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30 June 2008

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Cato

Andrew Card, along with other prominent, current and former members of the Bush II administration, is a war criminal. You really can't expect much from a war criminal.

lina

"The man was the president's chief of staff and he thinks of the presidency as a nearly unlimited monarchy." pl

And why shouldn't he?

Neither Article I of the U.S. Constitution nor The War Powers Act of 1973 are worth the paper they're printed on today.

The servile media are aided by the jellyfish of the legislative branch.

The unchecked power of the president lies squarely with the two other branches of government, does it not? If we can't get people to care about the rule of law, we'll always get the leadership we deserve. Bush/Cheney have no fear at this point. They're lame ducks with approval ratings in the toilet, and they have nothing to lose. If they choose to nuke Tehran tomorrow, who's going to stop them?

condfusedponderer

PL,
I disagree about unlimited monarchy. It is about the state of exception. Apologies in advance, this is inevitably very brief, cursory and incomplete.

For Schmitt, every government capable of decisive action must include a dictatorial element within its constitution (call it 'commander in chief'), lest it risks its own undoing.

Although the German concept of Ausnahmezustand is best translated as state of emergency, it literally means state of exception which, according to Schmitt, frees the executive from any legal restraints to its power that would normally apply. To Schmitt the 'state of exception' belonged to the core-concept of sovereignty. Schmitt:

"Sovereign is he who decides on the exception."
By 'exception' Schmitt means the appropriate moment for stepping outside the rule of law in the public interest.

Schmitt's state of exception is not a dictatorship or an absolute monarchy, but a space devoid of law in which all legal determinations are deactivated. This space devoid of law seems to be so essential to the juridical order that the state of exception as the suspension of law is grounded in the juridical order.

That is why Addington, and I think he does adhere to this line of reasoning (as it so well complements his arguments), can claim that Bush obeys the constitution - because the commander in chief powers he claims are according to the rationale of the 'state of exception' inherent in the constitution, in any constution, and need not be explicitly mentioned. And that explains why in Addington's view asking for approval for actions that he considers to be at the exclusive discretion of the commander in chief, means giving these powers away.

The crucial problem connected to suspension is that the acts committed during the suspension of law during the state of exception seem to be situated in a non-place with respect to the law - which are thus commonly interpreted as lawbreaking. To Schmitt and Addington they are not. They are non-legal because they are executive acts taken in the 'state of exception'.

To Schmitt crisis and state of emergency are not exceptional moments in political life opposed to some stable normalcy, but themselves the predominant form of the life of modern nations. It is easy to see how Schmitt's ideas must appeal to those power politicians in the US who want a strong federal executive, to Cheney and Addington certainly.

So that includes Card, too? I don't know. He's a dyed in the wool partisan, and he might just choose this line of argument for political expediency.

Anyway, according to Schmitt, the functioning of the legal order rests on the state of exception, whose aim it is to make the norm applicable by a temporary suspension of its exercise. But if the exception becomes the rule, this arrangement can no longer function and Schmitt's theory of the state of exception breaks down. Cheney, Card and Addington fail to see this final contradiction.

TomByrd

Welcome to the new world of RealPolitik. Hail Mr. President, We, the sheep, salute you!

Bah (or should that be baaa?)

WP

I think the use of monarch is the wrong choice of wording. Dictator would be more apt.

It can be said that if you can do it and get away with it, you have the power to do it. In the last few years, this adage has ruled the nation instead of the Consitution and its amendments.

Unfortunately, power is what power can get away with will be the rule in the future unless these usurpers of power are impeached or otherwise limited and contained.

To a large degree, our government is based upon consent of each branch to be checked and balanced by the others. It disintegrates if the executive ceases to believe in republican principles. On may reasonably question whether the present Executive respects those principles sufficeintly to constrain its own power within the system to allow the system to survive without becoming a true dictatorship or creating a constituional crisis.


linda

props to mr card's p.r. advisor who wrote up that sweet little wiki entry.

curiously, the most infamous quote attributed to mr card about product rollout is not to be found there.

September 6, 2002: "From a marketing point of view, you don't introduce new products in August."

nor is there any reference to mr card being the partner to disgraced former attorney general abu gonzalez on the late nite visit to john ashcroft's hospital bed in an attempt to circumvent a doj ruling the bushies didn't like.

"Comey described what happened next: "The door opened and in walked Mr. Gonzales, carrying an envelope, and Mr. Card. They came over and stood by the bed. They greeted the Attorney General very briefly. And then Mr. Gonzales began to discuss why they were there — to seek his approval for a matter, and explained what the matter was — which I will not do."


i remember andy card.

Patrick Lang

CP

If it is Carl Schmitt of whom you speak, I am truly appalled.

http://en.wikipedia.org/wiki/Carl_Schmitt

pl

WP

A bit off topic, but referring back to the earlier post about 10 lbs in a 1 lb. bag, if your main constituency is the oil princes, a little stirring around about attacking Iran does a lot toward keeping the prices up!

J

Colonel,

in addition to card being a dangerous boy scout, what is really getting my goat is that our cjcs, cno, and tradoc cc are all making 'pilgrimage' to a foreign power -- israel. the only pilgrimage IMO that they should be making is to the building that houses our nation's Constitution and Bill of Rights where they can all sit down and read and understand our nation's founding documents and what is 'supposed to' make our nation tick. and re-learn 'why' we americans don the military uniform of our nation -- for the u.s., NOT for or on behalf of a FOREIGN POWER!

i am smokin on this one!

http://www.jpost.com/servlet/Satellite?cid=1214492515999&pagename=JPost%2FJPArticle%2FShowFull

Jun 26, 2008 20:42 | Updated Jun 28, 2008 15:56
Security and Defense: Not leaving the nuclear threat up in the air

condfusedponderer

PL,
he's the one. He is brilliant; his style of writing excellent; his degree of abstraction high. It is really intellectually (and linguistically) rewarding to read his texts, and he is rather difficult to understand, which suggests 'adult supervision'. For solutions or guidance Schmitt is in my view a treacherous source.

For my part, I am uncertain whether I have fully understood Schmitt. However, I think I clearly understand where his theories can lead to.

I find it scary to see his ideas apparently being taken up in the US by the current administration. I think this is not an accident but probably the result of a longer process.

Clifford Kiracofe

1. Per Carl Schmitt,

I would again note that he was Leo Strauss's professor. Schmitt got Strauss his Rockefeller Foundation (European Branch) scholarship/fellowship which was Strauss's ticket out of Nazi Germany. He went to Paris and then to London where he worked on Hobbes. Once laundered in London, he was deployed, by whom I have no idea, to the United States. He finally ended up at U Chicago.

Straussians have penetrated not only political science and philosphy departments, they have also penetrated law schools. Isn't the Federalist Society something of a Straussian thing for lawyers?

Several of Schmitt's works have been translated into English.

One can argue via Schmitt for the "Dictator." One can also use another chain of arguments via Filmer (whom Locke opposed) to arrive at the absolute (divine right) "monarch" with his vast "prerogative." Those with a Germanic bent can go via Schmitt. Those with an Anglophile bent can go through Filmer. Or one can mix the two.

2. Per the power to DECLARE war, it is vested in Congress by the Constitution. There is a long historical background for this. In modern America, however, the Executive Branch has essentially usurped this power with the connivance of a supine, corrupted, and cowardly Congress. You can argue Truman and Korea set the stage for Bush and Iraq. The War Powers Act of 1973 came and went without effect.

3. To understand how we got to where we are now, Arthur Schlesinger's, Imperial Presidency (per Nixon era) is required reading. George Shultz, Richard Cheney, Don Rumsfeld came out of this milieu. Cheney and Rumsfeld both from the Ford Administration on were groomed in Neoconservative circles, hence their Straussian behavior should come as no surprise. That they would select Neocons to be their advisors should also come as no surprise.

Card, an asset of the Bush family dynasty, could be considered a Neocon groupie I suppose.

Frank Newbauer

A minor point, but a correction to WP's post; I agree with the substance of the post. "Dictator" was a constitutional office in the Roman republic - extraordinary, but a duly constituted office. What we have here is tyranny pure and simple, the usurpation of power in an illegitimate, unconstitutional manner. See for example, the name of this weblog.

Evil and corrupt as the Bush cabal certainly is, it is the enablers and toadies in Congress, the Supreme Court (the co-equal branches) and the media who deserve the blame for allowing this to happen.

Assuming that we remain a republic - a questionable assumption - will the next administration, even if it wants to, be able to undo the damage these loathsome fascists have done to our country?


Sidney O. Smith III

In my opinion, Prof. Kiracofe of W & L once again makes great insights as he shines a light on the different intellectual and historical threads at work.

And I second the notion that Schlesinger’s book, The Imperial Presidency, is a must read. After Schmitt’s name came up in this thread, I grabbed my copy of the book (and I say with some pride, signed personally by Schlesinger but, of course, not to me). I wanted to see if Schmitt’s name was in the index. It wasn’t. But Schlesinger discusses throughout the book the idea of the assumption of absolutle power in the form of a temporary dictatorship to “save” the union.

As Addington, Card, and company shred the constitution, many of Schlesinger’s warnings have materialized. And Schlesinger arguably was aligned with liberal interventionists and somewhat of an apologist for Lincoln. Just shows you have far we have devolved.

I for one certainly look forward to Prof. Kircofe’s book. The tradition of Virginia continues!

D White

"It is about the state of exception...
For Schmitt, every government capable of decisive action must include a dictatorial element within its constitution (call it 'commander in chief'), lest it risks its own undoing. "

What was the state of exception for a war of choice? What was the need for decisive action?

durendal

Prof. Kiracofe states "...could be considered a Neocon groupie, I suppose."


from Salon

Former Secretary of the Treasury Paul O'Neill, in his memoir, "The Price of Loyalty," recounts an anecdote that begins with President-elect [George W.] Bush interrupting O'Neill's discussion of policy: "'Where's lunch?' They'd ordered cheeseburgers, but after fifteen minutes, they had not arrived. 'Go get me Andy Card,' Bush said to one of the Secret Service agents [Card was] stolid and jovial, a man of solid, loyal character. Bush looked impatiently at Card, hard-eyed. 'You're the chief of staff. You think you're up to getting us some cheeseburgers?' Card nodded. No one laughed. He all but raced out of the room."

http://www.salon.com/opinion/blumenthal/2006/03/30/staff_changes/


From Salon

Cujo359

Does Andy Card believe the President can order people to be buried alive? I was in the Boy Scouts - I'm pretty sure there wasn't a merit badge for that. Camping and First Aid were as close as we got to that sort of thing.

Duncan Kinder

Card's reply was that the citizenry have a right to be informed only if that does not limit the president's freedom of action in deciding how to defend us (America.)

Given the state of various deficits nowadays, one constraint on any president's freedom of action would be his ability to fund said war.

As anybody who has run a business knows, you typically have to run major projects by your banker; and he typically shows up on your board of directors.

Our banker nowadays is China, plus a few other Asian countries.

So the president is Sultan of Swat only to the extent that they concur.


wisedup

Card feels that it is better to the be the toady of the tyrant than to be a citizen of a democracy. The Boy Scout experience cuts two ways and I have seen far too many weak-minded boys who loved the uniforms and the power that came with the position. Unable to create a community but always willing to dish out the 'discipline.'
Schmitt should have been housed in the Nazi work camps to better himself.

Arun

Why do I get the feeling that the scattered remnants of the Old World's failed political theories and experiments found a fertile new home in America, rather like kudzu; and are overrunning the native political tradition?

David Habakkuk

A few thoughts to throw in to this fascinating discussion.

I don't think Frank Newbauer's point about language is minor at all. It parallels what the great French historian Élie Halévy said in his presentation on the 'era of tyrannies' in 1936:

'I shall say only a little about the reasons that led me to prefer the word "tyranny" to the word "dictatorship." The Latin word "dictatorship" implies a provisional regime, leaving in tact in the long run a regime of liberty which, in spite of everything, is considered normal; while the Greek word "tyranny" implies a normal form of government, which the scientific observer of societies must range alongside other normal forms -- monarchy, aristocracy, and democracy."

There are I have no doubt complexities in Greek -- and modern -- uses of the word 'tyranny' that Halévy left out, but he was addressing very directly the kind of thinking exemplified by Carl Schmitt -- where the 'state of exception' is taken as the normal condition of political life.

The question as to whether a 'state of exception' exists at a given time is a question about the adequacy of systems where the freedom of the executive is limited by constitutional constraints to cope with the problems faced by a given polity at that time. But adequacy or inadequacy is relative -- to establish that constitutional constraints are undesirable one needs to establish not only that they may inhibit useful action, but that their removal is not a cure worse than the disease.

In relation to the external problems of interwar Germany, the unconstrained executive which Schmitt advocated managed to turn what was actually a rather favourable strategic situation into total disaster.

However aggravating to German susceptibilities it may have been, the Versailles settlement left Eastern and South Eastern Europe a patchwork of weak -- and often mutually suspicious -- states, with Russian power pushed back further than it had been for generations. This created ideal conditions for a patient long-term strategy which would have consolidated these areas as zones of an informal German hegemony.

Certainly, Stalin was attempting to turn the Soviet Union into a military superpower. But the German Foreign Office Soviet specialists had a relatively sanguine view of the threat. They doubted that Stalin would succeed in his bid to 'catch up and overtake' the traditional European powers. On the specifically military aspect, if Stalin was so distrustful of his generals that he largely liquidated what, along with the German, was the intellectually most sophisticated General Staff in Europe, the German Foreign Office Soviet specialists were not complaining.

Meanwhile, the possibility of an effective coalition of potential adversaries against Germany was remote in the Twenties and early Thirties. As regards Britain and Russia, intense ideological hostility was superimposed upon antagonisms dating from the imperial era. What however was always liable to create such a coalition would be the attempt to go beyond an indirect hegemony in Eastern Europe, and conquer 'Lebensraum' by military means. This was inherently liable to make the Soviet Union and Britain, at least temporarily, sink their differences -- particularly as it would make the survival of the British Empire dependent on German goodwill.

Rather than accepting that Germany was neither capable of obtaining, or needed to obtain, total invulnerability, Hitler made a bid for such invulnerability -- and ended up creating the improbable coalition of the Grand Alliance, which ensured the total destruction of German power.

One may doubt whether the contemporary enthusiasts for 'states of exception' in the United States will achieve catastrophes anything like as spectacular as that achieved by Hitler -- but they have already done a great deal to squander the very favourable position in which the United States found itself in 1989.

A caveat relating to the role of monarchy in all this, partly provoked by Clifford Kiracofe's reference to Sir Robert Filmer. Because the creation of America is so bound up -- in different ways -- with seventeenth and eighteenth century arguments about absolutism, when Americans refer to 'monarchy' they commonly imply absolutism.

But the making of absolutist claims on behalf of monarchy -- as in Filmer -- may in a longer perspective be a rather 'modern' matter. In the classic study Kings and Councillors he published in 1936, the notable twentieth century anthropologist and student of kingship A.M. Hocart had some pertinent things to say:

'The common notion is that the doctrine of Divine Right, as held by the extremists of the seventeenth century, was the last kick of medievalism. That is the opposite of the truth: it was the first effort of the modern spirit. In the Middle Ages allegiance was conditional as it was in Fiji, ancient Ceylon, Jukunland, and other homes of divine kingship.'

It may be I am biased here by a conviction that constitutional orders are made sustainable by certain kinds of reverence -- and the belief that in the British context, today's very 'unabsolutist' monarchy is a much more important part of the constitutional order than is commonly realised.

But I do think there is a lot to be said for following Frank Newbauer and describing the kind of political system in which people like Andrew Card believe as tyranny.


TomB

Col. Lang wrote:

"If it is Carl Schmitt of whom you speak, I am truly appalled."

Why? From what confused ponderer said Schmitt was just saying that it's impossible to anticipate in every detail what dire eventualities a society might face and so is impossible to pass detailed laws governing how same must be addressed. Therefore he said there had to be a kind of ... lawless space where a leader or etc. could take what action was necessary to address the eventuality.

Seems to me there's some logic there, if a spectacularly poor choice of terms given that he simply seems to have meant a sphere where conventional *detailed* laws don't exist. (At least and again as confused ponderer described him)

To me then looking past the poor word choice to the fundamentals Schmitt did identify a real problem, with only flawed solutions being possible. And it further seems to me our Constitution did about as good a job as possible addressing same by firstly creating an office and officer which can take quick action in emergencies (the Presidency), and then just *generally* assigning powers and duties and etc., such as with its simple if Delphic statements saying that the Executive power (whatever that is) will rest with a President, and that the President is the Commander-in-Chief of the armed forces.

Not perfect, but not bad given it's worked for 200+ years now which ain't chopped liver in historical terms for regimes. And with the room this provides to argue that these phrases give the Executive vast vast powers, I frankly don't see why an Addington or etc. would *need* a Schmitt to posit same. The constitutional scholar Edwin Corwin years ago well articulated the troubling logic of the constitution which is that the power to wage war necessarily implies that the power is also given to do whatever is necessary to wage war successsfully, and that's saying alot. And there is some logic there.

So I dunno about this Schmitt business having such an effect on Addington, et. al. Maybe there's some evidence of same out there, although I haven't seen it. (Nor, admittedly, looked for it.) But I doubt that even if it exists it's anywhere near as overwhelming as the evidence showing that even sans Schmitt or anyone else for that matter the Framers provided all the vagueness and ambiguity needed for people to argue the reach of a President's powers starting from Day One after the Constitution was ratified. And in the overwhelming main, I doubt that what we're seeing today is anything other than just a continuation of that argument, and nothing really new.

(And that, it seems to me, is as it should be. Of course the Framers couldn't anticipate everything, and so their answer was that each future generation had to make at least some of its own judgments and decisions. And it further seems to me that intellectual honesty requires one to consider conceeding that by not howling for Bush's impeachment or for laws restraining him or etc., the great mass of the citizenry today have simply said that they think Bush and Addington's ideas about Executive power are just peachy. And given the citizenry's history of liking Teddy Roosevelt, and Wilson's actions against "subversives," and FDR, and Truman's going into Korea, it seems to me that's a pretty strong and maybe even unassailable argument, no matter how much that might make us dissenters into cranks.)

Cheers

Spider Rider

The lot of them, Cheney's neocons, are, to me, insane.

Not only are men like Andrew Card wholly incompetent, as they cannot execute the responsibilities of their jobs in any meaningful way, they have taken it upon themselves to TRY and restructure the US government.

They're laughable, not even fierce, laughably incompetent, in a dream world of omnipotence, and sequined dresses. Oh, the glamour...

Why do we put up with it, treat them as if they're anything more than children, play acting, as children will do?

Because that is what they are, underneath it all, children, little girls, playing dress up.

They lost the war, this has hurt the nation, an incredibly difficult realization.

wisedup

for TomB, I believe you are confusing the system for the results. Certainly no body of law can cover all eventualities. That is why we keep passing new ones. But to state that because no existing law counters the current "dire" situation the executive has full power to supersede the constitution is an appallingly wrong conclusion. Commander in chief does not equal owner, we own the armed forces, not them.
Do you really think that the non-existent majorities of voters have made this situation into an "unassailable argument"?
Please tell me you wrote in haste.

William R. Cumming

Andrew Card was feted at his retirement as Secretary of Transportation under President H.W.Bush as the "Master of Disaster" in Hurricane Andrew. John Sunnu's pick as FEMA Director (Director Stinckney) was not up to the task in anyones judgement. Upon arriving in Florida to preside, it is reliably reported that Andrew Card's first words were something like "Where is my desk and oriental rug.?" A man that knows his priorities. Cheesburgers certainly fit in with the Lord Privy Councilor duties. And by the way despise what some believe as to FEMA's Andrew performance, Bush did win Florida in 1992. As we approach the time when the Bush 43 era closes permanently it will be fascinating to watch the reviews of the talent he (Bush)surrounded himself with during his Presidency. Their does seem to be no doubt his Presidency had failed as of 9/10/2001 so now the question for the ages is what was achieved afterwards and who was responsible for that achievement or lack thereof. As to some of the posts above, there is no doubt that legal scholars have differend as to the scope of Presidential authority or action when the very essence of the STATE is threatened. Did 9/11 threaten the very essence and existence of the United States? Personally, I don't believe that for one moment.

condfusedponderer

TomB,
your concept of inherent powers in wartimes, much like Schmitt's state of exception, runs into a problem when you think of a very long war, or 'perpetual war for perpetual peace'.

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