mary McLeod told the committee (emphasis added).

3. The Venezuela 'Emergency'

In 2015, President Obama issued an executive order declaring a ‘national emergency’ to deal with what he termed ‘the unusual and extraordinary threat to the national security and foreign policy of the United States’ posed by the Venezuelan government.

The order, on its face, turned reality inside out. Far from Venezuela posing a threat to the US, successive US governments have repeatedly intervened in Venezuela’s affairs, sponsoring coups like the failed attempt to overthrow the late President Hugo Chavez via a military coup in 2002 (Avilés 2009). In that context, the latest assertion of a ‘national emergency’ and threat to ‘national security’ suggests that more direct intervention is under contemplation, including by military means.

Obama’s decree asserted that the supposed ‘threat’ was the result of the Venezuelan government’s:

erosion of human rights guarantees, persecution of political opponents, curtailment of press freedoms, use of violence and human rights violations and abuses in response to antigovernment protests, and arbitrary arrest and detention of antigovernment protesters, as well as the exacerbating presence of significant public corruption. (Obama 2015a)

The president stressed that his actions served to ‘implement and expand upon’ the Venezuelan Defense of Human Rights and Civil Society Act, passed by the US Congress and signed into law by Obama in December 2014. No such legislation, however, pertains to any of Washington’s dictatorial allies, such as Egypt and Saudi Arabia.

The substance of the executive order was far less sweeping than the claim of an emergency. It imposed sanctions ...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Preface
• Introduction: Emergency Powers and the Shadow of Carl Schmitt
• 1 Emergency Powers on the Rise: Case Studies
• 2 Critical Lessons of History
• 3 Martial Law, Emergency Doctrines, Official Lawlessness and Judicial Complicity
• 4 Legality and Semi-Legality: 'Models of Accommodation' and 'Business as Usual'
• 5 Models of Extra-Legality and Illegality: Carl Schmitt's Lengthening Shadow
• 6 Capitalism and Dictatorial Powers: A Marxist Critique
• 7 Britain: 'Civil Contingencies' and Prerogative Powers
• 8 The United States: Presidential Powers and Declarations of Emergency
• 9 Australia: Vague Emergency Plans
• 10 International Human Rights Law: No Protection
• 11 Conclusions
• Bibliography
• Index