C
R
T
C
S
M
STATE OF EXCEPTION
Bush's war on the rule of law
By Scott Horton
A
t its finest moments the Republican Party has been a vocal
and unsparing advocate for human
rights. "Though force can protect
in emergency," insisted Dwight D.
Eisenhower, the party's great warriorpresident, "only justice, fairness, consideration, and cooperation can finally lead men to the dawn of eternal
peace." But under the current administration, those designated as enemies
have no rights, neither under the laws
of war nor under any notion of criminal justice. A radical rupture has occurred; American legal tradition has
been swept aside and, with it, longestablished precedents for dealing with
adversaries in wartime--even those accused of heinous crimes. Nowhere is
that more clear than in the treatment
of the so-called habeas lawyers (so
named because of their repeated attempts to enforce the rights of their
clients through the writ of habeas corpus-the
legal procedure that allows
an imprisoned person to test the legality of his detention) who counsel the
detainees at Guantanamo Bay, Cuba.
The habeas lawyers have been
tarred with ethnic slurs and accusations of homosexuality, accused of undermining national security, subjected to continual petty harassment.
New York attorney Scott Horton, known
for his work in human-rights law, writes the
daily weblog No Comment for Harpers .org.
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HARPER'S
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/ JULY 2007
They have also had their livelihoods
threatened through appeals to their
paying clients. These events have been
reported as separate incidents in the
press, but this conduct results from a
carefully orchestrated Bush Administration policy that goes under the
rubric of "lawfare."
According to Major General Charles
J. Dunlap [r., now the Air Force's deputy
judge advocate general, lawfare is the
"strategy of using or misusing law as a
substitute for traditional military means
to achieve an operational objective."
As the neoconservative lawyers David
Rivkin and Lee Casey have put it, lawfare aims to "gain a moral advantage
over your enemy in the court of world
opinion, and potentially a legal advantage in national and international tribunals." The concept, which has been
discussed in the Federalist Society and
at National Review Online, became doctrine in the March 2005 National Defense Strategy of the United States of America: "Our strength as a nation state will
continue to be challenged by those who
employ a strategy of the weak using international fora, judicial processes, and
terrorism." Note the equation of "international fora, judicial processes, and
terrorism." In other words, turning to
courts for the enforcement of legal
rights, appeals to international tribunals,
and terrorism are seen as the elements
of a single consistent enemy strategy. In
the strange reasoning of the lawfare
theorists, lawyers who defend their
clients, or who present their claims to
domestic or international courts, might
as well be terrorists
themselves.
Human-rights organizations that stand
in court to insist that the Geneva Conventions apply to Guantanamo detainees are thus also guilty of lawfare.
This is a remarkable departure from
traditional legal and military doctrine.
The United States has long had a preference for using international courts to
avoid military confrontations whenever possible. At the conclusion of'the
Civil War, for example, the United
States was at the brink of hostilities
with Great Britain over her building
and supplying of the Alabama and other Confederate warships. The U.S; and
Great Britain agreed to take the dispute
to binding arbitration. The result was
an enormous amount of money awarded to the United States in 1872; moreover, conflict with Britain was averted, and the former enemy eventually
emerged as a vital U.S. ally. Theodore
Roosevelt, no shrinking violet, mediated the Treaty of Portsmouth in 1905
and helped bring the Russo-Japanese
War to a close; for his efforts he was
awarded the Nobel Peace Prize.
Lawfare, as defined by Bush Administration officials, is a terrorist tactic. Yet to anyone trained in English
and American jurisprudence, not to
mention the thinking that has dominated the Anglo-Saxon legal world at
however, the U.S. government has actively subverted attempts to provide
its prisoners with legal representation.'
This spring I interviewed ten habeas
lawyers about their experiences visiting
Guantanamo and found the descriptions depressingly similar. All noted a
stark formality underneath which hostility bristled. Karen Greenberg, executive director of the Center on Law
and Security at the New York University School of Law, agreed with this
assessment. Greenberg went for a fourday visit to Guantanamo
in early
March. "Several times during the
least since 1688, those who are accused of engaging in lawfare are simply
exercising well-established legal rights
and liberties. Indeed, the lawfare doctrine is the conceptual framework that
best reveals the degree to which the
Bush Administration has effectively
declared war on the rule
of law itself.
E
rom the beginnings of the "war on
terror," both the Department of Defense under Donald Rumsfeld and the
Department
of Justice under John
Ashcroft and later Alberto Gonzales
ATTORNEY
SARAH
ABDUlAZtZ
HAVENS
HOLDS
AL·SWIOI,
took the position that detainees had
no right to counsel. Guantanamo Bay
was selected to host a detention facility largely because it was believed to be
beyond the jurisdiction of U.S. courts.
This strategy failed, at least initially,
and federal courts issued orders recognizing counsel for purposes of habeas
corpus petitions and directing that the
counsel be given access to their clients.
The Pentagon was forced to relent, and.
defense lawyers were given grudging
access to the detainees. At every stage,
Photographs
PHOTOGRAPHS
AND
CRADLES
OF
HIS
HER
CLIENT,
NEWBORN
NIECE
GUANTANAMO
IN
HER
DETAINEE
ARMS
course of my tour," she told me, ''habeas
lawyers were mentioned with disdain
and suspicion, as if they, alongside the
detainees, were enemies to be reckoned with." Several of those I interviewed described tedious formalities,
1 Never more so than in the ·habeas-corpusbashing Military Commissions Act of 2006a piece of legislation that wilt stand in history
alongside the Alien and Sedition Acts and the
Fugitive Slave Act as a reminder of the kind
of constitutional vandalism that Congress is capable of when it realty tries.
© 2007 Margot Herster. Collection of Through the Walls/Margot
Herster
including frequent searches of files,
notebooks,
papers, and materials
brought by counsel. Copies of court
papers and pleadings are intercepted,
with the claim that their transmission
to the detainees is not permitted. Attorney-client
confidentiality
is respected grudgingly, if at all.
David H. Remes, of the Washington,
D.C., law firm Covington & Burling,
reported that confidential notes from
client meetings had been opened.
"Everything we learn from our clients
is presumed to be classified information," said Remes. "Weare therefore required at the end of each
day to tum over to our
military escorts, in sealed
envelopes, our client interview notes. At the end
of our visits, we may not
take our notes with us;
instead, the notes must
be sent to a secure facility in Crystal City, Virginia, where they must be
reviewed by a government privilege review
team, which is supposedly walled off from the
DOJ litigation team, before the notes can be
made public." Habeas
lawyers' client interview
notes are supposed to be
sealed with three security stickers to prevent
tampering. Remes told
me that on one of his visits to Guantanamo
he
clashed over client access
with the officer overseeing the visit: "When I returned to Washington,
the court security officer,
who is responsible for the
handling of our papers
once they are in Washington, informed
me that the envelope containing my
notes had arrived with all three security stickers broken and the envelope
flap opened.
"The government claimed that this
was accidental-the
result of jostling
when our military escort took the envelope to the post office at the base.
More likely, the military authorities
opened the envelope to show that
they could do so with impunity and
that habeas counsel can have no ex-
CRITICISM
75
Kuwaiti clients told him
that interrogators
had
warned them that he was
Jewish. He quoted the interrogators: "How could
you trust Jews? Throughout history, Jews have betrayed Muslims. Don't
you think that your
lawyers, who are Jews,
will betray you? ... Don't
ever believe that a Jew
will help a Muslim unless
he gets more out of it
than he gives .... What
will other Arabs and
Muslims think of you
Kuwaitis
when they
know the only 4.elp
you can get is
~
from Jews?"3
EARRINGS
PUR'CHASED
FOR DETAINEE
00N'T
1I
AaDUlAZIZ
DESPAIR,
pectation that the government will
respect the attorney-client privilege."!
Several attorneys I spoke to remarked that their clients had been told
that all their interviews with lawyers
were spied upon and that there were no
confidences between the habeas lawyers
and their clients. "My client jumah alDossari," said Joshua Colangelo-Bryan
of Dorsey & Whitney, "reported that
interrogators told him that they knew
what he told his attorneys." Some de2 An examination of the Department of Defense's redactions from testimony at closed
hearings reveals a consistency in what officials consider "classified" about these conversations: whenever detainees describe how
they have been subjected to torture and other
physical and mental abuse, the passages are
stricken. The Pentagon apparently considers
torture techniques to be highly classified
national-security information. Considering
that all of these interrogation protocols have
now been the subject of extensive reporting
in the press as well as the subject of congressional hearings and that many of the underlying documents have been published, it is
difficult to understand the logicalbasisfor the
government's claim of secrecy. A more likely
explanation is a desire to avoid embarrassment from the disclosure of practices that
much of the world views as criminal. Secrecy
is being used to conceal criminality-not of
the detainees but of the government.
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/ JULY 2007
Al-SWIDI'S
SOMEONE
MOTHER
BY ATTORNEY
IN THE SKY IS TAKING
SARAH HAVENS.
THE NOTE
CARE."
scribed how security guards opened
notes of confidential attorney-client
meetings and began to read them under the pretense of checking for con- .
traband. Clive Stafford Smith, a prominent English human-rights lawyer with
U.S. legal training and experience, has
represented a number of detainees at
Guantanarno, He described meeting
with one of his clients in the spring of
2006: "My client suddenly and awkwardly said, 'The interrogators say that
you have sex with men, and that you
can't be trusted.'" Another client said
that interrogators had told him that
his lawyer was a "Jew and a Zionist
and only interested in money, not in
helping you." Stafford Smith described
this as a calculated effort to undermine the attorney-client relationship:
"In our visits to Guantanamo, we have
only a few hours over a period of several days to meet with our clients. The
point of these tactics is to frustrate our
ability to communicate, forcing us to
waste precious hours in efforts to
reestablish trust."
Stafford Smith's account parallels
that of Shearman & Sterling partner
Tom Wilner. In a court filing in April
2005, Wilner states that two of his
.•. he government's
strategy, which stands
in clear defiance of the
Supreme Court decisions in Hamdan and
READS,
Rasul, has clearly been
effective. It aims to destroy any relationship of trust between
the detainees and their lawyers as a
way of bringing all court action to an
end. Several habeas lawyers have reported that their clients asked them
to stop acting on their behalf.
The Pentagon usually dismisses the
incidents attorneys complain of as individual instances of incivility or unauthorized statements. But these episodes
fit an unmistakable pattern: they are
sharply at odds with the formal, restrained habits of most military prisons
and military lawyers, and they reflect the
ideological structure of the lawfare concept. Further evidence of the systematic
character of the administration campaign can be found in public remarks by
officials; indeed, there has been no
shortage of government spokespersons
3 Habeas lawyers have also been accused of
complicity in or responsibility for the hunger
strikes and suicide attempts by detainees.
Colangelo-Bryan notes that after a detainee
attempted suicide in October 2005, a military lawyer told him it had been suggested
that he had given the detainee an implement
with which to cut himself. Stafford Smith
recounts being pulled aside on August 5,
2005, taken into a cell, and told by a uniformed officer, "You're the one behind this
hunger strike. "
willing to go on the record disparaging
the habeas lawyers, often in apparent
collaboration with the press. On january 11, 2007, for example, Charles D.
("Cully") Stimson, the deputy assistant
secretary of defense for detainee affairs,
gave an interview to Federal News Radio, a Washington, D.C., station that
targets an audience of federal employees. "I think," said Stimson, "the news
story that you're really going to start
seeing in the next couple of weeks is
this: As a result of a FOIA request
through a major news organization,
somebody asked, 'Who are the lawyers
around this country representing detainees down there?' and you know
what, it's shocking." Stimson then proceeded to give the full names of a dozen
of the nation's most prominent law
firms, adding: "I think, quite honestly,
when corporate CEOssee that those
firms are representing the very terrorists
who hit their bottom line back in 2001,
those CEOs are going to make those
law firms choose between representing
terrorists or representing reputable firms,
and I think that is going to have major
play in the next few weeks. And we
want to watch that play out."
The following morning the Wall
Street Joumal published an editorial by
neoconservative Robert L. Pollock, a
member of the Journal's editorial board.
Pollock's piece also attacked the law
firms providing pro-bono representation to the Guantanarno detainees.
(Pro-bono attorneys are not compensated for their work; they provide defense counsel as a form of public service
designed to ensure that the indigent
have adequate and fair legal representation.) Pollock quoted an unnamed
"senior U.S. official," who made the
following comment: "Corporate CEOs
seeing this should ask firms to choose
between lucrative- retainers
and representing terrorists."4
O
n November 10, 2006, the attorney general of each of Australia's
If this was the beginning of a campaign to
hit the habeas lawyers squarely in the pocketbook by driving away their corporate clientele, it backfired. Former Reagan Administration solicitor general Charles Fried led a
list of prominent conservatives who lashed
out at Stimson. Stimson was forced to apologize for his comments and then to resign.
The Pentagon claimed that Stimson's comments were not a reflection of official policy.
4
states and territories signed the Fremantle Declaration, embracing seven
fundamental
principles of justice,
including the right to a fair trial, the
guarantee of the right of habeas corpus,
a prohibition of indefinite detention,
and a ban on torture. Although the
declaration contained no explicit reference to David M. Hicks, a former
Australian cowboy and kangaroo skinner being detained at Guantanamo,
the Fremantle Declaration was immediately understood as a condemnation
of the conditions under which he was
held, of the inadequacy of the legal
proceedings the United States proposed to conduct, and of the Bush Administration's efforts to suspend the
writ of habeas corpus.
Hicks's
counsel
was Major
Michael D. Mori, one of the bestknown of the uniformed defense
lawyers. Recognizing that the Bush
Administration had cut a number of
deals with allies on the treatment or
relocation of their nationals, Mori
had brought Hicks's case to Australia and begun an active lobbying
campaign on his client's behalf.
Mori's work, unlike that of the probono counsel, was part of his formal
duty requirements.
But similar attempts were made to impede his
progress. Reportedly, a government
office actively tried to block Mori's
trips to Australia, and the chief military prosecutor for the tribunal at
Guantanarno
publicly denounced
Mori while privately suggesting reasons Mori could be disciplined.
Nor was Mori's case an isolated incident.
Lieutenant
Commander
Charles D. Swift was detailed to serve
as defense counsel to Salim Ahmed
Hamdan, a Guantanamo detainee who
admits that he was Osama bin Laden's
driver. Working with Georgetown law
professor Neal Karval, Swift challenged the legality of the military commission's process in which Hamdan
was to be tried up to the Supreme
Court, where he prevailed on all major issues. For his brilliant and highly
effective advocacy, Swift was runnerup for The National Law Journal's
lawyer of the year award in 2005, and
in 2006 he was named one of the one
hundred most influential lawyers in
America by the same publicationthe only Defense Department lawyer
to be so recognized. He was rewarded
by being passed over for promotion
and is therefore now preparing to depart the service. Several other military
lawyers told me they felt that a Guantanamo defense assignment was a "career stopper." "Either you roll over
and show you're a worthless lawyer,
or you give it all you've got and
prepare to leave the
service," said one.>
"
T
""
hat makes the cases of the
habeas lawyers so disturbing, what
evokes the specter of tyranny, is that
many of the legal issues involved
were resolved
a century before
America gained its independence. It
is as if hundreds of years of legal
precedent suddenly vanished.
Although the English civil wars
were fought over broad religious
and political issues, when we read
the masterful histories of Thomas
Babington
Macaulay and G. M.
Trevelyan it seems that much of the
fighting was actually over technical
legal questions: Will habeas corpus
be guaranteed? Will there be a right
to a jury? Can the prosecution use
secret evidence? Will the courtroom
be open and the trial public? Will
the accused have the right to know
the evidence against him, to face
his accuser? Can torture and other
cruel practices be used to extract
evidence? These issues echo, to an
astonishing extent, the issues that
the Guantanamo habeas lawyers are
litigating today. The Roundheads
who rose for God and Parliament
defined the justice of their cause in
similar terms.
Indeed,
the entire history of
seventeenth-century
England can
be seen as the triumph of demands
for fair process and justice over the
claims of royal prerogative.
As
Trevelyan wrote, "At a time when
the Continent was falling a prey to
despots, the English under the Stuarts had achieved their emancipation from monarchical tyranny by
the act of the national will. ...
This spring, the government sought a protective order that seeks yet again to restrict
access by lawyers to their clients. This move
was condemned by the presidents of the
American Bar Association and the New
York City Bar Association.
5
CRITICISM
77
ADVERTISEMENT
The Great Writers
of Ireland
Seamus
Heaney
Born in
April 1939,
Seamus
Heaney
grew up in
Northern
Ireland's
countryside
on a farm
owned and
operated by
his father, a cattle-dealer. The eldest of nine children, Heaney left
the family farm at the age of
twelve for a Catholic boarding
school and would go on to live in
Belfast, Dublin, and Cambridge,
Massachusetts., where he taught at
Harvard for over a decade. But
while he traveled far from his
roots, the rural County Derry
never strayed far from the poet's
mind. Heaney described the transition from his bucolic childhood
to a scholarly life as a departure
from II the earth of farm labour to
the heaven of education. II He first
drew national recognition for his
poems while working as a young
professor at Queen's University in
Belfast during the mid-1960s. His
early work drew often from nature
and scenes of the Irish countryside, but the violence and polarization that engulfed the region for
the next quarter-century also
deeply influenced the tone of
Heaney's work. He believed that
poetry should be "true to the
impact of external reality and ...
sensitive to the inner laws of the
poet's being." In collections such
as the Government of the Tongue in
1988 and the Redress of Poetry in
1995, Heaney frequently considered poetry's moral responsibility.
These concerns motivated his
involvement with the theater
company Field Day, which used its
productions to bring attention to
Ireland's political problems. In
1995, the poet was awarded the
Nobel Prize in Literature. Last
January Heaney, who now lives in
Dublin, won the T.S. Eliot Prize
for Poetry for his most recent collection, District and Circle.
~
Tourism Ireland
Never perhaps in any century have
such rapid advances been made towards freedom."
These advances came at great
cost. Lawyers who advocated
habeas, assailed the injustice of the
Stuart courts, and denounced torture were cruelly treated when the
power of the monarchy waxed. No
figure merits more recognition in
this regard than John Cooke, the
Commonwealth's solicitor general.
Cooke engineered procedural reforms designed to grant equal access
to justice and to ensure that considerations of humanity and fairness
governed the legal process, and he
masterminded the defense for the
regicides at their trial in 1660. But
Cooke and a large number of other
leaders of the legal-reform movement were tried and gruesomely executed in the kangaroo courts that
were conducted following the Stuart Restoration.
After years of Stuart revenge
against lawyers, it would take another generation to establish that justice
demands a fair defense and that the
actions of defense counsel should not
be confused with the crimes of their
clients. But the public remembered
the cruelty of the Stuart monarchs.
John Milton, for instance, memorialized the drawing and quartering of
his contemporary John Cooke in his
epic Samson Agonistes ("thir carkasses/To dogs and fowls a prey, or else
captiv'd:/Or to the unjust tribunals,
under change of times").
One hundred and fifty years later,
at the divorce trial of Queen Caroline, the importance and independence of defense counsel was finally
well appreciated.
Henry Peter
Brougham, who handled the queen
consort's defense, threatened
to
make public information embarrassing to the Crown. Considering the
identity of the king in questionGeorge Ill's dissolute son-that
wouldn't have been difficult, but
presumably it related to his secret
and illegal prior marriage. Defending himself, Brougham furnished the
classic statement of the responsibility of a good defense counsel:
"An advocate, in the discharge of
his duty, knows but one person in
all the world, and that person is his
78
HARPER'S
MAGAZINE
I JULY
2007
client. To save that client by all
means and expedients, and at all
hazards and costs to other persons,
and, among them, to himself, is his
first and only duty; and in performing this duty he must not regard the
alarm, the torments, the destruction
which he may bring upon others.
Separating the duty of a patriot from
that of an advocate, he must go on
reckless of consequences, though
it should be his unhappy fate
to involve his country
in confusion."
A
merica, the last redoubt of
the Roundheads, predictably took
an even more protective view of
defense counsel and their role in
unpopular causes. On March 5,
1770, British soldiers fired into an
unruly Boston crowd that had
hurled snowballs at them. Five
colonists
were killed and six
wounded by the gunfire in an incident that came to be known as the
Boston Massacre and is invariably
counted among the warning rumbles of the American Revolution.
The British soldiers and their officer were brought up on charges of
murder,
and the patriot
John
Adams, known for his criticism of
the British Townshend Acts to tax
imports, was engaged to defend
them. Adams argued that the soldiers were intimidated by the crowd
and were acting only in their selfdefense-and won acquittal for seven of his clients; two others were
convicted of the lesser charge of
manslaughter.
In the highly
charged atmosphere of the trial,
Adams was risking his physical
safety and his career as a politician.
"I ... devoted myself to endless
labour and Anxiety if not to infamy
and to death," wrote Adams in his
autobiography, "and that for nothing,
except, what indeed was and ought
to be all in all, a sense of duty."
"The Part I took in Defence of
Captn. Preston and the Soldiers," he
wrote in his diary, "procured me
Anxiety, and Obloquy enough. It
was, however, one of the most gallant, generous, manly and disinterested Actions of my whole Life, and
one of the best Pieces of Service I
ever rendered my Country."
John Adams was subsequently a
leader of the Revolution, as well as
the first vice president and the second president of the United States.
In his view the interests of justice
could not be separated from the interests of his country, and justice required that the British soldiers have
a fair and vigorous defense.
Consider also the events of June
1942, when German submarines deposited a team of saboteurs on the
shore of Long Island and a second
team at Ponte Vedra Beach, Florida. One of the saboteurs went
straight to the FBI to disclose the
plot, then helped track down the
rest. President Franklin D. Roosevelt directed that the saboteurs be
tried by military commission, and
Colonel Kenneth C. Royall was assigned to defend the saboteurs. Royall handled the defense with vigor,
ultimately
appealing
to the
Supreme Court in Ex parte Quirin,
contrary to the instructions of President Roosevelt, who had not envisioned such an appeals process.
Royall's efforts in court failed,
though the sentences of two of the
would-be saboteurs were subsequently commuted. Considering the
atmosphere in America in the first
years of the war, it is hardly surprising that Royall was publicly assailed
as the case was heard.
The position of the War Department, however, was consistent: Royall was performing an essential function and was doing it with the zeal
and dedication that the defendants
had a right to expect. Unlike the
military lawyers who see an assignment to defend a Guantanarno detainee as the death of a career, Royall could expect to be rewarded for
doing his job. He was promoted to
brigadier general, and then, as the
war entered its final year, he became
undersecretary of war. Finally, in
1947, President Truman appointed
Royall the nation's last secretary of
war, thereby acknowledging his distinguished career, including his
highly unpopular handling of the defense in Quirin.
Truman also saw aggressive criminal prosecutions as an important
tool in establishing the righteousness of the Allied cause in Wodd
80
HARPER'S
MAGAZINE
/ JULY 2007
War II, pushing ahead with a plan
to convene international tribunals
at the end of the war to fully expose the genocidal conduct of the
Nazi regime. One of the most contentious issues in making arrangements for these tribunals
was
whether the defendants would be
represented
by counsel of their
choosing and have the right to present a vigorous defense. Justice
Robert H. Jackson, on leave from
the Supreme Court to handle the
arrangements and to act as chief
prosecutor, carried the day by establishing that it was vital to the
Allies not only that the tribunals
do justice but that they be perceived as doing justice. This, he
correctly noted, could occur only if
defense counsel were involved and
given fair space in which to conduct a defense. The trials that followed shocked the world. But defense counsel
mustered
some
intelligent and effective arguments
and secured acquittals in some cases and mild sentences in others.
The trials would have a powerful
impact in Germany, serving as a
sort of exorcism. In the world that
emerged from this conflict, the
three defeated Axis powers became
trusted allies of the United States.
There is no doubt that the broad
recognition of the quality of the
justice dispensed at Nuremberg
played an important role
in that process.s
rJ""
~ he lawfare doctrine introduced
by the Bush Administration violates
this tradition. It has no antecedent
in American practice, and in the
end it is possible to find a precedent
only if we look outside the United
States to German conservative political and jurisprudential thinking
between the world wars. The most
important German legal theorist of
the period between the wars was
Carl Schmitt. A conservative who
longed for the restoration of the au6 It is interesting
that the Nuremberg
process was criticized by "Mr. Republican," Senator Robert Taft; he suggested
that the punishments meted out to the Germans had been too severe and that the
prosecutors had reached too deeply in the
cases they brou~ht.
thoritarian style of late Wilhelmine
Germany, Schmitt was a convinced
enemy of the liberal democratic
principles embodied in the Weimar
Constitution that was adopted after
the close of World, War 1. For
Schmitt, the notion of dispassionate
and independent administration of
justice was a dangerous liberal illusion. He sought to restructure the
legal profession-ensuring
that
judges were not independent but essentially extensions of the executive, that prosecutors were fully politically subordinated,
and that
defense counsel were, in general, silenced. In the years that followed,
Schmitt's ideas were put into practice, and a large number of the most
prominent members of Weimar Germany's defense bar went into exile,
many of them moving to the United
States and Britain.
Carl Schmitt also laid the foundations for a new attitude toward
warfare and the role of law in the
conduct of war. In his early masterwork, The Concept of the Political
(1927), Schmitt derided the weakness of liberalism and its efforts at
consensus building and instead embraced the legitimacy of a process
of extreme demonization of political adversaries. Guaranteeing legal
rights to an enemy was thus senseless and counterproductive.
In its
place, Schmitt advanced the notion of "total war" ("Total Enemy,
Total War, Total State," 1937),
suggesting that the neatly delineated warfare of prior ages, in which
uniformed, professional armies met
on a field of war, was in decline
in favor of a new kind of allencompassing
warfare. Schmitt
ridiculed the law of armed conflict,
saying it reflected ideological principles rooted in nineteenth-century
English liberalism. At the same
time, he turned to the legal concept of piracy as a basis for treating
adversaries as persons completely
beyond the help of law and the
courts, free to be dealt with just as
the executive pleased without being bothered
by lawyers ("The
Concept of Piracy," 1937).
, Schmitt's thinking and analysisthe weakness of liberalism,
the
utility of "law-free" zones, the de-
I
monization of adversaries, the subordination of justice to politicsalign almost perfectly with the Bush
Administration's
concept of lawfare, and with many other legal tactics
the
administration
has
adopted
in the war on
terror and elsewhere."
I
n twenty-five years of work as
a human-rights monitor, I have closely observed totalitarian and protototalitarian
regimes around the
world-from the former Soviet Union
and its offspring to China, Cuba,
Liberia, and Zimbabwe. One of the
hallmarks of tyrannical regimes, of
whatever political flavor, is their intense dislike of defense lawyers in general, and in particular defense lawyers
who do their work effectively and professionally. For a totalitarian regime,
the idea of blind justice is laughable.
The criminal justice system exists to
capture and brand criminals, of course,
but it is also understood as an essential instrument of political repression.
Tyrannical regimes use the law to destroy the reputation of enemies of the
state and to punish them.f
Obviously, our predicament is not
yet so dire as that of Weimar Germany.
Yet the parallels are frightening. The
Bush Administration's reach is long,
and its Schmittian concept of lawfare
7 The current scandal surrounding
the
cashiering of a dozen or more U.S. attorneys orchestrated by assistants of Attorney
General Gonzales in consultation with Karl
Rove and his staff also reflects a Schmittian
program. In 1933-35, Schmitt laid out a
plan for consolidation of control of the executive over the administration of justice, a
process described by Justice Minister Franz
Gurtner as Gleichschalrung, or "synchronization." A central feature of this plan was
the close political subordination of prosecutors to the executive.
represents an all-out assault on the rule
of law.
Clearly the habeas lawyers coming
.ashore at Guantanamo-s-rnen
and
women in uniform.. volunteers from
the nation's most august law firmsare not in league with Osama bin
Laden to destroy America. They are
only insisting on adherence to America's oldest legal traditions, to our
Constitution and its vision, and to
the law of nations that nurtured and
permitted the emergence of our re-
"A shocking, heartbreaking account
of corruption and
just plain
meanness"
-PROVIDENCEJOURNAL
PRAISE FOR
AGE OF
BETRAYAL
THE TRIUMPH OF
MONEY IN AMERICA
1865-1900
JACK BEATTY
"An indignant history of the Gilded Age
...Mr. Beatty tells his cautionary tale with great moral fervor."
-William
The single most vivid demonstration of
this tendency is found in the show trials
conducted during the Great Purge of the
1930s under Joseph Stalin and his legal
choreographer, Andrei Vishinsky. The
Vishinsky show trials served to define Soviet legal culture for decades. As an experienced defense attorney explained to me in
Uzbekistan shortly after the collapse of the
Soviet Union: "I always had a simple understanding of my role. It was to convince
my client to plead guilty and throw himself
on the mercy of the court. Only by this
path could he ever really hope to achieve a
milder sentence. "
public. Ultimately,
the danger we
face in a culture built on precedent is
that the changes wrought by George
W. Bush will become entrenched
and will apply to an ever-broader array of presidential enemies. If so, it
would prove Carl Schmitt's most famous saying: "Sovereign is he who
controls the exception." By providing an exception to the application
of the rule of law, our nation may
have unleashed a radical new constitutional order.
_
Grimes, THE NEWYORKTIMES
8
CRITICISM
81
"Beatty writes with one eye on the Gilded
Age & the other on our own benighted era
...This ability to hot-wire our history to the here and now
is what gives this book its distinctive bite...He reminds us of
much we may have forgotten (or never really knew) about
American history."-Jonathan
Kirsch, Los ANGELES
TIMES
KNOPF ~
read an excerpt at aaknopf.com