Law and ideology

Sandy Levinson

Jill Goldenziel's posting below is a truly incisive summary of the domestic and international legal issues surrounding the killing of General Suleimani.I am incompetent, professionally speaking, to do anything more than admire the acuity of her analysis.  That being said, I think the current discussion, including Prof. Goldenziel's excellent analysis, underscores the extent to which law, with some obvious exceptions, works primarily to legitimize the actions of those in power.  (That is, the story we tell in the legal academy about the Supreme Court's serving as a true check on those with power is a pleasant fairy tale that exemplifies the ideological service provided by those who valorize the judiciary.) 

I am prepared to believe that Donald J. Trump's abrupt decision to kill General Suliemani was constitutional, just as it is clearly the case, thanks to "delegation run riot," that his arbitrary trade war with China (and most of the rest of the world) is constitutional.  One can certainly read the Commander-in-Chief Clause to allow the kind of unilateral exercise of presidential power seen in Iraq (even if there are alternative readings available that would question this).  And once one offers a capacious understanding of "imminence," as was done during the Obama Administration, then perhaps it's even possible to argue with a straight face that the killing was legitimate under international law. 

But so what?  C. Wright Mills coined the term "crackpot realism" in the 1950s to refer to the "hard-headed" analysts who, for example, counseled pre-emptive war against the Soviet Union (as Bertrand Russell in fact advocated in 1948.).  My own view is that the response of the Kennedy Administration during the Cuban Missile Crisis could be viewed such "crackpot realism," in that the U.S., by Kennedy's own estimate (as reported by Ted Sorenson), was that there was a 1/3 chance of thermonuclear war even though, as Robert McNamara had told the EXCOMM, the missiles in fact did not increase the threat to the security of the American homeland, even if it speeded up by 45 minutes or an hour the speed with which a Soviet missile could reach Miami or Washington.  In reviewing a book by Abram Chayes, the legal advisor to the State Department at the time, which defended the legality of the Administration's action, I referred to "crackpot legalism," tpified by a conversation, occurring after the nuclear war, in which  the survivors would say "At least it was legal."

I'm inclined to refer to Suleiman's killing as an "assassination.," though I realize that one might accept the category of "legitimate assassination,"just as the murder by the state via systems of capital punishment is conceptualized differently from ordinary murder.  That's a central function of lawyers, to make what would otherwise be unacceptable applying naive ordinary understandings appear perfectly legitimate because done in the name of the state (especially if one can claim that the state in some ways reflects the will of God).  The ultimate question with regard to the assassination/killing is its wisdom, not its legality.  I have many times in the past recommended Christopher Clark's The Sleepwalkers, examining the run-up to what became World War I in August, 1914.  No one expected the catastrophe that ensued.  All of the "leaders" believed there would be a short war that would achieve their policy aims.  They were disastrously wrong, even if the decisions made by Germany, France, the UK, Austria, and Russia all complied with their domestic laws and what was then international law.

No doubt this is  a somewhat overheated analysis.  There are lawyers (and judges) who deserve real admiration and veneration.  Think only of Brian Stevenson (who, of course, was "unthinkable" as a potential nominee to the Supreme Court) among current lawyers.  But we should recognize that the "natural arc" of law and lawyering is to defend and legitimize the desires of ruling political elites rather than genuinely to rebuff them.  (This is, among other things, why McCulloch is so much more important than Marbury, though the legal academy often wishes to pretend otherwise.)
Posted 12:46 PM by Sandy Levinson [link]