‘Sovereign is he who decides on the exception’, wrote Carl Schmitt in 1922. Schmitt’s definition of political power, penned 11 years before he became the official theorist for Hitler’s regime of undiluted rule, poignantly captures the style of US Presidential power since the September 11 attacks.
On 29 June 2006, the US Supreme Court found that the military tribunals created by presidential order in November 2001 to try enemies captured in the ‘War on Terror’ were a violation of both US and international conventions.
It was decided in the case of Hamdan v Rumsfeld that the tribunals breached the (US) Uniform Code of Military Justice and the (international) Geneva Conventions, and were therefore illegal. The court found that in establishing courts of law, the US President was required to coordinate with Congress and abide by the country’s international agreements.
In 1787, the man who would later become fourth President of the United States, James Madison, wrote: ‘The accumulation of all powers, legislative, executive and judiciary, in the same hands may be justly pronounced the very definition of tyranny.’ Madison’s words, published in New York newspapers with the aim of persuading the people that their new Constitution should divide powers between the branches of government, captures the sentiment that underpinned last week’s decision by the Supreme Court to curb Presidential power.
In the last five years, the US Administration has authorised a range of domestic and international actions that have been criticised not only by those who disagree with their substance, but also those who see them as what Schmitt described as ‘normless exceptions’ actions by the sovereign taken outside the framework of any laws, any rules, any decision-making structure.
Even those who agreed that there should have been a military strike against Saddam Hussein feared the implications of the US deciding to act contrary to the vote of the UN Security Council, the body authorised to sanction international military action. Similarly, even those who agreed that additional forms of surveillance were justified in an age of mobile phone-coordinated terrorism winced when they discovered that the President had authorised wire taps without Congressional authorisation.
And even people who believed that the trials for the men who engineered the September 11 attacks should be crafted in a unique manner, felt deeply concerned when special military tribunals were established as a law unto themselves, with no reference or deference to international, or even to US criminal or military, law.
Both implicitly (in his demeanour and rhetoric) and explicitly (in his pronouncements), President Bush has offered two main lines of justification in defence of this exceptional style of rule.
First, as he constantly reminds the world, this is ‘a different kind of war’, and brave men confronting unprecedented situations cannot be bogged down by rules established for an outmoded ‘regular’ world.
Second, as he reminds us with his benign smile and his church attendance, he is the enlightened leader whose natural goodness renders superfluous the checks and balances that the US ‘founding fathers’ put in place to secure their people during those times when enlightened leaders were not at the helm. Thus, there is no need to classify the men captured in the ‘War on Terror’ as prisoners of war, because the President has instructed the military to act ‘in the spirit of Geneva’.
That is what makes the Supreme Court decision last week such a crucial turning point in US and by extension, international politics.
Thanks to Sean Leahy.
Certainly, the decision has immediate and direct implications for the prisoners set to come before military tribunals. But more broadly, the finding implies that the prisoners kept in GuantÃ¡namo Bay are not, as the Administration deemed them to be, ‘enemy combatants’ outside the reach of international humanitarian law. We might thus anticipate that their treatment, previously determined ‘by the pleasure of the President’, must now also conform with international rules concerning the humane treatment of prisoners of war.
Most importantly though, as Justice Breyer (concurring with the majority), said, the executive has not been issued a blank cheque and a rhetorical ‘War on Terror’ is not a justification for untrammeled executive authority with no sunset clause.
Of course, the Carl Schmitts of the world (and the regimes who enact their theories) would see such attention to regulation and demands for parliamentary (or Congressional) deliberation as dangerous miscalculations, given the gravity of the situation. And indeed, the last US presidential election could leave us in no doubt that there are many (albeit not a majority of) US citizens who wanted nothing more than a decisive leader to forge a way out of the darkness that descended when the towers of the World Trade Center came down. We might recall that the most damning accusations against John Kerry were that he was a ‘flip-flopper’ who lacked the decisiveness to act without doubt.
That is why we should take the division between Schmitt and Madison, or Bush and the Supreme Court, as a genuine indication of two very different ways of seeing right rule.
Yet, at this point, the disagreement is no longer about abstract principles to be decided by reference to political theorists, but about concrete practices to be judged by real citizens, deciding what type of government they want to act in their name. The real issue in Hamdan v Rumsfeld was not whether the President should, in general, be able to establish a new type of court, absent of Congressional authority. It was whether it was lawful for the President to authorise a court that excluded Hamdan from his own trial, and admitted any type of evidence even evidence adduced under coercion.
Similarly, when Human Rights Watch complains that renditions to third countries are beyond the pale, they are talking about concrete decisions on the part of the President to authorise the torture of actual men, in contravention of international norms that the US and the international community have universally endorsed.
If there is brilliance in the US Constitutional system, it is borne from the sober wisdom of what happens when we think that the rule of men is no longer in need of the rule of law. As Justice Kennedy wrote in his Separate Opinion, ‘the Constitution is best preserved by reliance on standards tested over time and insulated from the pressures of the moment.’
Although we do not have the same Constitutional arrangements, Australia would do well to heed the warnings of the US Supreme Court, given our own balance of power issues. On the domestic front, with the Coalition holding majorities in both Houses, Parliament has ceased to be a site of robust deliberation, and has become little more than a rubber stamp for the Howard Government’s executive decisions.
The two most important pieces of legislation passed by the Australian Parliament in recent times the Anti-Terrorism Bill and the Industrial Relations Bill both went through with but a week’s consideration by parliamentary Committees, a balancing process that will only shrink further under recent changes to the Senate Committee system.
On the international front, whereas virtually every other ally nation-state whose citizens have been interned in GuantÃ¡namo Bay has exercised its sovereign right to demand that another sovereign (the US) return them for trial on their home territory, the Aust
ralian Government continues to abdicate its power. As an independent sovereign, we should surely be insisting that we try David Hicks in our own courts.
Confusing the moral rectitude or even the legality of David Hicks’s actions with questions of the rightful balance of international political power risks far more than Hicks’s well being as important as that is.
It risks the tyranny that is inevitable when there is only one seat of power in the State, and in the world.