Balkinization  

Monday, November 07, 2005

The Return of Carl Schmitt

Scott Horton

"Woe unto him who has no enemy, for at the Last Judgment I shall be his enemy."
- Carl Schmitt, Ex Captivitate Salus (1950)

A recent study points to 108 deaths in detention in the War on Terror, with a substantial part clearly linked to the Bush Administration’s controversial new coercive interrogation practices. Some of the most egregious cases involve the CIA. In this week’s New Yorker, Jane Mayer takes a close look at one case – that of Manadel al-Jamadi. Approximately two years ago, Jamadi died at the infamous Abu Ghraib prison near Baghdad. His death was quickly ruled a homicide, a CIA investigation found clear indicia of criminal wrongdoing, and with that the matter was placed in the hands of Paul McNulty – the U.S. Attorney for the Eastern District of Virginia and now the Bush Administration’s new nominee to serve as Deputy Attorney General. Since that time, from all appearances nothing has been done – the file has languished “in a Justice Department drawer,” in the words of one of Mayer’s informants.

Mayer, whose earlier writings have greatly contributed to the public understanding of the detainee abuse scandal, astutely recognizes the wide-ranging significance of the case. Justice in a homicide case is important enough, but this case raises another and potentially far more troublesome question: Has the Department of Justice been corrupted by its “torture memoranda”? Would a prosecution expose indelible links between the crime and the highest echelons of the Department of Justice? The question is not far-fetched. Indeed, its potential to rock the Bush Administration dwarfs that of the Plamegate scandal. As Marty Lederman established in a lengthy series of posts, the “torture memoranda” served a concrete double function: they overcame Agency objections that certain interrogation techniques violated the law (by furnishing an Attorney General opinion that they were lawful), and they offered effective impunity to CIA agents who uses these techniques. I caution that this is the function they were intended to serve. Whether memoranda of the Office of Legal Counsel can actually shield those who rely on them from prosecution is doubtful.

Let us assume that the techniques employed on Jamadi – including the likely fatal “Palestinian hanging” approach – were within the scope of the torture memoranda. Were charges to be brought against the agent who had custody of Jamadi and used the fatal technique, he would certainly plead the torture memoranda as an affirmative defense. Confronted with such claims, a truly independent prosecutor would have to consider the possibility that the authors of these memoranda counseled the use of lethal and unlawful techniques, and therefore face criminal culpability themselves. That, after all, is the teaching of United States v. Altstötter, the Nuremberg case brought against German Justice Department lawyers whose memoranda crafted the basis for implementation of the infamous “Night and Fog Decree.” Who can imagine Paul McNulty, now nominated to serve as Alberto Gonzales’ deputy, undertaking such an investigation of his boss? Hence, McNulty’s dilemma is understandable, but his failure to act should not be lightly dismissed.

Mayer’s article raises fair and compelling questions about McNulty’s handling of the Jamadi homicide case – and about the role of the Department of Justice in the investigation of detainee homicides generally.

But Mayer’s article is significant for another reason. It sheds new light on one of two of the “torture memoranda” which is not yet in the public domain, but has long been viewed as critical to understanding the inhumane practices that became commonplace in Iraq beginning in the fall of 2003.



A March [14], 2003, classified memo was “breathtaking,” the same source said. The document dismissed virtually all national and international laws regulating the treatment of prisoners, including war-crimes and assault statutes, and it was radical in its view that in wartime the President can fight enemies by whatever means he sees fit. According to the memo, Congress has no constitutional right to interfere with the President in his role as Commander-in-Chief, including making laws that limit the ways in which prisoners may be interrogated. Another classified Justice Department memo, issued in August, 2002, is said to authorize numerous “enhanced” interrogation techniques for the C.I.A. These two memos sanction such extreme measures that, even if the agency wanted to discipline or prosecute agents who stray beyond its own comfort level, the legal tools to do so may no longer exist. Like the torture memo, these documents are believed to have been signed by Jay Bybee, the former head of the Office of Legal Counsel, but written by a Justice Department lawyer, John Yoo, who is now a professor of law at Berkeley.


As has been noted in this space before, the March 14, 2003 Yoo memorandum has assumed a “Rosetta Stone” quality. It was transmitted to the Department of Defense as advice at a critical juncture – as the Iraq War moved off the drawing boards and into reality, and questions were repeatedly raised about how the Geneva Conventions were to be applied. But that's not all. Mayer's article now suggests the existence of other advice which explicitly addressed the situation in Iraq:

By the summer of 2003, the insurgency against the U.S. occupation of Iraq had grown into a confounding and lethal insurrection, and the Pentagon and the White House were pressing C.I.A. agents and members of the Special Forces to get the kind of intelligence needed to crush it. On orders from Secretary of Defense Donald Rumsfeld, General Geoffrey Miller, who had overseen coercive interrogations of terrorist suspects at Guantánamo, imposed similar methods at Abu Ghraib. In October of that year, however—a month before Jamadi’s death—the Justice Department’s Office of Legal Counsel issued an opinion stating that Iraqi insurgents were covered by the Geneva Conventions, which require the humane treatment of prisoners and forbid coercive interrogations. The ruling reversed an earlier interpretation, which had concluded, erroneously, that Iraqi insurgents were not protected by international law.


Documents which have circulated in connection with the Fay/Jones and Taguba Reports made clear that following the issuance of high-level legal advice outside normal Department of Defense channels, command authorities in Iraq no longer considered the Geneva Conventions to restrain them in their handling of detainees. Internal email traffic among military intelligence units is consistent: Once you label the insurgent detainees as “terrorists,” “they have no rights, Geneva or otherwise.” It seems highly improbable that officers carefully trained in the Geneva rules would suddenly discard them on their own initiative. To the contrary, it is reasonably clear that instructions to that effect were transmitted from a very high source. The Yoo memoranda are critical to understanding what happened, and the March 14, 2003 combined with the initial OLC advice concerning treatment of insurgents in Iraq are likely the most significant pieces of the puzzle not yet in place.

But where exactly did Yoo come up with the analysis that led to the purported conclusions that the Executive was not restrained by the Geneva Conventions and similar international instruments in its conduct of the war in Iraq? Yoo’s public arguments and statements suggest the strong influence of one thinker: Carl Schmitt.

The Friend/Foe Paradigm
Perhaps the most significant German international law scholar of the era between the wars, Schmitt was obsessed with what he viewed as the inherent weakness of liberal democracy. He considered liberalism, particularly as manifested in the Weimar Constitution, to be inadequate to the task of protecting state and society menaced by the great evil of Communism. This led him to ridicule international humanitarian law in a tone and with words almost identical to those recently employed by Yoo and several of his colleagues.

Beyond this, Yoo’s prescription for solving the “dilemma” is also taken straight from the Schmittian playbook. According to Schmitt, the norms of international law respecting armed conflict reflect the romantic illusions of an age of chivalry. They are “unrealistic” as applied to modern ideological warfare against an enemy not constrained by notions of a nation-state, adopting terrorist methods and fighting with irregular formations that hardly equate to traditional armies. (Schmitt is, of course, concerned with the Soviet Union here; he appears prepared to accept that the Geneva and Hague rules would apply on the Western Front in dealing with countries such as Britain and the United States). For Schmitt, the key to successful prosecution of warfare against such a foe is demonization. The enemy must be seen as absolute. He must be stripped of all legal rights, of whatever nature. The Executive must be free to use whatever tools he can find to fight and vanquish this foe. And conversely, the power to prosecute the war must be vested without reservation in the Executive – in the words of Reich Ministerial Director Franz Schlegelberger (eerily echoed in a brief submission by Bush Administration Solicitor General Paul D. Clement), “in time of war, the Executive is constituted the sole leader, sole legislator, sole judge.” (I take the liberty of substituting Yoo’s word, Executive; for Schmitt or Schlegelberger, the word would, of course, have been Führer). In Schmitt’s classic formulation: “a total war calls for a total enemy.” This is not to say that in Schmitt’s view the enemy was somehow “morally evil or aesthetically unpleasing;” it sufficed that he was “the other, the outsider, something different and alien.” These thoughts are developed throughout Schmitt’s work, but particularly in Der Begriff des Politischen (1927), Frieden oder Pazifismus (1933) and Totaler Feind, totaler Krieg, totaler Staat (1937).

A Practical Guide to Evasion of the Geneva Conventions
Given this philosophical predisposition, how was a lawyer then to evade the application of the Geneva and Hague Conventions? Here an answer can be drawn not from Schmitt’s academic works, but from a series of determinations by the German General Staff which quite transparently reflected the influence of the then-Prussian State Councilor Carl Schmitt. A careful review of the original materials shows that the following rationales were advanced for decisions not to apply or to restrict the application of the Geneva Conventions of 1929 and the Hague Convention of 1907 during the Second World War:



(1) Particularly on the Eastern Front, the conflict was a nonconventional sort of warfare being waged against a “barbaric” enemy which engaged in “terrorist” practices, and which itself did not observe the law of armed conflict.
(2) Individual combatants who engaged in “terrorist” practices, or who fought in military formations engaged in such practices, were not entitled to protections under international humanitarian law, and the adjudicatory provisions of the Geneva Conventions could therefore be avoided together with the substantive protections.
(3) The Geneva and Hague Conventions were “obsolete” and ill-suited to the sort of ideologically driven warfare in which the Nazis were engaged on the Eastern Front, though they might have limited application with respect to the Western Allies.
(4) Application of the Geneva Conventions was not in the enlightened self-interest of Germany because its enemies would not reciprocate such conduct by treating German prisoners in a humane fashion.
(5) Construction of international law should be driven in the first instance by a clear understanding of the national interest as determined by the executive. To this end niggling, hypertechnical interpretations of the Conventions that disregarded the plain text, international practice and even Germany’s prior practice in order to justify their nonapplication were entirely appropriate.
(6) In any event, the rules of international law were subordinated to the military interests of the German state and to the law as determined and stated by the German Führer.

The similarity between these rationalizations and those offered by John Yoo in his hitherto published Justice Department memoranda and books and articles is staggering. It is of course possible that John Yoo came upon all of this on his own, like a scholar laboring in some parallel universe unaware of the work of others. Possible. But not probable.

It is more likely that Yoo’s work is a faithful, through crude and occasionally flawed interpretation of Schmitt. I say "crude" principally because Schmitt expresses from the outset the severest moral reservations about his concept of "demonization." It is, he fears, subject to "high political manipulation" which "must at all costs be avoided." The use of this technique, he writes, may only be available when "the survival of the people is at stake." Der Begriff des Politischen, pp. 20-33. Yoo expresses no comparable hesitation, preferring simply to place all confidence in the Executive, and justifying this implausibly in the writings of the Founding Fathers.

But Yoo's conclusions are rendered even more inexplicable by another point. After World War II was over and the full horror of what the Axis Powers had done was apparent, a consensus was reached to overhaul the Geneva Conventions with the express intention of repudiating the German evasions of the Conventions listed above. So, while these positions may have been arguable with respect to the two 1929 Geneva Conventions, they hardly could be invoked with respect to the 1949 Conventions. But Yoo continues to cite them, oblivious to the shifts in text and commentary that occurred in 1949.

So how does Yoo come by the work of Carl Schmitt, and why does he fail to acknowledge it in his publications? Yoo is currently a scholar in residence at the American Enterprise Institute, the center stage of the American Neoconservative movement. That movement traces itself back to Leo Strauss, the political philosopher who lived and taught for many years in Chicago. Though a Jew forced to flee Nazi Germany, Strauss was a lifelong admirer of Carl Schmitt, a scholar and teacher of his works. Moreover, Strauss’ early work in Germany played a key role in development of the Begriff des Politischen, and Schmitt’s intercession helped Strauss obtain a key scholarship that made his escape from Germany possible. Though arrested by the Americans and accused of complicity in Nazi crimes, Schmitt achieved a partial rehabilitation late in his life - thanks in large part to Leo Strauss. Indeed, Schmitt emerged as an essential part of the Neocon canon, and his work – including all the relatively obscure works cited here – were translated into English and published by the University of Chicago Press (also Yoo’s publisher). It is therefore hardly plausible to suggest that Yoo would be unfamiliar with the writings of Carl Schmitt. On the other hand, it is easy to surmise why he would fail to acknowledge his reliance on such a highly stigmatized writer. After all, Schmitt was a notorious antisemite best known for crafting the legal cover for Hitler's Machtergreifung.

Why Carl Schmitt Hates America
Carl Schmitt was a rational man, but he was marked by a hatred of America that bordered on the irrational. He viewed American articulations of international law as fraught with hypocrisy, and saw in American practice in the late nineteenth and early twentieth centuries a menacing new form of imperialism (“this form of imperialism… presents a particular threat to a people forced in a defensive posture, like we Germans; it presents us with the greater threat of military occupation and economic exploitation” he writes in 1932 – at a time of almost unprecedented American isolationism)(Die USA und die völkerrechtlichen Formen des modernen Imperialismus, p. 365). He saw in the peculiarly American notion of consensus-democracy an unsustainable foolishness, and in the Jeffersonian vision of small government with a maximum space for individual freedom a threat to his peculiar Catholic values.

Today, President Bush has again defended his indefensible treatment of detainees and claimed for himself rights that all his predecessors firmly disavowed. As president, he has cast aside the values of George Washington, Abraham Lincoln and Dwight Eisenhower – values on which the country was founded and built – and embraced instead those of Carl Schmitt, the lawyer who prostituted his genius to the cause of Fascism and fervently prayed for America’s destruction. What a great irony.

John Yoo and his colleagues present their critique of international humanitarian law as a validation of the sovereigntist tradition of the American Founding Fathers. That such claims can be taken seriously reflects a failure of critical thought in contemporary America. Yoo’s views on international humanitarian law have absolutely nothing to do with the Founding Fathers. They are a cheap, discredited Middle European import from the twenties and thirties. Viewed this way, it becomes increasingly clear where they would lead us.

Comments:

The Geneva Conventions only apply to soldiers that fight "honorably" -- i.e., with uniforms on. The point of the Conventions is to protect civilians and to introduce a mutually beneficial compact between warring parties for humane treatment of each other's captured soldiers. The soldier (or the spy) who wears no uniform yet wages war is using the population as human shields. The bottom line is that the Geneva Conventions never did and never were intended to apply to "unlawful combatants" -- those wearing no uniform. The USA gratuitously applies humane treatment to most unlawful combatants in the current conflict with radical islamists. Under no international law is it required to. I mean this comment to only apply to the limited questions of the "Geneva Conventsion", not to what may or may not be an efficient or ethical policy.
 

Sam appears to draw his understanding of the Geneva Conventions from watching Fox News, instead of reading the Geneva Conventions. This is regretable, but typical of the damage done in this country by making a sort of political sport out of the Conventions. The Geneva Conventions apply to all participants in a conflict, not just to "soldiers that fight 'honorably'" - however, soldiers who fight 'honorably' are eligible prisoner of war status, which affords much more protection than is given unlawful combatants. "Spies and saboteurs" are in fact an expressly recognized class under the Conventions (see art 5), and their captors are given much broader latitude in how to treat them. But torture and cruel, inhuman and degrading treatment are still out of bounds.
 

"The soldier (or the spy) who wears no uniform yet wages war is using the population as human shields."

Does this rule apply to the thousands of private "security guards" the U.S. has hired to fight in Iraq?

I ask because I don't know if you've noticed this, Bub, but those guys ain't wearin' any uniforms either.
 

From the Opinio Juris blog, an interesting selection and the corresponding link to the full debate held Oct. 31 between Philippe Sands and John Yoo on global legal rules sponsored by the World Affairs Council:

http://lawofnations.blogspot.com/2005/11/sands-yoo-debate.html

It’s the first time I read of a law professor suggesting that Yoo could be considered criminally responsible for what came after his memoranda. I don’t believe this (starting a criminal investigation against Yoo) will ever happen in the U.S., since what’s behind the entire thing is the ultimate taboo: holding public officers accountable for illegally starting a war. However, I think it would be “hygienic” that other law professors, even U.S.-based, gave this hypothesis some serious thought and, if the outcome is clear enough, issue some kind of joint statement.
 

Scott, I'm not sure that the values of Abraham Lincoln are the best thing to bring up here. The Lincoln Administration suspended a lot of civil rights during the Civil War, and numerous political prisoners languished in limbo during and after the conflict. Michael Kauffman's recent book American Brutus goes on to draw interesting parallels between the treatment inflicted on Lincoln's assassins and the treatment meted out at Guantanamo. Lincoln, Stanton, et al. were hardly torturers, and they faced dangers actually much graver than Al-Qaeda, but one can see Bush policy in some ways as adapting Lincoln-era policy. Or could, put case that Bush knew anything about this history ...
 

Scott, there are other ties between Strauss and Schmitt and Yoo. I have it on good authority that Yoo has, from time to time, actually gone to Chicago. There are rumors of a trip to Germany during his undergraduate days, but those are, as of now, still unconfirmed. But the implications are clear enough.

At least on the paranoid style of argument you've adopted.
 

The use of the word "gratuitously" by Sam is a good example of that exact demonization. People do not deserve humane treatment. Humane treatment isnt the correct thing to do. No, the United States blesses the world allowing for humane treatment when our government deems it appropriate.

So much for taking the high road.

Of course, as others have mentioned, his answer is an incorrect interpretation of the law.
 

There are some problems with this conspiracy theory. Does John Yoo read German? Because the books you cite are not translated. Also, it's very hard to find the books listed, either in Chicago or anywhere else, even assuming Yoo knew where to look. Also, it's true Schmitt was involved in justifying the Machergreifung, but I'm not aware he was involved in prisoner detainment policies. He was persona non grata by the time the war started, and the Concept of the Political was written before Hitler came to power. All of that aside, you don't have to read Carl Schmitt to realize reasons of state justify executive discretion. That is not an argument that began with Carl Schmitt, nor is it clear that Schmitt, who had a great deal of nostalgia for the humanitarianism of the "jus publicum europaeum," was ever involved in justifying a suspension of the rules protecting enemy combatants. Schmitt wrote about Napoleon's war in Spain, for instance, the first "guerilla" war, and the fact that even in such a brutal war the Napoleonic army followed the laws protecting prisoners of war.
 

Even if Yoo does not speak German at least one of the three works cited (the Concept of the Political) has been available in English for some years.

Schmitt's work has also been very widely excerpted and discussed in English (and not just by the right - in many ways the post-modernist leftists associated with Telos and New Left Review magazines were more comfortable with Schmitt than any traditional conservatives could be) so it would be unlikely if Yoo had not encountered his key ideas at some point and been influenced by them.

But to assume that he has lifted his whole position directly from Schmitt requires a lot more evidence than you are giving us here.

Even if he was, both Schmitt and Yoo are talking not about the world they would like to have but the world we actually inhabit.

Even in your one-sided presentation Schmitt/Yoo's alleged position actually strikes me as all too reasonable.

When you do face total war against a total enemy who wears no uniform, makes no distinction between soldiers and civilians and themselves only take prisoners in order to torture and murder them, then one clearly is not bound by normal rules of war.

Schmitt although in many ways a repellent figure did at least address these issues.

I certainly don't agree with the administration's position on torture and indefinite detention in secret camps, but it is silly to imagine that we can fight this war bound by conventions to which our enemies do not subscribe.
 

Schmitt's book "Theory of the Partisan" (partisan=terrorist, insurgent) was translated in 2004. It was written in 1962.

Here is a link to the entire book.

http://www.msupress.msu.edu/journals/cr/schmitt.pdf

Here is what Schmitt says about the traditional rules, ie from 1907:

" The legal position [of the partisan] is summarized in
the Hague Ground War Provision of 18 October 1907, which is now universally
recognized as authoritative."

Here is what Schmitt has to say about the amendment of those guidelines by the German general staff late in the war:

"The Prussian-German command did finally, if belatedly, understand
the partisan war. The Supreme Command of the German Wehrmacht issued
the already mentioned guidelines for partisan combat on 6 May 1944. Thus,
just before its own end the German Army recognized the partisan for what
he was. In the meantime/By now, the guidelines of May 1944 were/are recognized
by one of Germany’s enemies as an outstanding regulation
[Regelung]." p.26

Schmitt say that if he were somehow involved in the drafting, directly or indirectly? By 1944 Schmitt was more than ten years removed from a position of authority in the Nazi regime.

Here is what he has to say about the irrelevance of the old laws, which does confirm Mr. Balkin's point to some degree, but remember this was written in 1962:

"The German soldier got acquainted with the sharpshooter in France in
autumn 1870 and the following winter 1870/71, after the great victory over
the regular army of Napoleon III . . . The position [Lage] of the German armies was threatened and
the external affairs [außenpolitische Lage] of Germany were in danger
because a long war had not been anticipated. The French populace was
patriotically aroused and participated in the most various ways in the war
against the Germans. In response, French dignitaries and so-called notables
were taken hostage, sharpshooters whom they caught red-handed
were shot, and reprisals of every kind were imposed on the populace. Such was the starting point for half a century of contention among jurists of
international law and public propaganda on both sides for and against the
sharpshooter. The controversies flashed up again in World War I as the
Belgian-German sharpshooter battle. Whole libraries were written on this
question, and as recently as 1958/60 a committee of reputable German and
Belgian historians has tried to clarify and cleanse at least one point of contention
from this complex, the so-called Belgian Sharpshooter Battle of
1914.20
All of this is conclusive for the problem of the partisan because it shows
normative regulation to be judicially impossible, if the regulation is really
to grasp the actual facts on the ground and not just deliver a glissando of
value judgments and vague strictures. The traditional European containment
of war between states has proceeded since the eighteenth century
from determinate concepts which, though interrupted by the French
Revolution, were all the more effectively confirmed by the restoration work
of the Congress of Vienna. These ideas of a contained war and a just enmity
stemming from the age of monarchy can only then be legalized bilaterally
when the warring states on both sides hold fast to them, both within their
own states and [41] between them, that is, when their domestic as well as
their interstate concepts of regularity and irregularity, legality and illegality,
are in alignment or at least structurally homogeneous to some extent.
Otherwise the interstate standard, instead of furthering peace, only succeeds
in generating pretenses and slogans in the service of mutual recriminations.
This simple truth has gradually come to consciousness since World
War I. But the façade of the traditional [überkommenen] conceptual inventory
remains strong on the level of ideology. For practical reasons, states
have an interest in utilizing the so-called classical concepts, even if these
have been discarded in other cases as old-fashioned and reactionary. At the
same time, European jurists of international law have put stubbornly out of
mind the picture of a new reality, more and more recognizable since 1900.21" p. 24-25

Notice that Schmitt says this after the war, in 1962. Did Mr. Yoo have access to this text? Maybe, I guess. All in all, I would say that Mr. Balkin's imputations are at best poorly sourced, and there is no reason to believe Yoo has been reading Schmitt, or even if he has, that there is anything uniquely Schmittian about the justification for attenuating rules covering irregular combatants. As Schmitt himself notes, there are whole libraries discussing this topic.
 

I see a forest/trees problem here.

Why was Jay Bybee putting his name to, and the White House evidently buying into, a memo whose theory of the executive is strikingly similar to that of a Nazi apologist?

What the hell is wrong with these people?
 

All of the works cited here in German have been translated into English and are easily accessible to scholars who want to read them. Most of the works are in the major collection published by the University of Chicago Press.
Schmitt's recognition of the rights of "partisans" is clear, significant, and points to how Yoo has crudely received Schmitt by failing to note the limitations that Schmitt accepted on his friend/foe dichotomy.
 

I think the law review articles of Jack Goldsmith (fmrly U of C, now Harvard Law) and Curtis Bradley (UPenn Law), as well as perhaps Eric Posner (U of C Law), are the best sources of the foundation of Yoo's beliefs. The possibility that some of these professors soaked in Schmitt via neo-con icon Strauss seems entirely plausible.

That said, the transparently faulty marshalling of evidence of the Founders' so-called original intent for the President to exercise uncontrolled and uncontrollable War Powers as Commander-in-Chief can be usefully compared to similar pick-your-friend-type arguments advanced by Justice Scalia in a few cases. GOP-friendly, but not very conservative at all.
 

Thomas moreso than Scalia, Cyber Joe--no?
 

Well, no they're not published, not the ones Balkin cites, and the Schmitt/Strauss connection is totally bogus. Straussians have no interest in Schmitt. Until there is actually a demonstrated connection, instead of totally baseless insinuation, this is just a smear of Yoo (associating him with a Nazi). Shouldn't there be some tiny shred of a basis in fact for such a charge?
 

Why would anyone want to live in a society that would tolerate the inhumane treatment of individuals?
 

Terrific article Scott, and two notes to other posters:

1) Soctt Horton is NOT Jack Balkin, though BOTH are always interesting writers on the law.

2) Does it really matter if Yoo studied the guy directly or not? The point is that the policies are fascist lunacy.

And make that 3):

The idea that you have to be a beast to fight one is a) beastly, and b) stupid.

If being a beast worked better than being an intelligent human being, saber-tooth tigers would rule the earth and we wouldn't need self-deluded fools to make up excuses to act like a beast.
 

There are a number of very useful comments here, for which thanks. I have cited the Schmitt materials to the German texts, because that is what I have, however, the texts are all available in English - largely in the collection 'Peace and Pacifism.'
I do not mean to suggest here that I believe that Carl Schmitt would adopt the positions taken by John Yoo. Schmitt was far too serious a legal scholar for that. His positions on international humanitarian law are far too nuanced, and, as one commentator notes, he wrote very persuasively about the role of partisans and the legal regime under which they were to be treated. It is not Schmitt's legal writing, but rather his political philosophy which comes into play here. In fact, I discussed this very point with Jane Mayer after reading her piece - it shows how crude Yoo's views are compared with Schmitt.
The commentor who suggests there is no link between Strauss and Schmitt would benefit from reading the growing number of books on their friendship and intellectual interaction, starting with Heinrich Meier's Carl Schmitt and Leo Strauss: The Hidden Dialogue; to which I would add Shadia Drury's Leo Strauss and the American Right and Anne Norton's Leo Strauss and the Politics of American Empire - each of which show the quite profound influence of Schmitt on Strauss, and the more modest influence of Strauss on Schmitt. Both Norton and Drury also note the striking similarity between Neoconservative arguments about international humanitarian law and Schmitt's writings - I do not claim to be the first on this point.
Finally, I agree with Schmitt's critics that it's too simplistic simply to dismiss him as a Nazi. He was a card-carrying Nazi, and he played a critical role in the Gleichschaltung, but he had strong reservations about Fascism and actually advised the Reichspraesident to outlaw the Communists and Nazis - it was discovery of that letter that led to the loss of his leadership position. He is therefore a complex figure, blending continental Catholic conservatism, the social thinking of Max Weber, and certainly more than a trace element of fascism.
 

I did a google and amazon search and there is no book called "Peace and Pacifism." There is a German book of that title, but it was not published in 1933, it is a collection of essays with the subtitle "works from 1924-1978". These are really basic errors. As for tarring Strauss with the Schmitt brush, the fact that they were friendly in Weimar germany is, to be fair, totally irrelevant to 2005 America. Strauss was also close with the socialist economic historian Tawney. Does that make him a socialist? Again, more inaccuracies and unfounded insinuations.
 

csdorotoc, if you don't know anything about Strauss, just say so. Strauss's interest in Schmitt, like his interest in Nietzsche, is well-documented. That doesn't make Strauss a follower or admirer of Schmitt.

I think it's entirely fair to say, however, that Strauss was afraid that democracy would fail for some of the reasons advanced by Schmitt (& N. for that matter), and that such fears were part of what sent Strauss back to the Republic and to the possibility of elite rulers not bound by democratic strictures, but working for the general good of the (apparent) democracy.

There are lots of problems with that view, but then, there are lots of problems with every political theory.
 

Great posts. Haven't read any Schmitt or Yoo, but I've read too much John Keegan and others on the concept of "Total War" so allow me to echo two of Leviathan's comments:

"When you do face total war against a total enemy who wears no uniform, makes no distinction between soldiers and civilians and themselves only take prisoners in order to torture and murder them, then one clearly is not bound by normal rules of war."

(and)

"[I]t is silly to imagine that we can fight this war bound by conventions to which our enemies do not subscribe."

That said, let me respond to Mr. Gitting. He takes a "straw cat" example of a sabre tooth tiger to establish the proposition that you do not have to be a beast to fight a beast. Let's "change the facts" as we used to say in law school: How about if we're up against an alien beast, like in the movie ALIEN. Same result, Mr. Gitting?

I also keep thinking of this question in terms of the macro following the micro. It's one thing if you're in a boxing ring with Marquis of Queensbury Rules, or modern Mixed Martial Arts Rules -- you can "tap out" and your civilized opponent will let you up off the mat rather than choking you to death. But what about when you're defending yourself and your family in a street fight against a thug who wants to kill you for your wallet? If you let him atop you, you may not ever get up. You do what you need to do in order to survive the encounter. By extension, civilized rules of war only work where both parties agree ab initio to follow them, and do.

Scholars who decry the use of torture against terrorists remind me of the British general (at least, as he was portrayed in the movie THE PATRIOT) in the Revolutionary War who suddenly noticed that Continental soldiers were no longer lining up in regimental formation to "stand and deliver" according to the accepted rules of war on the European continent. "That's not cricket" he might have muttered. "How beastly" his colleague on the general staff might have added.

War is not cricket. It's noble of you when you can afford to follow the Geneva Conventions, but when that starts to get in the way of survival, it's time to rethink the game plan for the second half.

To paraphrase Henry Clay: I would rather be live than reticent.
 

Anyone still here? The NYRB has a review of John Yoo's new book (no sub required).

The final paragraph brings up the Schimittian aspect, tho without mentioning Schmitt:

The proposition that judicial processes —the very essence of the rule of law —are to be dismissed as a strategy of the weak, akin to terrorism, suggests the continuing strength of Yoo's influence. When the rule of law is seen simply as a device used by terrorists, something has gone perilously wrong.

The notion that the rule of law actually imperils America, and must therefore be dispensed with, is one that needs to be debated expressly. If only we had a Congress, or a minority party, that could and would do so.
 

First, the Licoln analogy is quite right. A handful of arguably counter-productive sins of expedience in the course of prosecuting a difficult liberalizing war against a brutal and completely unsrupulous enemy. Except the Confederates weren't so unscrupulous during the war -- they only got that way in the ensuing KKK insurgency.

Second, note that we entirely skipped the League of Nations, so our rep. as the arbiters of international law, to the extent we had one, was silly indeed. And really, who can respect the Kellog-Briand pact (except the Nobels?). Such above-it-all pacifism permitted the unchecked rise of Euro-fascism until it had grown into a world-beating force quite capable of putting liberal democracy clean out of business. That faux-law-based-pacifism was brain-dead, cowardly, and, I imagine, insufferable to behold.

Third, Schmitt's hatred of America is the same hatred in Europe today. Here we have defeated two hideous regimes in 4 years and have lost serious blood and treasure turning both countries -- cruel basketcases for decades -- into honest-to-goodness democracies. And now that same hatred finds it expedient to hyperbolically exaggerate our sins in carrying out this liberalization in order to demonize us.

I have no brief for torture or other activities that come close to it. I'm not an intelligence pro; I don't see what the benefit is. I doubt there is one, and there are clear propaganda drawbacks.

But I do see that so far in this war, the Geneva Conventions have been little use to us. Our enemies behead us when they capture us. Great. Meanwhile we get excoriated for every deviation, no matter how small. (We gave you a Koran, you're welcome, enjoy. God damn you -- you dropped my Koran! How dare you claim to be a moral actor!)

Further, while a treaty is legitimately binding on us (Geneva Conventions), other international law is not. It has no basis in democratic decisionmaking, and it is a dangerous threat to our sovereignty. That understanding is consistent with our Founders' belief in the creation of law by the people to secure their freedoms. A theory of law that obliges an individual or a nation based on conferences of unelected foreign elites, without ratification as a treaty, is anathema.
 

Last commenter wrote:

I have no brief for torture or other activities that come close to it. I'm not an intelligence pro; I don't see what the benefit is. I doubt there is one, and there are clear propaganda drawbacks.

Just a minor point here. There are guys at CIFA (DoD) who do rish analysis (math) on the question of whether the value of the info we get does in fact outweigh the propaganda drawbacks, or if it doesn't. In other words, we don't go into this sort of proposition blind. Some might argue that we don't have the right to engage in abuse and/or torture "while we're studying the risk bebefit analysis" but I disagree. If the RBA concludes that, on balance, it's not worth the risk, then abandon it. But not until ...
 

Some of the translated works by Carl Schmitt that can be easily obtained include:

The concept of the political / Carl Schmitt ; translation, introduction, and notes by George Schwab ; with Leo Strauss's notes on Schmitt's essay ; translated by J. Harvey Lomax ; foreword by Tracy B. Strong Chicago : University of Chicago Press, 1996

The crisis of parliamentary democracy / Carl Schmitt ; translated by Ellen Kennedy Cambridge, Mass. : MIT Press, c1985

Legality and legitimacy / Carl Schmitt ; translated and edited by Jeffrey Seitzer ; with an introduction by John P. McCormick Durham : Duke University Press, 2004

The Leviathan in the state theory of Thomas Hobbes : meaning and failure of a political symbol / Carl Schmitt ; foreword and introduction by George Schwab ; translated by George Schwab and Erna Hilfstein Westport, Conn. : Greenwood Press, 1996

The nomos of the earth in the international law of the Jus Publicum Europaeum / Carl Schmitt ; translated and annotated by G.L. Ulmen Telos Press, 2003

Political romanticism / Carl Schmitt ; translated by Guy Oakes Cambridge, Mass. : MIT Press, c1986

Political theology : four chapters on the concept of sovereignty / Carl Schmitt ; translated by George Schwab Cambridge, Mass. : MIT Press, c1985

Vital realities, by Carl Schmitt, Nicholas Berdyaev [and] Michael De La Bedoyère New York, The Macmillan company, 1932
 

Some works by Schmitt in English that can be readily obtained include:

The concept of the political / Carl Schmitt ; translation, introduction, and notes by George Schwab ; with Leo Strauss's notes on Schmitt's essay ; translated by J. Harvey Lomax ; foreword by Tracy B. Strong Chicago : University of Chicago Press, 1996

The crisis of parliamentary democracy / Carl Schmitt ; translated by Ellen Kennedy Cambridge, Mass. : MIT Press, c1985

Legality and legitimacy / Carl Schmitt ; translated and edited by Jeffrey Seitzer ; with an introduction by John P. McCormick Durham : Duke University Press, 2004

The Leviathan in the state theory of Thomas Hobbes : meaning and failure of a political symbol / Carl Schmitt ; foreword and introduction by George Schwab ; translated by George Schwab and Erna Hilfstein Westport, Conn. : Greenwood Press, 1996

The nomos of the earth in the international law of the Jus Publicum Europaeum / Carl Schmitt ; translated and annotated by G.L. Ulmen Telos Press, 2003

Political romanticism / Carl Schmitt ; translated by Guy Oakes Cambridge, Mass. : MIT Press, c1986

Political theology : four chapters on the concept of sovereignty / Carl Schmitt ; translated by George Schwab Cambridge, Mass. : MIT Press, c1985

Vital realities, by Carl Schmitt, Nicholas Berdyaev [and] Michael De La Bedoyère New York, The Macmillan company, 1932
 

Usually prejudices can work against the understanding of science and history. But where are the limits of those prejudices? Where is the boundary between political enemy and science? To many the one who makes science, shall work hard cosntantly to free herself of (inevitable) prejudices.Scott tells us about the letter that Schmitt wrote to 'the Reichspraesident to outlaw the Communists and Nazis - it was discovery of that letter that led to the loss of his leadership position'.(among the Nazis) It has been new to me and I wonder, why others do not wonder, e.g. which history would we have today if the Reichspraesident had listen to Schmitt´s advice. Perhaps we even would need not to sorrow about the Holocaust?
 

Incredible - very well done!

Yoo...

And can you imagine that there'd be an unethical neoconservative? That just blows me away...
 

God help us. I was disturbed but not surprised by what I read here. I was much more disturbed, however, by the sheer number of posts which either deny the basic facts of this article and claim that Strauss was not connected to Schmitt at all, that Schmitt's works are simply nonexistent in english (which of course is not true, and even if it was, so what? his ideas are well known) or actually defended the position of Schmitt and claim that you do, in fact, have to act like a beast in order to fight a beast. I think the most ridiculous is the post that states "sure, you don't have to be a beast to fight a saber toothed tiger, but what about an 'alien', from that movie 'alien'?". This person apparently graduated from law school!!! Intelligence and humanity always wins in the end, it doesn't matter what kind of beast you are fighting. The geneva convention applies to everyone, and if it doesn't, it SHOULD! There is no excuse for torture and murder of prisoners, no excuse, and anyone who says otherwise is just self deluded. Amazing, simply amazing, that we have so many fascists in america, and most of them probably don't even realize that they are fascists.
 

True democracy lies in what we vote on, every day.

The marketplace is our ballot box, and the way to univeral democracy is by letting the consumer see what they are really buying.

Currently there is no easy way to tell whether products in our shops come from an economy that supports a brutal dictatorship, or a terrorist state.

I propose a FREE COUNTRY mark applied to imports into the EEC.

A single universally recognized mark to confirm that the country of origin is a state which conforms to the articles of the UN charter on Human Rights.

I propose a scheme where consumers can make an informed choice about NOT supporting the economy of governments which suppress civil liberties.

A scheme supported by a certifying foundation with a simple system of audits, and the articles of Human Rights used as a simple standard without influence from politicians or corporations.

I think the beauty of this idea is that it will take a long time to develop, and thus concerns about the well being of workers affected by sharp changes in the market will be diminished.

I hope that slowly, in the same way that Fair-trade pushed supply chains to reconsider their operations, this scheme will coerce vicious regimes to consider their actions, if only to protect their profit margins.

I have faith that this idea is worth discussion.

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and in the era of Twitter pretty much a necessary one.
 


Both are streaming services with custom streaming platforms that offer a mix of server-based
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Both are flat-rate subscription services, with ad-supported free options.
 

Add to that the millions of self-hosted WordPress
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blogs out there based on the
 

الجارية ملاحظات بشأن إدارة المستأجر الخيارات، وهنا هي العوامل الأكثر.

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أهمية القيام الخاص بك السياسة التجارية الخاصة بك أو تسجيل المبنى
 

any risk of a flickering image. (Just look at a CRT screen out of the corner of your eye
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, which is more sensitive to motion.)
 

and while for some the temporary
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lack of email service
 

الجارية ملاحظات بشأن إدارة المستأجر الخيارات، وهنا هي العوامل الأكثر
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أهمية القيام الخاص بك السياسة التجارية الخاصة بك أو تسجيل المبنى.

 

There are only THREE countries in the entire world that have a population of more than 300

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million. Those are China (1.33 billion), India (1.17 billion) and USA (307 million).
 

Proposing by modifying video game maps
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seems to be something of a trend. Here is
 

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