ghosts of 1933

In 1999, William Scheuerman wrote that "[t]he ghost of Carl Schmitt haunts political and legal debates... in the contemporary United States." (Carl Schmitt: The End of Law, p. 1). He made an interesting case for Schmitt's influence, acknowledging that it is "subterranean," and identifying in Joseph Schumpeter, Friedrich August von Hayek and Hans Morgenthau important intermediaries for Schmittian concepts received in the United States. But since September 11, 2001, the case has grown ever stronger and more direct. The MCA, for instance, is filled with echos of Weimar. It bears an uncanny similarity to the Ermächtigungsgesetz (Enabling Law) of March 23, 1933. Both seize upon terrorist threats and deeds as an emergency circumstance justifying a delegation of powers to the Executive, though the transfer of powers in the Enabling Law is vast in scope - dwarfing that of the MCA. On the other hand, the Enabling Law was also seen as a temporary measure, and thus incorporated a sunset provision (art. 7, providing for expiration of the act on April 1, 1937) which the MCA does not have. But both pieces of legislation have at their core the Schmittian notion of a state of exception, and in each case the exception appears to be exploited to drive a more generic change.

It is characteristic of Schmitt that he sees sovereignty not in terms of a monopoly of state power, indeed the right to use violence (the twin aspects of Gewalt) like Hegel or Max Weber, but rather in control over decisions. His understanding is fundamentally hierarchical and sharply distrustful of Anglo-American notions of checks and balances. On this point more than any other rests Schmitt's central thesis that much of modern political theory is essentially secularized theology. So for Schmitt the key for modifying the liberal-democratic Weimar Constitution rests in the state of exception, and indeed, the state of exception is ultimately no exception at all.
-Scott Horton

I'll say it one more time: the reason that the Military Commissions Act is so troubling is that it both allows the Executive to designate (and hold indefinitely) whomever it sees fit as an "unlawful enemy combatant" (including American citizens), a rather significant enlargement of the defintion of the term. It also exempts the Judiciary from being able to review such designations.

Not good.

Incidentally, balkinization has become my favorite new legal blog. Tons of good analysis of the MCA and its potential impact.

I've also determined that the safest course of action in dissidence is to be remain somewhat visible.