Why The War on Terror Is The Problem
In this article for The Weekly Standard, conservative political philosopher Harvey Mansfield makes the simple point that, just because George W. Bush has exercised extra-legal powers, does not make them entirely wrong. After all, "the rule of law is not enough to run a government. Any set of standing rules is liable to encounter an emergency requiring an exception from the rule or an improvised response when no rule exists.'
This is an elementary point, which Mansfield is using to argue in favor of recently discovered wire-tapping, against a torture amendment, and generally to argue the constitutionality of Bush's expansion of executive powers. However, one does not have to share Mansfield's politics, to apprecaite his point. In fact, Mansfield focsues the question o nthe appropriate: are we in an emergency? Do we need a war against terror? The problem with the liberal argument is that it seeks to avoid this political argument by hiding behind legalistic arguments about whether Bush got warrants or not.* Even if he had, it would have been wrong because the real point is that there is no emergency, and there should be no war on terror. Bush's critics are too afraid to say it, and thus are easy prey for Mansfield's rehashing of an old argument that sometimes it is necessary to suspend the normal order in order to save it: 'enemies, being extra-legal, need to be faced with extra-legal force.' We say it now, and we say it again, it is the political logic of the war on terror that is problematic, not merely that it leads to extra-constitutional excess. After all, there is far too much the President can do even while staying within constitutional boundaries.
*Note: Mansfield at times falls prey to the same temptations when he tries to argue for the constitutionality of Bush's extra-legal actions. To be consistent, Mansfield ought to argue that the extremity of the situation can be covered by no law - constitutional or ordinary.
This is an elementary point, which Mansfield is using to argue in favor of recently discovered wire-tapping, against a torture amendment, and generally to argue the constitutionality of Bush's expansion of executive powers. However, one does not have to share Mansfield's politics, to apprecaite his point. In fact, Mansfield focsues the question o nthe appropriate: are we in an emergency? Do we need a war against terror? The problem with the liberal argument is that it seeks to avoid this political argument by hiding behind legalistic arguments about whether Bush got warrants or not.* Even if he had, it would have been wrong because the real point is that there is no emergency, and there should be no war on terror. Bush's critics are too afraid to say it, and thus are easy prey for Mansfield's rehashing of an old argument that sometimes it is necessary to suspend the normal order in order to save it: 'enemies, being extra-legal, need to be faced with extra-legal force.' We say it now, and we say it again, it is the political logic of the war on terror that is problematic, not merely that it leads to extra-constitutional excess. After all, there is far too much the President can do even while staying within constitutional boundaries.
*Note: Mansfield at times falls prey to the same temptations when he tries to argue for the constitutionality of Bush's extra-legal actions. To be consistent, Mansfield ought to argue that the extremity of the situation can be covered by no law - constitutional or ordinary.
5 Comments:
You concede too much and therefore reduce the argument to a question of semantics: what is an emergency? Mansfield's argument is more subtle and therefore more dangerous to liberty. He contends not simply that an emergency requires suspension of normal rules but, more than that, that it demands "unity" of action, "secrecy," and "dispatch." Why is this necessary, even if Machiavelli and The Federalist would have it so? Can the executive not otherwise act effectively in an emergency (real or imagined--and in many emergencies there will be some element of the imaginary and hence some dispute about the reality of the emergency). Wouldn't a more effective response be to argue that EVEN in true emergencies, when ordinary rules may not apply, still some rules, some constraints on the discretion of the executive, must remain? For is not an executive with full and unfettered discretion merely another name for tyranny?
right, the other thing about Mansfield's argument is that he's obviously relying on Carl Schmitt, who famously theorized that the executive/sovereign always has the power to make whatever decisions he sees fit in 'exceptional' situations.
Schmitt was not incidentally the most famous and celebrated legal scholar in Nazi Germany.
But, re: goldie's comment 'Wouldn't a more effective response be to argue that EVEN in true emergencies...still some rules, some constraints on the discretion of the executive, must remain?' If it's an emergency doesn't it by definition mean the suspension of rules is necessary, and you can't determine a priori which rules to suspend because it depends on the circumstance? Recall Lincoln's famous 'all the rules but one'. Once you've acknowledged the existence of emergencies, then someone must have discretion to suspend whichever rules are necessary.
I agree that, in this case, there is all kind of sinister stuff going on in Mansfield's piece, not just in giving Bush free range, but in demanding unity. However, the two things this post seems to get right is that a) it's not an abstract problem with emergency powers, but the specific claim the administration is making: that this is a war on terror. This just isn't an emergency. That's the most urgent political point to make. b) it's an especially urgent point to make because, until we reject the premise, the President can still get away with all kinds of perfectly legal things! We shouldn't be fighting a war, legally and extra-legally.
Anonymous2 makes 2 points: 1) In an emergency someone must have discretion to suspend the rules, and 2)the current situation is not an emergency. Re 1), is it your contention that in a true emergency, there should be no oversight or review of rule suspensions? Can't one say that precisely where discretionary authority is deemed imperative, oversight and review become more essential?
Yet you seem less eager to discuss the potential limitation of discretion than to circumvent the debate by simply asserting that no emergency warranting rule-suspension currently exists. On this point you and I agree, but have we any more grounds to claim a mandate for our view than the President has to claim a mandate for his? It seems fair to say that the country is divided about whether an emergency exists. Hence in my view the more "urgent political" need is to persuade a clear majority that whether or not a true emergency exists, the prerogatives of the executive are not and should not be unlimited. The defense of liberty is important on pragmatic grounds, because there is reason to think it can draw support from some who disagree with us about the substance of the case; it is also important on principle, since a true emergency may someday exist, and even then we would want the assertion of executive prerogative to be subject to scrutiny of some kind. Or don't you agree?
The executive should be subject to constraints in the event of an emergency of any kind, but when using the term "war" the old adage "All is fair in love and war" gets pushed to the forefront. Every international body holds this principle, and that is what must be combatted. However, it is hard to fight somethin that happens in reality with a conception of what should happen.
Post a Comment
<< Home