Sovereign Exception

As President George W. Bush’s time draws to a close, he will be spending some of his time (while he’s not dodging size 10’s, that is) deciding how to exercise his right to extend pardons and commutations. Just this past Friday, Bush awarded federal forgiveness to 17 “minor” criminals, 16 of which were pardons and 1 of which was a commutation of sentence. Although President Bush is, reportedly, one of the stingiest U.S. Presidents in history with regard to these awards, he nevertheless falls sqaurely within our country’s long tradition of Presidents exercising the right granted to them by Article II, Section 2 of the United States Constition, which states that the President:

shall have the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

As many of you already know, part of my dissertation work dealt with forgiveness, amnesty, pardons, clemency and other examples of personal and political exceptionalism. My research was primarily concerned with these phenomena in the context of Truth Commissions, which historically have taken place amidst extraordinary political circumstances. Of course, suspensions of the law should always be in some way “extraordinary” (from the Latin, extra ordinem, “outside the order”), so I find even the more mundane occurances of these phenomenon very fascinating. As my research work has turned more toward issues of human rights, political torture and terror, and their philosophical justifications, I find myself constantly confronted with this issue of legitimizing exceptions to the law.

But back to President Bush for a moment. As noted above, Bush is reported to be one of the “stingiest” Presidents in U.S. history with regard to his awards of pardon, clemency and commutation. If that evaluation were true (or simply true), it would suggest that, under the Bush Administration, we have enjoyed a time in which the “rule of law” was the least interrupted. If cases of pardon, clemency and commutation were the only measure of a sovereign’s determination of “exceptions” to the law, then we could say that President Bush has been the one of the most lawful sovereigns in U.S. history by virtue of his reported “stinginess.” But, of course, we know that is hardly the case.

What is the case, and what is both interesting and frightening about Bush’s time in office, is that his reluctance to exercise his Consitutional right to suspend the law in cases of pardon, clemency and communtation has been been accompanied by an over-zealous enthusiasm for exercising all sorts of non-Constitutional rights to suspend the law, that is, to determine extra-judicial “exceptions” to the law. In Judith Butler’s essay “Indefinite Detention” (from Precarious Life: The Powers of Mourning and Violence), she argues that the practice of “extraordinary renditions” and “indefinite detentions” are evidence of the emergence of a “new” kind of sovereignty, which is primarily justified by and arises as such only in the context of the suspesion of law and the corresponding declaration of a “state of emergency.” (As an aside, I highly recommend the film Fall of Fujimori, about Peruvian President Alberto Fujimori, for its frightening similarity to the Bush story as well as its treatment of just the sort of “new sovereignty” that Butler analyzes.) What Buter identifies as the new sovereignty is found exactly in the sovereign declaration of “exceptions,” the power of establishing a domain in which the rules no longer apply. In the suspension of their application, the power of the sovereign is both constructed and reinforced at the same time that it is exercised.

In Giorgio Agamben’s Homo Sacer: Sovereign Power and Bare Life, Agamben addresses just this strange relationship between the law and exceptions to the law in his analysis of sovereignty. There, Agamben writes:

“… what is excluded in the exception maintains itself in relation to the rule in the form of the rule’s suspension. The rule applies to the exception in no longer applying to it, in withdrawing from it.” (Homo Sacer, 18)

The point that both Agamben and Butler are making, of course, is that sovereign exceptions do not “negate” the law/rule so much as they establish the meaning and power of the law/rule as such… as something that can be excepted. The “new” sovereign power, such that it is, is the power to establish domains or determine actions/persons/spaces that can be “taken out” of the domain in which the law/rule applies. (“Excepted,” from the Latin excipere, ex- “out” + capere “to take”) So, what is particularly curious about Bush’s “stinginess” with pardons– which are, curiously, lawful exceptions to the law– is that he has been anything but stingy in his determination of other exceptions, particularly ones not established by the law. He has, in effect, reversed the relationship between the rule and its exception in his exercise of non-Consitutional exceptions and, what’s more, he has done so so often as to make his kind of exceptionalism the new order, the new “rule.”

In sum, don’t be so impressed by Bush’s stinginess with pardons. Those are the least objectionable exceptions.