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Front page Balkinization an unanticipated consequence of Jack M. Balkin

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.

Books by Balkinization Bloggers

E-mail: Jack Balkin: jackbalkin at Bruce Ackerman bruce.ackerman at Ian Ayres ian.ayres at Mary Dudziak mdudziak at Heather Gerken heather.gerken at Mark Graber mgraber at Stephen Griffin sgriffin at Bernard Harcourt harcourt at Scott Horton shorto at Andrew Koppelman akoppelman at Marty Lederman marty.lederman at Sanford Levinson slevinson at David Luban david.luban at Gerard Magliocca gmaglioc at Jason Mazzone jason.mazzone at Linda McClain lmcclain at Frank Pasquale pasquale.frank at Nate Persily npersily at Michael Stokes Paulsen michaelstokespaulsen at Deborah Pearlstein dpearlst at Rick Pildes rick.pildes at Alice Ristroph alice.ristroph at Brian Tamanaha btamanaha at Mark Tushnet mtushnet at

Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010)

Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic

Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010)

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2/10/2011 5:54 PM

” It seems highly improbable that officers carefully trained in the Geneva rules would suddenly discard them on their own initiative. Detention. Geneva or otherwise. Why the Constitution Matters (Yale University Press 2010) Just A Few Blogs ACS Weblog The Agonist Roger Ailes Alas. 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. But that's not all. The Laws of Change: I Ching and the Philosophy of Life (2d Edition. but written by a Justice Department lawyer. imposed similar methods at Abu Ghraib. including war-crimes and assault statutes. 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. erroneously. He considered liberalism. Like the torture memo.html The Anti-Torture Memos: Balkinization Posts on Torture.” “they have no rights. To the contrary. Internal email traffic among military intelligence units is consistent: Once you label the insurgent detainees as “ Buzz Machine Cairns (Beth Noveck) Capitol Hill Blue Cato at Liberty Anupam Chander Cobb. which had concluded. the legal tools to do so may no longer exist. 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. it is reasonably clear that instructions to that effect were transmitted from a very high source. These two memos sanction such extreme measures that.I. In October of that year. 2003 Yoo memorandum has assumed a “Rosetta Stone” quality. Interrogation. and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books. According to the memo. command authorities in Iraq no longer considered the Geneva Conventions to restrain them in their handling of Daily Howler Daily Kos Brad DeLong Demosthenes Digby (Hullabaloo) Discriminations Dispatches from the Culture Wars Donkey Rising (Emerging Democratic Majority) Ross Douthat Daniel Drezner Kevin Drum (Mother Jones) Tim Dunlop (The Road to Surfdom) Electrolite En Banc Ernie the Attorney Eunomia (Daniel Larison) Fafblog Feminist Law Professors As has been noted in this space before.” the same source said. occupation of Iraq had grown into a confounding and lethal insurrection. who had overseen coercive interrogations of terrorist suspects at Guantánamo. these documents are believed to have been signed by Jay Bybee. Safe. Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New. to be inadequate to the task of protecting state and society menaced by the great evil of Communism. 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.A. 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. and the March 14. The Yoo memoranda are critical to understanding what happened. is said to authorize numerous “enhanced” interrogation techniques for the The Blotter Body and Soul The Buck Stops Here Buzzflash. even if the agency wanted to discipline or prosecute agents who stray beyond its own comfort level.Balkinization Jack M. Mayer's article now suggests the existence of other advice which explicitly addressed the situation in Iraq: By the summer of 2003. 2010) 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. that Iraqi insurgents were not protected by international law. Congress has no constitutional right to interfere with the President in his role as Commanderin-Chief. the insurgency against the U. Sybil Creek Press 2009) 2 of 12 2/10/2011 5:54 PM . the March 14. The document dismissed virtually all national and international laws regulating the treatment of prisoners. agents and members of the Special Forces to get the kind of intelligence needed to crush it. issued in August. including making laws that limit the ways in which prisoners may be interrogated. and the Pentagon and the White House were pressing C. War Powers. John Yoo. classified memo was “breathtaking.I. Schmitt was obsessed with what he viewed as the inherent weakness of liberal democracy. the former head of the Office of Legal Counsel. 2002. Balkin. which require the humane treatment of prisoners and forbid coercive interrogations. who is now a professor of law at Berkeley. Another classified Justice Department memo. the Blog Juan Cole (Informed Comment) Concurring Opinions Connected Selves The Constitution in 2020 Cooped Up (Jeff Cooper) Copyfight Corante Corrente Susan Crawford blog Crescat Sententia Crooked Timber Cursor. and it was radical in its view that in wartime the President can fight enemies by whatever means he sees fit. On orders from Secretary of Defense Donald Rumsfeld. 2003. Mark Tushnet. and OLC The Anti-Torture Memos (arranged by topic) Recent Posts The Return of Carl Schmitt A March [14]. General Geoffrey Miller. particularly as manifested in the Weimar Constitution. a Blog Eric Alterman Althouse Marc Ambinder Arts and Letters Daily Atrios (Eschaton) Bad Attitudes Bag and Baggage Ted Barlow Becker-Posner Blog Michael Bérubé Blackprof. The Friend/Foe Paradigm Perhaps the most significant German international law scholar of the era between the wars.blogspot. and questions were repeatedly raised about how the Geneva Conventions were to be applied. The ruling reversed an earlier interpretation.

” These thoughts are developed throughout Schmitt’s work. (2) Individual combatants who engaged in “terrorist” practices. The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) 3 of 12 2/10/2011 5:54 PM . James Dale Warped the Law of Free Association (Yale University Press 2009) (1) Particularly on the Eastern Front.” This is not to say that in Schmitt’s view the enemy was somehow “morally evil or aesthetically unpleasing. through crude and occasionally Jack M. The enemy must be seen as absolute. (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. Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff. They are “unrealistic” as applied to modern ideological warfare against an enemy not constrained by notions of a nation-state. (6) In any event. of course. Guns and Money Liberal Oasis Brian Leiter's Law School Reports The Leiter Reports Many to Many (Clay Shirky) Marginal Revolution Maxspeak Megan McArdle Memeorandum Metafilter Mirror of Justice Chris Mooney (The Intersection) MyDD Newseum The News Dissector (Mediachannel. sole judge. 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.” (I take the liberty of substituting Yoo’s word. or who fought in military formations engaged in such practices. something different and alien. and the adjudicatory provisions of the Geneva Conventions could therefore be avoided together with the substantive protections. of whatever nature. 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: Brian Z. And conversely. though they might have limited application with respect to the Western Allies. the outsider. Siegel. the norms of international law respecting armed conflict reflect the romantic illusions of an age of chivalry. concerned with the Soviet Union here. have been Führer). adopting terrorist methods and fighting with irregular formations that hardly equate to traditional armies. Executive. the conflict was a nonconventional sort of warfare being waged against a “barbaric” enemy which engaged in “terrorist” According to Schmitt.Balkinization http://balkin. and which itself did not observe the law of armed conflict. Balkin and Reva B. Clement). In Schmitt’s classic formulation: “a total war calls for a total enemy. To this end niggling.” it sufficed that he was “the other. like a scholar laboring in some parallel universe unaware of the work of others. Possible.html Michael Froomkin (Discourse. Frieden oder Pazifismus (1933) and Totaler Feind. Tamanaha. The similarity between these rationalizations and those offered by John Yoo in his hitherto published Justice Department memoranda and books and articles is staggering. the Executive is constituted the sole leader. totaler Krieg. 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. (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. for Schmitt or The Hamster Rick Hasen (Election Law) History News Network How Appealing Ignatz (Sam Heldman) The Importance of (Ernie Miller) Infolaw Instapundit Intel Dump (Phil Carter) International Economic Law and Policy Blog Jacob Levy Jesus' General Jurisdynamics Kausfiles Orin Kerr Kicking Ass The Kitchen Cabinet Mark Kleiman Law of War (Kenneth Anderson) Law Blog Central Law Blog Central Orbiter LawCulture Lawmeme Left2Right Legal Fiction The Lefty Directory Larry Lessig Lawyers. The Constitution in 2020 (Oxford University Press 2009) Heather K. of course. (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. A Right to Discriminate?: How the Case of Boy Scouts of America v. totaler Staat (1937). hypertechnical interpretations of the Conventions that disregarded the plain text. 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). (Schmitt is.blogspot. Yoo’s prescription for solving the “dilemma” is also taken straight from the Schmittian playbook. It is more likely that Yoo’s work is a faithful. but particularly in Der Begriff des Politischen (1927). international practice and even Germany’s prior practice in order to justify their nonapplication were entirely appropriate. He must be stripped of all legal rights. A Practical Guide to Evasion of the Geneva Conventions Given this philosophical Glenn Greenwald GlennReynolds. sole legislator. “in time of war. the key to successful prosecution of warfare against such a foe is demonization. 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. 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. The Executive must be free to use whatever tools he can find to fight and vanquish this foe. the word would. It is of course possible that John Yoo came upon all of this on his own. were not entitled to protections under international humanitarian No More Mister Nice Blog Brendan Nyhan Open University (The New Republic) Opening Argument Opinio Juris Orcinus The Originalism Blog Jack O'Toole Our Congress Pandagon Passport (Foreign Policy) The Plank (The New Republic) Overcoming Bias Political Animal (Washington Monthly) Political Theory Daily Review Political Wire (Taegan Goddard) The Poor Man Virginia Postrel Prawfsblawg Public Reason Jonathan Rauch Beyond this. For Schmitt. But not probable. Gerken.

That movement traces itself back to Leo Strauss. like we Germans. and Schmitt’s intercession helped Strauss obtain a key scholarship that made his escape from Germany possible. It is therefore hardly plausible to suggest that Yoo would be unfamiliar with the writings of Carl Schmitt. may only be available when "the survival of the people is at stake. 365). he fears. They are a cheap. he writes. while these positions may have been arguable with respect to the two 1929 Geneva Conventions. John Yoo and his colleagues present their critique of international humanitarian law as a validation of the sovereigntist tradition of the American Founding Fathers. Posted 9:13 PM by Scott Horton [link] Mary Dudziak. Balkin. 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. Eddan Katz. XML powered by 2RSS com 2. Press 2007) Your Choice of Feeds 1. Schmitt achieved a partial rehabilitation late in his life . Indeed. Legal Ethics and Human Dignity (Cambridge Univ. pp. 20-33. preferring simply to place all confidence in the Executive. But Yoo's conclusions are rendered even more inexplicable by another point." Der Begriff des Politischen. discredited Middle European import from the twenties and thirties. Though a Jew forced to flee Nazi Germany. On the other hand.blogspot. p. he has cast aside the values of George Washington. Today. He saw in the peculiarly American notion of consensus-democracy an unsustainable foolishness. Why Carl Schmitt Hates America Carl Schmitt was a rational man. After all. the lawyer who prostituted his genius to the cause of Fascism and fervently prayed for America’s destruction. I say "crude" principally because Schmitt expresses from the outset the severest moral reservations about his concept of "demonization. and in the Jeffersonian vision of small government with a maximum space for individual freedom a threat to his peculiar Catholic values. Schmitt emerged as an essential part of the Neocon canon. Abraham Lincoln and Dwight Eisenhower – values on which the country was founded and built – and embraced instead those of Carl Schmitt. it is easy to surmise why he would fail to acknowledge his reliance on such a highly stigmatized Reporters Committee For Freedom of the Press Reproductive Rights Blog The Rittenhouse Review SCOTUS Blog SCT Nomination blog Seeing the Forest Clay Shirky The Shifted Librarian The Situationist Larry Solum (Legal Theory) Andrew Sullivan Tacitus Talking Points Memo TPM Cafe TPMmuckraker. Viewed this way. Schmitt was a notorious antisemite best known for crafting the legal cover for Hitler's Machtergreifung. the center stage of the American Neoconservative movement. Strauss was a lifelong admirer of Carl Schmitt. oblivious to the shifts in text and commentary that occurred in 1949.Balkinization http://balkin. James Grimmelmann. but he was marked by a hatred of America that bordered on the 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. Strauss’ early work in Germany played a key role in development of the Begriff des Politischen. the political philosopher who lived and taught for many years in Chicago. Though arrested by the Americans and accused of complicity in Nazi crimes. Atom Feed 3. they hardly could be invoked with respect to the 1949 Conventions. 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). a consensus was reached to overhaul the Geneva Conventions with the express intention of repudiating the German evasions of the Conventions listed above." The use of this technique. Moreover. Ian Ayres. and justifying this implausibly in the writings of the Founding Fathers. Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) David Luban. President Bush has again defended his indefensible treatment of detainees and claimed for himself rights that all his predecessors firmly disavowed.html Raw Story Redstate ReligiousLeftLaw. So how does Yoo come by the work of Carl Talk Left Tapped Tbogg Tech Central Station TechPresident The Paper Chase (Jurist) Tom Paine Tom Tomorrow (This Modern World) The Truth Laid Bear Eve Tushnet Uggabugga University of Chicago Law School Faculty Blog Unqualified Offerings The Volokh Conspiracy War and Piece (Laura Rozen) Wampum Whiskey Bar (Billmon) Oliver Willis Wonkette Matthew Yglesias (Think Progress) Yin flawed interpretation of Schmitt. it becomes increasingly clear where they would lead us. and why does he fail to acknowledge it in his publications? Yoo is currently a scholar in residence at the American Enterprise Institute. But Yoo continues to cite them. So. What a great irony." It is. Yoo expresses no comparable hesitation. 4 of 12 2/10/2011 5:54 PM . subject to "high political manipulation" which "must at all costs be avoided. After World War II was over and the full horror of what the Axis Powers had done was apparent.thanks in large part to Leo Strauss. He viewed American articulations of international law as fraught with hypocrisy. Yoo’s views on international humanitarian law have absolutely nothing to do with the Founding Fathers. That such claims can be taken seriously reflects a failure of critical thought in contemporary America. As president. a scholar and teacher of his works. Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) Jack M.

Under no international law is it required to.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. Lincoln. from time to time.-based. Press 2006) "The soldier (or the spy) who wears no uniform yet wages war is using the population as human shields. Games. # posted by Joe Shmo : 3:10 AM From the Opinio Juris blog.html Comments: The Geneva Conventions only apply to soldiers that fight "honorably" -. soldiers who fight 'honorably' are eligible prisoner of war status.U.blogspot. actually gone to Chicago.blogspot. 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. # posted by Sam : 11:33 PM Nimrod Kozlovski. but those guys ain't wearin' any uniforms either. People do not deserve humane treatment. But torture and cruel. # posted by Thomas : 9:11 AM Brian Tamanaha. since what’s behind the entire thing is the ultimate taboo: holding public officers accountable for illegally starting a war. 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.Y. Law as a Means to an End (Cambridge University Press 2006) The use of the word "gratuitously" by Sam is a good example of that exact demonization. the United States blesses the world allowing for humane treatment when our government deems it appropriate. not to what may or may not be an efficient or ethical policy. Balkin and Beth Simone Noveck." Does this rule apply to the thousands of private "security guards" the U. "Spies and saboteurs" are in fact an expressly recognized class under the Conventions (see art 5).Y. The State of Play: Law. Humane treatment isnt the correct thing to do. and their captors are given much broader latitude in how to treat them.S.. there are other ties between Strauss and Schmitt and Yoo. issue some kind of joint statement. Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Scott. The Geneva Conventions apply to all participants in a conflict. still unconfirmed. but one can see Bush policy in some ways as adapting Lincoln-era policy. I'm not sure that the values of Abraham Lincoln are the best thing to bring up here. but those are. has hired to fight in Iraq? I ask because I don't know if you've noticed this. and numerous political prisoners languished in limbo during and after the conflict. Stanton. an interesting selection and the corresponding link to the full debate held Oct. but typical of the damage done in this country by making a sort of political sport out of the Conventions. Or could. The bottom line is that the Geneva Conventions never did and never were intended to apply to "unlawful combatants" -.U. The USA gratuitously applies humane treatment to most unlawful combatants in the current conflict with radical islamists. Press 2007) Sam appears to draw his understanding of the Geneva Conventions from watching Fox News. and they faced dangers actually much graver than Al-Qaeda. # posted by randomopinion : 4:58 AM Andrew Koppelman.Balkinization http://balkin. # posted by Jack Keefe : 8:02 AM Scott. et al.S. Same Sex. However.those wearing no uniform. Shlomit Wagman and Tal Zarsky. Cybercrime: Digital Cops in a Networked Environment (N. At least on the paranoid style of argument you've adopted.. gave this hypothesis some serious thought and. I think it would be “hygienic” that other law professors. The Lincoln Administration suspended a lot of civil rights during the Civil War. # posted by Diogenes : 1:45 AM Jack eds. not just to "soldiers that fight 'honorably'" .com/2005/11/return-of-carl-schmitt. I don’t believe this (starting a criminal investigation against Yoo) will ever happen in the U. There are rumors of a trip to Germany during his undergraduate days. Bub. put case that Bush knew anything about this history .. and Virtual Worlds (N. with uniforms on. as of now. 5 of 12 2/10/2011 5:54 PM .. which affords much more protection than is given unlawful combatants. I mean this comment to only apply to the limited questions of the "Geneva Conventsion". if the outcome is clear enough.however. 31 between Philippe Sands and John Yoo on global legal rules sponsored by the World Affairs Council: http://lawofnations. This is regretable. I have it on good authority that Yoo has. inhuman and degrading treatment are still out of bounds. instead of reading the Geneva Conventions. even U. The soldier (or the spy) who wears no uniform yet wages war is using the population as human shields. But the implications are clear enough.S.e.i. No. were hardly torturers.

his answer is an incorrect interpretation of the law. as others have mentioned. and the fact that even in such a brutal war the Napoleonic army followed the laws protecting prisoners of war. just before its own end the German Army recognized the partisan for what he was. It was written in 1962. # posted by csdorotoc : 1:58 PM Sanford Levinson. it's very hard to find the books listed. either in Chicago or anywhere else. then one clearly is not bound by normal rules of war. Of course. who had a great deal of nostalgia for the humanitarianism of the "jus publicum europaeum. the guidelines of May 1944 were/are recognized by one of Germany’s enemies as an outstanding regulation [Regelung].U." 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. but remember this was written in 1962: "The German soldier got acquainted with the sharpshooter in France in Jack M. Here is a link to the entire book. Thus. Schmitt's work has also been very widely excerpted and discussed in English (and not just by the right . and the Concept of the Political was written before Hitler came to power. even assuming Yoo knew where to look. # posted by Leviathan : 2:59 PM Mark Graber. Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Schmitt's book "Theory of the Partisan" (partisan=terrorist. That is not an argument that began with Carl What Roe v. but it is silly to imagine that we can fight this war bound by conventions to which our enemies do not subscribe. understand the partisan war. When you do face total war against a total enemy who wears no uniform. the first "guerilla" war. I certainly don't agree with the administration's position on torture and indefinite detention in secret camps. Balkin's point to some degree.. you don't have to read Carl Schmitt to realize reasons of state justify executive discretion. Press 2005) Sanford Levinson. which does confirm Mr. ie from 1907: " The legal position [of the partisan] is summarized in the Hague Ground War Provision of 18 October 1907." p. Also.. both Schmitt and Yoo are talking not about the world they would like to have but the world we actually inhabit. insurgent) was translated in 2004. but I'm not aware he was involved in prisoner detainment policies. makes no distinction between soldiers and civilians and themselves only take prisoners in order to torture and murder them.26 Schmitt say that if he were somehow involved in the drafting. The Supreme Command of the German Wehrmacht issued the already mentioned guidelines for partisan combat on 6 May 1944. Does John Yoo read German? Because the books you cite are not translated. which is now universally recognized as authoritative. it's true Schmitt was involved in justifying the Machergreifung. # posted by Will : 10:38 AM There are some problems with this conspiracy theory.html So much for taking the high road. directly or indirectly? By 1944 Schmitt was more than ten years removed from a position of authority in the Nazi regime. if belatedly. 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. He was persona non grata by the time the war started. Schmitt wrote about Napoleon's war in Spain. nor is it clear that Schmitt. But to assume that he has lifted his whole position directly from Schmitt requires a lot more evidence than you are giving us here. Schmitt although in many ways a repellent figure did at least address these issues. Here is what he has to say about the irrelevance of the old laws. All of that aside. Even if he was. In the meantime/By now. Torture: A Collection 6 of 12 2/10/2011 5:54 PM .Y. Wade Should Have Said (N.msupress. ed.blogspot. for instance. http://www. Also. Even in your one-sided presentation Schmitt/Yoo's alleged position actually strikes me as all too Here is what Schmitt says about the traditional rules." was ever involved in justifying a suspension of the rules protecting enemy combatants.msu.Balkinization http://balkin. Balkin. Our Undemocratic Constitution (Oxford University Press 2006) 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.

com homepage Bibliography Conlaw. All in all. even if these have been discarded in other cases as old-fashioned and reactionary. significant. For practical reasons. but not very conservative at all. sharpshooters whom they caught red-handed were shot.20 All of this is conclusive for the problem of the partisan because it shows normative regulation to be judicially impossible. Whole libraries were written on this question. more and more recognizable since 1900. The traditional European containment of war between states has proceeded since the eighteenth century from determinate concepts which. as well as perhaps Eric Posner (U of C Law). and reprisals of every kind were imposed on the populace. I would say that Mr. and points to how Yoo has crudely received Schmitt by failing to note the limitations that Schmitt accepted on his friend/foe dichotomy. That said. . are in alignment or at least structurally homogeneous to some extent. a memo whose theory of the executive is strikingly similar to that of a Nazi apologist? What the hell is wrong with these people? # posted by Anderson : 3:42 PM All of the works cited here in German have been translated into English and are easily accessible to scholars who want to read them. 24-25 Notice that Schmitt says this after the war. At the same time. . Cyber Joe--no? # posted by Anderson : 5:04 PM 7 of 12 2/10/2011 5:54 PM . The possibility that some of these professors soaked in Schmitt via neo-con icon Strauss seems entirely plausible. though interrupted by the French Revolution. only succeeds in generating pretenses and slogans in the service of mutual recriminations. now Harvard Law) and Curtis Bradley (UPenn Law).net Cultural Software Writings Opeds The Information Society Project BrownvBoard. after the great victory over the regular army of Napoleon III . and the White House evidently buying into. This simple truth has gradually come to consciousness since World War I. Yoo have access to this text? Maybe. 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.Balkinization http://balkin.html autumn 1870 and the following winter 1870/71.21" p. As Schmitt himself notes. Otherwise the interstate standard. and there is no reason to believe Yoo has been reading Schmitt. The French populace was patriotically aroused and participated in the most various ways in the war against the Germans. that there is anything uniquely Schmittian about the justification for attenuating rules covering irregular combatants. 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. The controversies flashed up again in World War I as the Belgian-German sharpshooter battle. in 1962. Schmitt's recognition of the rights of "partisans" is clear. Did both within their own states and [41] between them. French dignitaries and so-called notables were taken hostage. 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. legality and illegality. instead of furthering peace. Why was Jay Bybee putting his name to. Most of the works are in the major collection published by the University of Chicago Press. or even if he has. that is. states have an interest in utilizing the so-called classical concepts. European jurists of international law have put stubbornly out of mind the picture of a new reality. 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. there are whole libraries discussing this Useful Links Syllabi and Exams I see a forest/trees problem here. are the best sources of the foundation of Yoo's beliefs. when their domestic as well as their interstate concepts of regularity and irregularity. were all the more effectively confirmed by the restoration work of the Congress of Vienna. I guess. # posted by csdorotoc : 3:17 PM (Oxford University Press 2004) Balkin. # posted by Diogenes : 4:30 PM I think the law review articles of Jack Goldsmith (fmrly U of C. Balkin's imputations are at best poorly sourced. But the façade of the traditional [überkommenen] conceptual inventory remains strong on the level of ideology. 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. GOP-friendly.blogspot. the so-called Belgian Sharpshooter Battle of 1914. 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. # posted by cyber joe : 4:39 PM Thomas moreso than Scalia. In response.

Does that make him a socialist? Again. however. and the more modest influence of Strauss on was discovery of that letter that led to the loss of his leadership position. and b) stupid. Strauss's interest in Schmitt. that Strauss was afraid that democracy would fail for some of the reasons advanced by Schmitt (& N. and two notes to other posters: 1) Soctt Horton is NOT Jack Balkin. totally irrelevant to 2005 America. I have cited the Schmitt materials to the German texts." There is a German book of that title. but it was not published in 1933. more inaccuracies and unfounded insinuations. though BOTH are always interesting writers on the law. # posted by csdorotoc : 6:46 AM csdorotoc. just say so. He was a card-carrying Nazi. I discussed this very point with Jane Mayer after reading her piece . but rather his political philosophy which comes into play here. it is a collection of essays with the subtitle "works from 1924-1978". 2) Does it really matter if Yoo studied the guy directly or not? The point is that the policies are fascist lunacy. not the ones Balkin cites. And make that 3): The idea that you have to be a beast to fight one is a) beastly. instead of totally baseless insinuation. These are really basic errors. and he played a critical role in the Gleichschaltung.I do not claim to be the first on this point. and the Schmitt/Strauss connection is totally bogus. 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 .it shows how crude Yoo's views are compared with Schmitt.' I do not mean to suggest here that I believe that Carl Schmitt would adopt the positions taken by John Yoo.blogspot. Both Norton and Drury also note the striking similarity between Neoconservative arguments about international humanitarian law and Schmitt's writings . 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. for that matter). Schmitt was far too serious a legal scholar for that. Finally. He is therefore a complex figure. Until there is actually a demonstrated connection. but working for the general good of the 8 of 12 2/10/2011 5:54 PM . for which thanks.html Well. I agree with Schmitt's critics that it's too simplistic simply to dismiss him as a Nazi.largely in the collection 'Peace and Pacifism. the fact that they were friendly in Weimar germany is. is well-documented. It is not Schmitt's legal writing. As for tarring Strauss with the Schmitt brush. # posted by Charles Gittings : 7:07 PM There are a number of very useful comments here. and. to be fair. 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. His positions on international humanitarian law are far too nuanced. however. If being a beast worked better than being an intelligent human being. and certainly more than a trace element of fascism.each of which show the quite profound influence of Schmitt on Strauss. In fact. Shouldn't there be some tiny shred of a basis in fact for such a charge? # posted by csdorotoc : 6:02 PM Why would anyone want to live in a society that would tolerate the inhumane treatment of individuals? # posted by Don M : 6:03 PM Terrific article Scott. Straussians have no interest in Schmitt. if you don't know anything about Strauss. this is just a smear of Yoo (associating him with a Nazi). because that is what I have.Balkinization http://balkin. # posted by Scott Horton : 10:18 PM I did a google and amazon search and there is no book called "Peace and Pacifism. I think it's entirely fair to say. as one commentator notes. the texts are all available in English . like his interest in Nietzsche. Strauss was also close with the socialist economic historian Tawney. he wrote very persuasively about the role of partisans and the legal regime under which they were to be treated. blending continental Catholic conservatism. no they're not published. but he had strong reservations about Fascism and actually advised the Reichspraesident to outlaw the Communists and Nazis . That doesn't make Strauss a follower or admirer of Schmitt. the social thinking of Max Weber. saber-tooth tigers would rule the earth and we wouldn't need self-deluded fools to make up excuses to act like a beast.

Schmitt's hatred of America is the same hatred in Europe today. the Licoln analogy is quite right. Scholars who decry the use of torture against terrorists remind me of the British general (at least. And really. then one clearly is not bound by normal rules of war. I imagine. If only we had a Congress. as the arbiters of international law. who can respect the Kellog-Briand pact (except the Nobels?). but then. but when that starts to get in the way of survival. 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. 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. or modern Mixed Martial Arts Rules -. suggests the continuing strength of Yoo's influence.cruel basketcases for decades -. Second. and do. was silly indeed. civilized rules of war only work where both parties agree ab initio to follow them. so our rep. 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. or a minority party. "That's not cricket" he might have muttered. and there are clear propaganda drawbacks. To paraphrase Henry Clay: I would rather be live than reticent. 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. Haven't read any Schmitt or Yoo. It's one thing if you're in a boxing ring with Marquis of Queensbury Rules." That said. cowardly. I have no brief for torture or other activities that come close to it. is one that needs to be debated expressly. Same result.into honest-to-goodness democracies. 9 of 12 2/10/2011 5:54 PM . The notion that the rule of law actually imperils America. # posted by Anderson : 5:18 PM First. there are lots of problems with every political theory. makes no distinction between soldiers and civilians and themselves only take prisoners in order to torture and murder them. # posted by Jonathan : 3:46 PM Anyone still here? The NYRB has a review of John Yoo's new book (no sub required). you may not ever get up.html (apparent) democracy. You do what you need to do in order to survive the encounter. # posted by Anderson : 9:40 AM Great posts. When the rule of law is seen simply as a device used by terrorists. insufferable to behold. Let's "change the facts" as we used to say in law school: How about if we're up against an alien beast.they only got that way in the ensuing KKK insurgency. Gitting. it's time to rethink the game plan for the second half.Balkinization http://balkin. Except the Confederates weren't so unscrupulous during the war -. like in the movie ALIEN. "How beastly" his colleague on the general staff might have added. Here we have defeated two hideous regimes in 4 years and have lost serious blood and treasure turning both countries I'm not an intelligence pro. War is not cricket. 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." (and) "[I]t is silly to imagine that we can fight this war bound by conventions to which our enemies do not subscribe. The final paragraph brings up the Schimittian aspect. That faux-law-based-pacifism was brain-dead. 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. There are lots of problems with that view. can "tap out" and your civilized opponent will let you up off the mat rather than choking you to death. something has gone perilously wrong. And now that same hatred finds it expedient to hyperbolically exaggerate our sins in carrying out this liberalization in order to demonize us. Gitting? I also keep thinking of this question in terms of the macro following the micro. 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. akin to terrorism. and. let me respond to Mr. Mr. note that we entirely skipped the League of Nations. that could and would do so. to the extent we had one. I doubt there is one. I don't see what the benefit is. and must therefore be dispensed with. It's noble of you when you can afford to follow the Geneva Conventions. By extension.

Conn. c1986 Political theology : four chapters on the concept of sovereignty / Carl Schmitt . Meanwhile we get excoriated for every deviation. foreword by Tracy B. no matter how small. translated by George Schwab Cambridge. If the RBA concludes that. I don't see what the benefit is. Our enemies behead us when they capture us. Nicholas Berdyaev [and] Michael De La Bedoyère New York. (We gave you a Koran. translated by Ellen Kennedy Cambridge. introduction. Great.blogspot. translated by J. with an introduction by John P. and notes by George Schwab .L. Mass. c1985 Vital realities.. : MIT Press. Just a minor point here. Conn. foreword and introduction by George Schwab . The Macmillan dropped my Koran! How dare you claim to be a moral actor!) Further. with Leo Strauss's notes on Schmitt's essay . c1985 Legality and legitimacy / Carl Schmitt . God damn you -. 1932 # posted by Thaxter : 3:14 PM Some works by Schmitt in English that can be readily obtained include: The concept of the political / Carl Schmitt . enjoy. translated by George Schwab and Erna Hilfstein Westport..L. translated and edited by Jeffrey Seitzer .Balkinization http://balkin. we don't go into this sort of proposition blind. I doubt there is one.html But I do see that so far in this war. : MIT Press. : MIT Press. translated by Guy Oakes Cambridge. Strong Chicago : University of Chicago Press. : Greenwood Press. translation. translated by George Schwab Cambridge. 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. Mass. translated by George Schwab and Erna Hilfstein Westport. : Greenwood Press. McCormick Durham : Duke University Press. the Geneva Conventions have been little use to us. But not until . Mass. : MIT Press. Mass. # posted by Jonathan : 6:06 AM Some of the translated works by Carl Schmitt that can be easily obtained include: The concept of the political / Carl Schmitt . translated and annotated by G. 2004 The Leviathan in the state theory of Thomas Hobbes : meaning and failure of a political symbol / Carl Schmitt . on balance. foreword and introduction by George Schwab . c1985 10 of 12 2/10/2011 5:54 PM . Strong Chicago : University of Chicago Press. In other words. other international law is not. 2004 The Leviathan in the state theory of Thomas Hobbes : meaning and failure of a political symbol / Carl Schmitt . It has no basis in democratic decisionmaking. and notes by George Schwab . without ratification as a treaty. 1996 The crisis of parliamentary democracy / Carl Schmitt . 1996 The nomos of the earth in the international law of the Jus Publicum Europaeum / Carl Schmitt . with Leo Strauss's notes on Schmitt's essay . while a treaty is legitimately binding on us (Geneva Conventions). Mass. or if it doesn't. 2003 Political romanticism / Carl Schmitt . is anathema. Harvey Lomax . translated and edited by Jeffrey Seitzer . That understanding is consistent with our Founders' belief in the creation of law by the people to secure their freedoms. 1996 The nomos of the earth in the international law of the Jus Publicum Europaeum / Carl Schmitt . c1985 Legality and legitimacy / Carl Schmitt . Ulmen Telos Press. A theory of law that obliges an individual or a nation based on conferences of unelected foreign elites. # posted by Robert : 5:06 PM Last commenter wrote: I have no brief for torture or other activities that come close to it. by Carl Schmitt. 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. you're welcome. c1986 Political theology : four chapters on the concept of sovereignty / Carl Schmitt .com/2005/11/return-of-carl-schmitt. translated and annotated by G. McCormick Durham : Duke University Press. : MIT Press. translated by Guy Oakes Cambridge. translated by Ellen Kennedy Cambridge. introduction. Harvey Lomax . and there are clear propaganda drawbacks. Mass. 1996 The crisis of parliamentary democracy / Carl Schmitt . 2003 Political romanticism / Carl Schmitt . translation. with an introduction by John P. Ulmen Telos Press. : MIT Press. translated by J. then abandon it. foreword by Tracy B. it's not worth the risk. I'm not an intelligence pro. and it is a dangerous threat to our sovereignty.

that Schmitt's works are simply nonexistent in english (which of course is not true.Scott tells us about the letter that Schmitt wrote to 'the Reichspraesident to outlaw the Communists and Nazis .(among the Nazis) It has been new to me and I wonder. I hope that slowly.very well done! Yoo. you don't have to be a beast to fight a saber toothed tiger. in fact.html Vital realities. A scheme supported by a certifying foundation with a simple system of audits. And can you imagine that there'd be an unethical neoconservative? That just blows me away.blogspot. however.. or a terrorist state. # posted by Nate Glenn : 10:23 AM True democracy lies in what we vote on.. have to act like a beast in order to fight a beast. and anyone who says otherwise is just self deluded. Currently there is no easy way to tell whether products in our shops come from an economy that supports a brutal dictatorship. Gordon Kennedy Dagenham UK # posted by Gordon Kennedy : 5:05 AM Blogs are so informative where we get lots of information on any topic. 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. # posted by Al : 1:40 AM God help us. I propose a scheme where consumers can make an informed choice about NOT supporting the economy of governments which suppress civil liberties. I have faith that this idea is worth discussion. I was much more disturbed. This person apparently graduated from law school!!! Intelligence and humanity always wins in the end. but what about an 'alien'. from that movie 'alien'?".Balkinization http://balkin. e. 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. Nicholas Berdyaev [and] Michael De La Bedoyère New York. I propose a FREE COUNTRY mark applied to imports into the EEC. it SHOULD! There is no excuse for torture and murder of prisoners. Perhaps we even would need not to sorrow about the Holocaust? # posted by marta rodes : 9:14 AM Incredible . and the way to univeral democracy is by letting the consumer see what they are really buying. But where are the limits of those prejudices? Where is the boundary between political enemy and science? To many the one who makes science. why others do not wonder. The marketplace is our ballot box. in the same way that Fair-trade pushed supply chains to reconsider their operations. and the articles of Human Rights used as a simple standard without influence from politicians or corporations. it doesn't matter what kind of beast you are fighting. which history would we have today if the Reichspraesident had listen to Schmitt´s advice. and even if it was. by Carl Schmitt. this scheme will coerce vicious regimes to consider their actions. no excuse. so what? his ideas are well known) or actually defended the position of Schmitt and claim that you do. and thus concerns about the well being of workers affected by sharp changes in the market will be diminished. and most of them probably don't even realize that they are was discovery of that letter that led to the loss of his leadership position'. 1932 # posted by Thaxter : 3:15 PM Usually prejudices can work against the understanding of science and history. simply amazing. every day. that we have so many fascists in america. Nice job keep it up!! 11 of 12 2/10/2011 5:54 PM . I think the beauty of this idea is that it will take a long time to develop. and if it doesn't. shall work hard cosntantly to free herself of (inevitable) prejudices. I think the most ridiculous is the post that states "sure. if only to protect their profit margins.. The Macmillan company. The geneva convention applies to everyone.g. Amazing. I was disturbed but not surprised by what I read here.

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