A Setback for the State of Exception

By Scott Horton

14/06/08 "Harpers" -- - For the dwindling but stout-hearted band of Bush loyalists, the creation of concentration camps and introduction of torture techniques never presented much of a problem—morally or legally. On the legal side, they reasoned, the president exercised commander-in-chief powers, and in wartime that let him do pretty much whatever he wanted. There were some limits, of course. One might be that his freedom of action had to be outside of the United States. Another that it couldn’t involve U.S. citizens. But with those two points resolved, Torquemada had better get out of the way.

For the critics, that was never right. The president was an actor in a constitutional system, they argued. He was constrained by the law, for that limitation—rule by law and not by a king—was the essence of the nation’s self-identification. In times of war, the constraints were certainly relaxed, but that didn’t mean there were no constraints.

Yesterday, the Supreme Court, in a 5-4 ruling, delivered a sweeping decision which rebukes the Bush Administration over its expansive views of wartime executive powers. In Boumediene and a series of companion cases, the Court was asked to decide whether the ultimate guarantor of the rule of law—the writ of habeas corpus–was available to persons in detention in Guantánamo. In the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006, Congress had stripped the Great Writ. Congress did not do so explicitly, through the specific mechanism envisioned in the Constitution. Rather, it took a backdoor approach, providing a highly qualified and limited right of appeal as a substitute for habeas corpus. The Supreme Court’s majority found this to be unconstitutional.

The ruling was a resounding defeat, the third in succession (after the rulings in Rasul and Hamdan) for the Bush Administration’s war powers claims.

While the specific holding of the case turned on the history of the Great Writ and the understanding of the Framers in building off an English legal legacy, there is a remarkably intense discussion of the power and prerogatives of the president crammed into its pages. Specifically, Justice Kennedy, the decisive “swing vote” on the Court, takes careful aim at the legal theory on which the Administration has constructed virtually the entire legal edifice of its war on terror policy, and renders a devastating judgment.

To hold that the political branches may switch the Constitution on and off at will would lead to a regime in which they, not this Court, say “what the law is”… Security subsists, too, in fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers … Within the Constitution’s separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person.

What exactly did Kennedy mean by referring to a Constitution that can be “switched on and off at will”? In presenting the opposing viewpoint this way he was taking dead aim at the notion of a state of exception which underlies the whole architecture of Bush war on terror policies. Simply put, these policies argue that while the Executive is limited by the checks and balances of the American constitution during peacetime and at home, all those shackles fall away when war erupts and when he acts outside the nation’s territory. This viewpoint has limited historical precedents, but no Administration has pressed it quite so fiercely as that of George W. Bush.

Moreover the true roots of this notion lie in the thinking of a troubling figure, Carl Schmitt. The most important conservative legal thinker on the European continent between the wars, Schmitt felt that modern liberal democracy crafted on the Anglo-American model was too weak to cope with the social and political shockwaves that racked Europe between the wars. He suggested that these liberal democratic constitutions all had an “escape hatch,” namely a clause which would allow the Executive to set aside the array of civil liberties which formed the constitution’s foundation whenever the state found itself engulfed in an existential threat. Exactly what this “state of exception” was and how it could be triggered would depend on the peculiarities of each constitution.

For the past seven years, Americans have witnessed an effort to engineer a “state of exception” to the American constitution. Its key element has been a new definition of war—the “war on terror”–which has neither territorial nor temporal boundaries. This war, as the Bush Administration crafted and advanced it, never served the security interests of the United States. Military analysts and advisors were firm from the outset in opposing it. They argued that any war needed to have clearly defined achievable objectives so that America could quickly and decisively win it. The lessons of modern warfare are plain enough. A great power must win quickly and clearly, or it will be viewed in the eyes of the world as having lost. Indeed, the current President Bush’s father was the president who most convincingly and prudently advanced this view, backed by a sober group of national security advisors that included Brent Scowcroft, Colin Powell and Dick Cheney (the pre-microstroke Dick Cheney). The military strategist knows that modern warfare is very much a matter of perceptions.

But the Bush Administration’s conceptualization served a different agenda. It was designed to bolster an assertion of unprecedented executive power, a reshuffling of the political cards at home. The executive was to emerge as the paramount power in the nation’s government, relegating the other branches to the status of constitutional hood ornaments. The Republican Party was to be anchored in to a generation of rule.

This dark calculus drove a reckless decision to breach centuries-old traditions concerning the humane treatment of prisoners and to craft the concentration camps at Guantánamo. Now the Supreme Court has condemned its lawlessness for the third time. Unlike the prior two efforts, however, this time the Court strikes at the dark Schmittian heart of the Executive’s claims to unconstitutional power. The ruling therefore has broad ramifications for future issues arising out of the war on terror, including many aspects of the Administration’s program for dealing with detainees.

The Military Commissions
The Court did not strike down the Military Commissions structure at Guantánamo; its opinion addresses only the appellate path that the old Congress charted under the heavy influence of the Bush Administration. Still, it’s plain that the Court’s majority views the Guantánamo Commissions with healthy skepticism. In fact, the path by which the Boumediene case came before the Supreme Court tells the story. Plainly there was insufficient support on the Court to hear the case when the cert petition was initially presented. Then something intervened. What caused the turnaround?

The answer to that question can be found in the newspaper headlines as the turnaround occurred. A series of senior military judges spoke bluntly about what was going on in Guantánamo. One who participated in a CSRT panel described the farcical process which was being used. Two other military judges pointed to defects in the trial processes. Military prosecutors began to step forward and validate the accusations that military defense counsel had raised. One word rang out over and over: “rigged.” After cert was granted, these allegations exploded onto the scene as the chief prosecutor presented in detail plans by Bush Administration officials to arranged rigged show trials running parallel to the 2008 presidential elections, with the express aim of influencing the elections for the benefit of the Republican Party. There is no doubt that this shameful parade of facts was tracked carefully by the Court’s majority, and that the political undertones were no less apparent to the virulently partisan four-vote minority that emerged in Boumediene.

The Court’s decision to overturn the Military Commission Act’s straight-jacketed appeals process was also intended to send a message to the lower federal courts hearing habeas corpus appeals. The standards for a successful habeas appeal are formidable, and the Court does not want to see them lowered. On the other hand, the Court’s very profound skepticism about the legality of the process unfolding in Guantánamo could not be plainer.

The Bush Administration’s press to complete trials at Guantánamo before it leaves office has already shed all signs of decorum—a point driven home most clearly when one of the military judges was removed after he ruled against the government on key issues and openly castigated the government over its unseemly and politically driven timetable. The Administration’s timetable has just been delivered another, this time decisive, setback by the Supreme Court.

The Next Step
How will the Administration react to the Boumediene decision? Michael Mukasey spoke during his confirmation process of a legislative initiative to introduce a form of national security courts to provide a domestic basis for addressing cases like those now brought before the Guantánamo Commissions. The administration enlisted a number of surrogates to begin developing the case for this modern Star Chamber in public fora. It also has made a strong pitch to bring aboard a number of influential organizations, like the venerable Council on Foreign Relations, which emerged as an early target for cooption. However, the legislative initiative was held back based on an astute sense of timing. As one figure close to the administration explained to me: “We’ll wait until the Supreme Court hands down another victory to the habeas bar, and then we’ll ride a tide of anger against an interventionist judiciary to victory in Congress.” A conventional tactic for the administration. And one it seems likely to follow.

Here’s President Bush’s statement in response to Boumediene yesterday:

“It was a deeply divided court, and I strongly agree with those who dissented,” Bush said. “And that dissent was based upon their serious concerns about U.S. national security.” Bush said his administration will study the ruling. “We’ll do this with this in mind—to determine whether or not additional legislation might be appropriate so we can safely say to the American people, ‘We’re doing everything we can to protect you.’”

The ground will now be carefully prepared for introduction of Bush’s legislation, and an effort will be made to stampede it through Congress with a minimum of study. This would be as foolish and tragic as the efforts that produced the Military Commissions Act in 2006.

Is a radical shake-up of the nation’s legal process necessary? Does the criminal justice process not in fact already have the tools necessary to cope with such cases? I recently attended a RAND Corporation function in Santa Monica in which a group of federal judges, two of them George Bush appointees, spoke to that question. They were all agreed that the necessary tools were already present. To the extent the counterterrorism trials they presided over had not gone smoothly, the judges were united in blame allocation: they placed it squarely on the shoulders of the Bush Justice Department, charging it had consistently hyped and politicized the cases and brought charges which plainly were not sustained by any evidence.

A powerful case against the idea of a national security court is also made in a paper prepared by lawyers Richard B. Zabel and James J. Benjamin, Jr. entitled “In Pursuit of Justice: Prosecuting Terrorism in the Federal Courts.”(2 MB PDF). Anyone looking for an introduction to the issues which the administration will be raising, minus the chicken-with-head-chopped-off breathlessness with which they will be presented, can profit greatly from an investment of several hours in this report.

Judicial Politics
The Boumediene case also furnishes a note of worry for those concerned about judicial politics. The current court consists of seven Republican appointees and only two Democratic appointees. It is clearly the most right-leaning Supreme Court since Rufus Peckham graced the bench, in the heyday of the railroad lawyers. The fact that only a narrow majority of the Republican appointees could embrace the administration’s stance (and had it not been for the resignation of O’Connor, it would probably not even be a majority) provides a further demonstration of how radical are the policies that the Bush Administration has developed in its “War on Terror.”

Of the four G.O.P. hardliners who embrace the notion of a disposable constitution, the most troubling is certainly Antonin Scalia. In lines that could be taken straight from Fox television (which Scalia openly acknowledges as a principal source of intellectual stimulus), Scalia writes:

The game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed.

As my friend Brian Tamanaha writes, this is “an instant classic of the worst order: fear-mongering.”

But a quick leafing through the Court’s biographies makes clear that the ranks of the majority will likely be thinned in the court of the next administration. John McCain, who yesterday condemned the opinion even as he repeated his pledge to close Guantánamo, has promised to strengthen the ranks of the minority—that is, to convert them to the majority. Thus the traditional understanding of the Constitution now hangs by a slender thread, and the prospect of a Schmittian remake looms large.

This furnishes yet another reason to treat the presidential election with as much sobriety as can be mustered. Much hangs in the balance. But for the moment, friends of the Constitution should rejoice: the Rule of Law and not of Man is vindicated once again. The world looks towards January 20, 2009 with hope for a new American leadership, rejuvenated through the democratic process. The Supreme Court has upheld the keynote of fidelity to founding principles which will be essential to any successful government that follows the Bush fiasco.