We’ve seen how establishment thought treats its past. What then of its present?
Yoo is a Berkeley law professor and former Justice Department official. He recently has published a book describing (yet again) the supposedly boundless constitutional ambit of the US federal government’s executive branch in matters of national security and foreign affairs.
Within it, as in his earlier work, the military-security-police-intelligence authorities are redefined as plenipotentiary. The President and his agents are claimed to have near-absolute prerogatives of arrest, detention, interrogation, punishment, interpretation of treaties and making of war.
Yoo’s arguments are of course crude and unpersuasive.
The historical record is treated cavalierly: predictable and misleading mention is made of Lincoln’s temporary suspension of habeas corpus, his wartime military tribunals, the blockade of Confederate ports and drafting of a militia without congressional authorization.
In defending such actions, Lincoln expressed doubt that ‘a man could contract so strong an appetite for emetics during temporary illness, as to persist in feeding upon them through the remainder of his healthful life’.
But Yoo indeed argues for a permanent revision to the separation of powers.
The old ‘constitutional model that required the approval of multiple institutions before the United States could use force may have made some sense’:
The world after September 11, 2001, however, is very different. It is no longer clear that the United States must seek to reduce the amount of warfare, and it certainly is no longer clear that the constitutional system ought to be fixed so as to make it difficult to use force…
[The] need to use force may actually be dramatically higher than before…
This book proposes… a flexible decision-making system that can respond to such sweeping changes in the international system and in America’s national security posture.
Yoo’s purpose, obviously enough, isn’t to offer neutral description, or even donnish policy prescription.
It is to provide legitimacy and polemical support to an actually-occurring phenomenon. (In this he is like the Abolitionist William Whiting, who wrote during the 1860s in support of Lincoln’s exercise of war powers.)
Of scant intellectual interest, Yoo must be taken as a political straw in the wind.
The public prominence and degree of professional success earned by a person with such views, at this precise historical moment, do not arise merely from personal ambition, intellectual inclination and good fortune.
Yoo is increasingly correct in claiming to offer ‘a constitutional theory of the foreign affairs power that differs, at times sharply, from the conventional academic wisdom but that describes more accurately the actual practice of the three branches of government.’
When Lincoln defied the judicial arm, he fought the most reactionary branch of the US federal state. The Supreme Court had earlier supported the westward spread of slavery, and thus precipitated the secession crisis. Enlargement of presidential power thus supported the ‘good cause’ of emancipation.
Nowadays, however, the expansion of executive power, free of congressional checks or judicial scrutiny (let alone democratic control), is itself a project driven by the most conservative echelons of the US elite.
The project itself may assume a legalistic guise, as in the pursuit of ‘police actions’ against ‘outlaw states’ by the Clinton and G.H.W. Bush administrations, or Obama’s stated support for extra-territorial aggression in defence of ‘international law’.
Indeed, such cosmopolitan internationalism has won practical support from jurists and legal professionals including Carla Del Ponte and Alan Dershowitz. It has gained the theoretical fealty of philosophers of law from Jürgen Habermas to Larry May.
But juridical ingenuity here works in the service of a planetary Leviathan: raw executive power, a mortal god unchecked by legal stricture or scruple, elevated from the domestic to the international sphere.
While restructuring of the state may assume its most consequential form in the imperial capital, the process is not restricted to Washington.
In Australia, the march towards indefinite, non-judicial detention commenced via the Migration Amendment Act and Migration Reform Act of 1992. The Labor government’s Immigration Minister, Gerry Hand, presented the first bill to Parliament.
His reading made clear that the law’s chief aim was to arrogate, for the executive arm, power of repression and incarceration that Chapter III of the Commonwealth Constitution had entrusted to the judiciary:
References to powers of arrest will be removed from sections 92 and 93 and from a number of related sections to ensure that no confusion arises between the powers under the Act to take persons into what might be termed `migration custody’ and the power to arrest persons for criminal offences.
Officers who exercise powers under the Migration Act to take persons into custody do so for specific purposes under the Migration Act related to migration processing and/or removal from Australia. Those powers are, therefore, not subject to the restrictions set out in the Crimes Act 1914 which apply to the power to arrest persons for criminal offences.
However, to make this distinction absolutely clear the term `arrest’ has been removed from a number of sections of the Act and replaced with the term `detain in custody’…
The Government is conscious of the extraordinary nature of the measures which will be implemented by the amendment aimed at boat people. I believe it is crucial that all persons who come to Australia without prior authorisation not be released into the community. Their release would undermine the Government’s strategy for determining their refugee status or entry claims…
The Government has no wish to keep people in custody indefinitely and I could not expect the Parliament to support such a suggestion. Honourable members will note that the amendment calls for custody for a limited period. The period provided for in the amendment is 273 days—this translates into nine months. This period is, however, restricted to that time where consideration of a person’s claims is directly within the control of my Department.
Where factors are outside the control of my Department, the period is suspended. For example, where it is up to the applicant to provide information relevant to a claim, the time taken to provide that information would not be included in the period…
The most important aspect of this legislation is that it provides that a court cannot interfere with the period of custody. I repeat: the most important aspect of this legislation is that it provides that a court cannot interfere with the period of custody. No law other than the Constitution will have any impact on it.
To legitimate the minister’s usurpation, the power of imprisonment was thus defined as an ‘administrative function’. Its purpose was not punitive, and was intended merely to facilitate deportation and the processing of refugee claims.
Of course, the 273-day limit on detention was swiftly removed, never to return. Appeals to judicial review on grounds of natural justice or procedural fairness, unreasonable exercise of power etc. were expressly prohibited. Applications for writs of mandamus, certiorari, etc. were forbidden for many categories of decision, and subject to strict time limits for others.
To this foundation of unchecked executive authority was then added a set of police-state ‘anti-terror’ laws.
These involved drastic expansion in the scope of the Commonwealth’s defence power (the constitutional entitlement to make laws with respect to ‘the naval and military defence of the Commonwealth’) and protective power.
The exercise of such powers was now held to cover internal, civilian matters. The executive (the PM or relevant minister) and its various agencies (federal police, intelligence organizations, military forces etc) thereby gained unprecedented peacetime ability to impose preventive detention, proscribe organizations and enforce repressive ‘control orders’ in anticipation of any occurrence of domestic disturbances.
The power for domestic mobilization of troops in civilian settings, in defence of ‘Commonwealth interests’, was granted by the passage of various unremarked-upon statutes in 2000 (before the Sydney Olympics) and 2006.
It was normalized by the deployment of naval vessels and SAS troops to enforce ‘border security’, the 2007 ’emergency intervention’ in the Northern Territory, and military participation in emergency recovery efforts following various natural disasters.
The legal and operational distinctions between military and police were blurred by the AFP’s role in gathering intelligence provided to special-operations assassination squads in Afghanistan, and the ADF’s policing activity during colonial missions in the Solomon Islands and East Timor.
All this was followed by the bestowal on a special-purpose industrial-relations authority of astonishing powers to compel evidence.
Classical liberals — Guizot, Mill, Constant, Dicey — would scarcely have recognized their own theories of government in such a system.
In the United States, withdrawal of habeas corpus began with the Anti-terrorism and Effective Death Penalty Act of 1996. Constitutional rollback accelerated greatly over the subsequent decade.
It has since proceeded under the current Democratic President just as it did under the previous ‘neocon’ incumbent.
Take this recent Justice Department’s submission, filed to a District Court in September 2010 in response to an attempted injunction by the family of Anwar al-Aulaqi, a US citizen listed for assassination by the Obama Administration:
[The] mere presence of a constitutional due process claim does not automatically render a case justiciable…
Plaintiff’s Complaint challenges the authority of the President of the United States, as “Commander-in-Chief of the U.S. armed forces” and “Chair of the National Security Council”— as well as the authority of the Secretary of Defense “over the U.S. armed forces worldwide,” and the authority of the Director of the Central Intelligence Agency “over CIA operations worldwide”— to utilize lethal force against plaintiff’s son, Anwar al-Aulaqi, whom plaintiff avers is hiding in a foreign country (Yemen)…
The extraordinary declaratory and injunctive relief plaintiff seeks here would constitute ex ante commands by the Judicial Branch to the President and officials responsible for military and intelligence operations against a foreign organization as to which political branches have authorized the use of all necessary and appropriate force. Enforcement of such orders would necessarily require the Court to supervise inherently predictive judgments by the President and his national security advisors as to when and how to use force overseas against that organization. Courts are not equipped to superintend such questions…
[Plaintiff] rests his challenge to the alleged use of lethal force against his son on the theory that he is physically located in a place where such force could not be used as part of an armed conflict. But even assuming, as plaintiff does, that his claims would depend upon whether the actions in question would take place in an armed conflict, the very determination of whether and in what circumstances the United States’ armed conflict with al-Qaeda might extend beyond the borders of Iraq and Afghanistan is itself a non-justiciable political question…
Indeed, resolution of most of the questions plaintiff puts at issue here would require the Court to assess a wide range of highly sensitive military, intelligence, and diplomatic information in order to determine what actions the President and U.S. forces may take against an operational leader of AQAP and to assess after the fact whether Executive actions have satisfied the Court’s injunctive standard.
But the law is clear that in these circumstances the Judiciary does not have the capacity or expertise to evaluate the array of sensitive and complex information upon which the President and his national security advisors and military personnel regularly rely in making their real-time decisions respecting the use of force abroad, or to second-guess the predictive judgments those officials must make concerning what actions may be in the Nation’s best interests.
In other words, princeps legibus solutus est.
Where it acknowledges any of this, mainstream (and ‘progressive’) US opinion explains it as the doing of a ‘cabal’ of ‘neocons’ based originally around Leo Strauss at Chicago, and now around the Federalist Society.
But this description is shallow and parochial.
It admits neither the depth nor the geographic spread of the phenomenon. It underplays the latter’s seriousness and allows no historical explanation, nor genuine political understanding.
Thereby rendered baffling, disappointing and inexplicable, the actions of the Obama adminstration — and governing Democrats generally — are seen as unfortunate mistakes, correctable via suasion, protest and argument.
Michael Moore could wonder Dude, Where’s My Country? then advocate voting for John Kerry, and write pathetically in his open letter to Barack Obama:
I simply can’t believe you’re about to do what they say you are going to do. Please say it isn’t so…
You of all people know that it doesn’t have to be this way. You still have a few hours to listen to your heart, and your own clear thinking. You know that nothing good can come from sending more troops halfway around the world to a place neither you nor they understand, to achieve an objective that neither you nor they understand, in a country that does not want us there. You can feel it in your bones.
We the people still love you… All of us that voted and prayed for you and cried the night of your victory have endured an Orwellian hell of eight years of crimes committed in our name: torture, rendition, suspension of the bill of rights, invading nations who had not attacked us, blowing up neighborhoods that Saddam “might” be in (but never was), slaughtering wedding parties in Afghanistan. . .
We thought you would stop the madness. Stop the killing…
Tonight we still have hope. . .
You DON’T have to do this. You can be a profile in courage. You can be your mother’s son.
We’re counting on you.
This insipid appeal to presidential scruple would be difficult to match for cynicism.
Much the same may be said, in Australia, for the analyses undertaken by progressive activists of mandatory detention and refugee baiting.
They describe such policies as the actions of a political class ‘pandering’ to popular racism. The topic of ‘anti-terror’ laws, less susceptible of such an explanation, is consequently ignored.
Some thought is given to the possibility that the targets of such moves may not be limited to ‘enemy combatants’, ‘unlawful non-citizens’, pedophiles or Aborigines.
But polite society generally agrees that the solution is a non-binding human-rights charter. Such a charter would provide a ‘framework’ of ‘principles’ to guide politicians, without interfering ‘unduly’ with their work or allowing laws to be struck down.
Handily ‘flexible’, a charter would ‘not stop the government taking strong and decisive action on issues of national security’:
There may well be situations in which rights need to be limited in the public interest. When this happens, the limitation must be fully explained and justified as being reasonable and proportionate to the achievement of a legitimate aim. In this way rights and duties can be balanced through a transparent process. In a public emergency parliament will be able take measures that override all but a few ‘absolute’ rights.
Little consideration is given to the possibility of a connection between the impairment of the judiciary and that of the state’s legislative arm, and, beyond that, the absence of popular influence on any substantive aspect of government behaviour.
The growing authority of the executive branch to act free of constraint (e.g. in imposing detention without legal redress) bears, clearly enough, some relation to the complete supremacy of Cabinet (and in that of the Prime Minister) over Parliament. Ad hoc coteries, assembled by the PM, frequently bypass even the full Cabinet on all manner of decisions.
The legislature, meanwhile, is denied by the party leadership any capacity at all to fulfil its supposed function, i.e. actually to make laws. Parliamentary ‘debates’, on any subject of importance, are entirely incidental to the action taken by government.
These features are today so complete as to appear literally unremarkable.
But they too represent a dramatic restructuring in the shape of the state and the distribution of power between its constituent parts.
The irresistible re-allocation of authority from States to Commonwealth receives more attention, as the diminished party remains powerful, generally resists weakening of its role, and can mobilize media resources.
It reveals the existence (explicitly acknowledged by all parties in argument and all High Court justices in their rulings) of socio-economic causes behind the expansion of federal power into areas previously reserved for the states.
Might not such causes also have brought about the growth of unchecked executive power, war-making tendencies and repression? While such causes remain unaddressed, will not these violent tendencies continue to exist and accumulate, no matter how many saintly figures are elected to Parliament or appointed to the High Court?
About this, mainstream and left-liberal thought are generally silent.
How then to explain the turn towards prerogative rule and authoritarianism?
To have any idea we must look at matters of political economy, which in any society decide relations between rulers and ruled.
In short, understanding the contemporary decay of liberal parliamentarism requires moving beyond the intellectual framework of liberalism, i.e. that spawned by the very society under investigation.
Tags: Abraham Lincoln, administrative law, arbitrary detention, asylum seekers, Australia, immigration, indefinite detention, John Yoo, mandatory detention, natural justice, neoliberalism, prerogative writs, public law, refugees, separation of powers, United States, US Civil War, war on terror