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



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2. Legalism

"As we work towards developing a new policy to govern detainees, it is essential that we operate in a manner that strengthens our national security, is consistent with our values, and is governed by law." n222

- U.S. Attorney General Eric Holder 2009

In January 2009, the Bush Administration was replaced by the Obama Administration. In March 2009, the Department of Justice indicated that the United States would no longer use the term "enemy combatants" to characterize detained al Qaeda or Taliban members or supporters. The government nonetheless maintained that it had the right to detain persons who provided substantial support for al Qaeda and the Taliban without criminal charges, based on the Congressional Authorization for the Use of Military Force (AUMF), n223 as informed by the laws of war. n224 The government explained that its new standard "relies on the international laws of war to inform the scope of the president's authority under this statute [the AUMF], and makes clear that the government does not claim authority to hold persons based on insignificant or insubstantial support of al Qaeda or the Taliban." n225

The government dropped the previous Administration's position that the power to detain independently flowed from the President's constitutional powers as commander- in-chief. n226 Instead, it linked its new policy to legal principles governed by the rule of law:

The laws of war have evolved primarily in the context of international armed conflicts between the armed forces of nation states. This body of law, however, is less well-codified with respect to our current, novel type of [*742] armed conflict against armed groups such as al-Qaida and the Taliban. Principles derived from law-of-war rules governing international armed conflicts, therefore, must inform the interpretation of the detention authority Congress has authorized for the current armed conflict. n227

Laws of war, according to the above, are not well equipped to deal with this "novel type" of conflict. Nonetheless, these principles "must inform" the interpretation of AUMF. And so goes the government's interpretation of AUMF:

Accordingly, under the AUMF, the President has authority to detain persons who he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for the September 11 attacks. The President also has the authority under the AUMF to detain in this armed conflict those persons whose relationship to al-Qaida or the Taliban would, in appropriately analogous circumstances in a traditional international armed conflict, render them detainable. . . . The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces. n228

Whereas the former Administration viewed the President's powers as part of the war powers as commander-in-chief, the current Administration locates these powers in congressional authorization. By dropping the "enemy combatant" classification, alluding to statutory authority, and invoking vague and mostly inapplicable principles of international law, the current Administration has managed to accomplish the primary goal of current Legalism: to fold the exception back into the realm of law. But it has not altered the previous Administration's politics of enmity. Thus, for those [*743] towards whom state violence is directed, nothing much seems to have changed. n229

D. Catastrophe

The third shared characteristic of Decisionist and Legalist politics is their perception of time and history. The task of the state and its laws, according to current U.S. Decisionism and Legalism, is to prevent future catastrophes. Catastrophe, in this view, is conceptualized as an event that takes place not in the present but in the future. The catastrophe is rarely viewed as a current harm inflicted by the state, the government, the army, or the law. The catastrophe is instead what society seeks to prevent from occurring in the future.

1. Decisionism

The basic Decisionist assumption is that catastrophes are very likely to occur in the future if security measures pursued by the executive branch are restricted by Congress or courts. Scalia's dissenting opinion in Boumediene provides a vivid example of this perception of catastrophe:

America is at war with radical Islamists. . . . On September 11, 2001, the enemy brought the battle to American soil, killing 2,749 at the Twin Towers in New York City, 184 at the Pentagon in Washington, D. C., and 40 in Pennsylvania. It has threatened further attacks against our homeland; one need only walk about buttressed and barricaded Washington, or board a plane anywhere in the country, to know that the threat is a serious one. . . . The 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. n230

In Scalia's account here, the events of September 11 are only part of a chain of events that makes up America's "war with radical Islamists." The catastrophe is pending in the future, in which "almost certainly" more Americans will be killed. Thus, as the concluding lines of Scalia's dissent warn, "[t]he Nation will live to regret what the Court has done today." n231

A similar notion of catastrophe also underlies Vermeule and Posner's Decisionist proposition that emergencies "lie on a continuum" at the extreme end of which are "policies adopted in times of full-blown crisis, when it might be reasonable to believe that serious harms threaten the nation, as in [*744] the immediate aftermaths of Pearl Harbor or 9/11." n232 In such instances, "[t]ime is of the essence, the stakes of blocking necessary government action are possibly catastrophic, and uncertainty reigns." n233 Thus, although "[w]ith the benefit of hindsight, the early [governmental] reactions [to an emergency] might seem inexplicable except as a result of panic . . . this does not do justice to the problem that the government faces at the time of emergency, when uncertainty is great and the consequence of error may be catastrophic." n234 Interestingly, in this Decisionist articulation, even "times of full-blown crisis" such as September 11 and Pearl Harbor are not themselves deemed catastrophic. They are only alarming signs of greater pending catastrophes.

Fear as a legitimate motivation for government action is one consequence of this Decisionist notion of catastrophe. In response to the "view that panicked government officials overreact to an emergency and unnecessarily curtail civil liberties," Posner and Vermeule offer what they call a "more constructive theory of the role of fear." n235 They argue that:

Before the emergency, government officials are complacent. They do not think clearly or vigorously about the potential threats faced by the nation. After the terrorist attack or military intervention, their complacency is replaced by fear. Fear stimulates them to action. Action may be based on good decisions or bad: fear might cause officials to exaggerate future threats, but it also might arouse them to threats that they would otherwise not perceive. It is impossible to say in the abstract whether decisions and actions provoked by fear are likely to be better than decisions and actions made in a state of calm. But our limited point is that there is no reason to think that the fear-inspired decisions are likely to be worse. n236

Fear, according to Posner and Vermeule, is not necessarily a bad trigger for action. It arouses officials to the future possibility of catastrophe. Thus, while the writers concede that fear might have the negative impact of exaggerating future threats, it may also lead officials to save the nation from catastrophes they may not have foreseen if it was not for the fear.

The point here is not that the Decisionists are wrong in their predictions about the future (that we cannot know), but that the Decisionists operate under a political assumption that is haunted by an idea of catastrophe that is yet to come. n237 We cannot know whether an event such as 9/11 is indeed a [*745] sign of future catastrophes, the culmination of past catastrophes, or just a present isolated catastrophe. And yet it is only within a particular perspective of history that the future is haunted by catastrophe waiting to occur. As it happens, this view is currently shared by Legalism and Decisionism.

2. Legalism

Legalist positions frequently share the Decisionist anticipation of future catastrophes. But whereas Decisionists have utilized this notion of catastrophe to argue for greater executive power, Legalists have often concentrated their efforts on bringing governmental responses to future catastrophes within the rule of law. As Justice Kennedy wrote in Boumediene:

The real risks, the real threats, of terrorist attacks are constant and not likely soon to abate. The ways to disrupt our life and laws are so many and unforeseen that the Court should not attempt even some general catalogue of crises that might occur. Certain principles are apparent, however. Practical considerations and exigent circumstances inform the definition and reach of the law's writs, including habeas corpus. The cases and our tradition reflect this precept. n238

In other words, while the future will likely bring a range of many real and as yet unforeseen catastrophes, the proper response to this reality is through law. Another example of this Legalist faith in law's governance of future catastrophes is found in Bruce Ackerman's Emergency Constitution. Ackerman predicts:

Terrorist attacks will be a recurring part of our future. The balance of technology has shifted, making it possible for a small band of zealots to wreak devastation where we least expect it-not on a plane next time, but with poison gas in the subway or a biotoxin in the water supply. The attack of September 11 is the prototype for many events that will litter the twenty-first century. We should be looking at it in a diagnostic spirit: What can we learn that will permit us to respond more intelligently the next time around? n239



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This depiction of a twenty-first century littered with zealot attacks on our subway and water portrays the attacks of 9/11 not as a stand-alone event, but as a "prototype" of the much greater catastrophes that will follow. The problem, according to Ackerman, is that when terrorism strikes, "a downward cycle threatens: [a]fter each successful attack, politicians will come up with repressive laws and promise greater security-only to find that a different terrorist band manages to strike a few years later." n240 In other words, this is a kind of anti-terrorism whack- a-mole. Thus:

To avoid a repeated cycle of repression, defenders of freedom must consider a more hard-headed doctrine-one that allows short-term emergency measures but draws the line against permanent restrictions. . . . [T]he self-conscious design of an emergency regime may well be the best available defense against a panic-driven cycle of permanent destruction. n241

Ackerman's thoughtful attempt to reconcile the rule of law with the need for temporary emergency measures captures the prevalent mode of many current versions of Legalism. We are undoubtedly expecting catastrophe, but we must respond to it through the rule of law. n242

To conclude, current forms of U.S. Decisionism and Legalism often share the three basic tenets of Carl Schmitt's political doctrine: (1) emergencies create the necessity for security measures (2) that are directed against public enemies (3) in order to prevent greater catastrophes in the future.

VI. Towards a Humanist Decisionism

The first step in articulating an alternative to Legalism and Decisionism is the recognition that politics and jurisprudence are sometimes [*747] distinguishable. In our case, the disaggregation of politics and jurisprudence uncovers some basic flaws in Legalism and Decisionism.

The main flaw of current Decisionism is revealed once jurisprudence is set aside from politics; this is because Decisionists have quite wisely combined the two into a causal argument in the form of "if Jurisprudence then Politics." The Decisionist "if . . . then . . ." claim simply means that if law cannot predict all possible situations that arise in emergencies, then civil liberties must decline in emergencies, public enemies must be fought, and catastrophes are pending. This argument, which legitimizes state violence in times of emergency, is substantially weakened if one sees that the question of the law "running out" and the questions of necessity, enmity, and catastrophe are separate. Lawlessness need not coincide with anti-humanist politics. Decisionist jurisprudence need not be linked to a politics of necessity, enmity, and catastrophe.

The Decisionist accepts that sometimes norms will contradict one another, and sometimes the law will "run out." n243 But decision-making based on intuition does not have to locate enmity at the core of politics. The decision-maker might prefer a politics of hospitality and friendship. For example, Austin Sarat and Nasser Hussain have argued that clemency should be understood as "legally sanctioned illegality," which in fact bears structural similarity to executive emergency powers. n244 The decision to pardon a convicted criminal, though legally sanctioned (in the sense of legally approved), is a type of decision that is not governed by a set of legal norms, and is thus a legally sanctioned form of illegality. This is a type of Decisionism that is driven by forgiveness rather than by fear or enmity.

On the Legalist end, the disaggregation of jurisprudence from politics underscores that many current forms of Legalism in the United States have prioritized jurisprudence over politics. Legalist politics, as we have seen, are [*748] often aligned with Decisionist politics. Many Legalist approaches have acceded to the Decisionist politics of necessity, enmity, and catastrophe, the main difference being that Legalists have attempted to engage in these politics from within the rule of law rather than through a language of exceptionalism.

From a freedom-enhancing perspective, there is much to gain by setting aside the jurisprudential questions of the law and the exception. David Dyzenhaus has written that "[t]o answer [the Decisionist] challenge one needs to show that there is a substantive conception of the rule of law that is appropriate at all times." n245 I disagree. The Schmittian challenge should not be reduced to its narrow jurisprudential claims about exceptionalism. It should not be reduced to whether or not courts and legislatures can properly review or enact emergency measures. Schmitt's difficult and very timely challenge is the linking of jurisprudential claims about emergencies to the political claims about necessity, enmity, and catastrophe. This link must be undone.

A. Defining Humanist Decisionism

One of the aims of this Article is to unlink Decisionist jurisprudence from some of its current political claims by offering another type of Decisionism: Humanist Decisionism. This approach accepts some key Decisionist insights about jurisprudence but is at the same time Humanist in politics.

1. A Politics of Hospitality and Friendship

The currently prevailing Schmittian assumption that politics must stem from enmity, necessity, and catastrophe has been heavily criticized by a number of twentieth century thinkers who have instead conceptualized politics in terms of hospitality and friendship. n246

A politics of hospitality and friendship contests the idea that "[w]ar is a mere continuation of politics by other means." n247 At the end of the eighteenth [*749] century, in an essay called Perpetual Peace, Immanuel Kant disputed the then- and now-held perception that armies are necessary for the peaceful existence of humanity. n248 Kant instead called for conditions of "universal hospitality." n249 To adapt Kant's point, hospitality suggests the image not of a standing army-an army at the ready-but of a standing host, one at the ready in welcoming in the guest, the stranger, the passer-by.

Later thinkers, such as Emmanuel Levinas and Jacques Derrida, have offered possible meanings of hospitality. Hospitality, as Derrida explains, "is not simply some region of ethics, let alone . . . the name of a problem in law or politics: it is ethicity itself, the whole and the principle of ethics." n250 Hospitality demands an extreme type of responsibility, "[r]esponsibility without concerns for reciprocity: I have to be responsible for the Other without concerning myself about the Other's responsibility toward me." n251 Hospitality involves "intentionality, consciousness of . . . attention to speech, welcome of the face." n252 It is a declaration of peace, n253 and it assumes a relation of deference to the other. n254 In the realm of political theory, Hannah Arendt has articulated a concept of the political that, in opposition to Schmitt, is not defined by enmity and violence but by plurality, freedom, and friendship of equals. n255

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It is difficult to fully translate the ethical principles of friendship and hospitality into current legal and political theories. Friendship and hospitality appear utopian, na ve, unrealistic, certainly non-Schmittian, and generally inadequate as political assumptions. Nonetheless, I argue that if we were to at least consider letting these principles inform the politics of current decision-making, we might begin a shift away from our current Schmittian politics. n256 We could start by considering a politics of friendship and hospitality alongside (if not instead of) Schmittian politics of enmity.

At the very least, friendship and hospitality at the level of nations must involve responsibility towards non-violent individuals who are harmed by hostile actions undertaken by Western governments in the name of the national security of their own citizens. This may be viewed as a non-discrimination principle at the multi-national level. A politics of friendship and hospitality treats equally the lives of all innocent people regardless of national origins or geographical boundaries. Thus, in the context of the current "war on terror," a politics of friendship and hospitality demands responsibility toward all the innocent civilian victims of the violent "war on terror" declared by the United States. I will later offer applications of this point.

2. Decisionist Jurisprudence

As we have seen, what makes one a Decisionist is that "after coming upon a situation of choice where governing norms contradict one another or 'run out,' he refuses the enterprise of either repairing the discourse or replacing it with a new discourse that will be more determinate." n257 When legal norms cannot provide meaningful guidance to a legal actor, the Decisionist will not insist that they can.

The crux of Decisionism is the understanding that lawmakers at various levels must act in multiple situations "on the basis of intuition rather than with a 'warrant.'" n258 And this may be difficult at times because "making decisions about what legal rule we want to use . . . -or even which political direction to go in-is hard." n259 It is hard because "[w]e might have to decide [*751] without knowing that our understanding of the situation is right, without knowing how our decision will play out." n260 In fact, "there is no decision that we could possibly make that will not hurt vast numbers of real, actual people, possibly the very people on whose behalf we think we are acting." n261

Derrida brings ethics into our understanding of Humanist Decisionism. "Ethics," Derrida writes, "enjoins a politics and a law." n262 "Enjoins" here means not the legalistic "prohibits," but the salutary "prescribes." Derrida then claims that "this dependence [of politics and law on ethics] and the direction of this conditional derivation are as irreversible as they are unconditional." n263 This relationship is unconditional in the sense that law and politics must always strive to be ethical and should at no point suspend ethics to achieve other goals. And the relationship is irreversible-and this is the important Decisionist insight-in that law and politics do not inform ethics. This is because, for Derrida, ethics is not a universal principle; it can never by codified or broken down into a set of pre-determined rules. Hospitality and friendship cannot generate a "to do" list for legal actors. Thus Derrida continues: "But the political or juridical content that is thus assigned remains undetermined, still to be determined beyond knowledge, beyond all presentation, all concepts, all possible intuition, in a singular way, in the speech and the responsibility taken by each person in each situation, and on the basis of an analysis that is each time unique . . . ." n264

There are multiple decision-makers and actors in emergencies-the President, executive officers, judges, legislators, the military, the media, and ordinary citizens-and they all will inevitably have to decide and act at times with no clear legal guidance. They are nonetheless under ethical constraints that exceed law and legality. And while this is true at all times and in all areas of law, not only in emergencies, emergencies are extreme situations where the limits of legal norms (as opposed to ethical norms) become apparent.

Take for example the decision-making process around 8 a.m. on the morning of September 11, 2001. It has just been discovered that an unknown number of planes have been hijacked and are up in the air somewhere above U.S. soil. It is unclear where the planes are headed or what the hijacking is about. Unfortunately, it is clear to any decision-maker that all possible decisions taken in this dramatic situation would inevitably end the lives of innocents. The gist of the Decisionist approach here is the recognition that intuition-based decisions, not predetermined norms, will govern such [*752] situations. The Humanist Decisionist will nonetheless insist that actors in these situations must be responsible and ethical agents, and that a combination of responsible politics and competence (rather than any legal norm) will ultimately determine the outcome of the event.

To clarify, a politics of hospitality does not mean that decision-makers must sit passively in times of hostile attacks. In a situation when lives need to be saved and harms can be mitigated, violence may be necessary. Hospitality and friendship do not mean neglecting the lives of innocent victims of violence. It means that the concern, care, and anxiety that are rightfully extended to the victims of the attacks who happen to be U.S. citizens should also be extended to victims of the counter- attacks inflicted by the U.S who happen not to be U.S. citizens.

Finally, the Humanist Decisionist realizes that when decision-making during a hostile attack-and (perhaps more importantly) when the actual attack has ended-are guided by a politics of necessity, enmity, and catastrophe, it does not matter much whether the decisions technically fall within the "rule of law" or within the exception. What matters more is the politics that drive and guide the decision-maker. For example, for Humanist Decisionism it does not matter much whether Guantanamo detentions are justified as a necessary black hole (as they were by the Bush administration), or folded into the rule of law through statutory interpretation (as they were by the Obama administration). To the Humanist Decisionist, what matters most is that a politics of hospitality and friendship can offer a desirable alternative or at least additional considerations in the decision-making process involving national security emergencies.

B. Normative Implications

Humanist Decisionism contests the prevailing political assumptions of enmity, necessity, and catastrophe. Among many of its possible implications, here I focus on three. First, Humanist Decisionism challenges the politics of enmity by arguing that the legal distinction between the public and the private enemy should be eliminated. Second, it challenges the politics of necessity and catastrophe by adopting a posture of skepticism regarding the very existence of an emergency. Finally, Humanist Decisionism prescribes the undertaking of measures of friendship and hospitality even at times when simultaneous security measures are deemed necessary.

1. Undoing the Legal Distinction Between Public and Private Enemies

The first normative implication of Humanist Decisionism is that we need to rethink the distinction between public and private enemies. As we have [*753] seen, by the fourth decade of the twentieth century, Schmitt and Orwell, from very different perspectives, both identified the figure of the public enemy as the foundational brick of modern politics. Interestingly, as Philip Hamburger recently observed, this distinction between public and private enemies in legal thought dates back at least to the eighteenth century. Emerich de Vattel, one of the founders of international law, distinguished a private enemy from a public enemy, the former being "one who seeks to hurt us, and takes pleasure in the evil that befalls us," and the latter "forms claims against us, or rejects ours, and maintains his real or pretended rights by force of arms." n265

Humanist Decisionism resists the idea that public enemies deserve special legal treatment. A Humanist Decisionist approach questions the legal distinction between these two types of enmity and suggests that terrorism should be treated just like any other violent crime, under domestic criminal law. Indeed, this was traditionally the practice of the United States government. n266 But by 2006, John Bellinger, the Department of State's Legal Adviser, explained that "our traditional criminal justice system is simply not well-suited to respond to the scale and magnitude of the threat posed by al Qaida." n267 Unfortunately, although the current Administration had originally decided to terminate the usage of the term "enemy combatant," it has kept in place a similar regime of indeterminate detentions for public enemies-a regime that would obviously not be available under domestic criminal law.

2. Challenging the Existence of an Emergency

Humanist Decisionism prioritizes the question that logically precedes emergency- powers debates: "Is this really an emergency?" On this issue, Humanist Decisionism sides with Legalist approaches that have underscored the importance of a contextual case-by-case factual questioning of the existence of an emergency. n268 While many participants in the legal system can and should debate the existence of emergencies, courts in particular should actively engage the issue and should not defer to the political branches. In many current and past national security emergencies, courts have either actively agreed with the political branches that an emergency [*754] situation in fact exists, n269 or simply left the political declaration of an emergency unchallenged. n270

This idea that the Judiciary should question the political branches with regard to the existence of an emergency is not new. Two key historical examples of similar judicial insights are Holmes's opinion in Chastleton Corp. v. Sinclair (1924) n271 and the dissenting opinion of Justice Roberts in Korematsu (1944). n272 In Chastleton, Congress extended the Rent Act of 1919, for seven months and then for two more years, stating that an emergency still existed. The Court stated that the emergency that justified interference with the ordinarily existing private rights in 1919 had come to an end in 1922 and no longer could be applied consistently with the Fifth Amendment. Holmes wrote:

We repeat . . . the respect due to a declaration [of an emergency] [b]y the Legislature so far as it relates to present facts. But even as to them a Court is not at liberty to shut its eyes to an obvious mistake, when the validity of the law depends upon the truth of what is declared. . . . And still more obviously so far as this declaration looks to the future it can be no more than prophecy and is liable to be controlled by events. A law depending upon the existence of an emergency or other certain state of facts to uphold it may cease to operate if the emergency ceases or the facts change even though valid when passed. n273

When a court encounters a legislative declaration of an emergency, it must evaluate it, and cannot simply shut its eyes when it concludes it to be mistaken.

Interestingly, Holmes's skepticism about emergencies was relied on in [*755] Justice Roberts' dissenting opinion in Korematsu. Roberts noted that the majority understood the Civilian Exclusion Order that directed that all persons of Japanese ancestry be excluded from a certain area to be "a temporary expedient made necessary by a sudden emergency." n274 Roberts relied on Chastleton, writing:

My agreement would depend on the definition and application of the terms "temporary" and "emergency." No pronouncement of the commanding officer can, in my view, preclude judicial inquiry and determination whether an emergency ever existed and whether, if so, it remained, at the date of the restraint out of which the litigation arose. n275

A more recent example of such judicial engagement with the question of the existence of an emergency is the Belmarsh (2004) decision, also known as "Britain's Guantanamo Bay." n276 Belmarsh involved a post-9/11 "Anti-Terrorism Act" enacted by the British Parliament in 2001 that granted the government the power to indefinitely detain non-nationals who had been determined to be a security risk, but for various reasons could not be deported. n277 The detainees held in indefinite detention in Belmarsh prison challenged the statutory provision that authorized their detention, claiming that there was no public emergency threatening the "life of the nation." The House of Lords held by a majority that, while the detention was legal under the Anti-Terrorism Act, this Act was incompatible with the articles of the European Convention on Human Rights because it discriminated between nationals and non-nationals. n278

Lord Hoffman offered a much more critical view of the Anti-Terrorism Act. He found the whole Act incompatible with the United Kingdom's constitution and its commitment to human rights. His view was that the ultimate test-that there is a "threat to the life of the nation"-was not met. He wrote, "the question is whether such a [terrorist threat posed by fundamentalist Islamic terror groups] is a threat to the life of the nation," n279 and concluded that "they do not threaten the life of the nation," n280 and that "[w]hether we would survive Hitler hung in the balance, but there is no doubt [*756] that we shall survive Al-Qaeda." n281 This judicial posture reflects the humanist concern with the proper use of the term "emergency."

A similar challenge to the existence of an emergency appears in the Ninth Circuit's decision in Natural Resources v. Winter. n282 In Winter, environmental groups sued the Navy on the grounds that the Navy's training exercises violated the National Environmental Policy Act of 1969 (NEPA) and other federal laws. The suit was based on the Navy's failure to submit an environmental impact statement as required by NEPA. n283 Plaintiffs argued that the Navy's use of active sonar while training in the waters of southern California would harm many species of marine mammals, including dolphins, whales, and sea lions. n284 The Navy argued in turn that "emergency circumstances" prevented its normal compliance with NEPA. n285 The Ninth Circuit held that there was a serious question regarding whether the Council on Environmental Quality's (CEQ) interpretation of the "emergency circumstances" regulation was lawful. n286 The court questioned whether there was a true "emergency" here, given that the Navy had been on notice of its obligation to comply with NEPA. n287

However, the Supreme Court reversed. n288 The decision, written by Chief Justice Roberts, reasserted the political assumptions of necessity and catastrophe. The decision begins with the observation that "[t]o be prepared for war is one of the most effectual means of preserving peace." n289 Roberts based the reversal on the Decisionist premise that courts should give "deference to the professional judgment of military authorities concerning the relative importance of a particular military interest." n290

Humanist Decisionism supports a rigorous, Humanist judicial scrutiny of all legislative and executive declarations of emergencies. This scrutiny is critical with regard to prevalent articulations of politics as a realm of necessity, catastrophe, and enmity. The humanist judge soberly examines [*757] every situation with a genuine openness to the possibility and desirability of an alternative set of political attitudes.

3. Balancing Hostility with Hospitality

At the national level, acts of friendship and hospitality can balance acts of hostility. Here I will briefly discuss two contemporary situations in which such balancing is appealing; the first deals with policy, the second with legal and political rhetoric. First, the government can implement policies of generosity specifically targeting groups or communities inadvertently affected by acts of hostility. Second, political and legal actors can effectively interrupt hostile public perceptions of "the enemy" by actively choosing rhetoric of friendship and hospitality over rhetoric of rights.

First, even if the safety of the public at times necessitates security measures, I argue that these measures should be-and to some extent already are-balanced with policies of friendship and hospitality. This balance is desirable because (1) more friendliness may decrease the overall level of violence (a utilitarian justification); and (2) cultivating social and governmental attitudes that are less driven by fear and self-preservation and more driven by responsibility and social obligation may generate more meaningful concepts of citizenship and community (an ethical justification).

An example of such balancing involves the treatment of civilian refugees displaced as a consequence of the U.S. struggles against terrorism. Financial aid to refugees and to countries who host them is one example of a desirable friendly policy. n291 Indeed, the current Administration has recently announced a financial grant of one million dollars to Pakistan as a host of a large number of Afghani refugees. n292 More robust acts of friendship and hospitality might include welcoming of such refugees into the United States by granting asylum or special immigration visas. n293


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