nycflasher
Active Member
Another interesting article from my local Hartford Courant(ctnow.com).
An Echo Of Ugly History
June 18, 2004
Peter Lindseth
The images of prisoner abuse at Abu Ghraib refuse to fade, and President Bush's assurance last week that he instructed interrogators in Iraq "to adhere to law" simply raises more questions than it answers.
Most important, it raises questions of unchecked presidential powers that, unfortunately, recall an ugly period in world history.
Bush's vague assurance came in response to news reports about a Defense Department memorandum from March 2003 asserting that the commander in chief is not legally bound by anti-torture legislation passed by Congress. We have since learned that this document simply adopts the conclusions of legal advisers at the Department of Justice, made in an August 2002 memorandum disclosed over the weekend.
Both documents argue that Congress is constitutionally prohibited from adopting legislation that might interfere with the president's role as commander in chief "in situations of grave and unforeseen emergencies." This concept of unchecked emergency power in the presidency has disturbing echoes in the tragic legal history of the past century.
Carl Schmitt was perhaps the most eminent conservative constitutional theorist in Germany in the 1920s and later the "crown jurist" in the early years of Nazi rule. In the face of the persistent political crises confronting the Weimar Republic throughout the 1920s (civil conflict, hyperinflation, economic depression), Schmitt asserted that the German president possessed broad inherent powers as the "protector of the constitution" that could be exercised without parliamentary control of any kind.
By the early 1930s, Schmitt's arguments had gained deep influence among the conservative and nationalist advisers close to President Hindenburg, who then used his emergency powers to establish authoritarian rule in 1932. This step was decisive in advancing the ultimate breakdown of the constitutional system and the rise of the Nazi regime the following year.
Of course, President Bush is not Hindenburg, and hopefully the legal theorists whose conception of emergency power so permeates the two administration memorandums are not the heirs of Carl Schmitt. Nevertheless, it is difficult to deny the troublingly Schmittian tone of their views.
In effect, legal advisers at both the Justice and Defense departments believe that no law may bind the president as commander in chief so long as there is a state of emergency - which in the case of this war on terror could last indefinitely.
Even before Sept. 11, 2001, the Bush administration's claims regarding executive authority were disturbingly broad. With the invasions of Afghanistan and Iraq, these claims have grown even more expansive. In the war on terror, the administration repeatedly asks us to trust the good faith of executive officials operating under the direction of the president without checks by Congress or the courts.
History shows, however, that an "emergency" should never be used to free executive power from legal constraints entirely. Ours is a government of laws, not men, and for good reason. As Robert Bolt wrote in his play "A Man for All Seasons," sometimes we need to give even the devil the benefit of the law. Why? Because if all the laws are cut down and the devil turns round on us, where would we hide? None of us "could stand upright in the winds that would blow then."
Peter L. Lindseth is an associate professor of law and legal historian at the University of Connecticut School of Law.
An Echo Of Ugly History
June 18, 2004
Peter Lindseth
The images of prisoner abuse at Abu Ghraib refuse to fade, and President Bush's assurance last week that he instructed interrogators in Iraq "to adhere to law" simply raises more questions than it answers.
Most important, it raises questions of unchecked presidential powers that, unfortunately, recall an ugly period in world history.
Bush's vague assurance came in response to news reports about a Defense Department memorandum from March 2003 asserting that the commander in chief is not legally bound by anti-torture legislation passed by Congress. We have since learned that this document simply adopts the conclusions of legal advisers at the Department of Justice, made in an August 2002 memorandum disclosed over the weekend.
Both documents argue that Congress is constitutionally prohibited from adopting legislation that might interfere with the president's role as commander in chief "in situations of grave and unforeseen emergencies." This concept of unchecked emergency power in the presidency has disturbing echoes in the tragic legal history of the past century.
Carl Schmitt was perhaps the most eminent conservative constitutional theorist in Germany in the 1920s and later the "crown jurist" in the early years of Nazi rule. In the face of the persistent political crises confronting the Weimar Republic throughout the 1920s (civil conflict, hyperinflation, economic depression), Schmitt asserted that the German president possessed broad inherent powers as the "protector of the constitution" that could be exercised without parliamentary control of any kind.
By the early 1930s, Schmitt's arguments had gained deep influence among the conservative and nationalist advisers close to President Hindenburg, who then used his emergency powers to establish authoritarian rule in 1932. This step was decisive in advancing the ultimate breakdown of the constitutional system and the rise of the Nazi regime the following year.
Of course, President Bush is not Hindenburg, and hopefully the legal theorists whose conception of emergency power so permeates the two administration memorandums are not the heirs of Carl Schmitt. Nevertheless, it is difficult to deny the troublingly Schmittian tone of their views.
In effect, legal advisers at both the Justice and Defense departments believe that no law may bind the president as commander in chief so long as there is a state of emergency - which in the case of this war on terror could last indefinitely.
Even before Sept. 11, 2001, the Bush administration's claims regarding executive authority were disturbingly broad. With the invasions of Afghanistan and Iraq, these claims have grown even more expansive. In the war on terror, the administration repeatedly asks us to trust the good faith of executive officials operating under the direction of the president without checks by Congress or the courts.
History shows, however, that an "emergency" should never be used to free executive power from legal constraints entirely. Ours is a government of laws, not men, and for good reason. As Robert Bolt wrote in his play "A Man for All Seasons," sometimes we need to give even the devil the benefit of the law. Why? Because if all the laws are cut down and the devil turns round on us, where would we hide? None of us "could stand upright in the winds that would blow then."
Peter L. Lindseth is an associate professor of law and legal historian at the University of Connecticut School of Law.
