Because I’ve been meaning to collect “comments left elsewhere” anyway, and also because these comments bear on the discussion under the prior post as well as recurrent themes at this blog, I’m pasting two recent colloquys written in the aftermath of Senator Paul’s performance last week. Anyone who’s been reading along at this blog on these topics will see many familiar thoughts, but a dialogical, engaged, and informal context sometimes encourages economy of expression and more pointed commentary. I’ve made a few minor corrections and edits (if I had the time, I’d have already written them up into new independent posts).
1. Discussion under “Everybody please stop focusing on ‘drones'” at a Thinking Reed:
In a two-paragraph post worth reading in full, Lee M defines the authentic issue” as “ordering the killing of people–whether U.S. citizens or not–without anything resembling due process as traditionally understood, and with a great deal of secrecy and with little by way of transparency or accountability.” He adds, “This power, rather than the use of a particular technology, is what should really worry us and is what we need to be debating.”
The power defines the “executive.” It is the same power subsidiarized in the gun worn by a police officer or, on some routes, mail carriers. In our system, the people are sovereign, are the ones collectively able to give the irrevocable order or make the irrevocable demand. The authority is lent to the executive at whatever level, but the fact that it is lent doesn’t mean that the people have some other means to control its use moment by moment. The executive, from the Chief Executive on down, is both authorized and obligated to act, then look to the “court of history” for final judgment. Opponents of our current president along with opponents of particular American policies want to attach alternative questions and perhaps some amount of wishful thinking or aspirational pacifism to the fundamental problematic addressed by Senator Paul’s hypothetical, but to do so is at least a category error, and often somewhat childish. For the executive to give Paul the answer he previously declared to be the sole acceptable one would be either to lie or to abdicate.
[In the Schmittian “concept of the political”] politics is determined at the limits by the possibility of killing – of the possibility of the order to kill or of the demand for sacrifice. It can’t be wished away. It is the fundamental sovereign power, the ultimate expression of the decision over the “exceptional circumstance” that Paul and the extremists among his allies seem to want to locate elsewhere than in the federal government as currently constituted, though they often remain incapable of articulating their positions: Paul himself does not seem to know how radical he intends his opposition to be. He does not seem to have thought his position through to its logical consequences. It seems to be a relic of a more radical libertarianism that, carried forward consequentially, would be the dissolution of the state. He says he’s not a revolutionary of that type, but what he goes on to say says that he is: He just doesn’t know it, or he’s forgotten, or he’s not as bright or as honest with us or with himself as some want to think he is.
Some support him because they feel he advances a necessary or worthwhile discussion. For that discussion to be very worthwhile, it would have to frame the issues rationally and move to specific policy recommendations. Paul fails on both counts.
Lee M.: Not sure if you intend this, but your first paragraph could be interpreted as saying that it’s wrong (or there’s no point?) to trying to restrain executive war-making through rules, oversight, etc. Because, in my view, that’s precisely what we lack in this area. I don’t think we face such a stark choice between executive power that is unaccountable (except to the “court of history”) and “abdication.”
(Should note that I don’t endorse the Rand Paul line on this issue–to the extent that he has a coherent line.)
There is no absolute legal restraint as long as we have a system in which the president has commander-in-chief powers and is expected to react to threats according to his or her own peremptory judgment. (This also goes for other exercises of “sovereign power,” incidentally.) There are only political and practical restraints or impediments, beginning with the willingness of others to follow whatever orders, lawful or not. So, it’s not really possible for a president to order up an industrial era world war all on his own, but it’s impossible to prevent a chief executive from exploiting essential freedom of movement, including doing things that under some definitions amount to “warmaking” and under others do not quite all on their own rise to the level of “war,” or from initiating war and presenting it as a fait accompli to a congress and the courts.
Lee M.: So is your view that there’s no point in trying to erect legal constraints on the scope of the president’s discretion in using lethal force?
Understand that we’re speaking at a very high level of abstraction here – so looseness in language can be dangerous to the sense of the argument. So, there might be a point in proceeding as though legal constraints were being put on presidential discretion, but in another, I think stricter sense they do not truly constrain the scope of such discretion. For the last 50-60 years or so, as an example, presidents have been in a position to order the destruction of the world without asking for a referendum or going to a court for an OK. Or we could say that final responsibility for the defense of the constitutional order necessarily implies the ability to dissolve the constitutional order – if not by ordering up a nuclear war or declaring a state of emergency, and so on, then by simple failure to act against a threat to it or to fulfill the responsibility of his office. The scope of presidential power is in this sense at least commensurate to the scope of the legal order. It is not an absolute in the sense of free and infinite power, but the true constraint lies outside of the legal order, in the real concrete limits of any particular president’s ability to work presidential will, when the insane or evil or incompetent or war criminal or anti-constitutional president meets a likewise extra-constitutional and extra-legal resistance or defiance – although the fact that the struggle takes place at or beyond the limits of the legal order does not mean that its outcome could not be legalized after the fact.
…THE LAST RESORT, in other words – whose scenario was right “on the nose” on this this question. (Interesting to contemplate why the show didn’t work – I think its failure has a lot to do with putting “President Bolton” offscreen.) The larger notion is pervasive in popular culture: The cop or secret agent or doctor or victim who has to break or go outside the law in order to prove his innocence or expose corruption or stop a killer and so on. We have a schizoid culture in which we worship or are asked to worship and conduct ourselves according to “the rule of law not men,” and in which we also worship the concept of the man who righteously defies the law on behalf of a higher law, ideally to bring the two orders of law into harmony with each other (so often the story ends with the lawbreaker or representative testifying in open hearings or court, or being offered a high position in government or law enforcement). This framework is also the framework under which we as a nation go to war or indefinitely “militarize” a conflict – legally creating a space beyond normal legality.
So, back to the policy question, we can put up legal impediments and establish administrative protocols, and so on, and we can even choose to tell ourselves comforting stories about what they will achieve. These might be far preferable for us than other available alternatives – such as the fascist alternative of embracing the Leader as the true and infallible embodiment of the popular sovereign, or pacifist, pure libertarian, or “post-sovereign” alternatives that make national self-defense impossible. The Obama Administration favors the more moderate, and for us traditional approach, involving a certain suspension of disbelief and acceptance of gray areas. It is not going to embrace an argument, self-contradictorily advanced by Paul and those “standing” with him, that would implicitly indict this president and his predecessors, or that presumes to constrain inalienable executive discretion in a way that re-defines the presidency and carries within it the principle of the dissolution of the American state. (See also What neither a “drone court” nor any other legal structure will change about our system.)
Lee M.: So tell me if this is a fair summary of what you’re saying: The executive, in virtue of his responsibility for defending the nation, (necessarily?) straddles the boundary between law and lawlessness. And we will always face a receding horizon, so to speak, in any efforts to “rationalize” the executive’s deployment of force.
If that is an accurate summary, then I have two thoughts. First, what role might international law/norms play here? And second, isn’t one plausible definition of liberalism the attempt to bring the seemingly irrational forces of power under the rule of law? Is a permanent “law-free” zone something a liberal polity can accept?
I think that summary is workable.
International law: We live in the age of an incomplete and uncertain project to elaborate an international legal regime. Among its chief features and purposes, originally as an American-led project, is the criminalization of “wars of aggression,” which necessarily implies the criminalization of war itself. The goal has been advanced with the typical, seemingly natural exception of self-defense, re-producing parallel contradictions of the sort that appear in the construction of the liberal democratic state, but without an identified voice of what would have to be a global sovereign guaranteeing the integrity of the whole. As is also somewhat typical for these matters, the proponents of the project tend to speak as though their aspiration is already a reality, and tend to treat a failure to speak like them as betrayal – suggestive of the theological and ideal rather than rational and real character of the project of total legalization. The incompleteness of the project is fairly obvious whenever the dictates of the UN Security Council or General Assembly or International Court of Justice come into conflict with vital national or other particular interests. As we ourselves have demonstrated and may be about to demonstrate again vs. Iran, each national “self” explicitly retains the ability to define “self-defense” for itself. In addition, identification of the legitimate voice of each particular nation-state is subject to disagreement, and the international bodies that are supposed to validate exceptional circumstances are subject to manipulation and their decisions are subject to interpretation. The necessary incompleteness of the international law regime can be turned at any moment into its overthrow, and the return to or transparent revelation of an always underlying “international state of nature.”
As for whether a liberal polity can accept such contradictions, the answer in an absolute sense would be nope, though in a relative sense the answer is obviously yes: Not only can it, but it always has, and is doing so. From the absolute perspective, there is not, never has been, and can never be this side of apocalypse a true and pure liberal polity. ((“Polity” for Aristotle specifically designated a constitutionally constrained and in that sense mixed regime; “democracy” was the perverted form of polity; the ideal state of aristocracy would be similar to the pure liberal order, but also utopia; it would require a community of liberals surrounded by liberals, where everyone everywhere was already willing the universal, or everyone wise enough to accept wisdom, etc. At any given moment, the mixed regime may appear to its critics, or to those who lack the will or have a different will or aren’t so lucky, to be a plutocracy or an oligarchy or a great lie, or, from the perspective of a “maker,” a great conspiracy of “takers” aiming to steal what rightfully belongs to the excellent individual or family (the classical critique of democracy as tyrannical rule by the impoverished multitude). We’re often victims of our own propaganda on behalf of ourselves. When what we do turns out be either un-democratic or illiberal, perhaps democratic-and-illiberal (drones/torture) or undemocratic-and-liberal (filibuster, judicial nullification), citizens who have been raised to believe in the underlying ideals express frustration, preferring to hold on to their faith rather than question its coherency and validity. To say that we prefer that they or we “don’t stop believing” even though we know that the belief as articulable, as a belief in the potential rationality of belief, is itself irrational, is a kind of secular blasphemy, but a foundational blasphemy, since for us a surrender to mere belief without reason is also impossible, or would also equate with the collapse of the state. )) There are only sets of liberal ideals and aspirations within heterogeneous (or in the classical parlance “mixed”) regimes whose principles of unity or integrity are derived from other sources, concretely. If we call mass liberal democracy “liberal” or “democratic,” two terms often used interchangeably but properly designating two crucially but only partly overlapping philosophies or orientations, we’re speaking in shorthand or making relative judgments: Denmark seems rather more “liberal” than Zimbabwe, say, but that doesn’t make Denmark perfectly liberal, and we don’t really know how liberal Denmark could afford to be if not for the liberal, but as regards military power and sovereignty issues relatively less liberal, US of A, and the relatively even less liberal, but more liberal than it used to be, global political economic order such as it is.
So, a relatively liberal or mass liberal democratic polity clearly can survive, and these polities have survived, all sorts of contradictions as long as will and luck, or materially favorable circumstances, hold out.
2. Discussion under “Obama, Losing the Future?” at The American Conservative
I noted that the Holder’s curt letter following Paul’s filibuster, and reducing it to something of a stupid question, has functioned as something of a political Rorschach test: Supporters of Paul or at least of his positioning on drone accountability found it revolting and self-defeating. Most on the other side approved of it. My first comment quotes the above-referenced TAC post, by Scott McConnell, and puts me in the second group. My second longer reply initially addresses commenter Thomas O Meehan, but also responds to other Paul defenders.
“[T]erse, unapologetic, dismissive” was perfectly appropriate in response to an embarrassingly ill-formed question asked, and asked, and asked, for twelve hours. It also happens to confirm what Holder already said, that the President like any other president does have the authority to use a weaponized drone, or a knife, or grenade, or rifle, or B-52, or weaponized dinner napkin against an American who is engaged in combat on American soil, and why would you think anything else?
Thomas O. Meehan: CK. If you watched any significant portion of the filibuster, you would be aware that Senator Paul repeatedly stated that he understood the Executive Branch has the power to exercise deadly force to stop deadly force within our borders. Senator Paul’s question pertained to the use of deadly force against americans on american soil who were NOT posing an imminent threat.
The fact that the administration was not prepared to answer THAT question was the issue.
Mr. Meehan: Holder’s answer was specifically to that question that you say he didn’t answer. “Imminent” (or not) and “engaged in combat” (or not) amount to the same thing at this level of abstraction.
Over the course of Paul’s performance, he managed to contradict himself in numerous ways. I don’t think he knows or can know what he thinks on this issue, because he does not possess or express a consistent and coherent position. Holder tried giving a speech laying out the Admin position. He summarized the same position in an earlier letter. He finally produced a one word answer to a question which, as posed, isolates the issue or pseudo-issue. In short, any president retains the authority and obligation to act or order action against threats that he alone, at some point, may and often is asked to define, with judgment of the action left to the court of history, perhaps handed down in the form of impeachment or criminal prosecution, or perhaps made into a monument on the National Mall – just as a police officer who discharges a weapon may or may not turn out to have been justified in doing so, but, having been given a gun, is given along with it the potential responsibility (authority and obligation) to determine on his own own whether to use it. It’s fundamental to sovereign power – the famous “decision on the exceptional circumstance” – which in our system belongs ultimately to the people from whom it derives, but is lent to the executive, from president on down.
Paul and his allies need to focus a little less on their exciting and very interesting fantasies about drones or Seal Teams in Chicago or anywhere else, and focus more on what their political opponents are actually saying – that is, if the point is to have a serious and rational discussion. The definition of executive power at the functional and conceptual limits of the law is one question. The militarization of the response to international terrorism is a second question. The difficulties of defining “war” and connected terms like “combat,” “threat” and so on in the present era is a third question. The answers on these and related questions will have implications for each other, and for particular policy responses if any, but transferring discomfort or disagreement with one aspect of our historical moment to another aspect of it can make rational discussion impossible, thought it may make for a politically useful media spectacle, if under murky or simply false pretenses.
(Written and dated March 8-9, 2013 – first published December 25, 2016)