Juridico-Political Reflections on the 2009 Post-Election Situation in Iran.
Instantly following the announcement that incumbent president Mahmoud Ahmedinejad had won the presidential elections in Iran, the country combusted with angry voices protesting the legitimacy of the election. This resulted in protests that eventually numbered several million in Iran's capital Tehran alone.[1] Nearly immediately, as if already prepared to do so, the police forces, the Army of the Guardians of the Islamic Revolution, the Revolutionary Guard, and the parliamentary volunteer militia Basij-e Mostaz'afin were called in to combat the burgeoning protests, ostensibly for security reasons. The results were calamitous. The Iranian government confirmed the deaths of twenty people during the protests, while unconfirmed reports by dissidents claim there have been nearly 250 deaths in the 10 days preceding June 25 alone. Iranian authorities raided and closed universities in Tehran, blocked web sites, blocked cell phone transmissions and text messaging, and banned rallies. Hundreds of protesters were and continue to be held in undisclosed locations and were subjected to torture in some cases sexual abuse, something the Iranian Constitution explicitly forbids. Two virulent videos of a woman by the name of Neda Afgha-Soltan, violently gunned down in the streets of Tehran with no trace of justification, are taken as emblematic of the brutal reaction by the state towards the overall peaceful protests. The unconstitutional police brutality is interpreted as being endemic to the same self-legitimating authoritarianism that rigged the elections to maintain Ahmedinejad's presidency to begin with.
How might we come to understand these circumstances in Iran, and the effects that they will have on the regime's power and its future policy creation? As with any such historico-political event, a variety of different perspectives are needed, and a number of phenomena should be understood. An exploration of the various modes of social reproduction in Iran, from before the 1979 revolution to the present, is of course requisite. Relatedly, the construction of the various and rather divergent Iranian self-identities needs to be disassembled and historically situated. We need to map out the various distributions and allocations of power in both political and non-political actors, and of different interest groups. We should arrive at an understanding of the extent to which recent advances in the material conditions of the world’s (and therefore also Iran’s) communication capacities—by which are meant the proliferation of technologies like Twitter, social networking devices and websites, camera-phones, and networking relationships between bloggers world-wide, all of which gave shape to a real-time, unfiltered feed of the events utilized by Iranians and non-Iranians alike—influenced the structure of the 2009 post-election protests; and compare this not only to the protests leading up to the 1979 revolution, and the mid-20th century nationalism movement, but also generally to all other protests hitherto (where, for instance, a juxtaposition with the 1989 Tiananmen square protests would be fruitful).
The perspective that will be explored here will not directly take up any of these vital concerns. I will be examining the protests in Iran through an exclusively juridico-political optic. Specifically, what I am interested in doing in what follows is to understand the regime's brutal reaction to the event as the execution of power by a regime operating within a state of exception. To do so, I will draw upon the political philosophies of Walter Benjamin, Carl Schmitt, and Giorgio Agamben to come to conclusions about the meaning of such a reaction, to show how it can be historically contextualized in light of Iran's complicated history as a state, and how it can be located within the 1979 Constitution of the Islamic Republic of Iran. The hope is that doing so might offer insights that this perspective is singularly in the position to provide, and that can pave the way towards exploration of these different questions. The intent of these reflections are to illuminate upon this highly significant event in the state's history, as well as to underscore the practical currency of the models that will be used.
An initial approximation towards this inquiry into the structure of Iran's sovereignty might begin by considering Walter Benjamin's distinction between law-making and law-preserving legal violence in his 1920 essay 'Critique of Violence.'
In the context of violence that bears a relation towards the juridical order and the state, Benjamin takes law-making violence to be a performative activity, where a ceremony or sanctioning that consists of “recognizing the new conditions as a new 'law,' quite regardless of whether they need de facto any guarantee of their continuation,” takes place. (CV, 283) Law-making violence thusly acts on behalf of a not-yet-realized juridical order to declare its de jure manifestation—one thinks here of a declaration of a new legal constitution. Benjamin immediately explores the implications of this class of legal violence by noting the converse situation of the “great criminal,” who himself can perform law-making violence by confronting “the law with the threat of declaring a new law.” (CV, 283) Law-making violence therefore becomes legal after the fact—the will to power that succeeds in claiming power manifests a legal constitution that is “to-come,” made de jure by the peace ceremony.
Law-preserving violence, on the other hand, is enacted to defend or fortify an existing juridical order—“it consists in the use of violence as a means of legal ends.” (CV, 284) Law-preserving violence serves the legal constitution as an end, to ensure its continuing existence and power. Importantly, this means that law-preserving violence is restricted from going beyond the legal constitution—it is “subject to the restriction that it may not set itself new ends.” (CV, 286) Law-preserving violence serves the purpose of continuously reaffirming the legal constitution's power—as Matthew Abbott puts it in a recent piece on Benjamin's essay, “Law is fortified every time a judge's gavel comes down.” (BTL, 83)
One might immediately think of the police as the exemplary executor of this class of violence, insofar as the police enforces the legal constitution, but Benjamin is apt to problematize this association and thereby also problematize the entire distinction to begin with. For in the police “the separation of law-making and law-preserving violence is suspended,” (CV, 286, emphasis added) and as we shall see, the example of the police demonstrates the imbalance of the distinction as a whole. The police is at the service of the state by committing violence for legal ends, but bears the “simultaneous authority to decide these ends itself within wide limits (in the right of decree).” (CV, 286) The police is bequeathed this authority when the state “can no longer guarantee through the legal system the empirical ends that it desires at any price to attain.” (CV, 287) In other words, when the legal system fails to meet its own ends, the police intervenes “for security reasons” to maintain the state's power. However, this inevitably results in law-making, insofar as the police has to decide on cases “where no clear legal situation exists,” and thus is forced to enact law whose legitimation is to-come.
The police action and other measures undertaken by the state against the so-called “green revolution” can aptly be understood via Benjamin's above understanding of legal violence. The protests present themselves to the Iranian state as a threat to national security, to the very legitimacy of Ayatollah Khamenei’s regime. By referring to the constitutional legality of the Iranian elections[2], the police and the Basij were mobilized to maintain and to preserve the juridical order from the illegal forces that are intent on overthrowing it[3]. But after such an obvious case of electoral fraud performed to maintain ideological coherence amongst the various deposits of sovereign power in Iran, to all accounts this police activity reveals something “fishy.” Despite the ostensible legality of the policing—at least, of its mobilization against the protesters, not necessarily their actions which can be declared as false rumors by the use of the state media—it is abundantly clear that the state power is reacting to a rather fatal loss of legitimacy amongst the people of Iran. The regime is receiving a quite significant challenge from a “great criminal” in whose place we may name a number of the leading voices of the Iranian protests. These may claim Iranian sovereignty in their own act of law-making, utilizing the support of the growing throng of Iranian protesters as well as foreign forces who might view the new power as more pliable to their political agendas. In order to counteract this challenge, the Iranian state powers needed to alter the juridical order of Iran.[4] The state, via the policing forces, had to become even more authoritarian in ways where the legitimation is to-come. The state exerted harsh techniques of power onto its people to ensure their docility, so that they can no longer challenge the regime and the feigned democracy[5] that it can appeal to for legitimacy in the future.
The point may be furthered by locating this oscillation between the two poles of the creation and preservation of law into a different domain—viz., that of Giorgio Agamben's political philosophy. Agamben locates this danger of the existing juridical order losing the force of law to another that can potentially create law within his understanding of the state of exception. A state of exception can be identified as a state of affairs in which the military authority's wartime powers are extended into the civil sphere, and where the constitution (particularly those parts of the constitution that protect civil rights) is suspended, until conditions have returned to normalcy (SE, 5). Within a state of exception, actions that the executive power authorizes are not themselves endemic to law but instead bear the force of law. In his 2005 book State of Exception, Agamben writes:
...From a technical standpoint the specific contribution of the state of exception is less the confusion of powers [i.e. of the executive and legislative powers], which has been all too strongly existed upon, than it is the separation of 'force of law' from the law. It defines a 'state of the law' in which, on the one hand, the norm is in force (vige) but is not applied (it has no 'force' (forza)) and, on the other, acts that do not have the value (valore) of law acquire its 'force.' That is to say, in extreme situations 'force of law' floats as an indeterminate element that can be claimed both by the state authority (which acts as a commissarial dictatorship) and by a revolutionary organization (which acts as a sovereign dictatorship). The state of exception is an anomic space in which what is at stake is a force of law without law (which should therefore be written: force-of-law). (SE, 39, emphasis added)
In times of crisis where the power of the state is threatened, it becomes necessary for the state authority to begin to operate within a state of exception where its own legal doctrine (the constitution) is suspended, so that it can combat the opposing powers for the force-of-Agamben's analysis here is of course strongly reminiscent of Benjamin on the dangers of a potential force who may declare a new law vis-à-vis the law of the state authority. Agamben's technical and elaborate conceptualization of this notion of the state of exception could therefore broaden the above discussion of the Iranian protests. It seems prima facie possible to fit the discussion into Agamben's framework, providing that we address one caveat: is it possible to see the political situation opened up in June as a state of exception as described above?
We may begin by dissecting the complicated systems of power that make up the political structure of Iran's state authority in an effort to understand which deposits of power are relevant to our subject. Let us pose the following question as an approximation: who in Iran decides on the exception, and under what circumstances? Carl Schmitt famously wrote that sovereign is he who decides on the exception, and Agamben in his State of Exception has elegantly shown how the state of exception has historically been situated in juridical traditions. There, he claims that an examination of the Western states, for instance, “reveals a division...between orders that regulate the state of exception in the text of the constitution or by a law and those that prefer not to regulate the problem explicitly.” (SE, 9-10) Article 48 of the Weimar Constitution stipulated that the president, under certain circumstances, bore the powers to take "emergency measures" (including the promulgation of legislative decrees) without the prior consent of the Reichstag. In the United States, however, the first article of the Constitution creates an ambiguous dialectical conflict over the state of exception between Congress and the president. (cf. SE 20) Even more ambiguously, in 1914 the Federal Council in Switzerland was granted “the unlimited power to take all measures necessary to guarantee the security, integrity, and neutrality of Switzerland,” a point interpreted by Swiss jurists as contained in Article 2 of the Constitution which states: “the aim of the Confederation is to ensure the independence of the fatherland against the foreigner [and] to maintain internal tranquility and order.” These are several examples of how the state of exception has made its way into the juridical orders of European states; can we identify similar devices within the Iranian constitution?
We should briefly pause here and consider the fact that Agamben only discusses Western states in his survey of the state of exception, and whether that can detract from a similar analysis of a historically non-Western state that was never directly colonized by the West. Without delving extensively into the history of Persia's statehood, I think it first of all suffices to say that all states today, Western in origin or not, operate within the norms of sovereignty characteristic of the international system first introduced by the 1648 Treaty of Westphalia. Furthermore, since Iran's 1906 Constitutional Revolution which introduced the state's parliament, Iran has increasingly adopted many of the basic structural properties and relations of a Western Republic (culminating in the 1979 establishment of the Islamic Republic of Iran). Iran's present-day political system does not perfectly fit the rubric of the standard secularized Western republic, indicated by the very presence of the word 'Islamic' in the state's official title, and we have yet to investigate the nature of sovereignty in the Islamic Republic. The role that religion plays in the constitution, and the possibility that the constitution bears for declaring a state of exception, remains to be seen as well. But if the following analysis proves fruitful in reading the constitution of this non-Western Shi'a state, it would only strengthen Agamben's political philosophy by demonstrating its explanatory weight outside of an explicitly Western political context.
In the 1979 Constitution of the Islamic Republic of Iran (revised by Ayatollah Khomeini in 1989 to increase the political and decrease the religious nature of his station), we may find several Articles of interest. Article 68 is explicit, but insignificant: it allows the president to suspend elections in occupied or affected regions during wartime. Article 79 is more ambiguous. It reads: “The proclamation of martial law is forbidden. In case of war or emergency conditions comparable to war, the government has the right to impose temporarily certain necessary restrictions, with the agreement of the Islamic Consultative Assembly. In no case can such restrictions last for more than thirty days; if the need for them persists beyond this limit, the government must obtain new authorization for them from the Assembly.”[6] The temporary restrictions are not stipulated, and it is therefore difficult to say what this “light” version of martial law would entail when enacted. Such limited measures (the limits of which are not stipulated) were not a recourse taken by Iran during the protests, at any rate.
Despite the appearance of a possible incursion of the state of exception via this aforementioned Article, however, it is just as important to examine Articles that do not explicitly concern the state of exception but may be used to infer it, in the same vein as the aforementioned use of Article 2 of the Swiss Constitution. Consider the very beginning Articles of the Constitution. After the first Article, which declares that the form of government in Iran is an Islamic Republic, two Articles follow: one that states the foundational principles of the Iranian Islamic Republic, and another, in the service of the former, that articulates the “state goals” that the Iranian Islamic Republic is to direct all of its resources towards. These state goals range from the pursuit of free physical training to the creation of a favorable environment for the fostering of good moral values via faith. In a sense, the rest of the Iranian Constitution follows from these state goals as corollaries, and so it is important to examine this Article carefully. For, insofar as the rest of the Constitution is corollary to these initial Articles, other corollaries could be drawn from these state goals as well and could then be argued to be constitutional. This presents the potential situation where state leaders can plausibly argue that a state of affairs requires action that would contradict other Articles in the Constitution, insofar as said state of affairs strongly interferes with the upkeep of the state goals in Article 3.
Let us examine these initial Articles closely. The first state goal in Article 3 reads as follows:
(1) the creation of a favorable environment for the growth of moral virtues based on faith and piety and the struggle against all forms of vice and corruption;
All civil, penal financial, economic, administrative, cultural, military, political, and other laws and regulations must be based on Islamic criteria.
6) the exalted dignity and value of man, and his freedom coupled with responsibility before God; in which equity, justice, political, economic, social, and cultural independence, and national solidarity are secured by recourse to: a) continuous leadership of the holy persons, possessing necessary qualifications, exercised on the basis of the Koran and the Sunnah, upon all of whom be peace;
The Holy persons with the necessary qualifications to decide on Islamic issues are thus the very same persons that decide on the fostering of the “favorable environment for the growth of moral virtues based on faith,” and therefore ultimately the structure of the juridical order in Iran as well. Iran’s Vali faqih (Guardian, also referred to as Rahbar or Leader) is given the office of religious leadership in Iran during the absence of the Mahdi redeemer, giving him the final say on all Islamic issues (cf. Article 5). This means that, despite the fact that the powers of the Ayatollah elected as Iran’s Vali faqih are channeled in complicated ways (cf. Article 110), the Vali faqih has the de facto final say on all laws and regulations, insofar as all laws and regulations must be based on Islamic criteria (cf. Article 4). As JURIST's Iran correspondent, Mansour Jafarian, points out: “If the Leader violates the Constitution using Islamic issues for justification, no one is empowered to oppose him. A recent example of this scenario occurred when the Leader wrote a letter to the members of Majlis prohibiting them from passing a new act concerning press regulations. This order fell outside the scope of the leader's authority and encroached on Majlis' function, but no one, not even the President, could do anything.“[7]Importantly, this means that the function of the Vali faqih's position in the Iranian system can at times resemble a commissarial dictatorship. In his Dictatorship, Carl Schmitt distinguishes between a commissarial dictatorship, which has the aim of defending or affirming an existing constitution, and a sovereign dictatorship, which aims to found a new constitution. A commissarial dictatorship “suspends the constitution in concreto in order to protect its concrete existence.” (SE, 33).[8], [9] The permitted recourse to “Islamic issues” can legitimate any activity that the Vali faqih undertakes, providing that it is activity that is legitimately in coherence with the Shi'a faith. Hence the Vali faqih is legally forbidden from crossing the threshold from a commissarial dictatorship to a sovereign dictatorship. But the important point here is that the Vali faqih, by reference to Islamic issues, is theoretically permitted by the constitution of the Islamic Republic of Iran to open up a state of exception wherein the Vali faqih can commit law-preserving violence outside of what is constitutionally stipulated, in an effort to defend the constitution. The introducing Articles of the Constitution of the Islamic Republic of Iran effectively allows for a extra-juridical zone of legal anomie to be opened, albeit temporarily and ostensibly in consistency with the Shi'a faith, and in this sense the exception exists within the Iranian juridical system.
What can count as “Islamic issues?” Let us return again to the state goals expounded in Article 3. There we find the following state goal:
(5) the complete elimination of imperialism and the prevention of foreign influence;
But when they saw the complaints of some candidates, they realized that it could be an opportunity for them and used the opportunity to get a ride on the wave of the people. Their tone changed on Saturday and Sunday. Gradually, they saw a few popular protests, which were reportedly called by certain candidates. They started to remove their masks gradually and showed their true faces. Some foreign ministers and leaders of European states and America made some comments which revealed their true colors. The American president was quoted as saying that he expected the people of Iran to take to the streets. On the one hand, they write a letter to us to express their respect for the Islamic Republic and for re-establishment of ties and on the other hand they make these remarks. Which one of these remarks are we supposed to believe?
Inside the country, their agents were activated. Vandalism started. Sabotaging and setting fires on the streets started. Some shops were looted. They wanted to create chaos. Public security was violated. The violators are not the public or the supporters of the candidates. They are the ill-wishers, mercenaries and agents of the Western intelligence services and the Zionists.
When they saw the great popular movement on Election Day, they realized that a new chapter had been opened with regards to Iran and that they must come to terms with it. When some candidates began protesting the results, they felt that there was a change, so they jumped at the chance to ride this wave.[11]
Inside the country, their agents were activated. Vandalism started. Sabotaging and setting fires on the streets started. Some shops were looted. They wanted to create chaos. Public security was violated. The violators are not the public or the supporters of the candidates. They are the ill-wishers, mercenaries and agents of the Western intelligence services and the Zionists.
When they saw the great popular movement on Election Day, they realized that a new chapter had been opened with regards to Iran and that they must come to terms with it. When some candidates began protesting the results, they felt that there was a change, so they jumped at the chance to ride this wave.[11]
Khamenei’s words about the activation of foreign agents in Iran resulting in vandalism and sabotage is reminiscent of Operation Ajax, the CIA-sponsored 1953 coup d’etat resulting in the deposition of Iranian nationalist and anti-imperialist Prime Minister Mossadeq, and surely resonates strongly with the Iranian collective consciousness. The deference of apparent internal disorder towards foreign bodies is a clear strategy to maintain the appearance of order within the state. But given our analysis of the Iranian constitution, this speech act can also be read as having a juridical function.
There is a clear precedent in Iranian history, on the part of Shi'ite clerics and scholars, for considering resistance towards external interference an “Islamic Issue.” The very nature of the origins and the fundamental principles of the Shi'a faith lends itself towards a strong tendency to resist oppression and a stoic unwillingness to compromise with corruption. As early as the beginning struggles of Iranian resistance against Western economic rule in 1891, Sheik Shirazi, the country's leading religious figure, “endorsed a fatwa, or religious order, declaring that as long as foreigners controlled the tobacco industry, smoking would constitute defiance of the Twelfth Imam, 'may God hasten his appearance.'” (ATSM, 32) Furthermore,
In January 1951 [Iranian nationalists] called a rally to launch a mass-based campaign aimed at forcing the nationalization of Anglo-Iranian. A huge crowd turned out. The first speakers were from the National Front, and they were duly cheered as they laid out their case. That was just the beginning. After the politicians were finished, a succession of mullahs came to the podium to proclaim that every good Muslim had a sacred duty to support nationalization. The last of them read a fatwa asserting from his place in paradise, the Prophet Mohammad himself had condemned the Razmara government for selling Iran's birthright to infidel foreigners.” (ATSM, 77)
Ayatollah Abolqasem Kashani, a central figure in Iran's mid-20th century anti-imperialist movement who ironically was later used as a pawn in Operation Ajax, saw the anti-British campaign as a sacred duty, and later issued a fatwa ordering soldiers to join a pro-Mossadeq rebellion that he dubbed “a holy war against the imperialists.” (ATSM, 76, 140) And then in the Constitution of the Islamic Republic of Iran, even the very preamble embeds into the narrative of Iranian history the notion that the marked absence of Islamic ideology in the movements that resisted foreign interference resulted in their failure:After experiencing the anti-despotic constitutional movement and the anti-colonialist movement centered on the nationalization of the oil industry, the Muslim people of Iran learned from this costly experience that the obvious and fundamental reason for the failure of those movements was their lack of an ideological basis.
Both Khomeini and Khamenei have historically denounced what they consider to be the West’s interventionist policies in the Middle East, and used this as political stratagem in support of the Islamic Revolution. Ray Takeyh notes in Guardians of the Revolution thatKhomeini’s…vision [of extending his domestic revolutionary Islamism into a foreign policy] had to have an antagonist, a foil to define itself against. A caricatured concept of the West soon became the central pillar of his Islamist imagination. The Western powers were rapacious imperialists determined to exploit Iran’s wealth for their self-aggrandizement…One of the principal purposes of the Islamic revolution was to expose the manner in which the West sustained its exploitive presence through local proxies. (GR, 19)
Indeed, at the cusp of the revolution, Khomeini alleged in an interview granted on December 29, 1978 that “the measures taken so far to repress the movement of our people have all been the result of American intervention.” (IR, 322) And later, on September 12, 1980 Khomeini claimed that “America is the number-one enemy of the deprived and oppressed people of the world...By means of its hidden and treacherous agents, it sucks the blood of the defenseless people as if it alone, together with its satellites, had the right to live in this world.” (IR, 305) What is even more interesting than Khomeini’s denouncement of American interference, however, is his Shi’ite tendency to see the resistance towards such oppression as integral to Islam. In that same speech, he declares that “The enemies of Islam are unaware—or pretend to be unaware—of the capacity of Islam to destroy the foundations of oppression and to establish in its place a just system of administration.” (IR, 304)Although Khomeini’s death and the end of the Iraq-Iran war ushered in a period of pragmatic reform mostly identified with the Rafsanjani and Khatami presidencies, Khamenei has largely emulated his predecessor in terms of ideology. Karim Sadjadpour writes that “whether [Khamenei’s] audience is Iranian students or foreign dignitaries, or the topic of his speech is foreign policy or agriculture, he rarely misses an opportunity to invoke the professed virtues of the 1979 revolution—justice, independence, self-sufficiency, and Islam—and to express his deep disdain for Israel (‘the Zionist entity’) and opposition to the ambitions of the United States (‘global arrogance’).” (RK, 3) Khamenei once said that Iran prefers defeat to the victory that could be achieved through injustice or oppression.[12] Khamenei also follows Khomeini in the belief that the United States continues to exercise imperial ambitions through more covert channels:
For many years, the colonial countries oppressed other nations, brought dictators and military regimes to power and prevented national participation through whatever means possible. Today, they see that this method is no longer effective. Thus, they have found a new way of dominating other countries, i.e. dominating them by influencing their nations. This new method is what I recently referred to as postmodern colonialism....In the present postmodern colonial era, the arrogant powers are trying to influence other nations with the help of their agents, by spending money and through propaganda tactics and colorful enticements.[13]
What this brief foray illustrates, I hope, is a strong tendency for Iran’s Shi'ite leaders to view resistance against foreign interference and oppression as integral to the Islamic Revolution and its sustenance. Such resistance is therefore also integral to the aforementioned first state goal on creating a favorable environment for the growth of moral virtues based on faith and piety, and can therefore be properly understood as an “Islamic issue.” Let us thereby come full circle. When the Vali faqih Khamenei located the blame of the protests not with any of the leading internal voices but instead with foreign powers, this opened up the possibility of a constitutionally proctored zone of legal anomie, where the constitution no longer bears the force-of-
As the reflections on Benjamin's 'Critique of Violence' shows, there was a clear struggle of power between the regime and the “great criminal” that took place for which reason the regime opted to use the force that it did, but what we've just concluded is that there is a feigned juridical legality to this activity as well; that is, if Khamenei, as Grand Ayatollah and spiritual leader of Iran, is legitimately representing the faith of Shi'a in his handling of this “Islamic issue,” and did not in so doing cross the threshold from commissarial dictatorship to sovereign dictatorship. The Vali faqih is legally restricted from opening a state of exception unless it is in accordance with Shi'a, and while referring to foreign interference as a reason is constitutional, it was clear to Iranians and non-Iranians alike that it was a fraudulent excuse to justify crushing dissent and maintain power.[14] As we noted before when discussing Benjamin, in this sense the regime altered the legal order, by committing law-making violence (in the state of exception in which the regime temporarily operated to address the protests) by making it clear to protesters that their dissent towards the regime would not be tolerated. If the reasons that Khamenei appealed to for effectively suspending the constitution to deal with the protests were falsehoods, then Khamenei acted outside of the boundaries of Shi'a faith and indeed crossed the aforementioned threshold from a commissarial to a sovereign dictatorship.[15] It is in this context that the appeal made by former Iranian MPs to the Assembly of Experts to investigate if Khamenei is fit to rule, and the claim by Grand Ayatollah Hossein Montazeri that the ruling system had misused Islam in its crackdown against opposition supporters, can be understood.[16]
In August, Khamenei made the move of announcing that there was no proof that the leaders of the protests were in any way backed by foreign states. "I do not accuse the leaders of the recent incidents to be subordinate to the foreigners, like the United States and Britain, since this issue has not been proven for me,” read the statement on state television.[17] He also said that the judiciary should try the detainees of the protests based on strong evidence and they should not use "rumors" as the basis for their prosecution. How is this somewhat surprising and uncharacteristic statement to be understood in light of the above? It is at least certain that Khamenei was signaling to internal hard-liners that he would not actively be seeking prosecution of the protests leaders which include the two defeated presidential candidates, as a way of continuing to assign legitimacy to the democratic process and to silence residual protests and sour emotions. However, this statement could be read in the following ways as well. First, Khamenei understands that his regime has lost credibility domestically and internationally, and fears that the recognition of the aforementioned alterations to the legal order in Iran would have a corrosive effect on his regime's power. Hence, Khamenei needed to break with the anti-Western language that he and his predecessor have historically employed (and that Khamenei did employ in the Friday Sermons), as a means of feigning the appearance that the regime acted and will act fairly and constitutionally. But there is a further element to be explored: viz., that Khamenei here contradicted himself, insofar as he said in his Friday prayers that “the violators are not the public or the supporters of the candidates. They are the ill-wishers, mercenaries and agents of the Western intelligence services and the Zionists.” Insofar as we understood this proclamation in the Friday prayers to implicitly open up a state of exception to properly deal with the protests in whatever way, legal or not, was necessary, Khamenei's statement nearly three months later can thereby be read to effectively end the state of exception. There is therefore no need to recourse to “Islamic issues” by referencing foreign interference, and hence the trials—now domestic issues, mere political quibbles that have nothing to do with the Islamic normativity in Iran—can take place in a constitutional context. The state of exception addressing the protests that challenged the regime's power were implicitly opened by the Friday sermons and are now implicitly closed, so that the regime can give off the appearance of fairness in addressing the protest leaders, the “great criminals,” in a constitutional fashion. Meanwhile, the regime consistently continues to utilize strongly anti-Western rhetoric as legitimation for its policy formation[18], leaving this anomaly behind.
Obviously, there is much to consider in thinking about this event in Iran’s history that this brief piece cannot take up. The reader of Giorgio Agamben will, like me, be left wondering about the extent to which this instance of an implicit state of exception is in some way reflective of and endemic to the “willed” states of exception that Agamben identifies in Homo Sacer as the nomos of Western modernity. Inquiring into such a question would require a true excavation of the history of Iran (even before it was named 'Iran' by Reza Shah), of Shi’ism and its relationship to politics in Iran, of colonial influence, and a cluster of related issues. A project of such breadth cannot possibly be undertaken here, even in telegraphic form—I simply point to the potential conceptual wealth that it would yield. It also goes without saying that my historical and juridical furbishing has been slender and in need of further elaboration. My aim, however, was not to provide a thorough historical analysis of Iran’s politics, but simply to point to an instance in which a recent optic could prove fertile as an interpretive schema for even the most complicated of non-Western states. My hope is to have succeeded in this last point, and to have produced analysis on this landmark event in Iran’s history that is both interesting and useful.
Bibliography.
Abbot, Matthew. 'The Creature Before the Law: Notes on Walter Benjamin's Critique of Violence', in COLLOQUY text theory critique 18 (2008), pp. 80-96.
Agamben, Giorgio. Homo Sacer. USA: Stanford University Press, 1998. Denoted as HS.
------. State of Exception. USA: University of Chicago Press, 2005. Denoted as SE.
Benjamin, Walter. 'Critique of Violence', in Peter Demetz, ed. Reflections: Essays, Aphorisms, Autobiographical Writings, pp. 277-300. USA: Random House, Inc., 2007. Denoted as CV.
Khomeini, Imam. Islam and Revolution. USA: Columbia University Press, 2002. Denoted as IR.
Kinzer, Stephen. All The Shah's Men: An American Coup and the Roots of Middle East Terror. USA: John Wiley & Sons, Inc., 2003. Denoted as ATSM.
Sadjadpour, Karim. Reading Khamenei: The World View of Iran’s Most Powerful Leader. USA: Carnegie Endowment for International Peace, 2008. Denoted as RK.
Takeyh, Ray. Guardians of the Revolution: Iran and the World in the Age of the Ayatollahs. USA: Oxford University Press, 2009. Denoted as GR.
Footnotes.
[1] Whether the election results were in fact legitimate or not is not of direct relevance here and consequently will not be discussed, but I certainly share the opinion that there was an obvious case of rigging. For more information, see Juan Cole's entries since June 13 on his Informed Comment blog at http://www.juancole.com.
[2] See, for instance, Ayatollah Khamenei‘s June 19 Friday Prayer speech: “However, as I have said, and the Guardian Council has accepted, if some people have doubts then it should be dealt with through legal channels. Everything must be dealt strictly though legal channels. I will never accept illegal demands.“ (cf. http://www.presstv.com/classic/detail.aspx?id=98610§ionid=3510302)
[3] With the support of foreign states, a point that Iran’s leaders have never tired of repeating. The importance of this point cannot be overstated and will be expounded on later on.
[4] Here I interpret Benjamin's understanding of a juridical order, particularly in the context of law-making, as not necessarily being one of codes. A declaration of independence, resulting in a written constitution, serves as a clear example of law-making but ought not to deceive us into thinking that a change in a juridical order is synonymous with code-writing or altering. In Iran, the legal codes might not change at all in light of the protests. The juridical order, whether it be by re-interpreting the codes in order to serve the state's aims or by working around them, has still been altered in the sense that will be described.
[5] After all, all of the candidates for the election of the presidency, one of the few democratic activities of the state, were vetted by Khamenei himself.
[6] Cf. http://www.servat.unibe.ch/icl/ir00000_.html
[7] Cf. http://jurist.law.pitt.edu/world/iran.htm
[8] Here, I cite Agamben quoting Schmitt.
[9] Schmitt's distinction is of course topologically similar to the state powers and the “great criminal” that are in the struggle of using violence to preserve and make law, respectively, in Benjamin's essay. The difference is that, as with Agamben, this struggle is now located within the state of exception, whereas for Benjamin the law-preserving powers need not operate in a state where the constitution is suspended (and hence could not be properly considered as a dictatorship).
[10] Support for freedom fighters is even calcified in state goal 16.
[11] Cf. http://www.juancole.com/2009/06/supreme-leader-khameneis-friday-address.html
[12] Speech on birthday of Imam Hussein, September 21, 2002.
[13] Speech to residents of Qom, January 8, 2005.
[14] Cf. http://www.youtube.com/watch?v=8AIFxPHDn10
[15] Obviously, the fact that the very reason why the protests happened to begin with, viz. the rigging of an election that ushered in another four years of a president that is most closely aligned with Khamenei's own views, heavily lends itself to this conclusion.
[16] Cf. http://news.bbc.co.uk/2/hi/middle_east/8202235.stm
[17] Cf. http://english.aljazeera.net/news/middleeast/2009/08/200982784942708215.html
[18] Cf. for instance the decision to purge “Western influences” from the academic humanities curriculum: http://niacblog.wordpress.com/2009/09/06/iranian-authorities-to-replace-humanities-curricula-in-universities-with-islamic-materials/
bands whose music was just as forgettable. But, I was only 17 at the time and I didn't know what I was doing. And imperfect as it was, it served to showcase a number of up-and-coming bands of note such as Tyranny of Shaw, Adore Miridia, and What Wishes Can't Mend alongside more famous and renowned acts like Evergreen Terrace, Glasseater, and The Blackout Terror. The fame of the latter variety of bands allowed for the music of the lesser known bands to be heard at a much larger spectrum than just within the local Southeastern Florida scene (I still remember receiving a letter from the European label Goodlife Recordings, requesting 50 copies of the album). And so although I like to draw a dividing line between this, my first effort, and everything that succeeded it, it still runs in continuity with how Somberlain can be seen as now: a label that predominantly served to facilitate the growth of a burgeoning South Florida music scene.
Youth" bands, consisting of a small group of unusually talented musicians from Tyranny of Shaw, Adore Miridia and Tunes (it was named after Rick and Tony’s collective and distro from those days). Their bands, of which there have been a rather large number at this point, generally epitomized the scene and received the most acclaim. The Tunes 7", known as either 'untitled' or '3 song 7"', was a massive success and one of several pinnacles for the South Florida DIY hardcore scene. I sold over 100 copies at the release show at The Alley on February 7 of 2004, and the level of excitement for the band was near-ecstatic. A lot of show-goers at this time were very passionate for the new slew of local bands, as well as for The Alley where most of the action took place. The Tunes 7" is my favorite release that I put out—I think it perfectly captures the feel, the passion, and the DIY ethics of the time. 
punk act On The Strings Of in March of 2004 (SLR003), and another Tunes 7" split with Melbourne post-hardcore band Jesse Washington in May of 2004 (SLR004). I think the release of this split perfectly coincides with the de-localization of South Floridian DIY hardcore scene—the bands toured nationally more frequently, Andy from Robotic Empire took notice of Tyranny of Shaw (this was quite instrumental to the later formation and mass popularity of the band Torche), Floridian fanzines like The Setup begun to cover the scene, and folks from all over Florida and beyond traveled to South Florida for shows. Beside Jesse Washington, bands like Beneath Low Flying Planes from Melbourne, Jiyuna from Ft. Myers, and The Holy Mountain from Tampa begun to regularly play The Alley.
We booked bands from all over the world at The Alley, and the shows were always incredibly successful. Both the well-organized and nationally-attended 305 Fest and the official final Tyranny of Shaw and What Wishes Can’t Mend show were culminations of this phenomenon (both took place at The Alley). I, too, begun to think bigger with Somberlain by expanding my scope to the national level. Because Tunes gained a rather strong national post-hardcore following (both 7"s were sold out by the end of 2004), it allowed for Somberlain to pursue larger-scale plans. I started a large distro and booked a good number of shows for national touring bands. Bands from all over sent me their demos. 
the infamous California band Funeral Diner with the Japanese Evylock in 10" format (SLR005). This was to be my most professional release, by far—I had artist Daniel Danger design the artwork, and had professional covers pressed. We even pressed professional four-color art prints of the art. The record sold out within a few months only. From this point, I carved out all sorts of plans to turn Somberlain into a serious, professional label. Plans to release records by bands like Forensics, Black Castle, Dance Danse el Capitan!, I Have Dreams, Cowboys Became Folk Heroes, and Anakrid (ex-In/Humanity) were slated. 
saturation of shows, the closing of The Alley, and the breaking up of Tunes, Adore Miridia, and Tyranny of Shaw, the local scene slowed down drastically. On the label front, most of my plans failed to culminate, the worst of which being a Towers / Take Down Your Art 9" (SLR006) for which one of the bands broke up and the pressing plant, Erika, royally screwed up the production and other parties involved with the project delaying the release indefinitely (I'm still waiting on the records, although we did release a cassette version that sold out quickly). And at that, I transferred to a very intensive university, necessitating a move away from South Florida and leaving me with little time to pursue the label at all. 
these scenes, had passed on, and the next (current at the time of writing) group of bands that I think warrants being called a “second wave” of this particular South Florida scene was to be generally more brutal, very fast (grindcore, deathgrind, thrash) or very slow (sludge, doom), and with less of a positive, passionate outlook. The majority of the local post-hardcore / DIY punk bands abandoned ship and many of the musicians formed sludge, grindcore, doom, and noise projects. The Landmine Youth group formed or joined bands that are now internationally known acts, such as Torche, Capsule, Kylesa, Shitstorm, Mehkago N.T., Maruta, Monarcs, and The Goslings. Shitstorm, for their part, played blistering fast grindcore, and the 7” was split with sludge-doom legends Sloth. The 7" sold out quickly, and that was the end of Somberlain, a label which I see as perfectly coinciding with and endemic to the beginning and ending of a page in the history of South Florida music.
