Carl Schmitt and the Road to Abu Ghraib

William E. Scheuerman
When a colleague recently brought the first English translation of Carl Schmitts The Partisan to my attention, I picked it up more out of a sense of professional obligation than genuine enthusiasm.1 While writing a book on Schmitt in the mid 1990s, I diligently read Schmitts short 1963 volume, but ultimately decided that it was not worthy of detailed exegesis. Although a fascinating attempt to make sense of the guerrilla movements of the 1960s, The Partisan belonged, I decided, among Schmitts minor works. Not only does much of its argument rely on the theoretically more significant 1950 Nomos of the Earth, but in the context of the end of the Cold War, the demise of Third World guerrilla movements, and universal embrace of free market capitalism, Schmitts reflections struck me as dated. But that was all before Al Qaedas heinous 9/11 attacks, the illegal U.S.-led invasion of Iraq, Abu Ghraib, and Guantanamo Bay. As I reread Schmitts study in the post 9/11 context, it quickly became clear that I had overlooked something significant. Despite the deep normative flaws in his thinking, Schmitt was often a prescient analyst of political and legal trends, possessed with an uncanny ability to identify dilemmas that would soon gain widespread attention. This is no less true of The Partisan than of his more famous works. Schmitts study is disturbingly relevant to the political and legal world in which we now find ourselves, in which the U.S. government has responded to 9/11 in part by placing accused terrorists outside the Geneva Conventions category of legal combatants and outfitting the executive with a stunning array of discretionary powers to determine their fate. Schmitts little known 1963 study not only anticipated this development, but when read critically also points to sound reasons for challenging its deeply problematic logic. Let me try to explain why. I Much of Schmitts postwar writing was preoccupied with the task of identifying internal cracks in a world in which the political supposedly was displaced and even colonized by the logics of law, economics, and technology. Under the Nazis, Schmitt had envisioned the possibility of a (German-dominated) European alternative to the purportedly anti-political illusions of Anglo-American liberalism and Soviet communism.2 Yet Hitlers defeat abruptly smashed those dreams. Immediately after the war, Schmitts theory takes on increasingly melancholic
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overtones. In the face of the parceling up of the globe by the Americans and Soviets, his landmark Nomos of the Earth is ultimately a politically defensive and even nostalgic work, more concerned with underscoring the virtues of the (now bygone) traditional European state system than with outlining a constructive alternative to the self-destructive political universalisms (e.g., liberalism and Marxism) Schmitt deemed culpable for the global civil war which ensued despite the formal peace treaties signed in 1945.3 On the theoretical plain, this defensiveness takes the forms of a heightened accent on the centrality of concrete space or territoriality [Raum] for political and legal analysis. Plausible political and legal models always take territoriality seriously by acknowledging their deeply rooted character in a concrete geographical locality, Schmitt argues, whereas the political and ideological offshoots of the European Enlightenment rely on bad faith claims to be fundamentally deterritorialized approaches. The disastrous result, Schmitt posits, is the postwar division of the globe into the hands of two imperialistic political giants who aim at nothing less than remaking the world over in their own images. Only this context allows us to make sense of the surprising enthusiasm with which Schmitt at first glance appears to have greeted the guerrilla movements of the 1960s. Here at last, Schmitt seems to have speculated, we find actors who not only pose a fundamental challenge to the troubling Soviet and U.S. division of the planet, but also embody a sophisticated understanding of the political: they identify a real enemy, show no qualms about the real possibility of killing that enemy,4 and discard illusions that the enemy can be effectively opposed by legal, moral, or economic devices. In one of the most astonishing twists and turns of postwar right-wing authoritarian political theory, Schmitts The Partisan expresses open admiration for Mao Zedong, Fidel Castro, the Vietcong, and even Che Guevara. Schmitt goes so far as to suggest that the rise of Maoist China might open the door to a more sensible organization of international politics, in lieu of the present (e.g., postwar) domination of the world by two great powers plagued by frightful aspirations for world domination, in which a competing set of fundamentally distinct regionally oriented great spaces [Grorume] would operate alongside one another (41).5 During the 1930s and 40s, Schmitt hoped that Germanys resurgence might engender a more pluralistic international ordering. By the 1960s he at least momentarily toyed with the idea that Hitlers historical role had fallen to none other than Mao. Schmitts seemingly hopeful rediscovery of the political in the postwar era constitutes the starting point for The Partisans detailed historical and theoretical discussion of the origins of the modern partisan, among whom he includes a diverse array of recent guerrilla movements. Although I cannot do justice to Schmitts full account here, let me underscore its main features. First, the partisan can be defined as possessing four main attributes. Partisans are irregular fighters since they do not make up a regular (modern, bureaucratically organized, centrally coordinated) military force and consequently lack many
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of its telltale signs. They neither wear uniforms nor openly carry their weapons. This familiar fact points to a more profound difference, however. Their mode of warfare is fundamentally irregular as well, and they neglect the traditional laws of war. Partisan wars, Schmitt observes, take the form of a vicious cycle of terror and counter-terror (9). The regular combatants they fight will generally abandon the niceties of the laws of war in order to match fire with fire. In Schmitts account, General Raoul Salan, the infamous founder of the French OAS (Organisation dArmee Secrete) who embraced terroristic methods in order to combat the Algerian FLN, is a tragic figure since his example reveals the tough choices political and military leaders are driven to make when confronting terror and partisan war (4347).6 Second, a further touchstone is the intense political commitment which sets the partisan apart from other fighters. In contrast to both common criminals and most ordinary soldiers, the partisan is an intensely political creature, possessing an intimate relation to some kind of fighting, warring, or politically active party or group (10). Third, partisan warfare privileges intense mobility in the sense of placing a premium on agility, speed, and the capacity for surprise attack or retreat. The modern guerrilla fighter is freed from the organizational and bureaucratic restraints that occasionally work to reduce combat mobility, and he shows prowess at undertaking rapid-fire attacks behind the lines in unexpected and oftentimes deadly ways. The fourth main attribute what Schmitt describes as the partisans telluric character is the most peculiar. Not surprisingly, it has been subject to severe criticism even by sympathetic readers, most notably Raymond Aron, who borrowed heavily from Schmitts account while criticizing his discussion of this feature.7 For Schmitt, the partisan is fundamentally a defensive creature, with an intimate relationship to a concrete locality and, typically, the soil [Boden], engaged in life-or-death battles with regular armies having universalistic aspirations. In its purest form, the partisan is an autochthonous entity of agrarian provenance, whose mode of existence and style of warfare exploit his intimate and seemingly instinctive knowledge of his homeland and its geographical idiosyncrasies its mountains, forests, jungles, or deserts. The partisan represents a particularly terrestrial type of active fighter, concerned chiefly with driving an overreaching imperialistic enemy from his home territory (13); he is one of the last sentries of earth (50). To be sure, this empirical claim derives in part from Schmitts odd postwar theses about the theoretical centrality of concrete space and territoriality. Yet it is also easy to see why Schmitt believed that the historical experience of partisan or guerrilla warfare corroborated his theoretical expectations. In Schmitts historical narrative, partisans can be found throughout history. They only take on real significance in the Napoleonic Wars, however, when guerrilla forces posed a deadly challenge to French armies in Spain, Tyrol, and Russia. For Schmitt, these early localized national fighters represent a pristine example of partisan warfare, and he delights in recalling the fact that substantial segments of Napoleons armies
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were bogged down in skirmishes with untrained Spanish country yokels, who waged a brutal irregular war that substantially raised the costs of the French occupation. They are paradigmatic for another reason as well: their telluric character stands in stark contrast to the universalizing impulses of the Napoleonic project, which Schmitt interprets as having inherited core features of the Enlightenment legacy of the French Revolution. In his view, the fundamental flaw plaguing recent left-wing guerrilla movements is that they risk abandoning the telluric attributes of their historical predecessors. Although they rest on deep ties to the agrarian population and exploit the geographical specificity of the country, and ideological appeal is defensive and particularistic (e.g., their opposition to US imperialism and its globalizing aspirations), modern guerrilla movements are probably destined to shed their telluric roots (50).8 First, their Marxist orientation exists in deep tension with any serious political or theoretical emphasis on the significance of concrete space or territory. Like its liberal Enlightenment cousin, Marxism ultimately leaves no room for this approach. Lenin is thus a more authentic Marxist than Mao, Schmitt suggests, but his inconsistencies as a Marxist simultaneously made Mao better able to appreciate the political and military opportunities of partisan warfare (4041). Second, modern technology works to counteract an authentically telluric brand of partisan warfare. Mobility in contemporary military affairs rests on advanced technology which clashes badly with the deeply rooted localism of the classical partisan fighter, the original backwoods Spanish guerrillero:
even the autochthonous partisan of agrarian origin is drawn into the force-field of irresistible technical-industrial progress. His mobility is so enhanced by motorization that he runs the risk of complete dislocation. (14)

When successful guerrilla warfare relies on forms of technology which dramatically compress space and time, his intimate relationship to a concrete locality is lost (4850). He no longer fights with the farmers pitch fork and butchers knife; now he needs machine guns and advanced explosives. Dependent on complex technology, and tied to global movements having their own universalistic aspirations (e.g., world revolution), the modern-day partisan fighter losses his telluric character and becomes a transportable, replaceable cog in the wheel of a powerful world-political machine (14). Why is this trend so threatening to the identity of the partisan? It renders him indistinguishable from his foes, whose universalistic aspirations he increasingly mirrors: both American liberals and their revolutionary guerrilla opponents claim to speak in the name of a (mythical) unified humanity. In this way, partisans abandon the special connection to concrete territoriality which Schmitt considers essential to their political intensity, jettisoning their healthy political instincts for the fictional normative or moral ideal of the community of humankind. Unlike the anti-Napoleonic freedom fighters of Spain or Tyrol, they now disingenuously and self-righteously wage wars in the name
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of humanity, and thus are likely to reproduce the terrible ills of Enlightenmentbased political worldviews which, in Schmitts account, engender the horrors of modern total war.9 For this reason, The Partisan, no less than Schmitts other works after 1945, ultimately remains a deeply nostalgic book. Even though postwar guerrilla movements initially provide some reason to hope that an authentic mode of politics is alive and well, his study ends on a cautious note, strongly suggesting that the most sophisticated mode of guerrilla warfare in modern times was found among the telluric peasants of early nineteenth century counterrevolutionary Spain, but hardly among the revolutionary movements of 1960s Southeast Asia or Latin and South America. II The Berlin political theorist Herfried Mnkler, the most impressive critical commentator on Schmitts ideas about war, can help in identifying a number of flaws in Schmitts argument. Schmitts The Partisan occasionally appears to conflate partisan or guerrilla warfare with terrorism, when in fact we need to distinguish them. Though both phenomena, in contrast to common criminality, are intensely political in character, terrorism and guerrilla warfare rely on distinct organizational modes. In empirical reality, the two forms of hostility sometimes appear to merge, yet fundamental differences remain. Guerrilla fighters refigure the traditional distinction between combatants and non-combatants without abandoning the distinction altogether,10 whereas terrorism discards the distinction and condones indiscriminate violence against innocent civilians. Only terrorists, in short, directly reproduce the worst excesses of modern total war. Violence is employed differently in another way as well: when Castros Cuban guerrillas destroyed a train depot, they did so in order to disrupt the enemys supply lines; when terrorists hijack a civilian aircraft, they do so primarily for the sake of generating mass fear and anxiety in order to advance their political cause.11 Their acts are likely to take the form of extortion (e.g., remove US troops from Saudi Arabia or face further attacks), whereas guerrilla violence is generally aimed directly at the enemys organizational and military capacities.12 Not surprisingly, guerrilla leaders such as Mao and Che Guevara sharply criticized terrorism and distinguished their acts from those of mere terrorists. In order to succeed, guerrilla or partisan warfare also relies on the political support or at least complicity of the general populace and works hard to build this support, while terrorists wage war in the name of an imagined party (e.g., an authentic Islamic community, or the revolutionary proletariat) whose actual role in the hostilities may be minimal. In contrast to the potentially democratic or at least populist connotations of guerrilla warfare, terrorists paternalistically posit the existence of some (perhaps fictional) political entity which they hope to awaken or unleash by their acts of violence. Especially important in the contemporary context is that terrorism may serve as a
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precursor to a broader and politically more explosive partisan or guerrilla war. In the Algerian civil war, for example, isolated terrorist attacks undertaken by a small number of FLN fighters were successfully relayed into a broader partisan war which succeeded in driving the French from Algeria.13 The terrible cycle of terror and counter-terror described by Schmitt in his discussion of General Salan, where those fighting terrorism embrace draconian measures inconsistent with their own express political ideals,14 can play a key role in the transfiguration of terrorism into full-scale guerrilla war. Mnkler also suggests that Schmitt ultimately failed sufficiently to separate two fundamentally different types of partisan or guerrilla fighter. On the one hand, we find backwards-looking partisans who fight in the name of tradition,15 seek the reestablishment of customary law, and wage a defensive battle against modernizing political and social forces. They best correspond to the telluric quality of partisan warfare described by Schmitt. In sharp contrast to Schmitt, however, Mnkler believes that it these reactionary partisans who most destructively murder innocent civilians and discard any distinction between legal and illegal combatant. For them, the political foe is an absolute enemy whose physical elimination is justified: they understand themselves as the only true representatives of authentic customs and traditions which their political enemies are simply unable to express or share. In their eyes, the enemy is truly an existentially alien other. Notwithstanding the weird case of John Walker Lindh, can a young US soldier ever really partake of the communitarian ethos of authentic Islam as interpreted by the Taliban or other extremist groups? On the other hand, guerrilla movements, typically of the left, promise a utopian future, wage an offensive battle (e.g., third world and global revolution), and are driven by a coherent political ideal more than an appeal to tradition. In part because partisans of this type ultimately want to convince political opponents of the justice of their cause and bring them over to their side, they shy away from indiscriminate violence. In communist ideology, even the bourgeois can become a party member: Friedrich Engels, after all, was one of the fathers of scientific communism, as school children once memorized in the eastern bloc.16 Beyond its relevance for correcting Schmitt, I mention this discussion for another reason as well. In US media coverage of the Iraq War, insurgents are widely described as terrorists. Given their flagrant disregard for the laws of war, this is understandable and perhaps legitimate. But it obscures the ways in which the Iraqi insurgency has managed to take on a number of attributes of guerrilla warfare of the first type described by Mnkler. Significant segments of the movement see themselves as waging a defensive (or, in Schmitts original terminology, telluric) battle against an over-reaching outsider hostile to authentic Islamic tradition. Their indiscriminate use of violence suggests that they picture the foreign crusader (along with local collaborationists) as absolute enemies whose physical elimination is justified. Although matters are obviously in flux, large swaths of Iraqi territory apparently remain outside the effective control of
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the central government, and the insurgents (numbering at least 20,0040,000) may be functioning as a de facto sovereign in some areas. The fact that polls consistently show substantial support for the insurgency and its battle to rid Iraq of the US invaders should hardly surprise us: as we know from the annals of modern guerrilla warfare, popular support and complicity is indispensable if alternative networks of political authority are to emerge.17 Last but by no means least, there is widespread evidence pointing to sophisticated levels of coordination, sustained planning, and even centralized decision making among the insurgents, organizational attributes widely used in the scholarly literature to distinguish partisan or guerrilla warfare from the more decentralized, informal, and sporadic decision making structures found among terrorists. So here is the first way in which Schmitts The Partisan is relevant to our post9/11 universe: when properly reinterpreted, Schmitts comments about partisan movements can provide some useful pointers for making sense of the Iraqi insurgency. If we rely on Mnklers helpful reworking of Schmitts categories, we might describe the course of events since 9/11 in the following terms. Al Qaeda is a terrorist organization, and the 9/11 attacks (as well as more recent bombings in Spain and Britain) bear all the markings of terrorism. The most fateful US political response to the attacks arguably was the Bush Administrations more-or-less immediate decision to invade Iraq. That decision has now helped generate what we can legitimately describe as a guerrilla or partisan war which depends on significant sympathy from segments of the Iraqi population. The insurgency brings together a motley collection of former Baathists, radical Islamists, and Al Qaeda fighters, now united by their profound hostility to the American crusaders. So the main achievement of US foreign policy has been to allow the Al Qaeda terrorist attacks of 9/11 officially condemned at the time even by mid-eastern regimes otherwise hostile to the United States, and undertaken by a small and by no means especially popular political contingent in the Islamic world to serve as a precursor to what arguably has become a broader, better organized, and terribly destructive partisan war with which significant segments of the Islamic world openly sympathize. Most likely, the downward spiral of terror and counter-terror in Iraq, as Schmitt would have prophesied, has played a significant role, as US forces respond to suicide bombings and indiscriminate acts of insurgent violence by themselves killing and abusing civilians. This spiral, of course, has worked to fan the flames of burgeoning anti-Americanism in other words, precisely what Al Qaeda needs in order to thrive. III Yet the more challenging facet of Schmitts The Partisan lies elsewhere. A central issue in the volume is how the laws of war should best regulate irregular combatants who do not wear uniforms, fail to carry their weapons openly, and often ignore the traditional rules of war. Do irregular fighters deserve the
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protections of the Geneva Convention, or is their fate best left in the hands of the discretionary authority of those who capture them? Of course, this issue has been at the very center of a worldwide debate about how liberal democracy should respond to the 9/11 terrorist attacks. In the United States, the Bush Administration quickly determined that neither accused terrorists nor Taliban fighters captured in Afghanistan can be categorized as regular combatants; this decision provided the legal justification for many of the most controversial elements of the so-called war against terrorism. Most importantly, it led to the establishment of the now infamous detention camp at Guantnamo Bay, which even one US Senator has since compared to the crimes of totalitarianism.18 The fate of the Guantnamo detainees is decided by tribunals which military lawyers widely describe as being little more than kangaroo courts, and their treatment of has been characterized as harsh and brutal by independent humanitarian organizations.19 Right-wingers may be justified in criticizing those who draw crude parallels between Guantnamo and Nazi or Soviet camps, but their outrage does not seem to have forced them to ask tough questions about the US treatment of irregular fighters. Despite claims to the contrary, there is no evidence, for example, that any useful information has been gained by the legally suspect and profoundly inhumane interrogation methods apparently being used at Guantnamo.20 Schmitts comments about this controversial legal issue are characteristically suggestive. He correctly notes that international law has struggled with the problem of how to regulate irregular combatants. The experience of anti-fascist partisan war indeed contributed to a relaxation of what was previously a purely statist European international law even in the Geneva Convention of 1949, whose architects sought a cautious extension of basic protections to irregular fighters unaffiliated with the traditional subjects of international law, sovereign states. Writing in 1963, Schmitt accurately observes that partisan and guerrilla fighters had come to enjoy greater legal protections than in the past, though they still lacked the full rights of the regular combatant (1516). The general trend described by Schmitt is readily confirmed by the battle over Protocol I of the Geneva Convention of 1977, which expressly extends the protections long enjoyed by regular soldiers to people fighting against colonial domination and alien occupation and against racist regimes. The 1977 Convention which the United States never ratified, in contrast to the earlier 1949 Convention also loosens the definition of legal combatants by providing new protections even to fighters who fail to distinguish themselves (for example, by wearing a uniform) from civilians. Such fighters are still required to carry their arms openly during military deployment or an attack, but the clear thrust of Protocol I is to place guerrillas under the same legal rubric as traditional military forces. Despite the general shift towards extending legal privileges to irregular combatants, however, many prominent international lawyers claim that the Geneva Convention of 1977 still affords no protection for terrorists.21
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Schmitt describes the broadening of traditional legal protections to include partisans and guerrillas as the product of a humane conscience, but he ultimately underlines its deep incongruities (2223). In fact, he concludes with the dramatic assertion that the normative regulation of irregular combatants is juridically impossible (25). No coherent legal regulation of the irregular fighter, it seems, is achievable. International law obscures this harsh fact with vague language and open-ended legal clauses, but regular law never can successfully contain or regulate the phenomenon of irregular fighter. Regular law and irregular combatant are like oil and water: they simply do not mix. By necessity, the irregular combatant will remain a legal black hole where or so Schmitt implies no legal norm can realistically provide a modicum of predictability. Schmitt offers three reasons in support of this view. First, he implicitly relies on the stock argument that authentic politics necessarily elides legal regulation: when conflicts involve existentially distinct collectivities faced with the real possibility of killing, the attempt to tame such conflicts by juridical means is destined to fail, or at least badly distort the fundamental (political) questions at hand. Insofar as the partisan fighter represents one of the last vestiges of authentic (i.e., Schmittian) politics in an increasingly depoliticized world, he has to dub any attempt to regulate the phenomenon at hand as misguided and maybe even dangerous. Yet this argument relies on Schmitts controversial model of politics, as outlined eloquently but unconvincingly in his famous Concept of the Political. To be sure, there are intense conflicts in which it is nave to expect an easy resolution by legal or juridical means. But the argument suffers from a troubling circularity: Schmitt occasionally wants to define political conflicts as those irresolvable by legal or juridical devices in order then to argue against legal or juridical solutions to them. The claim also suffers from a certain vagueness and lack of conceptual precision. At times, it seems to be directed against trying to resolve conflicts in the courts or juridical system narrowly understood; at other times it is directed against any legal regulation of intense conflict. The former argument is surely stronger than the latter. After all, legal devices have undoubtedly played a positive role in taming or at least minimizing the potential dangers of harsh political antagonisms. In the Cold War, for example, international law contributed to the peaceful resolution of conflicts which otherwise might have exploded into horrific violence, even if attempts to bring such conflicts before an international court or tribunal probably would have failed.22 Second, Schmitt dwells on the legal inconsistencies that result from modifying the traditional state-centered system of international law by expanding protections to non-state fighters. His view is that irregular combatants logically enjoyed no protections in the state-centered Westphalian model. By broadening protections to include them, international law helps undermine the traditional state system and its accompanying legal framework. Why is this troubling? The most obvious answer is that Schmitt believes that the traditional state system is normatively superior to recent attempts to modify it by, for example, extending
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international human rights protections to individuals against states.23 But what if we refuse to endorse his nostalgic preference for the traditional state system? Then a sympathetic reading of the argument would take the form of suggesting that the project of regulating irregular combatants by ordinary law must fail for another reason: it rests on a misguided quest to integrate incongruent models of interstate relations and international law. We cannot, in short, maintain core features of the (state-centered) Westphalian system while extending ambitious new protections to non-state actors. This is a powerful argument, but it remains flawed. Every modern legal order rests on diverse and even conflicting normative elements and ideals, in part because human existence itself is always in transition. When one examines the so-called classical liberal legal systems of nineteenth-century England or the United States, for example, one quickly identifies liberal elements coexisting uneasily alongside paternalistic and authoritarian (e.g., the law of slavery in the United States), monarchist, as well as republican and communitarian moments. The same may be said of the legal moorings of the modern welfare state, which arguably rest on a hodgepodge of socialist, liberal, and Christian and even Catholic (for example, in some European maternity policies) programmatic sources. In short, it is by no means self-evident that trying to give coherent legal form to a transitional political and social moment is always doomed to fail. Moreover, there may be sound reasons for claiming that the contemporary transitional juncture in the rules of war is by no means as incongruent as Schmitt asserts. In some recent accounts, the general trend towards extending basic protections to non-state actors is plausibly interpreted in a more positive and by no means incoherent light.24 Third, Schmitt identifies a deep tension between the classical quest for codified and stable law and the empirical reality of a social world subject to permanent change: The tendency to modify or even dissolve classical [legal] conceptsis general, and in view of the rapid change of the world it is entirely understandable (12). Schmitts postwar writings include many provocative comments about what contemporary legal scholars describe as the dilemma of legal obsolescence.25 In The Partisan, he suggests that the great transformations and modifications in the technological apparatus of modern warfare place strains on the aspiration for cogent legal norms capable of regulating human affairs (17; see also 4850). Given the ever-changing character of warfare and the fast pace of change in military technology, it inevitably proves difficult to codify a set of cogent and stable rules of war. The Geneva Convention proviso that legal combatants must bear their weapons openly, for example, seems poorly attuned to a world where military might ultimately depends on nuclear silos buried deep beneath the surface of the earth, and not the success of traditional standing armies massed in battle on the open field. Or what does the requirement mean of an insignia visible from afar in night battle, or in battle with the long-range weapons of modern technology of war? (17)
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As I have tried to show elsewhere, these are powerful considerations deserving of close scrutiny; Schmitt is probably right to argue that the enigma of legal obsolescence takes on special significance in the context of rapid-fire social change.26 Unfortunately, he seems uninterested in the slightest possibility that we might successfully adapt the process of lawmaking to our dynamic social universe. To be sure, he discusses the motorization of lawmaking in a fascinating 1950 publication, but only in order to underscore its pathological core.27 Yet one possible resolution of the dilemma he describes would be to figure how to reform the process whereby rules of war are adapted to novel changes in military affairs in order to minimize the danger of anachronistic or out-of-date law. Instead, Schmitt simply employs the dilemma of legal obsolescence as a battering ram against the rule of law and the quest to develop a legal apparatus suited to the special problem of irregular combatants. Why have I spent so much time recounting Schmitts views concerning the impossibility of a successful codification of the laws of war for irregular fighters? If I am not mistaken, the Bush Administrations legal arguments about the status of accused terrorists mirror crucial facets of Schmitts logic. It would be a mistake to interpret the Bush Administration as merely claiming that terrorism requires a different or less demanding system of normative legal regulation than we find in the case of regular combatants or even guerrilla fighters. As noted above, this view is held by some prominent international lawyers, and there may be sound legal reasons for defending it. On occasion, the Bush Administrations rhetoric has appeared to reflect this position as well. But as we now can clearly discern from recently released administration memorandums, its view is actually more radical. In the spirit of Carl Schmitt, influential voices in the administration interpret the executive branchs authority to determine the fate of accused terrorists along the lines of a legal black hole in which unmitigated discretionary power necessarily holds sway. For the Bush Administration, as for Schmitt, the weaknesses of the existing legal regime for terrorism are not simply a lamentable reminder of the limits of statutory law, or reason for reforming international law in order to make it better suited to the challenges of terrorism. It interprets the existing legal lacunae instead as evidence for the necessity of a fundamentally norm-less realm of decision making in which the executive possesses full discretionary authority. At the very least, I am not sure what else one can make of an August 1, 2002 memorandum from Jay S. Bybee, Head of the Justice Department Office of Legal Counsel, to White House Legal Counsel Alberto Gonzales, in which he declares that the President enjoys complete discretion in the exercise of his Commanderin-Chief authority and in conducting operations against hostile forces and thus, if he so desires, can discard not only international but even standing domestic legal prohibitions on torture as part of the current war against Al Qaeda. In case of any misunderstanding about the wide scope of executive prerogative in the war against terrorism, Bybee also creatively redefines torture as an extreme act
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accompanied by serious physical injury such as death or organ failure in other words, he narrowly circumscribes the concept of torture by virtually conflating it with murder. A certain amount of patience is called for in order to wade through Bybees sycophantic bureaucratic prose, but the unambiguous message of this stunning document is that the president can authorize anything he deems appropriate in interrogating accused Al Qaeda terrorists as part of the sweeping grant of discretionary power he possesses as commander-in-chief.28 Not only international law, but US statutory law as well, is unconstitutional if it conflicts with the Presidents vast discretionary power as commander-in-chief, which apparently includes the authority to interrogate enemy combatants as he alone sees fit. Bybees words are hardly those of a loose cannon in the Bush Administration: what constitutional scholar Louis Fisher describes as the heavy influence of Bybees legal analysis can be detected in a number of subsequent Pentagon Working Group Reports which directly set policy at Guantnamo Bay, and his efforts have since been rewarded by President Bush with a plum judgeship on the US Court of Appeals for the Ninth Circuit.29 Bybee undoubtedly knew ahead of time what his bosses at the White House wanted to hear; they pretty much said as much in earlier memos of their own. In a secret declaration issued by the president to leading officials on February 7, 2002, the president concluded that Al Qaeda detainees had no inherent protections under the Geneva Convention the condition of their imprisonment, good, bad, or otherwise, was solely at his discretion.30 The presidents memo makes it clear as well that he was not merely interested in advancing a distinct or less demanding legal standard for treating accused terrorists than found in the Geneva Convention for legal combatants, but instead that the possession of full discretionary power was what he really sought. In this spirit, he declares that the Geneva Convention only applies in our relations to Al Qaeda and Afghanistan at the discretion of the executive, and hence that he reserves the right to reverse his present legal standpoint to suit future political needs if necessary. Indeed, this is perhaps the most striking attribute of the legal regime which the United States has established for detainees in Guantnamo Bay. In the administrations view, the detainees have no rights: any legal guarantees provided them for example, those outlined in the various proposals for military tribunals are nothing more than grants or privileges rewarded to the detainees at the discretion of the executive, based on what Chief Counsel Gonzales describes as its definitive understanding of military necessity. At a moments notice, they can be taken away. It thus makes perfect sense for Secretary of Defense Donald Rumsfeld to declare that even if a tribunal were to rule in favor of an accused terrorist he retains the authority to detain them indefinitely.31 The administrations arguments mirror some of the specific details of Schmitts claims as well. In a memorandum to President Bush on January 25, 2002, Alberto Gonzales states that the war against terrorism represents a new kind of war for which the existing legal rules are inappropriate since the Geneva
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Convention arose in the context of the traditional clash among nations. This argument is now widely used among members of the administration to justify its handling of accused terrorists, and it appears in many of the internal memorandums now available to the public. Gonzales memo correctly notes that the status of irregular combatants remains controversial under the Geneva Conventions.32 Echoing Schmitt, he points out that difficulties in regulating irregular combatants have been masked by undefined and unclear language in international law. But more controversial is the conclusion he draws from the existence of a mismatch between the existing rules of war and the political realities of modern terrorism. Rather than propose some new set of legal standards, or suggest that the United States help reform international law, Gonzales underlines the limitations of existing international law in order to demonstrate its utter irrelevance to the US treatment of detainees. Not only does Gonzales claim that the Geneva Conventions are altogether inapplicable in the war against terrorism, but a central aim of the memo is to figure out by what legal means maximum decision making flexibility can be reserved to the executive branch in its dealing with accused terrorists.33 To be sure, the administration memos do not posit that the executive possesses unmitigated power to overrule the courts if they dare challenge its views. So one might respond to my argument by pointing out that the administration is not in fact asserting a claim of raw discretionary power. It not only appeals to the US Constitution in justifying its views, but also appears to accept the possibility of oversight by the courts.34 By the same token, Bybees memorandums in particular are clearly aimed at warding off even minimal attempts by the courts at supervising the executives authority as commander-in-chief to wage the war against terrorism as it alone sees fit. As a theoretical matter, the possibility of judicial review is not challenged; as a matter of practical judicial politics, it would amount to very little if the administrations views, as expressed in the memorandums, were to gain wide acceptance. In light of the tendency of many of our courts to restrain from challenging the executive in the context of foreign affairs, this might not be an unrealistic political and legal strategy on the part of Bybee or Gonzales. For his part, Schmitt never denied that legal or constitutional documents could name those actors who were the proper carriers of sovereignty. Yet he argued that as a practical matter, the exercise of such sovereign power would always transcend attempts to constrain it by legal and constitutional devices.35 In a similar spirit, the Bush Administration sees its emergency power as rooted in constitutional law, while simultaneously interpreting that power as effectively unlimited. No less revealing is a September 13, 2003 report prepared by Geoffrey D. Miller, the US Army Major General who commanded the detention facilities at Guantnamo Bay before being transferred to Abu Ghraib in Iraq. As the journalist Mark Danner shows, his main job was to extend the suspect interrogation techniques employed in the detention camp at Guantnamo to Abu Ghraib.36 Miller is a crucial link in the recent scandal because he represents direct evidence that the
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horrors of Abu Ghraib can be ascribed to suspect methods first employed at Guantnamo, and not, as the administration claims, merely a handful of lowranking bad apples among the military prison guards in Iraq. The shocking revelations about Abu Ghraib rest on a political and legal decision, made at the highest echelons of the Bush Administration, to condone maximum flexibility in counterterrorist interrogation, even at the risk of discarding longstanding domestic and international legal commitments. As I have tried to suggest, that flexibility has been justified by means of the view that the legal regulation of irregular combatants constitutes a legal black hole in which executive discretion is necessarily at its apex. For our purposes, Miller is a crucial figure for other reasons. His justification for introducing morally and legally undesirable modes of interrogation into Iraq eerily corroborates Schmitts expectation that the dynamism of modern warfare potentially clashes with any attempt to develop a firm legal framework for the rules of war. Millers report declares that the United States needs to rapidly exploit internees for actionable intelligence, and improve the velocity and operational effectiveness of counterterrorism interrogation as well as the speed of delivering actionable intelligence (emphases added). In short, the dynamic operational environment in Iraq requires an equally dynamic intelligence apparatus, and such an apparatus should not be hemmed in by static and old-fashioned rules of war that emerged in a distant historical epoch when conflict took the form of a clash among nations.37 The view that military dynamism is necessarily inconsistent with strict rules of war here remains, as in Schmitts earlier version of the argument, more a battering ram against the rule of law than a well developed theoretical claim. As in Schmitts original claim, the realities of military dynamism are used simply in order to discredit the traditional rules of war, rather than revise them in a normatively appealing fashion. Millers role in exporting counterterrorist techniques to Abu Ghraib represents potential support for another disturbing facet of Schmitts thinking as well. Schmitt famously argued that unmitigated prerogative power, what the legal theorist David L. Dyzenhaus aptly describes as a moment of pure politics, either uncontrolled or largely uncontrolled by the rule of law,38 could never be fully contained or confined by legal means. The exception always pollutes and often overrides the general norm. Despite the nave claims of defenders of the rule of law, normlessness is ubiquitous in legal experience, and the exception is always more interesting than the norm. When members of the Bush Administration responded to 9/11 by arguing that accused terrorists are subject to pure discretion, they undoubtedly expected that they would be able to maintain their basic commitment to the rule of law and limit the exercise of such power to accused terrorists. But, as we know, they quickly tried to expand their claim for absolute prerogative in terrorism cases to cover US citizens as well as foreigners captured abroad. Revealingly, the Bush Administration never officially determined that prisoners captured in the Iraqi War should be
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denied the protections afforded legal combatants by the Geneva Convention. Yet Abu Ghraib provides clear evidence that the illegal methods of interrogation first employed against accused terrorists have been widely employed against captured Iraqis as well. As Schmitt would have predicted, and Major General Miller helped bring about, once the cancer of normlessness is allowed into the legal system, it is only a matter of time before it infects healthy legal organs as well. By insisting that accused terrorists are subject to pure presidential prerogative, the Bush Administration opened the door to the terrible crimes of Abu Ghraib. The only sensible response to this harsh reality is not to follow Schmitt and surrender the rule of law, but instead force the United States to rethink its disastrous and thus far counterproductive legal and political positions about the war on terrorism. If we hope to preserve our basic political and legal ideals, and not allow the downward spiral of terror and counter-terror to destroy them, we will need to reestablish a legal universe without black holes.
NOTES 1. The journal New Centennial Review recently devoted a special issue (4, no. 3 (2004)) to commentaries on Schmitts The Partisan. As part of the project, a useful English translation of Schmitts book, The Theory of the Partisan: A Commentary/Remark on the Concept of the Political, tr. A.C. Goodson (Michigan State University Press, 2004), hereafter cited parenthetically, is available for downloading at http://www.msupress.msu.edu/journals/cr/Schmitt.pdf. Unfortunately, the articles included in the special issue are of mixed quality. 2. In my reading, Schmitt wavers somewhat in his interpretation of the political credentials of communism, often interpreting it as better expressing his existentialist model of politics than liberalism. Yet for a number of reasons, including those discussed below (e.g., the humanitarian and universalistic excesses of Marxism), communism, like liberalism, is never sufficiently political in his sense of the term. 3. See the special section in Constellations 11, no. 4 (December 2004). The best discussion available of the general place of The Partisan in Schmitts work is Marcus Llanque, Ein Trger des Politischen nach dem Ende der Staatlichkeit: Der Partisan in Carl Schmitts politische Theorie, in Herfried Mnkler, ed., Der Partisan: Theorie, Strategie, Gestalt (Opladen: Westdeutscher Verlag, 1990), 6180. 4. The term is from Schmitts famous definition of the the political in his Concept of the Political. 5. See also the revealing radio interview with the journalist Joachim Schickel, published in Schickel, Gesprche mit Carl Schmitt (Berlin: Verve, 1993), esp. 28, where China is described as the last terrestrial or land-based counterbalance to imperialistic maritime powers (such as the US and UK). This was the role Schmitt attributed to Nazi Germany in the 1930s and 1940s! 6. See Raymond Arons scathing response to Schmitts rather disturbing and probably apologetic comments here in his Clausewitz: Philosopher of War, tr. Christine Booker and Norman Stone (New York: Simon and Schuster, 1986), 36971. 7. Aron reproduces a great deal of Schmitts account of how early partisan warfare in the context of the Napoleanic wars 1) gained theoretical expression in the work of the Prussian military theorist Clausewitz before 2) revolutionary theorists (especially Lenin and Mao) synthesized Clausewitz with Marx in the twentieth century. Aron openly acknowledges this debt, but he then proceeds to distance himself, in my view correctly, from a number of Schmitts claims. Clausewitz: Philosopher of War, 36371.

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8. A prominent international lawyer mirrors elements of this argument when she observes that natural environment often sets the limits and provides the facilities for guerrilla operations, either as partisans in the hills, or as units in the jungle. See Ingrid Detter de Lupis, The Law of War (New York: Cambridge University Press, 1987), 5051. 9. For the general argument, see Scheuerman, International Law as Historical Myth, Constellations 11, no. 4 (2004). Schmitt claims, without providing much evidence, that the defensive character of authentically telluric wars means that they can avoid the horrors of total war (Schmitt, Partisan, 66). In his terminology, the classical partisan was able to identify the real enemy, whereas its recent pathological (Marxist-tinged) variant transforms the real enemy into an absolute enemy, a foe of humankind, whose extermination is justified. One immediate problem with this distinction is that Schmitt, as noted, simultaneously tends to underscore the terroristic attributes of every partisan war. In his discussion of the anti-Napoleonic Spanish partisans, for example, he repeatedly mentions their brutality. 10. Guerrilla fighters may determine that a lower-level state official (for example, a postal carrier) is a combatant and thus a legitimate object of violence. See the rich account in Mnkler, Gewalt und Ordnung: Das Bild des Krieges im politischen Denken, (Frankfurt: Fischer, 1992), 171, from which much of my discussion in this section is drawn. A brief summary of Mnklers distinction between partisan warfare and terrorism can be found in his The Brutal Logic of Terror: The Privatization of War in Modernity, Constellations 9, no. 1 (2002). See also Walter Laqueur, Terrorism (Boston: Little, Brown & Co., 1977), esp. 21722. 11. Raymond Aron noted early on that an act of violence is labeled terrorist when its psychological effects are out of proportion to its purely physical result (Peace and War: A Theory of International Relations, tr. Richard Howard and Annette Baker Fox (New York: Doubleday, 1966), 170). Notwithstanding the horrible murder of thousands of civilians on September 11, this general point still obtains. 12. Detter de Lupis, The Law of War, 21. This international lawyer argues that we still lack a useful definition of terrorism in international law, but that it nonetheless is possible to distinguish it from other forms of violent hostility. 13. Also, guerrilla war may function as a transitional or intermediate position and a provisional way of deploying armed forces which ultimately culminates in the higher stage of conventional warfare (Detter de Lupis, The Law of War, 52). This, for example, was the position of Mao Zedong. 14. Salans political preferences, Schmitt points out, were initially those of a left republican. 15. However, I am not convinced that Mnkler recognizes the extent to which tradition here is manufactured or constructed in oftentimes anti-traditional ways. 16. Mnkler, Gewalt und Ordnung, 12741. 17. Polls show that a large minority, if not a majority, of Sunni Arabs are of the view that armed attacks on US forces represent a legitimate form of resistance. A good source for recent news reports on the situation in Iraq is http://www.globalpolicy.org. See also the revealing description of the Iraqi insurgency in Patrick Cockburn, Looking for Someone to Kill, London Review of Books (August 4, 2005): 67. 18. I am referring to Senator Durbin (D-Illinois), who quickly retracted his statements. Of course, the camps secret character makes it difficult to determine precisely what is taking place behind its barbed wire fences. 19. Amnesty International reports that the practices routinely used at Guantnamo Bay include immersion in cold water to simulate drowning, forced shaving of facial and body hair, electric shocks to body parts, humiliation (e.g., being urinated upon), sexual taunting, the mocking of religious belief, suspension from shackles, physical exertion to the point of exhaustion (e.g., rock-carrying), and mock execution. Tony Judt, The New World Order, New York Review of Books (July 14, 2005), 17. 20. This point is made well by Seymour Hersh, Chain of Command: The Road from 9/11 to Abu Ghraib (New York: Harper, 2005). 21. Detter de Lupis, Law of War, 116. This is also the view of Yale law professor Ruth Wedgwood, who has vocally defended the Bush Administrations treatment of accused terrorists in
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a series of Op-ed pieces published in major newspapers. Of course, this position still raises the obvious question of how one is to determine fairly and competently who deserves to be categorized as a terrorist in the first place, a problem which has vexed US officials. In addition, the fact that (accused) terrorists may lack the protections afforded ordinary combatants by no means implies that they are without legal protections altogether. In both domestic and international law, for example, other rules (including prohibitions on torture) still obtain. On the political battles which led to the extension of legal privileges to guerrilla fighters, see Keith Suter, An International Law of Guerrilla Warfare: The Global Politics of Law-Making (New York: St. Martins, 1984). 22. Even orthodox realist theory concedes this point. See Morgenthau, Politics Among Nations: The Struggle for Power and Peace, 2e (New York: Knopf, 1954). 23. For Schmitts arguments here, see again my International Law as Historical Myth. 24. See, for example, David Held, Democracy and the Global Order (Stanford: Stanford University Press, 1995). 25. This is an important theme, for example, in Guido Calabresi, A Common Law for the Age of Statutes (Cambridge: Harvard University Press, 1977). 26. See Scheuerman, Liberal Democracy and the Social Acceleration of Time (Baltimore: Johns Hopkins, 2004). 27. Schmitt, Die Lage der europischen Rechtswissenschaft (Tbingen: Universitts Verlag, 1950). 28. Memo: Jay S. Bybee to Alberto Gonzales, August 1, 2002, in Mark Danner, ed., Torture and Truth: America, Abu Ghraib, and the War on Terror (New York: New York Review of Books, 2004), esp. 14456. The Germans have a wonderful phrase for bureaucratic actors of this type: Schreibtischtter, or desk perpetrators. 29. Louis Fisher, Military Tribunals & Presidential Power: The American Revolution to the War on Terrorism (Lawrence: University of Kansas Press, 2005), 2067. 30. Hersh, Chain of Command, 56. The relevant memo is also reprinted in Danner, Torture and Truth. 31. A string of US Supreme Court rulings in the summer of 2004, by the way, only provides a cautious and insufficient constitutional response to the Administrations claims, as Ronald Dworkin and many others have pointed out. I should also mention that the memos confirm Andrew Aratos worst fears about the authoritarian character of the Bush Administrations response to 9/11. The Bush Tribunals and the Specter of Dictatorship, Constellations 9, no. 4 (2002). 32. However, he conveniently forgets to mention that the 1977 Protocol was aimed at overcoming some of these difficulties. 33. Memo: Alberto Gonzales to President Bush, January 25, 2002, in Danner, Torture and Truth, 8387. Gonzales has since been richly rewarded by President Bush as well. He is now Attorney General. 34. I am grateful to an astute criticism of an earlier draft of the paper by Mark Tushnet for this point. 35. Carl Schmitt, Political Theology, ed. Tracy Strong (Chicago: University of Chicago Press, 2005 (1923)). 36. Danner, Torture and Truth, 4244. 37. Geoffrey D. Miller, Assessment of Department of Defense Counterterrorism Interrogation and Detention Operations in Iraq, September 13, 2003, reprinted in Danner, Torture and Truth, 20511. 38. David L. Dyzenhaus, Humpty Dumpty Rules or the Rule of Law: Legal Theory and the Adjudication of National Security, Australian Journal of Legal Philosophy 28 (2003): 25.

William E. Scheuerman is Professor of Political Science at Indiana University (Bloomington). He is the author of Liberal Democracy and the Social Acceleration of Time (2004), Carl Schmitt: The End of Law (1999), and Between the Norm and the Exception: The Frankfurt School and the Rule of Law (1994). He is currently writing a study of Hans J. Morgenthau.

Constellations Volume 13, No 1, 2006. 2006 Blackwell Publishing Ltd.