the retun of carl schmitt

Front pageBalkin.com

Balkinizationan unanticipatedconsequence ofJack M. Balkin

E-mail:Jack Balkin:jackbalkin atyahoo.comBruce Ackermanbruce.ackerman atyale.eduIan Ayresian.ayres at yale.eduMary Dudziakmdudziak atlaw.usc.eduHeather Gerkenheather.gerken atyale.eduMark Grabermgraber atlaw.umaryland.eduStephen Griffinsgriffin at tulane.eduBernard Harcourtharcourt atuchicago.eduScott Hortonshorto atlaw.columbia.eduAndrew Koppelmanakoppelman atlaw.northwestern.eduMarty Ledermanmarty.lederman atcomcast.netSanford Levinsonslevinson atlaw.utexas.eduDavid Lubandavid.luban atgmail.comGerard Maglioccagmaglioc at iupui.eduJason Mazzonejason.mazzone atbrooklaw.eduLinda McClainlmcclain at bu.eduFrank Pasqualepasquale.frank atgmail.comNate Persilynpersily at gmail.comMichael StokesPaulsenmichaelstokespaulsenat gmail.comDeborah Pearlsteindpearlst atprinceton.eduRick Pildesrick.pildes at nyu.eduAlice Ristrophalice.ristroph atshu.eduBrian Tamanahabtamanaha atwulaw.wustl.eduMark Tushnetmtushnet atlaw.harvard.edu

Monday, November 07, 2005

The Return of Carl Schmitt

Scott Horton

"Woe unto him who has no enemy, for at the Last Judgment I shall be hisenemy."- Carl Schmitt, Ex Captivitate Salus (1950)

A recent study points to 108 deaths in detention in the War on Terror, with asubstantial part clearly linked to the Bush Administration’s controversial newcoercive interrogation practices. Some of the most egregious cases involve theCIA. In this week’s New Yorker, Jane Mayer takes a close look at one case –that of Manadel al-Jamadi. Approximately two years ago, Jamadi died at theinfamous Abu Ghraib prison near Baghdad. His death was quickly ruled ahomicide, a CIA investigation found clear indicia of criminal wrongdoing, andwith that the matter was placed in the hands of Paul McNulty – the U.S.Attorney for the Eastern District of Virginia and now the Bush Administration’snew nominee to serve as Deputy Attorney General. Since that time, from allappearances nothing has been done – the file has languished “in a JusticeDepartment drawer,” in the words of one of Mayer’s informants.

Mayer, whose earlier writings have greatly contributed to the publicunderstanding of the detainee abuse scandal, astutely recognizes thewide-ranging significance of the case. Justice in a homicide case is importantenough, but this case raises another and potentially far more troublesomequestion: Has the Department of Justice been corrupted by its “torturememoranda”? Would a prosecution expose indelible links between the crimeand the highest echelons of the Department of Justice? The question is notfar-fetched. Indeed, its potential to rock the Bush Administration dwarfs that ofthe Plamegate scandal. As Marty Lederman established in a lengthy series ofposts, the “torture memoranda” served a concrete double function: theyovercame Agency objections that certain interrogation techniques violated thelaw (by furnishing an Attorney General opinion that they were lawful), andthey offered effective impunity to CIA agents who uses these techniques. Icaution that this is the function they were intended to serve. Whethermemoranda of the Office of Legal Counsel can actually shield those who rely onthem from prosecution is doubtful.

Let us assume that the techniques employed on Jamadi – including the likelyfatal “Palestinian hanging” approach – were within the scope of the torturememoranda. Were charges to be brought against the agent who had custody ofJamadi and used the fatal technique, he would certainly plead the torturememoranda as an affirmative defense. Confronted with such claims, a trulyindependent prosecutor would have to consider the possibility that the authorsof these memoranda counseled the use of lethal and unlawful techniques, andtherefore face criminal culpability themselves. That, after all, is the teaching ofUnited States v. Altstötter, the Nuremberg case brought against GermanJustice Department lawyers whose memoranda crafted the basis forimplementation of the infamous “Night and Fog Decree.” Who can imagine PaulMcNulty, now nominated to serve as Alberto Gonzales’ deputy, undertakingsuch an investigation of his boss? Hence, McNulty’s dilemma is understandable,but his failure to act should not be lightly dismissed.

Mayer’s article raises fair and compelling questions about McNulty’s handling ofthe Jamadi homicide case – and about the role of the Department of Justice inthe investigation of detainee homicides generally.

But Mayer’s article is significant for another reason. It sheds new light on oneof two of the “torture memoranda” which is not yet in the public domain, buthas long been viewed as critical to understanding the inhumane practices thatbecame commonplace in Iraq beginning in the fall of 2003.

Books by BalkinizationBloggers

Bernard Harcourt, TheIllusion of Free Markets:Punishment and the Myth ofNatural Order (HarvardUniversity Press, 2010)

Bruce Ackerman, TheDecline and Fall of theAmerican Republic (HarvardUniversity Press, 2010)

Balkinization Symposium onThe Decline and Fall of theAmerican Republic

Ian Ayres. Carrots andSticks: Unlock the Power ofIncentives to Get ThingsDone (Bantam Books, 2010)

Report Abuse Next Blog» Create Blog Sign In

Balkinization http://balkin.blogspot.com/2005/11/return-of-carl-schmitt.html

1 of 12 2/10/2011 5:54 PM

The Anti-TortureMemos: BalkinizationPosts on Torture,Interrogation,Detention, WarPowers, and OLC

The Anti-TortureMemos (arranged bytopic)

Recent Posts

The Return of CarlSchmitt

Just A Few Blogs

ACS WeblogThe AgonistRoger AilesAlas, a BlogEric AltermanAlthouseMarc AmbinderArts and Letters DailyAtrios (Eschaton)Bad AttitudesBag and BaggageTed BarlowBecker-Posner BlogMichael BérubéBlackprof.comThe BlotterBody and SoulThe Buck Stops HereBuzzflash.comBuzz MachineCairns (Beth Noveck)Capitol Hill BlueCato at LibertyAnupam ChanderCobb, the BlogJuan Cole (InformedComment)Concurring OpinionsConnected SelvesThe Constitution in2020Cooped Up (JeffCooper)CopyfightCoranteCorrenteSusan Crawford blogCrescat SententiaCrooked TimberCursor.orgDaily HowlerDaily KosBrad DeLongDemosthenesDigby (Hullabaloo)DiscriminationsDispatches from theCulture WarsDonkey Rising(EmergingDemocratic Majority)Ross DouthatDaniel DreznerKevin Drum (MotherJones)Tim Dunlop (TheRoad to Surfdom)ElectroliteEn BancErnie the AttorneyEunomia (DanielLarison)FafblogFeminist LawProfessors

A March [14], 2003, classified memo was “breathtaking,” the samesource said. The document dismissed virtually all national andinternational laws regulating the treatment of prisoners, includingwar-crimes and assault statutes, and it was radical in its view thatin wartime the President can fight enemies by whatever means hesees fit. According to the memo, Congress has no constitutionalright to interfere with the President in his role as Commander-in-Chief, including making laws that limit the ways in whichprisoners may be interrogated. Another classified JusticeDepartment memo, issued in August, 2002, is said to authorizenumerous “enhanced” interrogation techniques for the C.I.A. Thesetwo memos sanction such extreme measures that, even if theagency wanted to discipline or prosecute agents who stray beyondits own comfort level, the legal tools to do so may no longer exist.Like the torture memo, these documents are believed to have beensigned by Jay Bybee, the former head of the Office of LegalCounsel, but written by a Justice Department lawyer, John Yoo,who is now a professor of law at Berkeley.

As has been noted in this space before, the March 14, 2003 Yoo memorandumhas assumed a “Rosetta Stone” quality. It was transmitted to the Departmentof Defense as advice at a critical juncture – as the Iraq War moved off thedrawing boards and into reality, and questions were repeatedly raised abouthow the Geneva Conventions were to be applied. But that's not all. Mayer'sarticle now suggests the existence of other advice which explicitly addressedthe situation in Iraq:

By the summer of 2003, the insurgency against the U.S.occupation of Iraq had grown into a confounding and lethalinsurrection, and the Pentagon and the White House were pressingC.I.A. agents and members of the Special Forces to get the kind ofintelligence needed to crush it. On orders from Secretary ofDefense Donald Rumsfeld, General Geoffrey Miller, who hadoverseen coercive interrogations of terrorist suspects atGuantánamo, imposed similar methods at Abu Ghraib. In Octoberof that year, however—a month before Jamadi’s death—the JusticeDepartment’s Office of Legal Counsel issued an opinion stating thatIraqi insurgents were covered by the Geneva Conventions, whichrequire the humane treatment of prisoners and forbid coerciveinterrogations. The ruling reversed an earlier interpretation, whichhad concluded, erroneously, that Iraqi insurgents were notprotected by international law.

Documents which have circulated in connection with the Fay/Jones and TagubaReports made clear that following the issuance of high-level legal adviceoutside normal Department of Defense channels, command authorities in Iraqno longer considered the Geneva Conventions to restrain them in theirhandling of detainees. Internal email traffic among military intelligence units isconsistent: Once you label the insurgent detainees as “terrorists,” “they haveno rights, Geneva or otherwise.” It seems highly improbable that officerscarefully trained in the Geneva rules would suddenly discard them on their owninitiative. To the contrary, it is reasonably clear that instructions to that effectwere transmitted from a very high source. The Yoo memoranda are critical tounderstanding what happened, and the March 14, 2003 combined with theinitial OLC advice concerning treatment of insurgents in Iraq are likely themost significant pieces of the puzzle not yet in place.

But where exactly did Yoo come up with the analysis that led to the purportedconclusions that the Executive was not restrained by the Geneva Conventionsand similar international instruments in its conduct of the war in Iraq? Yoo’spublic arguments and statements suggest the strong influence of one thinker:Carl Schmitt.

The Friend/Foe ParadigmPerhaps the most significant German international law scholar of the erabetween the wars, Schmitt was obsessed with what he viewed as the inherentweakness of liberal democracy. He considered liberalism, particularly asmanifested in the Weimar Constitution, to be inadequate to the task ofprotecting state and society menaced by the great evil of Communism. This ledhim to ridicule international humanitarian law in a tone and with words almostidentical to those recently employed by Yoo and several of his colleagues.

Mark Tushnet, Why theConstitution Matters (YaleUniversity Press 2010)

Ian Ayres and BarryNalebuff: LifecycleInvesting: A New, Safe, andAudacious Way to Improvethe Performance of YourRetirement Portfolio (BasicBooks, 2010)

Jack M. Balkin, The Laws ofChange: I Ching and thePhilosophy of Life (2dEdition, Sybil Creek Press2009)


2 of 12 2/10/2011 5:54 PM

Michael Froomkin(Discourse.net)Glenn GreenwaldGlennReynolds.comThe HamsterRick Hasen (ElectionLaw)History NewsNetworkHow AppealingIgnatz (SamHeldman)The Importance of(Ernie Miller)InfolawInstapunditIntel Dump (PhilCarter)InternationalEconomic Law andPolicy BlogJacob LevyJesus' GeneralJurisdynamicsKausfilesOrin KerrKicking AssThe Kitchen CabinetMark KleimanLaw of War (KennethAnderson)Law Blog CentralLaw Blog CentralOrbiterLawCultureLawmemeLeft2RightLegal FictionThe Lefty DirectoryLarry LessigLawyers, Guns andMoneyLiberal OasisBrian Leiter's LawSchool ReportsThe Leiter ReportsMany to Many (ClayShirky)Marginal RevolutionMaxspeakMegan McArdleMemeorandumMetafilterMirror of JusticeChris Mooney (TheIntersection)MyDDNewseumThe News Dissector(Mediachannel.org)No More Mister NiceBlogBrendan NyhanOpen University (TheNew Republic)Opening ArgumentOpinio JurisOrcinusThe Originalism BlogJack O'TooleOur CongressPandagonPassport (ForeignPolicy)The Plank (The NewRepublic)Overcoming BiasPolitical Animal(WashingtonMonthly)Political Theory DailyReviewPolitical Wire (TaeganGoddard)The Poor ManVirginia PostrelPrawfsblawgPublic ReasonJonathan Rauch

Beyond this, Yoo’s prescription for solving the “dilemma” is also taken straightfrom the Schmittian playbook. According to Schmitt, the norms of internationallaw respecting armed conflict reflect the romantic illusions of an age ofchivalry. They are “unrealistic” as applied to modern ideological warfareagainst an enemy not constrained by notions of a nation-state, adoptingterrorist methods and fighting with irregular formations that hardly equate totraditional armies. (Schmitt is, of course, concerned with the Soviet Unionhere; he appears prepared to accept that the Geneva and Hague rules wouldapply on the Western Front in dealing with countries such as Britain and theUnited States). For Schmitt, the key to successful prosecution of warfareagainst such a foe is demonization. The enemy must be seen as absolute. Hemust be stripped of all legal rights, of whatever nature. The Executive must befree to use whatever tools he can find to fight and vanquish this foe. Andconversely, the power to prosecute the war must be vested without reservationin the Executive – in the words of Reich Ministerial Director FranzSchlegelberger (eerily echoed in a brief submission by Bush AdministrationSolicitor General Paul D. Clement), “in time of war, the Executive is constitutedthe sole leader, sole legislator, sole judge.” (I take the liberty of substitutingYoo’s word, Executive; for Schmitt or Schlegelberger, the word would, ofcourse, have been Führer). In Schmitt’s classic formulation: “a total war callsfor a total enemy.” This is not to say that in Schmitt’s view the enemy wassomehow “morally evil or aesthetically unpleasing;” it sufficed that he was “theother, the outsider, something different and alien.” These thoughts aredeveloped throughout Schmitt’s work, but particularly in Der Begriff desPolitischen (1927), Frieden oder Pazifismus (1933) and Totaler Feind, totalerKrieg, totaler Staat (1937).

A Practical Guide to Evasion of the Geneva ConventionsGiven this philosophical predisposition, how was a lawyer then to evade theapplication of the Geneva and Hague Conventions? Here an answer can bedrawn not from Schmitt’s academic works, but from a series of determinationsby the German General Staff which quite transparently reflected the influenceof the then-Prussian State Councilor Carl Schmitt. A careful review of theoriginal materials shows that the following rationales were advanced fordecisions not to apply or to restrict the application of the Geneva Conventionsof 1929 and the Hague Convention of 1907 during the Second World War:

(1) Particularly on the Eastern Front, the conflict was anonconventional sort of warfare being waged against a “barbaric”enemy which engaged in “terrorist” practices, and which itself didnot observe the law of armed conflict.(2) Individual combatants who engaged in “terrorist” practices, orwho fought in military formations engaged in such practices, werenot entitled to protections under international humanitarian law,and the adjudicatory provisions of the Geneva Conventions couldtherefore be avoided together with the substantive protections.(3) The Geneva and Hague Conventions were “obsolete” andill-suited to the sort of ideologically driven warfare in which theNazis were engaged on the Eastern Front, though they might havelimited application with respect to the Western Allies.(4) Application of the Geneva Conventions was not in theenlightened self-interest of Germany because its enemies wouldnot reciprocate such conduct by treating German prisoners in ahumane fashion.(5) Construction of international law should be driven in the firstinstance by a clear understanding of the national interest asdetermined by the executive. To this end niggling, hypertechnicalinterpretations of the Conventions that disregarded the plain text,international practice and even Germany’s prior practice in order tojustify their nonapplication were entirely appropriate.(6) In any event, the rules of international law were subordinatedto the military interests of the German state and to the law asdetermined and stated by the German Führer.

The similarity between these rationalizations and those offered by John Yoo inhis hitherto published Justice Department memoranda and books and articles isstaggering. It is of course possible that John Yoo came upon all of this on hisown, like a scholar laboring in some parallel universe unaware of the work ofothers. Possible. But not probable.

It is more likely that Yoo’s work is a faithful, through crude and occasionally

Brian Z. Tamanaha, Beyondthe Formalist-RealistDivide: The Role of Politicsin Judging (PrincetonUniversity Press 2009)

Andrew Koppelman andTobias Barrington Wolff, ARight to Discriminate?: Howthe Case of Boy Scouts ofAmerica v. James DaleWarped the Law of FreeAssociation (Yale UniversityPress 2009)

Jack M. Balkin and Reva B.Siegel, The Constitution in2020 (Oxford UniversityPress 2009)

Heather K. Gerken, TheDemocracy Index: Why OurElection System Is Failingand How to Fix It (PrincetonUniversity Press 2009)


3 of 12 2/10/2011 5:54 PM

Raw StoryRedstateReligiousLeftLaw.comReporters CommitteeFor Freedom of thePressReproductive RightsBlogThe RittenhouseReviewSCOTUS BlogSCT Nomination blogSeeing the ForestClay ShirkyThe Shifted LibrarianThe SituationistLarry Solum (LegalTheory)Andrew SullivanTacitusTalking Points MemoTPM CafeTPMmuckraker.comTalk LeftTappedTboggTech Central StationTechPresidentThe Paper Chase(Jurist)Tom PaineTom Tomorrow (ThisModern World)The Truth Laid BearEve TushnetUggabuggaUniversity of ChicagoLaw School FacultyBlogUnqualified OfferingsThe VolokhConspiracyWar and Piece (LauraRozen)WampumWhiskey Bar(Billmon)Oliver WillisWonketteMatthew Yglesias(Think Progress)Yin

Your Choice of Feeds1. XML powered by

2RSS com

2. Atom Feed

3.

flawed interpretation of Schmitt. I say "crude" principally because Schmittexpresses from the outset the severest moral reservations about his concept of"demonization." It is, he fears, subject to "high political manipulation" which"must at all costs be avoided." The use of this technique, he writes, may onlybe available when "the survival of the people is at stake." Der Begriff desPolitischen, pp. 20-33. Yoo expresses no comparable hesitation, preferringsimply to place all confidence in the Executive, and justifying this implausiblyin the writings of the Founding Fathers.

But Yoo's conclusions are rendered even more inexplicable by another point.After World War II was over and the full horror of what the Axis Powers haddone was apparent, a consensus was reached to overhaul the GenevaConventions with the express intention of repudiating the German evasions ofthe Conventions listed above. So, while these positions may have beenarguable with respect to the two 1929 Geneva Conventions, they hardly couldbe invoked with respect to the 1949 Conventions. But Yoo continues to citethem, oblivious to the shifts in text and commentary that occurred in 1949.

So how does Yoo come by the work of Carl Schmitt, and why does he fail toacknowledge it in his publications? Yoo is currently a scholar in residence atthe American Enterprise Institute, the center stage of the AmericanNeoconservative movement. That movement traces itself back to Leo Strauss,the political philosopher who lived and taught for many years in Chicago.Though a Jew forced to flee Nazi Germany, Strauss was a lifelong admirer ofCarl Schmitt, a scholar and teacher of his works. Moreover, Strauss’ early workin Germany played a key role in development of the Begriff des Politischen, andSchmitt’s intercession helped Strauss obtain a key scholarship that made hisescape from Germany possible. Though arrested by the Americans and accusedof complicity in Nazi crimes, Schmitt achieved a partial rehabilitation late in hislife - thanks in large part to Leo Strauss. Indeed, Schmitt emerged as anessential part of the Neocon canon, and his work – including all the relativelyobscure works cited here – were translated into English and published by theUniversity of Chicago Press (also Yoo’s publisher). It is therefore hardlyplausible to suggest that Yoo would be unfamiliar with the writings of CarlSchmitt. On the other hand, it is easy to surmise why he would fail toacknowledge his reliance on such a highly stigmatized writer. After all, Schmittwas a notorious antisemite best known for crafting the legal cover for Hitler'sMachtergreifung.

Why Carl Schmitt Hates AmericaCarl Schmitt was a rational man, but he was marked by a hatred of Americathat bordered on the irrational. He viewed American articulations ofinternational law as fraught with hypocrisy, and saw in American practice inthe late nineteenth and early twentieth centuries a menacing new form ofimperialism (“this form of imperialism… presents a particular threat to a peopleforced in a defensive posture, like we Germans; it presents us with the greaterthreat of military occupation and economic exploitation” he writes in 1932 – ata time of almost unprecedented American isolationism)(Die USA und dievölkerrechtlichen Formen des modernen Imperialismus, p. 365). He saw in thepeculiarly American notion of consensus-democracy an unsustainablefoolishness, and in the Jeffersonian vision of small government with amaximum space for individual freedom a threat to his peculiar Catholic values.

Today, President Bush has again defended his indefensible treatment ofdetainees and claimed for himself rights that all his predecessors firmlydisavowed. As president, he has cast aside the values of George Washington,Abraham Lincoln and Dwight Eisenhower – values on which the country wasfounded and built – and embraced instead those of Carl Schmitt, the lawyerwho prostituted his genius to the cause of Fascism and fervently prayed forAmerica’s destruction. What a great irony.

John Yoo and his colleagues present their critique of internationalhumanitarian law as a validation of the sovereigntist tradition of the AmericanFounding Fathers. That such claims can be taken seriously reflects a failure ofcritical thought in contemporary America. Yoo’s views on internationalhumanitarian law have absolutely nothing to do with the Founding Fathers.They are a cheap, discredited Middle European import from the twenties andthirties. Viewed this way, it becomes increasingly clear where they would leadus.

Posted 9:13 PM by Scott Horton [link]

Mary Dudziak, ExportingAmerican Dreams:Thurgood Marshall's AfricanJourney (Oxford UniversityPress 2008)

David Luban, Legal Ethicsand Human Dignity(Cambridge Univ. Press2007)

Ian Ayres, Super Crunchers:Why Thinking-By-Numbersis the New Way to be Smart(Bantam 2007)

Jack M. Balkin, JamesGrimmelmann, Eddan Katz,


4 of 12 2/10/2011 5:54 PM

Comments:

The Geneva Conventions only apply to soldiers that fight "honorably" -- i.e., withuniforms on. The point of the Conventions is to protect civilians and to introduce amutually beneficial compact between warring parties for humane treatment of eachother's captured soldiers. The soldier (or the spy) who wears no uniform yet wages waris using the population as human shields. The bottom line is that the Geneva Conventionsnever did and never were intended to apply to "unlawful combatants" -- those wearingno uniform. The USA gratuitously applies humane treatment to most unlawfulcombatants in the current conflict with radical islamists. Under no international law is itrequired to. I mean this comment to only apply to the limited questions of the "GenevaConventsion", not to what may or may not be an efficient or ethical policy.

# posted by Sam : 11:33 PM

Sam appears to draw his understanding of the Geneva Conventions from watching FoxNews, instead of reading the Geneva Conventions. This is regretable, but typical of thedamage done in this country by making a sort of political sport out of the Conventions.The Geneva Conventions apply to all participants in a conflict, not just to "soldiers thatfight 'honorably'" - however, soldiers who fight 'honorably' are eligible prisoner of warstatus, which affords much more protection than is given unlawful combatants. "Spiesand saboteurs" are in fact an expressly recognized class under the Conventions (see art5), and their captors are given much broader latitude in how to treat them. But tortureand cruel, inhuman and degrading treatment are still out of bounds.

# posted by Diogenes : 1:45 AM

"The soldier (or the spy) who wears no uniform yet wages war is using the population ashuman shields."

Does this rule apply to the thousands of private "security guards" the U.S. has hired tofight in Iraq?

I ask because I don't know if you've noticed this, Bub, but those guys ain't wearin' anyuniforms either.

# posted by Joe Shmo : 3:10 AM

From the Opinio Juris blog, an interesting selection and the corresponding link to the fulldebate held Oct. 31 between Philippe Sands and John Yoo on global legal rules sponsoredby the World Affairs Council:

http://lawofnations.blogspot.com/2005/11/sands-yoo-debate.html

It’s the first time I read of a law professor suggesting that Yoo could be consideredcriminally responsible for what came after his memoranda. I don’t believe this (startinga criminal investigation against Yoo) will ever happen in the U.S., since what’s behind theentire thing is the ultimate taboo: holding public officers accountable for illegally startinga war. However, I think it would be “hygienic” that other law professors, evenU.S.-based, gave this hypothesis some serious thought and, if the outcome is clearenough, issue some kind of joint statement.

# posted by randomopinion : 4:58 AM

Scott, I'm not sure that the values of Abraham Lincoln are the best thing to bring uphere. The Lincoln Administration suspended a lot of civil rights during the Civil War, andnumerous political prisoners languished in limbo during and after the conflict. MichaelKauffman's recent book American Brutus goes on to draw interesting parallels betweenthe treatment inflicted on Lincoln's assassins and the treatment meted out atGuantanamo. Lincoln, Stanton, et al. were hardly torturers, and they faced dangersactually much graver than Al-Qaeda, but one can see Bush policy in some ways asadapting Lincoln-era policy. Or could, put case that Bush knew anything about thishistory ...

# posted by Jack Keefe : 8:02 AM

Scott, there are other ties between Strauss and Schmitt and Yoo. I have it on goodauthority that Yoo has, from time to time, actually gone to Chicago. There are rumors ofa trip to Germany during his undergraduate days, but those are, as of now, stillunconfirmed. But the implications are clear enough.

At least on the paranoid style of argument you've adopted.

# posted by Thomas : 9:11 AM

The use of the word "gratuitously" by Sam is a good example of that exact demonization.People do not deserve humane treatment. Humane treatment isnt the correct thing todo. No, the United States blesses the world allowing for humane treatment when ourgovernment deems it appropriate.

Nimrod Kozlovski, ShlomitWagman and Tal Zarsky,eds., Cybercrime: DigitalCops in a NetworkedEnvironment (N.Y.U. Press2007)

Jack M. Balkin and BethSimone Noveck, The Stateof Play: Law, Games, andVirtual Worlds (N.Y.U. Press2006)

Andrew Koppelman, SameSex, Different States: WhenSame-Sex Marriages CrossState Lines (Yale UniversityPress 2006)

Brian Tamanaha, Law as aMeans to an End(Cambridge University Press2006)


5 of 12 2/10/2011 5:54 PM

So much for taking the high road.

Of course, as others have mentioned, his answer is an incorrect interpretation of the law.

# posted by Will : 10:38 AM

There are some problems with this conspiracy theory. Does John Yoo read German?Because the books you cite are not translated. Also, it's very hard to find the bookslisted, either in Chicago or anywhere else, even assuming Yoo knew where to look. Also,it's true Schmitt was involved in justifying the Machergreifung, but I'm not aware he wasinvolved in prisoner detainment policies. He was persona non grata by the time the warstarted, and the Concept of the Political was written before Hitler came to power. All ofthat aside, you don't have to read Carl Schmitt to realize reasons of state justifyexecutive discretion. That is not an argument that began with Carl Schmitt, nor is it clearthat Schmitt, who had a great deal of nostalgia for the humanitarianism of the "juspublicum europaeum," was ever involved in justifying a suspension of the rulesprotecting enemy combatants. Schmitt wrote about Napoleon's war in Spain, forinstance, the first "guerilla" war, and the fact that even in such a brutal war theNapoleonic army followed the laws protecting prisoners of war.

# posted by csdorotoc : 1:58 PM

Even if Yoo does not speak German at least one of the three works cited (the Concept ofthe Political) has been available in English for some years.

Schmitt's work has also been very widely excerpted and discussed in English (and notjust by the right - in many ways the post-modernist leftists associated with Telos andNew Left Review magazines were more comfortable with Schmitt than any traditionalconservatives could be) so it would be unlikely if Yoo had not encountered his key ideasat some point and been influenced by them.

But to assume that he has lifted his whole position directly from Schmitt requires a lotmore evidence than you are giving us here.

Even if he was, both Schmitt and Yoo are talking not about the world they would like tohave but the world we actually inhabit.

Even in your one-sided presentation Schmitt/Yoo's alleged position actually strikes me asall too reasonable.

When you do face total war against a total enemy who wears no uniform, makes nodistinction between soldiers and civilians and themselves only take prisoners in order totorture and murder them, then one clearly is not bound by normal rules of war.

Schmitt although in many ways a repellent figure did at least address these issues.

I certainly don't agree with the administration's position on torture and indefinitedetention in secret camps, but it is silly to imagine that we can fight this war bound byconventions to which our enemies do not subscribe.

# posted by Leviathan : 2:59 PM

Schmitt's book "Theory of the Partisan" (partisan=terrorist, insurgent) was translated in2004. It was written in 1962.

Here is a link to the entire book.

http://www.msupress.msu.edu/journals/cr/schmitt.pdf

Here is what Schmitt says about the traditional rules, ie from 1907:

" The legal position [of the partisan] is summarized inthe Hague Ground War Provision of 18 October 1907, which is now universallyrecognized as authoritative."

Here is what Schmitt has to say about the amendment of those guidelines by theGerman general staff late in the war:

"The Prussian-German command did finally, if belatedly, understandthe partisan war. The Supreme Command of the German Wehrmacht issuedthe already mentioned guidelines for partisan combat on 6 May 1944. Thus,just before its own end the German Army recognized the partisan for whathe was. In the meantime/By now, the guidelines of May 1944 were/are recognizedby one of Germany’s enemies as an outstanding regulation[Regelung]." p.26

Schmitt say that if he were somehow involved in the drafting, directly or indirectly? By1944 Schmitt was more than ten years removed from a position of authority in the Naziregime.

Here is what he has to say about the irrelevance of the old laws, which does confirm Mr.Balkin's point to some degree, but remember this was written in 1962:

"The German soldier got acquainted with the sharpshooter in France in

Sanford Levinson, OurUndemocratic Constitution(Oxford University Press2006)

Mark Graber, Dred Scott andthe Problem ofConstitutional Evil(Cambridge University Press2006)

Jack M. Balkin, ed., WhatRoe v. Wade Should HaveSaid (N.Y.U. Press 2005)

Sanford Levinson, ed.,Torture: A Collection


6 of 12 2/10/2011 5:54 PM

autumn 1870 and the following winter 1870/71, after the great victory overthe regular army of Napoleon III . . . The position [Lage] of the German armies wasthreatened andthe external affairs [außenpolitische Lage] of Germany were in dangerbecause a long war had not been anticipated. The French populace waspatriotically aroused and participated in the most various ways in the waragainst the Germans. In response, French dignitaries and so-called notableswere taken hostage, sharpshooters whom they caught red-handedwere shot, and reprisals of every kind were imposed on the populace. Such was thestarting point for half a century of contention among jurists ofinternational law and public propaganda on both sides for and against thesharpshooter. The controversies flashed up again in World War I as theBelgian-German sharpshooter battle. Whole libraries were written on thisquestion, and as recently as 1958/60 a committee of reputable German andBelgian historians has tried to clarify and cleanse at least one point of contentionfrom this complex, the so-called Belgian Sharpshooter Battle of1914.20All of this is conclusive for the problem of the partisan because it showsnormative regulation to be judicially impossible, if the regulation is reallyto grasp the actual facts on the ground and not just deliver a glissando ofvalue judgments and vague strictures. The traditional European containmentof war between states has proceeded since the eighteenth centuryfrom determinate concepts which, though interrupted by the FrenchRevolution, were all the more effectively confirmed by the restoration workof the Congress of Vienna. These ideas of a contained war and a just enmitystemming from the age of monarchy can only then be legalized bilaterallywhen the warring states on both sides hold fast to them, both within theirown states and [41] between them, that is, when their domestic as well astheir interstate concepts of regularity and irregularity, legality and illegality,are in alignment or at least structurally homogeneous to some extent.Otherwise the interstate standard, instead of furthering peace, only succeedsin generating pretenses and slogans in the service of mutual recriminations.This simple truth has gradually come to consciousness since WorldWar I. But the façade of the traditional [überkommenen] conceptual inventoryremains strong on the level of ideology. For practical reasons, stateshave an interest in utilizing the so-called classical concepts, even if thesehave been discarded in other cases as old-fashioned and reactionary. At thesame time, European jurists of international law have put stubbornly out ofmind the picture of a new reality, more and more recognizable since 1900.21" p. 24-25

Notice that Schmitt says this after the war, in 1962. Did Mr. Yoo have access to this text?Maybe, I guess. All in all, I would say that Mr. Balkin's imputations are at best poorlysourced, and there is no reason to believe Yoo has been reading Schmitt, or even if hehas, that there is anything uniquely Schmittian about the justification for attenuatingrules covering irregular combatants. As Schmitt himself notes, there are whole librariesdiscussing this topic.


I see a forest/trees problem here.

Why was Jay Bybee putting his name to, and the White House evidently buying into, amemo whose theory of the executive is strikingly similar to that of a Nazi apologist?

What the hell is wrong with these people?

# posted by Anderson : 3:42 PM

All of the works cited here in German have been translated into English and are easilyaccessible to scholars who want to read them. Most of the works are in the majorcollection published by the University of Chicago Press.Schmitt's recognition of the rights of "partisans" is clear, significant, and points to howYoo has crudely received Schmitt by failing to note the limitations that Schmitt acceptedon his friend/foe dichotomy.

# posted by Diogenes : 4:30 PM

I think the law review articles of Jack Goldsmith (fmrly U of C, now Harvard Law) andCurtis Bradley (UPenn Law), as well as perhaps Eric Posner (U of C Law), are the bestsources of the foundation of Yoo's beliefs. The possibility that some of these professorssoaked in Schmitt via neo-con icon Strauss seems entirely plausible.

That said, the transparently faulty marshalling of evidence of the Founders' so-calledoriginal intent for the President to exercise uncontrolled and uncontrollable War Powersas Commander-in-Chief can be usefully compared to similar pick-your-friend-typearguments advanced by Justice Scalia in a few cases. GOP-friendly, but not veryconservative at all.

# posted by cyber joe : 4:39 PM

Thomas moreso than Scalia, Cyber Joe--no?


(Oxford University Press2004)

Balkin.com homepageBibliographyConlaw.netCultural SoftwareWritingsOpedsThe Information SocietyProjectBrownvBoard.comUseful LinksSyllabi and Exams


7 of 12 2/10/2011 5:54 PM

Well, no they're not published, not the ones Balkin cites, and the Schmitt/Straussconnection is totally bogus. Straussians have no interest in Schmitt. Until there is actuallya demonstrated connection, instead of totally baseless insinuation, this is just a smear ofYoo (associating him with a Nazi). Shouldn't there be some tiny shred of a basis in factfor such a charge?


Why would anyone want to live in a society that would tolerate the inhumane treatmentof individuals?

# posted by Don M : 6:03 PM

Terrific article Scott, and two notes to other posters:

1) Soctt Horton is NOT Jack Balkin, though BOTH are always interesting writers on thelaw.

2) Does it really matter if Yoo studied the guy directly or not? The point is that thepolicies are fascist lunacy.

And make that 3):

The idea that you have to be a beast to fight one is a) beastly, and b) stupid.

If being a beast worked better than being an intelligent human being, saber-tooth tigerswould rule the earth and we wouldn't need self-deluded fools to make up excuses to actlike a beast.

# posted by Charles Gittings : 7:07 PM

There are a number of very useful comments here, for which thanks. I have cited theSchmitt materials to the German texts, because that is what I have, however, the textsare all available in English - largely in the collection 'Peace and Pacifism.'I do not mean to suggest here that I believe that Carl Schmitt would adopt the positionstaken by John Yoo. Schmitt was far too serious a legal scholar for that. His positions oninternational humanitarian law are far too nuanced, and, as one commentator notes, hewrote very persuasively about the role of partisans and the legal regime under whichthey were to be treated. It is not Schmitt's legal writing, but rather his politicalphilosophy which comes into play here. In fact, I discussed this very point with JaneMayer after reading her piece - it shows how crude Yoo's views are compared withSchmitt.The commentor who suggests there is no link between Strauss and Schmitt would benefitfrom reading the growing number of books on their friendship and intellectualinteraction, starting with Heinrich Meier's Carl Schmitt and Leo Strauss: The HiddenDialogue; to which I would add Shadia Drury's Leo Strauss and the American Right andAnne Norton's Leo Strauss and the Politics of American Empire - each of which show thequite profound influence of Schmitt on Strauss, and the more modest influence of Strausson Schmitt. Both Norton and Drury also note the striking similarity betweenNeoconservative arguments about international humanitarian law and Schmitt's writings- I do not claim to be the first on this point.Finally, I agree with Schmitt's critics that it's too simplistic simply to dismiss him as aNazi. He was a card-carrying Nazi, and he played a critical role in the Gleichschaltung,but he had strong reservations about Fascism and actually advised the Reichspraesidentto outlaw the Communists and Nazis - it was discovery of that letter that led to the lossof his leadership position. He is therefore a complex figure, blending continental Catholicconservatism, the social thinking of Max Weber, and certainly more than a trace elementof fascism.

# posted by Scott Horton : 10:18 PM

I did a google and amazon search and there is no book called "Peace and Pacifism."There is a German book of that title, but it was not published in 1933, it is a collection ofessays with the subtitle "works from 1924-1978". These are really basic errors. As fortarring Strauss with the Schmitt brush, the fact that they were friendly in Weimargermany is, to be fair, totally irrelevant to 2005 America. Strauss was also close with thesocialist economic historian Tawney. Does that make him a socialist? Again, moreinaccuracies and unfounded insinuations.

# posted by csdorotoc : 6:46 AM

csdorotoc, if you don't know anything about Strauss, just say so. Strauss's interest inSchmitt, like his interest in Nietzsche, is well-documented. That doesn't make Strauss afollower or admirer of Schmitt.

I think it's entirely fair to say, however, that Strauss was afraid that democracy wouldfail for some of the reasons advanced by Schmitt (& N. for that matter), and that suchfears were part of what sent Strauss back to the Republic and to the possibility of eliterulers not bound by democratic strictures, but working for the general good of the


8 of 12 2/10/2011 5:54 PM

(apparent) democracy.

There are lots of problems with that view, but then, there are lots of problems withevery political theory.

# posted by Anderson : 9:40 AM

Great posts. Haven't read any Schmitt or Yoo, but I've read too much John Keegan andothers on the concept of "Total War" so allow me to echo two of Leviathan's comments:

"When you do face total war against a total enemy who wears no uniform, makes nodistinction between soldiers and civilians and themselves only take prisoners in order totorture and murder them, then one clearly is not bound by normal rules of war."

(and)

"[I]t is silly to imagine that we can fight this war bound by conventions to which ourenemies do not subscribe."

That said, let me respond to Mr. Gitting. He takes a "straw cat" example of a sabre toothtiger to establish the proposition that you do not have to be a beast to fight a beast. Let's"change the facts" as we used to say in law school: How about if we're up against analien beast, like in the movie ALIEN. Same result, Mr. Gitting?

I also keep thinking of this question in terms of the macro following the micro. It's onething if you're in a boxing ring with Marquis of Queensbury Rules, or modern MixedMartial Arts Rules -- you can "tap out" and your civilized opponent will let you up off themat rather than choking you to death. But what about when you're defending yourselfand your family in a street fight against a thug who wants to kill you for your wallet? Ifyou let him atop you, you may not ever get up. You do what you need to do in order tosurvive the encounter. By extension, civilized rules of war only work where both partiesagree ab initio to follow them, and do.

Scholars who decry the use of torture against terrorists remind me of the British general(at least, as he was portrayed in the movie THE PATRIOT) in the Revolutionary War whosuddenly noticed that Continental soldiers were no longer lining up in regimentalformation to "stand and deliver" according to the accepted rules of war on the Europeancontinent. "That's not cricket" he might have muttered. "How beastly" his colleague onthe general staff might have added.

War is not cricket. It's noble of you when you can afford to follow the GenevaConventions, but when that starts to get in the way of survival, it's time to rethink thegame plan for the second half.

To paraphrase Henry Clay: I would rather be live than reticent.

# posted by Jonathan : 3:46 PM

Anyone still here? The NYRB has a review of John Yoo's new book (no sub required).

The final paragraph brings up the Schimittian aspect, tho without mentioning Schmitt:

The proposition that judicial processes —the very essence of the rule of law —are to bedismissed as a strategy of the weak, akin to terrorism, suggests the continuing strengthof Yoo's influence. When the rule of law is seen simply as a device used by terrorists,something has gone perilously wrong.

The notion that the rule of law actually imperils America, and must therefore bedispensed with, is one that needs to be debated expressly. If only we had a Congress, ora minority party, that could and would do so.


First, the Licoln analogy is quite right. A handful of arguably counter-productive sins ofexpedience in the course of prosecuting a difficult liberalizing war against a brutal andcompletely unsrupulous enemy. Except the Confederates weren't so unscrupulous duringthe war -- they only got that way in the ensuing KKK insurgency.

Second, note that we entirely skipped the League of Nations, so our rep. as the arbitersof international law, to the extent we had one, was silly indeed. And really, who canrespect the Kellog-Briand pact (except the Nobels?). Such above-it-all pacifism permittedthe unchecked rise of Euro-fascism until it had grown into a world-beating force quitecapable of putting liberal democracy clean out of business. That faux-law-based-pacifismwas brain-dead, cowardly, and, I imagine, insufferable to behold.

Third, Schmitt's hatred of America is the same hatred in Europe today. Here we havedefeated two hideous regimes in 4 years and have lost serious blood and treasureturning both countries -- cruel basketcases for decades -- into honest-to-goodnessdemocracies. And now that same hatred finds it expedient to hyperbolically exaggerateour sins in carrying out this liberalization in order to demonize us.

I have no brief for torture or other activities that come close to it. I'm not an intelligencepro; I don't see what the benefit is. I doubt there is one, and there are clear propagandadrawbacks.


9 of 12 2/10/2011 5:54 PM

But I do see that so far in this war, the Geneva Conventions have been little use to us.Our enemies behead us when they capture us. Great. Meanwhile we get excoriated forevery deviation, no matter how small. (We gave you a Koran, you're welcome, enjoy.God damn you -- you dropped my Koran! How dare you claim to be a moral actor!)

Further, while a treaty is legitimately binding on us (Geneva Conventions), otherinternational law is not. It has no basis in democratic decisionmaking, and it is adangerous threat to our sovereignty. That understanding is consistent with our Founders'belief in the creation of law by the people to secure their freedoms. A theory of law thatobliges an individual or a nation based on conferences of unelected foreign elites, withoutratification as a treaty, is anathema.

# posted by Robert : 5:06 PM

Last commenter wrote:

I have no brief for torture or other activities that come close to it. I'm not an intelligencepro; I don't see what the benefit is. I doubt there is one, and there are clear propagandadrawbacks.

Just a minor point here. There are guys at CIFA (DoD) who do rish analysis (math) onthe question of whether the value of the info we get does in fact outweigh thepropaganda drawbacks, or if it doesn't. In other words, we don't go into this sort ofproposition blind. Some might argue that we don't have the right to engage in abuseand/or torture "while we're studying the risk bebefit analysis" but I disagree. If the RBAconcludes that, on balance, it's not worth the risk, then abandon it. But not until ...

# posted by Jonathan : 6:06 AM

Some of the translated works by Carl Schmitt that can be easily obtained include:

The concept of the political / Carl Schmitt ; translation, introduction, and notes byGeorge Schwab ; with Leo Strauss's notes on Schmitt's essay ; translated by J. HarveyLomax ; foreword by Tracy B. Strong Chicago : University of Chicago Press, 1996

The crisis of parliamentary democracy / Carl Schmitt ; translated by Ellen KennedyCambridge, Mass. : MIT Press, c1985

Legality and legitimacy / Carl Schmitt ; translated and edited by Jeffrey Seitzer ; with anintroduction by John P. McCormick Durham : Duke University Press, 2004

The Leviathan in the state theory of Thomas Hobbes : meaning and failure of a politicalsymbol / Carl Schmitt ; foreword and introduction by George Schwab ; translated byGeorge Schwab and Erna Hilfstein Westport, Conn. : Greenwood Press, 1996

The nomos of the earth in the international law of the Jus Publicum Europaeum / CarlSchmitt ; translated and annotated by G.L. Ulmen Telos Press, 2003

Political romanticism / Carl Schmitt ; translated by Guy Oakes Cambridge, Mass. : MITPress, c1986

Political theology : four chapters on the concept of sovereignty / Carl Schmitt ; translatedby George Schwab Cambridge, Mass. : MIT Press, c1985

Vital realities, by Carl Schmitt, Nicholas Berdyaev [and] Michael De La Bedoyère NewYork, The Macmillan company, 1932

# posted by Thaxter : 3:14 PM

Some works by Schmitt in English that can be readily obtained include:

The concept of the political / Carl Schmitt ; translation, introduction, and notes byGeorge Schwab ; with Leo Strauss's notes on Schmitt's essay ; translated by J. HarveyLomax ; foreword by Tracy B. Strong Chicago : University of Chicago Press, 1996

The crisis of parliamentary democracy / Carl Schmitt ; translated by Ellen KennedyCambridge, Mass. : MIT Press, c1985

Legality and legitimacy / Carl Schmitt ; translated and edited by Jeffrey Seitzer ; with anintroduction by John P. McCormick Durham : Duke University Press, 2004

The Leviathan in the state theory of Thomas Hobbes : meaning and failure of a politicalsymbol / Carl Schmitt ; foreword and introduction by George Schwab ; translated byGeorge Schwab and Erna Hilfstein Westport, Conn. : Greenwood Press, 1996

The nomos of the earth in the international law of the Jus Publicum Europaeum / CarlSchmitt ; translated and annotated by G.L. Ulmen Telos Press, 2003

Political romanticism / Carl Schmitt ; translated by Guy Oakes Cambridge, Mass. : MITPress, c1986

Political theology : four chapters on the concept of sovereignty / Carl Schmitt ; translatedby George Schwab Cambridge, Mass. : MIT Press, c1985


10 of 12 2/10/2011 5:54 PM

Vital realities, by Carl Schmitt, Nicholas Berdyaev [and] Michael De La Bedoyère NewYork, The Macmillan company, 1932

# posted by Thaxter : 3:15 PM

Usually prejudices can work against the understanding of science and history. But whereare the limits of those prejudices? Where is the boundary between political enemy andscience? To many the one who makes science, shall work hard cosntantly to free herselfof (inevitable) prejudices.Scott tells us about the letter that Schmitt wrote to 'theReichspraesident to outlaw the Communists and Nazis - it was discovery of that letterthat led to the loss of his leadership position'.(among the Nazis) It has been new to meand I wonder, why others do not wonder, e.g. which history would we have today if theReichspraesident had listen to Schmitt´s advice. Perhaps we even would need not tosorrow about the Holocaust?

# posted by marta rodes : 9:14 AM

Incredible - very well done!

Yoo...

And can you imagine that there'd be an unethical neoconservative? That just blows meaway...

# posted by Al : 1:40 AM

God help us. I was disturbed but not surprised by what I read here. I was much moredisturbed, however, by the sheer number of posts which either deny the basic facts ofthis article and claim that Strauss was not connected to Schmitt at all, that Schmitt'sworks are simply nonexistent in english (which of course is not true, and even if it was,so what? his ideas are well known) or actually defended the position of Schmitt and claimthat you do, in fact, have to act like a beast in order to fight a beast. I think the mostridiculous is the post that states "sure, you don't have to be a beast to fight a sabertoothed tiger, but what about an 'alien', from that movie 'alien'?". This personapparently graduated from law school!!! Intelligence and humanity always wins in theend, it doesn't matter what kind of beast you are fighting. The geneva convention appliesto everyone, and if it doesn't, it SHOULD! There is no excuse for torture and murder ofprisoners, no excuse, and anyone who says otherwise is just self deluded. Amazing,simply amazing, that we have so many fascists in america, and most of them probablydon't even realize that they are fascists.

# posted by Nate Glenn : 10:23 AM

True democracy lies in what we vote on, every day.

The marketplace is our ballot box, and the way to univeral democracy is by letting theconsumer see what they are really buying.

Currently there is no easy way to tell whether products in our shops come from aneconomy that supports a brutal dictatorship, or a terrorist state.

I propose a FREE COUNTRY mark applied to imports into the EEC.

A single universally recognized mark to confirm that the country of origin is a state whichconforms to the articles of the UN charter on Human Rights.

I propose a scheme where consumers can make an informed choice about NOTsupporting the economy of governments which suppress civil liberties.

A scheme supported by a certifying foundation with a simple system of audits, and thearticles of Human Rights used as a simple standard without influence from politicians orcorporations.

I think the beauty of this idea is that it will take a long time to develop, and thusconcerns about the well being of workers affected by sharp changes in the market will bediminished.

I hope that slowly, in the same way that Fair-trade pushed supply chains to reconsidertheir operations, this scheme will coerce vicious regimes to consider their actions, if onlyto protect their profit margins.

I have faith that this idea is worth discussion.

Gordon KennedyDagenham UK

# posted by Gordon Kennedy : 5:05 AM

Blogs are so informative where we get lots of information on any topic. Nice job keep itup!!


11 of 12 2/10/2011 5:54 PM

_____________________________

Law Dissertation

# posted by marry : 5:41 AM

This kind of information is very limited on internet. Nice to find the post related to mysearching criteria. Your updated and informative post will be appreciated by blog lovingpeople.

Dissertation writing help

# posted by Dissertation Writing service : 8:04 AM

Nice article! You have really provided good information here.

Personal Injury Attorney Houston

# posted by Houstonlaw : 5:52 AM

This kind of information is very limited on internet. Nice to find the post related to mysearching criteria. Your updated and informative post will be appreciated by blog lovingpeople.

Buy Dissertation Online

# posted by Dissertation Writing service : 6:47 AM

Post a Comment

Home


12 of 12 2/10/2011 5:54 PM