Emergency in Theory and Practice

Political theory has long noted the dangerous legal and constitutional implications of “emergencies” and the “state of exception.” The far-right German legal theorist Carl Schmitt used the idea of the “state of emergency” — a constitutional suspension of the constitution — to theorize a legal basis for Nazi dictatorship. In his argument, which can also be inverted and read as a critique, emergencies are the means by which democracies legally smuggle in authoritarian, or absolutist, politics and law enforcement.

Just after Hitler was offered power by German president Hindenburg, the new chancellor issued the “Decree for the Protection of the People and the State” after the Reichstag fire. The law restricted the right to assembly, freedom of speech, freedom of the press, and allowed police to arrest and incarcerate people without specific charges and to ban and dissolve publications and organizations at will. Legally speaking, the Third Reich was a twelve-year long state of emergency under the Weimar Constitution.

Political theorist Giorgio Agamben, close reader and left interpreter of Schmidt, argues that “the voluntary creation of a permanent state of emergency (though perhaps not declared in the technical sense) has become one of the essential practices of contemporary states, including so-called democratic ones.” Agamben, who refuses to be fingerprinted, argues that the combination of advanced technologies of social control, politics of fear, and profound erosion of democratic rights are fundamentally transforming the relationship between states and populations, turning citizens into essentially subjects without rights, detainees in waiting.

Climate change will bring actual emergencies: flooded cities, disrupted trade, food price shocks, and truly massive migrations. If the specter of emergency is already being invoked today, we can only imagine what the response to come will be like.

How The Exodus Began

Just beyond Europe’s borders there are now 9 million refugees in the Middle East and another 15 million in sub-Saharan Africa. Roughly 1 million of these people reached the EU during 2015, and about 3,700 died on the way, usually drowning in the Mediterranean. Three majority Muslim countries host roughly 30 percent of the world’s refugees; two of these are at the edge of Europe, Turkey, and Lebanon, and the third is Pakistan.

Since 2011 the number of refugees globally has surged by a shocking 40 percent, bringing the worldwide total to 60 million refugees, more than any time since World War II.

Why the upward spike starting in 2011? That year saw the second major food price shock in less than a decade. Between June 2010 and June 2011, world grain prices almost doubled. Wheat prices shot up 83 percent, while corn prices increased by a staggering 91 percent.

In summer 2010, Russia, one of the world’s leading wheat exporters, suffered its worst drought in one hundred years. Known as the Black Sea Drought, this extreme weather pattern triggered fires that burnt vast swathes of Russian forest and desiccated farmland in Russia, Ukraine, and Kazakhstan. That year, Russian wheat exports declined by 78 percent.

Meanwhile, bad weather in the American Midwest in 2009 and 2010 meant wheat production shortfalls, and by 2011 that translated into a 22 percent drop in US wheat exports. Over the same years, massive flooding in Pakistan put a large part of that country under water, and while this did not hurt wheat exports as much as expected, it rattled markets and spurred on the speculators.

Among those most aggressively bidding up grain prices was the Swiss-based commodities trading giant Glencore. The firm went so far as to publicly urge Russia to cancel its export contracts, which it did.

Egypt, like many Middle Eastern countries, is a major wheat importer, one of the single biggest in the world. When Russia canceled its export contracts, food prices in Egypt and across the Maghreb surged, helping fuel the protests that became the Arab Spring. Meanwhile, modern bread riots broke out in cities from Bishkek, Kyrgyzstan, to Nairobi, Kenya, and four new wars began: Libya, Yemen, Syria, and a small one in Egypt’s Sinai Peninsula.

At the same time drought in Syria, combined with austerity by the Assad government, pushed as many as eight hundred thousand Sunni farmers off the land and into cities. Their suffering and the associated social friction contributed to the outbreak of civil war in Syria.

The other driving factor behind the 2011 refugee spike is far more self-evident: NATO aggression. Among the top sending countries in the European refugee crisis are places that NATO forces have bombed. In particular the top three are Syria, Iraq, and Afghanistan. Libya, also bombed by NATO, is a major jump-off point for migrants from further south.

ISIS is a political formation born directly out of the regional crisis created by the US invasion of Iraq. The current ISIS leader, Abu Bakr al-Baghdadi, is even a veteran of the US detention center at Camp Bucca.

As the ultimate expression of blowback, ISIS’s methods reflect its origins; the group has built a strategy around chaos and emergency. The logic was laid out by ISIS’s precursor organization, al-Qaeda in Mesopotamia, in a 2004 manifesto called “The Management of Savagery.”

ISIS seeks to fill power vacuums, create more of them, and use fear of chaos. Their terror attacks in the West — described in the text as “vexation operations” — attempt to provoke despotic over-reactions from otherwise relatively liberal governments, which will criminalize all Muslims, harden and close open societies, and drive alienated Muslims into the arms of the self-described caliphate.

The Paris attacks of November 13 were ISIS’s ideological intervention into the European refugee crisis. Those attacks at a café, a nightclub, and outside the Stade de France (where Hollande was watching a game) were cheap, low-tech, but spectacularly horrific — and they provoked a massive and ugly reaction. A possibly doctored Syrian passport found near one Paris attack site was all that the European far right needed to conflate refugees and terrorism.

Europe’s Self-Mutilation

Thus far Europe’s reaction has mostly fit the ISIS plan: a state of emergency in France, rising xenophobic rhetoric, and a campaign of aggressive border militarization. Admittedly, hopeful counter examples also exist: thousands of rank-and-file citizens have mobilized to assist migrants; Germany’s Angela Merkel initially sidestepped conventions to usher in thousands of stranded refugees. But official xenophobia, rather than hospitality, appears to be leading.

Consider the French state of emergency. The French government banned a series of public demonstrations and has allowed police to launch warrantless searches requiring some administrative oversight but no judicial approval. When police find electronic equipment, like phones and laptops, they can copy all of the information.

The emergency law allows the state to place people who haven’t been tried or convicted under house arrest. All that’s needed is for police officials to deem a person’s behavior, including her associations and statements, “a threat to security or public order.” House arrest can last as long as police have “serious reason” to think a person’s conduct “threatens security or the public order.”

Police can also force un-tried and un-convicted people who they deem too radical to wear electronic tagging bracelets. The state can dissolve organizations and associations considered threats to public order. Members of these groups can be placed under house arrest. Violations of house arrests can lead to three years in prison. Violations of traffic bans or security zones can get a person six months in prison plus heavy fines.

France’s minister of interior may take “any measure” to block websites and social networks that are “inciting or glorifying terrorist attacks” immediately and without judicial control. People targeted by the police — put under house arrest, for example, or abused in the course of searches — have no right to challenge authorities or request the removal of emergency measures.

Shortly after the November attacks, the country established border controls at 132 checkpoints, increased its counterterrorism resources, and hired 9,500 more cops, judicial officers, and customs officials, and deployed 10,000 soldiers to support the 100,000 police and gendarmes already patrolling French streets.

As if that weren’t enough, now Hollande has proposed a constitutional amendment to make most of the state of emergency permanent. The amendment would also strip French citizenship from dual nationals convicted of terrorism offenses (even those born in France), criminalize visits to jihadist websites, and close radical mosques.

All of this justified in the name of fighting religious terrorism, yet who were some of the first people put under house arrest? Climate activists organizing protests to coincide with the COP21 meetings in Paris.

Democracy in France has taken a body blow. The ghost of Carl Schmitt smiles, and Giorgio Agamben’s overly abstract prose reads as prophecy.

Populist Right and Border Building

And what has Hollande’s outflanking of the xenophobic right won him? Nothing. During round one of the regional elections, held on December 6, the far-right National Front (FN) came in first, with almost 28 percent of the vote. The only thing that kept the FN from taking control of up to six regions was Hollande’s panicked order that his Socialist Party candidates withdraw from the second round, clearing the way for Nicolas Sarkozy’s Republicans.

In European countries that have not been attacked, the refugee influx is the “emergency” used to justify repression. Immigrants are cast as invaders.

For twenty years the European populist right has been gaining ground, and now they are near or at the top of the polls in Sweden, Denmark, the Netherlands, Hungary, Poland, and France. This is their moment, and border militarization is one of their primary methods.

The post–Cold War re-walling of Europe began in 2011 as the flow of refugees fleeing NATO bombs, jihadists, and failed and failing states began to surge. That year Greece began militarizing land-traversing portions of the Greek–Turkish border that do not follow the course of the Maritsa river. The Greek barrier is a double line of fifteen-foot-high, razor-wire-topped fencing; between the two fence lines are piled more coils of razor wire. Four-story watchtowers and thermal vision cameras look down upon the line. But Greece is an archipelago and series of peninsulas; it cannot be fenced off. And so, the migrants press in.

When the flow of refugees began to accelerate in 2015, aggressive border building broke out elsewhere across Europe. Hungary’s right-wing nationalist prime minister, Viktor Orban, led the way.

In 2014, as Hungary was facing economic crisis and seeking a €20 billion bailout and Orban was advocating nationalism and economic protectionism and attacking the EU as bullying overlords, the country was also becoming a major recipient or transit route for refugee flows. But a survey found that only 3 percent of Hungarians identified immigration as a top issue of concern. Instead, unemployment and general economic worries were at the forefront of their minds.

But Orban changed all that in spring 2015 when he declared his preference for an “illiberal state,” and then in late July sent prison laborers, soldiers, and jobless men in workfare programs to build a chain-link and razor-wire fence along the southern border with Serbia and Croatia. By August, Orban had ordered helicopters, mounted police, and dogs to patrol the line.

On September 15, Hungary closed its borders with Serbia (a month later it would shut the border with Croatia), and then it began mass arrests of migrants trying to sneak across. Tent cities formed on the Serbian side. As the stranded travelers chanted “UN” and “help us” and “Open! Open! Open!” Hungarian police answered with tear gas. Serbia angrily condemned Hungary for firing tear gas into another sovereign state. Other trapped migrants protested by sewing their lips shut, while in Romania, Prime Minister Victor Ponta lamented: “Fences, dogs, cops and guns — this looks like Europe in the 1930s.”

Globally, the liberal intelligentsia condemned Orban. But at home, his popularity surged. Soon it seemed that every other national leader east of Rome, Paris, and Berlin was building fences. Slovenia and Austria started fences. Even little Macedonia, using materials provided by Hungary, is building a militarized barrier on its border with Greece.

Bulgaria has also begun constructing a militarized border facing south towards Turkey. Journalist and NGOs now regularly document reports of Bulgarian border security beating, robbing, and unleashing dogs on migrants. The unlucky, uncounted thousands fall back into Greece and Turkey, where they remain stranded and hungry. Further away, on the Jordanian border, twelve thousand camp.

At sea, the EU border agency, Frontext, patrols. At is disposal is a growing arsenal of high-tech gear and a fleet of high-speed boats. Also on the water are racist vigilantes. Human Rights Watch documented eight separate incidents in which “armed men in speed boats wearing black clothes and ski masks” attacked and disabled boats full of migrants.

In December, the European Union announced a trebling of spending on frontier defense and creation of a new 1,500-strong force to respond to border emergencies. On offer to member states are: helicopters, airplanes, offshore patrol vessels, coastal patrol vessels, high-speed boats, off-road vehicles, motorcycles, night vision goggles, long-distance day goggles, thermal cameras, CO2 detection devices, motion sensors, digital fingerprinting, and enormous amounts of coiled razor wire.

Frontiers Creep In

Policing borders is never as contained on the edge of the national space as one might think. Aggressively policing borders means aggressively policing immigrants; it means policing the entire society according to the logic of the border. Border militarization has a way of infusing internal politics with xenophobia and repression. The vectors of this infection are police resources and political rhetoric.

Such speech justifies spot checks of dark-skinned people at train stations and detention centers. Many of those who do land in the EU territory find themselves effectively incarcerated. There are an estimated 224 detention camps scattered across the European Union able to hold more than 30,000 asylum-seekers and undocumented migrants. The smallest of these hold a few dozen, the largest, more than 1,000. They have emerged, like a previously sunken archipelago, as Europe’s liberalism recedes.

Few regulatory standards govern these places; even the best are usually ringed by razor wire, while the worst, such as those in Hungary, are filthy, unheated, and infested with bedbugs. Guards have been filmed throwing food into open pens of refugees. Ultimately, the total number of refugees detained in Europe is unknown because most states do not keep such statistics.

Outside of Rome, in a prison-like immigration detention center, guards wear riot gear and security cameras watch all. In desperation, detainees have rampaged and committed self-harm. In the state of North Rhine-Westphalia at least six guards, at a privately operated, for-profit refugee camp have been accused of abusing asylum-seekers.

To pay for such facilities, the Danish People’s Party has proposed that the Danish government seize cash and jewelry from refugees. The Nazis did the same to Jews headed for camps. The trade union of Danish police, to their credit, has officially refused to implement such a policy even if it becomes law.

German finance minister Wolfgang Schäuble seems to view the biggest migration crisis in Europe since World War II as an opportunity to further pressure Alexis Tspiras and Syriza — Greece is in fact turning into a giant, impoverished, holding pen for migrants. At the same time Schäuble is using the crisis to advance his agenda of a German-centered federal Europe. “We will have to spend a lot more funds for joint European defense initiatives,” said the minister. “Ultimately our aim must be a joint European army.”

Choosing The Future, Now

The predominant response to the current refugee influx is having deeply corrosive effects on democratic politics. First, there are immediate opportunity costs: every detention center constructed, or SWAT team trained, is something else that a society chose not to do. Secondly, investment in repression, like other forms of investment, determines future action. Too much investment in the repressive apparatus of policing creates a “path dependent” momentum away from an open society towards authoritarianism, and this shapes how societies will respond to future crisis.

I saw clearly the distorting effects of over-investment in repression when I covered the immediate aftermath of Hurricane Katrina in New Orleans. Just after the storm, scores of towns near the impacted area sent whatever they had. And what did they have after a generation-long war on drugs? They had cops. Cops and surplus military gear like armored personnel carriers, high-end assault rifles, and body armor.

They did not have well-trained civil defense teams, mobile medical centers, sufficient search and rescue teams, mobile kitchens, tents, cots, or diapers. Most of those cops who volunteered to go to New Orleans wanted to help save people. But all they had were the means of repression, so that is what they brought.

It would seem that Europe is at a turning point. The logic of emergency must be rejected. Civil liberties and tolerance cannot be sacrificed at the altar of security.

If it goes too far down the road toward the fortress, repression will be the only response it is capable of when much larger climate disruptions kick in. Carrying on with ever-rising greenhouse gas emissions and continued state hardening guarantees that the Schmidt/Agamben thesis will be unstoppable; then liberal democratic Europe, with all its terrible flaws and hypocrisies, will seem like a lost golden era.