State of exception: Bush's war on the rule of lawScott Horton
July 2007
At its finest moments the Republican Party has been a vocal and unsparing advocate for human rights. “Though force can protect in emergency,” insisted Dwight D. Eisenhower, the party’s great warrior-president, “only justice, fairness, consideration, and cooperation can finally lead men to the dawn of eternal peace.” But under the current administration, those designated as enemies have no rights, neither under the laws of war nor under any notion of criminal justice. A radical rupture has occurred; American legal tradition has been swept aside and, with it, long-established precedents for dealing with adversaries in wartime—even those accused of heinous crimes. Nowhere is that more clear than in the treatment of the so-called habeas lawyers (so named because of their repeated attempts to enforce the rights of their clients through the writ of habeas corpus—the legal procedure that allows an imprisoned person to test the legality of his detention) who counsel the detainees at Guantánamo Bay, Cuba.
The habeas lawyers have been tarred with ethnic slurs and accusations of homosexuality, accused of undermining national security, subjected to continual petty harassment. They have also had their livelihoods threatened through appeals to their paying clients. These events have been reported as separate incidents in the press, but this conduct results from a carefully orchestrated Bush Administration policy that goes under the rubric of “lawfare.”
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Lawfare, as defined by Bush Administration officials, is a terrorist tactic. Yet to anyone trained in English and American jurisprudence, not to mention the thinking that has dominated the Anglo-Saxon legal world at least since 1688, those who are accused of engaging in lawfare are simply exercising well-established legal rights and liberties. Indeed, the lawfare doctrine is the conceptual framework that best reveals the degree to which the Bush Administration has effectively declared war on the rule of law itself. .....
From the beginnings of the “war on terror,” both the Department of Defense under Donald Rumsfeld and the Department of Justice under John Ashcroft and later Alberto Gonzales took the position that detainees had no right to counsel. Guantánamo Bay was selected to host a detention facility largely because it was believed to be beyond the jurisdiction of U.S. courts. This strategy failed, at least initially, and federal courts issued orders recognizing counsel for purposes of habeas corpus petitions and directing that the counsel be given access to their clients. The Pentagon was forced to relent, and defense lawyers were given grudging access to the detainees. At every stage, however, the U.S. government has actively subverted attempts to provide its prisoners with legal representation.1
This spring I interviewed ten habeas lawyers about their experiences visiting Guantánamo and found the descriptions depressingly similar.
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The government’s strategy, which stands in clear defiance of the Supreme Court decisions in Hamdan and Rasul, has clearly been effective. It aims to destroy any relationship of trust between the detainees and their lawyers as a way of bringing all court action to an end. Several habeas lawyers have reported that their clients asked them to stop acting on their behalf. .....
What makes the cases of the habeas lawyers so disturbing, what evokes the specter of tyranny, is that many of the legal issues involved were resolved a century before America gained its independence. It is as if hundreds of years of legal precedent suddenly vanished.
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The lawfare doctrine introduced by the Bush Administration violates this tradition. It has no antecedent in American practice, and in the end it is possible to find a precedent only if we look outside the United States to German conservative political and jurisprudential thinking between the world wars. The most important German legal theorist of the period between the wars was Carl Schmitt. A conservative who longed for the restoration of the authoritarian style of late Wilhelmine Germany, Schmitt was a convinced enemy of the liberal democratic principles embodied in the Weimar Constitution that was adopted after the close of World War I. For Schmitt, the notion of dispassionate and independent administration of justice was a dangerous liberal illusion. He sought to restructure the legal profession—ensuring that judges were not independent but essentially extensions of the executive, that prosecutors were fully politically subordinated, and that defense counsel were, in general, silenced. In the years that followed, Schmitt’s ideas were put into practice, and a large number of the most prominent members of Weimar Germany’s defense bar went into exile, many of them moving to the United States and Britain.
Carl Schmitt also laid the foundations for a new attitude toward warfare and the role of law in the conduct of war. In his early masterwork, The Concept of the Political (1927), Schmitt derided the weakness of liberalism and its efforts at consensus building and instead embraced the legitimacy of a process of extreme demonization of political adversaries. Guaranteeing legal rights to an enemy was thus senseless and counterproductive. In its place, Schmitt advanced the notion of “total war” (“Total Enemy, Total War, Total State,” 1937), suggesting that the neatly delineated warfare of prior ages, in which uniformed, professional armies met on a field of war, was in decline in favor of a new kind of all-encompassing warfare. Schmitt ridiculed the law of armed conflict, saying it reflected ideological principles rooted in nineteenth-century English liberalism. At the same time, he turned to the legal concept of piracy as a basis for treating adversaries as persons completely beyond the help of law and the courts, free to be dealt with just as the executive pleased without being bothered by lawyers (“The Concept of Piracy,” 1937).
Schmitt’s thinking and analysis—the weakness of liberalism, the utility of “law-free” zones, the demonization of adversaries, the subordination of justice to politics—align almost perfectly with the Bush Administration’s concept of lawfare, and with many other legal tactics the administration has adopted in the war on terror and elsewhere.7
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In twenty-five years of work as a human-rights monitor, I have closely observed totalitarian and proto-totalitarian regimes around the world—from the former Soviet Union and its offspring to China, Cuba, Liberia, and Zimbabwe. One of the hallmarks of tyrannical regimes, of whatever political flavor, is their intense dislike of defense lawyers in general, and in particular defense lawyers who do their work effectively and professionally. For a totalitarian regime, the idea of blind justice is laughable. The criminal justice system exists to capture and brand criminals, of course, but it is also understood as an essential instrument of political repression. Tyrannical regimes use the law to destroy the reputation of enemies of the state and to punish them.8
Obviously, our predicament is not yet so dire as that of Weimar Germany. Yet the parallels are frightening. The Bush Administration’s reach is long, and its Schmittian concept of lawfare represents an all-out assault on the rule of law.
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