Electronic copy available at: http://ssrn.com/abstract=942865

UNIVERSITY OF MIAMI

SCHOOL OF LAW

The Bush Regime from Elections toDetentions: A Moral Economy of Carl Schmitt

and Human Rights

David Abraham

Professor of Law#2007-20

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The Bush Regime from Elections to Detentions:A Moral Economy of Carl Schmitt and Human Rights

October 2006, May 2007 David Abraham, University of Miami©

I. Introduction

Most of you, and indeed most of us in the US as well, know the Bush regime pri-

marily for the international mess it has created as the world’s only superpower and for the

way it has sacrificed long-accepted military and civilian, international and domestic, legal

norms in the name of its so-called war against terrorism. My colleague Steven Vladeck will

be discussing some of the particulars of the legal transformations. These can be divided into

domestic repression –Patriot Act and surveillance projects, especially– and brutality and

denial of legal obligations toward enemy non-Americans –Abu Gharib, Guantanamo, the

denial of the Geneva Conventions, first in regard to Prisoner of War status and then in

regard to the Torture Conventions. Most recently comes the Congressionally-approved

denial of the possibility of judicial reviews (through habeas corpus) of the so-called “military

tribunals” for alleged terrorist combatants, tribunals which are empowered to proceed, after

years of legal blackout, without a defendant’s full confrontation with the evidence against

him.

We all hope, even pray, that these changes have not become, will not become, hard-

wired, i.e. permanent features of American law at home and policy abroad. It is ultimately

too early to tell. How will the Iraqi debacle end? Will that war end with America having

received a bloody nose and retreating from this transient and aberrant form of Empire back

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to a more modest position? Will the next administrations: repair the damage by winning

back allies, relaxing adversaries, dealing with regional conflicts, especially in the Middle East,

with a more realpolitische approach, and cooling the world temperature (literally and meta-

phorically)?

Or are we rather only at the beginning of a period in which the sole hegemon, the

allein-herrschende Macht, US runs amok on various ideological crusades on behalf of a peculiar

way of life, a really reactionary America run by the rich and the religious. Are we being led

into a “clash of civilizations,” one where both sides, all sides, are marked by aggression and

intolerance without end? Are there bases for domestic resistance within the US? So far we

have seen very little as the Bush regime has successfully employed a reckless policy of no

visible economic sacrifices (quite the opposite) and no levee en masse military draft while

successfully deflecting mass public attention from its military failures and domestic incompe-

tence and corruption through posturing about and manipulating terrorism concerns. In the

absence of a serious opposition party or organized civil society, effective opposition may

only develop following repeated defeats.

And finally, is “The West”, das Westen, the liberal and social democratic Atlantic

World as we have known it for sixty years over, fertig und vorbei.? Is the pressure of demo-

graphic crisis and Islamic presence in Europe combined with an un-anchored America too

much for “the West as we know it” to bear? I hope to return later to the issue of whether

“the West” now is a smokescreen, Rauchvorhang, for naked American power or whether

Europe can provide an embedding, Einbettung, of American power as the EU and NATO

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It should be noted that the description of the US as the world’s “indispensable nation,”able to see1

into the future and use force when necessary was articulated already by Madeline Albright in the Clintonyears. It is not surprising that after the Soviet Union and the failure of the EU to assert a common and strongmilitary posture, hegemonic thinking in the US became irresistible. We cannot know where Clinton foreignpolicy was headed, particularly after the failure of Israeli-Palestinian negotiations. Of course, it is possiblethat Clintonians would have returned to try again to salve the middle east’s Brennpunkt, in which case muchcould be different today. On the other had, it would be foolish to exaggerate Clinton/Democratic readinessto do all that would be necessary to broker or compel an Israel-Palestine agreement. Still, it was a first effort.

The dramatic presence of Jewish figures in the Bush administration and among its apologists has2

been often remarked upon. Not incorrectly, this presence is associated with a neo-conservative desire tosupport in the strongest possible way what is perceived as Israel’s interests. But I think it would be gravelymistaken to miss or disregard the very real, aggressive commitment to human rights and fighting dictator-ships, especially among the regime’s intellectual enablers and fellow travelers.

earlier did for Germany. Or have the American-supported expansion of the EU and NATO

thinned and undercut an already weak and divided Europe? Should we, as Americans, ask

you then for Zähmung or for your Wiederstand, for multilateralism or outright opposition?

That the Bush regime has turned America, the “indispensable” hegemon into the1

source of disorder and disaster in one land after another has its roots, it seems to me, in his

illegitimacy as well as his arrogant incompetence. More than most people, I am inclined to

trace much of the energy, aggression, and ultimately crimes of this government back to the

regime's original illegitimacy and the subsequent need to legitimate itself. Here I think much

can be understood about the Bush government through the lens that has been used by the

Bochum historian Hans Mommsen to discuss the Nazi regime and its leadership. I do not

mean to suggest that the agendas, practices, or goals of the two are the same or that the

crimes, so far, are of the same order. Indeed, if time permits I will in fact argue that a

sincere post-holocaust, assertive human rights consciousness as well as a parallel hypocritical ideology

are essential to understanding the Bush regime’s policies. But I do mean to suggest that2

there are some useful and illuminating comparisons to be made between America’s current

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Though some have tried: see the work of Robert Bellah, in particular, as well as S.M. Lipset, Ameri-3

can Exceptionalism: A Double-Edged Sword (New York 1997).

government and others with which we are not usually associated.

II. The Bush Coup

The coalition that was put together around the pallid, dull and almost clownish

George W Bush in 2000 was a continuation of the conservative Republican strategy devel-

oped by Reagan in the ‘80s and intended, above all, to dismantle further the welfare state

and empower America’s elites while promoting so-called traditional values. It consisted, as it

has all along, of economic elites and the media they control preaching the anti-government

gospel of tax reduction and the free market; and anti-left, religious Mittelständler –old and

new– in the “new” south and mountain west especially, whose underappreciated belief in

God and rugged individualism is as difficult to understand and deconstruct today as it was

when Alexis de Tocqueville wrote so lavishly about it in the middle of the 19 century. Asth 3

to Bush himself, we should remember how that other great commentator of the mid-19 th

century, Karl Marx, could describe Louis Napoleon as a clown, as a farcical recurrence of his

great uncle, which however didn’t prevent the successful coup d’etat of 18 Brumaire. Like-th

wise, George W was but a farcical declasse repeat of his father, only now without a Soviet

Union to encourage caution in the world. In retrospect, six years later, it is salutary to recall

Mommsen’s argument that, in many respects, Hitler too was a weak and unimpressive

leader, often detached from key decisions, both before and after he took office.

Unlike 1851, 1922, or 1933, 2000 was not an auspicious year for an opposition

victory, let alone a radical change. Despite the deep sins Clinton had committed against

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Of course, the election of 2000 should never even have been close. The failures of the Gore cam-4

paign were many –before and after the vote– but I cannot address them here beyond mentioning the fatalerror of distancing himself from Clinton. On the other hand, Clinton’s failure to kowtow to the right-wingMiami elite in the Elian Gonzalez affair, though very rechtstaatlich, turned out to have disastrous electoralconsequences precisely at the election’s ‘ground zero.’ Those could have been negated had Gore chosen the veteranFlorida senator (and later one of the very few outspoken opponents of the Iraq war) Bob Graham, as hisrunning mate. But looking for someone who had criticized Clinton’s behavior, Gore chose instead theJewish conservative Joe Lieberman. Lieberman cost Gore anti-Semitic votes in the South while bringingabsolutely nothing. Lieberman has subsequently become the best proof that appeasement doesn’t work.

The history of Miami’s radical Cuban exiles must be left for another occasion. Suffice it to say that5

these terrorists avant le lettre have been harbored and active on the right fringes of the Republican party formany years. They played, for example, key roles in the putsch against Allende in Chile, Nixon’s Watergate, the Reagan Contra war in Nicaragua, and in western hemisphere mischief that has yet to end. Of particularinterest in the terrorism context: A quarter-century before Sept. 11, a bomb ripped a gash in a Cubana civil-ian jetliner in the skies off Barbados. The plane plummeted into the Caribbean and all 73 people on boarddied: Posada-Carilles. They are always handsomely rewarded, not only with an endless US campaign againstthe Castro government, but also with huge financial and ideological subsidies. Their “legitimate” elite face isalso well-represented in Washington. Currently John Negrponte, adopted into these circles, is Director ofNational Intelligence while Cuba-born Otto Reich, with whom he worked on Nicaragua and Honduras, is incharge of menacing Latin America. Miami’s three republican Congressmen, Ileana Ros-Lehtinen, LincolnDiaz-Balart, and son Mario Diaz-Balart, are among the most reactionary in Washington and completelyuntouchable in Miami.

Americas’s hypocritical Puritanical soul, and despite his moving the Democratic Party even

further to the right on nearly all domestic issues, he was fortunate to oversee a period of

broad growth and full employment. So it took something of a coup d’etat for Bush to

become President. Living in Miami, I was able to view this coup d’etat close up as it was4

prepared and as it unfolded just a few kilometers from my office. Like the quasi-coups in

Paris of Brumaire 1851 or Rome of March 1922 or Berlin of January 1933, the Miami coup

combined established conservative/rightist party participation, both legal and illegal, with

radical street terror by Louis Napoleon’s Society of December the 10 , Mussolini’s squadris-th

ti, Hitler’s S.A. storm troopers, and Bush’s Cuban exile cadres. 5

To most minds, the December 9, 2000 US Supreme Court’s ruling terminating the

Florida recount and thereby installing Bush as president capped an improbable stolen electi-

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There is no question that the Gore campaign, relying on top corporate lawyers, made a fatal political6

and ideological error insofar as it demanded a recount --in those counties where it saw potential gains rather

on --a voting process overseen by the candidate’s Governor brother and an elected Florida

interior minister working under him who simultaneously functioned as Chair of the Bush

election campaign in Florida. This is true and reprehensible yet it undervalues the fascistic

traces, Züge, that preceded it. These consisted of two major efforts, one culminating on

election day and the other on display during the critical moments of the (re-)counting pro-

cess. First, relying on trustworthy knowledge that 90% of former felons vote Democrat, and

knowing that available racist sentiment would back them up, Florida Republicans voted to

spend $4million to purge approximately 8,000 former felons from the voter rolls (including,

as it turned out, 2883 who were absolutely entitled to vote, having committed their crimes in

previous states of residence where felons are not disqualified) along with a still-unknown

number of false positives disqualified in a deliberately, but not randomly, overbroad search.

This after rejecting a bill to spend $100,000 for voter education. These “disqualifications”

were first activated and effective on election day so that there was no opportunity for

counterchallenge or remedy. Thus did the Southern ancien regime overturn the Voting

Rights Act, the jewel of the ‘60s Civil Rights movement, at least for this occasion. As much

as the Weimar period elites hated popular democracy and universal suffrage, I am unaware

of any efforts of this sort in 1932 to keep the wrong people from voting.

Truly remarkable but still underappreciated are the events in Miami of 22/23 Novem-

ber 2000. After an automatic machine recount reduced Bush’s Florida lead from 1700 votes

to 357, the Florida Court ordered a full recount in several counties, including Miami-Dade. 6

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than in the entire state.

Dana Canedy and Dexter Filkins, “A Wild Day in Miami, With an End to Recounting,” New York7

Times, Nov. 23, 2000, p. A31.

As the hand recounts showed a definite trend, with a more than sufficient gain for Gore, the

recount in Miami was shut down and reversed. To read mainstream press accounts of those

days is frightening still and underscores what circumstances made this President:

MIAMI Nov.22–After a furious demonstration by Republicans, Miami-Dade countyelection officials stunned both sides in the bitter contest for Florida’s presidential vote anddecided today to end their recount of 654,000 ballots.... The recount began on [the 20th]. By the time it came to an end today, Mr Gore had gained 157 votes with 99 of 614 precinctscounted. 7

The next day we learned some of the particulars of this “furious demonstration.”

MIAMI Nov. 23–The Miami-Dade County Canvassing Board’s decision [yesterday] to shutdown its hand recount...followed a rapid campaign of public pressure that at least one of theboard’s three members says helped persuade him to vote to stop the count....The city's most influential Spanish-language radio station, Radio Mambi, called onstaunchly Republican Cuban-Americans to head downtown to demonstrate. Republicanvolunteers shouted into megaphones urging protest. A lawyer for the Republican Partyhelped stir ethnic passions by contending that the recount was biased against Hispanicvoters. The subsequent demonstrations turned violent on Wednesday after the canvassers haddecided to close the recount to the public. Joe Geller, chairman of the Miami-DadeDemocratic Party, was escorted to safety by the police after a crowd chased him down andaccused him of stealing a ballot. Upstairs in the Clark Center, several people were trampled,punched or kicked when protesters tried to rush the doors outside the office of the Miami-Dade supervisor of elections. When the ruckus was over, the protesters had what they hadwanted: a unanimous vote by the board to call off the hand counting...Republican supporters scoffed at the accusation that they had engaged in a scheme ofintimidation, saying the protest had been nothing more than a spontaneous manifestation ofpeople's anger. ''It's the same type of democracy in action when Jesse Jackson parachutes inand starts a protest in the black community,'' said Miguel De Grandy, a lawyer for theRepublican Party. ''People have a right to express their opinions.'' ...Mr. Cepero played a key role in the protests, roaming around the building outside and, witha megaphone.... He regularly cut into Radio Mambi's broadcasts to encourage people tocome downtown. And he also phoned in interviews with two Republican lawmakers --United States Representatives Lincoln Diaz-Balart and Ileana Ros-Lehtinen, both Cuban-

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Dexter Filkins and Dana Canedy, “Protest Influenced Miami-Dade’s Decision to Stop Recount,”8

New York Times, Nov. 24, 2000, p. A41.

Last month --übrigens– saw the 3000 US military death in Iraq and at least the 300,000 Iraqith th9

civilian death since the US invasion. Shockingly, there is now a report of 600,000 dead. The Lancet.

Americans -- who also helped persuade people to come. 8

A gesunde Volksempfindung at work.

III. Reichstagsbrand and Ermächtigungsgesetz; 9-11 and the Patriot Act

Given the enormity of the Nazis’ crimes and deviousness, it has taken us all a long

time to accept the proposition that the Nazis actually did not themselves torch the Reichstag

in order to create a crisis that would enable them to eliminate their opponents and tighten

their grip on the nation. The arson of the Reichstag (as my colleague Anson Rabinbach has

recently again explained) took place more or less as the government claimed. The “genius”

of the Nazis, so difficult for rationalists to accept, lay not primarily in lies and deceptions

(though certainly there were and would be plenty of those) but in being able to exaggerate

and transform a real attack by their real enemies and to use it for their ends. “Sweet are the

uses of adversity which like the toad, ugly and venomous, wears yet a precious jewel upon

his head.” (As You Like It)

With Al-Qaeda’s hijacking attacks of 9/11 and the 3000 deaths they caused, America9

was attacked in the Homeland --not the furthest reaches of a distant 1941 territory of Hawaii

but at its very iconic centers of business and military power, the World Trade Towers of

Manhattan and the Pentagon in Washington. This was something Americans could hardly

conceive of: in fact, the very word “homeland” had subsequently to be rescued from linguis-

tic obscurity. (Of course the iconic value of the Reichstag, inscribed with its dedication “To

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Although repeatedly denied by Rice, undeniable proof that she received and ignored that July 10,10

2001 report has become incontrovertible as former CIA Chief Tenet bails out; “State Department ConfirmsRice-Tenet Meeting,” New York Times, Oct. 3, 2006, p.A2.

Both acts have the required Orwellian full names: United and Strengthening America by Providing11

Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 is as deranged as The Law forRemedying the Distress of the Nation and Reich (Gesetz zur Behebung der Not von Volk und Reich).

The German People,” should not be understated either, and, having suffered recent

invasions, the resonance of Heimat to Germans was immediate.)

It was widely, and correctly, remarked at the time that George W Bush became Presi-

dent not upon inauguration in January 2001 but on September 11, or at least once he resur-

faced from hiding (until which time it seemed that Mayor Guliani of New York was in

charge). That was the moment of Bush’s Reichstag fire and, whether one considers him a

strong and central figure or, following the Mommsonian analysis, which certainly seems

persuasive to anyone with a vivid recollection of the moment, the product of his supporters,

it was the turning point. Unable to become a president by legitimate election, he now

proved able to legitimate the presidency he occupied by building and fighting a struggle

against terrorism. From that day onward and through the Military Commissions Act of

October 2006 --but not before: Bush and Security Advisor Rice had that summer studiously

ignored an explicit intelligence report warning that Al Qaeda was planning imminently to

attack the US by crashing hijacked planes into major buildings. 10

What followed with astounding rapidity (30days) was the USA-Patriot Act, the US

government’s Ermächtigungsgesetz. The German government in 1933 had required 24 days,11

as the senescent President Hindenburg was still part of the regime and there was opposition

from the Social Democrats.94 of 531 Reichstag deputies (18%)opposed the Ermächtigungsges-

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etz, which permitted the Chancellor and his cabinet to enact laws without parliamentary ap-

proval. The Patriot Act, though not nearly so far reaching (see below), was opposed by 67

Congressmen (13%), passing by a vote of 98-1 in the Senate and 357-66 in the House (and

was renewed and toughened, with even less opposition, in 2005). Quickly, and whether

coincidental or otherwise, the well-founded panic of 9/11 was exacerbated by a mysterious

and never-solved anthrax bio-terrorism panic less than a month later. In Mommsonian

fashion, things were just happening, and with each such development, the underachieving

dolt, the perpetually-vacationing mediocrity was transformed into a steely Commander-in-

Chief. Louis Napoleon the flop might soon don the purple robes of Emperor Napoleon

III.

The Constitutional mandate later claimed by Bush for the powers he inferred from

this Act lay, the administration claimed, in the President’s powers as Commander-in-Chief in

times of war. This was ratified, according to the President and his ministers, by the “robust”

Congressional Authorization for the Use of Military Force resolution passed three days after

9/11. In a total of under 60 words, it authorized “the President to use all necessary and

appropriate force against those nations, organizations, or persons he determines planned, authorized,

committed or aided the terrorist attacks” (107 Congress/1; SJ Res 23; emphasis added).th

Thus was born the War on Terror that has brought us all the terror of war. The

domestic war began quickly with the arrest and secret detention of over 1200 resident aliens,

mostly Muslim, sometimes on the basis of civil immigration violations, sometimes on no

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US Immigration Law has long required that anyone detained for deportable immigration violations12

must receive a formal, written Notice to Appear within 48 hours that states the alleged grounds for possibledeportation. This document becomes the official charging document from which both sides work. It hasbeen well documented that many post-9/11 immigration detainees were detained 6 months without a NTA. See Turkmen v. Ashcroft, 2006 US Dist LEXIS 39170 (EDNY June 14, 2006) and Iqbal v. Hasty, 2007 US App.LEXIS 13911 (2d Cir. June 14, 2007).

On the secret immigration detentions, see e.g., the Testimony of M.A. Chisti, Director of the very13

mainstream Migration Policy Institute before the Senate Judiciary Committee, Nov. 18, 2003 as well as thedamning “Report to Congress on Implementation of sec. 1001 of the USA-PATRIOT Act,” US Dept. OfJustice, Office of the Inspector General, July 17, 2003. On the Material Witness Statute and its abuse, seeBascuas.. Perhaps needless to say, not a single one of these individuals has been convicted of a terrorist

crime..

ICRC Update, 30 Sept. 2006; 14 www.icrc.org/eng/siteng0.nsf/html/usa-detention-update. In Marchthe ICRC estimated several hundred detainees at gulags abroad, including Bagram, plus over 400 at“G’itmo.”

basis, and mostly never charged or even arraigned. Under a so-called Special Registration12

Program, 80,000 young men from two dozen, mostly Muslim, countries were called in to

Immigration and Naturalization Services offices (the INS itself soon to be folded into the

Department of Homeland Security) for “voluntary” interviewing, photos, etc. For 14,000 of

them, the reward for cooperation was deportation, mostly on technical grounds that had

always previously been ignored. An unknown number of others were invited for interviews

by security agencies from which they did not return for extended periods. Another 50 or so

individuals were held and temporarily disappeared as “material witnesses,” without ever

being charged or called to be witnesses to anything. No one may ever know how many13

people were detained or rendered overseas (perhaps for torture by proxy), where or for how

long or under what circumstances, but in March 2006 the International Red Cross could

estimate that (excluding Iraq and Guantanamo) there were still several hundred unofficial

detainees abroad that it knew about. 14

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Under the Authority of Article 48, ¶2, Articles 114-118, 123, 124, 153 of the Weimar Constitution15

were suspended.

Gustav M.. Gilbert, Nuremberg Diary New York: Farrar,Strauss, 1947), pp. 278-79. Gilbert was an16

Allied psychiatrist who spoke with Goering on 18 Apr. 1946 during the Easter recess of his trial.

In contrast, the Ermächtigungsgesetz was derived from Hindenburg’s Reichstagsbrandver-

ordnung, formally the Order “for the Protection of the People and the Nation,” (zum Schutz

von Volk und Staat). It too had been a brief declaration, a one-sentence decree issued the day

after the terror act and restricting habeas corpus, freedom of assembly and organization,

press rights, and the requirements for warrants to search homes or monitor electronic

communications. Under its authority about 10,000 people, mostly Communists, were15

arrested in the next two weeks. Before too long, Nazi military success, economic recovery,

and the cowardice of Germany’s enemies made domestic repression less necessary, at least

until such time as the military tide turned. As Hermann Goering later explained it while at

Nuremberg:

The people can always be brought to the bidding of the leaders. That is easy. All you haveto do is tell them that they are being attacked and denounce the pacifists for lack of patri-otism and exposing the country to danger. It works the same way in every country. 16

Of course, we Americans have been told that such comparisons, perhaps superficial,

can harm America and endanger national unity. It is supposed to mean something different

when Bush declares that, “My most important job as your President is to defend the home-

land.” Or, as Attorney General Ashcroft put it, rather menacingly, in championing the Pat-

riot Act,“To those who scare peace-loving people with phantoms of lost liberty, my message

is this: Your tactics only aid terrorists, for they erode our national unity and diminish our

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John Ashcroft, testimony before the Senate Judiciary Comm., Dec. 6, 2001; Bush Mar.. 29, 2002. 17

Claus Offe,”Rekonstruktion oder Dekonstruktion des ‘Westens’”, ms. Sept. 2006, p. 5 (on file),18

citing also Robert Goodin, What’s Wrong with Terrorism (Oxford 2006). See also, John Torpey ed., Old Europe,New Europe, Core Europe: Transatlantic Relations after the Iraq War (London 2005).

resolve.” To rephrase a recent observation by Claus Offe, the bootstrapping argument of17

the Bush regime is “If our government adopts measures of this sort, than just imagine how

acute and ubiquitous the dangers must be that it thereby protects against” – not to mention18

how necessary and legitimate our own government. Such a government can do whatever it

wants and its leaders ought not to be challenged.

The Bush Ermächtigung and the legitimation of a presidency never democratically

attained therefore both depend on the construction of a grave terrorist threat and the need

for Ashcroft & Co.’s unembarrassed repression at home. The result is what Offe describes,

acutely I think, as an intensified long-term fear of terrorism that accompanies a “second

order” regime terrorism (voiced especially through the Vice President, Defense Secretary,

and selected Congressional Party leaders). Working from the customary description of

terrorism allows, again in Mommsonian fashion, for a regime self-escalation. Terrorists use

illegal methods to induce and spread fear and dread in a population in order to gain political

advantage. What the “Bushies” have done is “a) at the risk of and sometimes through the

very use of illegal means accomplish b) the spread of fear and dread through the dramatici-

zation of and warnings of terrorism, c) for the purpose of anchoring and enhancing political

power.” Instead of the fear generated by the brutal acts of “real” terrorists, the empowered

regime unhesitatingly escalates “multifaceted and derisive assaults on and suspensions of civil

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Only this past week was it reported that the Defense Department’s TALON database of 150019

“suspicious incidents” on 2004-05 included “dozens” of antiwar demonstrations as “threats” to security. SeeEric Lichtblau, “Documents Reveal Scope of US Database on Antiwar Protests,” New York Times, 13 Oct.2006, p. A16.

The literature here is beyond voluminous: see e.g., Robert Gilpin, War and Change in World Politics20

(Cambridge 1981), The Political Economy of International Relations (Princeton 1987), The Origin and Prevention ofMajor Wars (New York 1989) or the many works of scholars such as Joseph Nye and Stephen Krasner.

Ulrich Preuß, Abschiedsvorlesung an der Freien Universität, z.T. in der FAZ, 9 Mai 2006, p. 10.21

and human rights way beyond any measure of the requisite, proportionate, or rechtstaatlich.”19

Being the hegemon means that such practices will be contagious and become ac-

cepted by at least some of America’s allies. And, being the hegemon in turn also means that

internationally America’s interests, as construed and articulated by the self-legitimating reg-

ime, are perforce the interest of all so that no other state can or should stop it from doing

what it does. A long tradition in political theory accepts the role of the hegemon as the

pivot of order and stability. Yet this is, of course, a very dangerous business, as the Berlin20

legal-theorist Ulrich Preuß has made clear. When a Power is the protector of the interna-

tional constitution, so to speak, the very real danger exists that “the enemies of the hege-

monic state appear to be the enemies of all humanity.... It could be, then, that the demo-

cratic hegemon is not the answer to the problem of global order but rather perhaps the

problem itself.”21

IV. “Sovereign is he who decides”: The Protector of the Constitution and theConservative Economic Agenda

Enter Carl Schmitt and John Yoo. The defense of such extraordinary measures, and

more too, lies in the claim that democracy, America, faces an existential threat. Such an

existential threat cannot be managed from within a conventional constitutional legal frame-

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For an overview, Mark Tushnet ed., The Constitution in Wartime: Beyond Alarmism and Complacency22

(Durham 2005). The name most associated with the Unitary Executive legal theory underlying both theUSA-Patriot Act and the famous “Torture Memo,” placing decisions on torture in the hands of the Presidentis John Yoo; see The Powers Of War And Peace: The Constitution And Foreign Affairs After 9/11 (Chicago 2005).

My colleague Steven Vladeck will be addressing those matters more directly. As is relatively well-23

known by now, the Act, particularly in §215 extends to almost every aspect of law enforcement: obtaining thepersonal records and tangible things of nearly anyone without a warrant; libraries, hospitals, and businessesare subject to ‘demand letters’ –National Security Letters--for records and information that are deemed by theexecutive “sought for” in terrorism investigations– while the institutions and persons in question areprohibited from even acknowledging that such a demand has been made of them; internet activity is moni-tored, along with credit card billing data. Specific “probable cause” is no longer a prerequisite. Incognitodetention, initially an abuse reserved for aliens in trumped-up immigration proceedings after 9/11, wouldbecome a permissible part of any terror investigation according to §201 of the 2003 Patriot Act II. For acomplete discussion, see David Cole and James Dempsey, Terrorism and the Constitution (New York 2006).

Upon the signing of the law Oct. 17, the Justice Dept. made clear that the government would24

move immediately to have dismissed the 500+ pending habeas lawsuits; Sheryl Stolberg “President SignsNew Rules to Prosecute Terror Suspects, New York Times, Oct. 18, 2006, p. A14.

work, it is argued, because it is simply too dire. Theories of a strong executive, of expanded

wartime executive powers, are hardly new in the US, but they have rarely been pushed so far

or so hard. What is certain is that the treatment of enemy combatants, the issues of22

torture, rendition, and disappearances are of a piece with the domestic repression of the

Patriot Act. The authority of the President in the Military Commissions Act (Oct. 2006)23

–against the urgings and protests of the military establishment– to define and detain enemy

combatants without the benefit of either Geneva Treaty protections or US court review is the

outward-facing aspect of the same power that permits the abridgment of domestic

freedoms. Thus, the 2001 “Authorization to Use Military Force,” the 2002 “Global War on24

Terror,”the 2003 Iraq War, the 2004 “torture memo” offensive, the 2005 National Security

Agency “domestic spying” revelations and warrantless searching bypassing the Foreign

Intelligence Surveillance Act, and the 2006 Military Commissions Act are all of a piece. It is

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Many critics have seen this as just another example of Bush’s difficulties with the language, but25

there is a non-randomness to his selection: it conflates religious decision-making authorities (such as talmudic“decisors”) with the tie-breaking procedures in racing (“deciders”). E.g.: “I hear the voices, and I read thefront page, and I know the speculation. But I'm the decider, and I decide what is best.” 18 Apr. 2006.

at the moment of such emergency, of the exception that we find the font of sovereignty and

learn who is sovereign.

As is well known, Article 48, ¶2 of the Weimar Constitution read: “In case public

safety is seriously threatened or disturbed, the Reich President may take the measures neces-

sary to reestablish law and order, if necessary using armed force. In the pursuit of this aim,

he may suspend the civil rights described in articles ... partially or entirely.” The benign

interpretation of this power, at the time and ever since, has been that democracies must be

militant in their own defense against serious threats and that, therefore, protecting the

Constitution can sometimes require suspending or going outside of it. Der Hüter der Verfaß-

ung may then well be the force –the Executive, the President– who goes outside the Consti-

tution. Still, by this benign theory of the exception, the power to declare the state of

emergency is found in the Constitution, and so the sovereign must respect constitutional

restraints on the exercise of that power. Inevitably, however, such restraints prove illusory,

and so in the Schmittian version, and perhaps in the incipient American version as well, the

sovereign comes to operate in a legal black hole, turned perhaps into a gray hole by broad

legislative Ermächtigung .

Indeed, in a linguistic twist stranger even than the rediscovery of “homeland,” Pres-

ident Bush has discovered a theory of his extra-legal Eigentlichkeit, namely that he is “The

Decider.” And it is The Decider who is sovereign: on this Carl Schmitt and John Yoo25

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One recalls here Schmitt’s words from the opening pages of his Political Theology: “It is precisely the26

exception that makes relevant...the whole question of sovereignty.... The most guidance the Constitution canprovide is to indicate who can act in such a case.” (Schwab edition), pp. 6-7; on “voice of God,” p. 49.

Field Marshal Wilhelm Keitel, like A.G. Alberto Gonzalez, was the Decider’s trusted confidant.27

Upon receiving a memo from Gen. Canaris on the Eastern Front (when things were going very badly in1945), to the effect that the German army was violating “its chivalric code of military conduct”, Keitl wrotein the report’s margins that such quaint concerns were “irrelevant here because we are fighting an ideology.” Henry Friedlander...

The American locus classicus for this position is found in. Ex parte Milligan, 71 U.S. 2 (1866), Dun-28

can v. Kahanamoku, 327 U.S. 304 (1946) Home Loan & Bldg. Ass'n v. Blaisdell, 290 U.S. 398 (1934). John Fere-john and Pasquale Pasquino offer a contrary view in “The Law of the Exception: A Typology of EmergencyPowers,” 2 Intrntl Jrnl. of Constl. Law 210 (2004) in which they argue that sovereigns everywhere in liberal

agree, as both normalize the exception. The corresponding theoretical construct has been

that of the “unitary executive”– “Souverän ist wer über den Ausnahmezustand entscheidet” who

decides both whether there is an emergency and what to do about it. That formula has been

accompanied by the suggestion that a constitutional change has occurred. The liberties-26

protective statutes of the ‘70s are declared outmoded and the war-regulating understandings

of international law emerging from WW II, Korea, and Vietnam are declared “quaint” relics

(Gonzalez). Gonzalez’s position, by the way, is the one adopted at Nuremberg by Wilhelm

Keitl –where it helped land him a noose around his neck.. Going forward, the “unitary27

executive” is necessary for fighting an indefinite war on terrorism or Islamo-Fascism (a

competing moral absolutism: “In America...the voice of the people is the voice of God”–

Schmitt), the development of a domestic side to the Commander in Chief power, and the

perception of the US “homeland” as a theater of war.

The Bush legal thinkers simply reject the argument, associated with Dicey and the

British, but also Kelsen, that the sovereign simply has no authority to suspend the constitu-

tion as long as the “ordinary courts of law are open and able to function.” A little bit of28

-18-

polities have Prerogative Powers, whose use by the Executive legislatures will later indemnify or not. BruceAckerman, “The Emergency Constitution,” 113 Yale Law Jrnl. 1029 (2004) would prefer to see legislatorsrather than judges regulating emergency powers, and he proposes to accomplish that through a “supermajori-tarian escalator” that demands larger majorities, shorter time frames and more checks and balances as theExecutive raises the stakes. David Dyzenhaus’s conclusion that “Grey holes are more harmful to the rule oflaw than black holes” is, I think, correct: see, “Schmitt v. Dicey,” 27 Cardozo Law Rev. 2005, 2026 (2006).

For but a few examples of this seepage, see Brian Decker, “‘The War of Information’”: The29

Foreign Intelligence Surveillance Act, Hamdan v Rumsfeld and the President’s Warrantless WiretappingProgram,” 9 Journal of Constitutional Law 1 (2006).

In Dyzenhaus’s words: “the legislature will have decided to give the executive what the Bush30

administration had claimed it could have without legislative authorization”; ibid. p. 2039.

legality to cover a “unitary executive’s” power grab is arguably worse if, as we have repeat-

edly seen since 9-11, demi-legality facilitates the seepage of repression into ever-larger areas

of life. In the end, Congressional approval of the new Military Commissions Act, for29

example, amounts to no more than a formally legal delegation of unchecked authority, a

further Ermächtigung, an in-advance Indemnification of executive law breaking. If The30

Decider continues on this path, than the next step would be “rule by prerogative” governing

certain, ever-expanding “security” domains while the “rule of law” continued to govern

other areas. That would leave us embarked on what Ernst Fraenkel described as The Dual

State.

Objections to the movement toward a fascistic dual state have been met at every

stage with both governmental and professional incredulity and outrage. How dare one

compare America to dictatorships. Perhaps there have been necessary-if-unattractive

measures (Guantanamo, warrantless searches and eavesdropping, torture memos, the abuse

of immigrants, etc), but these have been, it is said, responses to real threats that should not

-19-

Some readers of an earlier version of this piece insisted that it was disrespectful and wildly exag-31

gerated to compare the trajectory of the Bush administration with dictatorships we have known. A persistentcriticism was that the “rule of law inside the U.S. on non-terrorism matters” remained rock solid. See[Markel blog]

“Hatred in battle” was recognized and allowed by the Lieber Code, developed during the U.S. Civil32

War. On the episode in question, see Trial of the Major War Criminals before the International Military Tribunal, 42vols. (Nuremberg 1947-49); here vol. 26, Doc. PS-783; see also Docs. PS-784-788.

See Bracher, Mommsen, Broszat us.w. Frederick Schwarz Jr and Aziz Huq, Unchecked and Unbal-33

anced: Presidential Power in a Time of Terror (New York 2006) and Joe Conason, It Can Happen here: AuthoritarianPeril in the Age of Bush (New York 2006).

Monica Goodling was a graduate of Pat Robertson’s Regent University Law School and a product34

of the religious-populist/“kleinbürgerlich” wing of the Bush Bloc while Kyle Sampson was a representative

be compared with regimes that have subverted and destroyed the rule of law. But neither a31

Reich nor a Diktatur is built in a day. Even after enjoying a monopoly of power for a full

year, the Nazi Reich Minister of Justice condemned and even prosecuted cruelty in the

concentration camps. Indicting a case of water torture [sic!] the Reichsminister wrote:

The nature of the assault, especially the use of water torture, reveals a brutality andcruelty on the part of the perpetrator that is alien to German sensibilities and feelings. These cruelties, reminiscent of oriental sadism, can neither be explained nor excusedby even the most extreme form of hatred in battle.” 32

As if on cue, however, we have seen in the Spring of 2007 how the seepage of

prerogative power into the normal rule-of-law state has advanced. The exposure of the

Gleichschaltung (coordination and consolidation) of the Justice Department apparatus at the

highest levels has been a rude awakening. As in some other regimes, purges violating33

established principles of professional merit are often implemented by young religious party

zealots– people like Monica Goodling and Kyle Sampson. Peculiarly American is that their

appointment, like that of Gonzales himself, could be heralded as breakthroughs for

minorities. The near-simultaneous release of the Miami-based terrorist Posada-Carilles by34

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of Mountain Mormon business wing. They and their comrades worked for Gonzales, himself a classic“crony” appointment,” whose naming however was heralded, even by those who should have known better,as a breakthrough for Hispanics and a victory for affirmative action. See e.g., Michael Olivas, “The Arc ofLatino Lawyering: From Padre Martinez to Alberto Gonzale: Implications for Advocacy by and about Peopleof Colors,” Southeast/Southwest People of Color Legal Conference, April 2007. On the purge activists, seeEric Lipton, “Colleagues Cite Partisan Focus by Justice Official,” New York Times, May 12, 2007, p. A1 andthe editorial summary, p. A24. (eds: cite news stories preceding)

Articles on the (1) release and (2) non-detention of Posada in April and May 2007.... We will, I35

predict, soon learn of a new Justice Department repression specialty: Turning Jackoffs into Terrorists. TheMiami martial arts conspiracy of Winter 2007 and the New Jersey pizza delivery conspiracy will dissolve likethe soap bubbles they are.

Carl Schmitt, “Gesunde Wirtschaft im starken Staat,” in: Mitteilungen des Vereins zur Wahrung36

der gemeinsamen wirtschaftlichen Interessen in Rheinland und Westfalen (Langnamverein), Heft 21/ 1932,S. 13–32.

the same Justice Department returns us to the origins of the Bush presidency.35

* * *

Lest one forget: Along with exploring aggrandized executive sovereignty and its

ramifications, it is worth pointing out that there is an internal, reactionary economic policy

that is consistently part of this package. Corruption and jobbism characterized Marx’s and

Mommsen’s dictators, and clearly the Bush regime has been characterized by the Halliburt-

on, Enron and other scandals as well. As noted earlier, however, the Bush economic

program above all promised to dismantle further the welfare state and empower America’s

elites while promoting so-called traditional values. Likewise, though we associate Carl

Schmitt with executive power and sovereignty and the critique of liberal governance, we

should recall that in the early ‘30s he also propagated an economic policy very convivial to

business and economic elites. Thus in his famous 1932 speech to Weimar industrialists,

Schmitt spoke of the “healthy economy in the strong state.” Schmitt’s demand, which was36

also the demand of Weimar’s business elite and is the demand of Bush and America’s

-21-

Renato Cristi, Carl Schmitt: Authoritarian Liberalism: Strong State and Free Economy (Cardiff 1998). See37

also, David Abraham, The Collapse of the Weimar Republic: Political Economy and Crisis (New York 1986), pp. 306-12: for some industrialists there was a tension between a gesunde and a freie Wirtschaft, but most wantedSchmitt’s authoritarian liberalism more than they wanted neo-Manchesterian economics. And that is true inBush’s America as well. See also, lngeborg Maus: Bürgerliche Rechtstheorie und Faschismus. Zur sozialen Funktionund aktuellen Wirkung der Theorie Carl Schmitts. (München 1976).

Along with the work of Michael Ignatieff, Samantha Power’s A Problem from Hell : America and the38

Age of Genocide (New York 2002) served as the battle flag of aggressive human rights consciousness; see fn. 2,above. A slightly –but in my view inadequately chastened-- Ignatieff, Human Rights as Politics and Idolatry,Amy Gutmann, ed.. (Princeton 2001).

business elite, is the demand “to free the economy from the state,” to de-state the economy

(Entstaatlichung der Wirtschaft). This was and is a decidedly anti-democratic demand.. The call

for the state to retreat from economic affairs means that the state should retreat from its

historically accumulated obligations in social policy– in this sense the healthy/gesunde is the

free/freie economy/Wirtschaft –while being politically authoritarian. Here the Bush regime37

more closely resembles the authoritarian liberalism of Schmitt in 1932 than did the later

actual Nazi system.

V. Post Modernist Human Rights Imperialism. from. Milosevic to Sadaam

I began this analysis insisting that a sincere post-holocaust, assertive human rights conscious-

ness as well as a parallel hypocritical ideology were both essential to understanding the Bush

regime. Permit me to close by elaborating briefly on this point. Only a few years ago, one of

America’s leading liberal human-rights figures, Samantha Power , argued that “holocaust38

consciousness” was extremely important in politics because it provided “a moral life preserver

in a sea of interest-based callousness.” From Armenia to Auschwitz from former Yugoslavia to

Rwanda, from Rwanda to Iraq, the cycle of “interest-based callousness” had permitted evil

forces to destroy millions of lives. But, in the new era of global human rights consciousness

-22-

For the sense of that period, see National Security Archive Electronic Briefing Book No. 82, Joyce39

Battle ed., February 25, 2003, http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB82/index2.htmlNational Security Decision Directive 114, dated November 26, 1983 states, "Because of the real and psycho-logical impact of a curtailment in the flow of oil from the Persian Gulf on the international economic system,we must assure our readiness to deal promptly with actions aimed at disrupting that traffic. Soon thereafter,Donald Rumsfeld (who had served in various positions in the Nixon and Ford administrations, including asPresident Ford's defense secretary, and at this time headed the multinational pharmaceutical company G.D.Searle & Co.) was dispatched to the Middle East as a presidential envoy. His December 1983 tour of regionalcapitals included Baghdad, where he was to establish "direct contact between an envoy of President Reaganand President Saddam Hussein," while emphasizing "his close relationship" with the president .[Document28]. Rumsfeld met with Saddam, and the two discussed regional issues of mutual interest, shared enmitytoward Iran and Syria, and the U.S.'s efforts to find alternative routes to transport Iraq's oil; its facilities inthe Persian Gulf had been shut down by Iran, and Iran's ally, Syria, had cut off a pipeline that transportedIraqi oil through its territory. Rumsfeld made no reference to chemical weapons, according to detailed noteson the meeting [Document 31]. Rumsfeld also met with Iraqi Foreign Minister Tariq Aziz, and the twoagreed, "the U.S. and Iraq shared many common interests." Later, Rumsfeld was assured by the U.S. interestssection that Iraq's leadership had been "extremely pleased" with the visit, and that "Tariq Aziz had gone outof his way to praise Rumsfeld as a person" [Document 36 and Document37] Saddam was someone “withwhom we can do business.”

See the classic discussions of George Lichtheim, The Concept of Ideology and Other Essays (New York40

1967) and Karl Mannheim, Ideology and Utopia: An Introduction to the Sociology of Knowledge (London 1936).

Conveniently enough, compiling these reasons and their spokesmen –Wieseltier, Walzer, Ignatieff,41

Berman and a host of others– was the topic of a quasi-agonized portrait in the New York Times Magazine; see

and readiness to intervene, there would be fewer dictators and yet fewer killers. For the Pino-

chets no harbor; for the Milosevics’s no quarter; for the Hutu death squads no looking away;

and for the tyrants like Sadaam Hussein no more toleration, regardless of the oil they might

have to offer the greedy countries of the West. No more concessions to tyrants, such as the

one once offered by Donald Rumsfeld to Saddam Hussein, a “man with whom we can do

business.” 39

It is perhaps never entirely possible to distinguish among falsehoods, self-delusions,

ideological rationalizations, and utopian hopes. And now we can only mock the way Bush40

and his officials went shopping for war rationales. But it is instructive to look at the most

frequently proffered reasons for supporting war in Iraq offered by American liberals. Now,41

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George Packer, “The Liberal Quandary over Iraq,” Dec. 8, 2002, pp. 104ff.

See, for example, Elezar Barkin, The Guilt of Nations: Restitution and Negotiating Historical Injustices42

(Baltimore 2000); John Torpey, Making Whole What Has Been Smashed (Cambridge 2006); idem. ed., Politics andthe Past: On Repairing Historical Injustices (Lanham 2003). Much of the inspiration for these analyses comesfrom the pathbreaking book by Peter Novick, The Holocaust in American Life (Boston 1999) as well as a raft ofliterature on “memory” too copious to even begin to present here..

Max Weber, “Politics as a Vocation,” in Hans Gerth and C. Wright Mills, eds. From Max Weber....43

the entirety of the Bush regime or of its foreign policy is certainly not to be reduced to Iraq,

but the political and moral vision of the country’s elites and their attitude toward an “axis of

evil” and those who would fight that axis are here on display. Human-rights oriented liberals

and compassionate conservatives could agree that: Saddam was cruel; Saddam had used

chemical weapons and weapons of mass destruction against both his neighbors and his own

citizens; Iraqis were suffering from both tyranny and endless material sanctions; Iraqis would,

like all people everywhere, benefit from democracy; a democratic Iraq could function as a

challenge to repressive Saudi power; a democratic Iraq could help break the Israeli-Palestinian

logjam; a democratic, multiethnic, and secular Iraq could liberalize and help educate the Arab

world; a democratic Iraq could offer idealistic Muslim youth an alternative to symbolic

radicalism; and a democratic Iraq would demonstrate a place for virtue in international

affairs.

A merciless focus on the failures of the past and a need for coming to terms with it

–Vergangenheitsbewältigung, and not just in Germany– has been a centerpiece of the human

rights sensibility. To use but reverse Max Weber’s famous dichotomy, we are to be guided in42

politics by an “ethic of ultimate ends” rather than by an “ethic of responsibility.” The43

amoral Bismarckian balance-of-power Realpolitik endorsed by Weber needs to be superseded

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In the pious world of human rights advocacy, there is little room for irony or dialectic. Thus, Lin-44

coln was “too practical” because he did not fight slavery “head on” but fought “only” for Union; FDR wascowardly for fighting Germany rather than ending the Holocaust; and the Vietnamese surely get no credit forridding Cambodia of the Khmer Rouge since dominating their neighbor was their actual goal. Ultimatevalues and transcendent norms, a new Wilsonianism, a new crusade. See Jeremy Rabkin, Law without Nations?Why Constitutional Government Requires Sovereign States (Princeton 2005).

by a higher goal. Rather than the crass and cold realism that has been with us since Thucydi-

des’s Melian Dialogues, a politics of states, liberal human rights advocates urged us to follow

a politics of people and rights first and to heed the Sermon on the Mount. Among the varied

“lessons of the Holocaust,” without which none of these tendencies would be imaginable, is

that evil must be resisted rather than accommodated and that sovereignty must yield to inter-

national civil society’s sense of justice. Rather than the convenience of a Yugoslavia, for

example, the legitimate self-determination rights of peoples (especially of minorities), Bosni-

ans, Kosovars, Croats, Dafurians, Aecheans, etc. must be honored –through force if neces-

sary. Liberal human rights enthusiasts often welcomed the “end of history,” which really

meant the “end of the Soviet Union,” because it opened the door to a free, liberal world

order in place of a bipolar world of “interest based callousness” rationalized as a structure of

security. 44

But as we now know, the end of the Soviet Union meant something altogether differ-

ent. Rather than, for example, enabling the UN to build on its post-WW II treaties and

initiatives or bringing broadly accepted human rights norms to bear on all, the world found

itself subjected to a hyper-dominant military and economic power. The absence of what

American state theorists domestically call “countervailing powers” would soon prove danger-

-25-

After 1990 the Europeans agonized a great deal over their military powerlessness, but the EU45

certainly made no moves toward deepening or strengthening any independent power. In fact, the enlarge-ment of the EU through the accession of the former Communist states was a great victory: for the US! In anyevent, the US outspends the next eight countries put together on weapons.

Out of the corners and interstices of debate, it becomes ever-clearer that the actual scope and scale46

of “terrorism” is far smaller than advertised by the regime. See, e.g., John Mueller, Overblown: How Politiciansand the Terrorism Industry Inflate National Security Threats and Why We Believe Them (New York 2006), JamesBennett, homeland Security Scams (New Brunswick 2006), Ian Lustick, Trapped in the War on Terror (Philadelphia2006), Zbigniew Brzezinski, “Terrorized by ‘War on Terror,’ Washington Post, Mar. 25, 2007.

ous. What liberal human rights advocates could not know is that they were helping to45

prepare the ideological ground for the projection of America’s power by supplying a new

liberal imperialist discourse. What no one could know was that, within a decade or so, that

power would pass into the hands of an aggressive but petty and incompetent figure, sur-

rounded by the basest members of his class. Together they would steal an election and then

use a vile and depraved, but limited, attack by a tiny group of criminal terrorists to run amok46

at home and abroad.

The question that remains is whether the Bush regime is a brief illegitimate and repres-

sive episode disturbing an otherwise largely stable American Empire or whether, as with the

French Second Empire and the German Third Reich, only defeat abroad will topple the

leader and reverse the course of events. But what if there is no power capable of defeating

the American Empire– or is a Vietnam Quagmire, a morass or two enough? What if change

must instead await either the recovery of its people’s own good sense or the slow erosion of

the specific political economy undergirding its wealth and power.