The Return of Carl Schmitt

"Woe unto him who has no enemy, for at the Last Judgment I shall be his enemy."
- Carl Schmitt, Ex Captivitate Salus (1950)

A recent study points to 108 deaths in detention in the War on Terror, with a substantial part clearly linked to the Bush Administration’s controversial new coercive interrogation practices. Some of the most egregious cases involve the CIA. In this week’s New Yorker, Jane Mayer takes a close look at one case – that of Manadel al-Jamadi. Approximately two years ago, Jamadi died at the infamous Abu Ghraib prison near Baghdad. His death was quickly ruled a homicide, a CIA investigation found clear indicia of criminal wrongdoing, and with that the matter was placed in the hands of Paul McNulty – the U.S. Attorney for the Eastern District of Virginia and now the Bush Administration’s new nominee to serve as Deputy Attorney General. Since that time, from all appearances nothing has been done – the file has languished “in a Justice Department drawer,” in the words of one of Mayer’s informants.

Mayer, whose earlier writings have greatly contributed to the public understanding of the detainee abuse scandal, astutely recognizes the wide-ranging significance of the case. Justice in a homicide case is important enough, but this case raises another and potentially far more troublesome question: Has the Department of Justice been corrupted by its “torture memoranda”? Would a prosecution expose indelible links between the crime and the highest echelons of the Department of Justice? The question is not far-fetched. Indeed, its potential to rock the Bush Administration dwarfs that of the Plamegate scandal. As Marty Lederman established in a lengthy series of posts, the “torture memoranda” served a concrete double function: they overcame Agency objections that certain interrogation techniques violated the law (by furnishing an Attorney General opinion that they were lawful), and they offered effective impunity to CIA agents who uses these techniques. I caution that this is the function they were intended to serve. Whether memoranda of the Office of Legal Counsel can actually shield those who rely on them from prosecution is doubtful.

Let us assume that the techniques employed on Jamadi – including the likely fatal “Palestinian hanging” approach – were within the scope of the torture memoranda. Were charges to be brought against the agent who had custody of Jamadi and used the fatal technique, he would certainly plead the torture memoranda as an affirmative defense. Confronted with such claims, a truly independent prosecutor would have to consider the possibility that the authors of these memoranda counseled the use of lethal and unlawful techniques, and therefore face criminal culpability themselves. That, after all, is the teaching of United States v. Altstötter, the Nuremberg case brought against German Justice Department lawyers whose memoranda crafted the basis for implementation of the infamous “Night and Fog Decree.” Who can imagine Paul McNulty, now nominated to serve as Alberto Gonzales’ deputy, undertaking such an investigation of his boss? Hence, McNulty’s dilemma is understandable, but his failure to act should not be lightly dismissed.

Mayer’s article raises fair and compelling questions about McNulty’s handling of the Jamadi homicide case – and about the role of the Department of Justice in the investigation of detainee homicides generally.

But Mayer’s article is significant for another reason. It sheds new light on one of two of the “torture memoranda” which is not yet in the public domain, but has long been viewed as critical to understanding the inhumane practices that became commonplace in Iraq beginning in the fall of 2003.

A March [14], 2003, classified memo was “breathtaking,” the same source said. The document dismissed virtually all national and international laws regulating the treatment of prisoners, including war-crimes and assault statutes, and it was radical in its view that in wartime the President can fight enemies by whatever means he sees fit. According to the memo, Congress has no constitutional right to interfere with the President in his role as Commander-in-Chief, including making laws that limit the ways in which prisoners may be interrogated. Another classified Justice Department memo, issued in August, 2002, is said to authorize numerous “enhanced” interrogation techniques for the C.I.A. These two memos sanction such extreme measures that, even if the agency wanted to discipline or prosecute agents who stray beyond its own comfort level, the legal tools to do so may no longer exist. Like the torture memo, these documents are believed to have been signed by Jay Bybee, the former head of the Office of Legal Counsel, but written by a Justice Department lawyer, John Yoo, who is now a professor of law at Berkeley.

As has been noted in this space before, the March 14, 2003 Yoo memorandum has assumed a “Rosetta Stone” quality. It was transmitted to the Department of Defense as advice at a critical juncture – as the Iraq War moved off the drawing boards and into reality, and questions were repeatedly raised about how the Geneva Conventions were to be applied. But that's not all. Mayer's article now suggests the existence of other advice which explicitly addressed the situation in Iraq:

By the summer of 2003, the insurgency against the U.S. occupation of Iraq had grown into a confounding and lethal insurrection, and the Pentagon and the White House were pressing C.I.A. agents and members of the Special Forces to get the kind of intelligence needed to crush it. On orders from Secretary of Defense Donald Rumsfeld, General Geoffrey Miller, who had overseen coercive interrogations of terrorist suspects at Guantánamo, imposed similar methods at Abu Ghraib. In October of that year, however—a month before Jamadi’s death—the Justice Department’s Office of Legal Counsel issued an opinion stating that Iraqi insurgents were covered by the Geneva Conventions, which require the humane treatment of prisoners and forbid coercive interrogations. The ruling reversed an earlier interpretation, which had concluded, erroneously, that Iraqi insurgents were not protected by international law.

Documents which have circulated in connection with the Fay/Jones and Taguba Reports made clear that following the issuance of high-level legal advice outside normal Department of Defense channels, command authorities in Iraq no longer considered the Geneva Conventions to restrain them in their handling of detainees. Internal email traffic among military intelligence units is consistent: Once you label the insurgent detainees as “terrorists,” “they have no rights, Geneva or otherwise.” It seems highly improbable that officers carefully trained in the Geneva rules would suddenly discard them on their own initiative. To the contrary, it is reasonably clear that instructions to that effect were transmitted from a very high source. The Yoo memoranda are critical to understanding what happened, and the March 14, 2003 combined with the initial OLC advice concerning treatment of insurgents in Iraq are likely the most significant pieces of the puzzle not yet in place.

But where exactly did Yoo come up with the analysis that led to the purported conclusions that the Executive was not restrained by the Geneva Conventions and similar international instruments in its conduct of the war in Iraq? Yoo’s public arguments and statements suggest the strong influence of one thinker: Carl Schmitt.

The Friend/Foe Paradigm
Perhaps the most significant German international law scholar of the era between the wars, Schmitt was obsessed with what he viewed as the inherent weakness of liberal democracy. He considered liberalism, particularly as manifested in the Weimar Constitution, to be inadequate to the task of protecting state and society menaced by the great evil of Communism. This led him to ridicule international humanitarian law in a tone and with words almost identical to those recently employed by Yoo and several of his colleagues.

Beyond this, Yoo’s prescription for solving the “dilemma” is also taken straight from the Schmittian playbook. According to Schmitt, the norms of international law respecting armed conflict reflect the romantic illusions of an age of chivalry. They are “unrealistic” as applied to modern ideological warfare against an enemy not constrained by notions of a nation-state, adopting terrorist methods and fighting with irregular formations that hardly equate to traditional armies. (Schmitt is, of course, concerned with the Soviet Union here; he appears prepared to accept that the Geneva and Hague rules would apply on the Western Front in dealing with countries such as Britain and the United States). For Schmitt, the key to successful prosecution of warfare against such a foe is demonization. The enemy must be seen as absolute. He must be stripped of all legal rights, of whatever nature. The Executive must be free to use whatever tools he can find to fight and vanquish this foe. And conversely, the power to prosecute the war must be vested without reservation in the Executive – in the words of Reich Ministerial Director Franz Schlegelberger (eerily echoed in a brief submission by Bush Administration Solicitor General Paul D. Clement), “in time of war, the Executive is constituted the sole leader, sole legislator, sole judge.” (I take the liberty of substituting Yoo’s word, Executive; for Schmitt or Schlegelberger, the word would, of course, have been Führer). In Schmitt’s classic formulation: “a total war calls for a total enemy.” This is not to say that in Schmitt’s view the enemy was somehow “morally evil or aesthetically unpleasing;” it sufficed that he was “the other, the outsider, something different and alien.” These thoughts are developed throughout Schmitt’s work, but particularly in Der Begriff des Politischen (1927), Frieden oder Pazifismus (1933) and Totaler Feind, totaler Krieg, totaler Staat (1937).

A Practical Guide to Evasion of the Geneva Conventions
Given this philosophical predisposition, how was a lawyer then to evade the application of the Geneva and Hague Conventions? Here an answer can be drawn not from Schmitt’s academic works, but from a series of determinations by the German General Staff which quite transparently reflected the influence of the then-Prussian State Councilor Carl Schmitt. A careful review of the original materials shows that the following rationales were advanced for decisions not to apply or to restrict the application of the Geneva Conventions of 1929 and the Hague Convention of 1907 during the Second World War:

(1) Particularly on the Eastern Front, the conflict was a nonconventional sort of warfare being waged against a “barbaric” enemy which engaged in “terrorist” practices, and which itself did not observe the law of armed conflict.
(2) Individual combatants who engaged in “terrorist” practices, or who fought in military formations engaged in such practices, were not entitled to protections under international humanitarian law, and the adjudicatory provisions of the Geneva Conventions could therefore be avoided together with the substantive protections.
(3) The Geneva and Hague Conventions were “obsolete” and ill-suited to the sort of ideologically driven warfare in which the Nazis were engaged on the Eastern Front, though they might have limited application with respect to the Western Allies.
(4) Application of the Geneva Conventions was not in the enlightened self-interest of Germany because its enemies would not reciprocate such conduct by treating German prisoners in a humane fashion.
(5) Construction of international law should be driven in the first instance by a clear understanding of the national interest as determined by the executive. To this end niggling, hypertechnical interpretations of the Conventions that disregarded the plain text, international practice and even Germany’s prior practice in order to justify their nonapplication were entirely appropriate.
(6) In any event, the rules of international law were subordinated to the military interests of the German state and to the law as determined and stated by the German Führer.

The similarity between these rationalizations and those offered by John Yoo in his hitherto published Justice Department memoranda and books and articles is staggering. It is of course possible that John Yoo came upon all of this on his own, like a scholar laboring in some parallel universe unaware of the work of others. Possible. But not probable.

It is more likely that Yoo’s work is a faithful, through crude and occasionally flawed interpretation of Schmitt. I say "crude" principally because Schmitt expresses from the outset the severest moral reservations about his concept of "demonization." It is, he fears, subject to "high political manipulation" which "must at all costs be avoided." The use of this technique, he writes, may only be available when "the survival of the people is at stake." Der Begriff des Politischen, pp. 20-33. Yoo expresses no comparable hesitation, preferring simply to place all confidence in the Executive, and justifying this implausibly in the writings of the Founding Fathers.

But Yoo's conclusions are rendered even more inexplicable by another point. After World War II was over and the full horror of what the Axis Powers had done was apparent, a consensus was reached to overhaul the Geneva Conventions with the express intention of repudiating the German evasions of the Conventions listed above. So, while these positions may have been arguable with respect to the two 1929 Geneva Conventions, they hardly could be invoked with respect to the 1949 Conventions. But Yoo continues to cite them, oblivious to the shifts in text and commentary that occurred in 1949.

So how does Yoo come by the work of Carl Schmitt, and why does he fail to acknowledge it in his publications? Yoo is currently a scholar in residence at the American Enterprise Institute, the center stage of the American Neoconservative movement. That movement traces itself back to Leo Strauss, the political philosopher who lived and taught for many years in Chicago. Though a Jew forced to flee Nazi Germany, Strauss was a lifelong admirer of Carl Schmitt, a scholar and teacher of his works. Moreover, Strauss’ early work in Germany played a key role in development of the Begriff des Politischen, and Schmitt’s intercession helped Strauss obtain a key scholarship that made his escape from Germany possible. Though arrested by the Americans and accused of complicity in Nazi crimes, Schmitt achieved a partial rehabilitation late in his life - thanks in large part to Leo Strauss. Indeed, Schmitt emerged as an essential part of the Neocon canon, and his work – including all the relatively obscure works cited here – were translated into English and published by the University of Chicago Press (also Yoo’s publisher). It is therefore hardly plausible to suggest that Yoo would be unfamiliar with the writings of Carl Schmitt. On the other hand, it is easy to surmise why he would fail to acknowledge his reliance on such a highly stigmatized writer. After all, Schmitt was a notorious antisemite best known for crafting the legal cover for Hitler's Machtergreifung.

Why Carl Schmitt Hates America
Carl Schmitt was a rational man, but he was marked by a hatred of America that bordered on the irrational. He viewed American articulations of international law as fraught with hypocrisy, and saw in American practice in the late nineteenth and early twentieth centuries a menacing new form of imperialism (“this form of imperialism… presents a particular threat to a people forced in a defensive posture, like we Germans; it presents us with the greater threat of military occupation and economic exploitation” he writes in 1932 – at a time of almost unprecedented American isolationism)(Die USA und die völkerrechtlichen Formen des modernen Imperialismus, p. 365). He saw in the peculiarly American notion of consensus-democracy an unsustainable foolishness, and in the Jeffersonian vision of small government with a maximum space for individual freedom a threat to his peculiar Catholic values.

Today, President Bush has again defended his indefensible treatment of detainees and claimed for himself rights that all his predecessors firmly disavowed. As president, he has cast aside the values of George Washington, Abraham Lincoln and Dwight Eisenhower – values on which the country was founded and built – and embraced instead those of Carl Schmitt, the lawyer who prostituted his genius to the cause of Fascism and fervently prayed for America’s destruction. What a great irony.

John Yoo and his colleagues present their critique of international humanitarian law as a validation of the sovereigntist tradition of the American Founding Fathers. That such claims can be taken seriously reflects a failure of critical thought in contemporary America. Yoo’s views on international humanitarian law have absolutely nothing to do with the Founding Fathers. They are a cheap, discredited Middle European import from the twenties and thirties. Viewed this way, it becomes increasingly clear where they would lead us.