L. J. 699 Length: 29822 words article: Legalism and Decisionism in Crisis name



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But if norms cannot govern a "real exception," then who can? Schmitt's infamous answer is that the "[s]overeign is he who decides on the exception." n52 To counter the Legalist assumption that law is sovereign at all times (the rule-of-law principle), Schmitt claimed that whoever is authorized within a legal order to declare a "real exception" is the true sovereign. n53 And Schmitt viewed emergencies as the ultimate exception "that makes relevant the subject of sovereignty, that is, the whole question of sovereignty." n54 Emergencies are truly exceptional because "[t]he precise details of an emergency cannot be anticipated, nor can one spell out what may take place in such a case, especially when it is truly a matter of an extreme emergency and of how it is to be eliminated." n55 That is, whoever is authorized to declare an emergency and decide how to respond to it, is the real (Schmittian) sovereign. Thus, the declaration of the emergency is the core of politics and the mark of sovereignty.

The sovereign declares that an emergency exists and decides how to act in it because the role of the state, according to Schmitt, consists above all "in assuring total peace within the state and its territory." n56 Hence "the lawmaker under normal circumstances is something different than the special commissioner of the abnormal situation who reestablishes normalcy . . . ." n57 And constitutional protections should not apply in emergencies because the Constitution is only "the expression of the societal order, the existence of society itself. As soon as it is attacked the battle must then be waged outside the constitution and the law, hence decided by the power of weapons." n58

B. Extra-Legality in Emergencies

Current Decisionist theories have taken up Carl Schmitt's theories to challenge the notion that the rule of law is applicable at all times. Adrian Vermeule, for example, explicitly uses Schmitt's insights to argue that U.S. administrative law has "built right into its structure, a series of legal 'black holes' and 'grey holes.'" n59 Based on a study of post-September 11 appellate [*713] decisions involving matters of national security, Vermeule argues that "quite ordinary administrative law doctrines, such as 'arbitrary and capricious' review of agency policy choices and factual findings, function as grey holes during times of war and real or perceived emergency." n60 These administrative law doctrines are "grey holes" in the sense that they "represent adjustable parameters that courts can and do use to dial up or dial down the intensity of judicial review, as wars, security threats and emergencies come and go." n61 "Grey holes," according to Vermeule, are significantly different from "black holes" in that "even when the parameter is adjusted down near zero-even when the intensity of review is very weak-the fa ade of lawlikeness is preserved." n62

However, and this is the essence of U.S. Decisionism, "grey and black holes" are not only integral to administrative law, "[i]ndeed they are inevitable; no legal order governing a massive and massively diverse administrative state can hope to dispense with them, although their scope will wax and wane as time and circumstances dictate." n63 Vermeule argues that grey and black holes demonstrate the Schmittian insight that because "[e]mergencies cannot realistically be governed by ex ante, highly specified rules, but at most by vague ex post standards[,] it is beyond the institutional capacity of lawmakers to specify and allocate emergency powers in all future contingencies." n64 Vermeule therefore critiques "[t]heorists of the thick rule of law," who are "wrong in thinking that anything can be done about this state of affairs." n65 Rather, "we should recognize that the APA and its accumulated doctrines and practices are, and always will be, our Schmittian administrative law." n66 Therefore:

[P]ractically speaking, legislators in particular will feel enormous pressure to create vague standards and escape hatches-for emergencies and otherwise-in the code of legal procedure that governs the mine run of ordinary cases in the administrative state, because legislators know they cannot subject the massively diverse body of administrative entities to tightly specified rules, and because they fear the consequences of lashing the executive too tightly to the mast in future emergencies. n67

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The allusion to Odysseus in the last sentence is a noteworthy inversion of the epic story. In Vermeule's telling, tying the executive to the mast may cause or exacerbate future disasters. In Homer's telling, Odysseus's being tied to the mast enabled him to avoid the disaster of being lured to his death. n68

More importantly, it is critical to see here that in this clever theoretical move Decisionism legalizes extra-legality: it founds unbound executive power not in the executive itself but in a legislative act by Congress. Vermeule claims that deference to the executive in emergencies through "grey and black" holes was set up by Congress in the APA and is therefore legal. The term "black and grey holes" is preceded by the word "legal" throughout his text to signal that these are not just holes in a legal system-these are legal holes in a legal system. n69 So although black holes "exempt the executive from the requirements of the rule of law," n70 and grey holes are disguised black holes, n71 the text underscores that these lawless holes are "legal." Grey and black holes under this Decisionist view are therefore better understood as law's self-suspending mechanisms. n72

Mark Tushnet and Oren Gross have also taken the position that the rule of law recedes in emergencies. Under Gross's "Extra-Legal Measures Model," n73 public officials may respond extra-legally to emergencies if they "believe that such action is necessary for protecting the nation and the public in the face of calamity, provided that they openly and publicly acknowledge the nature of their actions." n74 Gross argues that publicity may provide more transparency and the uncertainty of the outcomes may limit public officials' temptation to act hastily. n75 Likewise, Mark Tushnet has argued for an [*715] affirmative recognition of extraconstitutional emergency powers; Tushnet writes that "it is better to have emergency powers exercised in an extraconstitutional way, so that everyone understands that the actions are extraordinary, than to have the actions rationalized away as consistent with the Constitution and thereby normalized." n76

Notably, what this Article calls U.S. Decisionism is different from what Cass Sunstein has called the "minimalist approach." Although both minimalism and Decisionism agree that judges should play a minimalist role in emergencies, they significantly diverge on the ultimate decision-maker in emergencies. The minimalist approach recognizes that the Constitution "does not give a general 'war power' to the President" and that "[w]ith respect to war, the Constitution is easily read to give the national legislature the primary role." n77 In contrast, the Decisionist approach views the President and the executive branch as the primary decision-makers in emergencies. n78 So whereas both minimalism and Decisionism argue for a limited role for courts in emergencies, minimalism is still Legalist in the sense that it places the ultimate authority in the legislature, whereas Decisionism places the ultimate authority in the realm of executive decision.

C. Executive Branch Supremacy in Emergencies

Current Decisionist scholars have consistently repeated the argument that courts and legislators do and should defer to the President and the executive branch in emergencies. Under this view, the President and the executive branch are, and should be, the primary decision-makers in national security emergencies. Thus, some current Decisionists self-identify as "deferentialists." n79 They have generally argued that in reality "courts defer heavily to government in times of emergency, either by upholding government's action on the merits, or by ducking hard cases that might require ruling against the government." n80

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1. Three Justifications for Deference to the Executive Branch

Decisionists have offered three different types of justifications for deference to the executive branch in emergencies: institutional competence, epistemic deference, and historical precedent. I will briefly discuss each.

First, Decisionists argue that deference shows that "[l]egislators and judges understand that the executive's comparative institutional advantages in secrecy, force, and unitariness are all the more useful during emergencies, so that it is worthwhile transferring more discretion to the executive even if it results in an increased risk of executive abuse." n81 In other words, "the real cause of deference to government in times of emergency is institutional: both Congress and the judiciary defer to the executive during emergencies because of the executive's institutional advantages in speed, secrecy, and decisiveness." n82 In contrast to courts and legislators who cannot properly respond to emergencies, the government is a speedy, secret, and decisive actor. Judges and legislators may also "lack confidence-and may be right to lack confidence-that they know enough about the consequences of particular measures taken for the protection of national security to be able to strike a proper balance." n83 Judges are "not experts on national security in general or the terrorist threat in particular." n84 Judges are institutionally inferior decision-makers in national security emergencies because "the judiciary, unlike the executive and legislative branches, has no machinery for systematic study of the problem," n85 and because judges are generalists, meaning that "[c]ases involving national security are only a tiny part of their docket. They cannot afford to devote much time to them." n86

The second justification for deference to the executive branch is "epistemic." "Epistemically humble judges," write Vermeule and Eric [*717] Posner, "should not require statutory authorization for emergency action by the President." n87 Vermeule defines "epistemic deference":

Epistemic deference is deference to expert judgment about whether a certain state of facts exist, while authority-based deference is deference to an agent empowered by some higher source of law to choose a policy or establish a rule, even or especially if there is no fact of the matter or right answer about which policy or rule is best under the circumstances. n88

Epistemic deference has to do with knowledge of certain facts that the deferring judge allegedly has limited or no access to. n89 Vermeule has recently argued that Holmes's approach to emergencies was that of "epistemic deference," and that the Holmesian version of "epistemic deference" correlates with the Holmesian view of the emergency as a pure question of fact. n90 This means that emergencies are objective, factual realities, and that the executive branch knows much more about whether or not they exist. n91

As a final justification for deference, Decisionist scholars have underscored that in the course of U.S. history courts have always deferred to the executive branch in emergencies, and that this is a good thing. For example, during the Civil War, President Lincoln suspended habeas corpus, allowing the Secretary of War to detain 13,000 northern civilians, most of them political opponents of the war. n92 The arrests were either made without charges or were for vaguely defined offenses created by executive decrees. During World War II, approximately 120,000 individuals of Japanese origin (some of whom were American citizens) were interned in camps on the basis of military orders. n93 An exemplary Decisionist summary of the history of emergencies in the U.S. is the following:



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[I]t is natural, inevitable, and desirable for power to flow to this branch of government. Congress rationally acquiesces; courts rationally defer. Civil liberties are compromised because civil liberties interfere with effective response to the threat; but civil liberties are never eliminated because they remain important for the well-being of citizens and the effective operation of the government. . . . Both Congress and the judiciary realize that they do not have the expertise or the resources to correct the executive during an emergency. Only when the emergency wanes do these institutions reassert themselves, but this just shows that the basic constitutional structure remains unaffected by the emergency. n94

In contrast with the view that underscores the grave harms to civil rights during historical emergencies, the Decisionist position is that "the history is largely one of political and constitutional success." n95 This is so because "[i]n the United States, unlike in many other countries, the constitutional system has never collapsed during an emergency." n96

In sum, based on (1) institutional; (2) epistemic; and (3) historical justifications for deference, the current Decisionist view is that during emergencies "it is important that power be concentrated." n97 Power should flow "up from the states to the federal government and, within the federal government, from the legislature and the judiciary to the executive." n98 Decisionists have criticized courts when they did not defer to government in national security issues, and praised them when they did. n99



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2. A Question of Sovereignty

Although current Decisionist approaches have attempted to brush off some of Schmitt's "continental conceptualisms," n100 we must remember that what was at stake for Schmitt in Political Theology and other texts written in the 1920's and 1930's was the issue of sovereignty. Schmitt's primary concern was not how to deal with emergencies. It was how to conceptualize sovereignty.

Schmitt wrote these texts in a time when legal realists in Europe and the United States were increasingly disillusioned by various promises of parliamentary democracy. In particular, two main insights recur in Schmitt's legal realism. First, with the immense population growth in Europe and in the United States and the inevitable growth of the administrative state, it was becoming clear that for the management of large populations, much lawmaking must be done by administrative agencies that were politically appointed rather than elected by the people. Second, these growing populations mostly had no real engagement with politics, and therefore the myth of democratic governance by the people had turned into, at best, the ability to vote. Schmitt and other legal realists (on the left and right) realized that what matters in liberal-democracies, more than sovereignty of the people, is how best to manipulate public opinion.

So at a time when the rule of law was under attack from both right and left, Schmitt sought to return to another theory of sovereignty: one that predated that of the "sovereignty of law." His theory was that the actual sovereign is not the law, but whoever can decide to put the law on hold: the President. Thus, emergencies served as a test-case for his claim that law can never really be sovereign.

Today, too, the stakes for Decisionists might be higher than they seem. Current Decisionist arguments for deference in "legal grey and black holes" are inspired by the Schmittian-Decisionist proposition that "what matters for the reality of legal life is who decides." n101 This is why the term "Decisionism" best captures the gist of this approach. Sovereignty is, just as it was for Schmitt, a matter of decision, competence, and concrete situations. In emergencies, the most competent institution to make those decisions, according to current Decisionists, is the executive branch. The Decisionist thus breaks from the Legalist in that, for the Decisionist, decisions, and not norms, are what ultimately must secure the nation.



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IV. Sites of Legalist and Decisionist Debates

Legalism and Decisionism are the two prevalent ways of thinking about emergency powers. Among the multiple contemporary sites of disputes between Legalists and Decisionists, here I focus on three. Section A considers the status of "enemy combatants" in the ongoing "war on terror" as it culminated in the Court's decision in Boumediene v. Bush. n102 Section B examines a debate in legal academia regarding the meaning of the Suspension Clause. And Section C anticipates a future site of Legalist/Decisionist debates: cybersecurity.

Read together, these three examples demonstrate how current emergency-powers debates turn on the two main issues raised in Parts II and III: (1) Can and should the "rule of law" apply at all times; and (2) who should be the main decision-maker in emergencies? Part V will argue that this narrow framing of the debates overlooks a set of political assumptions shared by both approaches.

A. Present: Enemy Combatant Detentions

In the "war on terror" declared shortly after the September 11, 2001 attacks, the legality of the Bush administration's detention policies was challenged. An important issue in a line of cases leading up to Boumediene v. Bush was whether any body of law (international or domestic) was applicable to these detentions. n103 Although Legalist and Decisionist approaches surfaced throughout this litigation, this Article focuses on their manifestations in Boumediene, where non-citizens detained as "enemy combatants" at Guantanamo Bay petitioned for a writ of habeas corpus.

1. The Legalist Boumediene Majority

Justice Kennedy's opinion in Boumediene echoes the two dominant themes of the current Legalist approach to emergency powers. First, "extraordinary times" do not necessitate the suspension of ordinary laws. Second, national security matters are governed by the rule of law, and courts will ultimately decide how to apply the laws.

First, by dismissing an alternative legal scheme set up by the political branches to determine the status of "enemy combatants," the Boumediene decision placed executive detentions back within the ordinary legal order. [*721] The Court held that petitioners did "have the habeas corpus privilege," n104 and that the procedures provided by Congress in the Detainee Treatment Act of 2005 (DTA) were "not an adequate and effective substitute for habeas corpus." n105 Therefore, Section 7 of the Military Commissions Act of 2006 (MCA) "operates as an unconstitutional suspension of the writ." n106

The Court could have adopted a minimalist approach, addressing only the constitutionality of the specific statutes in question (the MCA and the DTA), n107 but the decision is instead signed with a significantly broader Legalist declaration that "[t]he laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law." n108 Furthermore, the Court emphasized that "[t]he political branches, consistent with their independent obligations to interpret and uphold the Constitution, can engage in a genuine debate about how best to preserve constitutional values while protecting the Nation from terrorism." n109

Kennedy's opinion manifests the Legalist position that national security matters are governed by the rule of law. Accordingly, the government's argument that Guantanamo is beyond the jurisdiction of U.S. courts was dismissed by the Court because, "by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint." n110

Second, whereas all three branches are governed by law, judges (and not the executive branch) have the final word on "what the law is":



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Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. . . . The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say "what the law is." n111

Kennedy's opinion dismisses the fundamental principle of the Decisionist position-that the "war on terror" should be governed by executive decision-making. He instead sends a plain warning to the political branches that the Court will not be zoned out of the decision-making process in national security matters. Times have changed: "[b]ecause our Nation's past military conflicts have been of limited duration, it has been possible to leave the outer boundaries of war powers undefined. If, as some fear, terrorism continues to pose dangerous threats to us for years to come, the Court might not have this luxury." n112

In sum, Kennedy's position in Boumediene echoes the two core Legalist principles: (1) the law, not the unbound decisions of the executive branch, will govern in emergencies; and (2) the three branches are individually bound by law, and judges provide the authoritative interpretation of the Constitution.

2. The Decisionist Boumediene Dissent

In contrast, the dissenting opinions of Chief Justice Roberts and Justice Scalia in Boumediene reflect the Decisionist approach to emergency powers. First, ordinary laws should not apply in extraordinary situations. Second, the executive branch should be the primary decision-maker in emergencies.

First, the underlying premise of the Boumediene dissenters is that ordinary laws, and in this case the privilege of habeas corpus, do not apply in extraordinary situations as they would in ordinary situations. Whereas Kennedy's opinion broadly frames the issue as "whether [the detainees] have the constitutional privilege of habeas corpus, a privilege not to be withdrawn [*723] except in conformance with the Suspension Clause, Art. I," n113 for the dissenters the question is about the habeas privileges of "aliens detained by this country as enemy combatants." n114 This framing of the question is dramatized in Scalia's opening pronouncement that "for the first time in our Nation's history, the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war." n115 Scalia's Decisionist position (which Roberts joins) is that "[t]he writ of habeas corpus does not, and never has, run in favor of aliens abroad; the Suspension Clause thus has no application, and the Court's intervention in this military matter is entirely ultra vires." n116

Chief Justice Roberts adds that "contrary to the repeated suggestions of the majority, DTA review need not parallel the habeas privileges enjoyed by noncombatant American citizens. . . . It need only provide process adequate for noncitizens detained as alleged combatants." n117 That is, whereas the majority viewed habeas corpus as a general privilege that applies to all individuals under U.S. sovereignty, the dissenters in fact assert different degrees of habeas corpus privileges, emphasizing that "the critical threshold question in these cases, prior to any inquiry about the writ's scope, is whether the system the political branches designed protects whatever rights the detainees may possess." n118 According to this Decisionist approach, we are not in the realm of "traditional habeas corpus," which applies in "normal times" to U.S. citizens and "takes no account of what Hamdi recognized as the 'uncommon potential to burden the Executive at a time of ongoing military conflict.'" n119 The dissenters underscore the overall inadequacy of Legalism when "America is at war with radical Islamists," n120 asserting that "[t]he dangerous mission assigned to our forces abroad is to fight terrorists, not serve subpoenas." n121 In such times, the Court "most tragically . . . sets our military commanders the impossible task of proving to a civilian court, under [*724] whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner." n122

Second, the dissenters in Boumediene expressed the Decisionist position that courts should defer to the executive branch in matters of national security, primarily due to institutional competence. n123 With regard to the majority's holding that the government "presents no credible arguments that the military mission at Guantanamo would be compromised if habeas corpus courts had jurisdiction to hear the detainees' claims," Justice Scalia asks, "What competence does the Court have to second-guess the judgment of Congress and the President on such a point? None whatever." n124 Thus, "as today's opinion makes unnervingly clear, how to handle enemy prisoners in this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails." n125 And Scalia warns that "[t]he game of bait-and-switch that today's opinion plays upon the Nation's Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed." n126

Further, Roberts writes that in reality judges usually defer to the executive branch on issues of national security and therefore the majority's attempt to enforce its version of legality by granting the habeas corpus privilege is "fruitless." n127 The majority opinion "shift[s] responsibility for those sensitive foreign policy and national security decisions from the elected [*725] branches to the Federal Judiciary." n128 However, "the habeas process the Court mandates will most likely end up looking a lot like the DTA system it replaces, as the district court judges shaping it will have to reconcile review of the prisoners' detention with the undoubted need to protect the American people from the terrorist threat . . . ." n129

Finally, in a Decisionist governmental response to Boumediene, Attorney General Mukasey asserted that it is not the "most prudent course" to leave to the courts the resolution of the questions that remain after Boumediene, and that "[u]nless Congress acts, the lower federal courts will determine the specific procedural rules that will govern the more than 200 cases that are now pending." n130 The political branches, and not the judiciary, said Mukasey, "are affirmatively charged by our Constitution with protecting national security, are expert in such matters[,] and are in the best position to weigh the difficult policy choices that are posed by these issues." n131

Thus, in sharp contrast to the majority's Legalist position, the dissent's Decisionist position is that (1) ordinary legal principles may not apply in extraordinary situations; and (2) the executive branch should be the primary decision-maker in the "war on terror."

B. Past: The Meaning of the Suspension Clause

A key context in which the question of black holes arises is the Suspension Clause, n132 which has been understood by many as the Constitution's "express provision for [the] exercise of extraordinary authority because of a crisis." n133 What does a suspension allow the political branches to do in emergencies? Does it temporarily suspend judicial review? Or does it temporarily suspend the law, thus allowing for detentions that would otherwise be unlawful? For example, would a suspension of the writ of habeas corpus after September 11, 2001 have authorized executive detentions of individuals merely "on suspicion that they might engage in future acts of terrorism?" n134 Decisionists and Legalists diverge on this question. The [*726] Decisionist position is that legal norms are indeed suspended if the Suspension Clause is activated. Legalists disagree, claiming that the Suspension Clause is only a temporary suspension of judicial review.

1. The Legalist Position

In Suspension and the Extrajudicial Constitution, Trevor Morrison utilizes the two prongs of the Legalist position to explain the meaning of the Suspension Clause. n135 He argues that (1) the rule of law applies at all times; and (2) although all three branches are bound by the rule of law, courts have the ultimate authority to interpret the Constitution. n136

First, Morrison argues that because the rule of law applies at all times, congressional suspension of habeas corpus does not convert an otherwise unlawful detention into a lawful one. Executive actors must conform to legal norms even when the writ of habeas corpus has been suspended. Morrison recognizes that "periods of extreme national crisis may warrant construing certain constitutional norms in a more flexible mode, thus affording the government a broader range of action in the service of the compelling interest in national security." n137 However, he writes, "they do not create grounds for simply ignoring those constitutional norms altogether. Constitutional law's response to emergency is from within the law, not without it." n138

Second, Morrison underscores that the rule of law binds executive actors even when judges cannot temporarily enforce it. Judges are not the only implementers of the Constitution, and the unreviewable status of an executive act cannot serve to legitimize it. Thus, "during periods of suspension, executive actors can implement constitutional norms outside the courts. We should require them to do so, or at least recognize that not doing so entails acting unconstitutionally." n139 Even when courts cannot enforce the law, all legal actors are guided by their interpretation. n140

2. The Decisionist Position

In Suspension as an Emergency Power, Amanda Tyler disagrees with Morrison. Tyler offers a Decisionist interpretation of the Suspension Clause. [*727] She argues that (1) civil rights can be fully suspended in emergencies; and (2) in such times of suspension, the executive branch is the primary decision-maker, and its decisions are not bound by legal norms. n141

This view offers a broad interpretation of the Suspension Clause. It argues that "the Suspension Clause recognizes an extraordinary emergency power, one that does not simply remove a judicial remedy but 'suspends' the rights that find meaning and protection in the Great Writ." n142 Under this view, a detention pursuant to a valid suspension of habeas corpus cannot be legally challenged. n143 This broad interpretation of the Suspension Clause is based on "the consistent understanding of suspension in this country . . . that comprehends a proper exercise of the power as expanding executive power while 'suspending' those rights that find protection and meaning in the Great Writ," and thus, "although our tradition views imprisonment without due process of law as anathema, in the vein of William Blackstone, it nonetheless recognizes that 'sometimes, when the state is in real danger, even this may be a necessary measure.'" n144 Accordingly, "in a situation of 'extreme emergency,' a suspension of the privilege of the writ of habeas corpus calls on the nation to 'part[] with its liberty for a while, in order to preserve it forever.'" n145

Notably, Tyler's position does not follow the second prong of Decisionism-she does not argue for deference to the executive branch. While Tyler takes the Decisionist view that the rule of law can be suspended in emergencies, she warns that "exercises of the power must be closely guarded and carefully checked to ensure that the power is not invoked except in the most dire of national emergencies." n146 Accordingly, "the executive should not (save possibly in extraordinary and temporary circumstances) be permitted to declare unilaterally that existing circumstances warrant a suspension," n147 and "Congress, the branch closest to the people, must agree that circumstances warrant taking the dramatic step of suspending the writ." n148 In addition, "a decision by the political branches to invoke the authority should not be understood as categorically immune from judicial [*728] review." n149 The Article nonetheless classifies this approach as "Decisionist" because it recognizes the creation of a black hole as the inevitable consequence of a lawful suspension under the Suspension Clause, and because it does not shy away from the possibility of extra-legality in emergencies. As such, this approach incorporates the Schmittian insight that in times of emergency, "the battle must . . . be waged outside the constitution and the law." n150

C. Future: The New Frontier of Cybersecurity

Legalist and Decisionist debates about emergency powers are likely to continue in the future. One emerging site of Legalist/Decisionist conflict is the regulation of cyberspace. In 2008, then-candidate Obama warned that terrorists "could use our computer networks to deal us a crippling blow." n151 Obama promised to "make cyber security the top priority that it should be in the 21st century." n152 A current bill called the Cybersecurity Act of 2009 indeed declares that "America's failure to protect cyberspace is one of the most urgent national security problems facing the country. . . . [O]nly a comprehensive national security strategy . . . will make us more secure." n153

1. The Decisionist Proposal

The Decisionist focus on the declaration of emergencies is manifested in a bill introduced by Senators Jay Rockefeller (D-WV) and Olympia Snowe (R-ME) in April of 2009. n154 The draft of the Cybersecurity Act of 2009 authorizes the President to "declare a cybersecurity emergency and order the limitation or shutdown of Internet traffic to and from any compromised Federal Government or United States critical infrastructure information system or network." n155 The term "critical infrastructure information systems [*729] and networks" is broadly defined to include "[s]tate, local, and nongovernmental information systems and networks in the United States designated by the President as critical infrastructure information systems and networks." n156 This Act, if passed, will authorize the President to shut down all of cyberspace, government and private, upon a decision that an emergency exists. There are no guidelines as to what constitutes an emergency. The legislation also establishes a "Cyber Czar" within the Executive Office of the President and a number of new Department of Commerce- related action items under the purview of the Cyber Czar. n157

A report published by the Congressional Research Service to accompany this proposed initiative voices the justifications of the Decisionist position discussed in Part III regarding executive competence in emergencies. n158 According to the report, "strong justifications support the assertion that the executive branch is best suited to take reasonable and necessary actions to defend the country against cyber-based threats." n159 The first justification "stems from the broad diversity of cybersecurity threats: the President is arguably best positioned to take a leadership role or create a uniform response to span the range of cyber vulnerabilities." n160 In addition, "the executive branch is likely most able to integrate intelligence-gathering, military, and other vehicles for addressing the cybersecurity challenge." n161 The report concludes that "multiple policy considerations, including the novel and dispersed nature of cyber threats, might justify an executive-led response to cybersecurity." n162

2. The Legalist Opposition

The legislation was immediately criticized for shifting too much power to the President. As one critic writes, "The Internet-arguably the most empowering and important innovation of the modern era-is in danger of being stifled by the heavy hand of government control." n163 The bill, [*730] according to other critics, "risks giving the federal government unprecedented power over the Internet without necessarily improving security in the ways that matter most." n164 The bill grants "deeply troubling powers over private-sector use of the Internet that should bother every user and purveyor of Internet services." n165

This concentration of emergency powers in the President, according to some Legalist critics, threatens individual privacy and liberty. Thus, opponents of the bill explain that "[s]ince many of our critical infrastructure systems . . . are in the hands of the private sector, the bill would create a major shift of power away from users and companies to the federal government. This is a potentially dangerous approach that favors the dramatic over the sober response." n166 The Act has also been characterized as a "dramatic proposal that . . . can actually make matters worse by weakening existing privacy safeguards" n167 and as one in "the recent series of attempts by Uncle Sam to encroach on free speech and freedom of the press." n168

In sum, judges, legal scholars, legislators, and journalists are all participants in an ongoing debate between Legalism and Decisionism. The status of enemy combatant detentions, the meaning of the Suspension Clause, and the future of cybersecurity have all triggered disputes regarding the rule of law and the balance of powers in emergencies. We have seen that Decisionist approaches have generally argued that extra-legality is necessary and legitimate in situations of extreme emergency, and that the executive branch is the ultimate decision-maker in emergencies. Legalists have disagreed, positing that the "rule of law" can and should apply in emergencies, and that all three branches of government are under a duty to obey the Constitution.

V. The Shared Politics of Legalism and Decisionism

It may seem that Legalism and Decisionism display vastly different politics in emergencies. They often do not. Decisionists typically argue for fewer civil rights in emergencies, n169 and Legalists argue for more. n170 [*731] Nonetheless, there is a set of three political assumptions shared by many Legalist and Decisionist approaches: (1) emergencies trigger a necessity for security measures that are (2) directed against public enemies and (3) should be tailored to prevent future catastrophes. These assumptions respond to different yet related questions arising in emergencies-questions of what, why, and whom-that is, what the government seeks to prevent (catastrophe); why security measures are needed (necessity); and against whom these measures are targeted (the public enemy). These three prongs also sum up Carl Schmitt's approach to politics.

A. Schmittian Politics

Schmitt claimed that the possibility of politics arises with the figure of the enemy. n171 If the enemy were to disappear, the political as such would disappear with it. In particular, the essence of politics is the existence of a public (in contrast with private) enemy. n172 All political actions and motives, writes Schmitt, "can be reduced to the distinction between friend and enemy," n173 and "[t]he high points of politics are . . . the moments in which [*732] the enemy is, in concrete clarity, recognized as the enemy." n174 The clearest instance of public enmity is when "[t]he friend, enemy, and combat concepts receive their real meaning precisely because they refer to the real possibility of physical killing." n175 The identification of the public enemy and the war against him are necessary because without them there would be no politics and no states. n176

The public/private opposition in Schmitt's definition of the political is significant. Schmitt claims that the enemy has always been considered a public enemy, and that the idea of private enemy is meaningless. The enemy emerges only in the public sphere. n177 Thus, Schmitt explains the often quoted "Love Thy Enemies" passage (Matthew 5:44; Luke 6:27) as follows: "The enemy in the political sense need not be hated personally, and in the private sphere only does it make sense to love one's enemy, [that is], one's adversary." n178 State-organized violence against public-political enemies is therefore necessary and good. It is politics.

Interestingly, in 1942 George Orwell similarly reflected on the politics of enmity:

As I write, highly civilized human beings are flying overhead, trying to kill me.

They do not feel any enmity against me as an individual, nor I against them. They are "only doing their duty," as the saying goes. Most of them, I have no doubt, are kind-hearted law-abiding men who would never dream of committing murder in private life. On the other hand, if one of them succeeds in blowing me to pieces with a well-placed bomb, he will never [*733] sleep any the worse for it. He is serving his country, which has the power to absolve him from evil. n179

Orwell's insight that the "kind-hearted law-abiding" pilots probably feel no individual enmity towards him, but will nonetheless sleep well after killing him, precisely traces Carl Schmitt's understanding of politics and the political enemy. n180 This Schmittian, public-enemy focused notion of politics has indeed been manifested throughout the twentieth century and beyond. Jews, Communists, people of Japanese origin, and those killed by Stalin, Mao, and Pol Pot are a few examples of groups who were understood as public enemies of different nations in the twentieth century whose exclusion or destruction was considered necessary for survival. n181 By grouping these examples together I do not mean to ignore that state-organized violence against public enemies takes different forms in different contexts. Genocides and war-time detentions are different in harm, ideology, and techniques. Nonetheless, the Schmittian idea that at the core of politics stands a struggle with the political-public enemy, I think, underlies much state-inflicted violence in the twentieth century. Today, the political-public enemy of many western nations, including the United States, is the Islamic terrorist.

B. Necessity

Decisionists and Legalists share the political assumption that security measures are sometime necessary for the preservation of the state, and that in such cases civil liberties decline. Emergencies, according to both Decisionists and Legalists, may give rise to such conditions of necessity. As argued in Parts II to IV, the critical difference between Legalists and Decisionists is that Decisionists argue that security measures necessitate extra-legal executive action, whereas Legalists argue that security measures must operate within the rule of law.

1. Decisionism

The Decisionist position is that the decline in civil liberties in times of national security emergencies is the inevitable consequence of a calculated shift in the balance between security and liberty. Security trumps liberty in [*734] emergencies. Thus, Decisionists have claimed that constitutional protections during emergencies should be "relaxed," and that "executive . . . misuse of the power for political gain" is "justified by the national security benefits." n182 The main argument is that the "point of balance" between national security and civil liberties shifts towards security in times of emergency.

In Not a Suicide Pact, Richard Posner quotes Justice Jackson's famous words that "[t]he choice is not between order and liberty. It is between liberty with order and anarchy without either." n183 Posner argues that "the weight of concerns for public safety increases relative to that of liberty concerns, and civil liberties are narrowed." n184 In contrast, "[i]n safer times, the balance shifts the other way and civil liberties are broadened." n185 This, according to Posner, is the inevitable result of lawmakers' aspiration for a certain point in a formula, "at which a slight expansion in the scope of the right would subtract more from public safety than it would add to personal liberty and a slight contraction would subtract more from personal liberty than it would add to public safety." n186

Similarly, John Yoo has argued that the cost of protecting civil liberties in emergencies is a decline in security, and "[e]xcessive worry about civil liberties prevents us from thinking more aggressively about electronic surveillance." n187 Yoo further argues that for two additional reasons civil liberties should decline in times of emergency. First, "[l]egitimate political activities and speech by American citizens are not being suppressed." n188 Second, there is nothing new about these incursions on human rights, for "civil liberties throughout our history have expanded in peacetime and contracted during emergencies. During the Civil War, the two world wars, and the Cold War, Congress and the President restricted civil liberties, and courts deferred; during peacetime, civil liberties expanded." n189

Courts tend to accept and reiterate such arguments from necessity. n190 As Eugene Kontorovich has argued, "[t]he Court tends to uphold arguably unconstitutional detentions during national security emergencies, deferring to [*735] the Executive's affirmations of the necessity of the detentions." n191 Christopher Kutz has also argued with regard to the "torture memo" n192 that "[t]he override of detainee rights against torture has been justified on grounds of 'necessity,' i.e., that the welfare cost of observing the right would be too great for the nation rationally to bear." n193

2. Legalism

The Obama Administration has so far reasoned from necessity in a manner hardly distinguishable from that of the former Bush Administration. Although the commitment to legality and the rule of law is frequently underscored by the President and government officials, the Administration has pursued a similar politics of necessity, as evident in the following two examples.

a. The Prison at Guantanamo Bay

The closing of the military prison at Guantanamo was announced within the first few months of the new Administration. n194 As discussed in Part IV, the Bush Administration's practice of detaining "enemy combatants" at Guantanamo raised serious issues of legality. Legalist commentators, as well as the Boumediene majority, criticized the Administration for intentionally setting up a legal "black hole" outside the scope of U.S. law and its protections. n195 It came as no surprise then that the new Administration would [*736] prioritize the eradication of this notorious, internationally condemned "black hole."

The dramatic announcement to the press about the closing of the base was followed by a noteworthy justification. Though one may have expected explicit language of human dignity, liberty, or fairness, the main reason to close Guantanamo was, according to a senior official in the Obama administration, "protecting our national security, respecting the Geneva Conventions and the rule of law, and respecting the existing institutions of justice in this country." n196 That is, the base was closed primarily to protect the American people and the rule of law. It is important to see here that at least in the universe of this statement, the vulnerable party is not the prisoner at Guantanamo but the American people and the rule of law.

A few months later, the Administration revealed a plan to create a special facility inside the United States where Guantanamo inmates would be detained, tried, and imprisoned. n197 The proposal involved a facility that would include a detention center for terror suspects, courtrooms for criminal trials, and military commissions. President Obama explained that he would move to "construct a legitimate legal framework to justify the ongoing detention of dangerous terrorism suspects who could not be tried or released." n198 Obama added that "military commissions, which allow defendants fewer rights, would be the 'appropriate venue' for the trials of at least some detainees," n199 and that Guantanamo detainees who are understood to be posing a national security threat but cannot be prosecuted, either for lack of evidence or because evidence is tainted, should indeed be subject to "prolonged detention" with oversight by the courts and Congress. n200 However, Republican pressure in Congress led to the approval of a non-binding recommendation banning the transfer of the detainees inside the United States. n201 Later in 2009, the House voted to allow detainees being [*737] held at Guantanamo to be transferred to the United States, but only to stand trial. n202

As of today, the Guantanamo prison facility is still open. In January 2010, an Administration official announced that the Administration has decided to continue to imprison, without trials, nearly fifty detainees at Guantanamo "because a high-level task force has concluded that they are too difficult to prosecute but too dangerous to release." n203 In sum, the new Administration has not pulled away from its predecessor's politics of necessity, the attendant practices of indefinite detentions, and trials by military commissions with substantially fewer rights. The main difference is that now the detainees are under the oversight of courts and Congress, and within the "rule of law."

b. Release of Prisoner Abuse Photographs

Another example of the Legalist politics of necessity implemented by the Obama Administration involves its refusal to release photographs of prisoner abuse by U.S. troops. The government appealed a 2008 decision by the U.S. Court of Appeals for the Second Circuit, which ruled that the government must release the photos to comply with an American Civil Liberties Union (ACLU) Freedom of Information Act (FOIA) lawsuit. n204 In May of 2009, government lawyers objected to a court- ordered release of images revealing alleged abuse of detainees "because the release could affect the safety of U.S. troops." n205 President Obama explained that "the most direct consequence of releasing them would be to further inflame anti- American opinion, and to put our troops in greater danger." n206 Defense Secretary Gates added that "our commanders . . . have expressed very serious reservations about this . . . that the release of these photographs will cost American lives." n207 After the Obama administration filed its appeal with the Supreme Court, Congress passed the Protected National Security Documents Act of [*738] 2009. n208 The Act permits the administration to exempt from the FOIA photographs "taken during the period beginning on September 11, 2001, through January 22, 2009, . . . if the Secretary of Defense determines that disclosure of that photograph would endanger citizens of the United States, members of the United States Armed Forces, or employees of the United States Government deployed outside the United States." n209 On November 30, 2009, in light of the intervening Act, the Supreme Court vacated and remanded the Second Circuit's decision ordering the release of the photos. n210

The logic here is similar to the proposal to relocate Guantanamo inside the United States. The President does not claim here that transparency and public scrutiny of government are not important democratic practices and values. The President agrees that they are. This was in fact part of his agenda both during the presidential campaign and since the election. n211 The point is that transparency is desirable unless it may "inflame anti-American opinion" and "put our troops in greater danger." n212 Necessity trumps the democratic values that would otherwise demand the publication of these abuse photos. n213 Moreover, the trajectory of the case reflects the Legalist preference for folding the exception into the law through recourse to congressional action to legalize the President's security-driven decision-making.

C. Enmity

As discussed above, Schmitt claimed that politics must involve war against a public enemy. The classification that currently captures this Schmittian insight is that of the "enemy combatant." Enemy combatants are not considered Prisoners of War (POWs) and are therefore not entitled to the general legal protections of the laws of war. The difference between "enemy combatants" and "lawful combatants" is that whereas both are subject to capture and detention as POWs by opposing forces, "enemy combatants" are also "subject to trial and punishment by military tribunals for acts which render their belligerency unlawful." n214 The "enemy combatant" status places [*739] non-citizens suspected of Islamic terrorism out of the reach of ordinary laws, and in the hands of military tribunals. n215

1. Decisionism

The term "enemy combatant" and its usage significantly changed and broadened in the war on terror that followed the events of September 11, 2001. In 1942, the Court in Ex Parte Quirin defined "enemy combatant" as follows:

The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals. n216

The Quirin definition of "enemy combatant" reflects an assumption that good war takes place between recognizable armies of legitimate nation-states. What one wears and how one presents oneself are key parts of how the Quirin Court understands the "enemy combatant" status in 1942. By acting without a uniform, one is disguising oneself as a friend when one is in fact an enemy. The main idea then was that those who can be mistaken for friends but are in fact enemies are deemed "offenders against the law of war," and can consequently be tried and punished by military tribunals for these acts of [*740] transgression. So, for the Quirin Court in 1942, the term "enemy combatant" marked a transgressive act of war (bad violence), as opposed to a "normal" act of war (good violence).

In contrast, in the current war on terror there is no designated "normal" act of war for the public enemy. There is no legitimate Taliban or al Qaeda army that can operate within ordinary laws of war. All acts of war performed by such organizations are outside the laws of war. n217 And all members of such organizations are classified as "enemy combatants." n218 On November 13, 2001, then- President Bush issued an order entitled "Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism." n219 An "enemy combatant" was consequently defined by the Bush Administration as follows:

[A]n individual who was part of or supporting the Taliban or al Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who committed a belligerent act or has directly supported hostilities in aid of enemy armed forces. n220

As some commentators have noted, this definition is significantly broader than the one set forth by the Court in Quirin. Now any supporter of an organization designated as "terrorist" is within the scope of the definition regardless of whether the person actually committed any acts of war. n221 More importantly, the new definition is different in that the enemy is marked by identification with a specific cause or politics (Islamic, anti-Western), rather than by transgressing a general set of norms of war.

In sum, during the Bush era the reframing of the special category of "enemy combatant" enabled a regime of indefinite detentions and interrogations without trial of the public enemy in the war on terror.

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