Guantanamo at 10: A Schmittian Notion of Executive Power, Part 2

By Alan Gilbert, from his blog Democratic Individuality

“Shouldn’t lawyers and judges be especially sensitive to the juristic monstrosity of Nazi legislation? After all, instead of the ‘rule of law, not of men,’ an ideal that dates back to Plato and Aristotle, the fundamental principle of Nazi rule was the so-called ‘Leadership Principle,’ summarized in the slogan ‘The Führer’s words have the force of law.’[Führerworte haben Gesetzes Kraft]. Don’t jurists above all others have a professional duty to maintain the rule of law? The capitulation of the German profession, and especially the German judges, led to a great deal of soul-searching by jurists at a loss for an explanation. Were the German judges cowards, or opportunists, or so fanatical that they were willing to sacrifice their professional ideals for the Nazi cause? That was the question.” – from Westlaw: Brooklyn Law Review, Winter 1995 Symposium *1121 NAZIS IN THE COURTROOM: LESSONS FROM THE CONDUCT OF LAWYERS AND JUDGES UNDER THE LAWS OF THE THIRD REICH AND VICHY, FRANCE (h/t Todd Pierce)

Correction to part 1 here: Schmitt recommended Strauss for a Fulbright fellowship in 1932 which allowed Strauss to emigrate to Paris. He was not, as I said mistakenly, on Strauss’s doctoral committee (h/t Peter Minowitz).

In the 1933 letter to Loewith, Strauss’s phrase meskine Unwesen about the greedy nonentity (referring to putative modern reality, a deterioration of the slave morality of the Jews through Christianity, democracy, socialism and communism into the last men) that must be fought is an indication that Strauss was, though Jewish, pro-Nazi both in the 1930s and quite possibly throughout. In 1934, as William Altman has emphasized in his admirable book, The German Stranger, decoding Strauss’s own hidden or exoteric writing and probite (he never lies explicitly about what he thinks, just says things that will be taken by sleepy readers in the opposite sense from the one he means – for self-explanation, see Leo Strauss, Persecution and the Art of Writing). Jacob Klein, also a Jew who was a reactionary Nietzschean and briefly pro-Nazi, wrote to Strauss on June 19-20, 1934 – more than a year after Hitler came to power – about how he had been mistaken in thinking that the National Revolution was the antidote to the last men:

“It’s necessary for me to correct an error I’ve made repeatedly; it concerns National-Socialism…”

“I previously believed that it constituted part of that general and necessary movement that, having emerged from ‘liberalism,’ had at the same time had a dialectical [aufhebende] tendency to abolish it. In the framework of this movement, anti-Semitism also had its own place and an increasingly well-defined basis. All things considered, however, it constituted only one—though hardly adventitious—sideshow [Nebenerscheinung]. I expressed this thought, in a letter to you earlier this year. But this is simply not true.”

“National Socialism has basically only one principle: its anti-Semitism. Everything else is basically not national-socialist: it is entirely external imitation of Russian and Italian matters, beginning with the head-gear of the Hitler Youth and ending with certain senseless propositions relevant to Germany that have nothing whatsoever to do with what is actually happening.” (Strauss, Gesammelte Schriften, 3: 512-13)

On June 23, 1934, Strauss replied: ““Now to your general remarks, which surprised—not to say repelled—me through their defeatist tone. That one learns from events is good—but it does not follow that one can say what’s correct through them. And that is what you’re doing, it seems to me.” (Strauss, GS 3: 516-17. See also my “Shadings: “they consider me a Nazi here” here)

Strauss had written Remarks (Anmerkungen) on Schmitt’s Concept of the Political (1932) which strengthened its character as a reactionary document. Schmitt emphasized that politics was about having a great enemy. Contra Aristotle and like Heidegger, for both Strauss and Schmitt, having “friends” did not evoke, internally, a common good. And in Schmitt’s 1923 Political Theology as I noted in the first part of this posthere, Schmitt began from the sentence: “he is sovereign who makes the decision in the state of the exception” (in today’s idiom, “commander-in-chief” or “executive power” during a state of emergency).

As a Pentagon-appointed defense lawyer for Guantanamo prisoners (a Judge Advocate General attorney), Todd Pierce has had a striking view of the erosion of the rule of law in America; his words below about it are especially worth taking in. As he rightly emphasizes against Posner and Vermeule, during the Weimar Republic, Schmitt was not yet a Nazi though he may well have been pro-Nazi. Professors who avowed affection for the Nazis were fired, a form of persecution that Strauss emphasizes, on behalf of hidden writing, his own in Remarks and Schmitt’s, in Persecution and the Art of Writing. In the last paragraph of Remarks, Strauss says: “The critique introduced by Schmitt against liberalism can therefore be completed only if one succeeds in gaining a horizon beyond liberalism.” (See Heinrich Meier: Carl Schmitt and Leo Strauss, p. 119). The exoteric or surface meaning, attributed by his followers anachronistically in terms of Strauss’s shift during World War II toward the ancients, is: classical political philosophy. The other meaning, much more obvious in terms of 1932 as well as Strauss’s critique of Schmitt from the Right, is: Nazism.

Toward the end of Weimar, Schmitt allied with the authoritarian general Kurt von Schleicher, a proto-Hosni Mubarak, as Pierce suggests, rather than a Hitler. But Schmitt became the leading Nazi lawyer, the Prussian Reichskanzler, and at a legal conference in 1936 fought for each Jew in the legal professor to be listed in the literature as the Jew so and so, handed out yellow stars in the legal profession, as an ingredient of what became the genocide (cf. Heinrich Meier, The Lesson of Carl Schmitt, ch. 4 , who delphically says that Schmitt’s behavior was “ugly,” but not wrong).

But Schmitt was for reactionary and tyrannical rule all the way through (for military dictatorship through the application of Article 48 of the Weimar constitution). He was a famous lawyer who opposed the law (an odd Catholic who recommended the miracle of Christ as opposed to the “rigid” law of the Jews) – see my “Politics and the God on Schmitt and Strauss”here and here – and a fascist before he became a Nazi.

In his Remarks, Strauss pointed out that Schmitt admired Hobbes for his emphasis on the state of nature as a state of war, but in fact, Hobbes, Strauss says cleverly, in a pre-bourgeois world, had founded the “liberalism” that both Schmitt and Strauss detested. Hobbes wanted to pacify humans (each of us, he begins, seeks to avoid violent death) by supporting a Leviathan. Hobbes did not realize that preserving the physical security of each is a common good (he helped generate this mistake in Schmitt and Strauss). Such “liberalism,” on Strauss’s view, did not see sacrifice of humans in war – and war itself, governed by no common good or ethics, the mere struggle – as the only serious antidote to the corruption and timidity of modern life. A reactionary Catholic, Schmitt did not like Nietzsche, but his description of modern life, made decadent by original sin from which men are saved only in war, coincides with Nietzsche and Strauss on the last men.

Hobbes sought peace; Schmitt and Strauss sought belligerence. In his Wall Street Journal article advocating tyrannical executive power here, Harvey Mansfield echoes the latter pair consciously. In The Executive Unbound: After the Madisonian Republic, Posner and Vermeule cheer on the atmosphere of commander in chief power and celebrate its origins in Carl Schmitt (as I noted in the first essay, Harvey chides them for letting the “esoteric” cat out of the bag….). This atmosphere was made central to the Bush administration and to American political life by political Straussians as well as other neocons like Posner and Vermeuele.

A further contributor to this intellectually and morally corrupt political environment is John Yoo’s “War Powers Belong to the President” written for the American Bar Association below, which Todd Pierce sent on to me. Yoo is a war criminal. He gave corrupt advice about the law to Bush and Cheney – deriding the Geneva conventions to which the US is obligated both as a signer and, domestically, by Article 6, section 2, the Supremacy clause of the Constitution which makes treaties signed by the United States the highest law of the land – in order to sanction the torture that was already ongoing. Yoo needs Obama’s slippage on this matter – and his failure to allow any investigation of the torture (a violation of Article 7, section 1 of the Convention against torture, signed by President Reagan and ratified by Congress – see here) – as a get out of jail free pass, to be. He seeks to make an ostensible “recognition of necessity” the law of the land. It is not (see the comments by Louis Fisher below). Yoo also seeks to make the worst aspects of Machiavelli American law (this distantly reflects the fascination of Straussians for the worst aspects in Machiavelli – seeThoughts of Machiavelli, Mansfield, Machiavelli’s New Modes and Ordersand Machiavelli’s Virtue, not to mention a translation of The Prince and Carnes Lord, an advisor to former Secretary of State Alexander Haig, who wrote The Modern Prince: What Leaders Need to Know Now). Yoo positively chortles:

“In ordering the U.S. Air Force to attack Libyan targets on the ground and impose a no-fly zone in the air, President Barack Obama sent the U.S. military into combat without Congress’ blessing. This was not always President Obama’s view. Anti-war Democrats vigorously challenged President George W. Bush’s conduct of the wars in Afghanistan and Iraq by claiming that he had violated Congress’ right to declare war. As a presidential candidate in 2007, Obama once agreed: “The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.”

“Fast-forward four years. In announcing the intervention in Libya, Mr. Obama told Congress that he was acting ‘pursuant to my constitutional authority to conduct U.S. foreign relations and as commander in chief and chief executive.’ As the Libyan war reached its 60th day at the end of May 2011, President Obama sent a letter to Congress that reported on progress but did not seek any authorization.”

“This time, President Obama has the Constitution about right.”

What Yoo does is to use Obama’s executive highhandedness in Libya – his disregard of the War Powers Act and of Congress – to claim obtusely that there is constitutional authority for this. But his real aim is just to wriggle out legally of being a torturer.*

By licensing Yoo, the American Bar Association makes the practice of torture – a matter of war crimes – merely something to debate. OJ Simpson should have tried that defense at his trial – really it’s just a matter of disagreement whether murder is bad. After all, some “lawyers” say no.

The American Political Science Association also perfumed Yoo – see the protest here – and Berkeley Law School (would they have a known murderer or rapist on the faculty, not at minimum suspended and investigated even one not yet apprehended by the law?). It is the the sanctification of these crimes by powerful institutions which gives Yoo’s – and others – criminality its continuing life…

Peter Minowitz has written to me that Yoo’s claim that the Geneva Convention was quaint was misrepresented by Todd Pierce and Scott Horton. On Peter’s view, Yoo was just saying some provisions were “quaint.” But this is not seeing the forest for the trees. What Yoo says in the memo as a matter for Bush and Cheney to act on, which Peter also sent:

“As you [Bush] have said, the war against terrorism is a new kind of war. It is not the traditional clash between nations adhering to the laws of war that formed the backdrop for GPW [the Geneva Conventions on Prisoners of War]. The nature of the new war places a high premium on other factors, such as the ability to quickly obtain information from captured terrorists[my emphasis] and their sponsors in order to avoid further atrocities against American civilians, and the need to try terrorists for war crimes such as wantonly killing civilians [an idle thought given the torture Yoo was sanctioning which made the rule of law, barring torture, inapplicable – one might even say “quaint”]. In my judgment, this new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners [!!] and renders quaint some of its provisions requiring that captured enemy be afforded such things as commissary privileges, scrip (i.e., advances of monthly pay), athletic uniforms, and scientific instruments.”

The operative notion is this paragraph is “the ability to quickly obtain information from captured terrorists.” Beyond this, what Yoo says is that “the new paradigm renders obsolete Geneva’s strict limitation on questioning of prisoners…” Quaint is just a repetition or embroidery, in this context, of obsolete…

Under Vice President Cheney, the US government was already torturing prisoners (and sometimes murdering them in American custody as well – 100 in the course of interrogation by Pentagon statistics – see Taxi to the Dark Side). Yoo was asked by Cheney to provide a legal cover for this and did. The spirit as well as the letter of Geneva is to prevent torture. What Yoo did was to attack the Geneva Conventions as “obsolete” to sanction already on-going torture. His use of the word “quaint” is but a rhetorical attempt to exempt himself and the Bush administration from future investigations about torture. The disparaging tone is, in intent, in service of war crimes…

To attack “Straussophobia” and perhaps “Yoo-ophobia,” Peter – who does oppose torture – reads this passage in a tone-deaf way. But one has to work at it.

I turn now to the links between Strauss’s instructions on the need for authoritarianism to his politically active students who conveyed these ideas into the Republican Party as well as to some Democrats (Scoop Jackson, Daniel Moynihan) and to the neo-cons so that Vermeule, Posner, Yoo, Mansfield et al may burble them.

Herbert Storing was a fine student of Strauss (his 7 volume edition of theAnti-Federalist Papers is a gem). He admired Frederick Douglass and even Malcolm X, though he was a skeptic of King and the civil rights movement (allegedly not “manly” enough). Storing defended executive power and taught this to Gary Schmitt, a Straussian political activist in the intelligence establishment in Washington and one of three principals of the Project for a New American Century (the other two are Bill Kristol and Bob Kagan).

Michael Malbin, a student mainly of Walter Berns – also an advocate to this day of commander in chief power in Washington – see Berns’s 2009 “Interrogations and Presidential Power” in the Wall Street Journal here – and secondarily of Strauss, wrote the Iran-Contra Minority Report for then Congressional leader Dick Cheney, quoting Straussian arguments about executive power from Gary Schmitt (Schmitt was a protégé of Storing’s).** Interestingly, Cheney elides a Straussian (mis)interpretation of the law, featured in The Iran-Contra Minority Report, with the law.

Strauss’s closest student and political advisee/agent, Robert Goldwin, become a confidante of Rumsfeld and Cheney (Goldwin’s words), in the Gerald Ford papers in Ann Arbor. Bob brought an overemphasis on the notion of royal prerogative from John Locke directly to Cheney who has sometimes referred to prerogative or executive power alternately to describe the doctrine that he projected into Washington (h/t Charles Butterworth who alerted me to Goldwin; Goldwin was unknown to Schmitt and a a later generation of less powerful neocons). Goldwin died in 2009 and at his memorial on January 15, 2010, Rumsfeld praised his enormous role – a “one man think-tank” – in these circles, his centrality in strengthening “conservative” – read reactionary or authoritarian ideology – down to advising on the imperial occupation of Iraq in 2003…

“Few individuals had as much influence on the thinking of conservative American policy makers and yet were as little known to the public as Bob Goldwin. Bob was a man of sweeping, ambitious ideas, but personal modesty and quiet competence. He had the rare talent of asking the right questions at the right time, and gently nudging discussions toward the `eureka’ moment. Every conversation with Bob left you with a perspective you hadn’t considered before.”

“Bob Goldwin was the Ford administration’s one-man think tank, its intellectual compass, and bridge to a new conservatism–a conservatism that was unashamed to be conservative.”

“Bob and I had known each other since his days at the University of Chicago. In 1972, I lured away my friend from his position as dean of St. John’s College in Annapolis, Maryland to join me at NATO, where I served as U.S. ambassador. Two years later, I was called back to Washington to help the newly sworn-in President Gerald Ford, and one of the first people I recruited to the White House staff was Bob. Bob led seminars for President Ford in the White House solarium, bringing in some of the finest minds in America, not least his own, to discuss the toughest issues of the time.”

“Bob Goldwin was the Ford administration’s one-man think tank, its intellectual compass, and bridge to a new conservatism–a conservatism that was unashamed to be conservative. He helped provide the intellectual underpinning that convinced many Republicans that they didn’t have to apologize when they stood for lower taxes or suggested that our strategy against the Soviet Union ought not be placation.”

“The ideas he corralled and the causes he championed–from opposing the creation of a new international bureaucracy with the Law of the Seas Treaty in 1982 to offering wise counsel on a new Iraqi constitution as recently as 2003–were without match. Bob was a valuable counselor and a dear friend.”

“I considered myself one of his many students, and I know I will miss him. So too will America, but perhaps without fully realizing what is being missed.” See here.

As I discovered in doing research in the Strauss papers in Regenstein Library (the first non-Straussian admitted there by Strauss’s second literary executor, Nathan Tarcov in 2008), I found a number of imperious althouth courteous letters from Strauss to Schmitt. For example, in the process of encouraging Goldwin to enlist James Kilpatrick, a leading segregationist from Virginia, to be one of four speakers at a Public Affairs conference, Strauss pointedly instructed Goldwin, February 13, 1961:

“I am especially interested in a plan of having a debate on SS [social science] and its political consequences in the last generation.…I shall illustrate what I have in mind by two examples…2) Desegregation and the findings of SS which allegedly demand desegregation. Here I would think we should have a guy from the deep south, say Dean H[W]iggins, a sociologist at Emory. Such a conference could be educative for the non-academicians by making clear to them what they cannot expect from the academicians.”

Goldwin organized public affairs conferences at Chicago and Kenyon, which allowed some debate between clashing points of view (though not, during the original conference, about segregation). The attendees were high public officials, Republican and Democrat.

In Washington, after he came with Rumsfeld in the early 1970s, the debates were often a breath of fresh air. Goldwin thus carried out one of Strauss’s exoteric ideas more seriously than Strauss himself (Strauss himself and most of his followers do not think out alternate views at all, most obviously those of Hegel***, Marx and modern radicalism or John Rawls’ democratic theory; Herbert Storing, and in this respect, Goldwin, are, at least about some important issues, admirable exceptions.

But Goldwin’s persistent advocacy of executive power and as a philosophical counselor, bringing these words to the lips of Dick Cheney, is also remarkable. Here are Lynne Cheney’s memorial remarks, reprinted by the American Enterprise Institute (again a powerful, explicitly reactionary Washington institution spreading these ideas), at which she and Bob and Walter Berns are or were all fellows:

“Bob didn’t advertise what he was doing and didn’t talk about it much in the years after, which was part of his essential modesty, part of what made him so admirable.”

“Dick [Cheney] remembers Bob from the Ford years, when he became a resident scholar at the White House. Bob had worked for Don Rumsfeld at NATO, and after Don became White House Chief of Staff, Bob organized a series of seminars for President Ford and the senior staff. He’d get together a small number of people, always including the president, and bring in a speaker to enlighten the group. Dick particularly remembers one Saturday when Bob put together a gathering up in the solarium on the top floor of the White House. The speaker that day was Daniel Patrick Moynihan, and he talked about his book Beyond the Melting Pot, in which he and Nathan Glazer wrote about the persistence of ethnicity in America and the consequences of it. Beyond the Melting Pot was a controversial book at the time. All these years later, we know it was very prescient.”

“Dick says that he does not recall in all his years in Washington events like the ones Bob organized. Bob didn’t advertise what he was doing and didn’t talk about it much in the years after, which was part of his essential modesty, part of what made him so admirable. We will miss him very much.” See here.

There is a chorus of neocons, loud during the Iraq War and now to advance an attack on Iran, on how Lincoln jailing Confederate sympathatizers and permitting them no trial – violating habeas corpus – and FDR putting Japanese –Americans in concentration camps “justify” Guantanamo and the theme of “executive power.” Posner and Vermeule just give 6 examples, including these, and elaborate the core argument some. Now, Storing invokes the two original examples from Strauss’s colleague at Chicago , the constitutional lawyer C. Herman Pritchett (Strauss’s students had to write master’s theses with two professors and Pritchett was one of those who would work with them – h/t Gary Schmitt). These are American evils (harms to ordinary people, threats to democracy and the Constitution generated in wars abroad and/or class and political conflicts internally). They create a danger of authoritarian executive power, leading to endless war (listen to the neocons, particularly Romney, supported last week by John Bolton – the UN envoy of Bush who wanted to blow 10 floors, as he put it, off the UN building in New York) and relying on other neocon advisors, and Gingrich. They both would launch a US aggression against Iran (and would of course support a Netanyahu attempt to do this and subvert the American elections this fall).

Ron Paul is, in this major respect, as well as on civil liberties an increasingly important alternative both in the Republican Party and even to Obama. (His ideas on domestic economics are a disaster – would lead to a far deeper and longer depression – and reminiscent of unreconstructed Scrooge). But that Paul is treated in the corporate press as not quite a Republican and these positions often not covered is an example of how what is misleadingly called “conservative’ in corporate American politics is authoritarian – all the other “Republicans,” in fact, are Schmittian imperial authoritarians. They are joined by a considerable number of powerful Democrats are as well – critics of tyrannical measures when Bush enacted them but accomplices or silent when Obama extends or consolidates them. The National Defense Authrorization Act which gives Congressional license to the President to detain American citizens indefinitely is the purest example of Schmittianism – Fuehrer power – so far enacted…

This fundamental misnomer in the corporate press – that authoritarianism and the permanent war state (the war complex or militarism) – is somehow “conservative” is a leading feature of putting Americans to sleep about a steadily augmenting tyranny.****

America is, in fact, the lone empire in the world, with some 1,280 military bases abroad according to Nick Turse (its leading “competitor,” the French have 5 bases abroad in their own name in former French colonial Africa). This empire of bases (see also Chalmers Johnson, Sorrows of Empire, ch .6) is never mentioned in the press except at the SuperBowl, where the announcers last year happily welcomed the soldiers on bases in “177 countries” to watch the game…(Perhaps even that uncritical, “welcoming” gesture was too much; this year, the broadcast only flashed twice to soldiers at Camp Leatherneck in Afghanistan.)

The Democratic neo-neo-cons – the “experts” advising Obama – use drones in Pakistan because the government possesses them, because they can. See Greenwald today here. That these weapons kill civilians, nurture justified hatred for the American government, and endanger, in blowback, American citizens is obvious (imagine drones from Saudi-China, as I suggested here, careening down on Colorado and Montana). But without sufficient protest from below – though Occupy is very promising in reviving and strengthening it – the tendency in American oligarchic politics is a rightwing two step: the Democrats often adopt authoritarian and imperial policies in response to even further reactionary fanaticism from the right.

In contrast, in Spain, the Courts dealt with the bombers of the Atocha Station through the rule of law. Despite Obama and Holder’s initial attempts to do so, quavering Republicans and Democrats (and independents like Bloomberg in this respect), though mostly lawyers themselves, opposed the rule of law and demanded keeping “dangerous” prisoners in Guantanamo and trying them through Pentagon-dominated military commissions. See here. Unlike Madrid, the US government has become too weak to defend the rule of law, as if there are no prisons in the United States, no danger of terror in New York even if the government indefinitely detains and tortures prisoners in a black hole at Guatanamo…

It would be through proudly enacting and defending our differences with the terrorists, as a law-abiding and law-enforcing people, that America would minimize the threat of terrorism…

There are features in America which have made for reaction historically, and the notion that the 1/10 of 1% might protect themselves from the 99% by adopting fascism is not far. The Occupy movement, echoing Arab spring, might, as Pierce tells us, be met by arbitrary detention, something symbolized by but fiercer than the treatment of the camps in Oakland and Denver (Democratic Mayors) and New York (Bloomberg) or the tear-gassing of students sitting down in protest by the UC Davis police. Rahm Emanauel seems to be trying to develop this authoritarianism further in Chicago.

The stench of “the principles of the right” and of this network bringing Schmitt to the United States is in the tear gas in Oakland and at Davis just as it is in Cairo (every canister in all these places manufactured by the American company: Consolidated Systems Inc.)

Todd Pierce names himself a conservative for wanting to conserve American law. He movingly invokes his father as a prisoner of war during the Bataan Death-march in World War II to underline the importance of non-fascist treatment of prisoners. But of course one does not want to conserve unjust laws (i.e. slavery). It is thus the core of a conservative position to value the rule of law – particularly habeas corpus, that each person must have a day in court and not be subject to torture – against tyranny. In this respect, Andrew Sullivan and Scott Horton have helped lead the fight against the rise of tyranny in the United States, and I consider myself, as a radical (one who wants to expand the recognition of each human being and to give each of us an equal voice in the democracy (i.e. one not amplified by money or for the 99%, diminished by its absence),to have entirely and happily defended a conservative position on these matters. Peter Minowitz recently reduced my opposition to the war criminality of Condi Rice to “strident leftism” in his, nonetheless, serious article on Altman’s and my work on Strauss in Perspectives in Political Science.***** He concurs here with authoritarians and not conservatives. Calling for investigation of Ms. Rice and other Bush administration officials for the crime of mandating torture is a defense of the rule of law that unites all decent positions against tyranny and is a nonpartisan or moral position.

The alternate position is “fascist, authoritarian, imperial.” It has resulted increasingly in the open adoption of torture (what Obama, who had obviated certain major forms of torture, nonetheless did with Bradley Manning, and the Congress – part of a war complex – has done in keeping open Guantanamo). Once a police state has replaced the Constitution in the name of an emergency, it is very hard to climb back to the rule of law (Obama, a constitutional lawyer, took some major steps in this direction at the beginning of his administration, but has increasingly consolidated and developed further a criminal regime which as the Yale constitutional lawyer Jack Balkin says is now a new bipartisan “legal” regime. War criminals like John Yoo celebrate this deterioration, recognizing that it protects their torture and aggression.

Posner and Vermeule vary a theme by Peter Minowitz (Straussophobia) to speak airily of “Tyrannophobia” in a 2009 article here, which they abbreviate in this way:

“Tyrannophobia – the fear of dictatorship – is a dominant theme in American political discourse. Yet dictatorship has never existed in the United States or even been likely. The hypothesis that tyrannophobia itself has prevented dictatorship from occurring is implausible; better evidence exists for alternative hypotheses. We conclude that tyrannophobia is an irrational political attitude that has interfered with, and continues to interfere with, needed institutional reform.”

But serious lawyers like Todd Pierce fight against this regime because it has, increasingly, elements of a police state or tyranny. It is not the rule of law.

And without a strong movement from below against these powerful institutions, there is no guarantee at all that the rule of law will return.

*Jack Goldsmith, a reactionary lawyer who became head of the Office of Legal Counsel under Bush, withdrew Yoo’s memos because they have no legal standing…See Goldsmith, The Terror Presidency: Law and Judgment inside the Bush Administration and Jane Mayer, The Dark Side.

**I interviewed Gary Schmitt for two hours when he came to my school. He was a serious scholar who published 6 or 7 articles, was hired at Connecticut with Storing, but was let go after Storing died suddenly of a heart attack. He then joined the intelligence “community.”

***Will Altman cites ways in which Strauss thinks of himself as filling out an Hegelian dialectic. And he rightly emphasizes Hegel’s statism – his insistence that war and sea-faring peoples who are good at war cures the stagnancy of civil society, a theme which Nietzsche, Strauss and Schmitt embroider. Hegel, it should be noted, however, did not confront modern wars. In addition, Altman also takes the form of Hegel for the substance, and particularly ignores the remarkable emphasis on the three moments of the free will, the last of which, the self-conscious moment, refuses to accept any arrangement which does not involve the mutual recognition of the freedom of each individual. Hegel goes on in the Philosophy of Right, read carefully, to say that any measures, i.e popular uprisings, taken against slavery or German serfdom, are right. The latter point foreshadowed the Revolution of 1848.

****As James Madison indicted John Adams’s Alien and Sedition Acts:

“Exhortations to disregard domestic usurpation until foreign danger shall have passed, is an artifice which may be forever used, because the possessors of power, who are the advocates of its extension, can ever create national embarassments to be successively employed to soothe the people to sleep, whilst that power is swelling silently, secretly, and fatally. Of the same
are insinuations of a foreign influence, which seize upon a laudable enthusiasm against dangers from abroad and distort it by an unnatural application so as to blind your eyes to danger at home”

See the epigraph of my Must Global Politics Constrain Democracy?

*****Peter points to some irrational or at the least unscholarly opposition to Strauss as “Straussophobia.” But this is also a floating and not very precise criterion often used to dismiss or ignore argument (the first chapter of his book, uniting opposite criticisms or charges, is called “All hate Leo Strauss”). Interestingly Posner and Vermeule, as Pierce shatteringly points out, refer to objections to throwing out the rule of law – as in the case of the Japanese treatment of his father as a prisoner of war on Bataan – as “tyrannophobia.” But the US government was not wrong in prosecuting the Tokyo War Criminals. As then Nuremberg prosecutor and later Supreme Court Justice, Robert L. Jackson said, the US government would also apply these standards to itself; in later cases, he expected, it would honor the rule of law, for instance, by having hearings over torture and Guantanamo and prosecuting those responsible here. The government is, of course, legally obligated to do so under the Convention against Torture and Article 6 section 2, the Supremacy Clause, of the Constitution.

Accompanied articles to this post can be read at his blog. 

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

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