Suprema Lex

“Jack Balkin”:http://balkin.blogspot.com/2004_06_06_balkin_archive.html#108680154938193129 on the torture memo.

bq. The stench of corruption permeates the pages of this report. Legal minds, blinded by ideology, and seduced by power, have willingly done the Administration’s dirtiest work– apologizing for torture and justifying violations of the most basic human rights. They have mangled the law and distorted the Constitution, manipulating legal sources to maximize power and minimize accountability. It is the sort of legal reasoning that twists law to destroy the Rule of Law. It is the sort of legal reasoning that brings shame on our nation and our people. It is the sort of legal reasoning that makes me ashamed to be a lawyer.

As “Jim Henley”:http://www.highclearing.com/archivesuo/week_2004_06_06.html#005415 says, what is troubling is not only the memo’s attempt to provide legal cover for torturers, but the arguments that it uses to back up its claims. The “memo”:http://www.msnbc.msn.com/id/5166951/site/newsweek/ argues that the Constitution grants the President “complete discretion” to determine how enemy combatants should be questioned, without Congressional oversight, and that “laws that seek to prevent the President from gaining the intelligence he believes necessary to prevent attacks on the United States” are unconstitutional. In short, the President can do whatever he sees fit to protect national security – his powers are unbounded on issues that touch on war-making. This fits into a more general line of administration argument – as witness the US administration’s claim that it can unilaterally designate a US citizen as an “enemy combatant” and deny him basic rights.

There’s a precedent for this kind of argument, and it’s not a very reputable one – Carl Schmitt’s theory of emergency powers. Schmitt was a notorious skeptic of parliamentary democracy; Oren Gross has a nice “short article”:http://www.tc.umn.edu/~gross084/Publications/2000%20Carl%20Schmitt.pdf that lays out his views. Schmitt argues that war – the existence of peril to the state – provides an exception that allows for the law to be side-stepped by politics. In his later work, he suggests that it is the sovereign who decides not only how to deal with an exception, but also what an exception is.

bq. The precise details of an emergency cannot be anticipated, nor can one spell out what may take place in such a case … The most guidance the constitution can provide is to indicate who can act in such a case. If such action is not subject to controls, if it is not hampered in some way by checks and balances, as is the case in a liberal constitution, then it is clear who the sovereign is. He decides whether there is an extreme emergency as well as what must be done to eliminate it.

Emergency powers, under this interpretation, aren’t limited by the existing constitutional order – instead, the sovereign may unilaterally decide what is, or is not necessary, given the emergency. In Gross’s exegesis of Schmitt.

bq. The result is that the sovereign is not only the one who decides on the exception, but also the one who definitely decides whether the normal situation actually exists. It is only the sovereign dictator who can authoritatively distinguish the exception from the normal and decide whether to take state action. At the same time, Schmitt considers sovereignty and the powers attached to it as indivisible. Thus, one cannot say that only part of the sovereign’s powers are operational at any given moment. Subject to the personal decision of the sovereign dictator, the sovereign’s unlimited powers may be put to use at any time. No external, objective limitations may be imposed on the exercise of these powers. Hence, should the sovereign dictator so desire, his unlimited powers – originally designed to apply to the exceptional case – may come to control the norm, indeed _be_ the norm.

Schmitt states baldly the underlying argument of the torture memo and indeed of the administration’s contentions regarding Padilla – that in cases where the security of the state is threatened, the sovereign should have unlimited discretion in his efforts to defend the public interest. This is a tough argument to make in a constitutional system like that of the US, which is based on checks and balances. The drafters of the torture memo square this circle by arguing that these checks and balances don’t apply to war-making. The problem is that the US administration is claiming not only that it can deviate from the law, but that it can also decide when such deviations are appropriate without reference to anyone else. Schmitt draws this argument to its logical conclusion – these powers effectively allow the sovereign to remake the constitutional order as he sees fit to defend national security. Even apart from the specific issue at hand (torture), this should give pause to defenders of the current administration. The notion that the President has complete discretion to break laws in his role as Commander in Chief is a fundamental and direct challenge to basic democratic principles and to the notion of limited government. This should not only be highly offensive to left-wingers, but to any libertarians who are worth their salt.