A Patriot Act? Great Idea, Ms. Pécresse. The Romans Called that a Dictatorship
Published in Rue89
(France) on 14 January 2015
by Antonin Benoit (link to original)
The first round of politician security proposals has started with its fair share of idiotic, middling or average ideas, but the most inspiring belongs without a doubt to the old muse of universities, Valérie Pécresse, who stated plainly to Europe 1: “There will naturally have to be a French Patriot Act.”
Why inspiring? Because with that, Valérie Pécresse is starting to draw a historical parallel with the American legal response to the Sept. 11 attacks — which, briefly put, allows for a suspension of the normal conditions of investigation and detention in the case of suspected terrorism.
In other words, she is suggesting that an appropriate response to terrorism is to create a sphere of exception in the law, which suspends the normal democratic and legal process to fight the danger in question.
Valérie Pécresse is only going as far back as the Patriot Act — which is relatively recent — but we could suggest a series of other parallels to hers, ones that would be even more chic, but that could also give us something to think about when it comes to the state of exception.
Classical References: Athens and Rome
With Athenian democracy, you can succeed in finding some incidents of the appearance of “strong men,” to whom great powers are conferred by the people in the event of danger to the city-state: notably Solon, to whom the Athenians give total carte blanche to avoid a civil war in 594-593 BCE — and who, ironically, delivers a legal code that organizes the good functioning of democracy; or Alcibiades who is elected “supreme commander” with complete authority in 407 BCE — at the time when Athens was in the middle of losing the Peloponnesian War — which doesn't last very long since he is deposed by 406 BCE.
But as we can see, overall, using a classical reference to think about modern democracy doesn’t really make a good parallel in terms of suspension of public life when faced with danger — that’s maybe why, incidentally, it’s a classical reference.
On the other hand, it’s clearly different in Ancient Rome, which has a tradition totally dedicated to that idea: the dictatorship. The dictatorship is created at the time of the fall of the monarchy and the creation of the Roman republic — the beginning of the 6th century BCE — and gives a citizen complete authority — the imperium, which suspends all the other judicial authorities and allows the death sentence without a trial.
It applies in situations of military emergency — the dictatorship appears in 501 BCE, with the menace of the Sabines — or even a civil emergency, when it is absolutely necessary to proceed to an election or to a religious rite, for example hammering a nail in 361 BCE:
"Wherefore mention having been found in the annals, that formerly in the secessions of the commons the nail had been driven by the dictator, and that the minds of the people, distracted by discord, had been restored to a sane state, it was determined that a dictator should be nominated for the purpose of driving the nail. Cneius Quinctilius being nominated, appointed Lucius Valerius master of the horse, who, as soon as the nail was driven, abdicated their offices."
-Titus Livius, HIstory of Rome, VIII, 18
Because the beauty of the function is that it is limited, both in its authority — the dictator must find himself a second-in-command, a master of the cavalry, so as never to be the only magistrate — and in its timeframe: six months at the most ... unless it gets out of control, as it does in 46 BCE; for example, when Caesar, the sole master of Rome, makes himself dictator for a year, then 10, then for life.
This ends pretty badly for him and for the Roman Republic, evidence that the danger in these exceptional measures arrives pretty quickly when they are drawn out.
The Legitimate Reference: The French Revolution
It’s THE reference, the foundational element in our modern democracy, which can be deployed because if the revolutionaries themselves did it ... except that the suspension of parliamentary powers is more closely associated with the less well-received elements of the period, to wit the Terror and Napoleon's coup.
Thus, the great incident of the type happens in 1793, in the context of great domestic and foreign danger for the revolutionary state — huge insurrections against the raising of troops, crisis of the armies’ provisions, formation of a European coalition against France, etc. — with the creation, on Jan. 1, of the Committee of General Defense, which would rapidly become the infamous Committee of Public Safety dominated first by Danton, and then by Robespierre.
We especially know this committee for having suspended the constitution of 1793 and directed the revolutionary government, but also and above all, for having been the iron fist behind the Great Terror — from June 1794 up until the fall of Robespierre in July — around the antiterrorist law (hey, what do you know!) of the Law of 22 Prairial, which justified itself by the failed attacks on Collot d’Herbois and Robespierre.
When it comes to the law, we owe it the suspension of interrogation, defense, and witness, and that then logically leads to around 1,300 death sentences in a month and a half in Paris — 30 per day.
The conduct becoming a part of modernity that way was, by the way, called to reproduce itself, as Giorgio Agamben highlights, in starting with Napoleon’s coup on the 18th Brumaire, then throughout the 19th century — and Napoleon III notably proclaimed a state of emergency several times in order to maneuver without obstruction — then in the 20th century, notably at the time of the two world wars — for example, with the vote of complete authority to Marshal Pétain in July 1940, which allowed him to put the Vichy regime in place.
But maybe it would be better to avoid those examples.
The Slightly Too Conspicuous Cousin: The Nazi Regime
It would be better to avoid resorting to this one, too, but the problem is that you kind of can't get around it when you talk about a regime of exception justified by a terrorist danger — it's recent and a pretty good model.
Indeed, in the conquest of power, Hitler didn't particularly intend to trouble himself with the natural accessories of a democracy — elections, a parliament, the separation of powers, etc. — and one of his essential objectives on his arrival to power in January 1933 was therefore to succeed in attributing to himself complete authority.
Luckily for him, the constitution of the Republic of Weimar left him a lot of leeway to maneuver from that point of view, especially Article 48, which allowed simply the president of the Republic to "suspend, for a while, in whole or in part ... fundamental rights" if "public security and order are seriously disturbed or endangered." It had been pretty widely used in the first conservative governments of Weimar — which was very useful in the world of the 1920s for imprisoning Communist militants by the thousands and having them judged by special tribunals.
The existing loophole was therefore exploited through the Reichstag conflagration from the night of Feb. 27-28, 1933 — orchestrated by the Nazis to lay the responsibility on the Communists — which allowed Hitler to assert the terrorist risk and have his complete authority voted on by Feb. 28, and thus comfortably prepare the elections of March 1933, the ones that produced a parliament that definitively confirmed these full powers on March 23.
The Big Brother: The Patriot Act
We could leave this one to Valérie Pécresse, who seems pretty stuck on it.
Let's simply highlight that while at its heart relatively measured — authorizing an arbitrary detention for only seven days — it is above all defined by the number of additions and extensions given to it, and has, since November 2001, been allowing the arbitrary detention of terrorism suspects without a limit on the length of time and the possibility of judging them by special tribunals, which puts them in an unheard-of judicial noncategory — as the American Navy lawyer, Charles Swift, remarked, "Guantanamo Bay is the legal equivalent of outer space — a place with no law."
Let's also remember that it's the text that notably provides a legal precedent for most of the National Security Agency wiretaps in the world, and it is therefore one of the most denounced laws in the world, by Amnesty International for example, or by the very important American Civil Liberties Union — highlighting notably that "there is little evidence to demonstrate that the Patriot Act has made America more secure from terrorists."
Well, anyway, if she wants to change her example, she has a lot to choose from.
Why inspiring? Because with that, Valérie Pécresse is starting to draw a historical parallel with the American legal response to the Sept. 11 attacks — which, briefly put, allows for a suspension of the normal conditions of investigation and detention in the case of suspected terrorism.
In other words, she is suggesting that an appropriate response to terrorism is to create a sphere of exception in the law, which suspends the normal democratic and legal process to fight the danger in question.
Valérie Pécresse is only going as far back as the Patriot Act — which is relatively recent — but we could suggest a series of other parallels to hers, ones that would be even more chic, but that could also give us something to think about when it comes to the state of exception.
Classical References: Athens and Rome
With Athenian democracy, you can succeed in finding some incidents of the appearance of “strong men,” to whom great powers are conferred by the people in the event of danger to the city-state: notably Solon, to whom the Athenians give total carte blanche to avoid a civil war in 594-593 BCE — and who, ironically, delivers a legal code that organizes the good functioning of democracy; or Alcibiades who is elected “supreme commander” with complete authority in 407 BCE — at the time when Athens was in the middle of losing the Peloponnesian War — which doesn't last very long since he is deposed by 406 BCE.
But as we can see, overall, using a classical reference to think about modern democracy doesn’t really make a good parallel in terms of suspension of public life when faced with danger — that’s maybe why, incidentally, it’s a classical reference.
On the other hand, it’s clearly different in Ancient Rome, which has a tradition totally dedicated to that idea: the dictatorship. The dictatorship is created at the time of the fall of the monarchy and the creation of the Roman republic — the beginning of the 6th century BCE — and gives a citizen complete authority — the imperium, which suspends all the other judicial authorities and allows the death sentence without a trial.
It applies in situations of military emergency — the dictatorship appears in 501 BCE, with the menace of the Sabines — or even a civil emergency, when it is absolutely necessary to proceed to an election or to a religious rite, for example hammering a nail in 361 BCE:
"Wherefore mention having been found in the annals, that formerly in the secessions of the commons the nail had been driven by the dictator, and that the minds of the people, distracted by discord, had been restored to a sane state, it was determined that a dictator should be nominated for the purpose of driving the nail. Cneius Quinctilius being nominated, appointed Lucius Valerius master of the horse, who, as soon as the nail was driven, abdicated their offices."
-Titus Livius, HIstory of Rome, VIII, 18
Because the beauty of the function is that it is limited, both in its authority — the dictator must find himself a second-in-command, a master of the cavalry, so as never to be the only magistrate — and in its timeframe: six months at the most ... unless it gets out of control, as it does in 46 BCE; for example, when Caesar, the sole master of Rome, makes himself dictator for a year, then 10, then for life.
This ends pretty badly for him and for the Roman Republic, evidence that the danger in these exceptional measures arrives pretty quickly when they are drawn out.
The Legitimate Reference: The French Revolution
It’s THE reference, the foundational element in our modern democracy, which can be deployed because if the revolutionaries themselves did it ... except that the suspension of parliamentary powers is more closely associated with the less well-received elements of the period, to wit the Terror and Napoleon's coup.
Thus, the great incident of the type happens in 1793, in the context of great domestic and foreign danger for the revolutionary state — huge insurrections against the raising of troops, crisis of the armies’ provisions, formation of a European coalition against France, etc. — with the creation, on Jan. 1, of the Committee of General Defense, which would rapidly become the infamous Committee of Public Safety dominated first by Danton, and then by Robespierre.
We especially know this committee for having suspended the constitution of 1793 and directed the revolutionary government, but also and above all, for having been the iron fist behind the Great Terror — from June 1794 up until the fall of Robespierre in July — around the antiterrorist law (hey, what do you know!) of the Law of 22 Prairial, which justified itself by the failed attacks on Collot d’Herbois and Robespierre.
When it comes to the law, we owe it the suspension of interrogation, defense, and witness, and that then logically leads to around 1,300 death sentences in a month and a half in Paris — 30 per day.
The conduct becoming a part of modernity that way was, by the way, called to reproduce itself, as Giorgio Agamben highlights, in starting with Napoleon’s coup on the 18th Brumaire, then throughout the 19th century — and Napoleon III notably proclaimed a state of emergency several times in order to maneuver without obstruction — then in the 20th century, notably at the time of the two world wars — for example, with the vote of complete authority to Marshal Pétain in July 1940, which allowed him to put the Vichy regime in place.
But maybe it would be better to avoid those examples.
The Slightly Too Conspicuous Cousin: The Nazi Regime
It would be better to avoid resorting to this one, too, but the problem is that you kind of can't get around it when you talk about a regime of exception justified by a terrorist danger — it's recent and a pretty good model.
Indeed, in the conquest of power, Hitler didn't particularly intend to trouble himself with the natural accessories of a democracy — elections, a parliament, the separation of powers, etc. — and one of his essential objectives on his arrival to power in January 1933 was therefore to succeed in attributing to himself complete authority.
Luckily for him, the constitution of the Republic of Weimar left him a lot of leeway to maneuver from that point of view, especially Article 48, which allowed simply the president of the Republic to "suspend, for a while, in whole or in part ... fundamental rights" if "public security and order are seriously disturbed or endangered." It had been pretty widely used in the first conservative governments of Weimar — which was very useful in the world of the 1920s for imprisoning Communist militants by the thousands and having them judged by special tribunals.
The existing loophole was therefore exploited through the Reichstag conflagration from the night of Feb. 27-28, 1933 — orchestrated by the Nazis to lay the responsibility on the Communists — which allowed Hitler to assert the terrorist risk and have his complete authority voted on by Feb. 28, and thus comfortably prepare the elections of March 1933, the ones that produced a parliament that definitively confirmed these full powers on March 23.
The Big Brother: The Patriot Act
We could leave this one to Valérie Pécresse, who seems pretty stuck on it.
Let's simply highlight that while at its heart relatively measured — authorizing an arbitrary detention for only seven days — it is above all defined by the number of additions and extensions given to it, and has, since November 2001, been allowing the arbitrary detention of terrorism suspects without a limit on the length of time and the possibility of judging them by special tribunals, which puts them in an unheard-of judicial noncategory — as the American Navy lawyer, Charles Swift, remarked, "Guantanamo Bay is the legal equivalent of outer space — a place with no law."
Let's also remember that it's the text that notably provides a legal precedent for most of the National Security Agency wiretaps in the world, and it is therefore one of the most denounced laws in the world, by Amnesty International for example, or by the very important American Civil Liberties Union — highlighting notably that "there is little evidence to demonstrate that the Patriot Act has made America more secure from terrorists."
Well, anyway, if she wants to change her example, she has a lot to choose from.
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