Balkinization  

Thursday, July 20, 2006

Hobbes on the Euphrates

Scott Horton

Back in April, I found myself in Baghdad across the table from one of the nation’s most prominent judges. A man with a reputation for integrity and independence, he had resigned from the bench rather than implement a cruel set of directives issued by Saddam Hussein. He suffered and was forced into a marginal existence thereafter. The Coalition forces, noting the respect his name commanded, tapped him for a particularly sensitive role, which he has held ever since. Since judges are killed at the rate of one-per-week in Iraq, however, I am going to refrain from using his name.

In a wide ranging discussion, he came very quickly to talk about the occupation and its shortcomings.

“We despised Saddam Hussein, and his overthrow raised such wonderful possibilities for Iraq. But how could a country like the United States behave so stupidly as it did in those first crucial months? Saddam was a nightmare. But our country had a strong state with secular traditions. That needed to be preserved at all costs. Instead the Americans smashed that state. What did they expect Iraqis would do? It sent people scurrying back to the basic building blocks of our society, which are the clans and tribes. People turned to them for basic self-protection, not because of any political conviction. And this has led directly to the social disintegration we have today. The choices that the coalition took had consequences. You destroyed the state and you failed to put order in its place. You created chaos, in other words. And now we have to try to live with the consequences of the coalition’s decisions.”

These comments dovetailed with a “lessons learned” analysis I understand was done within the Department of Defense. As a part of the review, a “lack of cultural awareness” of Iraqi society was repeatedly cited. A DOD anthropologist notes that many of the most serious mistakes made in the early phase of the occupation relate to a misunderstanding of the consequences of the fall of the state. Just as my interlocutor noted, the people turned immediately to family ties for protection.

Surely political scientists already know this. The first chapters of Thomas Hobbes’ Leviathan reflect exactly the points that the Iraqi judge was making. With the collapse of the state and with no new order to replace it, Iraq fell into the war “of all against all.” Hobbes wrote,

“During the time men live without a common power to keep them all in awe, they are in that conditions called war; and such a war, as if of every man, against every man… To this war of every man against every man, this also in consequent; that nothing can be unjust. The notions of right and wrong, justice and injustice have there no place. Where there is no common power, there is no law, where no law, no injustice. Force, and fraud, are in war the cardinal virtues.” (ch. 13).

Put differently, the occupation heralded by the capture of Baghdad lacked the essential characteristic of an occupation - namely a new order. Hence, in Hobbesian terms, it was that form of war which encompasses the natural state of man.

In the August issue of Harper’s, Ken Silverstein probes more deeply into this process of social disintegration. He takes as his vehicle the rise of one particularly powerful, but shadowy figure in the current Iraqi Government: Bayan Jabr, the current minister of finance. Silverstein dubs him the “Minister of Civil War.” This article is fascinating and it offers an unusual glimpse deep inside the transformative process in Iraq that coincided with the “rule” of the Coalition Provisional Authority. This was a period which combined immense attention to public relations with Western media with an excruciatingly poor grip on the cancer that was developing in Iraq. The article is a must-read.

Wednesday, July 19, 2006

Stem Cell Compromise

Mark Graber

Seems to me that the perfect compromise that might resolve the stem cell controversy is for the scientific community to agree to do research only on embryos that could possibly mature into terrorists. After all, our president who so emphasizes morality believes there is nothing immoral about torturing persons who are suspected of being terrorists, even in the absence of any legal procedure that even confirms the suspicions are reasonable (much less a legal procedure which convicts them of any crime). Our president who so emphasizes morality also finds nothing immoral about killing innocent civilians and children in military missions that also kill a certain number of terrorists. If we can torture and kill people suspected of terrorism or people who live near people suspected of terrorism, then surely we ought to be allowed to experiment on embryos that we suspect might have become terrorists.

What the Bush Veto Means

JB

Perhaps you think that the Bush veto of the stem cell bill today suggests a divided Republican Party, or a weakened presidency, or a newfound ability of Democrats to form bipartisan collations with their colleagues across the aisle. In fact, it means none of these things.

Bush has never vetoed a bill before because (1) his party has controlled both houses of Congress throughout most of his presidency and because (2) vetoing was not the most politically propitious alternative. That's to be expected when the President and the Congress are from the same party. Usually the President could get what he wanted-- or avoid most of what he didn't want-- through his Republican allies reshaping or watering down bills, jamming up legislation in committee, or through Presidential signing statements. It just so happened that with this particular piece of legislation, politics dictated that the veto was the best alternative both for Bush and for the Republicans in Congress.

To understand why, over five years into his Presidency, George W. Bush finally vetoed a piece of legislation, it's worth comparing President Bush's veto of the stem cell bill with two other pieces of legislation that he strongly opposed but nevertheless allowed to become law: The McCain Feingold Campaign Finance Bill and the McCain Amendment which became part of the Detainee Treatment Act (DTA). (You will note, not entirely coincidentally, the presence of John McCain's name in both pieces of legislation).

First let's compare the stem cell bill with the DTA. The DTA was part of a very large defense appropriations bill that it would have been quite difficult to veto. Congressional leaders deliberately attached it to that appropriations bill. Hence the President worked hard to weaken the bill by limiting the jurisdiction of the federal courts to hear allegations of prisoner mistreatment. This is what the Graham-Kyl amendments did (Senators Graham and Kyl even went so far as to insert bogus legislative history in the Congressional Record to help the President's cause). Moreover, when the President signed the bill, he offered a signing statement that indicated that he reserved the right, at some undisclosed point in the future, and in various undisclosed ways, to refuse to enforce it. So although he signed the bill, we have no idea whether it will really do what it says. And that's just the way the President wants it.

The stem cell bill was different from the DTA in two important respects. First,the Congress arranged matters so that the bill was not hitched to other crucial legislation that the President would be politically unable to veto. The fact that Congressional leaders did this is quite significant, and it suggests that Republican supporters of the bill were far less upset about the possibility of a Presidential veto than the public debate might lead one to believe. Indeed, the most important story is not why the bill was vetoed, but what political bargains (and Congressional rules) led to it not being attached to other more important pieces of legislation.

Second, a signing statement made far more sense in the case of the DTA than in the case of the stem cell bill. The President might have issued a signing statement announcing that he would withhold any funds appropriated for stem cell research. But a signing statement to this effect would be a far less effective alternative. A signing statement threatening to withhold funding would have no obvious constitutional basis for objection-- unlike the signing statement for the DTA-- and would itself have precipitated a constitutional debate about impoundment of appropriated funds that had lain mostly dormant since the Nixon years. It was far cleaner and easier just to veto the legislation, especially since Congress had not attached it to a crucial appropriations measure. Perhaps equally important, a veto is a far more powerful political gesture; a signing statement would seem particularly devious and unsatisfying, both to the public at large, and, perhaps more importantly, to the President's supporters in the pro-life movement, who would have demanded a clear rejection of the bill rather than allowing it to become law.

An equally interesting comparison is to the McCain-Feingold Campaign Finance bill, which the President opposed but ultimately signed rather than veto. The most important difference is the political meaning of the veto. The White House probably predicted that vetoing McCain-Feingold in early 2002 would portray the Republicans as the party of corruption and would hurt the party's chances in the 2002 and 2004 elections. (Remember that the House didn't pass McCain-Feingold until after the collapse of Enron). By contrast, the White House probably imagines that vetoing the stem cell bill does more good than harm for Republicans: it signals to the conservative base that the President supports the pro-life agenda while allowing individual Republican Congressmen and Senators to signal to moderates and independents that their views are different.

In sum, this first veto of the Bush Presidency does not signal anything out of the ordinary, other than ordinary politics. Of course, if the Republicans lose one or both houses of Congress in the 2006 elections, we may see a lot more vetoes coming from this White House. But that, too, will be an entirely predictable consequence of ordinary politics.

Mission Accomplished, Indeed

JB

From today's Los Angeles Times:
Retaliatory massacres by gunmen and bombers linked to rival Muslim sects have left more than 130 people dead across Iraq over the last two days, the latest casualties of what some politicians now are calling an undeclared civil war.

At least 57 Iraqis were killed Tuesday and scores more injured when a suicide bomber lured a group of day laborers to his minivan with the promise of work before setting off explosives.

The bombing in Kufa rained blood, burnt debris and charred body parts on a small market across the street from the Muslim bin Aqil mosque, the main platform for radical Shiite cleric and militia leader Muqtada Sadr.

Since the beginning of May, attacks by Sunni Arab and Shiite Muslims have claimed the lives of more than 6,000 Iraqi civilians, according to a United Nations study and Iraqi police reports.

The Kufa blast, coming on the heels of mass killings and bombings attributed to Sadr's Al Mahdi militia and its Sunni Arab enemies, brought the battle to the Shiite cleric's doorstep, igniting fears of a fresh wave of reprisal killings.

"The message is clear, and the message confirms the sectarian differences," said Fadhil Sharih, a leader of the Sadr movement. "It seems clear that it's been moving toward the direction of civil war."

U.S. and Iraqi government leaders have argued that the 150,000-strong foreign troop presence has kept the country from descending into full-scale civil war. But many Iraqi officials fear the threshold has been crossed.

"What is happening in Iraq is a disaster and a tragedy," Adnan Dulaimi, a Sunni Arab leader, said in an interview.

"It's bloodshed and killing of the innocents, killing the elderly and women and children. It's mass killings. It's nothing less than an undeclared civil war."


Meanwhile, CNN reports that Iraqi civilians are dying in large numbers:
"More than 14,000 civilians have been killed in Iraq in the first half of this year, an ominous figure reflecting the fact that "killings, kidnappings and torture remain widespread" in the war-torn country, a United Nations report says.

Killings of civilians are on "an upward trend," with more than 5,800 deaths and more than 5,700 injuries reported in May and June alone, it says.

The report, a bimonthly document produced by the U.N. Assistance Mission for Iraq, covers May and June, and includes chilling casualty figures and ugly anecdotes from the insurgent and sectarian warfare that continues to rage despite the establishment of a national unity government and a security crackdown in Baghdad.

The report lists examples of bloody suicide bombs aimed at mosques, attacks on laborers, the recovery of slain bodies, the assassinations of judges, the killings of prisoners, the targeting of clergy -- all incidents dutifully reported by media over these three-plus years of chaos in the streets."


This was George W. Bush's war of choice. He thought he could make the world better with force of arms, with shock and awe. In May of 2003, he got dressed up in a flight suit and sat on a fighter plane and pretended to be a great war hero. Here is what he said:
Major combat operations in Iraq have ended. In the Battle of Iraq, the United States and our allies have prevailed. And now our coalition is engaged in securing and reconstructing that country.
. . .
In the images of fallen statues, we have witnessed the arrival of a new era. For a hundred years of war, culminating in the nuclear age, military technology was designed and deployed to inflict casualties on an ever-growing scale. In defeating Nazi Germany and imperial Japan, Allied Forces destroyed entire cities, while enemy leaders who started the conflict were safe until the final days. Military power was used to end a regime by breaking a nation. Today, we have the greater power to free a nation by breaking a dangerous and aggressive regime. With new tactics and precision weapons, we can achieve military objectives without directing violence against civilians. No device of man can remove the tragedy from war. Yet it is a great advance when the guilty have far more to fear from war than the innocent.

Not quite.

This is not the first time that misguided leaders believed they could control the chaos of war and make it serve their will. It won't be the last. But one has to shake one's head in amazement and wonder what combination of arrogance, ignorance and hubris led this President to be so confident that he, finally, had mastered the art of destruction, that with the aid of new tactics and new technology the war he started would reach only the guilty and spare the innocent.

Note to Senator Specter -- A Youngstown Refresher

Marty Lederman

Dear Senator Specter: On several occasions, most recently at yesterday's hearing with the Attorney General, you have articulated the following reasoning in (possible) support of the legality of the NSA surveillance program:

1. Several courts of appeals held, pre-FISA, that the President has "inherent" constitutional authority to engage in warrantless electronic surveillance for purposes of foreign affairs or national security, even where such surveillance might intercept communications of U.S. persons -- at least as long as the surveillance passes Fourth Amendment muster. (NOTE: The leading pre-FISA case, Zweibon v. Mitchell, held that such warrantless surveillance would not satisfy Fourth Amendment scrutiny where the target of the surveillance is not a foreign power or agent of a foreign power. See page 1356 n.10 here.)

2. If the President has an "inherent power" to engage in certain conduct, then a duly enacted statute may not restrict the President's exercise of that conduct.

3. FISA restricts such conduct.

Ergo,

4. If the courts of appeals were correct that the President has an "inherent" power to engage in such warrantless surveillance, FISA's restrictions of it are unconstitutional. As you put it yesterday, if the President has such an inherent power, then the provision of FISA establishing the "exclusive means" of electronic surveillance is "superseded."
This is not correct, because premise No. 2 is wrong -- a category error.

The President has a great number of constitutional powers -- call them "inherent" (or , as in Hamdan, "independent") powers -- that he may exercise in the absence of statutory restriction. (This is basically what's described in "Category II" of Jackson's Youngstown concurrence.)

But the fact that a power is "inherent" does not mean that it is exclusive, or non-defeasible.

For examaple, under the Commander-in-Chief Clause alone -- at least as it has come to be understood in modern times -- the President has "inherent" authority: to set rules for the military; to establish courts martial and (possibly) military tribunals; to deploy troops; to govern and make rules for occupied territory; to seize enemy property (think of the Emancipation Proclamation); to engage in defensive military measures; even, to some undetermined and contested degree, to introduce troops into hostilities (e.g., Korea, Bosnia, Haiti, Somalia, etc.); and so on.

But this does not mean that Congress may not enact statutes to regulate these functions. Of course it can. For exmaple, the Court held in Swaim v. United States, 165 U.S. 553 (1897), that the President has inherent authority to convene courts-martial in the absence of statutory authority. But that doesn't mean that Congress cannot, by statute, regulate how such courts-martial will operate. And once it does so, the President is bound to comply with statutory limits. See Loving v. United States, 517 U.S. 738 (1996).

Similarly, in Hamdan itself, the Court assumed for purposes of argument (see top of page 28) what has been assumed since the Civil War, namely, that the President may constitutionally convene military commissions to try suspected enemies for violations of the laws of war without the sanction of Congress in cases of controlling necessity. But, the Court went on to explain, "Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring)."

In other words, deciding that a presidential power is "inherent" or "independent" does not begin to answer the question of whether it is defeasible, or regulable, by statute.

Thus, even if those courts of appeals you cite were correct that the President would have "inherent" constitutional authority to engage in warrantless electronic surveiilance, FISA placed limits on such surveillance and specifically restricted the President from doing what his "inherent" powers might allow. That limitation is perfectly constitutional. Nor did the courts of appeals in those cases suggest otherwise. To the contrary, in the one case decided after enactment of FISA, United States v. Truong Dihn Hung, the court indicated that FISA’s restrictions were constitutional. See 629 F.2d at 915 n.4 (noting that "the imposition of a warrant requirement, beyond the constitutional minimum described in this opinion, should be left to the intricate balancing performed in the course of the legislative process by Congress and the President").

Therefore the provisions of your bill that would elimimate that "exclusive means" restriction, and that would expressly reinstate a provision ceding the President the right to act in accord with his inherent powers, would undo FISA altogether and work a radical change in the law that has governed surveillance for almost 30 years. Perhaps that would be advisable social policy; perhaps not. But it would decidedly not be business as usual. See my previous post here, and Patrick Keefe in Slate today, summarizing the radical changes in the Specter bill.

For further explanation, see our letters here and (most recently) here, and Jack Balkin's Youngstown primer post here. And Walter Dellinger to similar effect (with a similar plea to Senator Specter) in the immediate wake of Hamdan.

Hope this clarifies matters. At the very least, all this confusion with respect to the notion of "inherent" powers -- as if such an adjective were in the Constitution itself! -- is proof-positive that we ought to heed Justice Jackson’s caution that "[l]oose and irresponsible use of adjectives colors all non-legal and much legal discussion of presidential powers," and that terms such as "'[i]nherent' powers, 'implied' powers, 'incidental' powers, 'plenary' powers, 'war' powers and 'emergency' powers" are often bandied about "without fixed or ascertainable meanings." 343 U.S. at 646-647.

Sincerely,

As If Hamdan Never Happened: Don't Give an Inch on Article II

Marty Lederman

As I noted here, DOJ is asserting the rather remarkable view that the Court's decision in Hamdan "does not affect our analysis of the Terrorist Surveillance Program." A response to this proposition from a group of constitutional scholars and former government officials (of which I am part) is here.

On Monday, DOJ submitted answers to 109 Questions on the NSA/FISA issue that the Senate Judiciary Committee posed to the Attorney General following his testimony last February. It's about what you'd expect: DOJ refuses to answer virtually all factual inquiries about the NSA program; strongly suggests that there are other secret surveillance programs in addition to the "Terorrist Surveillance Program" that are not limited in the ways the TSP is said to be; and won't reveal any internal deliberations or memoranda -- except, of course, those that it chooses to disclose.

DOJ's basic legal defense of the NSA program apparently has not changed since February -- as far as I can tell on a quick read, there's nary even a mention of Hamdan.

A couple of things are noteworthy, however:

1. DOJ refuses to concede that Congress could prohibit physical abuse of POWs (Question 100: wouldn't be "prudent" to comment on the constitutionality of such "abstract[ly]" described legislation); refuses to disclaim the possibility that the McCain Amendment (prohibiting cruel, inhuman and degrading treatment of all detainees) might unconstitutionally restrict the President (Question 101: refusing to disclose DOJ memos that apparently address this question); won't take a view on whether the Uniform Code of Military Justice might be unconstitutional as applied in some circumstances (Question 36); and won't even concede that the President could not ignore the torture statute (Question 99).

In other words, they're not giving an inch on their Article II arguments.

This is especially important with respect to the War Crimes Act, which is now in the headlines as a result of the Court's ruling that Common Article 3 protects Al Qaeda detainees. (Violations of Common Article 3 are war crimes, pursuant to 18 USC 2441.) DOJ represents (Question 98) that the President "has examined the obligations of the United States under the international conventions enumerated in [the War Powers Act] and has required that his subordinates abide by those obligations." That's reassuring -- although the Attorney General yesterday complained that the standards incorporated in Common Article 3 are so difficult to understand that a statutory clarification is in order.

However, it's important to note that even in this context, DOJ does not disclaim the possibility of an Article II override: DOJ will not even answer whether the War Crimes Act can limit the President's constitutional authority. (DOJ represents that "we have not examined the interaction between the President's Commander in Chief power and the War Crimes Act of 1996." I suppose that depends on who DOJ means by "we": A draft OLC memo sent by John Yoo and Robert Delahunty to the Pentagon General Counsel on January 9, 2002 advised that to the extent the War Crimes Act were construed to apply the standards of Common Article 3 to the conflict against Al Qaeda, it "would represent a possible infringement on presidential discretion to direct the military.")

2. DOJ states (Question 102) that there are "numerous cases in which the Supreme Court specifically has acknowledged the limitations on Congress's ability to regulate the President's conduct of foreign affairs generally and military campaigns specifically."

The emphasis on the word "numerous" is DOJ's own -- which is odd, because DOJ cites exactly zero cases in which the Supreme Court has ever acknowledged any such limitations, "specifically" or otherwise. Indeed, DOJ cites only two SCOTUS cases at all:

i. First, DOJ cites Hamilton v. Dillon as "noting that 'the President alone' is 'constitutionally invested with the entire charge of hostile operations.'" This is, to say the least, not the most auspicious lead citation for DOJ's bold argument about how the Court has repeatedly acknowledged limitations of Congress's power to regulate the Commander-in-Chief's conduct of military campaigns. Hamilton did not deal with the Commander-in-Chief authority over the land and naval forces at all, let alone with statutory constraints on that power.

The case involved a Civil War regulation of the Treasury Department, imposing a fee on goods transported from the Confederacy to the Union. DOJ's "entire charge" quotation is accurate -- indeed, it's indisputable that no one else but the President has the charge of U.S. military campaigns -- but it doesn't begin to support DOJ's view about the constitutionality of statutory limits on the Commander-in-Chief power. Indeed, in the very sentence in which that quotation is embedded, the Court declined even to decide "[w]hether, in the absence of Congressional action, the power of permitting partial intercourse with a public enemy [the power at issue in Hamilton] may or may not be exercised by the President alone, who is constitutionally invested with the entire charge of hostile operations." 88 U.S. at 87. The Court did not need to opine as to the President's power in the "absence" of statute, because the Court's holding in the case was that the President's actions were statutorily authorized. Id. at 88-97. The Court understandably wrote not a single word in Hamilton about whether statutes could constrain any of the President's war powers.

ii. DOJ's only other citation to a Supreme Court case is to Ex Parte Milligan. This is somewhat ironic, since the holding in Milligan was that Congress had, in the Habeas Corpus Act of 1863, restricted the discretion of the President to try enemy collaborators for war crimes. DOJ relies not on the opinion of the Court, but on a dictum from Chief Justice Chase's concurrence that Congress may not interfere with the conduct of military campaigns -- a power that, Chase wrote, belongs to the Commander-in-Chief. In Hamdan, Justice Stevens cites language from Chase's concurrence to like effect. This dictum is, in fact, the best judicial authority DOJ has for its broad Article II claims. But as the decisions in Milligan, Hamdan and Rasul demonstrate, to the extent the Chase dictum is correct at all, it does not reflect a principle that would invariably restrict Congress's authority to restrict the President's power to deal with the enemy.

Tuesday, July 18, 2006

Tales from the Unitary Executive, Part II

JB

You may recall that the Bush Administration halted the Justice Department's probe into the legal ethics of the NSA's domestic surveillance program on the grounds that the Department's own lawyers lacked the necessary security clearance to investigate any possible misconduct. As I pointed out at the time, this had the ironic consequence that private phone company employees at AT&T and other corporations had sufficient security clearances to know what the NSA was doing- because they worked with the NSA in running the program-- but the Justice Department's own ethics lawyers did not.

Today Attorney General Gonzales noted that the decision to cut off any Justice Department inquiry into ethics violations was made by the President himself.

This revelation nicely symbolizes the problem we currently face. The unitary executive theory demands that there be a final chain of command in executive authority that leads all the way up to the President, or, in other words, that the President is the boss of everyone in the Executive Branch and, at least in theory, has the final say on anything that anyone in the Executive Branch does. (For the moment I put aside the obvious counter-examples in the independent federal agencies).

But if one adopts this vision of Executive power, then it becomes extremely important to have some other method outside the Executive branch of overseeing the decisions that the President makes. Otherwise the President will be sorely tempted to confuse what is necessary to safeguard the country with what helps him avoid oversight and political embarrassment, and he will use his position as capo di tutti capi of the Executive Branch to enforce his will.

For this reason, the idea of a unitary executive-- i.e., that the Executive Branch ultimately has one boss-- must not be confused with another idea sometimes also identified with the "unitary executive": the notion that the President has inherent authority to do certain things (because, for example, they are "executive" in nature) and that in doing them he may not be checked, impeded, regulated, or overseen by the other branches. Indeed, *precisely* because the President is ultimately the boss of everyone who works beneath him in the Executive Branch, somebody who *doesn't* work for him must be able to check him.

And what that means is that these two different interpretations of the unitary executive-- which are often confused with each other-- are actually at war with each other. You can have the President be the boss of everyone in the Executive Branch or who exercises executive functions. Or you can make the President immune from oversight and checking by the other branches. But you can't have both. If you have both, you don't have a system of checks and balances. You have a system that produces corruption, mismanagement, abuse of power and tyranny.


Sunday, July 16, 2006

The Letter

Scott Horton

Was Leo Strauss democracy’s best friend? In a letter written at the time of his emigration, Strauss describes his political principles - Fascist, Authoritarian, Imperialist

“We believe that failing to call a spade a spade is not scientific.”
— Leo Strauss, Thoughts on Machiavelli (1958)

In the last several months, the New York Times has run four pieces defending Leo Strauss from his critics. By comparison, the Times has run no pieces in which Strauss is actually criticized, which suggests an odd editorial posture. Indeed, the Times seems to have mounted a veritable campaign for the defense of the beleaguered Leo Strauss, which seems strange considering that he has been dead for over thirty years.

These pieces are remarkably consistent. For one, each turns the very serious criticism of Strauss and his relationship with the American Neoconservative movement into a point of ridicule. The criticism is grossly distorted and key elements are misstated. For another, they present Strauss as a “liberal democrat,” not in a domestic political context, but rather as a defender of the tradition of liberal democracy we associate with Locke, Hume and J.S. Mill.

The Liberal Critique of Strauss
The key criticisms of Straussian political thought are complex and difficult to summarize. There are a great number of liberal critics, but three seem to take the leading position: Shadia Drury, Stephen Holmes and Anne Norton (though Norton’s work may more accurately be called a criticism of Straussians than of Strauss himself, a point which is true to some extent of all three). Of these, Holmes does the most convincing job of contrasting Strauss with the thinking of the liberal tradition, and his critique can be summarized as follows:

(1) Strauss rejects the fundamental liberal idea that wide-open, uncensored public disagreement is a creative force, mobilizing decentralized knowledge and bringing it to bear on issues of public importance. Liberalism, above all, insists that the factual premises of the use of force must be tested in an open adversarial process, but Strauss’s entire philosophical posture is a sarcastic rejection of this idea. For Strauss, knowledge belongs to a few - we know ahead of time who can and who cannot contribute something serious to a discussion. This “closed club” view of knowledge and debate with its essentially anti-democratic premise contributed to the atmospherics of the Bush drive to war against Iraq.

(2) Strauss believed that the liberal-Enlightenment tradition was naïve, and in particular the notion of Enlightenment thinkers that “revelation” (religious myths and dreams) could be banned from politics (as noted below, this was the crux of Strauss’ dissertation done under the great Neo-Kantian Ernst Cassirer). For Strauss, this is impossible; the repressed will return; hence it is crucial for the secular few, the men of science, to bring religion into politics on their own terms. The American Neocons' bizarre alliance with America’s Religious Right follows directly from this analysis.

(3) One of the pillars of liberal democracy is the embrace of the Rule of Law, and the notion that no one, even the king or Executive, stands above the law. For Strauss this idea was foolishness. Strauss’ critique can be seen in his writings on Plato and Xenophon, but their origin clearly lies with the Nietzschean criticism of Christianity as a slave morality designed to trick and “tie down” the natural geniuses. Strauss applies this criticism to law; law spells weakness; law is a trick of the weak to tie down the strong. Hence, Strauss applauds the decisive leader who acts outside of the law to achieve his goals. Nevertheless, the consequences of Strauss’ dismissive attitude towards the Rule of Law can be seen today in the Neocon advocacy of jettisoning traditional norms of the law of armed conflict and in allowing the president to operate outside of clear criminal statutes (like FISA) as an aspect of his war-making powers.

(4) Strauss always said that liberalism was unable to defend itself; that it must be defended, if at all, by non-liberals, willing to go outside the rules. This argument again has a firmly Nietzschean aspect. While Strauss seeks to cast it in terms of writers of classical antiquity, it is hard to read much of his writings without having an image of Carl Schmitt come to mind. Strauss would present himself as a “savior” of liberalism, but in the end, like Schmitt, one must fear that he would “save” liberal democracy by putting it to death.

See Stephen Holmes, The Anatomy of Antiliberalism (1993).

Put simply, Strauss takes firm target at the core values of liberal democracy, and particularly the American variant. Before his arrival in America, Strauss was blunt in these criticisms. After his arrival, he adopted a far more circumspect approach. After all, he was in America and writing in English, and his own philosophy would demand that he flatter or indulge national prejudices and write as if he believed in them. Like his mentor, Ernst Cassirer, Strauss had concluded by the mid-thirties that Europe, and even Britain, was simply unsafe. Only America, with its formidable resources and protected by expansive oceans from its potential adversaries, offered the prospect of safe haven.

These aspects of Neocon thought are extremely important to Americans today. While the Bush Administration cannot really be cast as a bearer of pure Neocon thought, it does appear to have embraced many of these ideas with gusto, and has scored astonishing successes in implementing them.

Both the Rothstein review and the Smith book attempt to present Strauss as a person right at home with the land to which he emigrated and its Enlightenment tradition. This is extremely doubtful. But it is an act of serious deception to present Strauss as “democracy’s best friend” (to quote the last, a review essay by Edward Rothstein published on July 10, in turn quoting Steven Smith’s new book, Reading Leo Strauss: Politics, Philosophy, Judaism) without at least making clear the deep-boring criticism that Strauss directs at American democracy.

Strauss’ Intellectual Milieu
One thing consistent among these defenses of Strauss is either a remarkable ignorance of Strauss, the intellectual milieu from which he came, his life and his thinking, or conscious dissembling about them. Strauss is a fascinating figure, well worth reading today. His scholarship had a strong focus on a handful of texts from classical antiquity – principally Greeks such as Plato, Xenophon and Thucydides. This approach seems quaint to Americans, but for those who emerged from the academic milieu of the German-speaking world in the first decades of the twentieth century (think of novels such as Heinrich Mann’s Professor Unrat [The Blue Angel] or Hermann Hesse’s Unterm Rad [Beneath the Wheel]) it is actually typical. Strauss contemporaries like Karl Jaspers and Hannah Arendt, who like Strauss were close to Heidegger, had a focus on many of the same texts, though they do not adopt Strauss’ at times quite eccentric interpretations.

Strauss’ writing at the time he went into emigration and started the series of moves that led, ultimately, to the United States, serves powerfully to show just how doubtful the current efforts to rehabilitate Strauss are. Two contemporaries weigh heavily in Strauss’ writing and thinking: Martin Heidegger and Carl Schmitt. Strauss’ thinking and attitudes towards the politics of this seminal era make sense when seen against this background, but otherwise can be confusing. There seems little doubt that Strauss saw himself as an acolyte of Heidegger’s, and the thrust of his criticism of modern society (and his intellectually arrogant supposition to be the leader of a tiny clan of intellectuals who are fully cognizant of the depth of “the crisis of modern times”) and his fascination with texts of antiquity reveals a Heideggerian hallmark. Carl Schmitt was likewise a critical influence on Strauss’ concept on the state, and Schmitt’s own positive assessment of Strauss’ work on Hobbes enabled Strauss to secure a Rockefeller Foundation fellowship to study in Paris, and thus exit the disintegrating remains of Weimar Germany. As reflected by Strauss’ comments on Schmitt’s Der Begriff des Politischen (The Concept of the Political), there were few barbs hurled in this love fest. Like Diogenes Laërtius’ Pythagoras, Strauss puts his faith in the philosopher to salvage mankind from the cruel degradations of modern society. Schmitt, on the other hand, counts on the man of action. We might call it a guild distinction between an academically inclined lawyer and a philosopher tout court.

The Löwith-Strauss Relationship
Karl Löwith was another Heideggerian who was close to Leo Strauss in this period. Like Strauss, Löwith faced the dilemma of being a Jew anchored in the German academic community. By 1933 it was clear that Jews had no future in this system and that emigration was essential to those who wanted to pursue a livelihood in the academy. It was against this background that, on May 19, 1933, Strauss penned a letter that he consciously marks as a political confession.

The Letter
I attach below my translation of the letter, which I am posting in blog form to solicit comments and corrections or improvements. This is a document of great importance to understanding Strauss and his politics, and it’s important to get this right. My translation should at this point be viewed as a work-in-progress. The letter has a number of ambiguous turns of phrase, and ripped from its historical context it may be difficult to understand (I say this in part with irony because of Strauss’ fierce opposition to an analytical approach that puts writers in the historical framework of their times, but with respect to correspondence, I have no doubt that Strauss would agree with me). Moreover, whereas to one of Strauss’ contemporaries, anyone who did not master classical Greek (much less Latin) would be considered a hopeless rube, few serious scholars today have such linguistic tools. I have therefore incorporated annotations which provide necessary explanations, as well as translations of the non-German phrases (which I leave untranslated in the text) with some musings on the thoughts that I suspect they are designed to evoke.

In this letter, Strauss looks at the fate he faces in consequence of the Nazi seizure of power in Germany. He admits that it is impossible for him as a Jew to live under their regime, since they have adopted anti-Semitism as a keynote of their rule. But while expressing abhorrence at their anti-Semitism, Strauss consciously refuses fully to repudiate Nazi fascism. To the contrary, he accepts fascism as a legitimate bearer of “the principles of the right,” and he embraces them, namely: fascism, authoritarianism and imperialism. He then proceeds to ridicule the Enlightenment values of inalienable rights, quoting the French Declaration of the Rights of Man and of the Citizen from 1789 (though he could just as easily have quoted the American Declaration of Independence), and he quotes a passage of Virgil’s Aeneid, a passage which Carl Schmitt was also fond of quoting.

I am convinced that this is a very candid statement of Strauss’ politics at the time he wrote it, a reading signaled by his confessional closing. Indeed, anyone who carefully reads Strauss’ book on Hobbes (Hobbes’ politische Wissenschaft in ihrer Genesis, 1936, but largely complete in 1933; translated in English as The Political Philosophy of Hobbes: Its Basis and Its Genesis) or his dissertation, written on the anti-Enlightenment writer Friedrich Heinrich Jacobi, would suspect these sentiments.

Was Strauss a fascist?
It seems almost impossible to imagine a German-Jewish refugee in France, a man who describes his religious upbringing as “Conservative, if not Orthodox” actually embracing the political philosophy of his persecutors. On the other hand, we should be cautious about projecting postwar sensibilities back into the thirties. Strauss was a Middle European intellectual living in a period where liberalism looked exhausted and unable to function, and many of his contemporaries, and indeed many of Strauss’ mentors, were engaging with fascist thought. Specifically, we should consider that the two contemporary thinkers who appear to have exerted the greatest influence on Strauss at this time – Heidegger and Schmitt – were each entering into a dalliance with fascism. In their respective Faustian pacts, one emerged as the rector magnificus of one of Germany’s most famous universities, while the other (indeed, the week of this letter) became a Prussian State Councillor and key legal advisor to the Reich-Chancellor. This situation no doubt contributed to Strauss’ inability to make a clean break.

It seems fair to say that fascist thought was appealing to Strauss, otherwise why would he be willing to toy with the label? At the same time, the aspect of fascism that most appealed to Strauss is also evident from the letter: it is the reliance on thoughts of classical antiquity, particularly of the early imperial era of Rome, as they were distorted in the political mirror of the thirties - most effectively by the Italian fascists. We should take care to note the time of the letter: it comes a year before the famous Night of the Long Knives (Nacht der langen Messer), the point at which the Nazi regime first revealed its fangs by summarily executing Ernst Röhm and roughly a hundred figures associated with him, including a former chancellor and other prominent persons. There can be no doubt but that this and later events would have produced a more resolute turn by Strauss against the Hitler regime.

Nevertheless, the Löwith letter is profoundly revealing of the nature of Leo Strauss’ conservatism. It places his conservatism outside of the Anglo-American tradition that links to figures like Locke, Hume and Burke. Instead, it springs from a traditional Continental European variant which is deeply rooted in religion and in the notion of a benevolent (though sometimes not particularly benevolent) authoritarian leader legitimized by religion.

I note that Andrew Sullivan, in his forthcoming book, The Conservative Soul, takes a different view, putting Strauss in the tradition of conservatism of doubt. Andrew’s book is a significant accomplishment, and his dissection of trends in conservative thought in the last generation is little short of dazzling. However, I disagree with him about Strauss, and am particularly confident of my conclusions as to the young Strauss.

Strauss, Lessing and the Spinozastreit
For Strauss, the Enlightenment and its embrace of reason over faith as a political lodestar was a monumental wrong turn in European intellectual history. Moreover, Strauss was particularly convinced that the American Republic was built on a shaky foundation. In his dissertation, Strauss dwells at length on the so-called Spinozastreit that erupted in late 18th century Germany, involving Jacobi, Samuel Reimarus and the shining twin stars of the German Enlightenment, Gotthold Ephraim Lessing and Moses Mendelssohn. Considering Lessing’s towering position in the period as an advocate of tolerance (and notably also as an aggressive and convincing advocate for the emancipation of the Jews), Strauss has a hard time assailing him – but he attempts instead a bizarre and completely unconvincing posthumous conversion, suggesting that at the end of his life, Lessing had come back to religion and understood once again its proper role in society as a tool for those who govern. The particular vehicle that Strauss chooses for this purpose is reinterpretation of a less well known, but nevertheless important Lessing work. Ernst und Falk: Gespräche für Freimauer (1781) are the “Masonic Dialogues” in which Lessing quotes Benjamin Franklin and hails the American Revolution and the values it announced as the beginning of a new era for politics premised on reason and tolerance. The technique of dialogue introduces a hint of ambiguity to the work – ambiguity that Lessing felt he needed for a number of reasons, largely relating to his position as a public servant. However, Lessing’s preference for reason over faith, and particularly, his enthusiastic embrace of the American Revolution, lie at the undeniable center of the work. And they form precisely the perspective that Strauss struggles to debunk throughout his dissertation. All of which helps explain Strauss’ homesickness for Germany, and his lack of enthusiasm for the English-speaking world in general, and America in particular, at this snapshot point in 1933.

Strauss between Athens, Jerusalem… and Berlin
While Strauss appears alarmingly willing to accept the Nazis as the carriers of his Conservatism in May 1933, this certainly does not mean that he views fascism, or much less Nazism, as his political ideal. A close reading of his works at the time suggests a different perspective. He clearly had no love lost for the Weimar Republic and the values it embraced. He eagerly adopts Carl Schmitt’s critique of those values. While it is easy to cast Strauss in terms of the distant juxtaposition of Athens and Jerusalem, if we look for models of more immediate application, it seems clear that Strauss saw in Wilhelmine Germany a close approximation of his conservatism: an authoritarian state with a strong military tradition, a prodigious academy and flourishing art, and also a formal role for religion. Curiously, it’s precisely those elements of Wilhelmine Germany against which Strauss’ suspicions are turned – the left and the advocates of bourgeois liberalism - that seem to present something redeeming in an otherwise disturbing, if not suffocating intellectual landscape.

It may be argued that during his forty years in emigration, Strauss’ political views changed – that the horror of the Second World War, which clearly touched him deeply, caused a reassessment of his conservative principles. Strauss’ writings after the war present some basis for such argument. But they also are filled with passages that suggest straight-line continuity with the thinking he expressed in his letter to Löwith of May 1933. One example would be Strauss’ 1948 book On Tyranny, a study in Xenophon’s dialogue Hiero, in which Strauss embraces the concept of the philosopher-tyrant “who has committed any number of crimes” in the pursuit of the interests of his polis. The work and many of the thoughts expressed it in resonate with fascism, and particularly the Italian variant – and this resonance seems more closely linked to Strauss than to Xenophon.

I don’t ultimately consider Strauss a fascist, though I believe his writings fuel legitimate suspicion. I am troubled by the extent to which he is prepared to play with fascist thoughts, which now belong on history’s dust heap. But conversely, Strauss does not by any stretch of the imagination embrace democracy as the American Founding Fathers saw it. He is a clear critic of their project, and his criticisms seem remarkably consistent with the tactics that Neocons have used to come to power and hold on in the face of withering public criticism and rejection. All of which should suggest to the would-be guardians of America’s democratic traditions the wisdom of Isaiah Berlin’s words:

“I am bored by reading people who are allies, people of roughly the same views. What is interesting is to read the enemy; because the enemy penetrates the defenses.”

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The Letter: An English Translation

Paris, May 19, 1933

Dear Mr. Löwith,

On your behalf I have in the meantime made the necessary overture to Groethuysen, who is in London. Besides this I had occasion to speak with Van Sickle, the head of the Rockefeller Foundation, and informed him about you, your situation, your work and your interests. He made a note of your name, so I am sure he will remember it when he comes across it in Fehling’s letter.(1)

As concerns me, I will receive the second year. Berlin recommended me, and that was decisive.(2) I will also spend my second year in Paris, and I will attempt in this time to undertake something that will make my further work possible. Clearly I have major “competition”: the entire German-Jewish intellectual proletariat is assembled here. It’s terrible - I’d rather just run back to Germany.

But here’s the catch. Of course I can’t opt for just any other country - one doesn’t choose a homeland and, above all, a mother tongue, and in any event I will never be able to write other than in German, even if I must write in another language. On the other hand, I see no acceptable possibility of living under the swastika, i.e., under a symbol that says nothing more to me than: you and your ilk, you are physei(3) subhumans and therefore justly pariahs. There is in this case just one solution. We must repeat: we, “men of science,” - as our predecessors in the Arab Middle Ages called themselves - non habemus locum manentem, sed quaerimus…(4) And, what concerns this matter: the fact that the new right-wing Germany does not tolerate us says nothing against the principles of the right. To the contrary: only from the principles of the right, that is from fascist, authoritarian and imperial principles, is it possible with seemliness, that is, without resort to the ludicrous and despicable appeal to the droits imprescriptibles de l’homme(5) to protest against the shabby abomination.(6) I am reading Caesar’s Commentaries with deep understanding, and I think of Virgil’s Tu regere imperio… parcere subjectis et debellare superbos.(7) There is no reason to crawl to the cross, neither to the cross of liberalism, as long as somewhere in the world there is a glimmer of the spark of the Roman thought. And even then: rather than any cross, I’ll take the ghetto.

I do not therefore fear the fate of the émigré - at most secundum carnem:(8) the hunger or similar deprivations. - In a sense our sort are always “emigrants”; and what concerns the rest, the fear of bitterness, which is certainly very great, and in this sense I think of Klein(9), who in every sense has always been an emigrant, living proof for the fact that it is not unconquerable.

Dixi, et animam meam salvavi.(10)

Live well! My heartiest greetings to you and your wife

Leo Strauss

My wife sends her thanks for your greetings, and reciprocates heartily.

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Published Source: Leo Strauss, Gesammelte Schriften, Bd. 3: Hobbes’ politische Wissenschaft und zugehörige Schriften, Briefe (Heinrich Meier, ed.), Metzler Verlag 2001, pp. 624-25.

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Notes:

(1) In 1934, Karl Löwith, another Heideggerian, received a grant from the Rockefeller Foundation enabling him to leave Germany for studies in Italy; he subsequently traveled to Japan, and then to the United States, where he taught at the Hartford Theological Seminary and the New School in New York. He returned to Germany in 1952 with an appointment as professor of philosophy at the University of Heidelberg.

(2) Strauss had received notification that the Rockefeller Foundation was giving him a second year’s scholarship for post-graduate work in Paris.

(3) Greek in original, “by nature.” The following term, rendered here as “subhumans” is the Nietzschean expression Untermenschen.

(4) Latin, “We don’t have a lasting place, but seek…” The key phrase locum manentum appears repeatedly in the Vulgate Bible. Strauss’ sense would appear to be a conflation of Maimonides and Nietzsche – something like this: deterritorialized, uprooted, men of science cannot in good conscience identify with any exclusive group; that is for lesser men. On the other hand, identifying with diaspora Judaism may be a useful bridge.

(5) French, “inalienable rights of man” - quoted from the Declaration of the Rights of Man and of the Citizen, Aug. 26, 1789.

(6) In the original: “das meskine Unwesen,” the word “meskine” may be a Germanization of the French “mesquin” or Italian “meschino,” meaning “mean” or “shabby.”

(7) “Romans, be this thy care - these thine arts -/… to spare the humbled and/ to wear down the proud!” Virgil, Aeneid, lib. 6, line 851. In this quotation, Strauss characteristically elides the most famous portion of this passage, which relates to the obligation to “uphold the law of peace.” The passage is often quoted by Carl Schmitt.

(8) Latin, “with respect to the body.”

(9) Jacob Klein, another Heideggerian and friend of Strauss, with Strauss an advocate of the esoteric/exoteric approach to the study of classical texts, Klein emigrated and taught at St John’s College.

(10) Latin, “I have spoken and saved my soul.” A phrase associated with confessions, especially before the Holy Inquisition, though used ironically by Karl Marx and other political writers.

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I want to thank Alan Gilbert, Stephen Holmes and Fritz Stern for their many kind thoughts, suggestions and comments on the text. Any errors, however, are strictly the author’s.

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