Tuesday, April 22, 2025

Exception To The State Of Exception

 Carnegie Endowment:

In March 2022, President Nayib Bukele introduced a national state of exception in El Salvador that suspended certain civil liberties, including due process. This move was supposed to bring security to a country that has long suffered extreme homicide rates caused by street gangs engaged in protracted conflicts and oppressive extortion rackets. But over the past year, Bukele’s government has arrested over 65,000 people—one in six of whom the police forces themselves estimate are innocent. International organizations have reported on wide-scale human rights abuses in the prisons, including overcrowding and deaths.

At the same time, Bukele, the self-proclaimed “world’s coolest dictator,” has turned his eye to civil society organizations and the media, framing them as defenders of gangs. Last month, the country’s leading independent news outlet relocated its operations to Costa Rica, stating that it is currently too dangerous to have its headquarters in El Salvador.
I was browsing a small bookstore in Brenham when I found a slim volume, State of Exception. Shortly after I bought it I heard the term in reference to Bukele and El Salvador. 

The state of exception is a legal concept in the laws on the continent: in France, in Italy, in Germany, even in Switzerland. It’s present throughout the laws of most of Europe, but not in Anglo-Saxon jurisprudence. Giorgio Agamben doesn’t delve more than a few centuries back into the laws of continental Europe, but the idea of a “state of exception” sounds very much like the Roman diktator, appointed by the Senate in a time of exigence circumstances and great need, given all power over law and military in order to save the republic. In order to save re the Republic, they had to destroy it, in other words. Except the diktator was required to dissolve the office and return authority to the Senate when the crisis had passed. Julius Caesar, like Bukele, made the crisis permanent, and the republic into a dictatorship.

This is the problem with the state of exception Agamben analyzes. But he notes no such concept exists in British or American law. The state of exception is either constitutional, or statutory. The concept in Anglo-Saxon jurisprudence, says Agamben, is “martial law.” Which really isn’t quite the same thing.

It’s the idea we’re familiar with, but we think of it in the negative. Martial law is not salvation from crisis, it’s the end of the republic. It’s military dictatorship where the commanders take power from civilians in order to “do the job,” and then don’t give power back. It’s not a “state of exception” that saves the nation, it’s the end of the nation and the reversal of what the republic was for. The village is not saved by being destroyed. It is just destroyed.

We don’t have the concept of a “state of exception,” the suspension of laws in order to save the laws, because we see it as only ending the laws. I’m not saying our Anglo-Saxon way is better, that the “state of exception” always and must fail (the merits and problems of either method for what should happen after you break the glass in case of emergency should be freely discussed). I’m saying it’s the problem of the unwinnable situation moment; and how do we try to win?

But when are those moments?

Trump is trying hard, again, to create one, because, using his condemnation of the Central Park 5 as an example, he thinks government exists to protect citizens from “predators.” And all “bad guys” are predators.

So now he thinks, by virtue of winning an election, he is entitled to lock up and transport to foreign prisons, anyone he pleases (or who displeases him).  This means not just his usual gang of “murderers and rapists and scum,” but any one who expresses an opinion he doesn’t like. He’s started with foreign students, because they are more vulnerable. There’s really no reason to expect him to stop there.

It’s really not a question of “Can he do it?” It’s a question of “Will the institutions of government, the so-called other two branches of government, let him do it?” This is the crucial difference between a “state of exception” and martial law.

I don’t know the history or the laws of El Salvador, but I can assume Bukele established a “state of exception” legally, and used it to destroy gang rule in the country. He was given the authority, so he could save the nation. I heard today stories of people living a life of terror in El Salvador because crossing the street could mean entering a new gang territory, and no one had a passport. This restriction wasn’t reserved only for gang members.  Gangs were the local government.

Bukele ended that, by ending law. Trump clearly wants that kind of power; he wants a reason to assert it. Not, I think, a pretext. A reason. And here is the difference between a “state of exception,” and martial law. Martial law is accepted when all law has failed; when there is, in other words, a state of lawlessness. Martial law then becomes law, for the protection of the citizenry. Martial law arises to escape, in Hobbes phrase, the state of nature, red in tooth and claw. Like a state of exception, martial law is presumed to end when civil law can be reasserted. 

The state of exception is declared, by the government, for a fixed reason and a fixed purpose. It ends, it should, when that ready no longer exists because the purpose has been fulfilled. Martial law is where someone with sufficient power supplants the government until governance can be restored. The state of exception occurs when the government turns over extraordinary powers to a ruler or council in order to save the nation. It is a creature of law. Martial law is a rogue creature of the absence of law.

Trump is trying to argue for the absence of law in order to be the law.

This is, perhaps, the saving grace of martial law. Trump might get Congress to agree to a state of exception (they almost have already. Some are showing mild concern over protests directed at them; but still only mildly so). Government itself would have to acquiesce completely to Trump’s essentially martial law demands, and few Congressional Republicans agree with even the hypothetical that Trump can send citizens to CECOT. I don’t think they’ll be any more supportive of his new demands that, in order to save law and order, we must destroy law and order.

Trump wants his exceptions to provide his rule. But that takes more extraordinary circumstances than he’s able to conjure in tweets and short statements before the cameras. It has to be enough, for now, that the people simply won’t follow where he wants to lead.
Millions turn out to protest Trump, twice, in his first 100 days. This is the first picture of counter protesters I’ve seen. The courts may not demand the President be an office of the law; but the people are not yielding to the lawlessness. Trump is hardly an immovable object, but the people are certainly an unstoppable force. As Mr Dooley said, even the Supreme Court follows the election returns.


Meanwhile, the corruption really is fucking blatant, isn’t it?
Sooooo...

Treasury Secretary Scott Bessent held a closed-door investor summit meeting with private investors earlier today, hosted by JP Morgan, and said that there would be a significant "de-escalation" with China in the tariff trade war.

Of course, Donald Trump waits until after the stock markets close for the average person to confirm that the 145% tariffs on China won't be nearly that high.

This is what market manipulation and insider trading looks like.

So much for "Main Street" first.

This entire administration is bought and paid for by Wall Street.
Turns out the "state of exception” is not just a suspension of law to save the nation; sometimes it’s just a suspension of law, period. Which isn’t really all that exceptional, is it?
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