NYC Lawyer Compares Bush Regime to Nazis, Torquemada
A Setback for the State of Exception
By Scott Horton
For the dwindling but stout-hearted band of Bush loyalists, the creation of concentration camps and introduction of torture techniques never presented much of a problem—morally or legally. On the legal side, they reasoned, the president exercised commander-in-chief powers, and in wartime that let him do pretty much whatever he wanted. There were some limits, of course. One might be that his freedom of action had to be outside of the United States. Another that it couldn’t involve U.S. citizens. But with those two points resolved, Torquemada had better get out of the way.
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This viewpoint has limited historical precedents, but no Administration has pressed it quite so fiercely as that of George W. Bush.
Moreover the true roots of this notion lie in the thinking of a troubling figure, Carl Schmitt. The most important conservative legal thinker on the European continent between the wars, Schmitt felt that modern liberal democracy crafted on the Anglo-American model was too weak to cope with the social and political shockwaves that racked Europe between the wars. He suggested that these liberal democratic constitutions all had an “escape hatch,” namely a clause which would allow the Executive to set aside the array of civil liberties which formed the constitution’s foundation whenever the state found itself engulfed in an existential threat.