Monday, February 6, 2012

Guantanamo at 10: a Schmittian notion of executive power, part 2

“Shouldn't lawyers and judges be especially sensitive to the juristic monstrosity of Nazi legislation? After all, instead of the ‘rule of law, not of men,’ an ideal that dates back to Plato and Aristotle, the fundamental principle of Nazi rule was the so-called ‘Leadership Principle,’ summarized in the slogan ‘The Führer's words have the force of law.’[Führerworte haben Gesetzes Kraft]. Don't jurists above all others have a professional duty to maintain the rule of law? The capitulation of the German profession, and especially the German judges, led to a great deal of soul-searching by jurists at a loss for an explanation. Were the German judges cowards, or opportunists, or so fanatical that they were willing to sacrifice their professional ideals for the Nazi cause? That was the question.” - from Westlaw: Brooklyn Law Review, Winter 1995 Symposium *1121 NAZIS IN THE COURTROOM: LESSONS FROM THE CONDUCT OF LAWYERS AND JUDGES UNDER THE LAWS OF THE THIRD REICH AND VICHY, FRANCE (h/t Todd Pierce)

Correction to part 1 here: Schmitt recommended Strauss for a Fulbright fellowship in 1932 which allowed Strauss to emigrate to Paris. He was not, as I said mistakenly, on Strauss’s doctoral committee (h/t Peter Minowitz).

In the 1933 letter to Loewith, Strauss’s phrase meskine Unwesen about the greedy nonentity (referring to putative modern reality, a deterioration of the slave morality of the Jews through Christianity, democracy, socialism and communism into the last men) that must be fought is an indication that Strauss was, though Jewish, pro-Nazi both in the 1930s and quite possibly throughout. In 1934, as William Altman has emphasized in his admirable book, The German Stranger, decoding Strauss’s own hidden or exoteric writing and probite (he never lies explicitly about what he thinks, just says things that will be taken by sleepy readers in the opposite sense from the one he means – for self-explanation, see Leo Strauss, Persecution and the Art of Writing). Jacob Klein, also a Jew who was a reactionary Nietzschean and briefly pro-Nazi, wrote to Strauss on June 19-20, 1934 - more than a year after Hitler came to power - about how he had been mistaken in thinking that the National Revolution was the antidote to the last men:

“It’s necessary for me to correct an error I’ve made repeatedly; it concerns National-Socialism…”

“I previously believed that it constituted part of that general and necessary movement that, having emerged from ‘liberalism,’ had at the same time had a dialectical [aufhebende] tendency to abolish it. In the framework of this movement, anti-Semitism also had its own place and an increasingly well-defined basis. All things considered, however, it constituted only one—though hardly adventitious—sideshow [Nebenerscheinung]. I expressed this thought, in a letter to you earlier this year. But this is simply not true.”

“National Socialism has basically only one principle: its anti-Semitism. Everything else is basically not national-socialist: it is entirely external imitation of Russian and Italian matters, beginning with the head-gear of the Hitler Youth and ending with certain senseless propositions relevant to Germany that have nothing whatsoever to do with what is actually happening.” (Strauss, Gesammelte Schriften, 3: 512-13)

On June 23, 1934, Strauss replied: ““Now to your general remarks, which surprised—not to say repelled—me through their defeatist tone. That one learns from events is good—but it does not follow that one can say what’s correct through them. And that is what you’re doing, it seems to me.” (Strauss, GS 3: 516-17. See also my “Shadings: “they consider me a Nazi here” here)

Strauss had written Remarks (Anmerkungen) on Schmitt’s Concept of the Political (1932) which strengthened its character as a reactionary document. Schmitt emphasized that politics was about having a great enemy. Contra Aristotle and like Heidegger, for both Strauss and Schmitt, having “friends” did not evoke, internally, a common good. And in Schmitt’s 1923 Political Theology as I noted in the first part of this post here, Schmitt began from the sentence: “he is sovereign who makes the decision in the state of the exception” (in today's idiom, "commander-in-chief" or "executive power" during a state of emergency).

As a Pentagon-appointed defense lawyer for Guantanamo prisoners (a Judge Advocate General attorney), Todd Pierce has had a striking view of the erosion of the rule of law in America; his words below about it are especially worth taking in. As he rightly emphasizes against Posner and Vermeule, during the Weimar Republic, Schmitt was not yet a Nazi though he may well have been pro-Nazi. Professors who avowed affection for the Nazis were fired, a form of persecution that Strauss emphasizes, on behalf of hidden writing, his own in Remarks and Schmitt’s, in Persecution and the Art of Writing. In the last paragraph of Remarks, Strauss says: "The critique introduced by Schmitt against liberalism can therefore be completed only if one succeeds in gaining a horizon beyond liberalism." (See Heinrich Meier: Carl Schmitt and Leo Strauss, p. 119). The exoteric or surface meaning, attributed by his followers anachronistically in terms of Strauss's shift during World War II toward the ancients, is: classical political philosophy. The other meaning, much more obvious in terms of 1932 as well as Strauss's critique of Schmitt from the Right, is: Nazism.

Toward the end of Weimar, Schmitt allied with the authoritarian general Kurt von Schleicher, a proto-Hosni Mubarak, as Pierce suggests, rather than a Hitler. But Schmitt became the leading Nazi lawyer, the Prussian Reichskanzler, and at a legal conference in 1936 fought for each Jew in the legal professor to be listed in the literature as the Jew so and so, handed out yellow stars in the legal profession, as an ingredient of what became the genocide (cf. Heinrich Meier, The Lesson of Carl Schmitt, ch. 4 , who delphically says that Schmitt’s behavior was “ugly,” but not wrong).

But Schmitt was for reactionary and tyrannical rule all the way through (for military dictatorship through the application of Article 48 of the Weimar constitution). He was a famous lawyer who opposed the law (an odd Catholic who recommended the miracle of Christ as opposed to the “rigid” law of the Jews) – see my "Politics and the God on Schmitt and Strauss" here and here - and a fascist before he became a Nazi.

In his Remarks, Strauss pointed out that Schmitt admired Hobbes for his emphasis on the state of nature as a state of war, but in fact, Hobbes, Strauss says cleverly, in a pre-bourgeois world, had founded the “liberalism” that both Schmitt and Strauss detested. Hobbes wanted to pacify humans (each of us, he begins, seeks to avoid violent death) by supporting a Leviathan. Hobbes did not realize that preserving the physical security of each is a common good (he helped generate this mistake in Schmitt and Strauss). Such “liberalism,” on Strauss’s view, did not see sacrifice of humans in war – and war itself, governed by no common good or ethics, the mere struggle – as the only serious antidote to the corruption and timidity of modern life. A reactionary Catholic, Schmitt did not like Nietzsche, but his description of modern life, made decadent by original sin from which men are saved only in war, coincides with Nietzsche and Strauss on the last men.

Hobbes sought peace; Schmitt and Strauss sought belligerence. In his Wall Street Journal article advocating tyrannical executive power here, Harvey Mansfield echoes the latter pair consciously. In The Executive Unbound: After the Madisonian Republic, Posner and Vermeule cheer on the atmosphere of commander in chief power and celebrate its origins in Carl Schmitt (as I noted in the first essay, Harvey chides them for letting the "esoteric" cat out of the bag….). This atmosphere was made central to the Bush administration and to American political life by political Straussians as well as other neocons like Posner and Vermeuele.

A further contributor to this intellectually and morally corrupt political environment is John Yoo’s "War Powers Belong to the President" written for the American Bar Association below, which Todd Pierce sent on to me. Yoo is a war criminal. He gave corrupt advice about the law to Bush and Cheney – deriding the Geneva conventions to which the US is obligated both as a signer and, domestically, by Article 6, section 2, the Supremacy clause of the Constitution which makes treaties signed by the United States the highest law of the land – in order to sanction the torture that was already ongoing. Yoo needs Obama’s slippage on this matter – and his failure to allow any investigation of the torture (a violation of Article 7, section 1 of the Convention against torture, signed by President Reagan and ratified by Congress – see here) – as a get out of jail free pass, to be. He seeks to make an ostensible “recognition of necessity” the law of the land. It is not (see the comments by Louis Fisher below). Yoo also seeks to make the worst aspects of Machiavelli American law (this distantly reflects the fascination of Straussians for the worst aspects in Machiavelli – see Thoughts of Machiavelli, Mansfield, Machiavelli's New Modes and Orders and Machiavelli's Virtue, not to mention a translation of The Prince and Carnes Lord, an advisor to former Secretary of State Alexander Haig, who wrote The Modern Prince: What Leaders Need to Know Now). Yoo positively chortles:

“In ordering the U.S. Air Force to attack Libyan targets on the ground and impose a no-fly zone in the air, President Barack Obama sent the U.S. military into combat without Congress’ blessing. This was not always President Obama’s view. Anti-war Democrats vigorously challenged President George W. Bush’s conduct of the wars in Afghanistan and Iraq by claiming that he had violated Congress’ right to declare war. As a presidential candidate in 2007, Obama once agreed: “The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”

"Fast-forward four years. In announcing the intervention in Libya, Mr. Obama told Congress that he was acting 'pursuant to my constitutional authority to conduct U.S. foreign relations and as commander in chief and chief executive.' As the Libyan war reached its 60th day at the end of May 2011, President Obama sent a letter to Congress that reported on progress but did not seek any authorization."

"This time, President Obama has the Constitution about right.”

What Yoo does is to use Obama’s executive highhandedness in Libya – his disregard of the War Powers Act and of Congress – to claim obtusely that there is constitutional authority for this. But his real aim is just to wriggle out legally of being a torturer.*

By licensing Yoo, the American Bar Association makes the practice of torture – a matter of war crimes – merely something to debate. OJ Simpson should have tried that defense at his trial – really it’s just a matter of disagreement whether murder is bad. After all, some “lawyers” say no.

The American Political Science Association also perfumed Yoo – see the protest here – and Berkeley Law School (would they have a known murderer or rapist on the faculty, not at minimum suspended and investigated even one not yet apprehended by the law?). It is the the sanctification of these crimes by powerful institutions which gives Yoo’s - and others - criminality its continuing life…

Peter Minowitz has written to me that Yoo’s claim that the Geneva Convention was quaint was misrepresented by Todd Pierce and Scott Horton. On Peter’s view, Yoo was just saying some provisions were “quaint.” But this is not seeing the forest for the trees. What Yoo says in the memo as a matter for Bush and Cheney to act on, which Peter also sent:

"As you [Bush] have said, the war against terrorism is a new kind of war. It is not the traditional clash between nations adhering to the laws of war that formed the backdrop for GPW [the Geneva Conventions on Prisoners of War]. The nature of the new war places a high premium on other factors, such as the ability to quickly obtain information from captured terrorists [my emphasis] and their sponsors in order to avoid further atrocities against American civilians, and the need to try terrorists for war crimes such as wantonly killing civilians [an idle thought given the torture Yoo was sanctioning which made the rule of law, barring torture, inapplicable – one might even say “quaint”]. In my judgment, this new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners [!!] and renders quaint some of its provisions requiring that captured enemy be afforded such things as commissary privileges, scrip (i.e., advances of monthly pay), athletic uniforms, and scientific instruments."

The operative notion is this paragraph is “the ability to quickly obtain information from captured terrorists.” Beyond this, what Yoo says is that “the new paradigm renders obsolete Geneva’s strict limitation on questioning of prisoners…” Quaint is just a repetition or embroidery, in this context, of obsolete…

Under Vice President Cheney, the US government was already torturing prisoners (and sometimes murdering them in American custody as well – 100 in the course of interrogation by Pentagon statistics – see Taxi to the Dark Side). Yoo was asked by Cheney to provide a legal cover for this and did. The spirit as well as the letter of Geneva is to prevent torture. What Yoo did was to attack the Geneva Conventions as “obsolete” to sanction already on-going torture. His use of the word “quaint” is but a rhetorical attempt to exempt himself and the Bush administration from future investigations about torture. The disparaging tone is, in intent, in service of war crimes…

To attack “Straussophobia” and perhaps "Yoo-ophobia," Peter – who does oppose torture - reads this passage in a tone-deaf way. But one has to work at it.

I turn now to the links between Strauss’s instructions on the need for authoritarianism to his politically active students who conveyed these ideas into the Republican Party as well as to some Democrats (Scoop Jackson, Daniel Moynihan) and to the neo-cons so that Vermeule, Posner, Yoo, Mansfield et al may burble them.

Herbert Storing was a fine student of Strauss (his 7 volume edition of the Anti-Federalist Papers is a gem). He admired Frederick Douglass and even Malcolm X, though he was a skeptic of King and the civil rights movement (allegedly not “manly” enough). Storing defended executive power and taught this to Gary Schmitt, a Straussian political activist in the intelligence establishment in Washington and one of three principals of the Project for a New American Century (the other two are Bill Kristol and Bob Kagan).

Michael Malbin, a student mainly of Walter Berns – also an advocate to this day of commander in chief power in Washington - see Berns’s 2009 "Interrogations and Presidential Power" in the Wall Street Journal here - and secondarily of Strauss, wrote the Iran-Contra Minority Report for then Congressional leader Dick Cheney, quoting Straussian arguments about executive power from Gary Schmitt (Schmitt was a protégé of Storing’s).** Interestingly, Cheney elides a Straussian (mis)interpretation of the law, featured in The Iran-Contra Minority Report, with the law.

Strauss’s closest student and political advisee/agent, Robert Goldwin, become a confidante of Rumsfeld and Cheney (Goldwin's words), in the Gerald Ford papers in Ann Arbor. Bob brought an overemphasis on the notion of royal prerogative from John Locke directly to Cheney who has sometimes referred to prerogative or executive power alternately to describe the doctrine that he projected into Washington (h/t Charles Butterworth who alerted me to Goldwin; Goldwin was unknown to Schmitt and a a later generation of less powerful neocons). Goldwin died in 2009 and at his memorial on January 15, 2010, Rumsfeld praised his enormous role – a “one man think-tank” - in these circles, his centrality in strengthening “conservative” – read reactionary or authoritarian ideology - down to advising on the imperial occupation of Iraq in 2003...

“Few individuals had as much influence on the thinking of conservative American policy makers and yet were as little known to the public as Bob Goldwin. Bob was a man of sweeping, ambitious ideas, but personal modesty and quiet competence. He had the rare talent of asking the right questions at the right time, and gently nudging discussions toward the `eureka' moment. Every conversation with Bob left you with a perspective you hadn’t considered before.”

“Bob Goldwin was the Ford administration's one-man think tank, its intellectual compass, and bridge to a new conservatism--a conservatism that was unashamed to be conservative.”

“Bob and I had known each other since his days at the University of Chicago. In 1972, I lured away my friend from his position as dean of St. John's College in Annapolis, Maryland to join me at NATO, where I served as U.S. ambassador. Two years later, I was called back to Washington to help the newly sworn-in President Gerald Ford, and one of the first people I recruited to the White House staff was Bob. Bob led seminars for President Ford in the White House solarium, bringing in some of the finest minds in America, not least his own, to discuss the toughest issues of the time."

"Bob Goldwin was the Ford administration's one-man think tank, its intellectual compass, and bridge to a new conservatism--a conservatism that was unashamed to be conservative. He helped provide the intellectual underpinning that convinced many Republicans that they didn't have to apologize when they stood for lower taxes or suggested that our strategy against the Soviet Union ought not be placation.”

“The ideas he corralled and the causes he championed--from opposing the creation of a new international bureaucracy with the Law of the Seas Treaty in 1982 to offering wise counsel on a new Iraqi constitution as recently as 2003--were without match. Bob was a valuable counselor and a dear friend."

"I considered myself one of his many students, and I know I will miss him. So too will America, but perhaps without fully realizing what is being missed.” See here.

As I discovered in doing research in the Strauss papers in Regenstein Library (the first non-Straussian admitted there by Strauss's second literary executor, Nathan Tarcov in 2008), I found a number of imperious althouth courteous letters from Strauss to Schmitt. For example, in the process of encouraging Goldwin to enlist James Kilpatrick, a leading segregationist from Virginia, to be one of four speakers at a Public Affairs conference, Strauss pointedly instructed Goldwin, February 13, 1961:

“I am especially interested in a plan of having a debate on SS [social science] and its political consequences in the last generation.…I shall illustrate what I have in mind by two examples...2) Desegregation and the findings of SS which allegedly demand desegregation. Here I would think we should have a guy from the deep south, say Dean H[W]iggins, a sociologist at Emory. Such a conference could be educative for the non-academicians by making clear to them what they cannot expect from the academicians.”

Goldwin organized public affairs conferences at Chicago and Kenyon, which allowed some debate between clashing points of view (though not, during the original conference, about segregation). The attendees were high public officials, Republican and Democrat.

In Washington, after he came with Rumsfeld in the early 1970s, the debates were often a breath of fresh air. Goldwin thus carried out one of Strauss’s exoteric ideas more seriously than Strauss himself (Strauss himself and most of his followers do not think out alternate views at all, most obviously those of Hegel***, Marx and modern radicalism or John Rawls’ democratic theory; Herbert Storing, and in this respect, Goldwin, are, at least about some important issues, admirable exceptions.

But Goldwin’s persistent advocacy of executive power and as a philosophical counselor, bringing these words to the lips of Dick Cheney, is also remarkable. Here are Lynne Cheney’s memorial remarks, reprinted by the American Enterprise Institute (again a powerful, explicitly reactionary Washington institution spreading these ideas), at which she and Bob and Walter Berns are or were all fellows:

“Bob didn’t advertise what he was doing and didn’t talk about it much in the years after, which was part of his essential modesty, part of what made him so admirable.”

“Dick [Cheney] remembers Bob from the Ford years, when he became a resident scholar at the White House. Bob had worked for Don Rumsfeld at NATO, and after Don became White House Chief of Staff, Bob organized a series of seminars for President Ford and the senior staff. He'd get together a small number of people, always including the president, and bring in a speaker to enlighten the group. Dick particularly remembers one Saturday when Bob put together a gathering up in the solarium on the top floor of the White House. The speaker that day was Daniel Patrick Moynihan, and he talked about his book Beyond the Melting Pot, in which he and Nathan Glazer wrote about the persistence of ethnicity in America and the consequences of it. Beyond the Melting Pot was a controversial book at the time. All these years later, we know it was very prescient.”

“Dick says that he does not recall in all his years in Washington events like the ones Bob organized. Bob didn’t advertise what he was doing and didn’t talk about it much in the years after, which was part of his essential modesty, part of what made him so admirable. We will miss him very much.” See here.

There is a chorus of neocons, loud during the Iraq War and now to advance an attack on Iran, on how Lincoln jailing Confederate sympathatizers and permitting them no trial – violating habeas corpus – and FDR putting Japanese –Americans in concentration camps "justify" Guantanamo and the theme of "executive power." Posner and Vermeule just give 6 examples, including these, and elaborate the core argument some. Now, Storing invokes the two original examples from Strauss’s colleague at Chicago , the constitutional lawyer C. Herman Pritchett (Strauss’s students had to write master’s theses with two professors and Pritchett was one of those who would work with them – h/t Gary Schmitt). These are American evils (harms to ordinary people, threats to democracy and the Constitution generated in wars abroad and/or class and political conflicts internally). They create a danger of authoritarian executive power, leading to endless war (listen to the neocons, particularly Romney, supported last week by John Bolton – the UN envoy of Bush who wanted to blow 10 floors, as he put it, off the UN building in New York) and relying on other neocon advisors, and Gingrich. They both would launch a US aggression against Iran (and would of course support a Netanyahu attempt to do this and subvert the American elections this fall).

Ron Paul is, in this major respect, as well as on civil liberties an increasingly important alternative both in the Republican Party and even to Obama. (His ideas on domestic economics are a disaster – would lead to a far deeper and longer depression - and reminiscent of unreconstructed Scrooge). But that Paul is treated in the corporate press as not quite a Republican and these positions often not covered is an example of how what is misleadingly called “conservative’ in corporate American politics is authoritarian – all the other “Republicans,” in fact, are Schmittian imperial authoritarians. They are joined by a considerable number of powerful Democrats are as well – critics of tyrannical measures when Bush enacted them but accomplices or silent when Obama extends or consolidates them. The National Defense Authrorization Act which gives Congressional license to the President to detain American citizens indefinitely is the purest example of Schmittianism - Fuehrer power - so far enacted...

This fundamental misnomer in the corporate press – that authoritarianism and the permanent war state (the war complex or militarism) – is somehow “conservative” is a leading feature of putting Americans to sleep about a steadily augmenting tyranny.****

America is, in fact, the lone empire in the world, with some 1,280 military bases abroad according to Nick Turse (its leading “competitor,” the French have 5 bases abroad in their own name in former French colonial Africa). This empire of bases (see also Chalmers Johnson, Sorrows of Empire, ch .6) is never mentioned in the press except at the SuperBowl, where the announcers last year happily welcomed the soldiers on bases in “177 countries” to watch the game…(Perhaps even that uncritical, "welcoming" gesture was too much; this year, the broadcast only flashed twice to soldiers at Camp Leatherneck in Afghanistan.)

The Democratic neo-neo-cons – the “experts” advising Obama - use drones in Pakistan because the government possesses them, because they can. See Greenwald today here. That these weapons kill civilians, nurture justified hatred for the American government, and endanger, in blowback, American citizens is obvious (imagine drones from Saudi-China, as I suggested here, careening down on Colorado and Montana). But without sufficient protest from below – though Occupy is very promising in reviving and strengthening it – the tendency in American oligarchic politics is a rightwing two step: the Democrats often adopt authoritarian and imperial policies in response to even further reactionary fanaticism from the right.

In contrast, in Spain, the Courts dealt with the bombers of the Atocha Station through the rule of law. Despite Obama and Holder’s initial attempts to do so, quavering Republicans and Democrats (and independents like Bloomberg in this respect), though mostly lawyers themselves, opposed the rule of law and demanded keeping “dangerous” prisoners in Guantanamo and trying them through Pentagon-dominated military commissions. See here. Unlike Madrid, the US government has become too weak to defend the rule of law, as if there are no prisons in the United States, no danger of terror in New York even if the government indefinitely detains and tortures prisoners in a black hole at Guatanamo...

It would be through proudly enacting and defending our differences with the terrorists, as a law-abiding and law-enforcing people, that America would minimize the threat of terrorism…

There are features in America which have made for reaction historically, and the notion that the 1/10 of 1% might protect themselves from the 99% by adopting fascism is not far. The Occupy movement, echoing Arab spring, might, as Pierce tells us, be met by arbitrary detention, something symbolized by but fiercer than the treatment of the camps in Oakland and Denver (Democratic Mayors) and New York (Bloomberg) or the tear-gassing of students sitting down in protest by the UC Davis police. Rahm Emanauel seems to be trying to develop this authoritarianism further in Chicago.

The stench of "the principles of the right" and of this network bringing Schmitt to the United States is in the tear gas in Oakland and at Davis just as it is in Cairo (every canister in all these places manufactured by the American company: Consolidated Systems Inc.)

Todd Pierce names himself a conservative for wanting to conserve American law. He movingly invokes his father as a prisoner of war during the Bataan Death-march in World War II to underline the importance of non-fascist treatment of prisoners. But of course one does not want to conserve unjust laws (i.e. slavery). It is thus the core of a conservative position to value the rule of law – particularly habeas corpus, that each person must have a day in court and not be subject to torture – against tyranny. In this respect, Andrew Sullivan and Scott Horton have helped lead the fight against the rise of tyranny in the United States, and I consider myself, as a radical (one who wants to expand the recognition of each human being and to give each of us an equal voice in the democracy (i.e. one not amplified by money or for the 99%, diminished by its absence),to have entirely and happily defended a conservative position on these matters. Peter Minowitz recently reduced my opposition to the war criminality of Condi Rice to “strident leftism” in his, nonetheless, serious article on Altman’s and my work on Strauss in Perspectives in Political Science.***** He concurs here with authoritarians and not conservatives. Calling for investigation of Ms. Rice and other Bush administration officials for the crime of mandating torture is a defense of the rule of law that unites all decent positions against tyranny and is a nonpartisan or moral position.

The alternate position is “fascist, authoritarian, imperial.” It has resulted increasingly in the open adoption of torture (what Obama, who had obviated certain major forms of torture, nonetheless did with Bradley Manning, and the Congress – part of a war complex – has done in keeping open Guantanamo). Once a police state has replaced the Constitution in the name of an emergency, it is very hard to climb back to the rule of law (Obama, a constitutional lawyer, took some major steps in this direction at the beginning of his administration, but has increasingly consolidated and developed further a criminal regime which as the Yale constitutional lawyer Jack Balkin says is now a new bipartisan “legal” regime. War criminals like John Yoo celebrate this deterioration, recognizing that it protects their torture and aggression.

Posner and Vermeule vary a theme by Peter Minowitz (Straussophobia) to speak airily of “Tyrannophobia” in a 2009 article here, which they abbreviate in this way:

“Tyrannophobia - the fear of dictatorship - is a dominant theme in American political discourse. Yet dictatorship has never existed in the United States or even been likely. The hypothesis that tyrannophobia itself has prevented dictatorship from occurring is implausible; better evidence exists for alternative hypotheses. We conclude that tyrannophobia is an irrational political attitude that has interfered with, and continues to interfere with, needed institutional reform.”

But serious lawyers like Todd Pierce fight against this regime because it has, increasingly, elements of a police state or tyranny. It is not the rule of law.

And without a strong movement from below against these powerful institutions, there is no guarantee at all that the rule of law will return.

The Guantánamo facility at 10: an assault on our constitutional government
Todd E. Pierce
The National Law Journal
January 10, 2012

The 10th anniversary of the opening of Guantánamo Bay, Cuba, as a detention facility and the diversion of terrorism prosecutions into a new military commission system is now upon us. Consequently, I thought I would take this opportunity to briefly explain why I, an Army Reserve Judge Advocate General officer with more than 30 years of active and reserve military service, would volunteer as defense counsel for prisoners being held there.

I might add that I consider myself to be a conservative. In the United States of America, that means to conserve the legal order that this nation was founded upon, the Constitution. In fact, as a member of the military, I took an oath to defend the Constitution against all enemies, foreign and domestic. I did not take an oath of allegiance to the "leader," or to the "state," as required in some other nations. Thus, it came as something of a shock to me when Alberto Gonzalez, John Yoo and Robert Delahunty began issuing legal opinions that the Geneva Conventions, a treaty incorporated into our law, were quaint and did not apply, or that the president could, at his or her sole discretion, suspend them.

I will admit a particular sensitivity to the enforcement of the Geneva Conventions as my father, along with thousands of other American and Philippine prisoners of war, survived the Bataan Death March. This was despite the best efforts of soldiers who set aside the Geneva Convention of 1929 because of their oath of allegiance to the Japanese emperor. Following that war, my father's former captors and their legal advisers were put on trial and convicted of war crimes, including waterboarding and punishing prisoners without fair trials, as required under the 1929 Geneva Convention. This treaty was replaced by the Four Geneva Conventions of 1949 due to the mistreatment of prisoners like my father.

Back in 2001 and 2002, when these legal opinions were being issued, astute critics immediately recognized that these opinions were regurgitated leftovers of President Richard Nixon's belief that if the president did something, it could not be illegal — the dictator's prerogative. But this crude anti-American notion had been refined into the "unitary executive theory." Vice President Richard Cheney seemed to take credit for it. But more astute commentators noted that these ideas were actually legal theories expounded by Carl Schmitt, the Nazi "Crown Jurist" of the 1930s. But that seemed a little extreme, or at least bad manners, to point out.

Once the unitary-executive theory began to gain credibility, other advocates of this form of government came out of the shadows, perhaps from "the dark side." One was Harvard Professor Harvey Mansfield in The Wall Street Journal in 2007, who opined about the benefits of "one man rule." But it remained to two law professors, dedicated to the study of arcane legal texts, Adrian Vermeule of Harvard Law School and Eric Posner of the University of Chicago Law School, to openly resurrect Schmitt's authoritarian legal ideology. Or, as they put it, "political theorists interested in emergency powers, and some academic lawyers as well, are much taken with Schmitt; nearly every discussion of emergencies pores over the canonical texts yet again."

In fairness to Vermeule and Posner, leaving them to pore over the Nazi's canonical texts, it should be remembered that Schmitt was not a founder of the Nazi movement. Schmitt only joined the Nazi party when it triumphed over its rival elements in the German military establishment. Schmitt had been legal adviser to those rivals, particularly General Kurt von Schleicher. But what should equally be remembered is that this military faction was seeking to impose its own brand of militaristic dictatorship on Germany, along with an expansionistic foreign policy. These German generals aspired to the form of governance most recently practiced by the dictator Hosni Mubarak and the Egyptian Supreme Council of the Armed Forces.

Schmitt's writings consistently were an apologia for dictatorship and centralized power, whether under military dictatorship of the German High Command or under the Nazis, having further developed his ideas from his book, Die Diktatur. These ideas culminated in 1934, when he justified the murders following the "Night of the Long Knives" as the "highest form of administrative law." Most odiously, he legitimated the authority of Hitler afterward with a paean translated in English as "The Leader Defends the Law."

In Terror in the Balance, Posner and Vermeule argued that the threat of terrorism constitutes a state of emergency necessitating the suspension of our Constitution. Consequently, "Constitutional rights should be relaxed so that the executive can move forcefully against the threat. If dissent weakens resolve, then dissent should be curtailed. If domestic security is at risk, then intrusive searches should be tolerated." Posner and Vermeule followed this in 2010 with The Executive Unbound: After the Madisonian Republic. Cribbed from Schmitt's Legality and Legitimacy, it seeks to legitimize the administrative state of the sort Schmitt worked to create. Any concern with this centralization of power in our system is dismissed as "tyrannophobia." Evidently, a mental disorder that our founders were afflicted with. As in Schmitt's "dual state," they seek to move us toward a constitutional breakdown through the creation of an administrative state under the exclusive control of the executive, "the Extraordinary Lawgiver" in Schmitt's terminology. Or as Posner and Vermeule ask and answer: "What comes after the Madisonian regime of liberal legalism and the separation of powers? Our answer is a new political order in which government is centered on the executive."

Why does all of this matter? In part, because constitutions and constitutional ideas matter. As evident in Yoo and Delahunty's legal memos asserting unitary executive authority, the legal theory underpinning Guantánamo and the military commissions were an assault upon the structure of our form of constitutional government; lawfare. It was not the inevitable conclusion required by the Sept. 11 attacks, but the exploitation of a tragedy to import a foreign legal ideology, a legal bacillus, into our legal system.

But it matters also because on this 10th anniversary, Guantánamo and the military commissions are metastasizing into our whole legal system. As the French war against the anti-colonialist insurgents of Algeria highlighted, the growing disrespect for "legal niceties" would come to be applied in France itself against political adversaries. Could that happen here? Posner and Vermeule suggest that dissent to policy may need to be controlled, that is, free speech curtailed. Putting aside the potential for misuse against political enemies, is that even desirable for national security? Our allowance of dissent led to our withdrawal from the Vietnam War before the collapse of our economy which, with hindsight, few question any more. Contrast that with the Soviet Union's defeat and total collapse resulting from its war in Afghanistan, purely at the insistence of the Communist leadership.

We have used the vague and overbroad charge of "material support for terrorism" as cause to investigate anti-war groups in Chicago and Minneapolis, predictably chilling speech and dissent. Critics have suggested that recent legislation passed would now require the military to detain such dissidents. Or what about gun store owners, gun manufacturers and the National Rifle Association, all of whom could be accused of having a hand directly or through propaganda in providing firearms downstream to drug cartels in Mexico, alleged to have ties with Mideast terrorist groups? Military detention for them?

We must ask ourselves, because we are passing this nation on to our children and their children: Were the authors of the American Constitution wrong or suffering from a mental disorder (tyrannophobia as described) in believing that blind faith was not sufficient as a bulwark against incompetence, if not tyranny? My father and my uncles, along with the rest of the Greatest Generation, did not think so when they fought against the political ideas of Carl Schmitt in World War II. I think Schmitt's ideas are still worth fighting against today.

Todd E. Pierce is a major in the U.S. Army and has been assigned to the Office of the Chief Defense Counsel since 2008. The views expressed are solely those of the author and do not reflect the official policy or position of the Department of Defense or the U.S. government.

ABA [American Bar Association]
February 2012 Issue

War Powers Belong to the President
Posted Feb 1, 2012 5:30 AM CST

By John Yoo

In ordering the U.S. Air Force to attack Libyan targets on the ground and impose a no-fly zone in the air, President Barack Obama sent the U.S. military into combat without Congress’ blessing. This was not always President Obama’s view. Anti-war Democrats vigorously challenged President George W. Bush’s conduct of the wars in Afghanistan and Iraq by claiming that he had violated Congress’ right to declare war. As a presidential candidate in 2007, Obama once agreed: “The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”

Fast-forward four years. In announcing the intervention in Libya, Mr. Obama told Congress that he was acting “pursuant to my constitutional authority to conduct U.S. foreign relations and as commander in chief and chief executive.” As the Libyan war reached its 60th day at the end of May 2011, President Obama sent a letter to Congress that reported on progress but did not seek any authorization.

This time, President Obama has the Constitution about right. His exercise of war powers rests firmly in the tradition of American foreign policy. Throughout our history, neither presidents nor Congresses have acted under the belief that the Constitution requires a declaration of war before the U.S. can conduct military hostilities abroad. We have used force abroad more than 100 times but declared war in only five cases: the War of 1812, the Mexican-American and Spanish-American wars, and World War I and II.

Without any congressional approval, presidents have sent forces to battle Indians, Barbary pirates and Russian revolutionaries; to fight North Korean and Chinese communists in Korea; to engineer regime changes in South and Central America; and to prevent human rights disasters in the Balkans. Other conflicts, such as the 1991 Persian Gulf war, the 2001 invasion of Afghanistan and the 2003 Iraq war, received legislative “authorization” but not declarations of war. The practice of presidential initiative, followed by congressional acquiescence, has spanned both Democratic and Republican administrations and reaches back from President Obama to Presidents Abraham Lincoln, Thomas Jefferson and George Washington.

Common sense does not support replacing the way our Constitution has worked in wartime with a radically different system that mimics the peacetime balance of powers between president and Congress. If the issue were the environment or Social Security, Congress would enact policy first and the president would faithfully implement it second. But the Constitution does not duplicate this system in war. Instead, our framers decided that the president would play the leading role in matters of national security.
Those in the pro-Congress camp call upon the anti-monarchical origins of the American Revolution for support. If the framers rebelled against King George III’s dictatorial powers, surely they would not give the president much authority. It is true that the revolutionaries rejected the royal prerogative, and they created weak executives at the state level. Americans have long turned a skeptical eye toward the growth of federal powers. But this may mislead some to resist the fundamental difference in the Constitution’s treatment of domestic and foreign affairs. For when the framers wrote the Constitution in 1787 they rejected these failed experiments and restored an independent, unified chief executive with its own powers in national security and foreign affairs.

The most important of the president’s powers are commander in chief and chief executive. As Alexander Hamilton wrote in Federalist 74, “The direction of war implies the direction of the common strength, and the power of directing and employing the common strength forms a usual and essential part in the definition of the executive authority.” Presidents should conduct war, he wrote, because they could act with “decision, activity, secrecy and dispatch.” In perhaps his most famous words, Hamilton wrote: “Energy in the executive is a leading character in the definition of good government. ... It is essential to the protection of the community against foreign attacks.”

The framers realized the obvious. Foreign affairs are unpredictable and involve the highest of stakes, making them unsuitable to regulation by pre-existing legislation. Instead, they can demand swift, decisive action—sometimes under pressured or even emergency circumstances—that is best carried out by a branch of government that does not suffer from multiple vetoes or is delayed by disagreements. Congress is too large and unwieldy to take the swift and decisive action required in wartime. Our framers replaced the Articles of Confederation, which had failed in the management of foreign relations because they had no single executive, with the Constitution’s single president for precisely this reason. Even when it has access to the same intelligence as the executive branch, Congress’ loose, decentralized structure would paralyze American policy while foreign threats grow.

Congress has no political incentive to mount and see through its own wartime policy. Members of Congress, who are interested in keeping their seats at the next election, do not want to take stands on controversial issues where the future is uncertain. They will avoid like the plague any vote that will anger large segments of the electorate. They prefer that the president take the political risks and be held accountable for failure.

Congress’ track record when it has opposed presidential leadership has not been a happy one. Perhaps the most telling example was the Senate’s rejection of the Treaty of Versailles at the end of World War I. Congress’ isolationist urge kept the United States out of Europe at a time when democracies fell and fascism grew in their place. Even as Europe and Asia plunged into war,

Congress passed the Neutrality Acts designed to keep the United States out of the conflict. President Franklin Roosevelt violated those laws to help the Allies and draw the nation into war against the Axis. While pro-Congress critics worry about a president’s foreign adventurism, the real threat to our national security may come from inaction and isolationism.

Many point to the Vietnam War as an example of the faults of the “imperial presidency.” Vietnam, however, could not have continued without the consistent support of Congress in raising a large military and paying for hostilities. And Vietnam ushered in a period of congressional dominance that witnessed American setbacks in the Cold War and the passage of the ineffectual War Powers Resolution. Congress passed the resolution in 1973 over President Richard Nixon’s veto, and no president, Republican or Democrat, George W. Bush or Obama, has ever accepted the constitutionality of its 60-day limit on the use of troops abroad. No federal court has ever upheld the resolution. Even Congress has never enforced it.

Despite the record of practice and the Constitution’s institutional design, critics nevertheless argue for a radical remaking of the American way of war. They typically base their claim on Article I, Section 8, of the Constitution, which gives Congress the power to “declare war.” But these observers read the 18th century constitutional text through a modern lens by interpreting “declare war” to mean “start war.” When the Constitution was written, however, a declaration of war served diplomatic notice about a change in legal relations between nations. It had little to do with launching hostilities. In the century before the Constitution, for example, Great Britain—where the framers got the idea of the declare-war power—fought numerous major conflicts but declared war only once beforehand.

Our Constitution sets out specific procedures for passing laws, appointing officers and making treaties. There are none for waging war because the framers expected the president and Congress to struggle over war through the national political process. In fact, other parts of the Constitution, properly read, support this reading. Article I, Section 10, for example, declares that the states shall not “engage” in war “without the consent of Congress” unless “actually invaded, or in such imminent danger as will not admit of delay.” This provision creates exactly the limits desired by anti-war critics, complete with an exception for self-defense. If the framers had wanted to require congressional permission before the president could wage war, they simply could have repeated this provision and applied it to the executive.

Presidents, of course, do not have complete freedom to take the nation to war. Congress has ample powers to control presidential policy, if it wants to. Only Congress can raise the military, which gives it the power to block, delay or modify war plans. Before 1945, for example, the United States had such a small peacetime military that presidents who started a war would have to go hat in hand to Congress to build an army to fight it. Since World War II, it has been Congress that has authorized and funded our large standing military, one primarily designed to conduct offensive, not defensive, operations (as we learned all too tragically on 9/11) and to swiftly project power worldwide. If Congress wanted to discourage presidential initiative in war, it could build a smaller, less offensive-minded military.

Congress’ check on the presidency lies not just in the long-term raising of the military. It can also block any immediate armed conflict through the power of the purse. If Congress feels it has been misled in authorizing war, or it disagrees with the president’s decisions, all it need do is cut off funds, either all at once or gradually. It can reduce the size of the military, shrink or eliminate units, or freeze supplies. Using the power of the purse does not even require affirmative congressional action. Congress can just sit on its hands and refuse to pass a law funding the latest presidential adventure, and the war will end quickly. Even the Kosovo war, which lasted little more than two months and involved no ground troops, required special funding legislation.

The framers expected Congress’ power of the purse to serve as the primary check on presidential war. During the 1788 Virginia ratifying convention, Patrick Henry attacked the Constitution for failing to limit executive militarism. James Madison responded: “The sword is in the hands of the British king; the purse is in the hands of the Parliament. It is so in America, as far as any analogy can exist.” Congress ended America’s involvement in Vietnam by cutting off all funds for the war.

Our Constitution has succeeded because it favors swift presidential action in war, later checked by Congress’ funding power. If a president continues to wage war without congressional authorization, as in Libya, Kosovo or Korea, it is only because Congress has chosen not to exercise its easy check. We should not confuse a desire to escape political responsibility for a defect in the Constitution.

A radical change in the system for making war might appease critics of presidential power. But it could also seriously threaten American national security. In order to forestall another 9/11 attack, or to take advantage of a window of opportunity to strike terrorists or rogue nations, the executive branch needs flexibility. It is not hard to think of situations where congressional consent cannot be obtained in time to act. Time for congressional deliberation, which leads only to passivity and isolation and not smarter decisions, will come at the price of speed and secrecy.

The Constitution creates a presidency that can respond forcefully to prevent serious threats to our national security. Presidents can take the initiative and Congress can use its funding power to check them. Instead of demanding a legalistic process to begin war, the framers left war to politics. As we confront the new challenges of terrorism, rogue nations and WMD proliferation, now is not the time to introduce sweeping, untested changes in the way we make war.

Only Congress Can Declare War
Posted Feb 1, 2012 5:20 AM CST
By Louis Fisher

John Yoo and I agree that the framers rejected the British system of royal prerogative. In his Commentaries, William Blackstone placed all of foreign policy and the war power with the executive. Clearly the framers repudiated that model, which is obvious simply by looking at the text of the U.S. Constitution. Not a single one of Blackstone’s prerogatives—declaring war, making treaties, issuing letters of marque and reprisal, appointing ambassadors, raising and regulating fleets and armies, etc.—is vested in the president. They are either given expressly to Congress in Article I or are shared between the president and the Senate (treaties and appointments).

Where John and I differ is the scope accorded to the president over the war power. John says that “our framers decided that the president would play the leading role in matters of national security” and that the war in Libya, initiated by President Barack Obama, “rests firmly in the tradition of American foreign policy.” The record shows, however, that all major wars from 1789 to 1950 were either authorized or declared by Congress. No president during that period believed that he could unilaterally take the country from a state of peace to a state of war. It was necessary to come to Congress to seek prior approval.

Just as Truman had no authority for substituting the Security Council for Congress, so did President Obama violate the Constitution by arguing that he could obtain “authorization” from a Security Council resolution to use military force against Libya. Obama often says it is his duty to defend the country. His first duty—as reflected in the oath of office placed in Article II—is to “preserve, protect and defend the Constitution of the United States.”

Federal courts understood that principle as well. In Talbot v. Seeman (1801), Chief Justice John Marshall wrote: “The whole powers of war being, by the Constitution of the United States, vested in Congress, the acts of that body can alone be resorted to as our guides in this inquiry.” It might be argued that when the delegates at the Philadelphia Convention changed the constitutional text from “make war” to “declare war,” they limited Congress to declaring war and allowed the president to make war. That was never the understanding. The framers simply acknowledged that the president needed to “repel sudden attacks” without waiting for prior congressional authority, especially when Congress was not in session. That was a defensive, not an offensive, power. The latter judgment remained with Congress.

The fact that Congress retained authority to both declare and make war (i.e., initiate war) is clearly expressed in court rulings. A circuit court in United States v. Smith (1806) rejected the idea that a president or his assistants could unilaterally authorize military adventures against foreign governments. The court put the matter bluntly: “Does [the president] possess the power of making war? That power is exclusively vested in Congress.” If a nation invaded the United States, the president would have an obligation to resist with force. But there was a “manifest distinction” between going to war with a nation at peace and responding to an actual invasion: “In the former case, it is the exclusive province of Congress to change a state of peace into a state of war.”

It is frequently argued that the Supreme Court in the Prize Cases (1863) recognized a broad war power for the president. It did not. As with the Smith case, Justice Grier carefully limited the president’s power to defensive actions, in this case a civil war. The president “has no power to initiate or declare a war against either a foreign nation or a domestic state.” During oral argument, the attorney for the administration, Richard Henry Dana Jr., agreed that the actions of President Abraham Lincoln had nothing to do with “the right to initiate a war, as a voluntary act of sovereignty. That is vested only in Congress.”

This understanding prevailed for 160 years, from 1789 to 1950. As John notes, presidents during that period used “force abroad more than 100 times” without a declaration or authorization from Congress. But those actions, however noteworthy, did not constitute major wars. What happened in 1950 to change this constitutional pattern? Of course it was President Harry Truman unilaterally taking the country to war against North Korea. At no time did he come to Congress, as with all presidents in the past, to seek a declaration or authorization. If Congress did not authorize this war, who did? Truman claimed that two resolutions passed by the U.N. Security Council provided sufficient authority.

Here I think John and I would agree on a vital point. It is constitutionally impermissible for the president and the Senate through the treaty process to take power from future Senates and from the House of Representatives and give it to an outside body. In other words, the president and the Senate, in agreeing to the U.N. Charter, could not amend the Constitution by placing with the Security Council war powers that had rested with Congress. That is essentially the argument presented by Truman and his secretary of state, Dean Acheson. It is a shallow and empty argument. Here I would not hesitate to fault Congress for accepting that rationale and failing to protect its institutional powers. The framers expected each branch to fight off encroachments. Congress decided it was more important to fight Communism than defend the Constitution.

There were no reasons to do so. The fundamental duty of lawmakers, as reflected in their oath of office, is to support and defend the Constitution at all times. They take that obligation “freely, without any mental reservation or purpose of evasion.” There was no justification for violating the Constitution because fighting North Korea had a higher value. For more than a century and a half, lawmakers had balanced the Constitution and war powers without sacrificing one for the other.

Just as Truman had no authority for substituting the Security Council for Congress, so did President Obama violate the Constitution by arguing that he could obtain “authorization” from a Security Council resolution to use military force against Libya. Obama often says it is his duty to defend the country. His first duty—as reflected in the oath of office placed in Article II—is to “preserve, protect and defend the Constitution of the United States.” The duty of defending the country is the duty to repel attacks on the country and its forces. Libya did not attack or threaten the United States. Obama acted not in a defensive manner but offensively against another country. Any president who takes the country from a state of peace to a state of war without obtaining prior authority from Congress is creating an impeachable act. Were the president impeached by the House and removed by the Senate, the signal would be healthy and welcome for constitutional government.

John points to some qualities that the president possesses and Congress does not. He recalls what Alexander Hamilton said about unity, decisiveness, secrecy and energy residing in the president, not in the legislative branch. Generally true. John says that Congress “is too large and unwieldy to take the swift and decisive action required in wartime.” The institutional advantage here clearly rests with the president. But the framers did not give their blessing to presidential decisiveness and speed of action. They knew all too well the record of executive wars in the past, which devastated nations and left them poorer. John Jay in Federalist 4 warned that “nations in general will make war whenever they have a prospect of getting anything by it; nay, absolute monarchs will often make war when their nations are to get nothing by it,” but for purposes merely personal, such as an executive’s thirst for military glory, revenge for personal affronts and ambition. Those and other motivations lead executives “to engage in wars not sanctified by justice or the voice and interests of his people.” Because of those costs, the framers insisted that going to war be done by legislative deliberation and support.

Did the framers have a narrow, 18th century vision that has no application to America and contemporary conditions? It would be hard to make that argument after the presidential wars that followed World War II, including Korea, Vietnam and the Iraq war that began in March 2003. Korea morphed from a limited effort to protect the division between the North and the South, but changed once U.S. forces decided to go into North Korea and provoke the Chinese to enter. The result was a war that did substantial damage to the United States and certainly to the presidency of Truman. Vietnam was a great calamity, fueled in large part by the claim that a “second attack” occurred in the Gulf of Tonkin to justify U.S. retaliation. There were doubts at the time that the second attack happened. We now know that there was no second attack, but merely late signals coming from the first. The decision to go to war against Iraq in 2003 rested on a number of claims that proved false: aluminum tubes used for making nuclear weapons, “yellowcake” obtained from a nation in North Africa, mobile labs capable of carrying biological agents, drones able to deliver chemical and biological agents, etc. In every case those assertions by the Bush administration were vacuous. The record of presidents using deception and stealth to go to war would not surprise the framers. They should not surprise us.

John states that “Congress’ track record when it has opposed presidential leadership has not been a happy one.” There is some truth to that. I would not, however, fault the Senate for rejecting the Treaty of Versailles. The problem was the rigidity of President Woodrow Wilson in opposing the Lodge reservations. Wilson’s advisers urged acceptance of the reservations, but Wilson preferred to let personal animosities prevail over the treaty.

John is on stronger ground in criticizing the neutrality policy of Congress during the 1930s when fascism was sweeping Europe. Congress does not have a happy track record, but neither do many of our presidents. I would also say that Congress has done great damage to the nation and constitutional government by acquiescing to presidential wars on the mistaken belief that presidents invariably act in the “national interest” and are surrounded by officials with reliable expertise and judgment. That is a fanciful view not supported by the record. Finally, John points out that Congress possesses the power of the purse to stop wars begun by presidents. I think we all know that the spending tool is difficult to invoke when U.S. soldiers are in combat. It took nearly a decade to cut off funds for the Vietnam War.

Louis Fisher is Scholar in Residence at the Constitution Project. Previously he worked for four decades at the Library of Congress as Senior Specialist in Separation of Powers (Congressional Research Service, from 1970 to 2006) and Specialist in Constitutional Law (the Law Library, from 2006 to 2010. During his service with CRS he was research director of the House Iran-Contra Committee in 1987, writing major sections of the final report.

Guantanamo Comes to Main Street?
January 31, 2012 By Jay Becker

Do you remember where you were as the clock approached midnight on the last night of 2011? President Obama was signing the National Defense Authorization Act (NDAA), which has been described by a leading legal commentator as an “historic assault on American liberty.”

The new law gives the president and the military the right to detain anyone – including US citizens – anywhere – including within the US – and hold them indefinitely without charges, based on allegations of vaguely defined terrorist activity or “substantial support” for it that will not be tested in a court of law.

At least one local group characterizes it as “Guantanamo Comes to Main Street.” The Chicago chapter of World Can’t Wait (WCW) is one of dozens of groups who sponsored a rally in Chicago on the tenth anniversary of Guantanamo detention centers this January. WCW worked with Amnesty International, Witness against Torture, White Rose and many others to mobilize a “human chain” of people in orange jumpsuits stretching from Congress to the White House.

Len Goodman, Chicago criminal defense attorney who represents Shawali Khan, a Guantanamo detainee, spoke at the Chicago rally.

“Of all the promises made by candidate Barack Obama, it was his promise to end the lawlessness of the Bush years by closing Guantanamo, ending torture and restoring the United States’ reputation for justice that got me out in the streets and knocking on doors. And it is President Obama’s failure to keep these promises that makes it impossible for me to support him again,” said Goodman.

Chicago has its own legacy of torture, and on the day following the rally, the Chicago City Council held hearings on declaring Chicago a torture-free city. A few cases of Chicago police torture have been resolved, but activists like Mark Clements, a death penalty abolition activist and himself a survivor of Chicago police torture, are working to get the city to promise that torture never again occurs within the boundaries of Chicago.

Joe Scarry, an activist who writes a blog on anti-war and civil liberties issues, criticized the city’s participation in what he sees as a systemic threat to civil liberties: “A perfect storm is brewing: leading activists have been threatened in recent years with grand jury subpoenas; now, organizers of all stripes here in Chicago are up in arms about Mayor Emanuel’s draconian restrictions on freedom of expression; at the same time, with the signing into law of NDAA, people around the country are waking up to the civil liberties threat they live under in Obama’s U.S.A. People are mad as hell — a lot of people! It’s not just the usual suspects anymore.”

In the eyes of these groups, closing Guantanamo has become the cutting edge in a widening battle to defend not only human rights and the right to dissent, but the rule of law itself.

Related articles

Indefinite detention and torture: US already enforcing NDAA (
Ex-Commander of Guantanamo Prison: ‘Close It’ | Common Dreams (
Center for Constitutional Rights Demands that President Obama Close Guantánamo (

*Jack Goldsmith, a reactionary lawyer who became head of the Office of Legal Counsel under Bush, withdrew Yoo’s memos because they have no legal standing…See Goldsmith, The Terror Presidency: Law and Judgment inside the Bush Administration and Jane Mayer, The Dark Side.

**I interviewed Gary Schmitt for two hours when he came to my school. He was a serious scholar who published 6 or 7 articles, was hired at Connecticut with Storing, but was let go after Storing died suddenly of a heart attack. He then joined the intelligence "community."

***Will Altman cites ways in which Strauss thinks of himself as filling out an Hegelian dialectic. And he rightly emphasizes Hegel's statism - his insistence that war and sea-faring peoples who are good at war cures the stagnancy of civil society, a theme which Nietzsche, Strauss and Schmitt embroider. Hegel, it should be noted, however, did not confront modern wars. In addition, Altman also takes the form of Hegel for the substance, and particularly ignores the remarkable emphasis on the three moments of the free will, the last of which, the self-conscious moment, refuses to accept any arrangement which does not involve the mutual recognition of the freedom of each individual. Hegel goes on in the Philosophy of Right, read carefully, to say that any measures, i.e popular uprisings, taken against slavery or German serfdom, are right. The latter point foreshadowed the Revolution of 1848.

****As James Madison indicted John Adams's Alien and Sedition Acts:

"Exhortations to disregard domestic usurpation until foreign danger shall have passed, is an artifice which may be forever used, because the possessors of power, who are the advocates of its extension, can ever create national embarassments to be successively employed to soothe the people to sleep, whilst that power is swelling silently, secretly, and fatally. Of the same
are insinuations of a foreign influence, which seize upon a laudable enthusiasm against dangers from abroad and distort it by an unnatural application so as to blind your eyes to danger at home"

See the epigraph of my Must Global Politics Constrain Democracy?

*****Peter points to some irrational or at the least unscholarly opposition to Strauss as “Straussophobia.” But this is also a floating and not very precise criterion often used to dismiss or ignore argument (the first chapter of his book, uniting opposite criticisms or charges, is called “All hate Leo Strauss”). Interestingly Posner and Vermeule, as Pierce shatteringly points out, refer to objections to throwing out the rule of law - as in the case of the Japanese treatment of his father as a prisoner of war on Bataan - as “tyrannophobia.” But the US government was not wrong in prosecuting the Tokyo War Criminals. As then Nuremberg prosecutor and later Supreme Court Justice, Robert L. Jackson said, the US government would also apply these standards to itself; in later cases, he expected, it would honor the rule of law, for instance, by having hearings over torture and Guantanamo and prosecuting those responsible here. The government is, of course, legally obligated to do so under the Convention against Torture and Article 6 section 2, the Supremacy Clause, of the Constitution.

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