Emergency Powers in Theory and Practice: The Long Shadow of Carl Schmitt

283 Pages·2016·1.986 MB·English

by  Michael Head

EmErgEncy PowErs in ThEory and PracTicE
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Emergency Powers in Theory
and Practice
The Long Shadow of Carl Schmitt
michaEl hEad
Western Sydney University, Australia
© michael head 2016
all rights reserved. no part of this publication may be reproduced, stored in a retrieval system or transmitted
in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior
permission of the publisher.
Michael Head has asserted his right under the Copyright, Designs and Patents Act, 1988, to be identified as
the author of this work.
Published by
ashgate Publishing limited ashgate Publishing company
wey court East 110 cherry street
Union road suite 3-1
Farnham Burlington, VT 05401-3818
surrey, gU9 7PT Usa
England
www.ashgate.com
British Library Cataloguing in Publication Data
a catalogue record for this book is available from the British library.
Library of Congress Cataloging-in-Publication Data
head, michael, 1952– author.
Emergency powers in theory and practice : the long shadow of carl schmitt / by michael head.
pages cm
includes bibliographical references and index.
isBn 978-1-4094-4610-1 (hardback) – isBn 978-1-4094-4611-8 (ebook) – isBn 978-1-4724-0619-4 (epub)
1. War and emergency powers. 2. Schmitt, Carl, 1888–1985—Influence. I. Title.
K3344.h43 2015
342ʹ.062–dc23
2015025287
isBn: 9781409446101 (hbk)
isBn: 9781409446118 (ebk – PdF)
isBn: 9781472406194 (ebk – ePUB)
Printed in the United Kingdom by henry ling limited,
at the dorset Press, dorchester, dT1 1hd
Contents
Preface vii
Introduction: Emergency Powers and the Shadow of Carl Schmitt 1
1 Emergency Powers on the Rise: Case Studies 23
2 Critical Lessons of History 37
3 Martial Law, Emergency Doctrines, Official Lawlessness and
Judicial Complicity 71
4 Legality and Semi-Legality: ‘Models of Accommodation’ and
‘Business as Usual’ 89
5 Models of Extra-Legality and Illegality: Carl Schmitt’s Lengthening Shadow 113
6 Capitalism and Dictatorial Powers: A Marxist Critique 143
7 Britain: ‘Civil Contingencies’ and Prerogative Powers 163
8 The United States: Presidential Powers and Declarations of Emergency 175
9 Australia: Vague Emergency Plans 201
10 International Human Rights Law: No Protection 227
11 Conclusions 245
Bibliography 253
Index 269
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Preface
This book probes the following question: Why have the early years of the twenty-first
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?
It also examines in some detail the extraordinary range of executive and prerogative
powers, emergency legislation, martial law provisos, indemnities and exceptional modifications
to criminal law processes in several comparable countries with English-derived legal systems,
primarily the United Kingdom, the United States and Australia.
This volume challenges efforts by various legal and academic theorists to relativise,
rationalise, legitimise or propose supposedly safe limits for the use of, emergency
powers, especially following the September 2001 terrorist attacks and subsequent
terrorist-linked incidents.
The book’s focus shifted somewhat in writing. From the original title, Emergency Powers:
Theory and Reality, the title became Emergency Powers in Theory and Practice: The Long Shadow of
Carl Schmitt. While the volume still provides a survey of emergency law and the expanding
resort to exceptional powers, and a critique of the politico-legal theories that have sought
to address the issue, it became increasingly clear that a central question had to be tackled:
the promotion and even rehabilitation of Carl Schmitt.
Why is Schmitt, the best-known champion of ‘exceptional’ dictatorial powers during
the post-1919 Weimar Republic in Germany – and who later enthusiastically served and
sanctified the Nazi dictatorship – being elevated to centre stage? Why are arguments being
made that his totalitarian doctrines have much to offer modern society? Why are his views
reverberating within the political and judicial establishment?
Another factor that arose during the writing of the book was a new series of
declarations of states of emergency, notably within the United States. Eruptions of social
unrest, featuring protests against police killings, triggered emergency decrees in Ferguson,
Missouri, in 2014, and Baltimore, Maryland, in 2015. President Barack Obama, also
in 2015, declared 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. Clearly, the analysis developed in this volume had to take
account of these remarkable and portentous developments.
Hopefully, this book will form part of a four-part contribution. It augments my
Crimes Against the State (2011), which reviewed in detail the range of criminal offences
that governments use to protect themselves against perceived political or existential
threats – subversion, rebellion, treason, mutiny, espionage, sedition, terrorism, riot and
unlawful assembly.
EmErgEncy PowErs in ThEory and PracTicE
The present volume also helps complete the picture, presented in my previous writings,
such as Calling Out the Troops (2009), of military call-out measures, some of which rely on
emergency powers.
One major pressing issue remains to be addressed – the powers to declare war, both in
domestic and international law. With an escalating series of wars, predominantly led by the
United States, especially since 2001, and war preparations being made by the US and its
allies against China and Russia, these powers require critical attention.
My thanks, as always, go to my darling wife Mary and our four remaining children –
Clayton, Tom, Daniel and Kathleen – for their understanding and forbearance during
the researching and writing of the book. I am grateful to my wonderful colleagues and
students at the University of Western Sydney for their encouragement and intellectual
insights, and to Alison Kirk, the wise and helpful law and legal studies publisher at Ashgate
Publishing, for her support and assistance.
This volume is dedicated to the memory of Lincoln Wimbus, my stepson, who
regrettably passed away on 19 July 2012. He was too good for this world.
Michael Head
Western Sydney University
viii
Introduction
Emergency Powers and the Shadow of
Carl Schmitt
This book challenges prevailing views in legal, political and academic circles about both
the practice and theory of emergency powers. It does so in the context of rising use of
emergency and other executive powers, particularly, but not only, under the banner of the
endless ‘war on terrorism’.
This volume also examines the lengthening shadow of Carl Schmitt, the best-known
legal scholar of the Weimar Republic in Germany, who later sanctified the Nazi dictatorship.
It poses the question: Why are Schmitt’s views being echoed in the corridors of power,
including within the judiciary? Why are efforts underway to rehabilitate Schmitt and argue
that his totalitarian doctrines have much to offer contemporary society? After all, Schmitt’s
service to Hitler flowed logically from his endeavours to bolster the Weimar order against
the developing threat of working-class discontent amid the worsening impact of the Great
Depression of the 1930s.
The early years of the twenty-first century have seen increasing resort to emergency-
type powers or claims of supra-legal executive authority, including by the Western countries
regarded as the world’s leading democracies, notably the United States. These powers
have been invoked for a range of purposes, including: to conduct military interventions;
combat alleged terrorist activities; control social and industrial unrest; and counteract
financial breakdowns and bankruptcies. These trends point to an underlying shift to more
totalitarian methods of rule, which this book argues are bound up with preparations for
war, further economic crises, deepening austerity programmes and political disaffection.
One prominent aspect of this creeping authoritarianism is that, both globally and
domestically, the indefinite supposed ‘war on terrorism’ declared by the US government in
2001 has set far-reaching precedents which have already been used to justify practices such
as overturning legal and constitutional proscriptions against torture, detention without
trial and extrajudicial executions.
The abrogation of legal norms traditionally associated with the ‘rule of law’ has not
stopped there. On the broader pretext of protecting ‘national security’, core principles such
as freedom from warrantless searches and eavesdropping by government have also been
cast aside. Largely also on the pretence of protecting ordinary people against terrorism,
mass electronic surveillance – directed against millions of ordinary people – has been
instituted, notably by the US National Security Agency (NSA) and its global ‘Five Eyes’
partners in the UK, Canada, Australia and New Zealand.
‘Counter-terrorism’ and ‘national security’ are not the only justifications. Eruptions
of social unrest, including protests against police killings and violence, have triggered
declarations of states of emergency in the name of protecting public safety and welfare,