At the insistence of the White House, the Pentagon publicly asserted in 2006 what has already become self-evident, that the United States would not observe the protocols of the Geneva Conventions concerning some prisoners. Coming as the announcement did on the heels of revelations about the prisons at Abu Ghraib, Guantánamo, and various secret locations to which the CIA had prisoners flown for interrogation and torture, it would seem that American citizens had lost their capacity for outrage or even indignation. But the fact remains that the selective abrogation of the Geneva Conventions, the George W. Bush administration’s attempts to assert “unitary executive” power, has an instructive precedent.
As is well known, the White House has been eager to assert what is claimed to be the power of the “unitary executive,” that is, the asserted power of the executive branch to override those provisions of laws with which it does not agree. This theory of the “unitary executive” meant, in practice, that the White House attached “signing statements” to hundreds of pieces of legislation enacted by Congress. Instead of vetoing bills, the Bush Jr. administration issues these statements asserting the administration’s unilateral rejection of or re-interpretation of the legislation.
This asserted “unitary executive power” is not only a rationale for “signing statements.” It underlies nearly everything that the George W. Bush administration has done. To take the most historically important example, the invasion and occupation of Iraq took place without the authorization of Congress (that is, without any official Declaration of War, and of course without the imprimatur of the United Nations). A violation of both American and international law, the invasion of Iraq was, in fact, the unilateral abrogation of law by the American executive power.
The invasion of Iraq is, of course, not the only example, just the one with the most far-reaching and visible consequences. There are others. Consider the abrogation of FISA, the Foreign Intelligence Surveillance Act, whose purpose was to limit the abuse of federal uses of wiretaps or other forms of surveillance after the abuses of the 1960s and 1970s had been revealed. The scope of the wiretapping and other invasions of American citizens’ privacy is not yet fully known, but no doubt eventually many abuses will be revealed. Only long after the election shenanigans of November, 2004, did Americans even learn that the Bush Jr. administration once again had unilaterally abrogated American law, asserting here too the “power of the unitary executive.” What very few people have realized is that this notional “unitary executive” power has an instructive precedent, which is outlined in the works of the German legal theorist, Carl Schmitt. In the 1920s, Schmitt sharply criticized the parliamentary system of the Weimar Republic, in an analysis that has a striking resonance with the contemporary American Congress’s morass of ineptness, paralysis, and manifest corruption. When National Socialism came to power in the 1930s, Schmitt defended the Third Reich and its right to peremptory justice by reference to the juridical example of the Inquisition.
According to Schmitt, the ultimate power of government is not to be found in legislation, but in the executive power to abrogate or suspend legislation. What matters is not the rule, but the exception, and “sovereign is he who decides the exception.” Schmitt’s aphorism describes how Hitler in fact took power, with the unilateral abrogation of civil liberties in Germany. Hitler imposed a “state of exception” on those whom he deemed alien to or a danger to the regime, and those in such a state of exception no longer have the rights of citizens. This state of exception, willed by the German unitary executive power, was the juridical basis for the Nazi death camps. The assertion of notional “unitary executive power” in part results from officials’ prior disgust at the inherent weakness of a parliamentary system to forcefully address long-term problems facing society, like a weak fiat currency, economic crisis, or terrorism. A “unitary executive power” appeals to the “Right,” to which Schmitt and purportedly the Bush Jr. administration belong, but, one has to note, it also could have appeal for the “Left.” Such executive powers no doubt appeal to all who are certain of their own rectitude, certain that they are guided by destiny or by God to act, to be decisive. Thus one characteristic of fascism is said to be “decisionism.” “At least we’re doing something,” a decisionist says – even if what “we’re” doing is in fact despotic and destructive. George W. Bush is, he tells us, “the decider.”
In The New Inquisitions: Heretic-hunting and the Origins of Modern Totalitarianism (Oxford UP, 2006), I detail inquisitional pathologies that have haunted the West for a very long time. These pathologies are clearly visible today – and not only in various Bush Jr. administration policies – but especially in the attempted abrogation, by executive fiat, of the Geneva Conventions. It surprises me that there is comparatively little written about such attempts, let alone about their historical precedents in National Socialism, but perhaps that is only to be expected in what a growing number of observers from across the political spectrum recognize as the proto-fascist ambience of the contemporary United States.
Arthur Versluis is author of The New Inquisitions: Heretic-hunting and the Origins of Modern Totalitarianism (Oxford UP, 2006). He is professor of American Studies at Michigan State University and can be reached at email@example.com