Balkinization  

Tuesday, September 09, 2008

Alan Gilbert on "constitutional dictatorship"

Sandy Levinson

Alan Gilbert, who teaches political theory at Denver, has asked me to post the following comment on "constitutional dictatorship":

I agree with the constitutional dictatorship point – there are emergencies – and the thoughts that it would be wiser to have no electoral college and knowledge of potential secretaries (at least the main ones) before electing a president (though this means “vetting” all of them which is an obstacle). The Palin choice is remarkable in that McCain’s choice was hasty and cynical in the extreme – a fearful “dictatorship” of the worst…

But the other point that deserves emphasis is that fear abroad is a tool to destroy the rule of law at home (what I have called in Must Global Politics Constrain Democracy? the anti-democratic feedback of global politics). This deterioration in fealty to the Constitution even as a promise, as something to return to in a temporary constitutional dictatorship, is as Rossiter emphasizes, a very deep problem: the difference between Cheney’s Schmittianism and Lincoln or even Roosevelt (Jack Goldsmith’s recent book emphasizes this difference between Roosevelt and Bush-Cheney).

The last 8 years have compromised the rule of law severely – making it possible to detain indefinitely Americans, licensing torture – that I doubt if the rest of the world (and many of us) sympathize much with the “war on terror,” for instance the American aggression against Iraq (it would be nice if we actually hunted Bin Laden…). American responses to terror which, as Richard Clarke insists, maintain the rule of law and civil liberties (to the maximal extent possible) are deserving of respect. McCain (the man who was tortured) and Palin (the one who distorts Obama as “wanting to read Al Qaida” their rights – she likes the torturers as long as they are Republicans) are self-contradictory, puffing by “the need
for a strong man” and even a “woman of God.”

A further aspect of the domestic fallout of international crisis has been the stealing of Presidential elections (particularly the discrepancy between exit polling and recorded votes, the use of computerized machines without a paper trail, and the abject stonewalling of the New York Times and the mainstream media about what exit polling showed). The dangers of a “close” election being yet again stolen (as were the last two) in America are unfortunately quite real. So there is not just a need for Obama to win (and win big), but to head off this alternative (and the Democrats are acquiescent in this matter as in many others).




Comments:

fear abroad is a tool to destroy the rule of law at home

"The fetters imposed on liberty at home have ever been forged out of the weapons provided for defense against real, pretended, or imaginary dangers from abroad." James Madison, The Aurora, February 23, 1799
 

What precisely does Professor Gilbert's disagreement with the policies of the current Administration and his paranoia about "stolen elections" have to do with a putative executive "dictatorship" created by our Constitution?
 

The argument that fear abroad can be used as a political tool at home is not a new observation. Has he not read 1984? But it does not really answer the question of how to deal with the problem without emasculating the executive. Saying that the solution is for your guy to win big is rather funny. (Apparently absolute power only corrupts the other guy absolutely.) What does he propose to actually deal with the problem, that will still allow an elected executive to respond decisively?

The point about presidential elections is historically inaccurate as well as irrelevant to the fallout from international crises. The 2004 election was stolen? How? By the wrong guy winning? Even Kerry does not believe the election was stolen. Bush won by a margin of 3M popular votes (more than 2% of the votes cast), 31 electoral votes and 12 states. That is not that close of an election. Just like the continued use of the word dictator or dictatorship when discussing executive powers, this line makes it hard to take the rest of the comment seriously. And how is the closeness of the election related to the fallout from international crises? This is a non sequitur.
 

There are many factual inaccuracies in Gilbert's post as well. Just to respond to some of the main ones,

I don't think either McCain or Palin has said anything about liking torture or torturers. Perhaps he can find a relevant quote? (There is a lot of distance between Miranda and torture.) McCain has inveighed against torture for years, and Palin has said nothing on the subject. [McCain did vote against one torture bill, but said that was only because of its sweep.] Does anyone really expect McCain to continue a pro-torture policy?

It is only possible to detain Americans indefinitely if they are enemy combatants, and indefinitely is defined as the duration of the war. They can also petition a judge for release. If the president were a dictator, he would be under no such constraints. Habeus is not something to which dictators have to respond.

MLK sometimes described himself as a man of God. Was he crazy too? A lot of Southerners certainly thought so. Or is it only extremism to mention God when the person disagrees with Gilbert on the issues? Gilbert might be shocked to discover that most Americans believe in God and hope God is behind their efforts (and vice versa).

Finally, McCain's choice may have been hasty but I don't see the cynicism. Balancing a ticket with someone quite different than the nominee has be SOP for years (at least before Clinton picked Gore). The idea was to expand the coalition, not to double down on the POV or the expertise of the presidential nominee. That is why Reagan picked Bush Sr., Dukakis picked Bentsen, Dole picked Kemp, JFK picked LBJ, Ike picked Nixon, etc. If you are an old white guy with all legislative experience and mostly foreign policy expertise, conventional wisdom would say that you pick someone young, not a white guy, who has executive experience, and whose expertise is domestic. I suppose you can call this cynical if you are looking for consistency in a ticket, but then at least half of our VP picks have been cynical, so we should be used to it by now.
 

zachary said...

Finally, McCain's choice may have been hasty but I don't see the cynicism. Balancing a ticket with someone quite different than the nominee has be SOP for years (at least before Clinton picked Gore). The idea was to expand the coalition, not to double down on the POV or the expertise of the presidential nominee.

Actually, I would contend that McCain's choice of Palin was indeed to double down to create the appearance of a pair of "maverick" Reagan revolutionaries. In short, the oft straying McCain needed Palin to re-establish his conservative street cred with the base.

This plan has been so wildly successful that McCain is attaching himself by the hip to her on the campaign trail to bask in the love. It is going to be a ego check of the Maverick when Palin goes off on her own and continues to draw big crowds while McCain goes back to the pedestrian crowds he is used to.
 

I generally agree with the comments that it's best to let the 2004 election go. The paradox, of course, is that the only possible argument as to a "stolen" election has to do with Ohio, with its 60,000 vote margin, so that if Kerry had magically beaten out Bush in Ohio and become president, he (Kerry) would still have been roughly 2,900,000 votes short of Bush in the popular vote. For those of us who dislike the electoral college, this is a damning point, of course.

Zachary also raises an important question about "emasculating the executive" (we presumably will have to find a new metaphor if Sarah Palin makes it to the Oval Office). One point raised by the Roman example is that we might want a "dictatorial executive" to be someone other than the person chosen in a regular election who is looking forward to running for re-election (and thus will be tempted to use the power to declare emergencies as an electoral weapon).

As for torture, yes I do expect McCain to continue to tolerate torture by the CIA, since he is unwilling to vote for a law that would disallow it (by applying the Army Field Manual to all US agencies). To be sure, he would, no doubt, allow it only in "exceptional situations," etc., but there is no reason to believe that he is anti-torture all the way down.

As for habeas, it remains to be seen whether a President McCain (or Obama) will release Mr. Hamdan at the conclusion of his term or declare the right to hold him "until the war on terror ends," i.e., until he is too old and inform to be a potential threat, at which time he will be thrown into the streets to die.
 

One point raised by the Roman example is that we might want a "dictatorial executive" to be someone other than the person chosen in a regular election who is looking forward to running for re-election (and thus will be tempted to use the power to declare emergencies as an electoral weapon).

Why do you assume that it is a bug, rather than a feature, for the person holding emergency powers to be subject to the electorate? Our whole constitutional heritage supports accountability through the electorate and it seems to me that by suggesting that we insulate the emergency powers from the electorate, you are removing this check. THAT will create a dictator. As long as he keeps his privy counsel happy, he can do as he wishes. In contrast, by giving the emergency powers to the person subject to election, you establish accountability for the use of such powers through popular vote. Seems to me that it is harder to keep 250M voters happy than to keep a counsel of 5 (or 7 or 9) happy.
 

As for habeas, it remains to be seen whether a President McCain (or Obama) will release Mr. Hamdan at the conclusion of his term or declare the right to hold him "until the war on terror ends," i.e., until he is too old and inform to be a potential threat, at which time he will be thrown into the streets to die.

My guess is that neither McCain nor Obama (nor Palin nor Biden) would let him go if al Qaeda remains a threat to the United States.

I would liken Hamdi's status to someone held through involuntary civil confinement as a sexual predator even after they have finished their criminal sentence (which is the law in something like 20 states). These laws recognize that even after someone has served their time for a given crime, there is an additional interest in specific deterrence that militates against releasing them, even on parole or supervised probation because of the odds of recidivism and the nature of the crimes to be prevented. These laws effectively allow for indefinite imprisonment of one kind or another but are largely accepted as the lesser evil when compared to risking the safety of women on the street.

So too with Hamdi and the other enemy combatants, except more so. We have an interest in making sure we have the right people in jail (hence Habeus proceedings), but our interests in public safety outweigh letting combatants go free while there is a non-trivial chance they will resume their activities. This is even more true when the crimes to be prevented are likely to kill hundreds or thousands of people, than when we are talking about preventing rape (not to diminish the significance of rape, but I think most people would concede that mass murder is worse).
 

Zachary:

It is only possible to detain Americans indefinitely if they are enemy combatants,...

Typo there. Should be: "It is only possible to detain Americans indefinitely if they are designated by the preznit to be 'enemy combatants',..."

The really neat trick they came up with was "group guilt"; the preznit determined that certain groups were "illegal enemy combatants", and thus anyone that they simply said belonged to those groups were thus as well in a remarkable inversion of respondeat superior....

Cheers,
 

Zachary:

[Prof. Levinson]: As for habeas, it remains to be seen whether a President McCain (or Obama) will release Mr. Hamdan at the conclusion of his term or declare the right to hold him "until the war on terror ends," i.e., until he is too old and inform to be a potential threat, at which time he will be thrown into the streets to die.

[Zachary]: My guess is that neither McCain nor Obama (nor Palin nor Biden) would let him go if al Qaeda remains a threat to the United States.

I would liken Hamdi's status to someone held through involuntary civil confinement as a sexual predator....


Hamdi was "let go". After claiming for years that he was one of the worst of the worst, following the Hamdi decision where Hamdi was granted the right to am independent determination of this claim, the U.S. gummint let him go (with the unconstitutional requirement he give up his U.S. citizenship; of course, after the treatment he received, he might have been tempted to do such in any case...).

I think you meant Hamdan. As various people have pointed out (including Jane Mayer in her book "The Dark Side"), the treatment of the various detainees may have made any actual prosecution for actual terrorist activities for the worst detainees impossible, so the only 'out' may be to hold them indefinitely without ever showing what they ever did that was bad. The worst of the worst may never face the death penalty. And the maltreatment of those that are innocent may may their release politically impossible.

Cheers,
 

I appreciate the posted guest comment from the Denver prof, who clearly has substantial bona fides on the systemic subtleties of the autocratic construct some of whose features he succinctly describes. It is evident from his work in the field that the compressed points covered in his statement represent years of research, as well as interchanges with students; consider, for example, his lecture on the same topic in Mallorca 7 years ago in spring Y2K. Further, his interests have spanned political systems which range from early Marxian implementations of bureaucracies to antipodes in Latin American paradigms of developing polity. The year prior to the Mallorca venue saw the Princeton University press publication of a paperback he wrote ""Must Global Politics Constrain Democracy? Great-Power Realism, Democratic Peace and Democratic Internationalism"", which has the ring of some of his opening remarks in the guest post, above. Beyond characterization of his work and interests as a mere political science prof, the international aspect and theoretical explorations into which he has excavated seem substantial and important. Rhetorically, I think the object lesson of one of his conduits of concern expressed in the post, namely the Republican ticket's way of reconciling torture with that party's platform, or the allied issues of secrecy, privacy, and habeas in western democracies, are worthwhile realms of investigation which interviewers and students of modern government and law need to explore both by direct questioning of all four candidates on the issues which are related, and by examining the record. I believe the results of that inquiry will yield more data about whether the political system as it exists here now has made the transition to the bleak world which Gilbert himself has depicted. Taking an inductive view of the attributes he describes, seems to support the warnings tacit in his message. I think it wise to examine dispassionately now the scenes he depicts, as his experience is evident in the demonstrations he has listed.
 

Zachary Our whole constitutional heritage supports accountability through the electorate and it seems to me that by suggesting that we insulate the emergency powers from the electorate, you are removing this check. THAT will create a dictator.

Just as it was that, in Roman history, that the office of Dictator, who was selected and elected with the full knowledge that their absolute powers were for a limited time (by the office holder and their electors) was rarely used because everyone knew what they were getting. On the other hand, the fight against Julius Caesar was due to the thought that he was going to crown himself king, which was a lifetime position with dictatorial powers.

Now, when Augustus became leader of Rome, he didn't seek to be king, or Dictator. He was just Princeps, and Counsel, and Pontifex Maximus, and Censor, and given tribunican powers. Effectively, he became Dictator, but without the title, and without the constraints. He became a monarch in all but name.

And of course, our current Commander in Chief is insulated from the electorate, as he does not have to worry about reelection, or recall ("impeachment is off the table"). What effective check is placed on him?
 

Some remarks on the comments:

On Mark’s very good quote and Zachary’s first point – Must Global Politics Constrain Democracy? trace how this is a big point in political theory from Socrates, Aristotle and Thucydides to Montesquieu and Marx, as well as Madison. It is absent from American realisms/neo-realisms and international relations discussion until my book (Princeton, 1999).

My post made the point that the Cheney doctrine is distinctively Schmittian – a reactionary, a Catholic fascist and later a Nazi who was very smart (as Sandy said, contributed something which American Lockeans – not Locke himself who included “prerogrative” in a way praised by Cheney’s advisor under President Ford, Robert Goldwin, and which has entered Cheney’s vocabulary along with “executive power” – have neglected.

To Bart’s comments, the last period of time marks an incredible erosion of the rule of law and democracy, including the subversion of the Justice Department to prosecute Democrats for electoral purposes (the very definition of tyranny). It includes absurd claims of dictatorial “executive power.” That Obama has appeared as an alternative says something good about the resilience of American democracy, but I wouldn’t be, even if he is elected, too sanguine in the intermediate run.

To Zachary, I admire King deeply – I think with Jimmy Carter, he may have been “the greatest leader American has produced” - and of course Obama is also religious (I should say by the way that Obama, to me, is pretty much what he seems – something unusual in American politics; as for the policies, perhaps a movement from below can “make Obama be Obama). One may easily invoke Christianity (or Socrates, for that matter) on behalf of civil disobedience against aggression (see “Do Philosophers Counsel Tyrants?” Constellations, March 2009). I have great difficulty, however, with a religiosity which seeks to ban books, fire librarians (look hard at Gonzalez’s corruption of the “Justice” Department and think about why Palin and more importantly, McCain who chose her would be different), thinks aggression is “blessed,” imagines “end times” (the last point is her preacher’s view and not necessarily hers), etc.. Palin is an able politician, but in terms of policy, a reactionary. Sure, Presidential candidates choose vice presidents of convenience; on the other hand, a governor who has no interest in foreign policy and a view that God is with American “wars” without further thought is an unusually corrupt choice (as Cheney shows, however, the appearance of “competence” here may mask truly unusual corruption as well). The fundamental issue here is McCain’s judgment.

On Zachary’s point about torture, Palin made the bizarre point that Obama seeks “to read terrorists their rights.” No one in North Vietnam read McCain rights. If one sympathizes with McCain as any decent person does, one might have a hard time with Palin’s line (and the McCain packagers who drafted and approved it). McCain was a leader in opposing torture (and I would have been glad to support him if he had stuck to it) but he didn’t (and now is willing enough for the CIA to torture, however useless and discrediting of the United States)…As for Obama, he seeks to prevent innocents from being tortured – and to strike fiercely at Al-Qaida (if he is unwise, it is for being a little to sympathetic to Bart’s simplemindedness about the President striking quickly in Pakistan).

What Sandy says about Ohio fits with the Conyers’ report but is wrong in thinking that this was the only or even the central issue about voting. . Exit polling is the one accurate aspect of polling in political science. In the last election, exit polling was right to .3 of a point in 41 states (Bush’s victory margin in Utah and Georgia, Kerry’s defeat, Kerry’s victory in New York and Massachusetts, Bush’s polling in defeat). In three states, Ohio, Florida, and Pennsylvania it deviated from the recorded vote by 4.9 (Florida) to 6.6. points (Pennsylvania), all in the direction of Bush. This is a much larger number of votes than Sandy is worried about in his comment. Further, computerized voting without a paper trail affected some 40 million voters last time (and the new Feinstein-Bennett resolution yet again seeks to remove the voter seeing or receiving any paper copy). I tried to raise this issue in the Democratic Party in Colorado in 2004 (with lots of support from below but to no avail) and was involved in the first protests after the election.

Statisticians like Steven Freeman have done various estimates of the likelihood of the results in the three states being random; it’s about 1 in a million. Robert F. Kennedy Jr. wrote a good article on this matter in Rolling Stone two years. The Times refused to release its exit polling statistics and offered silly explanations such as Evangelicals were afraid to say to exit pollers that they voted for “that godly man,” Bush. Their aim was to preserve order and suppress discontent (they were helped in this by Kerry who gave up too quickly and thus “legitimized” the results). A few statistics the Times finally released in January of 2005 revealed that Bush recorded extra votes where he already received 80%, further discrediting the Times’s “argument.”

The Help America Vote Act made the leading civic responsibility – public voting – a private matter, up to corporations which refuse to share their programs even with independent experts. It seems like voting – a public trust if there is one - should not be sacrificed to the profit of private companies (once again, the Democrats enabled this). The Times has mainly stonewalled researchers asking for data about this for the last four years. The Conyers’s committee chose not to link the evidence of fraud in Ohio to the startling exit poll data. Combined with all the other evidence about voter suppression by Republicans, I would not bet that anything but a 10% Obama victory will show up as a victory (in terms of who wins the elections, there are huge legal stakes involved for many who drank the heavy drug of “executive power” in the Bush administration). The Democrats have run away from this. It is a shame, though sadly not surprising, that among sophisticated constitutional lawyers, this issue should not be widely recognized or debated.

Alan Gilbert
 

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