The Duck of Minerva

The Duck Quacks at Twilight

States of exception

December 17, 2005

President Bush acknowledged this morning that he ordered illegal surveillance of US citizens.

In a rare live radio address, Bush defended the practice as a “vital tool” in defending the United States against another such attack.

The presidential order was first reported in The New York Times on Friday. The report said the order allowed the National Security Agency to track international telephone calls and e-mails of hundreds of people without the court approval normally required for domestic spying….

Bush said his order was constitutional and has been carefully reviewed by legal authorities. He also criticized the leak of the information to the media.

Initial reports suggest that the “legal authorities” who “carefully reviewed” his decision to violate the law was none other than John Yoo. John Balkin rightly describes Yoo as someone who “seems to be actively seeking the Carl Schmitt Memorial ‘Anything Goes’ award.”

Schmitt, who was briefly the court philosopher of Nazism, is famous for arguing (among other things) that sovereignty is the right to decide the “exception,” and that liberal constitutionalism is incompatible with democratic governance. A number of commentators, including Scott Horton (also of Balkinization), draw disturbing parallels between Schmitt’s political theories and the Bush administration’s arguments (not to mention some of their apologists) for why the normal constraints of international legal obligation, Constitutional rights, the separation of powers, and Federal law can be set aside to fight the “War on Terror.” In essence, the war puts the United States in a permanent “state of exception”; dictatorial action by the Executive Branch is more “democratic” than interest-group liberalism as mediated by Congress.

We’ve seen the “state of exception” before in recent decades. It reared its ugly head at the height of the similarly ill-titled “War on Drugs.” Many constitutional scholars used to speak of the emergence of a war-on-drugs exception to the Fourth Amendment, in that Federal Courts (including the Supreme Court) seemed perfectly willing to overlook basic search-and-seizure protections if illegal drugs were somehow involved. But the potential for the “War on Terror” to put is into a permanent, and far more sweeping, state of exception should raise even greater concerns.

Yoo’s views on executive power are, in fact, downright Schmittian. As David Cole writes in the New York Review of Books:

oo is now back in private life, having returned to the law faculty at the University of California at Berkeley. Unlike some other former members of the administration, he seems to have few if any second thoughts about what he did, and has continued to aggressively defend his views. His book The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11 shows why Yoo was so influential in the Bush administration. It presents exactly the arguments that the president would have wanted to hear. Yoo contends that the president has unilateral authority to initiate wars without congressional approval, and to interpret, terminate, and violate international treaties at will. Indeed, ratified treaties, Yoo believes, cannot be enforced by courts unless Congress enacts additional legislation to implement them. According to this view, Congress’s foreign affairs authority is largely limited to enacting domestic legislation and appropriating money. In other words, when it comes to foreign affairs, the president exercises unilateral authority largely unchecked by law—constitutional or international.

Yoo is by no means the first to advance such positions. Many conservatives favor a strong executive, especially when it comes to foreign affairs, and they are generally skeptical about international law. What Yoo offers that is new is an attempt to reconcile these modern-day conservative preferences with an influential conservative theory of constitutional interpretation: the “originalist” approach, which claims that the Constitution must be interpreted according to the specific understandings held by the framers, the ratifiers, and the public when the Constitution and its amendments were drafted.

The problem for originalists who believe in a strong executive and are cynical about international law is that the framers held precisely the opposite views—they were intensely wary of executive power, and as leaders of a new and vulnerable nation, they were eager to ensure that the mutual obligations they had negotiated with other countries would be honored and enforced. During the last two centuries, of course, executive power has greatly expanded in practice; and the attitude of many US leaders toward international law has grown increasingly disrespectful as the relative strength of the US compared to other nations has increased. But these developments are difficult to square with the doctrine of “original intent,” which, at least as expressed by Justice Antonin Scalia and other extreme conservatives, largely disregards the development of the law for the past two centuries. Yoo’s task is to reconcile the contemporary uses of American power with his belief in original intent. His views prevailed under the Bush administration, and therefore should be examined not only for their cogency and historical accuracy, but for their consequences for US policy in the “war on terror.”

The rest of the article eviscerates Yoo’s claims that the Founding Fathers, fresh out of a rebellion against Monarchical tyranny, wanted a strong executive with unlimited powers in the prosecution of war. In other words, Cole’s shooting very densely packed fish in a see-through barrel. And, of course, the fact is that Congress has never issued a “Declaration of War” in the current “War on Terror.”

If Yoo did author the memo in question, and if the reasoning of that memo is similar to his book and his justifications of other war-on-terror policies, then everyone should take pause – whether we identify as conservative, liberal, libertarian, moderate, conservatarian, social democrat, or whatever.

Yoo’s argument is that the President has virtually unrestricted powers to prosecute wars. The short version: the President can break the law because the Constitution authorizes him to do so as Commander-in-Chief. If that is, in fact, the underlying rationale of the “legal authorities” who reviewed the President’s order, then we are living in a dictatorial state of exception. The fact that Bush doesn’t win every legislative battle changes nothing.

The minority of Republicans and Democrats who voted against cloture on the Patriot Act were right to do so. The Bush administration cannot be trusted to police itself. I will go further: I agree with Hilzoy that, pending the revelation of additional facts broadly consistent with what we already know, the President has committed an impeachable offense.

But I have a high bar, not a nonexistent one. And for a President to order violations of the law meets my criteria for impeachment. This is exactly what got Nixon in trouble: he ordered his subordinates to obstruct justice. To the extent that the two cases differ, the differences make what Bush did worse: after all, it’s not as though warrants are hard to get, or the law makes no provision for emergencies. Bush could have followed the law had he wanted to. He chose to set it aside.

And this is something that no American should tolerate. We claim to have a government of laws, not of men. That claim means nothing if we are not prepared to act when a President (or anyone else) places himself above the law. If the New York Times report is true, then Bush should be impeached.

Those conservatives who defend the President’s actions have lost their collective minds. We can debate the appropriateness of impeachment, but what does the conservative movement stand for anymore if it will put up with this – let alone every other instance in which the Republican leadership has shown a complete disregard for its stated principles?

Lower taxes and crony capitalism?

As Brad DeLong often says, on far shakier grounds: “Impeach him. Impeach him now.”

UPDATES: I’ve done some updating and editing since I initially posted this rant. For a particularly tortuous example of bizarre rationalization, read Tom Maguire argue that the New York Times published the piece as part of its “war on America” – cue Schmitt’s discussion of politics as the struggle against the “Other.” He also claims that since Democrats were briefed about some aspects of the program it was clearly Constitutional (my head spins, what else can I say?). The best part is at the end, though, where Maguire seems to imply that the fact that the New York Times held the story for a year at the request of the administration but that Novak outed Valerie Plame somehow proves that the latter wasn’t a big deal. Because, of course, the administration had no stake in trying to discredit Wilson, I guess.

As I mentioned in comments over at LGM, I expect that after we go through a week of “it was legal because the administration said it was” and “why do you liberals hate America?”, we’ll get treated to another round of “look over there: activist judges trying to destroy America by actually applying the 14th amendment”! Now that would be ironic.

I also see I’m actually in agreement with the regulars at Dailykos. I’m still not sure what to make of that.

I also see I’ve been inducted into the order of the shrill. Does this mean I’ll get my free ticket to R’lyeh soon?

Filed as: , , ,

website | + posts

Daniel H. Nexon is a Professor at Georgetown University, with a joint appointment in the Department of Government and the School of Foreign Service. His academic work focuses on international-relations theory, power politics, empires and hegemony, and international order. He has also written on the relationship between popular culture and world politics.