America Drifitng Away From "Rule Of Law," Scholar Warns

by Franz Schrmann

The author of the article is Giorgio Agamben, an Italian who teaches at the University of Verone in France and is currently lecturing at the University of California. He is a deep-thinking European philosopher known for his work on the "Nazi philosopher" Carl Schmitt (1888-1985), whose works on emergency powers are regarded by political scientists as classic.

Agamben writes that "the deliberate creation of permanent emergency powers is an essential tool of all contemporary states, including those that are democratic." He specifically cites President Bush's "military order" of Nov. 13, 2001, entitled "Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism." With this military order, the president exercised his authority to suspend the constitutional rights of "certain non-citizens." He was able to do this not as the Chief Executive but as the Commander in Chief in the War against Terrorism.

Even before the Nov. 13 decree, hundreds if not thousands of individuals allegedly involved with the events of Sept. 11, 2001, were "disappeared." Many eventually reappeared in foreign countries. Some still remain disappeared. But in the week before Christmas 2002, hundreds, if not a thousand, Middle Eastern non-citizens were deceptively rounded up in Los Angeles and disappeared. This time, authorization came directly out of the Oval Office. And when asked why the roundup occurred the president answered, to "protect the American people."

Agamben points out that shortly after he took power, Hitler issued a decree on Feb. 28, 1933, that "suspended" the "Weimar Constitution," which is still admired for its provisions on individual liberties. Hitler justified his decree as "protecting the German people and its state." Shortly after Hitler proclaimed his decree, concentration camps sprang up fast and were filled by "enemies of the people" -- Jews, Communists, Socialists, etc.

Yet Hitler did not do away entirely with the Weimar constitution. Weimar courts still operated throughout the 12 years of Nazi rule. A dramatic example occurred in the spring of 1934. Top international Communists in a trial subject to Weimar law were found innocent of setting off the Reichstag (Parliament) fire. And only one mentally retarded Dutchman was found guilty and guillotined.

Thus, law was for the German people but not for their "enemies." When Schmitt was born in 1888, the "Iron Chancellor" Otto von Bismarck was the de facto ruler of the newly united Germany. He was known for his belief that "might comes first, then rights." In Bismarck's day, a nation could put rights first, like Britain, or do like Germany and put might first. But what struck Agamben about Schmitt's ideas was the latter's view that law and politics, while polar opposites, are both needed in modern states. Like batteries, where both poles are needed to make the flashlight work.

In democracies such as traditional America or Weimar Germany in the 1920s, the supreme ruler was subject to the law of the land. But Schmitt held that all modern heads of state, whether dictators or presidents, are "sovereigns." He saw the sovereign as being in the nation (the people) and therefore subject to its laws, but at the same not being in the nation by virtue of his special immune position in the state.

For Schmitt, whether a head of state could or could not use emergency powers was a concrete test of a ruler's immunity. If he could do so he was a sovereign. If not he only was a chief executive. By Schmitt's theory, George Bush is a sovereign. And that means Bush is beyond the law as Commander in Chief, but subject to the law as Chief Executive.

An example is President Nixon. He was immune from the law until his last hour in the presidency. But the immediate act of his successor, Gerald Ford, was to grant Citizen Nixon a full pardon before he could be indicted. This was an act of political might by Ford that only a sovereign could make. Power politics drove Nixon out of office, not law.

Americans are not surprised that non-democratic regimes use all kinds of force to maintain their state and keep their peoples passive. But why would democracies do the same? Agamben has an answer. He speaks of a growing "global civil war that is making emergency powers the dominant paradigm in contemporary politics."

The War on Terrorism enunciated by President Bush only a few days after 9/11 is global, but civil wars, so far, are not threatening the global system. So in America, middle-class life goes on oblivious to the fate of non-people disappeared into the darkness. But an apparatus, in the form of the Department of Homeland Security, has been created for handling a much worse situation than now. The DHS already has a budget that ranks second to only that of the Pentagon.