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Monday, November 07, 2005

Front page Books by Balkinization
Balkin.com Bloggers
The Return of Carl Schmitt
Balkinization
an unanticipated Scott Horton
consequence of
Jack M. Balkin "Woe unto him who has no enemy, for at the Last Judgment I shall be his
enemy."
- Carl Schmitt, Ex Captivitate Salus (1950)
E-mail:
Jack Balkin:
jackbalkin at A recent study points to 108 deaths in detention in the War on Terror, with a
yahoo.com substantial part clearly linked to the Bush Administration’s controversial new
Bruce Ackerman coercive interrogation practices. Some of the most egregious cases involve the
bruce.ackerman at CIA. In this week’s New Yorker, Jane Mayer takes a close look at one case –
yale.edu that of Manadel al-Jamadi. Approximately two years ago, Jamadi died at the
Ian Ayres
infamous Abu Ghraib prison near Baghdad. His death was quickly ruled a
ian.ayres at yale.edu
Mary Dudziak homicide, a CIA investigation found clear indicia of criminal wrongdoing, and
mdudziak at with that the matter was placed in the hands of Paul McNulty – the U.S.
law.usc.edu Attorney for the Eastern District of Virginia and now the Bush Administration’s
Heather Gerken new nominee to serve as Deputy Attorney General. Since that time, from all Bernard Harcourt, The
heather.gerken at
appearances nothing has been done – the file has languished “in a Justice Illusion of Free Markets:
yale.edu
Mark Graber Department drawer,” in the words of one of Mayer’s informants. Punishment and the Myth of
Natural Order (Harvard
mgraber at
University Press, 2010)
law.umaryland.edu Mayer, whose earlier writings have greatly contributed to the public
Stephen Griffin understanding of the detainee abuse scandal, astutely recognizes the
sgriffin at tulane.edu wide-ranging significance of the case. Justice in a homicide case is important
Bernard Harcourt
enough, but this case raises another and potentially far more troublesome
harcourt at
uchicago.edu question: Has the Department of Justice been corrupted by its “torture
Scott Horton memoranda”? Would a prosecution expose indelible links between the crime
shorto at and the highest echelons of the Department of Justice? The question is not
law.columbia.edu far-fetched. Indeed, its potential to rock the Bush Administration dwarfs that of
Andrew Koppelman
the Plamegate scandal. As Marty Lederman established in a lengthy series of
akoppelman at
law.northwestern.edu posts, the “torture memoranda” served a concrete double function: they
Marty Lederman overcame Agency objections that certain interrogation techniques violated the
marty.lederman at law (by furnishing an Attorney General opinion that they were lawful), and
comcast.net they offered effective impunity to CIA agents who uses these techniques. I
Sanford Levinson caution that this is the function they were intended to serve. Whether
slevinson at
memoranda of the Office of Legal Counsel can actually shield those who rely on
law.utexas.edu Bruce Ackerman, The
David Luban them from prosecution is doubtful. Decline and Fall of the
david.luban at American Republic (Harvard
gmail.com Let us assume that the techniques employed on Jamadi – including the likely University Press, 2010)
Gerard Magliocca fatal “Palestinian hanging” approach – were within the scope of the torture
gmaglioc at iupui.edu Balkinization Symposium on
memoranda. Were charges to be brought against the agent who had custody of
Jason Mazzone The Decline and Fall of the
jason.mazzone at Jamadi and used the fatal technique, he would certainly plead the torture
American Republic
brooklaw.edu memoranda as an affirmative defense. Confronted with such claims, a truly
Linda McClain independent prosecutor would have to consider the possibility that the authors
lmcclain at bu.edu of these memoranda counseled the use of lethal and unlawful techniques, and
Frank Pasquale therefore face criminal culpability themselves. That, after all, is the teaching of
pasquale.frank at
United States v. Altstötter, the Nuremberg case brought against German
gmail.com
Nate Persily Justice Department lawyers whose memoranda crafted the basis for
npersily at gmail.com implementation of the infamous “Night and Fog Decree.” Who can imagine Paul
Michael Stokes McNulty, now nominated to serve as Alberto Gonzales’ deputy, undertaking
Paulsen such an investigation of his boss? Hence, McNulty’s dilemma is understandable,
michaelstokespaulsen
but his failure to act should not be lightly dismissed.
at gmail.com
Deborah Pearlstein
dpearlst at Mayer’s article raises fair and compelling questions about McNulty’s handling of
princeton.edu the Jamadi homicide case – and about the role of the Department of Justice in
Rick Pildes the investigation of detainee homicides generally.
rick.pildes at nyu.edu
Alice Ristroph
But Mayer’s article is significant for another reason. It sheds new light on one
alice.ristroph at
shu.edu of two of the “torture memoranda” which is not yet in the public domain, but
Ian Ayres. Carrots and
Brian Tamanaha has long been viewed as critical to understanding the inhumane practices that
Sticks: Unlock the Power of
btamanaha at became commonplace in Iraq beginning in the fall of 2003. Incentives to Get Things
wulaw.wustl.edu Done (Bantam Books, 2010)
Mark Tushnet
mtushnet at
law.harvard.edu

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A March [14], 2003, classified memo was “breathtaking,” the same

The Anti-Torture
Memos: Balkinization
Posts on Torture,
Interrogation,
Detention, War
Powers, and OLC
The Anti-Torture
Memos (arranged by
topic)
Recent Posts
The Return of Carl
Schmitt
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 Mark Tushnet, Why the
Counsel, but written by a Justice Department lawyer, John Yoo, Constitution Matters (Yale
University Press 2010)
who is now a professor of law at Berkeley.

Just A Few Blogs

ACS Weblog As has been noted in this space before, the March 14, 2003 Yoo memorandum
The Agonist has assumed a “Rosetta Stone” quality. It was transmitted to the Department
Roger Ailes of Defense as advice at a critical juncture – as the Iraq War moved off the
Alas, a Blog drawing boards and into reality, and questions were repeatedly raised about
Eric Alterman
how the Geneva Conventions were to be applied. But that's not all. Mayer's
Althouse
Marc Ambinder article now suggests the existence of other advice which explicitly addressed
Arts and Letters Daily the situation in Iraq:
Atrios (Eschaton)
Bad Attitudes
Bag and Baggage By the summer of 2003, the insurgency against the U.S.
Ted Barlow occupation of Iraq had grown into a confounding and lethal
Becker-Posner Blog
insurrection, and the Pentagon and the White House were pressing
Michael Bérubé
Blackprof.com C.I.A. agents and members of the Special Forces to get the kind of
The Blotter intelligence needed to crush it. On orders from Secretary of Ian Ayres and Barry
Body and Soul Defense Donald Rumsfeld, General Geoffrey Miller, who had Nalebuff: Lifecycle
The Buck Stops Here Investing: A New, Safe, and
overseen coercive interrogations of terrorist suspects at
Buzzflash.com Audacious Way to Improve
Guantánamo, imposed similar methods at Abu Ghraib. In October the Performance of Your
Buzz Machine
Cairns (Beth Noveck)
of that year, however—a month before Jamadi’s death—the Justice Retirement Portfolio (Basic
Capitol Hill Blue Department’s Office of Legal Counsel issued an opinion stating that Books, 2010)
Cato at Liberty Iraqi insurgents were covered by the Geneva Conventions, which
Anupam Chander require the humane treatment of prisoners and forbid coercive
Cobb, the Blog interrogations. The ruling reversed an earlier interpretation, which
Juan Cole (Informed
had concluded, erroneously, that Iraqi insurgents were not
Comment)
Concurring Opinions protected by international law.
Connected Selves
The Constitution in
2020
Cooped Up (Jeff Documents which have circulated in connection with the Fay/Jones and Taguba
Cooper) Reports made clear that following the issuance of high-level legal advice
Copyfight
outside normal Department of Defense channels, command authorities in Iraq
Corante
Corrente no longer considered the Geneva Conventions to restrain them in their
Susan Crawford blog handling of detainees. Internal email traffic among military intelligence units is
Crescat Sententia consistent: Once you label the insurgent detainees as “terrorists,” “they have
Crooked Timber no rights, Geneva or otherwise.” It seems highly improbable that officers
Cursor.org
carefully trained in the Geneva rules would suddenly discard them on their own
Daily Howler
Daily Kos initiative. To the contrary, it is reasonably clear that instructions to that effect Jack M. Balkin, The Laws of
Brad DeLong were transmitted from a very high source. The Yoo memoranda are critical to Change: I Ching and the
Demosthenes understanding what happened, and the March 14, 2003 combined with the Philosophy of Life (2d
Digby (Hullabaloo) initial OLC advice concerning treatment of insurgents in Iraq are likely the Edition, Sybil Creek Press
Discriminations most significant pieces of the puzzle not yet in place. 2009)
Dispatches from the
Culture Wars
Donkey Rising But where exactly did Yoo come up with the analysis that led to the purported
(Emerging conclusions that the Executive was not restrained by the Geneva Conventions
Democratic Majority) and similar international instruments in its conduct of the war in Iraq? Yoo’s
Ross Douthat public arguments and statements suggest the strong influence of one thinker:
Daniel Drezner
Carl Schmitt.
Kevin Drum (Mother
Jones)
Tim Dunlop (The The Friend/Foe Paradigm
Road to Surfdom) Perhaps the most significant German international law scholar of the era
Electrolite between the wars, Schmitt was obsessed with what he viewed as the inherent
En Banc weakness of liberal democracy. He considered liberalism, particularly as
Ernie the Attorney
manifested in the Weimar Constitution, to be inadequate to the task of
Eunomia (Daniel
Larison) protecting state and society menaced by the great evil of Communism. This led
Fafblog him to ridicule international humanitarian law in a tone and with words almost
Feminist Law identical to those recently employed by Yoo and several of his colleagues.
Professors

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Michael Froomkin
(Discourse.net) Beyond this, Yoo’s prescription for solving the “dilemma” is also taken straight Brian Z. Tamanaha, Beyond
Glenn Greenwald the Formalist-Realist
from the Schmittian playbook. According to Schmitt, the norms of international
GlennReynolds.com Divide: The Role of Politics
The Hamster law respecting armed conflict reflect the romantic illusions of an age of in Judging (Princeton
Rick Hasen (Election chivalry. They are “unrealistic” as applied to modern ideological warfare University Press 2009)
Law) against an enemy not constrained by notions of a nation-state, adopting
History News terrorist methods and fighting with irregular formations that hardly equate to
Network
traditional armies. (Schmitt is, of course, concerned with the Soviet Union
How Appealing
Ignatz (Sam here; he appears prepared to accept that the Geneva and Hague rules would
Heldman) apply on the Western Front in dealing with countries such as Britain and the
The Importance of United States). For Schmitt, the key to successful prosecution of warfare
(Ernie Miller) against such a foe is demonization. The enemy must be seen as absolute. He
Infolaw must be stripped of all legal rights, of whatever nature. The Executive must be
Instapundit
Intel Dump (Phil
free to use whatever tools he can find to fight and vanquish this foe. And
Carter) conversely, the power to prosecute the war must be vested without reservation
International in the Executive – in the words of Reich Ministerial Director Franz
Economic Law and Schlegelberger (eerily echoed in a brief submission by Bush Administration
Policy Blog Solicitor General Paul D. Clement), “in time of war, the Executive is constituted
Jacob Levy
the sole leader, sole legislator, sole judge.” (I take the liberty of substituting
Jesus' General
Jurisdynamics Yoo’s word, Executive; for Schmitt or Schlegelberger, the word would, of
Kausfiles course, have been Führer). In Schmitt’s classic formulation: “a total war calls
Orin Kerr for a total enemy.” This is not to say that in Schmitt’s view the enemy was
Andrew Koppelman and
Kicking Ass somehow “morally evil or aesthetically unpleasing;” it sufficed that he was “the Tobias Barrington Wolff, A
The Kitchen Cabinet other, the outsider, something different and alien.” These thoughts are Right to Discriminate?: How
Mark Kleiman
developed throughout Schmitt’s work, but particularly in Der Begriff des the Case of Boy Scouts of
Law of War (Kenneth
Politischen (1927), Frieden oder Pazifismus (1933) and Totaler Feind, totaler America v. James Dale
Anderson)
Krieg, totaler Staat (1937). Warped the Law of Free
Law Blog Central
Association (Yale University
Law Blog Central
Press 2009)
Orbiter A Practical Guide to Evasion of the Geneva Conventions
LawCulture
Given this philosophical predisposition, how was a lawyer then to evade the
Lawmeme
Left2Right application of the Geneva and Hague Conventions? Here an answer can be
Legal Fiction drawn not from Schmitt’s academic works, but from a series of determinations
The Lefty Directory by the German General Staff which quite transparently reflected the influence
Larry Lessig of the then-Prussian State Councilor Carl Schmitt. A careful review of the
Lawyers, Guns and original materials shows that the following rationales were advanced for
Money
Liberal Oasis
decisions not to apply or to restrict the application of the Geneva Conventions
Brian Leiter's Law of 1929 and the Hague Convention of 1907 during the Second World War:
School Reports
The Leiter Reports
Many to Many (Clay
Shirky)
Marginal Revolution (1) Particularly on the Eastern Front, the conflict was a
Maxspeak
Megan McArdle
nonconventional sort of warfare being waged against a “barbaric”
Memeorandum enemy which engaged in “terrorist” practices, and which itself did
Metafilter not observe the law of armed conflict.
Jack M. Balkin and Reva B.
Mirror of Justice (2) Individual combatants who engaged in “terrorist” practices, or
Siegel, The Constitution in
Chris Mooney (The who fought in military formations engaged in such practices, were 2020 (Oxford University
Intersection)
not entitled to protections under international humanitarian law, Press 2009)
MyDD
Newseum and the adjudicatory provisions of the Geneva Conventions could
The News Dissector therefore be avoided together with the substantive protections.
(Mediachannel.org) (3) The Geneva and Hague Conventions were “obsolete” and
No More Mister Nice ill-suited to the sort of ideologically driven warfare in which the
Blog Nazis were engaged on the Eastern Front, though they might have
Brendan Nyhan
Open University (The
limited application with respect to the Western Allies.
New Republic) (4) Application of the Geneva Conventions was not in the
Opening Argument enlightened self-interest of Germany because its enemies would
Opinio Juris not reciprocate such conduct by treating German prisoners in a
Orcinus humane fashion.
The Originalism Blog
(5) Construction of international law should be driven in the first
Jack O'Toole
Our Congress instance by a clear understanding of the national interest as
Pandagon determined by the executive. To this end niggling, hypertechnical
Passport (Foreign interpretations of the Conventions that disregarded the plain text,
Policy) international practice and even Germany’s prior practice in order to
The Plank (The New justify their nonapplication were entirely appropriate.
Republic)
Overcoming Bias
(6) In any event, the rules of international law were subordinated Heather K. Gerken, The
Political Animal to the military interests of the German state and to the law as Democracy Index: Why Our
(Washington determined and stated by the German Führer. Election System Is Failing
Monthly) and How to Fix It (Princeton
Political Theory Daily University Press 2009)
Review The similarity between these rationalizations and those offered by John Yoo in
Political Wire (Taegan his hitherto published Justice Department memoranda and books and articles is
Goddard)
The Poor Man
staggering. It is of course possible that John Yoo came upon all of this on his
Virginia Postrel own, like a scholar laboring in some parallel universe unaware of the work of
Prawfsblawg others. Possible. But not probable.
Public Reason
Jonathan Rauch It is more likely that Yoo’s work is a faithful, through crude and occasionally

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Raw Story flawed interpretation of Schmitt. I say "crude" principally because Schmitt
Redstate expresses from the outset the severest moral reservations about his concept of
ReligiousLeftLaw.com
"demonization." It is, he fears, subject to "high political manipulation" which
Reporters Committee
For Freedom of the "must at all costs be avoided." The use of this technique, he writes, may only
Press be available when "the survival of the people is at stake." Der Begriff des
Reproductive Rights Politischen, pp. 20-33. Yoo expresses no comparable hesitation, preferring
Blog simply to place all confidence in the Executive, and justifying this implausibly
The Rittenhouse
in the writings of the Founding Fathers.
Review
SCOTUS Blog
SCT Nomination blog But Yoo's conclusions are rendered even more inexplicable by another point.
Seeing the Forest After World War II was over and the full horror of what the Axis Powers had
Clay Shirky done was apparent, a consensus was reached to overhaul the Geneva
The Shifted Librarian Conventions with the express intention of repudiating the German evasions of
The Situationist
Larry Solum (Legal
the Conventions listed above. So, while these positions may have been
Theory) arguable with respect to the two 1929 Geneva Conventions, they hardly could
Andrew Sullivan be invoked with respect to the 1949 Conventions. But Yoo continues to cite Mary Dudziak, Exporting
American Dreams:
Tacitus them, oblivious to the shifts in text and commentary that occurred in 1949.
Talking Points Memo Thurgood Marshall's African
TPM Cafe Journey (Oxford University
So how does Yoo come by the work of Carl Schmitt, and why does he fail to Press 2008)
TPMmuckraker.com
Talk Left acknowledge it in his publications? Yoo is currently a scholar in residence at
Tapped the American Enterprise Institute, the center stage of the American
Tbogg Neoconservative movement. That movement traces itself back to Leo Strauss,
Tech Central Station the political philosopher who lived and taught for many years in Chicago.
TechPresident Though a Jew forced to flee Nazi Germany, Strauss was a lifelong admirer of
The Paper Chase
Carl Schmitt, a scholar and teacher of his works. Moreover, Strauss’ early work
(Jurist)
Tom Paine in Germany played a key role in development of the Begriff des Politischen, and
Tom Tomorrow (This Schmitt’s intercession helped Strauss obtain a key scholarship that made his
Modern World) escape from Germany possible. Though arrested by the Americans and accused
The Truth Laid Bear of complicity in Nazi crimes, Schmitt achieved a partial rehabilitation late in his
Eve Tushnet
life - thanks in large part to Leo Strauss. Indeed, Schmitt emerged as an
Uggabugga
University of Chicago essential part of the Neocon canon, and his work – including all the relatively
Law School Faculty obscure works cited here – were translated into English and published by the
Blog University of Chicago Press (also Yoo’s publisher). It is therefore hardly
Unqualified Offerings plausible to suggest that Yoo would be unfamiliar with the writings of Carl
The Volokh Schmitt. On the other hand, it is easy to surmise why he would fail to
Conspiracy
War and Piece (Laura
acknowledge his reliance on such a highly stigmatized writer. After all, Schmitt David Luban, Legal Ethics
Rozen) was a notorious antisemite best known for crafting the legal cover for Hitler's and Human Dignity
Wampum Machtergreifung. (Cambridge Univ. Press
Whiskey Bar 2007)
(Billmon) Why Carl Schmitt Hates America
Oliver Willis
Carl Schmitt was a rational man, but he was marked by a hatred of America
Wonkette
Matthew Yglesias that bordered on the irrational. He viewed American articulations of
(Think Progress) international law as fraught with hypocrisy, and saw in American practice in
Yin 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
Your Choice of Feeds a time of almost unprecedented American isolationism)(Die USA und die
1. XML powered by völkerrechtlichen Formen des modernen Imperialismus, p. 365). He saw in the
2RSS com peculiarly American notion of consensus-democracy an unsustainable
foolishness, and in the Jeffersonian vision of small government with a
2. Atom Feed maximum space for individual freedom a threat to his peculiar Catholic values.

3. 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, Ian Ayres, Super Crunchers:
Why Thinking-By-Numbers
Abraham Lincoln and Dwight Eisenhower – values on which the country was
is the New Way to be Smart
founded and built – and embraced instead those of Carl Schmitt, the lawyer (Bantam 2007)
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.

Posted 9:13 PM by Scott Horton [link]

Jack M. Balkin, James

Grimmelmann, Eddan Katz,

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Comments: Nimrod Kozlovski, Shlomit

Wagman and Tal Zarsky,
eds., Cybercrime: Digital
The Geneva Conventions only apply to soldiers that fight "honorably" -- i.e., with Cops in a Networked
uniforms on. The point of the Conventions is to protect civilians and to introduce a Environment (N.Y.U. Press
mutually beneficial compact between warring parties for humane treatment of each 2007)
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.
# posted by Sam : 11:33 PM

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. Jack M. Balkin and Beth
Simone Noveck, The State
# posted by Diogenes : 1:45 AM of Play: Law, Games, and
Virtual Worlds (N.Y.U. Press
2006)

"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.
# posted by Joe Shmo : 3:10 AM

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 Andrew Koppelman, Same
criminally responsible for what came after his memoranda. I don’t believe this (starting Sex, Different States: When
a criminal investigation against Yoo) will ever happen in the U.S., since what’s behind the Same-Sex Marriages Cross
entire thing is the ultimate taboo: holding public officers accountable for illegally starting State Lines (Yale University
a war. However, I think it would be “hygienic” that other law professors, even Press 2006)
U.S.-based, gave this hypothesis some serious thought and, if the outcome is clear
enough, issue some kind of joint statement.
# posted by randomopinion : 4:58 AM

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 ...
# posted by Jack Keefe : 8:02 AM

Brian Tamanaha, Law as a

Scott, there are other ties between Strauss and Schmitt and Yoo. I have it on good Means to an End
authority that Yoo has, from time to time, actually gone to Chicago. There are rumors of (Cambridge University Press
a trip to Germany during his undergraduate days, but those are, as of now, still 2006)
unconfirmed. But the implications are clear enough.

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

# posted by Thomas : 9:11 AM

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.

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So much for taking the high road.

Of course, as others have mentioned, his answer is an incorrect interpretation of the law.
# posted by Will : 10:38 AM

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
Sanford Levinson, Our
instance, the first "guerilla" war, and the fact that even in such a brutal war the
Undemocratic Constitution
Napoleonic army followed the laws protecting prisoners of war.
(Oxford University Press
# posted by csdorotoc : 1:58 PM 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.

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. Mark Graber, Dred Scott and
the Problem of
When you do face total war against a total enemy who wears no uniform, makes no Constitutional Evil
distinction between soldiers and civilians and themselves only take prisoners in order to (Cambridge University Press
torture and murder them, then one clearly is not bound by normal rules of war. 2006)

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.
# posted by Leviathan : 2:59 PM

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:
Jack M. Balkin, ed., What
" The legal position [of the partisan] is summarized in Roe v. Wade Should Have
the Hague Ground War Provision of 18 October 1907, which is now universally Said (N.Y.U. Press 2005)
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:
Sanford Levinson, ed.,
Torture: A Collection
"The German soldier got acquainted with the sharpshooter in France in

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autumn 1870 and the following winter 1870/71, after the great victory over (Oxford University Press
the regular army of Napoleon III . . . The position [Lage] of the German armies was 2004)
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 Balkin.com homepage
against the Germans. In response, French dignitaries and so-called notables Bibliography
were taken hostage, sharpshooters whom they caught red-handed Conlaw.net
were shot, and reprisals of every kind were imposed on the populace. Such was the Cultural Software
starting point for half a century of contention among jurists of Writings
international law and public propaganda on both sides for and against the Opeds
sharpshooter. The controversies flashed up again in World War I as the The Information Society
Belgian-German sharpshooter battle. Whole libraries were written on this Project
question, and as recently as 1958/60 a committee of reputable German and BrownvBoard.com
Belgian historians has tried to clarify and cleanse at least one point of contention Useful Links
from this complex, the so-called Belgian Sharpshooter Battle of Syllabi and Exams
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.
# posted by csdorotoc : 3:17 PM

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?

# 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. 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.
# posted by Diogenes : 4:30 PM

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.
# posted by cyber joe : 4:39 PM

Thomas moreso than Scalia, Cyber Joe--no?

# posted by Anderson : 5:04 PM

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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?
# 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, 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.
# posted by Charles Gittings : 7:07 PM

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.
# posted by Scott Horton : 10:18 PM

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.
# posted by csdorotoc : 6:46 AM

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

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(apparent) democracy.

There are lots of problems with that view, but then, there are lots of problems with
every political theory.
# posted by Anderson : 9:40 AM

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.

# posted by Jonathan : 3:46 PM

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.
# posted by Anderson : 5:18 PM

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.

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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.
# posted by Robert : 5:06 PM

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 ...
# 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 ; 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
# 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 ; 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

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Vital realities, by Carl Schmitt, Nicholas Berdyaev [and] Michael De La Bedoyère New
York, The Macmillan company, 1932
# posted by Thaxter : 3:15 PM

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?
# posted by marta rodes : 9:14 AM

Incredible - very well done!

Yoo...

And can you imagine that there'd be an unethical neoconservative? That just blows me
away...
# posted by Al : 1:40 AM

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.
# posted by Nate Glenn : 10:23 AM

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.

Gordon Kennedy
Dagenham UK
# posted by Gordon Kennedy : 5:05 AM

Blogs are so informative where we get lots of information on any topic. Nice job keep it
up!!

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