Carl Schmitt and Guantanamo at 10: Todd Pierce, a Judge Advocate General officer, speaks out

by Alan Gilbert

Will Altman sent me this striking piece from Todd Pierce, a Guantanamo defense lawyer in the Pentagon* from the National Law Journal below. It tracks the introduction and dangerous near triumph of Carl Schmitt’s doctrine stated in the first sentence of his 1923 Political Theology: “he is sovereign who makes the decision in the state of the exception” in the United States at the expense of the separation and balance of powers in the Constitution.

Pierce highlights a 2010 book by Eric Posner (Chicago) and Adrian Vermeule (Harvard) – The Executive Unbound: After the Madisonian Republic, Oxford Press – which echoes and embroiders this doctrine. Vermeule and Posner use the aim of fighting abroad – and Guantanamo – to advance the “legal,” that is authoritarian and anti-Constitutional suppression of dissent here. As Vermeule put it on Balkinization blog,

“We envision the Constitution in 2020 as a plebiscitary, president-centered electoral democracy in which Congress and the courts have been reduced to marginal actors, who carp from the sidelines but for the most part end up deferring to executive power, if only because the executive is the least dysfunctional branch.”

As I stress in Must Global Politics Constrain Democracy?, executive power – put crudely, “Mussolini makes the trains run on time” in the 1930s pro-fascist colloquialization of the executive as “the least dysfunctional branch” – and the Posner-Vermeule apology for it is an example of the anti-democratic feedback of international politics: that aggressions abroad lead to abridgments of the Bill of Rights as well as tyranny at home.

For instance, the Iraq occupation, now lessened (the US has mainly Xe Corporation mercenaries “on the ground”), and the Afghanistan one, as well as the drone war in Pakistan among others, violating international law (aggression, torture, though the latter was limited by Obama who, however, still retains indefinite detention and its symbol, the colonial – seized in Cuba in the war of 1898 – “non”-US territory of Guantanamo), is today coming home to roost.

For the echo of these aggressions, as I stressed in “New Institutions for Peace and Democracy” (in Sir Nicholas Kiddrie, Sir Ronald. Mancham and H.E. Carazo Odio, eds., The Future of Peace in the Twenty-First Century, 2002), is the Patriot Act under Bush, and today, the assertion of a doctrine that the President can murder an American citizen – an “enemy” – far from the field of battle with no judicial proceeding (Anwar Awlaki, who at least arguably was an enemy; his 16 year old son, as plain and grim a war crime and an ordinary American crime as it gets), as well as the new National Defense Authorization Act, which includes an infamous provision, passed by even the Democratic Senate along with the more open authoritarians, that the President can arbitrarily detain Americans without trial. See Glenn Greenwald Monday on the murder of a “former” British citizen, Bilal El-berjawi, by an American drone here.

Pierce puts what I have named the idea of anti-democratic feedback fiercely:

“As evident in Yoo and Delahunty’s legal memos asserting unitary executive authority, the legal theory underpinning Guantánamo and the military commissions were an assault upon the structure of our form of constitutional government; lawfare. It was not the inevitable conclusion required by the Sept. 11 attacks, but the exploitation of a tragedy to import a foreign legal ideology, a legal bacillus, into our legal system.”

As Pierce also indicates, Harvey Mansfield, the Harvard follower of Leo Strauss, has advocated these tyrannical doctrines in the Wall Street Journal (with the neo-con proviso – in Mansfield’s case, mere exoteric writing – that of course the Constitution will be restored once the trouble is over just as it has been in the past. See here and here. But why should we think so? When tyranny comes (when the Roman Republic was overthrown, when Hitler was in power), was there “inevitably” such a movement back?.

Lacking political sophistication, Posner and Vermeule wave away worries about Weimar and the Constitution (see especially pp. 38-39 which I will comment on in another post). But to say the least, one needs an honest assessment of what it means to abandon freedom for Americans and decency toward prisoners of war. Pierce, whose father was a prisoner of war during World War II, speaks movingly of these issues.

“I will admit a particular sensitivity to the enforcement of the Geneva Conventions as my father, along with thousands of other American and Philippine prisoners of war, survived the Bataan Death March. This was despite the best efforts of soldiers who set aside the Geneva Convention of 1929 because of their oath of allegiance to the Japanese emperor. Following that war, my father’s former captors and their legal advisers were put on trial and convicted of war crimes, including waterboarding and punishing prisoners without fair trials, as required under the 1929 Geneva Convention. This treaty was replaced by the Four Geneva Conventions of 1949 due to the mistreatment of prisoners like my father. “

For the Wall Street Journal, Mansfield invokes Aristotle’s notion of the rule of the best man (Bush, in Mansfield’s patronizing idiom) from book 3 of the Politics.** Who would have the audacity to claim to rule over Zeus, Aristotle says…But, once again, does Zeus give it up? Here is the use of political “philosophy” to sanction tyranny.

In fact, the transmitting connection of Schmitt to Bush, Cheney, Posner, Vermeule, and Mansfield, inter alia, in America is the scholarly and political activity of Leo Strauss, on whose doctoral committee Schmitt served, and who recommended Strauss for a Fulbright in 1932 by which Strauss emigrated to England and then the United States. Strauss’s 1933 letter to Karl Loewith defends the “principles of the Right – fascist, authoritarian, imperial,” against the “childish and ridiculous imprescriptible rights of man” as “the only dignified basis on which to oppose the mean nonentity (meskine Unwesen).” For a debate on the significance of the letter which I organized at the American Political Science Association in 2007, see here; for Scott Horton’s translation see here.

Since Strauss was a Jew and a “political Zionist” with a fascist orientation (he admired Mussolini and defended Blau-Weiss, a movement led by Walter Moses and modeled on Mussolini – See William Altman, The German Stranger, Lexington Books 2011, ch. 2 , here and here - it is common sense to imagine that he thought the Right could provide an alternative to Hitler (my friend Peter Minowitz makes this mistake in Straussophobia, pp. 154-63; I was involved in Scott Horton’s fine translation of the letter and made the same mistake initially as did the first translator Eugene Shepherd). But Michael Zank was responsible for the right translation: meskine refers often to Shylock and Fagin in Italian and French and Strauss invoked the Nietzschean thought – it is an aspect of anti-semitism that also comes from Nietzsche, however much he opposed gutter anti-semitism – that Jewish slaves transformed morality into something resentful and slavish and that this extends subtly and consciously – as a Jewish trick – through Christianity, democracy, socialism and communism to the deteriorated “last men.” However much one may otherwise admire and learn from Nietzsche, the direct connection of this view to fascism and Nazism – in, for example, Heidegger, see hereand here – and Strauss and those among his American followers who despise “the last men,” is worth taking in.

In a June 23, 1935 letter to Loewith, Strauss emphasizes that Nietzsche had long “ruled and enchanted him (beherrscht under entzaubert) him” and that he had believed every word of Nietzsche’s “that he understood” (Strauss, Gesammelte Schriften, 3:648-50). In 1929, however, he would trade Nietzsche for Heidegger (see Altman, ch. 3), but he retained this central idea. Thus, in Strauss’s 1930 “Religioese Lage der Gegenwart” [“Religious Situation of the Present”], he despises the prophets, with Nietzsche, and stands with the kings.

“The end of this struggle is the complete rejection of tradition neither merely of its answers, nor merely of its questions, but of its possibilities: the pillars on which our tradition rested; prophets and Socrates/Plato have been torn down since Nietzsche. Nietzsche’s partisanship for the kings and against the prophets, for the sophists and against Socrates – Jesus neither merely no God, nor a swindler, nor a genius, but an idiot. Rejected are the theorein and “Good-Evil” – Nietzsche, as the last enlightener.”

“Through Nietzsche, tradition has been shaken at its roots.It has completely lost its self-evident truth. We are left in this world without any authority, without any direction.”

“…and even so, the Bible: we can no longer assume that the Prophets are right; we must earnestly ask whether the kings are not right.” (Gesammelte Schriften 2:389; trans. Michael Zank).”

These thoughts underlie his phrase about the “meskine Unwesen,” the usurious or Jewish reality which needs to be destroyed, in the 1933 letter.

In the first section of the Genealogy of Morals, this connection of the inversion of values, slavery, Jewishness, Christianity, democracy, socialism and communism is startling. Nietzsche repeatedly refers to the impotence and vengefulness of this view, its stench (he repeats the mantra about the smell) in the smallness of what he calls in Thus Spoke Zarathustra/Also Sprach Zarathustra, “the last men” who huddle together and blink . He idealizes the warrior as much as Schmitt (The Concept of the Political/Der Begriff des Politischen) or Strauss – see his Remarks (Anmerkungen) on Schmitt’s essay, a refinement of it to the Right.

One might even say, of the transformed master morality that Nietzsche seems to endorse and the Uebermensch, the solitary dancer who sees the stars and affirms his existence (eternal recurrence) that it has, in this regard, some element of projection in it. In any case, the genocide against Jews and others which the ideas of slave morality and the last men helped spawn exemplifies accusing others of one’s own crimes…Whatever fascists dementedly stigmatized Jews and others for, they in life exceeded…

Here is Nietzsche from the first section of Genealogy of Morals/Zur Genealogie der Moral:

Paragraph vii

“The greatest haters in history – but also the most intelligent haters – have been priests. Beside the brilliance of priestly vengeance all other brilliance fades. Human history would be a dull and stupid thing without the intelligence furnished by its impotents. Let us begin with the most striking example. Whatever else has been done to damage the powerful and great of this earth seems trivial compared with what the Jews have done, that priestly people who succeeded in avenging themselves on their enemies and oppressors by radically inverting all their values, that is, by an act of the most spiritual vengeance.”

“We know who has fallen heir to this Jewish inversion of values…In reference to the grand and unspeakably disastrous initiative that the Jews have launched by this most radical of all declarations of war, I wish to repeat a statement I made in a different context (Beyond Good and Evil), to wit, that it was the Jews who started the slave revolt in morals; a revolt with two millennia of history behind it, which we have lost sight of today simply because it has triumphed so completely.”

Paragraph viii

“You find that difficult to understand? You have no eyes for something that took two millennia to prevail?….There is nothing strange about this: all long developments are difficult to see in the round. From the tree trunk of Jewish vengeance and hatred – the deepest and sublimest hatred in human history, since it gave birth to ideals and a new set of values – grew a branch that was equally unique: a new love [Christianity]…But let no one surmise that this love represented a denial of the thirst for vengeance, that it contravened Jewish hatred. Exactly the opposite…Has not Israel, precisely through the detour of this ‘redeemer,’ this seeming antagonist and destroyer of Israel, reached the final goal of its sublime vindictiveness? Was it not a necessary feature of a truly brilliant politics of vengeance, a far-sighted, subterranean, slowly and carefully planned vengeance [in these sentences, Nietzsche for European fascists, makes the Protocols of the Elders of Zion look like pikers...], that Israel had to deny its true instrument publicly and nail him to the cross like a mortal enemy so that ‘the whole world’ (meaning all the enemies of Israel) might naively swallow the bait…What could equal in debilitating, narcotic power, the symbol of the ‘holy cross,’ the ghastly paradox of a crucified god…One thing is certain that in this sign Israel has by now triumphed over all other nobler values.”

Paragraph ix

“But what is all this talk about nobler values?” Let us face facts: the people have triumphed – or the slaves, the mob, the herd, whatever you wish to call them – and if the Jews brought it about, then no nation ever had a more universal mission on the earth…I don’t deny that this triumph might be looked upon as a kind of blood poisoning, since it has resulted in a mingling of races [Nietzsche is metaphorical here, but ordinary Nazis and other anti-semites read him literally] but there can be no doubt that the intoxication has succeeded. The ‘ redemption’ of the human race (from the lords, that is), is well under way; everything is rapidly becoming Judaized [Verjudung is a key word for Strauss, what the last men are the result of - see Altman, pp. 263-64 ], Christianized or mob-ized – the word makes no difference. The progress of this poison throughout the body of mankind cannot be stayed.”

paragraph x

“The slave revolt in morals begins by rancor turning creative and giving birth to values – the rancor of human beings who deprived of a direct outlet of action compensate by an imaginary vengeance. All truly noble morality grows out of triumphant self-affirmation. Slave ethics on the other hand begins by saying no to an outside, an “other,” a non-self, and that no is its creative act. This reversal of direction of the evaluating look, this invariable outward instead of inward, is a fundamental feature of rancor.”

“The ‘wellborn’ really felt that they were also the ‘happy.’ They did not have to construct their happiness factitiously by looking at their enemies as all rancorous men are wont to do…All this stands in utter contrast to what is called happiness among the impotent and oppressed who are full of bottled up aggressions. Their happiness is purely passive and takes the form of drugged tranquility, stretching and yawning, peace, ‘sabbath’ emotional slackness.. …[the rancorous person's] soul squints, his mind loves hide-outs, secret paths, and back doors; everything that is hidden seems to him his own world, his security, his comfort; he is an expert in silence, in long memory, in waiting…[again, note the consonance with ordinary anti-semitism, which this revs up to a very high pitch]…A race of such men will, in the end, inevitably be cleverer than a race of aristocrats.”

Paragraph xi

“The exact opposite is true of the noble-minded who spontaneously creates the notion good and later derives from it the conception of the bad. How ill-matched these concepts look, placed side by side, the bad of noble origin and the evil that has risen out of the cauldron of unquenchable hatred!…Deep within all these noble races there lurks the beast of prey, bent on spoil and conquest. This hidden urge has to be satisfied from time to time, the beast let loose in the wilderness [how many instigators/participants in Kristallnacht, had once upon a time, read this passage?]. This goes as well for the Roman [Strauss’s favorites – see the 1933 letter to Loewith], Arabian, German, Japanese nobility as for the Homeric heroes and the Scandinavian vikings.”

“These carriers of the leveling and retributive instincts, these descendants of every European and extra-European slavedom, and especially of the pre-Aryan [Nietzsche is not here courting misunderstand; it is his understanding] populations, represent human retrogression most flagrantly. such ‘instruments of culture’ are a disgrace to man and might make one suspicious of culture altogether. One might be justified in fearing the wild beast lurking within all noble races and in being on one’s guard against it, but who would not a thousand times prefer fear when it is accompanied with admiration to security accompanied by the loathsome sight of perversion, dwarfishness, degeneracy [recall that Strauss agreed with "every word of Nietzsche...that I understood" - these are not hard...]? And is not the latter our predicament today? What accounts for our repugnance to man – for there is no question that he makes us suffer? Certainly not our fears of him, rather the fact that there is no longer anything to be feared from him; that the vermin ‘man’ occupies the entire stage [again, a proto-Nazi phrase...]; that tame, hopelessly mediocre, and savorless, he considers himself the apex of historical evolution; and not entirely without justice, since he is still somewhat removed from the mass of sickly and effete creatures whom Europe is beginning to stink of today.”

Paragraph xii:

“Here I want to give vent to a sigh and a last hope. Exactly what is it that I, especially, find intolerable, that I am unable to cope with; that asphyxiates me? a bad smell. The smell of failure, of a soul that has gone stale. “ He elaborates this revulsion in paragraphs xii, xiii and especially xiv.

Heidegger, Strauss and other European fascists did not misunderstand this theme of Nietzsche; quite the contrary, in this respect, Nietzsche founds European fascism and licenses (not, in extenuation, that he could foresee this) its massacres of innocents. ****

Nietzsche was also a brilliant psychologist and an often magnificent writer; nonetheless, his influential idea of master “morality” is sordid, and if enacted, monstrous. The idea that a great soul, a master, relies on millions of slaves and sheds their lives to flourish, like the parasitic vine sipo matador in the sun high above the Malaysian forest (Jenseits Gut und Bose – Beyond Good and Evil, paragraph 258) denies the value of each human life. The sacrifice of millions for the advancement of the few is mass murder, not a moral point of view (hilariously, Strauss repeatedly refers to “the young nihilists” standpoint – his own – in his 1941 lecture, never given at New School, as “moral” and “decent”…(see Altman, ch. 6).

But defense of at least the life of each human is the core of a decent response to Aristotle’s core question: what is a good life for humans? Life is not yet a good life, and moderns have many apt differences with Aristotle (see myDemocratic Individuality, ch 1), but the idea that there is no integrity to ethics, that mass murder and exploitation are part of a “moral” point of view, that ethics is just subjective or “phenomenological” and thus, whatever one happens to believe (“Himmler was a decent man…”), is incoherent. Following Nietzsche, this claim confuses an interesting sociological and etymological point – that there was a different kind of ethic in aristocratic times in the ancient world and that this has been replaced a new one now assumed to be general – with a reasonable, ethical examination of which of these two “ethics,” if either, is in fact decent for human beings. Taken at face value, it is evil (mass murder of the last men whose lives are worthless – wertlos – in the phrase of Nazi doctors) or in Nietzsche’s case, an instigation to it… ******

Enacting this confusion, existentialists starting with Heidegger tend to take Nietzsche seriously on this point about ethics, even Sartre and his American followers like Robert Solomon (in a series on existentialism on the web, Solomon offers a lecture on Genealogy of Morals which entirely empathizes with Nietzsche’s scorn for the idea that the “great” exploit the “weak,” and suggests that what we mean by morality is but the idea of the weak, the impotent, those who merely react to the master’s initiative, and, thus, forgetting himself completely, that there is no serious moral objection to slavery…

But is there no moral objection to holding a man or woman in servitude for a lifetime, tossing her life away on a whim? No argument that a system that rules out slavery is superior to that of slave-owners? See my Democratic Individuality, ch. 1.

For Heidegger and other fascists, including Strauss and many of his political followers (Werner Dannhauser, for example), refer routinely to the “last men” who are our fellow citizens and us, and ostensibly need, for the sake of “seriousness” in life – war and the preparation for war – to be dispensed with.*******

As Occupy shows, they mistake the actual and potential fortitude and fierceness of the nonviolent who organize a movement to stop them.

The idea that it would be good to get rid of the last men (see the last sentences of Strauss’s “Restatement” on On Tyranny******** ) is simply false and if taken seriously, monstrous. Even Altman (who is a Platonist), mistakenly takes Nietzsche to have a serious argument about ethics whereas instead, he has an interesting sociology or phenomenology of morals coupled with a psychology which sometimes identifies moralisms (people who suffer oppression are also sometimes resentful). But his claim, as it were, that apartheid is not injustice, that blacks merely “resented” it, or that Desmond Tutu and Nelson Mandela were “steeped in resentment” disintegrates with the example.

Tutu and Mandela are rather models for political healing, once the injustice was ended, and provide a far deeper understanding of the grain of truth in Nietzsche’s thought about eternal recurrence than Nietzche himself or any of his followers…See Tutu, No future without forgiveness.

The Guantánamo facility at 10: an assault on our constitutional government

Todd E. Pierce

The National Law Journal

January 10, 2012

The 10th anniversary of the opening of Guantánamo Bay, Cuba, as a detention facility and the diversion of terrorism prosecutions into a new military commission system is now upon us. Consequently, I thought I would take this opportunity to briefly explain why I, an Army Reserve Judge Advocate General officer with more than 30 years of active and reserve military service, would volunteer as defense counsel for prisoners being held there.

I might add that I consider myself to be a conservative. In the United States of America, that means to conserve the legal order that this nation was founded upon, the Constitution. In fact, as a member of the military, I took an oath to defend the Constitution against all enemies, foreign and domestic. I did not take an oath of allegiance to the “leader,” or to the “state,” as required in some other nations. Thus, it came as something of a shock to me when Alberto Gonzalez, John Yoo and Robert Delahunty began issuing legal opinions that the Geneva Conventions, a treaty incorporated into our law, were quaint and did not apply, or that the president could, at his or her sole discretion, suspend them.

I will admit a particular sensitivity to the enforcement of the Geneva Conventions as my father, along with thousands of other American and Philippine prisoners of war, survived the Bataan Death March. This was despite the best efforts of soldiers who set aside the Geneva Convention of 1929 because of their oath of allegiance to the Japanese emperor. Following that war, my father’s former captors and their legal advisers were put on trial and convicted of war crimes, including waterboarding and punishing prisoners without fair trials, as required under the 1929 Geneva Convention. This treaty was replaced by the Four Geneva Conventions of 1949 due to the mistreatment of prisoners like my father.

Back in 2001 and 2002, when these legal opinions were being issued, astute critics immediately recognized that these opinions were regurgitated leftovers of President Richard Nixon’s belief that if the president did something, it could not be illegal — the dictator’s prerogative. But this crude anti-American notion had been refined into the “unitary executive theory.” Vice President Richard Cheney seemed to take credit for it. But more astute commentators noted that these ideas were actually legal theories expounded by Carl Schmitt, the Nazi “Crown Jurist” of the 1930s. But that seemed a little extreme, or at least bad manners, to point out.

Once the unitary-executive theory began to gain credibility, other advocates of this form of government came out of the shadows, perhaps from “the dark side.” One was Harvard Professor Harvey Mansfield in The Wall Street Journal in 2007, who opined about the benefits of “one man rule.” But it remained to two law professors, dedicated to the study of arcane legal texts, Adrian Vermeule of Harvard Law School and Eric Posner of the University of Chicago Law School, to openly resurrect Schmitt’s authoritarian legal ideology. Or, as they put it, “political theorists interested in emergency powers, and some academic lawyers as well, are much taken with Schmitt; nearly every discussion of emergencies pores over the canonical texts yet again.”

In fairness to Vermeule and Posner, leaving them to pore over the Nazi’s canonical texts, it should be remembered that Schmitt was not a founder of the Nazi movement. Schmitt only joined the Nazi party when it triumphed over its rival elements in the German military establishment. Schmitt had been legal adviser to those rivals, particularly General Kurt von Schleicher. But what should equally be remembered is that this military faction was seeking to impose its own brand of militaristic dictatorship on Germany, along with an expansionistic foreign policy. These German generals aspired to the form of governance most recently practiced by the dictator Hosni Mubarak and the Egyptian Supreme Council of the Armed Forces.

Schmitt’s writings consistently were an apologia for dictatorship and centralized power, whether under military dictatorship of the German High Command or under the Nazis, having further developed his ideas from his book, Die Diktatur. These ideas culminated in 1934, when he justified the murders following the “Night of the Long Knives” as the “highest form of administrative law.” Most odiously, he legitimated the authority of Hitler afterward with a paean translated in English as “The Leader Defends the Law.”

In Terror in the Balance, Posner and Vermeule argued that the threat of terrorism constitutes a state of emergency necessitating the suspension of our Constitution. Consequently, “Constitutional rights should be relaxed so that the executive can move forcefully against the threat. If dissent weakens resolve, then dissent should be curtailed. If domestic security is at risk, then intrusive searches should be tolerated.” Posner and Vermeule followed this in 2010 withThe Executive Unbound: After the Madisonian Republic. Cribbed from Schmitt’s Legality and Legitimacy, it seeks to legitimize the administrative state of the sort Schmitt worked to create. Any concern with this centralization of power in our system is dismissed as “tyrannophobia.” Evidently, a mental disorder that our founders were afflicted with. As in Schmitt’s “dual state,” they seek to move us toward a constitutional breakdown through the creation of an administrative state under the exclusive control of the executive, “the Extraordinary Lawgiver” in Schmitt’s terminology. Or as Posner and Vermeule ask and answer: “What comes after the Madisonian regime of liberal legalism and the separation of powers? Our answer is a new political order in which government is centered on the executive.”

Why does all of this matter? In part, because constitutions and constitutional ideas matter. As evident in Yoo and Delahunty’s legal memos asserting unitary executive authority, the legal theory underpinning Guantánamo and the military commissions were an assault upon the structure of our form of constitutional government; lawfare. It was not the inevitable conclusion required by the Sept. 11 attacks, but the exploitation of a tragedy to import a foreign legal ideology, a legal bacillus, into our legal system.

But it matters also because on this 10th anniversary, Guantánamo and the military commissions are metastasizing into our whole legal system. As the French war against the anti-colonialist insurgents of Algeria highlighted, the growing disrespect for “legal niceties” would come to be applied in France itself against political adversaries. Could that happen here? Posner and Vermeule suggest that dissent to policy may need to be controlled, that is, free speech curtailed. Putting aside the potential for misuse against political enemies, is that even desirable for national security? Our allowance of dissent led to our withdrawal from the Vietnam War before the collapse of our economy which, with hindsight, few question any more. Contrast that with the Soviet Union’s defeat and total collapse resulting from its war in Afghanistan, purely at the insistence of the Communist leadership.

We have used the vague and overbroad charge of “material support for terrorism” as cause to investigate anti-war groups in Chicago and Minneapolis, predictably chilling speech and dissent. Critics have suggested that recent legislation passed would now require the military to detain such dissidents. Or what about gun store owners, gun manufacturers and the National Rifle Association, all of whom could be accused of having a hand directly or through propaganda in providing firearms downstream to drug cartels in Mexico, alleged to have ties with Mideast terrorist groups? Military detention for them?

We must ask ourselves, because we are passing this nation on to our children and their children: Were the authors of the American Constitution wrong or suffering from a mental disorder (tyrannophobia as described) in believing that blind faith was not sufficient as a bulwark against incompetence, if not tyranny? My father and my uncles, along with the rest of the Greatest Generation, did not think so when they fought against the political ideas of Carl Schmitt in World War II. I think Schmitt’s ideas are still worth fighting against today.

Todd E. Pierce is a major in the U.S. Army and has been assigned to the Office of the Chief Defense Counsel since 2008. The views expressed are solely those of the author and do not reflect the official policy or position of the Department of Defense or the U.S. government.

  • * I have previously noted the role of Sam Madison, another Pentagon defense attorneys fighting for law. Many of these lawyers really have put themselves on the front line of fighting of Anglo-American justice against the emerging police state, exemplified in the legal black hole of Guantanamo…

**Leo Strauss has a far sharper depiction in his lectures on Aristotle which I tracked, with the help of Mike Goldfield, in “Do Philosophers Counsel Tyrants?,” Constellations, March, 2009 here. Finding this hidden message is the source of Heidegger’s and Strauss’s reactionary misinterpretation of Plato: that the regimes that decline from philosopher king to tyrant must be made “perfect and a circle” (kuklos), in Aristotle’s words, by a tyrant of a certain kind becoming a philosopher-king.

***See Strauss, “Introduction to [Heideggeriian] Existentialism” and Altman’s instructive ch. 4.

*****The psychology is, sadly, not a feature which influences, for instance, Foucault or Strauss or Heidegger, but one which shook Freud who was superstitious about reading Nietzsche because he was afraid he would find all of his insights already named…

******That Fred was personally an admirable character himself as well as a magnificent writer is true. That these facts rule out the hideous political impact of his views in Europe is false

*******Altman pursues the theme of how Strauss and Heidegger hypocritically shirked World War I while (guiltily?) invoking “manliness” (cf. Harvey Mansfield’s book of that title and his interview with Stephen Colbert where he indicts the unmanliness of Kerry and praises the manliness of Bush – who flew planes for the National Guard and then ducked out even of that, in a war he believed inhere) for the rest of us.

Of course they believed in the wars they avoided, whereas opposition to unjust wars, notably civil disobedience, is courageous and willing to pay a price…. In avoidance, they emulated Cheney who had “other things to do” and many neocons who supported recent American aggressions.

********In the peroration of his “Restatement” in On Tyranny, speaking elliptically in the voice of “another,” a courageous nihilist, and joking about Marxism, Strauss was happy with the idea as opposed to the last men and “universal tyranny of technology” that rebellion and nuclear war might produce a “new spring” of stone age humanity:

“There will always be men [andres] who will revolt against a state which is destructive of humanity or in which there is no longer the possibility of noble action or of great deeds. They may be forced into a mere negation of the universal and homogeneous state, into a negation not enlightened by any positive goal, into a nihilistic negation. While perhaps doomed to failure, that nihilistic revolution may be the only action on behalf of man’s humanity, the only great and noble deed that is possible once the universal and homogeneous state has become inevitable. But no one can know whether it will succeed or fail. We still know too little about the workings of the universal and homogeneous state to say anything about where and when its corruption will start. What we do know is only that it will perish sooner or later (see Friedrich Engels, Ludwig Feuerbach). Someone may object that the successful revolt against the universal and homogeneous state could have no other effect than that the identical historical process that has led from the primitive horde to the final state will be repeated. But would such a repetition of the process – a new lease on life for man’s humanity – not be preferable to the indefinite continuation of the inhuman end? Do we not enjoy every spring although we know the cycle of the seasons, although we know that winter will come again? Warriors and workers of all countries, unite, while there is still time to prevent the coming of ‘the realm of freedom.’ Defend with might and main, if it needs to be defended, the ‘realm of necessity ”- On Tyranny, 209.

As the first non-Straussian admitted to Regenstein, I discovered Strauss’s memos to future Senator and would-be Republican presidential candidate Charles Percy; to read them in the context of this conclusion is frightening.For instance, on October 24, 1961, Strauss recommends a merciless conquest of Cuba which he thinks will cow the Soviet Union into submission. His words seek a Nietzschean or Heideggerian depth about eschewing the fight against poverty which opposes modern liberalism and radicalism:

“There cannot be a modus vivendi until Russia abandons Communism, in the sense that it ceases to act on the premises of Communism; for it is utterly uninteresting to us and the rest of the non-Communist world whether the Russians go on paying lip-service to Communism, provided they have become convinced that the Free World is here to stay, and they act on this conviction. To bring about this change of mind, the West must be as tough and, if need be, as brutal as the Communists are to the West. The West must demonstrate to the Communists, by words and deeds which allow no possibility of error, that they must postpone forever the establishment of the Communist world society.

But the modus vivendi demands also a radical change on our part – a change of outlook or expectations which will necessarily issue in a change of policies. I can only speak of the change of outlook. Hitherto the West has believed in the possibility of a perfectly just society (federationist or unitary) comprising all mankind – a society rendered possible in the first place by universal affluence and ultimately by the increase in human power to be brought about by technology or science. Everyone has now become aware of the fact that the great enterprise which was meant to bring about the abolition of misery, has in fact brought about what we may call the absolute misery: namely the possibility that, so to speak, a single tyrant can destroy the human race. We must rethink radically the expectation which has pervaded our thoughts and actions in all domains, that the human condition is thinkable without the accompaniment of misery. By this I do not deny that it is the duty of humanity to relieve misery wherever one can [an exoteric remark, for Percy].”

After the Cuban missile crisis and the narrowest miss at nuclear war (Cuba had over 100 armed nuclear missiles of which the Kennedy administration was unaware), Strauss wrote on February 12, 1963:

“Dear Mr. Percy,

I believe that the following points have not been made, or at least have not been made with sufficient audibility: 1) To speak in the only language which Khrushchev understands, Cuba is our Hungary; just as we did not make the slightest move when he solved the problem in his back yard, Hungary, he cannot, and will not make the slightest move if and when we take care of the problem in our back yard, Cuba.”

Compare Minowitz, Straussophobia, pp. 80-82

This entry was posted in Barack Obama, George Bush, The New Peace Movement and tagged . Bookmark the permalink.

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