Uncertain Futures and the Problem of Constraining Emergency Powers Temporal Dimensions of Carl Schmitt's Theory of the State of Exception

In the past decade or so, a succession of crises has led governments across the globe to take refuge in their emergency powers. Examples include the use of emergency powers in the so-called ‘war on terror’ and the emergency measures taken in response to the recent financial crisis. As these examples suggest, it has proved to be difficult to effectively constrain executive uses of emergency powers and to prevent their abuse. Indeed, in several cases, uses of emergency powers have led to arbitrary exercises of power that undermined democracy and the rule of law. A notorious example is the practice of indefinite detention and enhanced interrogation of suspects of terrorism adopted by the United States and other countries after 9/11, which largely escaped judicial and parliamentary control. More recent examples include the way in which American and British intelligence agencies used their emergency powers to justify practices of enhanced surveillance as well as massive and systematic interception of phone and e-mail communication.