Comment at Balkinization

Tags: Robert Link

I have been spending far more time engaging folks at Balkinization than I have on repeal-aumf directly; I am at a bit of a stuck point for where to go with this project. I suspect it will get more attention in between topical flash points like the recent passage of the Military Comissions Act. MCA is truly but the latest symptom of the greater disease, the poison of the "war" concept as applied to bringing the nine-one-one attackers to justice.

Here's the excerpted comment, in response to this post by Scott Horton:

I'm trying to tie [Scott's post] to my more immediate and modest goal of better wielding the Schmitt example as a refutation of the Yoo influenced arguments of today's administration apologists. I can almost forgive Schmitt his perhaps naive admiration of Prussia's "silver age of efficient and enlightened authoritarianism". Likewise I can forgive Schmitt and all others for arguing that "constitutional ideals and legal concepts of [a nation's] foreign and domestic enemies" impair military and government efficiency. Which is to say I can forgive anyone coming to Yoo's conclusions or parroting his rationalizations---if they haven't read their history. But we know what became of Germany with the help of Schmitt's legal analysis; Germany turned to evil. Nor was Germany the first great example of a nation state to give too much power to, or place too much emphasis on, its military might only to crumble under the weight of oppression or go down in the mire of debauch.

The problem with Yooish thought and the terror laws passed (and in the works) by this administration are not found primarily in the laws themselves, but rather in the people who, looking at what they hope to accomplish with those laws, refuse or are unable to see the evils to which those same laws can be turned. Folks don't much like to think about good and evil these days; the ascendancy of "economic" analysis has foreclosed evaluation by that criteria set for most folks. But maybe it is time to refresh that view. No one can credibly disagree that the systematic wholesale slaughter of six million Jews was evil; there's a starting point. No one can credibly disagree that holding an innocent person for years without even hope of being charged or knowing the evidence against her is evil. And while we rightly shy away from judging evils on some simple linear spectrum, it is still fair, if not fully accurate, to say that the evil of the Holocaust is greater than the evil of wrongly holding one innocent person without due process. Slippery slope reasoning is suspect, but attacks on due process do not slide down a slope to the evils of genocide; rather such attacks plow the soil in which the seeds of fascism can find a fertile home. That is the danger of Schmittian or Yooish thought. It is also the danger of foolishly elevating "economic" or utilitarian analysis to the level seen in early 20th Century Germany, and found in Chicago School economic analysis. Certainly there is much in the Constitution, by whatever means of interpretation one chooses, to support insisting we adhere to criteria sets other than simple utility. Justice, Freedom and Liberty each appear in the Constitution; economy, efficiency and utility are notably absent. Schmitt's prime mistake, then, might simply be a childish preoccupation with the goods of the burgeoning industrial age to the detriment of a non-empirical but epistemologically sounder Good (secular or otherwise) to which we all must answer.

[] static link
writebacks: 1 (writeback = trackback +/- comment)

Jordie wrote

Robert, Sorry I've been out of touch. I've had a mountain of work to do before the feds do an evaluation at my place of work. I've been working until 10pm every evening. I also had to go to conference in Atlanta. Now I'm back and things are calmed down a little and I can help. Let me know what you'd like me to do.