☛ Metropolitan Museum of Art: “Red Stripe Kitchen”, from the series House Beautiful: Bringing the War Home, 1967–72 (printed early 1990s), chromogenic print, image: 59.5 x 45.2 cm (23 7/16 x 17 13/16 in.), accession no. 2002.393. © Martha Rosler 1970, 2002.
A slightly different version of this essay was published on Critical Legal Thinking
I was browsing through various online galleries of photos taken in the aftermath of the Boston Marathon bombings when I remembered Martha Rosler’s collage. I had seen “Red Stripe Kitchen” a couple of months ago while visiting the exhibition Faking It: Manipulated Photography Before Photoshop (October 11, 2012—January 27, 2013). The placement of soldiers inside an immaculate kitchen had made quite an impression at the time.
The photos from Boston available online ―often uploaded by regular citizens― which depict the so-called lockdown and the manhunt that ensued, were not produced by means of an artistic photomontage. The sight of law enforcement personnels passing through a living room in full tactical gears made an even greater impression.
Various military units were deployed in Boston, including members of the Massachusetts National Guard1. Soldiers are usually believed to be deployed on the outskirts of the body politic: they either work outside or at the frontiers, protecting civilian populations. The use of the Army inside the civilian sphere is even restricted by a congregational act in the United States: the Posse Comitatus Act of 18782.
Up until recently (First World War), warfare had traditionally made a clear distinction between civilian and military targets. The bombings in Boston is yet another striking reminder that things have since drastically changed. The front lines that need to be protected have moved within the most intimate spaces of the civilian sphere. The war zone extend all the way into private living rooms and backyards3.
Such an inversion (further) blurs the traditional distinction between what is public and what is private. Indeed, when the front lawn of private homes becomes a theatre for military-like operations in a democratic country, two issues arise. First, the extent of a government’s authority into the intimacy of private lives become spectacularly visible. The fact that such an intervention is conducted for the population’s “own good”, as it was repeatedly argued in the past few days, does not invalidate the relevance of this observation. Second, it raises some questions regarding the democratic principle of the separation of powers.
Exceptional events such as those that have happened in Boston last week surely ask for an exceptional response from the government. However, when a state of exception is declared by a democratic government, a state of exceptional awareness should equally be observed by its population.
Which brings the question of the Emergency Declaration that was signed by President Barack Obama for the state of Massachusetts on April 17, 20134. At the time of writing, there doesn’t seem to be much information available online about this presidential declaration. Mainstream media have been very generous in providing the public with various informations regarding the events, including extensive coverage about the lifting of the Miranda rule for the captured suspect in the name of a “public safety exception”. However, informed analysis about the legal aspects surrounding an Emergency Declaration are scarce. A couple of informative points relative to the exceptional character of the authorities’s response are worth highlighting.
Legally speaking, an Emergency Declaration is not a declaration of martial law. The expression “martial law” has no precise legal meaning in the United States5. That being said, it is commonly understood as the substitution of military authority to civil authority. The FEMA, which intervened in Boston after the bombings, operates under the direction of the U.S. Department of Homeland Security. This department was specifically created after the September 11 attacks to work within the civilian sphere (as opposed to the Department of Defense). The investigation itself was led by the Federal Bureau of Investigation6.
Although no official declaration about the city of Boston being placed under martial law was ever made, the presence of military personnel raises some legitimate concerns. The Stafford Act, which defines the parameters under which the Federal Emergency Management Agency (FEMA) can act in emergency situations makes only two mentions of the word “military”. On one hand, it specifies that the evacuation of civilian population should be “non-military”. On the other hand, it states that “passive defense regulations” can be prescribed either by military or civil authorities7. Interestingly, the Act also authorized the President to utilize the resources of the Department of Defense ―if he determines that such resources are needed― for a maximum period of 10 days8. This is especially important in the context of a manhunt directed against suspected terrorists. Since September 2001, the laws which applies in such a situation are dictated by various types of ongoing federal emergency acts: making sense of their legal implications is not always easy9.
A similar uncertainty presides over the use of the term “lockdown”. It was suggested (after the fact) that it may have been entirely voluntary and not legally imposed10. Massachusetts Governor Deval Patrick did indeed ask people “to shelter in place” without referring to the application of sanctions if the request was to be transgressed11. However, that was not quite the impression conveyed by the constant and ominous repetition of the word “lockdown” by mainstream media. The strong presence of some 9,000 heavily militarized law enforcement units and vehicles in the street may have had an additionnal dissuading effect as well. Another way to present this problem is to ask whether it is necessary for military control to be legally declared in order to produce actual coercive effects, i.e. to make the population feel like it is under a military imposed lockdown.
The legal issues regarding the search of private residential properties seems to be similarly ambiguous. First it must be noted that there has not been any kind of massive outcries denouncing it. Instead, what was broadly reported was the sense of cheerful relief following the capture of suspect Dzhokhar Tsarnaev12. This relief was likely also associated with the fact that this capture meant both the release of the population and the withdrawal of armed personnels from the streets. In other words, it meant people could return to their normal life, as opposed to the exceptional situation they momentarily experienced.
Certainly, most of the resident spontaneously agreed for their home to be searched, wishing, undoubtedly, to cooperate with the ongoing efforts to locate and capture the suspect who was still at large. Some residents have even commented to the effect that the searches were conducted in a polite manner13. The relief from fear and the thankfulness felt once everything was over could very well legitimate, in the eye of the population, the exceptional measures that momentarily affected their lives. In his essay “The Remains of the Day” about the nature of the current response to terrorist threats, Brian Massumi made the following observation:
Once threat is felt and fear has taken us, the operative logic of preemption kicks in to make it a foregone conclusion that any action taken following that logic will have been right in any case. Whatever actions the police take will come across as justified, based solely on what was felt –the feeling of threat. Police actions are affectively pre-legitimated.14
This alone could explain the perfectly honest and truthful cooperative attitude of the residents in Boston, as well as the equally genuine gratitude they manifestly felt once the capture of the suspect was made official (on the evening of April 19). On the other hand, there are reported cases were this willingness to cooperate seem to have been less spontaneous, maybe coerced15.
Private property is an unalienable right in the United States guaranteed by the Fourth Amendment of its Constitution. The search of a private property by executive authorities (law enforcement) usually requires a warrant delivered by the judicial branch of the government, once again assuring the separation of powers. However, various legal exceptions already exist which allow authorities to circumvent this rule and legally search a private property even if consent is not granted by the owner. Among those exception is the recognition of “exigent circumstances”16. The Emergency Declaration itself introduces no additional modification to those rules. It could very well be argued that such “exigent circumstances” indeed prevailed after the bombings in Boston. However, the search of private residences without court warrant appear to have been an exceptional measure which was momentarily normalized to entire suburbs. Just how many houses were search during those few couple of days is unknown:
The Watertown police spokesperson, Michael Lawn, wasn’t able to say how many homes had been searched, saying only it was “a lot.” When asked if that was because the FBI was leading on the effort, Lawn indicated that it was just because it was “hard to tell.”17
Maybe the most important aspect here does not lie in the exceptional nature of those measures, but in the way those exceptions are repeatedly called for and applied. The potential normalization of such exceptions through repetition is something to consider very seriously. It is worth remembering, for example, that the Proclamation 7463 ―the Declaration of National Emergency by Reason of Certain Terrorist Attacks― made by former President George W. Bush on September 14, 2001 has been renewed every year since it was first declared eleven years ago (last time by President Barack Obama on September 2012). That argument about the danger of repetition was recently expressed by Ross Douthat in a op-ed piece he wrote for The New York Times:
I agree that we aren’t likely to make a habit of it endlessly. But the pressure to do absolutely everything to stop a terrorist, and the sense in many quarters that the Boston lockdown “worked,” seems like it might inspire some genuine fiascos in a world where we suddenly had to adjust to a more frequent drumbeat of attacks.18
The Emergency Declaration signed by the President on April 17, 2013 may officially have no legal impact on federal constitutional rights. But the events of April 15 authorized in effect exceptional measures that tested the limits of those rights by creating zones of legal uncertainties: “We’re trying to get facts on the ground of what really happened,” Carol Rose, executive director of the ACLU of Massachusetts, recently told The Atlantic Wire19. Mayor Michael Bloomberg, however, must not have been very interested in the details and uncertainties of what “really happened” when he explicitly declared following the bombings that the “interpretation of the Constitution […] have to change.”20 In his seminal book on this issue, State of Exception, Italian philosopher Giorgio Agamben wrote:
Faced with the unstoppable progression of what has been called a “global civil war,” the state of exception tends increasingly to appear as the dominant paradigm of government in contemporary politics. This transformation of provisional and exceptional measure into a technique of government threatens radically to alter―in fact, has already palpably altered―the structure and meaning of the traditional distinction between constitutional forms. Indeed, from this perspective, the state of exception appears as a threshold of indeterminacy between democracy and absolutism.21
Writing about this “global civil war”, Giorgio Agamben explicitly refers to the work of Hannah Arendt and Carl Schmitt22. This concept also resonates, to some extent, with the way Jean-Luc Nancy is analyzing it in his work. In regard to the topic at hand here, this “global civil war” finds its expression in the internalization of the front line identified earlier. Such a coexistential dynamic points in turn to the establishment of an order which could potentially become a threat to itself23. If such a “global civil war” has become (or is about to become) our prevalent mode of being-together, then the exceptional intrusion of military interventions inside civil society, as it was witnessed in Boston, is an exception that is likely to repeat itself.
The reality of our contemporary lives in common may well have in fact absorbed the surrealist quality of Martha Rosler’s photomontages. This makes it all the more important to think about the way “emergency declarations” and exceptional government measures affect and transform our democraties.
• • •
To learn more about Martha Rosler’s series Bringing the War Home, consider the following online resources:
• • •
1.Army.mil: “Massachusetts National Guard supports Boston Police”, April 16, 2013. ↩︎︎
2. A good introduction is provided by Matthew Carlton Hammond in his paper “The Posse Comitatus Act: A Principle in Need Of Renewal” (Washington University Law Quarterly, Vol. 75, No. 2, Summer 1997). ↩︎︎
3.On this issue, Hannah Arendt’s introduction to her book On Revolution (1963) is still highly relevant today:
(…) the fact that the seeds of total war developed as early as the First World War, when the distinction between soldiers and civilians was no longer respected because it was inconsistent with the new weapons then used. To be sure, this distinction itself had been a relatively modern achievement, and its practical abolition meant no more than the reversion of warfare to the days when the Romans wiped Carthage off the face of the earth. (New York: Penguin Books, 1963, p. 17; available at archive.org) ↩︎︎
4. FEMA―Disaster Declarations: “Massachusetts Explosions (EM-3362)”, incident period: April 15, 2013 to April 22, 2013. This is far from being the first Disaster Declaration signed by President Barack Obama: see also at FEMA.gov Disaster Declarations by Year. ↩︎︎
5. See the opinion of the Supreme Court in Duncan v. Kahanamoku, 327 U.S. 304 (1946):
But the term “martial law” carries no precise meaning. The Constitution does not refer to “martial law” at all and no Act of Congress has defined the term. It has been employed in various ways by different people and at different times. By some it has been identified as “military law” limited to members of, and those connected with, the armed forces. Others have said that the term does not imply a system of established rules but denotes simply some kind of day to day expression of a General’s will dictated by what he considers the imperious necessity of the moment. […] In 1857 the confusion as to the meaning of the phrase was so great that the Attorney General in an official opinion had this to say about it: “The Common Law authorities and commentators afford no clue to what martial law, as understood in England, really is. […] In this country it is still worse.” What was true in 1857 remains true today. ↩︎︎
6. Reuters: “Investigators scour video, photos for Boston Marathon bomb clues” by Mark Hosenball and Svea Herbst-Bayliss, April 15, 2013.
The Federal Bureau of Investigation is heading the investigation with help from city, state and federal officials, FBI Special Agent Richard DesLauriers said at an evening news conference. ↩︎︎
7. See Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended, and Related Authorities, FEMA 592, June 2007, Sec. 602. Definitions (42 U.S.C. 5195a), a.3.A-B. PDF. The 2013 version is available here. ↩︎︎
8. Again, see the Stanford Act, Sec. 403. Essential Assistance (42 U.S.C. 5170b), c.1. ↩︎︎
9. The question regarding the civil rights of a U.S. citizen suspected of terrorism are not perfectly clear. See for example The New York Times: “Senate Declines to Clarify Rights of American Qaeda Suspects Arrested in U.S.” by Charlie Savage, December 1, 2011. ↩︎︎
11. BBC: “Stay inside, Massachusetts Governor tells Boston residents” video of the Governor’s official declaration, April 19, 2013. ↩︎︎
12. See for example Boston.com: “Watertown residents cheer capture of Dzhokhar A. Tsarnaev, Boston Marathon bombing suspect”, April 20, 2013. See also more recently, also from Boston.com: “Civil libertarians and local residents react differently to Tsarnaev manhunt” by Garrett Quinn, APril 23, 2013. Quinn writes:
During the course of my reporting, I was unable to locate a single Watertown resident that admitted to being uncomfortable with the government asking them to “shelter in place” while 9,000 armored police descended on the Greater Boston area in search of a single suspect. In my estimation, the support for law enforcement appeared to be nearly universal, with phrases like “110% support” and “they did a great job” thrown around by virtually everyone I interviewed before, during, and after the manhunt. As one woman told me, “If it were ever to happen again, I’d hope they take the same precautions.” ↩︎︎
15. YouTube: “Police perform house-to-house raids in Watertown MA” uploaded on April 20, 2013 by user rambone5. ↩︎︎
17. The Atlantic: “Boston’s Door-to-Door Searches Weren’t Illegal, Even Though They Looked Bad” by Philip Bump, April 22, 2013. ↩︎︎
19. The Atlantic: “Boston’s Door-to-Door Searches Weren’t Illegal, Even Though They Looked Bad” by Philip Bump, April 22, 2013. ↩︎︎
20. Politicker: “Bloomberg Says Interpretation of Constitution Will ‘Have to Change’ After Boston Bombing” by Jill Colvin, April 22, 2013. ↩︎︎
21. The State of Exception, tr. by Kevin Attell, Chicago: University of Chicago Press,  2005, pp. 2-3. ↩︎︎
22. Hannah Arendt does not use the expression “global civil war” in her book On Revolution (first published in 1963). What she wrote instead is this:
But in our own century there has arisen, in addition to such instances, an altogether different type of event in which it is as though even the fury of war was merely the prelude, a preparatory stage to the violence unleashed by revolution (such clearly was Pasternak’s understanding of war and revolution in Russia in Doctor Zhivago), or where, on the contrary, a world war appears like the consequences of revolution, a kind of civil war raging all over the earth as even the Second World War was considered by a sizeable portion of public opinion and with considerable justification. (New York: Penguin Books, 1963, p. 17)
Similarly, Agamben suggests the expression “global civil war” appears the same year ―1963― in Carl Schmitt’s book Theory of the partisan: intermediate commentary on the concept of the political (first published as Theorie des Partisanen: Zwischenbemerkung zum Begriff des Politischen; see the translation by G.L. Ulmen). As it has been mentioned before, the expression was also used in a journal article Carl Schmitt wrote twenty years earlier, in 1943: “Die letzte globale Linie” (first published in Völker und Mere and republished in Staat, Großraum, Nomos: Arbeiten ausden Jahren 1916 – 1969, ed. G. Maschke, Berlin: Duncker & Humblot, 441-452). I couldn’t find an English translation of this article. Staat, Großraum, Nomos is listed in State of Exception’s bibliography.
The concept of a “global war” is by no mean the monopoly of philosophers. The expression “global war on terror” was used by the Bush administration until it was changed by the Obama administration in 2009. See Washington Post: “’Global War On Terror’ Is Given New Name” by Scott Wilson and Al Kamen, March 25, 2009. ↩︎︎
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