The Exception Ends The Rule

Dec 1 2011 @ 1:04pm

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“Sovereign is he who controls the state of exception,” – Carl Schmitt.

"Dynamism, I believe, will some day be recognized as the most destructive and 'radical' revolution of modern times. It strikes at the root. Its modern rival, Marxism, retains at least the traditional respect for reason. The basis of the western world is the disciplining of life's energies and instincts by the supremacy of rational and ethical Law. Here our Christianity combines and conserves the legalistic heritage of the Jews and of the Greco-Roman Empire. In contrast, dynamism glories in the revolt of expansive Life-force against Law's 'dead shackles.' Transferred from individual to nation, such dynamism becomes lynch law: the 'healthy' and natural mob instincts of what Nazis call 'the Volk' and Reds call 'the masses,'" – Peter Viereck.

"What’s wrong with indefinite detention is not a matter of the logistics of national security or military resources. What’s wrong with indefinite detention is that it is an eradication of a fundamental right upon which American democracy has stood from its founding days — namely, the right not to be incarcerated without evidence, the right not to be summarily "disappeared" on the say-so of one person or agency, the right not to be denied justice.

If the President himself is not willing to embrace as sacred the right to due process for Americans, if he is not willing to risk everything to protect that fundamental constitutional guarantee, if he really believes you can compromise on this basic value, then why should we be surprised that the nation itself is floundering?" – Karen Greenberg, New York Daily News.

The president has mercifully agreed to veto the bill that would allow the US military to seize and detain without any due process anyone, including American citizens, who are suspected of terrorism, even in the US itself. A future Republican president might throw torture in with this toxic brew.

The veto is a relief. But the US Senate has thrown its weight behind gutting the core, most basic freedom upon which all others follow: habeas corpus. It has endorsed the notion that the government can do whatever it likes to any citizen it merely suspects of being involved of terrorism. It is a hole through which the entire framework of the constitution could disappear. One more terror attack, and we would have authorized soldiers to break into citizens' homes at will, round up any citizens the government deems suspicious, and deny them any recourse.

Let us assume that this power is exercized judiciously by the government – an assumption none of this country's Founders would have tolerated for a second. What happens when someone – a future Cheney or Addington – seized with the righteousness of their cause, abuses that power? I find it staggering that the current GOP, with all its suspicion of overweening government, nonetheless backs total trust of that government in these crucial constitutional areas.

A healthcare mandate is an outrage; gutting habeas corpus is just fine. Go figure.

(Photo: US citizen Jose Padilla, detained without charge and tortured by the US government for four years. He was then tried and convicted on a fraction of the allegations made against him. The current bill would remove from a future US his right to a trial entirely.)