Today political discourse especially after 9/11, more recent terror-attacks in Europe and the Arab Uprising focuses on security issues and anti-terror legislation. Whereas the cases of Guantánamo (Gregory, 2006) and Palestine (Furani, 2014) are only the most discussed examples Giorgio Agamben argues with his theory that nowadays we live in a sphere of more frequently appearing exceptions that build up a zone of indistinction between the norm and the exception – a legal lawlessness (Agamben, 2005). However, his theory exceeds the claim that the ‘state of exception’ is today becoming the norm – it develops a theory of a legal space for human activity not subject to law.
In this essay I try to explore if Agamben is right to say that politics is entering a ‘zone of indistinction’ in which exceptional legislation is increasingly common and law is increasingly ‘disapplied’. Therefore, I will outline his theory of the ‘state of exception’ first before I examine and evaluate aspects of the security legislation of Germany and Egypt. In the end I will conclude my findings and compare the two cases critically.
Agambens ‘state of exception’
In ‘Homo Sacer: Sovereign Power and Bare Life’, the first book of Giorgio Agamben’s multi- volume Homo Sacer project he points out that we must rethink the concept of sovereignty (Agamben, 1998:109). His theory outlined in the book is based on Carl Schmitt’s ideas on the ‘state of exception’ and the production of a bare human life which is subjected to the sovereign ban (Schmitt, 2004). Responding to Foucault’s theory of biopolitics (Foucault 1990), in which human life becomes the object of the disciplinary power of the state, Agamben points out that there is an invisible connection between sovereign power and biopolitics, embodied in the exceptional basis of State sovereignty.
Sovereign Power and Law
Agamben argues that sovereign power creates itself through the construction of a political order based on the exclusion of bare life. This is achieved by constructing the exception in which the law is suspended from the human being who are in consequence transformed into a status of bare life without legal status (Agamben,1998: 18). In addition, Agamben shows that exceptions made by sovereigns produce the juridical order itself. ‘[T]he rule, suspending itself, gives rise to the exception and, maintaining itself in relation to the exception, first
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constitutes itself as a rule’ (Agamben, 1998: 18). Referring to Agamben this (inclusive) exclusion and the creation of bare life constitutes the Western State itself. Another crucial point he makes is that bare life is not ‘simply set outside the law and made indifferent to it’ (Agamben, 1998: 28). Through its own withdraw, the ‘law encompasses living beings’ (Agamben, 2005: 3) who are in the same time bound and abandoned by it. What follows is that the bare life is still included in the juridical order ‘through its exclusion’(Agamben, 1998: 18). To distinguish existence and the belonging to a community, Agamben uses two terms invented by the Greeks. Zoē as the ‘natural reproductive life’ and bios, ‘a qualified form of life’, political life (Agamben 1998: 1).
The state of exception today
Agamben argues that nowadays the state of exception has become a stable stage: ‘the declaration of the state of exception has gradually been replaced by an unprecedented generalization of the paradigm of security as the normal technique of government’ (Agamben, 2005: 14). For Agamben the concentration camp is the paradigmatic space of this new political condition and power. It is ‘the space that is opened up when the state of exception begins to become the rule’ (Agamben, 1998: 168-9).
In the following analysis of security legislation in Germany and Egypt I will try to apply Agamben’s theory and explore if the exception becomes the norm and builds up a zone of indistinction.
Security legislation in Germany:
In this part of the essay I will examine the development of security legislation in Germany after 9/11 until today before I analyse specific aspects in relation to Agamben’s theory.
The first reaction to the terror attack in the United States was the development of ‚Sicherheitspaket I‘ which entails the prohibition of being member or supporter of foreign terrorist groups (APUZ 27/11). Justification was that Germany should not be used as hideout for terrorists. Since then all groups with religious goals can be prohibited when they fulfil certain criteria (Bundestagspapier WD3-3000-053/15). In 2002 the ‚Sicherheitspaket II‘ followed that expanded the power and competences of secret service.1 The ‚Office for the Protection of the Constitution‘ was allowed to gather information about bank accounts, communication and personal data.
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In the same year the ‚Rasterfahndung‘ (dragnet action) was broadened. Only in 2006 it was restricted as being highly problematic because it’s lack of ‚presumption of innocence‘. This led to the agreement that it should only be used in concrete situations of emergency.2 How these are defined stayed uncertain. A centre to fight Islamist terrorism has been founded that coordinates the work of security officials in the country. Critiques have been made focussing on the indistinction of police and secret service responsibilities. Since 2007 the shared centre for internet affairs is enclosed. In the same year a new migration legislation has been approved which facilitates the expulsion of suspected criminals.
In 2005 an air-security law has been approved which entails the possibility to shoot-down hijacked planes. Nevertheless there has been a huge discussion about it because civilians could be on the plane (Knelangen, 2006). Moreover it would allow the military to interfere in inner security issues which is forbidden by legislation. Nevertheless in 2012 the federal constitutional court decided that it is legal in situations of exception.3 One year later an anti- terror data network has been approved which can be used by both the police and the secret service (van der Sloot et al. 2016). Moreover a law for data-retention was invented that allows to keep the date of telephone, mail and internet user for six months. The protest against it was huge but nevertheless since 2017 Germany has a law for data-retention.4 2009 the training in terror camps were made punishable and in 2011 a national cyber-defense centre has been founded to defend against electronic attacks. 2012 a centre against extremism and terrorism has been opened to resist right wing extremism, left extremism, foreign extremism and espionage. Since 2015 the state is allowed to take away passports of terrorists to inhibit their mobility. Moreover the state police can apply undercover investigations.
After I have examined the development of security and anti-terror legislation in Germany I would like to focus on some specific aspects and their usage in the past. The first law to prohibit religious groups has been used arbitrarily in practice. Whereas many Muslim groups have been forbidden, radical Christian groups could move on without restriction although they fulfilled the criteria as well.5 Here we can see that exceptions are made along blurred postcolonial borders.
- 2 http://www.faz.net/aktuell/politik/bundesverfassungsgericht-rasterfahndung-nur-noch-bei-konkreter-gefahr- 1329725.html
- 3 https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/DE/2012/07/up20120703_2pbvu000111.html
- 4 https://www.deutschlandfunkkultur.de/vorratsdatenspeicherung-ein-schwarzer-tag-fuer-unsere.1008.de.html? dram:article_id=340281
- 5 https://www.bmi.bund.de/DE/themen/sicherheit/extremismus-und- terrorismusbekaempfung/vereinsverbote/vereinsverbote-node.html
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Over the years the responsibilities and possibilities of the secret service have been expanded and competences of the police became indisctinct and intransparent as well. Information about people may be collected and even sensible information are not safe from that. In addition, secret service operates undercover and the population never knows how the new competences are carried out in practice. Only scandals made public by whistle-blowers over the years gave an in-view about the performance of the secret service.6 The in 2006 invented ‚Rasterfahndung‘ which means the presumption of people who are more likely to commit crimes was highly controversial. Nevertheless it has been used a lot and also nowadays although it is restricted to cases of immediate danger, it is still common practice.7 Since 2003 another striking step has been made. A law ‚improved‘ the exchange of information between police and secret service. This led to a problematic ‚zone of indistinction‘ as the competences and responsibilities blurred. Also the intensification of migration law led to a problematic practice as suspected individuals could be expelled from Germany more easily. This law is used to this day arbitrarily to get rid of different persons without proven reasons.
Over the years data-retention as well as internet and telephone surveillance came into the focus. Competences have been expanded although there have been huge protests. Whose data is retained and whose internet and telephone is surveilled is in the hand of few officials. Another striking aspect is that the passports of suspects can be taken. This is an enormous interference in human rights as it prevents the mobility and security by law. Since the ‚refugee-crisis‘ we can also observe another phenomenon which is the suspension of Schengen and the re-implementation of border controls in Germany. In practices this led to racial profiling of persons fitting in the imaginative criteria of ‚refugee‘ (Cremer, 2013).
Moreover the blurred lines between police and secret service as well as the competences of military within Germany are striking. The lines are getting more and more indistinctive. Since the usage of military within German borders has not even been thinkable a few decades ago it nowadays is more likely and even debates about usage for protests and big events are common. When it comes to protest a significant example are the G20 protests in Hamburg in 2017. In practice the police had cameras to film the participants (Ullrich 2018), surveillance was omnipresent and undercover investigations have been made as well. Journalists have been prohibited to work and the protesters were not protected by the law anymore (Hunold et al
- 6 For example scandal about NSU: https://www.zeit.de/2013/08/Dossier-Verfassungsschutz-NSU- Terrorismus/seite-6
- 7 For example: Dragnet investigation of plane travel data: https://www.heise.de/tp/features/BKA-startet- Rasterfahndung-von-Fluggastdaten-4146378.html
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2018). Not only during the G20 summit but also in 2014 there has been the implementation of a ‚Gefahrengebiet‘ in Hamburg which is a law within the police legislation to install a zone where different rules are applied. The zone can be implemented when crimes are expected to happen. The ‚Gefahrengebiet‘ enables the police to control every person without reason and browse their bags. Moreover they can verify their identity and keep information about them. In this case it led to extensive racial profiling as persons of colour were more likely to get controlled. Here we can see a legal space for abandon the usual law with a huge space for different actions and the reduction to bare life.
As the analysis shows the anti-terror and security legislation in Germany developed to a ‚zone of indistinction‘ in which the exceptions were implemented especially along racist, post- colonial borders to exclude ‚the other‘. Persons of colour were constructed as suspicious in general and reduced to bare life in which they can not rely on the usual law.
Security legislation in Egypt:
In this part of the essay I would like to examine the changes within security legislation after the Arab Uprisings in 2011. In this context I have to mention, that this will not include all aspects as the size of this essay doesn’t allow a thorough analysis.
After Mubarak fell a year of interim military rule followed before the first presidential elections in half a century were won by Muslim Brotherhood candidate Mohamed Morsi in 2012. One year later there was a growing dissatisfaction with the new government which led to new protests. The military stood with the protesting people and ousted President Morsi. After that the Muslim Brotherhood was constructed as the antagonist and banned from political actions (Mabon, 2017: 1791). The new persons in charge outlawed the Muslim Brotherhood and developed a new constitution which restricts media freedom among other aspects. After few months of military government, commander-in-chief Abdel Fattah Al-Sisi won the presidency elections in the May 2014 but after that main objective of the Al-Sisi government seemed to be regime survival and avoiding new protests (Rutherford, 2018).
Since 2013 a large number of presidential decrees have been issued that made authoritarian rule possible without emergency law. Moreover the authorities limited civil society’s freedom of articulation (Grimm, 2015). In late 2013 the Muslim Brotherhood was declared as a terrorist organization. This allowed State Security to raid Islamist associations. Since then the definition of terrorism and terrorist activity was adjusted constantly to include more civil
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actors. In addition, the constitution of 2014 transferred fa-reaching power to the security service. Another law was implemented by decree on 27 October 2014 and defines most public institutions as military installations (Rutherford, 2018). It follows that all crimes can be judged by military courts as well. Another law important to mention is from November 2013 implemented by the interim president which is known as the ‘Protest Law’ and limits the right to protest and the freedom of assembly. The Protest Law allows citizens to ‘organize a meeting, or conduct a procession or protest’ but it determines that a notification at least 3 days before and no more than 15 days in advance is needed. Nevertheless the law enables the government to cancel or postpone any demonstration or political protest. In its 10th article, the law eliminates citizens’ rights of assembly and demonstration in practice. Moreover it doesn’t include the guarantee of safety for demonstrators (Hamzawy, 2017:393). Not following the procedures mentioned is prosecuted as a crime. This Protest Law has led to a de facto ban on all demonstrations. Moreover the law is increasingly being used for demonstrations that happened in the past. As a consequence Egypt has more than 40,000 political prisoners, including prominent activists from the Uprisings. In February 2015 Al-Sisi issued the ‘Law of Organizing the Lists of Terrorist Entities and Terrorists’. This law left huge space for interpretation and enabled the government to surveil and punish persons and groups peacefully opposing politics (Hamzawy, 2017:398). Moreover, crimes can be prosecuted by special courts invented to treat terrorism-related actions with harsher punishment. A new law, implemented in mid August 2015 focuses even on private support of regime critical groups. Moreover, Egypt’s Central Police Force (CPF) has been repeatedly cited by human rights groups and citizens for their personnel’s brutal use of power against protestors and activists (Cherif Bassiouni, 2017: 296). In fact Al-Sisi controls centrally both the armed forces and security services which means that he has a lot of power over national institutions, the legal system, economic activity, and over anti-government activists (Hellyer 2018: 3). Moreover Abdel Fattah Al-Sisi implemented a law that restricts the operations of non-governmental organisations (NGOs) in Egypt. Many of them promoting and monitoring human rights. The law controls domestic and foreign NGOs and makes it nearly impossible for them to follow their work (Benhamou, 2017: 121).
As the short analysis showed we can observe the installation of a lawful lawlessness in Egypt especially after Al-Sisi took power. People, mostly political activists disappear8 and are sent to prison without trial. The security and anti-terror legislation became broader and was left open
8 https://www.amnesty.org/en/countries/middle-east-and-north-africa/egypt/report-egypt/
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for arbitrary governments actions and interpretations. Protests and free speech are not possible anymore without fearing detention (Grimm, 2015). The freedom has been restricted in various ways and human activity reduced to bare life. Especially the aspect that the term terrorist has been defined and adjusted to ban political dissidents is striking. Another important aspect is that much power has been handed over to the military and crimes can be judged retroactively. Persons critical of the regime are stripped of legal status and reduced to bare life.
Conclusion: A zone of indistinction?
Both cases show that exceptions within security legislation come up more frequently. In Egypt they especially target people opposing the government whereas in Germany they affect two types of persons, dissidents on the one hand but more significantly persons of colour in general. Exceptions have mostly been made for saving the government and the system. In Egypt this struggle seems to be more essential as persons disappear and are stripped of legal status completely. In Germany on the contrast we can see the exceptions in specific cases and they seem to be frequently but are at the same time embedded in a legal framework and justification process. Nevertheless they should be considered as grave for the persons affected. The lines between exception and usual law are blurred in both cases and the implementation arbitrary. We can observe the same mechanisms of performing power. A striking finding is that the core of sovereignty in both countries is empty. Exceptions can be made and targeted against ‚the other‘.
(2700 words)
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Online Sources:
https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/DE/2012/07/up20120703_2pbvu000111.html
https://www.zeit.de/2013/08/Dossier-Verfassungsschutz-NSU- Terrorismus/seite-6
https://www.heise.de/tp/features/BKA-startet- Rasterfahndung-von-Fluggastdaten-4146378.html
https://www.amnesty.org/en/countries/middle-east-and-north-africa/egypt/report-egypt/
http://www.bpb.de/apuz/33224/11-september-2001
Maßnahmen des Bundes zur Terrorismusbekämpfung seit 2001 Gesetzgebung und Evaluierung (Aktualisierung der Ausarbeitung WD 3 – 3000 – 044/15 vom 6. März 2015).