Thursday, September 27, 2007

It all comes down to Yoo

I saw this speech by John Yoo linked to on the Balkinization site and, of course, I was reminded of some of the key arguments in the current debate on presidential powers vis-a-vis the "war on terror."

Yoo's comments -- e.g. "every subordinate should agree with [the President's] views so there is a unified approach to the law," one should "not to be too open about what you think because it renders you un-confirmable for attorney general," "the framers wanted a presidency that’s unified and can operate with speed and secrecy so they left [the office] with ambiguous limits on its power," "a large part of the population is not sure if we’re living in a state of war or if, like our European allies, we should view terrorism as a law enforcement issue...that’s the issue that’s triggered the debate over presidential powers" -- tend to confirm my beliefs that he's a toady and lickspittle for the administration and a partisan hack, a judgment that is only strengthened by the fact that he was a strong critic of Clinton's "unitary executive actions" in the wake of the blowjob episode. (I also very much enjoyed this audience member's response: "The president could violate Congress every day to save my life." A case study for Erich Fromm's "escape from freedom" thesis if there ever was one. As Rousseau said: "Tranquility is found also in dungeons; but is that enough to make them desirable places to live?")

However, rather than simply pronounce ex cathedra here (sorry if I tend to do that), I'd like to open the floor to questions about presidential powers and states of emergency. These are especially relevant given that I'm taking a class this term on theories of law and the state (sample authors: Sophocles, Locke, Rousseau, Bentham, Habermas, Arendt, and, yes, Judith Butler). Seeing that the first class saw several incidents of grad students clutching their copies of Agamben (not that I didn't bring my own copy to class...), executive prerogative and the general Schmittian idea of "states of exception" seem to be hot topics. So, I'd like to throw it out there:

Suppose for a second that Yoo is honest (big leap, I know) when he says, more or less, that questions of "unforseen events and emergencies" are the President's jurisdiction, or rather, are valid (I hesitate to say "legitimate") opportunities for the suspension of ius altogether. What sort of an argument is this? What powers does the President constitutionally possess for dealing with these apparent emergencies? And what constitutes an emergency?

I've never really been satisfied with the argument that Article II of the Constitution says that the President shall "take care that the laws be faithfully executed," and therefore that the office of the executive has expansive, extra-congressional wartime powers. However, the newly minted law students in our ranks might be better able to answer this question than I.

Attendant upon this issue is the idea that the Unitary Executive (in wartime) can, just to name a few examples, spy on Americans without a warrant and indefinitely detain American citizens. Leave out for a moment the trickier issue of "overseas enemy combatants." Are the above actions at all constitutional?

Even more interesting to me is the declaration of a state of emergency itself. This is what Yoo alludes to when he says that "people don't agree if we are in a state of war." Thus, the executive gains the prerogative to decide upon this issue. Not only that, but, presumably, the executive also decides when said state has come to an end. This brings to bear the ambiguity between "war" and "state of emergency." When the twin towers were destroyed on Sept 11, this was clearly a terrorist act, but was it a declaration or act of war? If so, who are the actors? They are certainly not state actors. The President soon declared a "war on terror." Despite the fact that this is labeled a "war," is it really a "war" according to traditional definitions? Or is it a misleading name for something else (a prolonged state of emergency)? Is there a difference between a "state of emergency" and a "war," and if so, are the President's powers different under each heading? And, most interestingly, does a terrorist attack constitute a "state of emergency," where that term is defined roughly as "an incident in which the existential security of the nation is in doubt"? Is there another, better definition of state of emergency? Even if we think the current situation does not fulfill the requirements of a "true" state of emergency, is it up to us to say? Or, as Yoo says, must the President decide the reality?

Thinking through such issues puts into sharp relief the importance of the sorts of questions raised by the political theorist Carl Schmitt, apart from any ephemeral interest in him raised by liberal academics. Just to fill people in, Schmitt was a German legal scholar who, after writing several important works in the Weimar period, came to be a chief theorist under the Nazis in the 30s. He was eventually pardoned after the victory of the Allied powers and lived out the rest of his life in relative ignominy (and rightfully so). However, despite the stigma attached to his personal life, his works have some lasting importance. Chiefly, his short book Political Theology (1922) opens with the ominous sounding pronouncement, "Sovereign is he who decides on the exception (Souverän ist, wer über den Ausnahmezustand entscheidet)." More simply put, Schmitt's point was that, although contemporary scholars wished to do away with the irritating question of exceptional circumstances, seeing them as outside the law, deciding about such questions was actually the foundation of the political order itself. When such circumstances arose, a sovereign power would, necessarily, assert itself. The question is whether constitutions allow for such realities, or obscure the importance of them, in which case the national security could potentially be unnecessarily threatened while confusion reigns over who can decide about the exceptional circumstance. Schmitt thought that national security was important enough that presidents (and especially the Weimar president) needed to be clearly invested with exceptional powers. Legislative bodies such as parliaments could not be trusted to do so, first because parliaments act too slowly, and secondly because some chief executive element was likely to assert itself before a sluggish parliament could anyway (his argument is thus based on existential circumstances, not just normative). For Schmitt, politics came down to a personal decision, and not an impersonal norm (i.e. a logical, systematic procedure for dealing with crises). Furthermore, if we're willing to grant that some sovereign power ultimately decides upon the exception, then it seems logical to say that he/she/it also has the power to decide when such a state ceases to be. If the legislation can't itself deal with declaring the exception, how can it claim to be able to end the exception? That, again, seems to be up to the sovereign power.

It seems to me that three arguments could be raised in opposition to Schmitt's position. The first is a natural rights/social contract argument, namely that because the various citizens of the U.S. have delegated their individual powers to a representative government, decisions cannot be made unilaterally by the President without expressed consent by the citizens, exemplified by actions taken by their elected, representative officials. Under this argument, we end up with the extreme but perhaps justified conclusion that the President's actions over the past several years have constituted a negation of the Constitution of the United States. The President has no right to act as he has.

Under a second, related objection, we might say that the price of granting the President these powers is not worth the abrogation of the liberty and/or integrity we wish to display as a purportedly democratic nation. We will take our dangers, thank you, but always as a constitutional republic, reflective of our dignity.

Finally, according to a third, more pragmatic argument, whatever the President's constitutional powers, it may not be worth it for him to act as he has because the costs of potential suffering inflicted on individuals under the executive's actions can never be worth the incremental amount of safety possibly guaranteed by those actions. It's unclear to me how this argument doesn't ultimately devolve into one about natural rights, though, because on a purely utilitarian calculus, it may well be worth it for some people to suffer attacks on their so-called "natural rights" when weighed against the safety of so many other people.

So, this is more or less how I frame the issue. As Robot might say, "there's a lot here," but I'd appreciate any thoughts you might have. Even if you're not a law student or a constitutional scholar (and I certainly am neither), please feel free to register your intuitions here, because everything will be helpful for my seminar, as I said, and maybe it'd be swell for us to discuss anyway.

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