The paradox of sovereignty consists in the fact that the sovereign is, at the same time, outside and inside the juridical order.
Giorgio Agamben (1998)
In Agamben’s view, the sovereign has the implicit power to declare himself outside the law, to create an exception which cannot be subsumed by any other. In the United States, this creation of the exception is often couched in the language of “executive privilege” upon which Richard M. Nixon so heavily relied. The President of the United States, in whomever that office resides, has made a living drawing upon executive privilege. From Ford, to Carter, Reagan, Bush, Clinton and Bush, the claims of executive privilege distance the office of the president from the people the president is elected (or in the case of George W. Bush–SELECTED) to serve. Democrat, Republican who cares. The office itself carries with it an overwhelming need or desire to create a state of exception; of being at once outside and inside the law.
In the case of the present Bush White House, domestically that exceptionality has reached a boiling point surrounding the actions of Attorney General Gonzalez as he acted on behalf of the President. The White House demanded that in the Patriot Act, the President, through his AG, shall have the right to hire and fire and or replace federal prosecutors without the advice and consent of the Senate. In a Republican dominated Congress, one that did little, if any, oversight as was their duty as a fully authorized and equal constitutional branch of government along side the executive, the Patriot Act passed and was signed into law. The Patriot Act, by the way, creates many new areas of exceptionality but I’ll save those for later posts. The specific flap that concerns me here is that the AG chose to exercise the exceptional authority granted him as an agent of the President and allegedly fired a number of prosecutors for purely political reasons.
The White House had, but has since lost, the opportunity to step away from the problem by simply admitting to the problem and moving to rectify the situation. Bush, in this sense, is not unlike any of his predecessors. He chose to hunker down, to create a state of exception that places him simultaneously outside and inside the law. In the case of this sovereign, and much like Nixon, the state of exception is designed to protect his friends, foremost among them being AG Gonzalez. So Bush, taking his lead from Nixon (who, in the end, was not so successful in his defense of his friends), is declaring that he and his administration is both outside the law and is standing firmly within that law–after all, the AG acted in compliance with the Patriot Act, didn’t he?
The good news is there are less than two-years to go. Of course the bad news is that Bush’s replacement, whether Democrat or Republican, will necessarily fall into the same trap. It seems to be part of the territory of office.
Agamben, G. (1998). Homo Sacer: Sovereign power and bare life (D. Heller-Roazen, Trans.). Sanford, CA: Sanford University Press.