State of exception
By Enrique Vázquez Quintana, MD
What is a “state of exception”? To begin, very few lawyers are familiar with the term and, so, most jurists keep the concept at arm’s length: there is a deafening silence about the very real state of exception. Marginally aware of – or totally disinterested in – the topic, they are ill-prepared to educate the public on the importance of an issue that affects our country as well as the rest of the US territories.* As opposed to dictatorial regimes, democracies are historically founded on the concept of three separate but equal powers: executive, legislative and judicial. Democracies, particularly the United States of America, insist on harking the separation of powers as the ultimate mechanism for protecting the rights of their citizens and blocking the rise of an executive dictatorship.
The concept of “State of Exception” was developed by German lawyer Carl Schmitt, who described a strategy whereby constitutional order is suspended by reason of an emergency or a crisis. In such a circumstance, the executive power would prevail over the others and all constitutional guarantees would be suspended.
Article IX of the Treaty of Paris, signed on December 10, 1898, awarded the US Congress plenary powers over the territory of Puerto Rico. The story revolves around a war and the spoils of that war. By the end of the Spanish-American War, the United States had attained imperial status based on its military power; however, it had yet to possess colonies. As the expansion toward the west advanced, the acquired territories were faced with one of two options: they were either awarded independence or were admitted to the Union as a state. In 1899, a Harvard lawyer by the name of Abbott Lawrence Lowell published an article in the Harvard Law Review titled “The Status of Our New Possessions.” The piece proposed a third option which he labeled as “nonincorporated territory.” The US Supreme Court hurriedly adopted this new classification and ruled in the first of 23 Insular Cases – Downes v Bidwell in 1901 – that Puerto Rico was, in fact, a nonincorporated territory, affirming that “Puerto Rico belongs to but is not a part of the United States.” In a single ruling, the separation of powers was virtually erased, mocked by the highest court of the land. The three branches of government were fused into what is known as a “state of exception.” The Supreme Court (judicial power), Congress (legislative power) and the President (executive power) coalesced to allow the US to become a colony-owning empire, contrary to the earlier policy of either incorporating or releasing the territories.
Subsequent rulings on the Insular Cases – no. 2 through no. 23 of 1922 – are in open violation of the US Constitution. In 1820, Chief Justice John Marshall, in the case of Loughborough v Blake, found that the Constitution applied to the United States in its entirety, including the District of Columbia and the territories. Thirty-six years later (1856), Judge Roger R. Taney, in Dred Scott v Sanford, declared that the US government did not have the power to acquire territories and keep them permanently as colonies. Decisions in the Insular Cases were contrary to the cited rulings of 1820 and 1856 and were crafted to reinforce the empire, placing the US at the service of colonialism. It is common belief that the US Constitution follows the US flag everywhere, including to US embassies near and far around the globe. Nevertheless, a flagrant exception to the rule is the colony of Puerto Rico, where the Constitution does not fully apply. Ever since the first Insular Case, Puerto Rico has been governed by a State of Exception decreed by the judicial power.
The Foraker Act of 1900 did little to alter our colonial status, and neither did American citizenship awarded Puerto Ricans in 1917. Our reality was not transformed by the creation in 1952 of the Commonwealth of Puerto Rico, which was a piece of fiction at best, a hoax at worst. Vicente Géigel Polanco, Puerto Rico’s Attorney General under Governor Luis Muñoz Marin, in his 1969 book titled The Farce of the Commonwealth of Puerto Rico, denounced the process, referencing congressional records of the time to denounce that Puerto Rico was neither free nor associated: neither a state nor a commonwealth; merely a colony of the United States of America.
More stunning and relevant was the US Supreme Court’s 2016 ruling in Sánchez Valle v The Commonwealth of Puerto Rico, which states that Puerto Rico is a nonincorporated territory (back to the euphemism for “colony”) devoid of any real sovereignty. In truth, that sovereignty belongs strictly to the federal government, the states and the Native Indians. Barely a week later, Congress passed, and President Obama signed, the PROMESA ACT, once again authenticating the State of Exception for Puerto Rico. This is the perfect prototype of the currently touted concept of “collusion”: the three constitutional powers of the US acting in accordance among themselves to retain absolute domain over Puerto Rico.
In yet another textbook case, it is mind boggling that the US, the beacon of democracy, could still maintain a jail for detainees accused of terrorism (or “enemy combatants”) in Guantánamo Bay Naval Base, a plot of land permanently leased by the US in southeastern Cuba. The US flag waves over Guantánamo, and there, too, the Constitution does not fully apply. Imagine being jailed in the middle of nowhere without a semblance of constitutional safeguards. For lack of these protections, these prisoners are tortured and waterboarded to elicit their confessions. Guantánamo is another example of a State of Exception.
In Boumediene v Bush (2008), Lakhder Boumediene, a naturalized citizen of Bosnia and Herzegovina jailed at the Guantánamo detention center, filed a writ of Habeas Corpus for the court to determine illegal confinement based on Article 1, Section 9 of the Constitution of the United States of America. The court ruled 5-4 in his favor, arguing – as in the Insular Cases – that the U. S. has total jurisdiction and holds absolute sovereignty over its territory, in this case the Guantánamo Bay Naval Base. However, the court also affirmed that the fundamental right to Habeas Corpus extends to Guantánamo prisoners. This case illustrates the basic fact that the Constitution bestows on Congress and the President the power to acquire and govern its territories, yet not to decide when and where the term applies. Investing political players (executive and legislative) with the power to decide when the Constitution applies and when not, would lead to a regime in which politicians – not the highest court – could ultimately interpret the law and make decisions resulting in serious consequences.
On November 20, 2008, Boumidiene was liberated along with six other detainees.
President Obama’s 2008 campaign platform harped the closing of the Guantánamo Base detention center, where prisoners are not labeled as “political” for pure expediency: the Geneva Treaty guarantees political prisoners a series of protections that the US was unwilling to uphold. On October 20, 2009, President Obama amended the Military Commission Law of 2006, thus providing new rules concerning trials and the rights of Guantanamo Bay detainees. Difficulty in relocating prisoners was the main reason cited for eventually maintaining the detainment center.
President Donald Trump, in his first State of the Union message (January 31, 2018), announced that Guantánamo Base – symbol of torture and human rights violations – will remain open and will increase the number of detainees. It is apparent that the US has historically trampled on the rights of citizens around the world.
To resolve our nonincorporated territory status, all three branches of our government – executive, legislative and judicial – must demand that the Supreme Court, Congress, and the President of the United States retry the Insular cases which have dominated public policy on Puerto Rico for 117 years, on the grounds of fabricating an illicit State of Exception that is demeaning to our country. Once this colonial status is revoked, Puerto Rico will exercise the right to determine its permanent status. To date, not one of Puerto Rico’s status-related plebiscites has been endorsed by Congress! Section 402 of the PROMESA ACT of 2016 asserts Puerto Rico’s right to freely decide its political future and states that if the government of Puerto Rico refuses to act on the matter, a citizen or a group of citizens may petition the San Juan District Court on their own behalf. This remains to be seen.
The unconstitutionality of the Insular Cases has never been challenged in federal court, even though the United States is in open violation of the International Covenant on Civil and Political Rights (ICCPR). ICCPR is a multilateral treaty adopted by the United Nations General Assembly on December 19, 1966, and in force since March 23, 1976 in accordance with Article 49 of the covenant, signed by the U.S on October 5, 1977 and ratified in 1992. According to Judge Juan Torruella – 32 years in the US Court of Appeals for the First Circuit in Boston, MA – the US has disputed those rights, claiming that the agreement does not provide for auto-execution, rather that it requires domestic legislation by the country’s government. Judge Torruella adds that this deception surpasses the 1953 fraud committed before the United Nations, when US delegates persuaded the members of the organization to ratify that Puerto Rico was no longer a colony of the United States knowing too well that it was a falsehood. In truth, for over a century we have been living a fraud, a full-blown plan by the United States to manipulate and dominate Puerto Rico for several reasons that can be analyzed in a future article.
In a hopeful piece of news, however, in June 2016 the U.N. Special Committee on Decolonization approved a text calling for the United States Government to expedite a self-determination process for Puerto Rico. Once again, Puerto Rico awaits the ultimate act of justice.
To paraphrase a prestigious Puerto Rican jurist: “That which is adopted or tolerated as exceptional, will slowly become normal.” And in the words of Giorgio Agamben, “the state possessing sovereignty is able to eliminate the state of exception.”
*US territories (16), 11 non-inhabited: American Samoa, Bajo Nuevo Bank, Baker Island, Howland Island, Guam, Jarvis Island, Johnston Atoll, Kingman Reef, Midway Islands, Navassa Island, Northern Mariana Islands, Palmyra Atoll (incorporated), Puerto Rico, Serranilla Bank, US Virgin Islands, Wake Island.
State of Exception. Giorgio Agamben, 2004.
Colonialismo, Estado de Excepción y Resistencia. José M. Atiles Osoria, 2008.
La crisis, los derechos y el espacio público. Lcdo. Efrén Rivera Ramos, 2010.
Why Puerto Rico does not need further experimentation with its future: A reply to the notion of “Territorial Federalism.” Hon. Judge Juan Torruella, Jan. 26, 2018.
US Reservations to the International Covenant on Civil and Political Rights: Credibility Maximization and Global Influence. https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1018&context=njihr