Mr. Schmitt Goes To Washington

by John Holbo on December 20, 2005

Bill Kristol and Gary Schmitt in the WaPo:

   … That is why the president uniquely swears an oath – prescribed in the Constitution – to preserve, protect and defend the Constitution. Implicit in that oath is the Founders’ recognition that, no matter how much we might wish it to be case, Congress cannot legislate for every contingency, and judges cannot supervise many national security decisions. This will be especially true in times of war.

Josh Marshall has thoughts on possible difficulties with this notion that ‘the power to set aside laws is "inherent in the president."’

But without waiting for the dust to settle we’ll just step back and declare: so it’s settled, Carl Schmitt’s Political Theology is the late-breaking, runaway dark-horse winner stocking-stuffer political book of the season. And we hereby open a new front in the war on Christmas, as it is clear the President, like Santa, doesn’t have the time to go to to some damn judge every time he needs to know whether someone is naughty or nice.

Unfortunately, my copy of Schmitt isn’t handy. But google provides. First, from a year ago, a free CHE piece, "A Fascist Philosopher Helps Us Understand Contemporary Politics". This piece focuses on Schmitt’s thesis concerning the primacy of the friend/enemy distinction.

In The Concept of the Political, Schmitt wrote that every realm of human endeavor is structured by an irreducible duality. Morality is concerned with good and evil, aesthetics with the beautiful and ugly, and economics with the profitable and unprofitable. In politics, the core distinction is between friend and enemy. That is what makes politics different from everything else. Jesus’s call to love your enemy is perfectly appropriate for religion, but it is incompatible with the life-or-death stakes politics always involves. Moral philosophers are preoccupied with justice, but politics has nothing to do with making the world fairer. Economic exchange requires only competition; it does not demand annihilation. Not so politics.

But actually Schmitt may be best known for his doctrine of ‘the exception’, which is arguably his truly fundamental notion. You get a bit about that in this wikipedia entry. This site has quite a good entry, I think, so I’ll quote the whole relevant passage:

Schmitt’s political theory was founded on the idea of exception (Ausnahmezustand) from where he launched an attack on liberalism. According to Schmitt unforeseen and sudden situations in the political render unstable any system build on pre-planned responses and fixed legal codes. The political rests on a fundamental contingency and basic conflict hence it cannot adopt apriori rules of procedure. Liberalism disregards this inherent contingency and does not account for exception in its constual of rules.

The direction all this leads, and the reason why Schmitt has been taken so seriously by political theory, is to the theorisation of the crisis and state of emergency as not exceptional moments in political life opposed to some stable normalcy, but themselves the predominant form of the life of modern nations. Thus emergency powers and so on have increasingly become the normal operation of the state. In respect to Sovereignty, it is “precisely the exception that makes relevant the subject of sovereignty, that is, the whole question of sovereignty”. In fact it is exception, tied to war, tied to the political that is the fundamental category of Schmitts work, yet it is never defined as such, as it allways has the character of being beyond the law, it is thus referred to as danger, or ‘extreme peril’ in fact, perhaps anything that confronts, undermines and destroys the rule. But it differs slightly from emergency which provokes the necessity of immediate responses to unforseen events, because ‘emergency’ still relates to an idea of normalacy (and to state attempts to return to the normal) that is essentially what the later work of Schmitt deigns to undermine.

The classical treatment of tates of emergency and of exception confer upon the sovereign or supreme leader to suspend certain aspects of the legal order, but he has no power to reverse or fundamentally changed that order, hence emergency has a duration after which normality is returned to (see Ogen Gross 1835-1839) – this follows the model of the Roman dictator as read by Machiavelli and Rousseau, as well as being found in the work of Locke wherein the ‘perogative power’ can act against the law at the discretion of the public good. In the work Political Theology, this earlier paradigm, accepted for instance in The Dictatorship, is dramatically revised: the exception becomes the rule and the normalcy becomes and empty and meaningless point of reference. This destruction of normality retains one principle element, that is the authority of the sovereign power (though this Schmitt tries to give a transcedental/theological authority). Schmitt seeks to legitimate the increase of the sovereign power, to not only temporalily suspend the constitution for the public good, but to actively revise or fundamentally change the rules of constitutional authority – the sovereign both defines what is the exception and defines what is the adequate response to it. In this case, law which was itself the normal basis of sovereign authority, is also subverted by the total power of the absolutist state, the destruction of the normal and the rightful response of the sovereign to govern totally, thus evinces completely the right of any kind of redress against his over-arching power.
      

‘Deigns to undermine’ is somewhat odd phraseology – though evocative. But I think the doctrinal gloss is sound. You see where I’m going with this. If you click on that link above there is a sidebar with links to Schmitt-related sites. Several links are broken. But this one works – taking you to a selection from a lecture on Schmitt by Georgio Agamben.


 

{ 85 comments }

1

DS 12.20.05 at 7:45 am

I think you’ll be delighted to hear that the great visionary thinker Slavoj Zizek already anticipated this post in May 2002:

A notable precursor in this field of para-legal ‘biopolitics’, in which administrative measures are gradually replacing the rule of law, was Alfredo Stroessner’s regime in Paraguay in the 1960s and 1970s, which took the logic of the state of exception to an absurd, still unsurpassed extreme. Under Stroessner, Paraguay was – with regard to its Constitutional order – a ‘normal’ parliamentary democracy with all freedoms guaranteed; however, since, as Stroessner claimed, we were all living in a state of emergency because of the worldwide struggle between freedom and Communism, the full implementation of the Constitution was forever postponed and a permanent state of emergency obtained. This state of emergency was suspended every four years for one day only, election day, to legitimise the rule of Stroessner’s Colorado Party with a 90 per cent majority worthy of his Communist opponents. The paradox is that the state of emergency was the normal state, while ‘normal’ democratic freedom was the briefly enacted exception. This weird regime anticipated some clearly perceptible trends in our liberal-democratic societies in the aftermath of 11 September. Is today’s rhetoric not that of a global emergency in the fight against terrorism, legitimising more and more suspensions of legal and other rights?

2

DS 12.20.05 at 7:50 am

(There’s also some Schmitt in that link, btw.)

3

John Holbo 12.20.05 at 8:05 am

Thanks! I knew Z was into Schmitt. I didn’t realize he had quite made the connection to Bush.

4

Steve 12.20.05 at 8:54 am

Not sure I get the point of this post. Having read the Schmitt article that was quoted first, above, I see that you really cherry-picked a quote. Immediately before the section you quoted:

“It is not easy to answer the question whether the president, acting in this gray area, is “breaking the law.” It is not easy because the Founders intended the executive to have — believed the executive needed to have — some powers in the national security area that were extralegal but constitutional.

Following that logic, the Supreme Court has never ruled that the president does not ultimately have the authority to collect foreign intelligence — here and abroad — as he sees fit. Even as federal courts have sought to balance Fourth Amendment rights with security imperatives, they have upheld a president’s “inherent authority” under the Constitution to acquire necessary intelligence for national security purposes. (Using such information for criminal investigations is different, since a citizen’s life and liberty are potentially at stake.) So Bush seems to have behaved as one would expect and want a president to behave.”

Given that, I can only conjecture that your post is trying to say: “Bush is in ‘gray area’, but its really not ‘gray area’ because some people (Josh Marshall, for instance) don’t like it. Actually, its pretty bad. And Carl Schmidt was a fascist, and said that governments would grow. Therefore, Bush is a fascist.”

Interesting argument that starts with an article that states, in essence, that Bush actually didn’t even break the law.

Steve

5

Kenneth Rufo 12.20.05 at 8:57 am

First, Zizek’s 2002 discussion is basically a lift and borrow from Giorgio Agamben’s much more nuanced work on the Schmitt, and so I’d recommend that folks interested in that Zizek quote check out the more interesting and original work (Homo Sacer, State of Exception, etc.).

Second, John, “Mr Schmitt goes to Washington” is an absolutely great title. And I agree, Political Theology is the perfect stocking stuffer this season. Perfect in that “wow, our liberal democracy suddenly looks like it turned into a horrific sham, I sure wonder how that happened” kind of way.

6

brendan 12.20.05 at 8:58 am

Can someone answer a question for me (whose relevance to the current post should be obvious).

A while back, Allawi declared a state of martial law. Initially, I think, this was for 60 days, but then (as memory serves) it was extended until (you guessed it) the current ’emergency’ was over.

Does anyone know if martial law was ever revoked in Iraq? Extended websearching leaves me none the wiser.

7

Kenneth Rufo 12.20.05 at 9:30 am

Some excerpts from the more recent State of Exception. First, pp. 38-9:

[T]he concept of ‘force of law,’ as a technical legal term, defines a separation of the norm’s vis obligandi, or applicability, from its formal essence, whereby decrees, provisions, and measures that are not formally laws nevertheless acquire their ‘force’…

In our discussion of the state of exception, we have encountered numerous examples of this confusion between acts of the executive power and acts of the legislative power… But from a technical standpoint the specific contribution of the state of exception is less the confusion of pwoers than it is the separation of ‘force of law’ from the law. It defines a ‘state of the law’ in which, on the one hand, the norm is in force but is not applied and, on the other, acts that do not have the value of law acquire its ‘force.’ That is to say, in extreme situations ‘force of law’ floats as an indeterminate element that can be claimed both by the state authority and by a revolutionary organization. The state of exception if an anomic space in which what is at stake is a force of law without law. Such a force-of-law, in which potentiality and act are radically separated, is certainly something like a mystical element, or rather a fictio by means of which law seeks to annex anomie itself. But how is it possible to conceive of such a mystical element and the way it acts in the state of exception?

A possible answer appears via a summary of the argument thus far on pp. 50-1:

(1) The state of exception is not a dictatorship (whether constitutional or unconstitutional, commissarial or sovereign) but a space devoid of law, a zone of anomie in which all legal determinations are deactivated. Thus, all those theories that seek to annext the state of exception to the law are false; and so too are both the theory of necessity as the originary source of law and the theory that sees the state of exception as the execrise of a state’s right to its own defense or as the restoration of an originary pleromatic state of the law. But fallacious too are those theories, like Schmitt’s, that seek to inscribe the state of exception indirectly within a juridical context by grounding it in the division between norms of law and norms of the realization of law, between constituent power and constituted power, between norm and decision. The state of necessity is not a ‘state of law,’ but a space without law.

(2) This space devoid of law seems, for some reason, to be so essential to the juridical order that it must seek in every way to assure itself a relation with it, as if in order to ground itself the juridical order necessarily had to maintain itself in relation with an anomie. On the one hand, the juridical void at issue in the state of exception seems absolutely unthinkable for the law; on the other, this unthinkable thing nevertheless has a decisive strategic relevance for the juridical order and must not be allowed to slip away at any cost.

(3) The crucial problem connected to the suspension of the law is that of the acts committed during the iustitium, the nature of which seems to escape all legal definition. Because they are neither transgressive, executive, nor legislative, they seem to be situated in an absolute non-place with respect to the law.

(4) The idea of a force-of-law is a response to this undefinability and this non-place. It is as if the suspension of law freed a force or a mystical element, a sort of legal mana, that both the ruling power and its adversaries, the constituted power as well as the constituent power, seek to appropriate. Force of law that is separate from the law; floating imperium, being-in-force without application, and, more generally, the idea of a sort of ‘degree zero’ of the law–all these are fictions through which the law attempts to encompass its own absence and to appropriate the state of exception, or at least to assure itself a relation with it. Though these categories are really scientific mythologemes, they perform in the law’s long battle over anomie. Indeed, it is possible that what is at issue in these categories is nothing less than the definition of what Schmitt calls ‘the political’.

And one final quote re: Schmitt, six pages later:

From Schmitt’s perspective, the functioning of the juridical order rests on an apparatus – the state of exception – whose purpose is to make the norm applicable by temporarily syspending its efficacy. When the exception becomes the norm, the machine can no longer function. In this sense, the undecidability of norm and exception formulated in the [Benjamin’s] eigth thesis puts Schmitt’s theory in check. Soverieng decision is no longer capable of performing the task that Political Theology assigned it; the rule, which now coincides with what it lives by, devours itself. Yet this confusion between the exception and the rule was precisely what the Third Reich had conceretely brought about, and the obstinacy with which Hitler pursued the organization of his ‘dual state’ without promulgating a new constitution is proof of it.

8

Russell Arben Fox 12.20.05 at 9:32 am

Thanks, John; this is exactly the conceptual link that pulls it together for me. And the possibility that Zizek is on the same track makes it that much more interesting. I’ve been tossing around some thoughts on fascism for a while; I think, between this post and Matt’s most recent TPM offering, plus a little help from Aristotle, a complete diagnosis of our present predicament is pretty much obvious.

9

otto 12.20.05 at 9:47 am

Here’s Peter Lindseth on Bush and Schmitt:
“An echo of ugly history”
http://www.morningsentinel.com/News/2004/0622/Commentary_Cent/090.html

10

Matt 12.20.05 at 10:07 am

Wait a minute, are you guys suggesting that a doctrine of permanent war relies on a normalization of the state of exception, the same state of exception that is so difficult to sever from the very foundations law and democracy itself? And that it may even be quasi-fascist? Say, didn’t Derrida also have some things to say about Schmitt?

A wonderful, and timely post.

11

Adam Kotsko 12.20.05 at 10:16 am

To say that a person knows about Carl Schmitt and has made the connection to Bush is basically to say that that person is not a complete idiot.

I’m really glad that U of C is putting out the reprint of Political Theology — it was a complete bitch to find last year. I ultimately ended up borrowing it from the Unitarian seminary’s library, which I found hilarious.

12

fred lapides 12.20.05 at 10:24 am

Bill Kristol should read http://www.randomhouse.com/features/bamford/home.html
before offering up the sillyt example to make a case in favor of Bush. In fact, NSA would have been on top of things in that situation–if calls had been made to the US–and nothing that NSA has not been doing for some years now would have been an issue. What does seem at issue then is that NSA has been allowed to do things NOT covered up till now. And what might that be? Well,spying upon citizens internally with no calls going in or out of the country or email not going in or out of the country. All elelcltronic materials going out of America or coming into America can be monitored by NSA under their guidelines, and thus this is not an issue.

13

John Holbo 12.20.05 at 10:39 am

Adam, I didn’t mean that Zizek hadn’t thought about Bush. I just meant I didn’t remember him writing about Bush and Schmitt’s notion of the exception. I agree that the Schmitt/Bush connection is pretty obvious.

Steve, I think what you are missing is basically that there is a difference between what Josh Marshall ‘doesn’t like’ and what he ‘has reasoned objections to.’ (The latter is the more consequential factor.)

14

Steve 12.20.05 at 10:59 am

“Steve, I think what you are missing is basically that there is a difference between what Josh Marshall ‘doesn’t like’ and what he ‘has reasoned objections to.’ (The latter is the more consequential factor.)”

I think what you are missing is basically that there is a vast gulf between what Josh Marhsall ‘has reasoned objections to’ and a descent into fascism. So vast, in fact, that the difference between ‘doesn’t like’ and ‘has reasoned objections to’ is inconsequential in comparison.

Steve

15

Kenneth Rufo 12.20.05 at 11:27 am

Well given Steve’s certainty at how vast the gulf is between present concerns and the final descent into fascism, I guess we should just stop worrying about it. At least until Steve lets us know what we should expect that descent to look like…

[I suspect Steve, like so many, labors under a comic book conception of fascism, where the descent to fascism comes through a great riot of armed militants that install a new authoritarian government, or perhaps the rise of a single demagogue who single-handedly crushes democratic opposition.]

What I can figure out, Steve, is why shouldn’t we attempt to discern what sorts of political and theoretical moves might be fascist in character, “fascistic” if you will, even if the government isn’t something that we would readily recognize as being fascist in structure or in name.

16

Kenneth Rufo 12.20.05 at 11:27 am

s/can/can’t

17

Adam Kotsko 12.20.05 at 11:39 am

I think that when a President claims authority inherent in his person to suspend the law and continually refers to himself as commander in chief, even in civilian settings, and only likes to speak in front of military audiences, and shows a callous disregard for even a court that was specifically set up to be as fast and permissive as possible toward government warrant requests — then we’re headed down a bad road. If it makes you pissed off that some people say that road reminds them of “fascism” — well, grow up. The situation is more important than the word.

Even if Bush personally is a really great upstanding person who we absolutely know won’t abuse that power — can you imagine the terrors that would be rained down upon our nation if Hilary got elected president with that kind of precedent on the books?

18

Adam Kotsko 12.20.05 at 11:40 am

Also, since I’m an anal-retentive person, it becomes really grating to click the comment link and be left on the top of the individual post page — is there some way to fix that? I’m using Mozilla 1.5, but it has happened with every other browser I’ve used, too.

19

John Holbo 12.20.05 at 11:42 am

Look, Steve, what am I supposed to say? My general point is that the Bushies actually seem to be Schmittians. No kidding. Their view is the same as Schmitt’s. Unless you have some story to tell about how the justification for all the secret spying isn’t Schmittian. Yes, Schmitt was somewhat sympathetic to the Nazis. (I don’t honestly know a lot about that.) But pointing out that someone subscribes to Schmitt’s position isn’t therefore a Godwin’s Law violation. I do happen to think that Schmitt’s views, since they are seriously anti-liberal and anti-rule-of-law, are dangerous and wrong. Am I not supposed to be able to express this concern, just because Schmitt was (maybe) a Nazi?

20

Mo Tzu 12.20.05 at 11:50 am

No one needs your reasoned discourse anymore. This is not the country you grew up in. The Constitution’s gone, unraveled, and you have to decide. What will you give up to get it back? Your livelihood, your home, your freedom, your comfortable life? Restoring the rule of law is going to take treason.

21

Adam Kotsko 12.20.05 at 11:55 am

Schmitt was a full-out Nazi, and he was (if this is possible) even less repentant about it than Heidegger was.

22

otto 12.20.05 at 11:57 am

I wonder if John Yoo goes on holiday to Spain whether Garzon might make a grab for him on the basis of the torture memos?

23

Matt 12.20.05 at 12:28 pm

I doubt very much that Bush himself has read a word of Schmitt; by his own account he seems to prefer the more gimcrack stuff. Wolfowitz and Pearl and so one, or at least the brains behind them, well, also Strauss and The Power of Nightmares and blah blah woof woof. Of course Benjamin was also Schmittian, as is Agamben in his way. So maybe a little nuance is permissable.

24

Phil 12.20.05 at 12:51 pm

Well, this is all crazy timing, but through those “radical militant librarians”, I managed to get ahold of Gopal Balakrishnan’s The Enemy: An Intellectual Portrait of Carl Schmitt, which I can’t recommend highly enough. It is both an excellent discussion of Schmitt’s political thought as well as history of the Weimar political scene from the 1919 revolutionary period to the Nazi gleichschaltung. If one thing has become evident in reading this book, it is how Schmitt, a conservative with deep reservations about the Weimar constitution and its institutionalization of corporatism (the trade unions, the church, business groups: what whould now be considered “special interests” residing in civil society), could conceptually slide down a path towards a full acceptance of Nazism. Indeed, during its first year or two in power, he became its preeminent jurist and legal theoretician. According to Balakrishnan, Schmitt came to the view that it is only the executive power that could come to define the state of exception and hence be sovereign. Sovereignty did not reside in the legislature as that body which represents the will of the people. This type of thinking, it seems to me, gets rather close to much of the legal thinking that the attorney general has produced in the rendition and torture memos. John Yoo, I believe, has come close to this type of thinking when he states that the constitution grants the president the power to declare war, whereas the legislatures power in war making comes down to appropriations to finance the war.

25

Pithlord 12.20.05 at 1:05 pm

I agree that it is unlikely that Bush has read Schmitt, but is there any evidence of direct influence on Yoo? Has someone asked him?

26

Steve 12.20.05 at 1:08 pm

John-

Quoted from NationalReview.com

“The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes,” Deputy Attorney General Jamie Gorelick testified before the Senate Intelligence Committee on July 14, 1994, “and that the President may, as has been done, delegate this authority to the Attorney General.”

“It is important to understand,” Gorelick continued, “that the rules and methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities.”

Executive Order 12333, signed by Ronald Reagan in 1981, provides for such warrantless searches directed against “a foreign power or an agent of a foreign power.”

If I accept your words as genuine: that Bush is, just objectively (not politically, and not rhetorically) following Schmittian (and thus, at least indirectly, Fascist) tendencies, will you accept, objectively (not politically, and not rhetorically), that Clinton obviously did too (as did Reagan-who signed the original law, and we can safely presume that Bush I did as well)?

If you do accept this, aren’t you stuck with either 1) Bush = theoretical Naziism but Clinton/Reagan/Bush I not= theoretical Naziism (note: suspiciously selective) 2) Bush = theoretical Naziism, Clinton/Reagan/Bush I= theoretical Naziism, or in other words, for 25 years or more, bipartisan US policy = theoretical Naziism, or (note: really? US = theoretical Naziism? I mean, seriously?) or 3) Bush not= theoretical Naziism, Clinton/Reagan/Bush I not= theoretical Naziism (probably the most reasonable choice).

If I take you seriously, and you ARE just letting the facts lead where they may, I think you have to choose 1, 2, or 3. Well?

Steve

27

steve kyle 12.20.05 at 1:27 pm

Steve commits the logical error that many apologists for fascism do when he tries to equate “fascism” with “naziism”. The reason to do this is clear: Everyone hates nazis because of their racist and genocidal acts. Therefore, the false logic goes, if you arent actuall committing racist and genocidal acts then you arent a fascist.

The problem is, there is nothing about fascism per se that requires you to be a genocidal maniac though it is entirely possible (of course) for a genocidal maniac to also be a fascist.

So no Steve, you dont HAVE to pick 1, 2, or 3. You can pick none of the above because even though Bush’s administration shows clear fascist tendencies they are not genocidal maniacs (though some of their supporters sure do give one pause).

So here is a question for YOU Steve. What would Bush have to do before you would admit that there was some cause to worry about fascist tendencies? For most of us on this blog I suspect he is way past the point where we can identify such tendencies but I wonder where that point is for you?

28

Adam Kotsko 12.20.05 at 1:33 pm

Schmitt’s ideas don’t specifically authorize or advocate setting up factories to exterminate undesirables. That is what the Nazi party did with the authority to which, in Schmittian terms, it was legitimately entitled, but it’s not at all as though Schmitt said: “Sovereign is the one who decides the state of exception, therefore let’s kill all the Jews.” In point of fact, Western democracies in general have tended toward government by executive order and using the legislature as a rubber stamp (or not) for presidential policy proposals — that’s why the Gingrich revolution was so bizarre, because it was Congress taking it upon itself to set the legislative agenda (something I would support in principle, even if the agenda in this specific example was stupid).

In the United States, we have the added wrinkle of an independent judiciary, which I would argue is the last thing holding us back from total barbarism — the scary thing about Bush’s judicial nominations is not just the social issue stuff, important as that is, but the way in which he is trying to pack the court to back up the executive power grab (not unique to his administration in kind, but arguably in degree — note that this is the only plausible rationale behind nominating Meiers).

29

et alia 12.20.05 at 1:39 pm

This passage at the end of the fourth essay in Strauss’ Natural Right and History, “Classic Natural Right” (now, now, stop giggling—remember we’re talking about someone who penned a volume called Liberalism Ancient and Modern) is especially, uh, interesting in light of the glosses on Schmitt’s state of exception above (emphasis and snarky parenthetical asides mine, of course):

A decent society will not go to war except for a just cause. But what it will do during a war will depend to a certain extent on what the enemy—possibly an absolutely unscrupulous and savage enemy—forces it to do. There are no limits which can be defined in advance (by the enemy, sure, but why not by the alledgedly ‘decent’ state?), there are no assignable limits to what might (?!) become just reprisals. (?!?!?!?!? Doesn’t the notion of a just, even in the crude sense of proportionate, reprisal represent such a limit?) But war casts its shadow on peace. The most just society (note the slip from ‘decent’ to ‘just’) cannot survive without “intelligence,” i.e., espionage. Espionage is impossible without a suspension of certain rules of natural right. (Can’t you see Eric Idle playing Strauss and giving his old ‘nudge-nudge, wink-wink, know-what-I-mean’ sctick here? “Which rules, Professor?” “Certain ones! Know-what-I-mean? Eh?”) But societies are not only threatened from without. (Here it comes!) Considerations which apply to foreign enemies may well apply to subversive elements within society. (I do not know which to prefer,/The beauty of inflections/Or the beauty of innuendoes,/Professor Strauss equivocating/Or his de-historicizing readings of the Ancients after) Let us leave these sad exigencies covered with the veil with which they are justly covered. (Step right up! The most amazing freak show of philosophemes ever! So shocking we must keep them behind these curtains here! Go away kid, ya bother me!) It suffices to repeat that in extreme situtations the normally valid rules of natural right are justly changed (another slippage, this time from simply ‘suspended’ to not only ‘changed’ but ‘justly’ so!), or changed in accordance with natural right (Bingo! Natural right is not contrary to or merely cognisant of the state of exception but actually includes it!); the exceptions are as just as the rules. (Now he’s repeating himself, but only what he just said before the semi-colon, which he only got to through several slippages, equivocations, and indirections. Completely dishonest, but you have to admire what a skilled con man he was) And Aristotle seems to suggest (Thought I was just filling out the verse above there with the ‘de-historicizing readings of the Ancients after,’ didn’t you? And don’t you love the ‘seems to suggest?’ He doesn’t just suggest, he ‘seems to!’ What delicacy of style! What careful reading!) that there is not a single rule, however basic, which is not subject to exception. (“Which rules? All the fucking rules, you bleeding upper class twit, all of them!” “Professor? Does that mean we can leave lecture now and go sack a third world nation?” “Be my guest, but don’t be surprised if the fucking Americans have beaten you to it, you snotty-nosed gits!”)

So Aristotle was a Schmittian! Who knew, huh?

But this is just the enabling ideology for what these cretins wanted to do in their black hearts already. As somebody once said, bad reasons and bad music both sound good when we’re going to war. Which some have taken as a argument in favor of war—all war, all the time!!

30

Steve 12.20.05 at 1:46 pm

Steve Kyle-
I made none of the assumptions/confusions that you argue that I did. In fact, my entire post could be rewritten and substitute fascism, naziism, genocidal mania, or any other philosophy, and choices 1, 2, and 3 would still be relevant. To express them in simpler terms, you have to either say 1) Bush 2 is doing IT (whether fascist, nazi, corporatist, or whatever) but noone else did-in spite of the fact that Reagan and Clinton clearly had the same attitude towards domestic intelligence collection (the practice in question that motivated this post)-in which case you are being, frankly, hypocritical 2) that Bush 2 as well as Bush 1, Reagan, and Clinton were corporate/fascist/nazi/genocidal/whatever, in which case you have a pretty odd view of the US (because, lets face it. We’re not talking about ‘whatever’ here. We’re talking about fascism/naziism or some milder variant of it), or 3) neither Bush 2 nor Clinton/Reagon/Bush 1 were nazi/fascist/genocidal, in which case, you are a pretty reasonable person.

In other words, the definition of the -ism being discussed is irrelevant to the argument; its the consistency with which you apply your judgements that is at issue.

Steve

31

steve kyle 12.20.05 at 1:55 pm

so I am still wondering. what would bush have to do for you to think he had even a tendency toward fascism?

32

Adam Kotsko 12.20.05 at 2:42 pm

The standard spelling is Nazism, not Naziism. The latter looks ridiculous.

33

Tom Doyle 12.20.05 at 2:47 pm

“ [T]he Founders intended the executive to have — believed the executive needed to have — some powers in the national security area that were extralegal but constitutional.” W. Kristol and G. Schmitt, Vital Presidential Power, Washington Post (Dec. 20, 2005 )

Many founders did indeed have such intentions. We the people of the United States are fortunate that ours didn’t.

34

Seth Edenbaum 12.20.05 at 2:47 pm

Schmitt, Bush etc…
The more important issue is the Weimarization of American culture and the separation of academic culture from the rest of the society, whether based on science or pseudo-science. I’m tired of hearing pedants yell at mystics about thugs.
Pedants by their nature don’t know what the problem is because, well… they’re right arent’t they?

We need a discussion of that more than anything.
The definition of a pedant is a scientist discussing politics

35

abb1 12.20.05 at 2:48 pm

Yet they have no problem with ‘Islamo-fascism’.

“Fascism”=”one of those bad things foreigners do”.

36

James Wimberley 12.20.05 at 2:48 pm

Adam Kotsko in 28: “note that this is the only plausible rationale behind nominating Meiers”. Nice Fehlleistung!
The brilliant “Mr Schmitt” joke it the title post will have us all talking about the Busch administration, von Rumsfeldt, Dr Kondi Reisz, Karl Rowa, etc.

37

Walt Pohl 12.20.05 at 3:01 pm

Steve Kyle: You already know the answer to your question. Nothing.

38

Semanticleo 12.20.05 at 4:03 pm

I have not seen anyone latch onto the clear and future danger these abuses tend to exacerbate.

FISA was enacted as a direct result of the abuse
of Executive privilege by Richard Milhouse Nixon.

The congressional rollbacks which everyone claims ham-strung the Intelligence community prior to
9/11 was a direct result of Reagan’s abuse of
his executive powers.

Now we have another republican rounding the corners of the law, if not breakin’ it off.

What happens when unilateral, quick response time is hampered in a real emergency?

39

DC 12.20.05 at 4:23 pm

If we’re serious about possible fascistic tendencies in the Bush administration or in the “conservative movement” more generally don’t we need to address the absence of what is often seen as a crucial factor in the rise of authentic fascism between the wars – namely a revolutionary socialist threat to (crisis-ridden) capitalism which would cause traditional conservative interests to sponsor or tolerate some radical rightist exra-constitutional political force?

After all there is no shortage of examples of non-fascist right wing dictatorships (Paraguay has been mentioned) – why fascism in particular?

40

Grand Moff Texan 12.20.05 at 4:39 pm

Constitution … Constitution … This will be especially true in times of war.

I would remind Kristol that, Constitutionally, we are not at war (and have not been since 1945). But Kristol knows that. As with the rest of his “argument,” it’s nothing but dishonest hand-waving.

The president confessed on national TV yesterday morning. Removing him from power is now only a matter of time.
.

41

Raymond 12.20.05 at 4:42 pm

The comments started out alright, but then…

There’s something irritating about the way effeminate leftists throw the word ‘fascist’ around.
Quit whining and start winning elections. This issue amounts to nothing. If anything this will boost Bush’s popularity.

42

Walt Pohl 12.20.05 at 4:53 pm

Forgive the crudity, but #41 is some funny shit.

43

john c. halasz 12.20.05 at 5:27 pm

I take it that the core of Schmitt’s thinking revolves around the constitutional paradox or aporia of the constituent/constituted power as the source of sovereign power and the authority of law. Whatever the strange alchemy of violence, organization, and legitimatation that goes into the sovereign power of a state and the authority of its laws (or their “origin” or creation), it does little good and perhaps makes less difference than one would like to think, whether sovereign power is said to belong to or derive from “the people” or be invested in the person of an inbred idiot. That power will always be tranferred to a legal-administrative apparatus and always be threatened with rupture from novel situations that emerge from its indefinable base, (“anomie”), which, in turn, re-opens the conflict of contested and irreconcilable conceptions of political power. What Schmitt is effectively saying is that political power and the authority of law, from which it derives and which is supposed to regulate it, are without foundation, such that its “basis” can only be construed in terms of contingency, conflict and decision, though, in accordance with his archconservative nationalist, and authoritarian Catholic background and biases, he dresses the point up in the numinous aura of theology. (This basically says that sovereignty and authority are ultimately fictive or mythic.) In particular, the foundational attempts of classical liberalism, that attempted to resolve the problem through a pre-established harmony of equal and equitable rights, values and interests, in an abstract scheme or plan of society fall to that criticism. (And, of course, from the leftie point of view, such liberal schemes served to perpetuate or augment inequality and inequitable distributions under the very guise of formal equality.) For my part, of course, I would reject Schmitt’s antinomian and annihilatory definition of politics in terms of the distinction of friend and foe, but rather would regard politics as having to do with the constitution and maintenance of a political community through the “productive” pursuit and possible resolution of conflicts, in which there are no prior or foundational guarantees, since not only interests, but the values which frame their perception and identification might be incommensurable and potentially irreconcilable, leading to the potential from violence and repression/oppression at the extreme. In other words, politics is a matter of praxis, in the sense of Aristotelian practical reason, which seeks to resolve conflicts in view of enhance relations within the good life in common, rather than “solve problems”, in the manner of modern conceptions of theoretical reason, heavily infiltrated by techne, as in technocratic-economistic conceptions of politics. (Law too is a means of resolving conflicts through access and appeal to the formal means of applying the coercive power of the sovereign state, though not only is law preceded by prior, informal levels and modes of conflict, even while provoking conflicts through the very availability of formal means to conflict,- as with the famous litigiousness of Americans or the endless political squabbles over judicial rulings and appointments,- but ultimately the legitimacy and efficacy of law depends on whether it is consonant with and supported by the practices of the communities under its juristiction. If Schmitt, by profession a legal and constitutional theorist and not per se a political one, means to suggest the ultimate primacy of the political over the legal and the ultimate impossibility of an automatically self-regulating “rule of laws, not men”, then I basically agree.) At any rate, as I think was hinted by others above, the dilemmas that Schmitt adumbrated need not be applied in a violently authoritarian and anachronistically traditionalist sense, as opposed to a democratic context. FDR’s New Deal could be seen partly in Schmittian terms, rather than conventional liberal-legalistic terms,- (think of the failed court-packing scheme),- as it involved the acquiring/creation of new governmental functions and powers and the promulation of whole new areas of administrative laws and regulations, with only indirect consent from the lawmaking legislature, leading to a conflict between the universalist, liberal conception of law and the particularisms of administrative law that has riddled the welfare-state compromise ever since.

It might also be useful to de-toxify Schmitt just a bit, without ignoring his toxicity. The writings for which he is best known stem from the Weimar period, when he was working with the Catholic Center Party, attempting to preserve the viability of the Weimar constitution, which he saw as the legitimate embodiment of the German state, in continuity with the defeated Wilhelmine Reich, amidst not just rampant economic dislocation and misery and violent street agitation, but an electoral and parlimentary system that was irreconcilably divided and incapable of forming a functional consensus, the rechts radical parties, (of which the Nazis were initially not foremost), undermining the traditional conservative parties and the Communists undermining the SDP. His theoretical efforts can not really be disentangled from the practical-legal problems he was confronting, as he tried to provide a constitutionally legitimate basis for presidential rule by decree, as the only recourse for maintaining, as he saw it, the legitimate authority and functionality of the German state in the face of the parlimentary/electoral deadlock. And, in particular, he worked vigorously with elements in the Von Hindenburg circles to prevent the rise of Hitler. A year after having failed, responding to a letter from Heidegger, who had already hitched himself to the Nazis, he joined the party, having to suck up to the Nazi hierarchs, who regarded him with suspicion as a former opponent. That’s damnable, but his Nazi period still has to be distinguished from his Weimar writings and his rancorous post-war analyses of international relations. What distinguishes Schmitt from his predecessors on the counter-revolutionary authoritarian Catholic right, such De Maistre and Donoso Cortes, is precisely his sophisticated, modernistic understanding of the highly differentiated and functionally complex nature of modern societies, which is why an absolutist appeal to the restoration of authoritarian tradition would not avail. However repulsive or reprehensible the character of the man, there’s still some reason for attending to what his intelligence has to convey.

As to the immediate topic at hand, the Bush surveillance revelations, liberals who claim that Bush has broken the law and evaded the constitution are not wrong, so much as, in my book, missing the real point. The inapplicability of warrants is apparently due to the operation of high-tech data-mining techniques. The U.S.A. has pursued a lavishly funded high-tech military-industrial complex, while cutting back or constraining social provision and other governmental operations, if not rendering them sheerly dysfunctional. Meanwhile the military caste and the Pentagon complex have gained increasing autonomy, as almost a state-within-the-state, in their pursuit of “full spectrum dominance”, of which this case is just another instance, evading not just oversight and accountability, but the public deliberative processes that are the only way to test the applicability and suitability of the accumulation of such fantastically violent means of “power projection”. The problem here is not just that “big brother” is watching you, but that “big brother” is lavishing himself with sophisticated means of “enforcing” its power, without any consideration of the actual applicability or efficacy of such means in a real political world. “Big brother” might be watching you, though most of us might not have all that much to hide. But still more frightening is that the sophistication of his means only re-enforces the unthinking stupidity of his ends. Be afraid, very afraid.

44

Dan Simon 12.20.05 at 6:01 pm

Well given Steve’s certainty at how vast the gulf is between present concerns and the final descent into fascism, I guess we should just stop worrying about it. At least until Steve lets us know what we should expect that descent to look like…

A number of countries in history have gone through it–and several are going through it as we speak. If you can’t identify them, or have trouble distinguishing them from America under the current administration, then I really don’t think you’re familiar enough with this topic to participate in a discussion of it.

[I suspect Steve, like so many, labors under a comic book conception of fascism, where the descent to fascism comes through a great riot of armed militants that install a new authoritarian government, or perhaps the rise of a single demagogue who single-handedly crushes democratic opposition.]

Well, fascism is usually associated with a “single demagogue”, and he has to rise to power by either violent or non-violent (i.e., democratic) means. So I’m curious to know how the “descent to fascism” can occur via paths other than the “comic-book” variants described above.

Of course, if you redefine “fascism” sufficiently radically, then you can treat actual current or historical examples of “fascism” (Hitler, Mussolini, Franco, Nasser, Peron, etc., etc.) as mere “comic-book” corner cases, and declare the more typical case to be whatever government you happen to dislike the most at the moment. But surely nobody around here–even those who really, really dislike the current president–would ever be so silly as to describe him as an actual fascist. Right?

45

Semanticleo 12.20.05 at 6:05 pm

In truth, as opposed to above comment about the last war ending in 1945, it could be said that only the Germans lost the war.

The battle still rages and the fascists are still
fully engaged.

46

Uncle Kvetch 12.20.05 at 6:25 pm

“A dictatorship would be a heck of a lot easier, there’s no question about it.”
– President George W. Bush, July 26, 2001.

“If this were a dictatorship, it’d be a heck of a lot easier, just so long as I’m the dictator.”
– President-elect George W. Bush, December 18, 2000.

“You don’t get everything you want. A dictatorship would be a lot easier.”
– Texas Governor George W. Bush, July 1998.

47

otto 12.20.05 at 6:51 pm

On the question of whether Yoo could be subject to proceedings under the torture convention, see http://www.motherjones.com/cgi-bin/print_article.pl?url=http://www.motherjones.com/interview/2005/12/philippe_sands.html

48

Kenneth Rufo 12.20.05 at 7:38 pm

Dan, the problem with your oddly obtuse response is that it responds to an argument that I never make, and you know it. I have never claimed Bush is a fascist, nor has anyone else in this thread. That Bush embraces a Schmittian state of exception founded in what amounts to unbridled wartime excutive powers is the topic of the thread, and that this exception carries with it, either structurally or historically, something we might call fascist, is the discussion at work in these comments. Hence the third paragraph of my comment, which you deliberately don’t quote, since doing so would make the dodginess of your argument obvious.

Still, let me at least note, regarding the rest of your comment, that you’re sublimating fascism as an ideology and movement to the empirical ascension of fascism as a realized government. I suspect you know those two things are different, and I would hope you’d agree that, as I indicated, it’s a rather useful idea to investigate the contours of the former until it manifests as the latter.

49

Craig 12.20.05 at 8:56 pm

The question of Schmitt’s relation to the Nazi regime has been raised a number of times in the discussion. I have posted the transcripts of Schmitt’s interrogations at Nuremberg on my own site. I’ve also posted it to Long Sunday.

50

Henry 12.20.05 at 9:14 pm

Thanks Craig – best account of the debate on Schmitt and Nazism that I know of is by my mate Carl Caldwell. Ref:

bq. Carl Caldwell, “Controversies over Carl Schmitt: A Review of Recent Literature,”Journal of Modern History 77 (2005), 357-87.

51

Dan Simon 12.20.05 at 9:28 pm

I have never claimed Bush is a fascist, nor has anyone else in this thread. That Bush embraces a Schmittian state of exception founded in what amounts to unbridled wartime excutive powers is the topic of the thread, and that this exception carries with it, either structurally or historically, something we might call fascist, is the discussion at work in these comments.

I’m trying, honestly, to make sense of that second sentence. Each time I read it, I can only discern two interpretations: (1) “Bush is a fascist”; and (2) “this sentence is unintelligible nonsense”. (Or, alternatively, (1) “that first sentence was nonsense”, or “(2) “this second one is nonsense.”)

If there’s a third plausible interpretation, would you please present it to us?

52

old 12.20.05 at 9:39 pm

I don’t have a copy of State of Exception handy, but doesn’t Agamben actually argue that basically ubridled exceptional power concentrated in the hands of the executive began at least as far back as Roosevelt in the U.S.? It would be quite easy to show how every president since has made increasingly extensive use of presidential orders etc. (which I think Agamben does as well). All the hand wringing as if things have gone down the shitter with Bush on this issue and a Democratic regime would save us are repugnant. America was lost to totalitarianism a long time ago and it can not and will never be rescued. Agamben’s argument in State of Exception is so brilliant because it refuses to play partisan politics in the seven or so countries he analyses as Schmittian in the first chapter. Euro-American politics is permanently bankrupt and fascist to the very core and Agamben has no bones about saying such.

53

ben alpers 12.20.05 at 10:40 pm

Oddly, some elements of the European left have adopted Schmitt in recent decades. And even some American scholars on the left have lately been saying nice things about Schmitt. I saw William Rasch, a Germanist from Indiana University, give a talk last year in which he suggested that Schmittian ideas are a potentially useful source for a left critique of both liberalism and Hardt/Negri.

I’m certainly no specialist in any of this, but I’m very skeptical of this sort of thing. Anyone want to rise to the defense of left Schmittianism (pardon the neologism)? Carl Schmitt seems much more at home among the neocons to me.

54

Dan Nexon 12.20.05 at 10:41 pm

Welcome to the game… a bit late. Balkinization’s been making the same comparison for some time, I jumped on the bandwagon a few days ago, etc. etc. Great minds? Collective stupidity? Overeducated twits? Who knows.

Indeed, the call for papers for the new journal International Political Sociology lists the “state of exception” as one of its themes (PDF). So I suppose this interpretation of the “War on Terror” has been around for some time.

55

steve kyle 12.20.05 at 11:57 pm

This thread has made my day. I have been labelled a “whining effeminate leftist” and urged to “start winning some elections”. Must consult the wife on the whining effeminate part (nolo contendere on the leftist label). Looks like I will be able to offer some satisfaction on the “winning elections” part. Stay tuned.

56

Adam Kotsko 12.21.05 at 12:13 am

The concepts that Schmitt develops do not necessarily only apply to a fascist regime, although for the purposes of developing the theory, a fascist regime has everything “out in the open,” whereas in other non-fascist regimes (such as our current mutation of American Constitutional democracy), it might be more difficult to make out. To point out the ways in which Schmitt’s paradigm might apply to the current sovereign of the US is not to call him Hitler. So claiming that Bush isn’t Hitler is kind of beside the point.

57

Lurker 12.21.05 at 2:25 am

I’ve read through the whole thread. Just one question. The President went on live TV and said, “I’ve broken the law. I will continue to do so.” Why have not impeachment proceedings begun yet? Is America waiting for a video of a bj to do the rounds on the internet?

58

john c. halasz 12.21.05 at 3:26 am

Fascism refers to an historically specific configuration, involving among other things, an intensely modernistic anti-modern reaction coupled with a hodge-podge irrationalistic ideology without coherent sense, but mobilizing at once populist-authoritarian resentment with an incorporation of dominant business interests in a scheme of militarist-nationalist imperalistic expansionism. By contrast, just to stick to the right of the spectrum, there are other modes or categories of dictatorship or tyranny, e.g., authoritarian traditionalism, military-nationalist authoritarianism, or phalangism. In the subsequent Latin American instances, there is no clear cut instance of fascism, though there might arguably be a fascistic strain mixed in with the other components. Historical thinking is a matter of analogical reasoning from perspicuous examples, which does not imply any deterministic schemas or strict categorical identities. Thus the point about the Bushista administration and its idealized model of a self-perpetuating regime, is not that it’s actually and successfully “fascist”, but rather that certain distant analogies can be drawn: e.g. the mobilization of populist resentment, via “culture wars” and the activist de-legitimation of law as “judicial activism”, coupled with the promotion of selected corporate interests; the consolidation of domestic political power through the identification of “foreign” enemies; the aggressive “defense” of national “interests” through “preventative” war; and the exultation of executive authority over legal and constitutional procedures and public-political processes. But really more to the point, rather than juvenile accusations of “fascism” or liberal objections to the violations of the sacred ideal of the “rule of law”, -(which, in terms of practical-rhetorical politics, will get you exactly nowhere),- the main point, from a putatively left-Schmittian perspective, is that the usurpations or evasions of sovereign-constitutional authority perpetrated by the Busheviks open up the very Schmittian paradoxes and abysses of political legitimation that they at once lay claim and succumb to. Personally, I would wish nothing better than that the Busheviks experience their own “extraordinary rendition” to The Hague. But that’s an un-Schmittian thought.

59

abb1 12.21.05 at 4:12 am

What’s wrong with combining all forms of authoritarian reactionary nationalism under the term ‘fascism’? Even if it did mean something more specific at one time – language evolves. That’s what it means now, at least to layman, and that’s not juvenile.

60

fred lapides 12.21.05 at 6:59 am

It would seem that Buish is not the onbly president in recent times to do exactly what Bush is now accused of doing:
http://www.drudgereport.com/flash8.htm

61

DC 12.21.05 at 7:04 am

“What’s wrong with combining all forms of authoritarian reactionary nationalism under the term ‘fascism’?”

Because that would be a gross dilution of an important historical and political category. Margeret Thatcher could be called a fascist in your version, even though, odious as she was, she never threatened, or even wanted to threaten, democracy.

62

DC 12.21.05 at 7:09 am

Also, one needn’t go back to far in US history to percieve the perils of hysterically conflating distinct if related categories e.g. Russian imperialist, Vietnamese nationalist, left-populist, revolutionary communist etc.

63

Steve 12.21.05 at 7:30 am

Hilarious!

Here’s the state of the argument:

Carter did it (see Drudge)
Reagan did it (see National Review-he signed the law into place)
Presumably Bush I did it (a safe assumption)
Clinton did it (see National Review-his attorney general defended doing it in Congress)
Bush II did it

We are a fascist state! Begin impeachment proceedings!

Really, this argument is absurd. Of any president over the last 30 years, Bush II actually has the best reason to be doing it (we’re actually at war now). Carter, Clinton, and the rest of the gang were actually doing it during peacetime,and by your own argument, they are more fascist than Bush II (i.e. they were justifying a ‘permanent state of crisis’ far more than Bush II is).

Go back and keep digging. Yet another scandal that doesn’t have any legs (cheer up-I hear Dan Rather has ANOTHER set of documents that prove Bush should be impeached. Really good ones this time! If only the right wing media would stop censoring the Democrats…).

Steve

64

a 12.21.05 at 7:46 am

Why are strict constructionalists strict constructionalists except when it comes to Executive Powers?

65

a 12.21.05 at 7:48 am

And by the way, I’d be perfectly willing to turn the question around, and ask why those who support judicial liberties with the Constitution are the first to criticize executive liberties with same.

66

Rob 12.21.05 at 8:33 am

Steve–Drudge backs be up!!! Wow thats some class! Of course that wasn’t US Citizens but hey its good enough for the small minded and easily distracted!

67

Adam Kotsko 12.21.05 at 9:26 am

The problem is bigger than George W. Bush as a person — but impeaching George W. Bush (who, in contrast with Carter, Raegan, Bush Sr., and Clinton, is actually president right now) would be a valuable step toward reigning in these executive excesses. It’d be a way of saying, “Wow, we’re heading down a bad road — but we’re going to try to make sure it ends here.”

68

Phil 12.21.05 at 9:48 am

Thought the following debunking of the right-wing talking points concerning Carter/Clinton authorization of electronic surveillance would be useful (from georgia 10 at Daily Kos).

You know the shit is about the hit the fan when the wingers turn to Clinton to try and excuse King George’s behavior. We saw it with the illegal invasion of Iraq (“but..but…CLINTON said Saddam has WMD!”) and with the nuclear option (“but…but…you hated the filibuster when the Clenis was in power!”). But no distortion is more blatant, I think, than the one being circulated now that both Clinton and Carter authorized warrantless searches.

Think Progress does a quick and painless job of eviscerating the myth. Let’s take a closer look and put this lie to rest. Yes, both Clinton and Carter issued executive orders pertaining to foreign intelligence surveillance. But neither of these even remotely authorized warrantless searches of American citizens, as Bush’s order does.

CLINTON DID NOT ORDER WARRANTLESS SEARCHES OF AMERICAN CITIZENS
Here’s what Clinton signed:

Section 1. Pursuant to section 302(a)(1) [50 U.S.C. 1822(a)] of the [Foreign Intelligence Surveillance] Act, the Attorney General is authorized to approve physical searches, without a court order, to acquire foreign intelligence information for periods of up to one year, if the Attorney General makes the certifications required by that section.

You don’t have to be a lawyer to understand that Clinton allowed warrantless searches if and only if the AG followed section 302(a)(1). What does section 1822(a) require?

the “physical search is solely directed at premises, information, material, or property used exclusively by, or under the open and exclusive control of, a foreign power or powers.” Translation: You can’t search American citizens.

and there is “no substantial likelihood that the physical search will involve the premises, information, material, or property of a United States person.” Translation: You can’t search American citizens.

Moreover, Clinton’s warrant waiver consistent with FISA refers only to physical searches. “Physical searches,” as defined by 1821(5), exclude electronic surveillance.

CARTER DID NOT AUTHORIZE WARRANTLESS SEARCHES OF AMERICAN CITIZENS
And now, Carter’s turn:

1-101. Pursuant to Section 102(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order, but only if the Attorney General makes the certifications required by that Section.

Here, Carter refers to “electronic surveillance,” rather than “physical searches” like Clinton. But again, Carter limits the warrantless surveillance to the requirements of Section 1802(a). That section requires:

the electronic surveillance is solely directed at communications exclusively between or among foreign powers. Translation: You can’t spy on American citizens.

there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party. Translation: You can’t spy on American citizens.

Section 1803(a)(2) requires that the Attorney General report to Congress (specifically, the House and Senate Intelligence Committees) about whether any American citizens were involved, what minimization procedures were undertaken to avoid it and protect their identities, and whether his actions comply with the law. Hot damn, that sounds like a check and balance to me!

69

Phil 12.21.05 at 10:04 am

Sorry to double post, but Hilzoy over at Obsidian Wings has more on supposed previous presidential authorization of warrantless wiretaps (including Reagan):

“Hilzoy”:http://obsidianwings.blogs.com/obsidian_wings/2005/12/intellectual_in.html

70

Grand Moff Texan 12.21.05 at 10:05 am

Steve:

Newsmax, the Chicago Tribune, and Sen. John Cornyn (R-Trailer Park), have also been convulsively distributing the same effluent.

Apparently, that’s what they’re for.
.

71

Grand Moff Texan 12.21.05 at 10:09 am

I have been labelled a “whining effeminate leftist” and urged to “start winning some elections”.

By passive-aggressive, sissified, vicarious revelers in gerrymandering and throwing away votes, yes, so consider the source.
.

72

PersonFromPorlock 12.21.05 at 10:26 am

To the extent that I can make any sense of the term ‘fascist’ at all (other than as a smear), it denotes civil government modeled on the military: a centralized hierarchy supporting a ‘mission’ that is the defining purpose of the state. As such it is inherently nationalistic and authoritarian.

In the Bush administration’s assertion that a wartime President’s status as Commander-in-Chief puts him outside of statutory control, we do see a weak parallel to fascism, since it claims military precedence over civil government. But he is still limited by the Constitution; he cannot, for instance, use the War on Terror as a reason to suspend Congressional elections, and he is still subject to court orders citing Constitutional authority.

Moreover, Bush has not made the WOT a national mission; it is important but not defining. And he certainly has not succeeded in controlling the Congress or the Courts, which makes any centralized hierarchy of his rather less centralized and rather less hierarchical than fascism requires.

So I think accusations of ‘a fascist government’ are a little overdone; I don’t like the idea of a President who puts himself above the law, even if only in some circumstances, but as a practical matter Bush isn’t claiming to be above that many laws, and can cite other Presidents’ actions which may or may not have been Constitutionally valid but don’t seem to have done any long-term harm.

Yes, it’s something to keep an eye on, but there’s no shortage of willing eyes.

73

YH 12.21.05 at 10:28 am

“that would be a gross dilution of an important historical and political category. Margeret Thatcher could be called a fascist in your version, even though, odious as she was, she never threatened, or even wanted to threaten, democracy.”

Never mind conceptual dilution, here’s some conceptual attenuation. Not seeing Thatcherism and now its offspring Blairism as an attack on democracy is naive to say the least. It doesn’t require disbanding Parliament to dismantle democracy.

74

Uncle Kvetch 12.21.05 at 10:44 am

Both Steve and personfromporlock are bringing up the “wartime” aspect of all of this, which prompts the big elephant in the corner to once again stir from its slumber.

If I understand the argument correctly, it runs as follows:

1) We are at “war” because the President says we are.

(Of course, there are specific instances in which we are not, actually, “at war”: whenever those pesky, quaint Geneva Conventions are brought up, for instance. Alternatively, the argument has been made that this “war” is unlike any other “war” in the history of humankind, and that such differences can only be fully grasped and acted upon by the President.)

2) The enemy in this “war” is whoever the President happens to label as such. The person so labeled has no right to contest the label, the President’s power in this respect being absolute.

3) There being no actual enemy foreign power capable of surrendering, the “war” will be over when the President says it’s over.

Now comes my favorite part:

4) It’s all about spreading the benefits of democracy and freedom.

75

Lurker 12.21.05 at 11:06 am

I reckon this thread is now long enough to warrant a substantial meandering.

#73’s fourth makes this foreigner ask, is there a constitutional requirement that the U. S. of A do good? Or is she just prevented from doing bad, good and bad having been defined somewhere in the self same constitution?

76

Nat Whilk 12.21.05 at 2:15 pm

I hope it won’t derail this thread on Gary Schmitt and Carl Schmitt too much to point out that John Schmitt Schmidt (associate attorney general under Clinton) has an op-ed piece in today’s Chicago Tribune in which he says that “President Bush’s post- Sept. 11, 2001, authorization to the National Security Agency to carry out electronic surveillance into private phone calls and e-mails is consistent with court decisions and with the positions of the Justice Department under prior presidents.”

77

DC 12.21.05 at 3:42 pm

“Not seeing Thatcherism and now its offspring Blairism as an attack on democracy is naive to say the least. It doesn’t require disbanding Parliament to dismantle democracy.”

I should have qualified my statement that Thatcher didn’t threaten democracy by saying that it was formal, electoral (“liberal”) democracy she didn’t threaten. Thatcher-Reaganism (“neo-liberalism”) was and is of course an attack on social-democracy and the social and democratic gains of the working classes since the second world war, and as such an absolute menace to any concept, including my own, of “real” democracy.

But I don’t believe Thatcher would ever have considered a coup against the established rules of the liberal democratic game. Clearly a different category to fascism, then.

78

abb1 12.22.05 at 2:18 am

John C. Halasz is talking about ‘phalangism’ as a category equal to ‘fascism’, but does an average person even know the word ‘phalangism’?

To me ‘phalangism’ is Spanish fascism, ‘nazism’ is German fascism, “black colonels” is Greek fascism, Pinochet’s regime is Chilean fascism and so on. It’s not scientific, but, I think, common enough.

79

brendan 12.22.05 at 5:16 am

For more details:

‘It may be exceedingly unlikely that President Bush will be impeached, but in the past few days, the I-word has become a topic of considered discussion among constitutional scholars, former intelligence officers and even a few politicians….other political scholars have weighed in. “The American public has to understand that a crime has been committed, a serious crime,” Chris Pyle, a professor of politics at Mount Holyoke College and an expert on government surveillance of civilians, tells Salon. “Looking at this controversy objectively, you inevitably end up with a question of impeachment,” says Jonathan Turley, a professor at the George Washington University School of Law….other political scholars have weighed in. “The American public has to understand that a crime has been committed, a serious crime,” Chris Pyle, a professor of politics at Mount Holyoke College and an expert on government surveillance of civilians, tells Salon. “Looking at this controversy objectively, you inevitably end up with a question of impeachment,” says Jonathan Turley, a professor at the George Washington University School of Law.’

http://www.salon.com/news/feature/2005/12/22/impeach/index.html

Not that any of this will actually happen, with the Democrats being (objectively as they say) on the side of Bush.

Why doesn’t the Democrat party disband? What’s the point of it?

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a 12.22.05 at 8:56 am

Joseph Biden: “I happen to be a professor of Constitutional law. I’m the guy that drafted the Use of Force proposal that we passed. It was in conflict between the President and the House. I was the guy who finally drafted what we did pass. Under the Constitution, there is simply no distinction … Louis Fisher(?) and others can tell you, there is no distinction between a formal declaration of war, and an authorization of use of force. There is none for Constitutional purposes. None whatsoever. And we defined in that Use of Force Act that we passed, what … against whom we were moving, and what authority was granted to the President. “

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Uncle Kvetch 12.22.05 at 10:27 am

Why doesn’t the Democrat party disband?

Forgive me for picking a nit, Brendan, but the proper adjectival form is “Democratic”: the Democratic Party, Democratic proposals, a Democratic Senator, and so on. The people in the party, on the other hand, are Democrats.

It would a vanishingly small nit, were it not for the fact that the misuse of “Democrat” as an adjective is very popular on the American right, apparently for reasons of sound symbolism: “rat,” “crap,” what have you.

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Stan 12.22.05 at 11:33 am

Of no great consequence, but as a pendant to Zizek’s obeservation about the Paraguayan state of emergency, the Dail – the Irish parliament – instituted a state of emergency at the beginning of WWII – a period referred to by most irish people as ‘the emergency’ – which was never actually rescinded until 1976 – in order to allow for the institution of a replacement state of emergency to deal with the perceived threat from IRA terror; I’m not actually sure if that has ever been rescinded…

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brendan 12.22.05 at 11:56 am

Fair point. Why doesn’t the Democratic party disband?

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john c. halasz 12.22.05 at 2:03 pm

abb1:

Phalangist movements are more traditionalistic and less totalitarian than fascism proper, relying on a reactive alliance of existing traditionalist class/caste groups rather than mass mobilization through all-encompassing novel ideology and correspondingly are less expansively agressive in their assertion of nationalist claims. Many strains nowadays on the far right would be more usefully described and analyzed in terms of phalangist tendencies rather than in terms of fascism proper: an organization such as, e.g., the American Legion, might at times express such tendencies. The basic point I was making was that fascism emerged an historically unique juncture of the development of socio-political affairs in Europe and it is little likely that we will ever see the re-emergence of full-blown fascism ever again, while it’s highly likely that we will witness much that is woeful or abusive. Using “fascism” as an epithet to label any authoritatian, dictatorial, tyrannical or otherwise oppressive and abusive tendency, whether only on the right or on the left, as well, just muddles the issues, whereas a more differentiated categorical vocabulary in interpreting and analysizing different political-historical situations might more usefully provide some sense of orientation in these “interesting” times. Someone else above gave a good example of the effects of such conflations, but I’ll add another one of my own: the Cold War identification of Nazism/fascism with Stalinism/communism under the rubric of “totalitarianism”. There were, of course, analogies between the two, with strong similarities in terms of mass mobilization through an all-encompassing, totalizing ideology, combined with the extensive and intrusive deployment of state-organized terror. But there were just as strong differences in the historical situations, aims and complexions of the respective regimes. But, of course, the conflation was a deliberate ideological trope, mobilizing the fight against and opprobrium of fascism for the aggressive “containment” of communism, stigmatizing any effort at mutual accommodation, peaceful coexistence or gradualism between the two “blocs” as “appeasemnt”, while disguising/justifying, that is, denegating, oppressive or imperialistic alliances or manoeuvres on behalf of the “free world”. (This is not to deny, of course, that there was much that was oppressive, culpable or dangerously inept on the other side, as well. It’s just to emphasize the importance of clarifying the ideological dynamics and power diffentials operating in various situations.)

Carl Schmitt might have been a nasty piece of work, but his work still constitutes a useful reminder against complacent assumptions, such as that “liberal democracy” is somehow the natural or inevitable political estate, condition or terminus ad quem of mankind, that law and legal proceduralism are somehow a self-grounding and “transparent” medium, that the substance and limits of politics consist solely in representational processes, and that authoritarianism and democracy are simple opposites. His agonistic definition of the political as being determined and organized by the distinction between friend and foe is, of course, an analytic statement,- (though keeping in mind, as Bateson put it, the “report/command” structure of every statement),- that, though weak on understanding how a political community is “internally” constituted, does usefully bring out the issues of the competitive/oppositional organization of power that all but inevitably ensues. As for the Busheviks, though Bush is definitely a divider and not a uniter and is unstinting in his arrogant, corrupt, and reckless usurpation of power, it would be difficult to attribute to them anything like the cold and stark clarity of the Schmittian outlook. Were Schmitt alive today, though I doubt he was known for his sense of humor, I suspect the Iraq invasion would have provoked him to gales of Mephistophelian laughter. (Perhaps he is, in fact, so laughing in unheard realms.)

But once we’re on the topic of “political theology”, perhaps a glance back at the first such analyst might be of some interest: Spinoza’a contention, based on his metaphysics on the “conatus essendi”, that right extends as far as power. That was precisely not an identification of right with power, “might makes right”, but an assertion that rights could not meaningfully be talked of without the capacity to sustain them. In fact, he deployed the claim to criticize, from a “democratic” perspective, Hobbes’ theory of sovereignty based on an authoritarian social contract. That men would voluntarily transfer the whole of their right to a sovereign in exchange for protection and survival and that they would adhere to their contractual obligations as moral duties when the sovereign proved abusive of the putative contract Spinoza regarded as weak claims that reasonable men would not sustain and that could have no causal/rational- (the two were identical for him)- explanatory force. In other words, he turned the Enlightened critique of superstition on Hobbes’ own claim to establish a bold new “science” of politics. Following up on that, I’ll just remark that it might be more useful to delineate the realm of politics as the expression, for better or for worse, of the relational nexuses that comprise social life processes, including the power differentials that are constantly negotiated in them, rather than analysing it in terms of the utilitarian calculation of interests, since it is the resulting “values” and their conflicts, (which can be “internal” to positions, as well as, occurring ‘externally” between positions), that frame the perception and identification of “interests” by actual individual and group agents. Interpretation and analysis in terms of such an expressive conception of the political might better capture the real force of the interests at play in the organization of effective power than programmatic analysis based on the imputation of “objective” interests, with its denegation of the very agency it ostensibly appeals to. But still the question remains, hanging over us like the Sword of Damocles: what is power?

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abb1 12.23.05 at 5:13 am

Great comment, John, thank you.

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