Regardless of the covert encroachment of the Internet by the varied security States, cyberspace is nonetheless altering the jurico-political landscape of the world. Fugitive Edward Snowden’s legal status personifies what Giorgio Agamben describes as a homo sacer – a sacred man. In his book sharing the same title, Agamben explores the significance of this archaic Roman legal figure in conjunction with the concept of sovereignty elaborated by Carl Schmitt in his book, Political Theology . In light of the state of exception relating to Edward Snowden’s legal status, one is left to conclude that he does not only fit the portrait of a homo sacer but that he is also a paradigm of sovereignty in respect to the uncharted domain of the Internet.
Although the idea of sacred has retained some its original Roman meaning, today it is mostly associated with a religious attribute relating to specific people, objects and places rather than establishing a ritual process of setting apart. In Roman religio , sacer meant “all that is the property of the gods,” and “that which has been dedicated and consecrated to the gods;” hence, what is separated from the profane – the common, the unclean or the impure, etc. In essence, this setting apart is a dynamic that establishes a buffer zone, if you will, between the sacred and the profane, conferring a special status to one as opposed to the other, legitimizing hierarchy and instituting order; the mortals being the disposable players of a power play justified by the gods.
The Latin expression of homo sacer has been translated into “sacred man” and is defined as an individual who either broke an oath made to the gods, committed perjury or for moving markers that determine property limits and rights. Offenses that were considered to jeopardize the good relationship between citizens and the gods, compromising the peace and prosperity of Rome. As a result, the offender is set apart for his breach of trust and could only be punished by the gods. And, according to prescribed rules, it is not permitted to sacrifice him. Yet he could be killed without the killer being regarded a murderer. Hence, homo sacer stands in a fuzzy no-man’s land by being a previous member of a privileged circle – sharing the same status as his patrons – yet accursed for his breach of trust and banned from society.
While in Hong Kong in May 2013, Snowden released numerous secret documents to the press. Much of the secret activities were already suspected by a great number of people; however, the documents consisted of more than a description of secretive conduct, but proof that these government agencies were conducting mass surveillance on its citizens – surveillance that Snowden considered to be illegal and in violation of the Fourth Amendment.
Edward Snowden is a former government system administrator who later worked as a private security consultant contracted by the State. With his revelations, he exposed some of the inner working of the government’s secret agencies, showing that public and private sectors are closely aligned and form a coherent body, referred to in some circles as the fourth branch of government, whose budget is kept secret as a matter of national security. During the media blitz against the renegade, it was revealed that his job was highly remunerative. And although he worked in the private sector, his firm was contracted by the government and his salary was subsidized by tax payers’ money.
Snowden worked in the public and private sectors, connected to both worlds. From the perspective of his former employers, his revelations were considered a tacit breach of trust. As a result, on June 14 th the Department of Justice charged Snowden with violating the antiquated Espionage Act and for theft of government property. On June 22 nd , the State Department revoked his passport and as a result he remained stranded in Moscow’s airport. On August 1 st , he was granted one year of temporary asylum in Russia. At the end of the one year term he was granted an additional three years of asylum.
As a US citizen and former government employee, Snowden made an oath of allegiance to the United States of America to support and defend the Constitution and its laws against foreign and domestic enemies. Based on his confessions, Edward Snowden made classified documents public in order to “cure the abuse of government” and fight against the “banality of evil” – an expression attributed to Hannah Arendt – and because the secret agency was violating the Fourth Amendment. In his defense, he stated that he did not benefit personally from the disclosures and that he made the documents available to journalists so that the public could decide what type of country they wanted to live in.
Snowden betrayed the trust of both his public and private employers, compromising a covert and unrestricted surveillance of the Web. His revelations have been perceived not only as a threat to national security, but also a jeopardy to the growth of the security and surveillance industrial complex. As a result, several death threats were made against his life. Some of them were anonymous; others made by public figures. And it is possible to assume that if an individual who felt betrayed by Snowden’s disclosures would take it upon himself to take him down, that the killer’s identity would never be revealed to the public or that he would be prosecuted for murder.
What is more, his entire existence is reduced to a bare life stripped of every right by virtue of the fact that anyone can kill him without committing a homicide; he can save himself only in perpetual flight or a foreign land. And yet he is in a continuous relationship with the power that banished him precisely insofar as he is at every instant exposed to an unconditioned threat of death. He is pure zoe (life common to all living beings), but his zoe is as such caught in the sovereign ban and must reckon with it at every moment finding the best way to elude or deceive it. In this sense, no life, as exiles and bandits know well, is more “political” as this. (Agamben)
In Judeo-Christian religious tradition, God is the ultimate sovereign. According to Schmitt, political power is modeled on God’s creation; the world is literally created out of nothingness for the purpose of instituting a semantic order, providing instructions and the law. Prior to the Renaissance, the world was perceived solely in theological terms, based on the certainties revealed in the scriptures with the king and the pontiff being the legitimate representatives of God on earth. As such, God is the only power able to sanction an earthly sovereign of his choice. Schmitt explains:
All significant concepts of the modern theory of the state are secularized theological concepts not only because of their historical development – in which they were transferred from theology to theory of the state, whereby, for example, the omnipotent God became the omnipotent lawgiver – but also because of their systematic structure, the recognition of which is necessary for a sociological consideration of these concepts. The exception in jurisprudence is analogous to the miracle in theology. Only by being aware of this analogy can we appreciate the manner in which the philosophical ideas of the state developed in the last centuries.
Hence, the central concepts of the theory modern of state are all secularized theological concepts. Schmitt quotes Hobbes to show that the exception in jurisprudence is analogous to a miracle in theology. Thus, believing in a miracle is an act for faith: Faith in God’s revelation of his chosen messiah or king – Lord/sovereign. As such, a miracle is more about a sign of election of a person involved in a miracle rather than the work of wonder itself. Very few people witness an actual miracle. As it happens, miracles related in the scriptures are mediated events; in the sense that they are described in narrative form.
Whether God alone is sovereign, that is, the one who acts as his acknowledged representative on earth, or the emperor, or prince, or the people, meaning those who identify directly with the people, the question is always aimed at the subject of sovereignty, at the application of the concept to a concrete situation (Schmitt).
A sovereign is a person with supreme powers within a defined jurisdiction. The definition also implies that he is free from external controls. A sovereign has the power to establish a state of exception. Whereby in a “state of emergency” a head of state – acting as a sovereign – can suspend the constitution in the event that the public good or security of the people are threatened. As a result, a sovereign stands inside and outside the law.
Sovereign is he who decides on the exception.
Only this definition can do justice to a borderline concept. Contrary to the imprecise terminology that is found in popular literature, a borderline concept is not a vague concept, but one pertaining to the outermost sphere. (Schmitt)
Carl Schmitt makes a distinction between the State and politics. The first is comprised of the agencies and departments that form a government – it does not change from election to election. Whereas, politics consists of the election of representatives to govern the State for the benefit of the people. In a democracy, the two interact and the peoples’ representatives rule. In a dictatorship, the two conflate and the State rules. In respect to the historical background in which Schmitt lived, he was understandably concerned about the dangers of the State becoming “a huge industrial plant” that runs by itself where “the paternalistic element in the concept of sovereignty is lost.”
The modern idea of the state replaces the personal force of the king, with the spiritual forces of the law. And only if these forces are perceived to be spiritual they will be obeyed voluntarily (Schmitt).
War on Terror & the State of Exception
In a war, laws with the enemy are suspended. Economic exchange is banned. And in a declaration of war, all lines of communication between the warring parties are broken. The term “War on Terror” was first used by President Bush in response to the attack on 9/11. This beckons the question: How is an enemy identified as “terror”? It is noted that President Obama no longer uses the term, he uses the expression “Overseas Contingency Operations,” instead. The expression “War on Terror” is no longer part of an official government policy. However, the slogan is still being used by the media and its pundits as a well-publicized agenda implying that a state of exception is ongoing.
By virtue of its monopoly on politics, the state is the only entity able to establish friends from enemies and thereby demand its citizens subservience. (Agamben)
In light of Edward Snowden’s revelations, it seems that in our media-centered cultures an open debate about the Internet and its sphere of influence has been overshadowed in favor of a state of exception. Agamben explains in his book, State of Exception, that in times of crisis a government, a branch of government, or any of its agencies can use a perceived threat to its security in order to implement a state of exception whereby parts of the Constitution, free speech or individual rights can be diminished or even suspended.
Snowden, in a similar manner to homo sacer, could not be sacrificed. As a result of the nature of his conviction he could not be judged in a regular trial. Under the Espionage Act, Snowden could not defend himself before a jury in an open court and unable to explain the reason for his actions to the public. In a regular trial he would be asked to expose additional information deemed to be a threat to national security.
What he doesn’t say are that the crimes that he’s charged me with are crimes that don’t allow me to make my case. They don’t allow me to defend myself in an open court to the public and convince a jury that what I did was to my benefit. … So it’s, I would say, illustrative that the President would choose to say someone should face the music when he knows the music is a show trial. (Snowden)
Snowden’s work as security consultant for both the public and private sectors led him to realize that he was caught in a legal dilemma; faced with a choice to either betray the trust of his employers or renege on an oath allegiance, he chose to side with the Constitution. A decision that resulted in being banned by the State. However, in an unexpected twist – thanks to the Internet – it is the state of exception that has been put on trial. Whereas Snowden became the focus of attention and the instigator of a relevant political debate on mass surveillance.
Herein lies the paradox: the Internet stands in a jurico-political outermost domain. Right or wrong, Snowden made a genuine decision and used the Internet to reveal his concerns about a perceived violation of the Constitution. However, his decision resulted in an indictment and the revocation of his passport. As a result, Snowden is unable to leave Russia but able to express his views to the world using the Internet. The government can control his travel, but not his freedom of speech. He is banned by the State, but a sovereign being mediated by the Internet.
According to Snowden, the Internet is a “technological equalizer” – it allows an individual like him to stand up to overreaching and overpowering systems. Keeping in mind that the Internet consists of hardware located in different countries. It is a medium that stands in a juridico-political outermost domain yet undefined by international law.
Even Hollywood could not have come up with a better plot or more intriguing character than our stranded ex-security consultant, whose disclosures propelled him from secure anonymity to controversial notoriety. The irony is that Russia, not known for being a champion of human rights, has granted political asylum to a US ex-secret consultant. And that Edward Snowden, an American former consultant working for the surveillance state, will end up being a paradigm of sovereignty of the Internet.