By Gordon Hull
As I’ve suggested here before, one of the undertheorized aspects of biopower is the relation between biopower and the juridical power it supposedly supplants. Now, I think it’s a mistake to think that biopower simply replaces juridical power, at least not on Foucault’s considered view (for the sorts of reasons given in papers such as this one; nor do I think the relation should be read that way, whatever Foucault thought), but to say that is to then pose a problem concerning their interrelations.
This paper by Jack Balkin (law, Yale) offers some help in disentangling the various threads. Balkin’s concern is to outline the features of what he calls the “national surveillance state,” which he proposes is our current mode of governance, having taken over and transformed the governmental apparatus from the mid-century Welfare and National Security states. The former developed through the implementation of New Deal programs, and the latter through the Cold War. The two of them together, plus developments in computing power, enable the surveillance state, which is a “way of governing” that has developed over the last half of the twentieth-century (and thus long predates 9/11 and its aftermath):
“During the last part of the twentieth century, the United States began developing a new form of governance that features the collection, collation, and analysis of information about populations both in the United States and around the world. This new form of governance is the National Surveillance State” (3)
The rise of this form of governance is inevitable, he thinks, and has nothing to do with whatever state of emergency or exception (my term, not his: the reference is to Schmitt and Agamben, about whom more in a moment) may currently exist – and incorporates the Welfare state (as surveillance and data are used to administer benefits more efficiently, or discriminately) and the Security state (see: NSA and metadata). The problem Balkin poses is essentially whether juridical power – the “rule of law” (4) will have any relevance for such a state.
He begins by noting the blurring of law and information: “even today, providing basic social services – like welfare benefits – and protecting key rights – like rights against employment discrimination – are difficult, if not impossible, without extensive data collection and analysis” (4). The most obvious bulwark against the information state is the Fourth Amendment, but the blurring of law and information tends to push Fourth Amendment protections to the side. Indeed, as he reviews the evidence over the course of a couple of pages, it doesn’t look particularly promising. In particular, the Fourth Amendment provides no protection against information that one voluntarily discloses, even once. Since a lot of the concern about surveillance has to do with the processing of lawfully-obtained information (by government or private parties, to whom government outsources because those parties aren’t bound by the Fourth Amendment) narrow prohibitions on collection won’t get the job done.
One side topic that I won’t pursue here is whether the Fourth Amendment fails in general, or if it fails because the current line of cases, following the reasonable expectations test outlined in Katz, isn’t up to the job. After all, Katz is the case that establishes that privacy protection requires both that someone act like they expect their information to be private, and that this expectation be socially regarded as reasonable. The removal of all Fourth Amendment protection when someone discloses information once could thus be an artifact of the Katz line, not the Fourth Amendment itself. I mention this because the SCOTUS has been signaling that it wants a big Fourth Amendment technology case, and because technology has already made a mess of the related “plain view” doctrine (see Scalia’s opinion in Kyllo).
At any rate, for Balkin, the national surveillance state accordingly poses three main threats to freedom: (1) law enforcement will route around the Bill of Rights by attempting ex ante preventative strategies for social control, rather than the ex post strategies contemplated by the Bill of Rights; (2) law enforcement and social services will adopt the model; and (3) government will increasingly rely on privately gathered information because it is almost completely immune to Constitutional review. In addition, and more generally, the executive will use national security and other theories to shield its own activities from judicial scrutiny. Balkin’s paper is from 2008, but nothing that’s happened since then does anything other than underline the depth of these threats.
One way that biopower relates to juridical power, then, is that biopower tries to avoid juridical power by operating through mechanisms not contemplated in the establishment of juridical power in technologies like Constitutional law. In this way, it makes a space for itself alongside juridical power; one effect can be the marginalization of juridical law.
Another relation, one that would enable the rule of law, is to impose juridical oversight of the surveillance state:
“Oversight of executive branch officials may be the single most important goal in securing freedom in the National Surveillance State. Without appropriate checks and oversight mechanism, executive officials will too easily slide into the bad tendencies that characterize authoritarian information states. They will increase secrecy, avoid accountability, cover up mistakes, and confuse their interest with the public interest” (21).
There are a number of ways to get here. Separation of Powers doctrine provides one mechanism. For example, divided government makes legislative oversight more likely, since Congress is more likely to want to check the activities of the Executive, though the recent spectacle of Darrel Issa’s Oversight Committee suggests that oppositional oversight might offer more political theater (Benghazi!) than meaningful oversight. More interesting, I think, is Balkin’s proposal to impose law into the executive branch in the form of ombudsmen and other regulators housed within the Executive, and given statutory authority to make public reports. Balkin admits that efforts at this sort of oversight would face executive resistance, especially by presidents (that will be all of them!) who are attracted to theories of the so-called “unitary executive” or to state secrets more generally. Balkin also suggests that we need to think in terms of technological remedies, designing systems of surveillance such that they can themselves be analyzed to discover patterns of abuse.
Whether or not these efforts will succeed strikes me as an open question, and their scope is certainly limited, since legislatures and administrative agencies also like to collect data and use it to govern. They are also inclined to defer to the Executive when words like “national security” are at stake. Separation-of-powers remedies, in other words, can probably only go so far. Here I’m more interested in the relations between kinds of power that underlie Balkin’s proposals, and how he characterizes the risk of not doing something. He concludes that “unless legislatures and courts can devise effective procedures for inspecting and evaluating secret programs, the Presidency will become a law unto itself” (23-4). In other words, the surveillance capacity of the executive, without juridical oversight, will end up recreating sovereign power in the precise sense articulated by Schmitt: the ability to decide who is and is not subject to the law; by exempting itself from legislative and juridical oversight, such an executive would also be in the de facto position of creating a permanent state of exception in Agamben’s sense of the term (Judith Butler suggested that the indefinite detention policies of the Bush administration created such an “irruption” of sovereign power within biopower). So despite the fact that the biopolitical surveillance state emerged out of relatively anodyne developments in the welfare state, it is fully capable of blurring the boundaries between itself and old-fashioned sovereignty.