Carl Schmitt and the Road to Abu Ghraib

Constellations Volume 13, No 1, 2006. © Blackwell Publishing Ltd., 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

Carl Schmitt and the Road to Abu Ghraib

William E. Scheuerman

When a colleague recently brought the first English translation of Carl Schmitt’sThe Partisan to my attention, I picked it up more out of a sense of professionalobligation than genuine enthusiasm.1 While writing a book on Schmitt in the mid1990s, I diligently read Schmitt’s short 1963 volume, but ultimately decided thatit was not worthy of detailed exegesis. Although a fascinating attempt to makesense of the guerrilla movements of the 1960s, The Partisan belonged, I decided,among Schmitt’s minor works. Not only does much of its argument rely on thetheoretically more significant 1950 Nomos of the Earth, but in the context of theend of the Cold War, the demise of Third World guerrilla movements, anduniversal embrace of free market capitalism, Schmitt’s reflections struck me asdated.

But that was all before Al Qaeda’s heinous 9/11 attacks, the illegal U.S.-ledinvasion of Iraq, Abu Ghraib, and Guantanamo Bay. As I reread Schmitt’s studyin the post 9/11 context, it quickly became clear that I had overlooked somethingsignificant. Despite the deep normative flaws in his thinking, Schmitt was often aprescient analyst of political and legal trends, possessed with an uncanny abilityto identify dilemmas that would soon gain widespread attention. This is no lesstrue of The Partisan than of his more famous works. Schmitt’s study is disturb-ingly relevant to the political and legal world in which we now find ourselves, inwhich the U.S. government has responded to 9/11 in part by placing accusedterrorists outside the Geneva Convention’s category of “legal combatants” andoutfitting the executive with a stunning array of discretionary powers todetermine their fate. Schmitt’s little known 1963 study not only anticipated thisdevelopment, but when read critically also points to sound reasons for challengingits deeply problematic logic. Let me try to explain why.

I

Much of Schmitt’s postwar writing was preoccupied with the task of identifyinginternal cracks in a world in which the political supposedly was displaced andeven colonized by the logics of law, economics, and technology. Under the Nazis,Schmitt had envisioned the possibility of a (German-dominated) Europeanalternative to the purportedly anti-political illusions of Anglo-American liberal-ism and Soviet communism.2 Yet Hitler’s defeat abruptly smashed those dreams.Immediately after the war, Schmitt’s theory takes on increasingly melancholic

Carl Schmitt and the Road to Abu Ghraib: William E. Scheuerman 109

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

overtones. In the face of the parceling up of the globe by the Americans andSoviets, his landmark Nomos of the Earth is ultimately a politically defensive andeven nostalgic work, more concerned with underscoring the virtues of the (nowbygone) traditional European state system than with outlining a constructivealternative to the self-destructive political universalisms (e.g., liberalism andMarxism) Schmitt deemed culpable for the “global civil war” which ensueddespite the formal peace treaties signed in 1945.3 On the theoretical plain, thisdefensiveness takes the forms of a heightened accent on the centrality of concretespace or territoriality [Raum] for political and legal analysis. Plausible politicaland legal models always take territoriality seriously by acknowledging theirdeeply “rooted” character in a concrete geographical locality, Schmitt argues,whereas the political and ideological offshoots of the European Enlightenmentrely on bad faith claims to be fundamentally deterritorialized approaches. Thedisastrous result, Schmitt posits, is the postwar division of the globe into thehands of two imperialistic political giants who aim at nothing less than remakingthe world over in their own images.

Only this context allows us to make sense of the surprising enthusiasm withwhich Schmitt at first glance appears to have greeted the guerrilla movements ofthe 1960s. Here at last, Schmitt seems to have speculated, we find actors who notonly pose a fundamental challenge to the troubling Soviet and U.S. division of theplanet, but also embody a sophisticated understanding of the political: theyidentify a “real enemy,” show no qualms about the “real possibility of killing”that enemy,4 and discard illusions that the enemy can be effectively opposed bylegal, moral, or economic devices. In one of the most astonishing twists and turnsof postwar right-wing authoritarian political theory, Schmitt’s The Partisanexpresses open admiration for Mao Zedong, Fidel Castro, the Vietcong, and evenChe Guevara. Schmitt goes so far as to suggest that the rise of Maoist Chinamight open the door to a more sensible organization of international politics, inlieu of the present (e.g., postwar) domination of the world by two great powersplagued by frightful aspirations for world domination, in which a competing setof fundamentally distinct regionally oriented “great spaces” [Großräume] wouldoperate alongside one another (41).5 During the 1930s and 40s, Schmitt hopedthat Germany’s resurgence might engender a more pluralistic internationalordering. By the 1960s he at least momentarily toyed with the idea that Hitler’shistorical role had fallen to none other than Mao.

Schmitt’s seemingly hopeful rediscovery of the political in the postwar eraconstitutes the starting point for The Partisan’s detailed historical and theoreticaldiscussion of the origins of the modern partisan, among whom he includes adiverse array of recent guerrilla movements. Although I cannot do justice toSchmitt’s full account here, let me underscore its main features.

First, the partisan can be defined as possessing four main attributes. Partisansare irregular fighters since they do not make up a regular (modern, bureaucratic-ally organized, centrally coordinated) military force and consequently lack many

110 Constellations Volume 13, Number 1, 2006


of its telltale signs. They neither wear uniforms nor openly carry their weapons.This familiar fact points to a more profound difference, however. Their mode ofwarfare is fundamentally irregular as well, and they neglect the traditional laws ofwar. Partisan wars, Schmitt observes, take the form of a “vicious cycle of terrorand counter-terror” (9). The regular combatants they fight will generally abandonthe niceties of the laws of war in order to “match fire with fire.” In Schmitt’saccount, General Raoul Salan, the infamous founder of the French OAS (Organ-isation d’Armee Secrete) who embraced terroristic methods in order to combatthe Algerian FLN, is a tragic figure since his example reveals the tough choicespolitical and military leaders are driven to make when confronting terror and par-tisan war (43–47).6 Second, “a further touchstone is the intense political commit-ment which sets the partisan apart from other fighters.” In contrast to bothcommon criminals and most ordinary soldiers, the partisan is an intensely polit-ical creature, possessing an intimate “relation to some kind of fighting, warring,or politically active party or group” (10). Third, partisan warfare privilegesintense mobility in the sense of placing a premium on agility, speed, and the capa-city for surprise attack or retreat. The modern guerrilla fighter is freed from theorganizational and bureaucratic restraints that occasionally work to reduce com-bat mobility, and he shows prowess at undertaking rapid-fire attacks “behind thelines” in unexpected and oftentimes deadly ways.

The fourth main attribute – what Schmitt describes as the partisan’s telluriccharacter – is the most peculiar. Not surprisingly, it has been subject to severecriticism even by sympathetic readers, most notably Raymond Aron, whoborrowed heavily from Schmitt’s account while criticizing his discussion of thisfeature.7 For Schmitt, the partisan is fundamentally a defensive creature, with anintimate relationship to a concrete locality and, typically, the soil [Boden],engaged in life-or-death battles with regular armies having universalistic aspira-tions. In its purest form, the partisan is an “autochthonous” entity of agrarianprovenance, whose mode of existence and style of warfare exploit his intimateand seemingly instinctive knowledge of his homeland and its geographicalidiosyncrasies – its mountains, forests, jungles, or deserts. The partisan representsa “particularly terrestrial type” of active fighter, concerned chiefly with drivingan overreaching imperialistic enemy from his home territory (13); “he is one ofthe last sentries of earth” (50).

To be sure, this empirical claim derives in part from Schmitt’s odd postwartheses about the theoretical centrality of concrete space and territoriality. Yet it isalso easy to see why Schmitt believed that the historical experience of partisan orguerrilla warfare corroborated his theoretical expectations. In Schmitt’s historicalnarrative, partisans can be found throughout history. They only take on real sig-nificance in the Napoleonic Wars, however, when guerrilla forces posed a deadlychallenge to French armies in Spain, Tyrol, and Russia. For Schmitt, these earlylocalized “national” fighters represent a pristine example of partisan warfare, andhe delights in recalling the fact that substantial segments of Napoleon’s armies



were bogged down in skirmishes with untrained Spanish country yokels, whowaged a brutal irregular war that substantially raised the costs of the French occu-pation. They are paradigmatic for another reason as well: their telluric characterstands in stark contrast to the universalizing impulses of the Napoleonic project,which Schmitt interprets as having inherited core features of the Enlightenmentlegacy of the French Revolution. In his view, the fundamental flaw plaguingrecent left-wing guerrilla movements is that they risk abandoning the telluricattributes of their historical predecessors. Although they rest on deep ties to theagrarian population and exploit “the geographical specificity of the country,” andideological appeal is defensive and particularistic (e.g., their opposition to USimperialism and its globalizing aspirations), modern guerrilla movements areprobably destined to shed their telluric roots (50).8

First, their Marxist orientation exists in deep tension with any serious politicalor theoretical emphasis on the significance of concrete space or territory. Like itsliberal Enlightenment cousin, Marxism ultimately leaves no room for thisapproach. Lenin is thus a more authentic Marxist than Mao, Schmitt suggests, buthis inconsistencies as a Marxist simultaneously made Mao better able to appreci-ate the political and military opportunities of partisan warfare (40–41). Second,modern technology works to counteract an authentically telluric brand of partisanwarfare. Mobility in contemporary military affairs rests on advanced technologywhich clashes badly with the deeply rooted localism of the classical partisanfighter, the original backwoods Spanish guerrillero:

even the autochthonous partisan of agrarian origin is drawn into the force-field ofirresistible technical-industrial progress. His mobility is so enhanced by motoriza-tion that he runs the risk of complete dislocation. (14)

When successful guerrilla warfare relies on forms of technology which dramatic-ally compress space and time, his intimate relationship to a concrete locality islost (48–50). He no longer fights with the farmer’s pitch fork and butcher’s knife;now he needs machine guns and advanced explosives. Dependent on complextechnology, and tied to global movements having their own universalistic aspira-tions (e.g., world revolution), the modern-day partisan fighter losses his telluriccharacter and becomes “a transportable, replaceable cog in the wheel of a power-ful world-political machine” (14). Why is this trend so threatening to the identityof the partisan? It renders him indistinguishable from his foes, whose universalis-tic aspirations he increasingly mirrors: both American liberals and their revolu-tionary guerrilla opponents claim to speak in the name of a (mythical) unifiedhumanity. In this way, partisans abandon the special connection to concrete terri-toriality which Schmitt considers essential to their political intensity, jettisoningtheir healthy political instincts for the fictional normative or moral ideal of the“community of humankind.” Unlike the anti-Napoleonic freedom fighters ofSpain or Tyrol, they now disingenuously and self-righteously wage wars “in the name



of humanity,” and thus are likely to reproduce the terrible ills of Enlightenment-based political worldviews which, in Schmitt’s account, engender the horrors ofmodern total war.9

For this reason, The Partisan, no less than Schmitt’s other works after 1945,ultimately remains a deeply nostalgic book. Even though postwar guerrilla move-ments initially provide some reason to hope that an authentic mode of politics isalive and well, his study ends on a cautious note, strongly suggesting that themost sophisticated mode of guerrilla warfare in modern times was found amongthe telluric peasants of early nineteenth century counterrevolutionary Spain, buthardly among the revolutionary movements of 1960s Southeast Asia or Latin andSouth America.

II

The Berlin political theorist Herfried Münkler, the most impressive critical com-mentator on Schmitt’s ideas about war, can help in identifying a number of flawsin Schmitt’s argument. Schmitt’s The Partisan occasionally appears to conflatepartisan or guerrilla warfare with terrorism, when in fact we need to distinguishthem. Though both phenomena, in contrast to common criminality, are intenselypolitical in character, terrorism and guerrilla warfare rely on distinct organ-izational modes. In empirical reality, the two forms of hostility sometimes appearto merge, yet fundamental differences remain. Guerrilla fighters refigure the tra-ditional distinction between combatants and non-combatants without abandoningthe distinction altogether,10 whereas terrorism discards the distinction and con-dones indiscriminate violence against innocent civilians. Only terrorists, in short,directly reproduce the worst excesses of modern total war. Violence is employeddifferently in another way as well: when Castro’s Cuban guerrillas destroyed atrain depot, they did so in order to disrupt the enemy’s supply lines; when terror-ists hijack a civilian aircraft, they do so primarily for the sake of generating massfear and anxiety in order to advance their political cause.11 Their acts are likely totake the form of extortion (e.g., “remove US troops from Saudi Arabia or facefurther attacks”), whereas guerrilla violence is generally aimed directly at theenemy’s organizational and military capacities.12 Not surprisingly, guerrilla lead-ers such as Mao and Che Guevara sharply criticized terrorism and distinguishedtheir acts from those of “mere” terrorists. In order to succeed, guerrilla or partisanwarfare also relies on the political support or at least complicity of the generalpopulace and works hard to build this support, while terrorists wage war in thename of an imagined party (e.g., an “authentic” Islamic community, or the revolu-tionary proletariat) whose actual role in the hostilities may be minimal. In con-trast to the potentially democratic or at least populist connotations of guerrillawarfare, terrorists paternalistically posit the existence of some (perhaps fictional)political entity which they hope to “awaken” or unleash by their acts of violence.Especially important in the contemporary context is that terrorism may serve as a



precursor to a broader and politically more explosive partisan or guerrilla war. Inthe Algerian civil war, for example, isolated terrorist attacks undertaken by asmall number of FLN fighters were successfully relayed into a broader partisanwar which succeeded in driving the French from Algeria.13 The terrible cycle ofterror and counter-terror described by Schmitt in his discussion of General Salan,where those fighting terrorism embrace draconian measures inconsistent withtheir own express political ideals,14 can play a key role in the transfiguration ofterrorism into full-scale guerrilla war.

Münkler also suggests that Schmitt ultimately failed sufficiently to separatetwo fundamentally different types of partisan or guerrilla fighter. On the onehand, we find backwards-looking partisans who fight in the name of tradition,15

seek the reestablishment of customary law, and wage a defensive battle againstmodernizing political and social forces. They best correspond to the telluricquality of partisan warfare described by Schmitt. In sharp contrast to Schmitt,however, Münkler believes that it these “reactionary” partisans who mostdestructively murder innocent civilians and discard any distinction between legaland illegal combatant. For them, the political foe is an absolute enemy whosephysical elimination is justified: they understand themselves as the only truerepresentatives of authentic customs and traditions which their political enemiesare simply unable to express or share. In their eyes, the enemy is truly an“existentially alien other.” Notwithstanding the weird case of John Walker Lindh,can a young US soldier ever really partake of the communitarian ethos of“authentic” Islam as interpreted by the Taliban or other extremist groups? On theother hand, guerrilla movements, typically of the left, promise a utopian future,wage an offensive battle (e.g., third world and global revolution), and are drivenby a coherent political ideal more than an appeal to tradition. In part because par-tisans of this type ultimately want to convince political opponents of the justice oftheir cause and bring them over to their side, they shy away from indiscriminateviolence. In communist ideology, even the bourgeois can become a party mem-ber: Friedrich Engels, after all, was one of the “fathers of scientific communism,”as school children once memorized in the eastern bloc.16

Beyond its relevance for correcting Schmitt, I mention this discussion foranother reason as well. In US media coverage of the Iraq War, insurgents arewidely described as “terrorists.” Given their flagrant disregard for the laws ofwar, this is understandable and perhaps legitimate. But it obscures the ways inwhich the Iraqi insurgency has managed to take on a number of attributes ofguerrilla warfare of the first type described by Münkler. Significant segments ofthe movement see themselves as waging a defensive (or, in Schmitt’s original ter-minology, telluric) battle against an over-reaching outsider hostile to “authentic”Islamic tradition. Their indiscriminate use of violence suggests that they picturethe foreign “crusader” (along with local “collaborationists”) as absolute enemieswhose physical elimination is justified. Although matters are obviously in flux,large swaths of Iraqi territory apparently remain outside the effective control of



the central government, and the insurgents (numbering at least 20,00–40,000)may be functioning as a de facto sovereign in some areas. The fact that polls con-sistently show substantial support for the insurgency and its battle to rid Iraq ofthe US invaders should hardly surprise us: as we know from the annals of modernguerrilla warfare, popular support and complicity is indispensable if alternativenetworks of political authority are to emerge.17 Last but by no means least, thereis widespread evidence pointing to sophisticated levels of coordination, sustainedplanning, and even centralized decision making among the insurgents, organ-izational attributes widely used in the scholarly literature to distinguish partisanor guerrilla warfare from the more decentralized, informal, and sporadic decisionmaking structures found among terrorists.

So here is the first way in which Schmitt’s The Partisan is relevant to our post-9/11 universe: when properly reinterpreted, Schmitt’s comments about partisanmovements can provide some useful pointers for making sense of the Iraqi insur-gency. If we rely on Münkler’s helpful reworking of Schmitt’s categories, wemight describe the course of events since 9/11 in the following terms. Al Qaeda isa terrorist organization, and the 9/11 attacks (as well as more recent bombings inSpain and Britain) bear all the markings of terrorism. The most fateful US polit-ical response to the attacks arguably was the Bush Administration’s more-or-lessimmediate decision to invade Iraq. That decision has now helped generate whatwe can legitimately describe as a guerrilla or partisan war which depends on sig-nificant sympathy from segments of the Iraqi population. The insurgency bringstogether a motley collection of former Baathists, radical Islamists, and Al Qaedafighters, now united by their profound hostility to the American crusaders. So themain achievement of US foreign policy has been to allow the Al Qaeda terroristattacks of 9/11 – officially condemned at the time even by mid-eastern regimesotherwise hostile to the United States, and undertaken by a small and by no meansespecially popular political contingent in the Islamic world – to serve as a precur-sor to what arguably has become a broader, better organized, and terribly destruc-tive partisan war with which significant segments of the Islamic world openlysympathize. Most likely, the downward spiral of terror and counter-terror in Iraq,as Schmitt would have prophesied, has played a significant role, as US forcesrespond to suicide bombings and indiscriminate acts of insurgent violence bythemselves killing and abusing civilians. This spiral, of course, has worked to fanthe flames of burgeoning anti-Americanism – in other words, precisely what AlQaeda needs in order to thrive.

III

Yet the more challenging facet of Schmitt’s The Partisan lies elsewhere. A cen-tral issue in the volume is how the laws of war should best regulate “irregularcombatants” who do not wear uniforms, fail to carry their weapons openly, andoften ignore the traditional rules of war. Do irregular fighters deserve the



protections of the Geneva Convention, or is their fate best left in the hands of thediscretionary authority of those who capture them?

Of course, this issue has been at the very center of a worldwide debate abouthow liberal democracy should respond to the 9/11 terrorist attacks. In the UnitedStates, the Bush Administration quickly determined that neither accused terroristsnor Taliban fighters captured in Afghanistan can be categorized as regularcombatants; this decision provided the legal justification for many of the mostcontroversial elements of the so-called “war against terrorism.” Most importantly,it led to the establishment of the now infamous detention camp at GuantánamoBay, which even one US Senator has since compared to the crimes of totalitarian-ism.18 The fate of the Guantánamo detainees is decided by tribunals which milit-ary lawyers widely describe as being little more than kangaroo courts, and theirtreatment of has been characterized as harsh and brutal by independent humani-tarian organizations.19 Right-wingers may be justified in criticizing those whodraw crude parallels between Guantánamo and Nazi or Soviet camps, but theiroutrage does not seem to have forced them to ask tough questions about the UStreatment of irregular fighters. Despite claims to the contrary, there is noevidence, for example, that any useful information has been gained by the legallysuspect and profoundly inhumane interrogation methods apparently being used atGuantánamo.20

Schmitt’s comments about this controversial legal issue are characteristicallysuggestive. He correctly notes that international law has struggled with theproblem of how to regulate irregular combatants. The experience of anti-fascistpartisan war indeed contributed to a “relaxation of what was previously a purelystatist European international law” even in the Geneva Convention of 1949,whose architects sought a cautious extension of basic protections to irregularfighters unaffiliated with the traditional subjects of international law, sovereignstates. Writing in 1963, Schmitt accurately observes that partisan and guerrillafighters had come to enjoy greater legal protections than in the past, though theystill lacked the full rights of the regular combatant (15–16). The general trenddescribed by Schmitt is readily confirmed by the battle over Protocol I of theGeneva Convention of 1977, which expressly extends the protections longenjoyed by regular soldiers to “people fighting against colonial domination andalien occupation and against racist regimes.” The 1977 Convention – which theUnited States never ratified, in contrast to the earlier 1949 Convention – alsoloosens the definition of legal combatants by providing new protections even tofighters who fail to “distinguish themselves” (for example, by wearing a uniform)from civilians. Such fighters are still required to carry their arms openly duringmilitary deployment or an attack, but the clear thrust of Protocol I is to placeguerrillas under the same legal rubric as traditional military forces. Despite thegeneral shift towards extending legal privileges to irregular combatants, however,many prominent international lawyers claim that the Geneva Convention of 1977still “affords no protection for terrorists.”21

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Schmitt describes the broadening of traditional legal protections to includepartisans and guerrillas as the product of a “humane conscience,” but heultimately underlines its deep incongruities (22–23). In fact, he concludes withthe dramatic assertion that the “normative regulation” of irregular combatants is“juridically impossible” (25). No coherent legal regulation of the irregular fighter,it seems, is achievable. International law obscures this harsh fact with vaguelanguage and open-ended legal clauses, but “regular law” never can successfullycontain or regulate the phenomenon of “irregular fighter.” Regular law andirregular combatant are like oil and water: they simply do not mix. By necessity,the irregular combatant will remain a legal black hole where – or so Schmittimplies – no legal norm can realistically provide a modicum of predictability.

Schmitt offers three reasons in support of this view. First, he implicitly relies onthe stock argument that “authentic” politics necessarily elides legal regulation: whenconflicts involve “existentially” distinct collectivities faced with “the real possibilityof killing,” the attempt to tame such conflicts by juridical means is destined to fail, orat least badly distort the fundamental (political) questions at hand. Insofar as thepartisan fighter represents one of the last vestiges of authentic (i.e., Schmittian)politics in an increasingly depoliticized world, he has to dub any attempt to regulatethe phenomenon at hand as misguided and maybe even dangerous.

Yet this argument relies on Schmitt’s controversial model of politics, as out-lined eloquently but unconvincingly in his famous Concept of the Political. To besure, there are intense conflicts in which it is naïve to expect an easy resolutionby legal or juridical means. But the argument suffers from a troubling circularity:Schmitt occasionally wants to define “political” conflicts as those irresolvable bylegal or juridical devices in order then to argue against legal or juridical solutionsto them. The claim also suffers from a certain vagueness and lack of conceptualprecision. At times, it seems to be directed against trying to resolve conflicts inthe courts or juridical system narrowly understood; at other times it is directedagainst any legal regulation of intense conflict. The former argument is surelystronger than the latter. After all, legal devices have undoubtedly played a posit-ive role in taming or at least minimizing the potential dangers of harsh politicalantagonisms. In the Cold War, for example, international law contributed to thepeaceful resolution of conflicts which otherwise might have exploded intohorrific violence, even if attempts to bring such conflicts before an internationalcourt or tribunal probably would have failed.22

Second, Schmitt dwells on the legal inconsistencies that result from modifyingthe traditional state-centered system of international law by expanding pro-tections to non-state fighters. His view is that irregular combatants logicallyenjoyed no protections in the state-centered Westphalian model. By broadeningprotections to include them, international law helps undermine the traditionalstate system and its accompanying legal framework. Why is this troubling? Themost obvious answer is that Schmitt believes that the traditional state system isnormatively superior to recent attempts to modify it by, for example, extending



international human rights protections to individuals against states.23 But what ifwe refuse to endorse his nostalgic preference for the traditional state system?Then a sympathetic reading of the argument would take the form of suggestingthat the project of regulating irregular combatants by ordinary law must fail foranother reason: it rests on a misguided quest to integrate incongruent models ofinterstate relations and international law. We cannot, in short, maintain corefeatures of the (state-centered) Westphalian system while extending ambitiousnew protections to non-state actors.

This is a powerful argument, but it remains flawed. Every modern legal orderrests on diverse and even conflicting normative elements and ideals, in partbecause human existence itself is always “in transition.” When one examines theso-called classical liberal legal systems of nineteenth-century England or theUnited States, for example, one quickly identifies liberal elements coexistinguneasily alongside paternalistic and authoritarian (e.g., the law of slavery in theUnited States), monarchist, as well as republican and communitarian moments.The same may be said of the legal moorings of the modern welfare state, whicharguably rest on a hodgepodge of socialist, liberal, and Christian and even Catholic(for example, in some European maternity policies) programmatic sources. Inshort, it is by no means self-evident that trying to give coherent legal form to atransitional political and social moment is always doomed to fail. Moreover,there may be sound reasons for claiming that the contemporary transitionaljuncture in the rules of war is by no means as incongruent as Schmitt asserts. Insome recent accounts, the general trend towards extending basic protections tonon-state actors is plausibly interpreted in a more positive – and by no meansincoherent – light.24

Third, Schmitt identifies a deep tension between the classical quest forcodified and stable law and the empirical reality of a social world subject to per-manent change: “The tendency to modify or even dissolve classical [legal]concepts…is general, and in view of the rapid change of the world it is entirelyunderstandable” (12). Schmitt’s postwar writings include many provocative com-ments about what contemporary legal scholars describe as the dilemma of legalobsolescence.25 In The Partisan, he suggests that the “great transformations andmodifications” in the technological apparatus of modern warfare place strains onthe aspiration for cogent legal norms capable of regulating human affairs (17; seealso 48–50). Given the ever-changing character of warfare and the fast pace ofchange in military technology, it inevitably proves difficult to codify a set ofcogent and stable rules of war. The Geneva Convention proviso that legal com-batants must bear their weapons openly, for example, seems poorly attuned to aworld where military might ultimately depends on nuclear silos buried deepbeneath the surface of the earth, and not the success of traditional standing armiesmassed in battle on the open field. “Or what does the requirement mean of aninsignia visible from afar in night battle, or in battle with the long-range weaponsof modern technology of war?” (17)



As I have tried to show elsewhere, these are powerful considerations deservingof close scrutiny; Schmitt is probably right to argue that the enigma of legalobsolescence takes on special significance in the context of rapid-fire social change.26

Unfortunately, he seems uninterested in the slightest possibility that we mightsuccessfully adapt the process of lawmaking to our dynamic social universe. Tobe sure, he discusses the “motorization of lawmaking” in a fascinating 1950publication, but only in order to underscore its pathological core.27 Yet onepossible resolution of the dilemma he describes would be to figure how to reformthe process whereby rules of war are adapted to novel changes in military affairsin order to minimize the danger of anachronistic or out-of-date law. Instead,Schmitt simply employs the dilemma of legal obsolescence as a battering ramagainst the rule of law and the quest to develop a legal apparatus suited to thespecial problem of irregular combatants.

Why have I spent so much time recounting Schmitt’s views concerning theimpossibility of a successful codification of the laws of war for irregular fighters?If I am not mistaken, the Bush Administration’s legal arguments about the statusof accused terrorists mirror crucial facets of Schmitt’s logic.

It would be a mistake to interpret the Bush Administration as merely claimingthat terrorism requires a different or less demanding system of normative legalregulation than we find in the case of regular combatants or even guerrilla fight-ers. As noted above, this view is held by some prominent international lawyers,and there may be sound legal reasons for defending it. On occasion, the BushAdministration’s rhetoric has appeared to reflect this position as well. But as wenow can clearly discern from recently released administration memorandums, itsview is actually more radical. In the spirit of Carl Schmitt, influential voices inthe administration interpret the executive branch’s authority to determine the fateof accused terrorists along the lines of a legal black hole in which unmitigateddiscretionary power necessarily holds sway. For the Bush Administration, as forSchmitt, the weaknesses of the existing legal regime for terrorism are not simplya lamentable reminder of the limits of statutory law, or reason for reforminginternational law in order to make it better suited to the challenges of terrorism. Itinterprets the existing legal lacunae instead as evidence for the necessity of a fun-damentally norm-less realm of decision making in which the executive possessesfull discretionary authority.

At the very least, I am not sure what else one can make of an August 1, 2002memorandum from Jay S. Bybee, Head of the Justice Department Office of LegalCounsel, to White House Legal Counsel Alberto Gonzales, in which he declaresthat “the President enjoys complete discretion in the exercise of his Commander-in-Chief authority and in conducting operations against hostile forces” and thus,if he so desires, can discard not only international but even standing domesticlegal prohibitions on torture as part of the “current war against Al Qaeda.” In caseof any misunderstanding about the wide scope of executive prerogative in the waragainst terrorism, Bybee also creatively redefines torture as an extreme act

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accompanied by “serious physical injury such as death or organ failure” – in otherwords, he narrowly circumscribes the concept of torture by virtually conflating itwith murder. A certain amount of patience is called for in order to wade throughBybee’s sycophantic bureaucratic prose, but the unambiguous message of thisstunning document is that the president can authorize anything he deemsappropriate in interrogating accused Al Qaeda terrorists as part of the “sweepinggrant” of discretionary power he possesses as “commander-in-chief.”28 Not onlyinternational law, but US statutory law as well, is unconstitutional if it conflictswith the President’s vast discretionary power as commander-in-chief, whichapparently includes the authority to interrogate enemy combatants as he alonesees fit. Bybee’s words are hardly those of a loose cannon in the Bush Adminis-tration: what constitutional scholar Louis Fisher describes as the “heavy influenceof Bybee’s legal analysis” can be detected in a number of subsequent PentagonWorking Group Reports which directly set policy at Guantánamo Bay, and hisefforts have since been rewarded by President Bush with a plum judgeship on theUS Court of Appeals for the Ninth Circuit.29

Bybee undoubtedly knew ahead of time what his bosses at the White Housewanted to hear; they pretty much said as much in earlier memos of their own. In asecret declaration issued by the president to leading officials on February 7, 2002,the president concluded that Al Qaeda “detainees had no inherent protectionsunder the Geneva Convention – the condition of their imprisonment, good, bad,or otherwise, was solely at his discretion.”30 The president’s memo makes it clearas well that he was not merely interested in advancing a distinct or less demandinglegal standard for treating accused terrorists than found in the Geneva Conventionfor legal combatants, but instead that the possession of full discretionary powerwas what he really sought. In this spirit, he declares that the Geneva Conventiononly applies in our relations to Al Qaeda and Afghanistan at the discretion of theexecutive, and hence that he reserves the right to reverse his present legal stand-point to suit future political needs if necessary. Indeed, this is perhaps the moststriking attribute of the “legal” regime which the United States has established fordetainees in Guantánamo Bay. In the administration’s view, the detainees have norights: any legal guarantees provided them – for example, those outlined in thevarious proposals for military tribunals – are nothing more than grants or privi-leges rewarded to the detainees at the discretion of the executive, based on whatChief Counsel Gonzales describes as its “definitive” understanding of “militarynecessity.” At a moment’s notice, they can be taken away. It thus makes perfectsense for Secretary of Defense Donald Rumsfeld to declare that even if a tribunalwere to rule in favor of an accused terrorist he retains the authority to detain themindefinitely.31

The administration’s arguments mirror some of the specific details ofSchmitt’s claims as well. In a memorandum to President Bush on January 25,2002, Alberto Gonzales states that the “war against terrorism” represents a “newkind of war” for which the existing legal rules are inappropriate since the Geneva

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Convention arose in the context of “the traditional clash among nations.” Thisargument is now widely used among members of the administration to justify itshandling of accused terrorists, and it appears in many of the internal memoran-dums now available to the public. Gonzales’ memo correctly notes that the statusof irregular combatants remains controversial under the Geneva Conventions.32

Echoing Schmitt, he points out that difficulties in regulating irregular combatantshave been masked by “undefined” and unclear language in international law. Butmore controversial is the conclusion he draws from the existence of a mismatchbetween the existing rules of war and the political realities of modern terrorism.Rather than propose some new set of legal standards, or suggest that the UnitedStates help reform international law, Gonzales underlines the limitations of exist-ing international law in order to demonstrate its utter irrelevance to the US treat-ment of detainees. Not only does Gonzales claim that the Geneva Conventionsare altogether inapplicable in the war against terrorism, but a central aim of thememo is to figure out by what legal means maximum decision making flexibilitycan be reserved to the executive branch in its dealing with accused terrorists.33

To be sure, the administration memos do not posit that the executive possessesunmitigated power to overrule the courts if they dare challenge its views. So onemight respond to my argument by pointing out that the administration is not infact asserting a claim of raw discretionary power. It not only appeals to the USConstitution in justifying its views, but also appears to accept the possibility ofoversight by the courts.34 By the same token, Bybee’s memorandums in particularare clearly aimed at warding off even minimal attempts by the courts at supervis-ing the executive’s authority as “commander-in-chief” to wage the war againstterrorism as it alone sees fit. As a theoretical matter, the possibility of judicialreview is not challenged; as a matter of practical judicial politics, it wouldamount to very little if the administration’s views, as expressed in the memoran-dums, were to gain wide acceptance. In light of the tendency of many of ourcourts to restrain from challenging the executive in the context of foreign affairs,this might not be an unrealistic political and legal strategy on the part of Bybee orGonzales. For his part, Schmitt never denied that legal or constitutional docu-ments could name those actors who were the proper carriers of sovereignty. Yethe argued that as a practical matter, the exercise of such sovereign power wouldalways transcend attempts to constrain it by legal and constitutional devices.35 Ina similar spirit, the Bush Administration sees its emergency power as rooted inconstitutional law, while simultaneously interpreting that power as effectivelyunlimited.

No less revealing is a September 13, 2003 report prepared by GeoffreyD. Miller, the US Army Major General who commanded the detention facilitiesat Guantánamo Bay before being transferred to Abu Ghraib in Iraq. As the journalistMark Danner shows, his main job was to extend the suspect interrogation tech-niques employed in the detention camp at Guantánamo to Abu Ghraib.36 Miller is acrucial link in the recent scandal because he represents direct evidence that the

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horrors of Abu Ghraib can be ascribed to suspect methods first employed atGuantánamo, and not, as the administration claims, merely a handful of low-ranking “bad apples” among the military prison guards in Iraq. The shockingrevelations about Abu Ghraib rest on a political and legal decision, made at thehighest echelons of the Bush Administration, to condone maximum flexibility incounterterrorist interrogation, even at the risk of discarding longstandingdomestic and international legal commitments. As I have tried to suggest, thatflexibility has been justified by means of the view that the legal regulation ofirregular combatants constitutes a legal black hole in which executive discretionis necessarily at its apex.

For our purposes, Miller is a crucial figure for other reasons. His justificationfor introducing morally and legally undesirable modes of interrogation into Iraqeerily corroborates Schmitt’s expectation that the dynamism of modern warfarepotentially clashes with any attempt to develop a firm legal framework for therules of war. Miller’s report declares that the United States needs “to rapidlyexploit internees for actionable intelligence,” and “improve the velocity and oper-ational effectiveness of counterterrorism interrogation” as well as “the speed ofdelivering actionable intelligence” (emphases added). In short, “the dynamicoperational environment in Iraq requires an equally dynamic intelligence appara-tus,” and such an apparatus should not be hemmed in by static and old-fashionedrules of war that emerged in a distant historical epoch when conflict took the formof a “clash among nations.”37 The view that military dynamism is necessarilyinconsistent with strict rules of war here remains, as in Schmitt’s earlier versionof the argument, more a battering ram against the rule of law than a welldeveloped theoretical claim. As in Schmitt’s original claim, the realities of milit-ary dynamism are used simply in order to discredit the traditional rules of war,rather than revise them in a normatively appealing fashion. Miller’s role inexporting counterterrorist techniques to Abu Ghraib represents potential supportfor another disturbing facet of Schmitt’s thinking as well. Schmitt famouslyargued that unmitigated prerogative power, what the legal theorist David L.Dyzenhaus aptly describes as “a moment of pure politics, either uncontrolled orlargely uncontrolled by the rule of law,”38 could never be fully contained orconfined by legal means. The “exception” always pollutes and often overrides thegeneral “norm.” Despite the naïve claims of defenders of the rule of law, norm-lessness is ubiquitous in legal experience, and the “exception is always moreinteresting than the norm.”

When members of the Bush Administration responded to 9/11 by arguing thataccused terrorists are subject to pure discretion, they undoubtedly expected thatthey would be able to maintain their basic commitment to the rule of law and limitthe exercise of such power to accused terrorists. But, as we know, they quicklytried to expand their claim for absolute prerogative in terrorism cases to cover UScitizens as well as foreigners captured abroad. Revealingly, the Bush Administra-tion never officially determined that prisoners captured in the Iraqi War should be



denied the protections afforded legal combatants by the Geneva Convention. YetAbu Ghraib provides clear evidence that the illegal methods of interrogation firstemployed against accused terrorists have been widely employed against capturedIraqis as well. As Schmitt would have predicted, and Major General Miller helpedbring about, once the cancer of normlessness is allowed into the legal system, it isonly a matter of time before it infects healthy legal organs as well. By insisting thataccused terrorists are subject to pure presidential prerogative, the Bush Adminis-tration opened the door to the terrible crimes of Abu Ghraib.

The only sensible response to this harsh reality is not to follow Schmitt andsurrender the rule of law, but instead force the United States to rethink its disas-trous – and thus far counterproductive – legal and political positions about the“war on terrorism.” If we hope to preserve our basic political and legal ideals, andnot allow the downward spiral of terror and counter-terror to destroy them, wewill need to reestablish a legal universe without black holes.

NOTES

1. The journal New Centennial Review recently devoted a special issue (4, no. 3 (2004)) tocommentaries on Schmitt’s The Partisan. As part of the project, a useful English translation ofSchmitt’s book, The Theory of the Partisan: A Commentary/Remark on the Concept of the Political,tr. A.C. Goodson (Michigan State University Press, 2004), hereafter cited parenthetically, is avail-able for downloading at http://www.msupress.msu.edu/journals/cr/Schmitt.pdf. Unfortunately, thearticles included in the special issue are of mixed quality.

2. In my reading, Schmitt wavers somewhat in his interpretation of the “political” credentialsof communism, often interpreting it as better expressing his existentialist model of politics than lib-eralism. Yet for a number of reasons, including those discussed below (e.g., the humanitarianand universalistic “excesses” of Marxism), communism, like liberalism, is never sufficiently politicalin his sense of the term.

3. See the special section in Constellations 11, no. 4 (December 2004). The best discussionavailable of the general place of The Partisan in Schmitt’s work is Marcus Llanque, “Ein Träger desPolitischen nach dem Ende der Staatlichkeit: Der Partisan in Carl Schmitts politische Theorie,” inHerfried Münkler, ed., Der Partisan: Theorie, Strategie, Gestalt (Opladen: Westdeutscher Verlag,1990), 61–80.

4. The term is from Schmitt’s famous definition of the “the political” in his Concept of thePolitical.

5. See also the revealing radio interview with the journalist Joachim Schickel, published inSchickel, Gespräche mit Carl Schmitt (Berlin: Verve, 1993), esp. 28, where China is described as“the last terrestrial or land-based counterbalance” to imperialistic maritime powers (such as the USand UK). This was the role Schmitt attributed to Nazi Germany in the 1930s and 1940s!

6. See Raymond Aron’s scathing response to Schmitt’s rather disturbing and probably apolo-getic comments here in his Clausewitz: Philosopher of War, tr. Christine Booker and Norman Stone(New York: Simon and Schuster, 1986), 369–71.

7. Aron reproduces a great deal of Schmitt’s account of how early partisan warfare in thecontext of the Napoleanic wars 1) gained theoretical expression in the work of the Prussian militarytheorist Clausewitz before 2) revolutionary theorists (especially Lenin and Mao) synthesizedClausewitz with Marx in the twentieth century. Aron openly acknowledges this debt, but he thenproceeds to distance himself, in my view correctly, from a number of Schmitt’s claims. Clausewitz:Philosopher of War, 363–71.



8. A prominent international lawyer mirrors elements of this argument when she observesthat “natural environment often sets the limits and provides the facilities for guerrilla operations,either as partisans in the hills, or as units in the jungle.” See Ingrid Detter de Lupis, The Law of War(New York: Cambridge University Press, 1987), 50–51.

9. For the general argument, see Scheuerman, “International Law as Historical Myth,” Con-stellations 11, no. 4 (2004). Schmitt claims, without providing much evidence, that the defensivecharacter of authentically telluric wars means that they can avoid the horrors of total war (Schmitt,Partisan, 66). In his terminology, the classical partisan was able to identify the “real enemy,”whereas its recent pathological (Marxist-tinged) variant transforms the “real enemy” into an “abso-lute enemy”, a foe of humankind, whose extermination is justified. One immediate problem withthis distinction is that Schmitt, as noted, simultaneously tends to underscore the terroristic attributesof every partisan war. In his discussion of the anti-Napoleonic Spanish partisans, for example, herepeatedly mentions their brutality.

10. Guerrilla fighters may determine that a lower-level state official (for example, a postalcarrier) is a “combatant” and thus a legitimate object of violence. See the rich account in Münkler,Gewalt und Ordnung: Das Bild des Krieges im politischen Denken, (Frankfurt: Fischer, 1992), 171,from which much of my discussion in this section is drawn. A brief summary of Münkler’s distinc-tion between partisan warfare and terrorism can be found in his “The Brutal Logic of Terror: ThePrivatization of War in Modernity,” Constellations 9, no. 1 (2002). See also Walter Laqueur,Terrorism (Boston: Little, Brown & Co., 1977), esp. 217–22.

11. Raymond Aron noted early on that an act of “violence is labeled ‘terrorist’ when its psy-chological effects are out of proportion to its purely physical result” (Peace and War: A Theory ofInternational Relations, tr. Richard Howard and Annette Baker Fox (New York: Doubleday, 1966),170). Notwithstanding the horrible murder of thousands of civilians on September 11, this generalpoint still obtains.

12. Detter de Lupis, The Law of War, 21. This international lawyer argues that we still lack auseful definition of “terrorism” in international law, but that it nonetheless is possible to distinguishit from other forms of violent hostility.

13. Also, guerrilla war may function as a transitional or “intermediate position and a provi-sional way of deploying armed forces” which ultimately culminates in the “higher stage” of conven-tional warfare (Detter de Lupis, The Law of War, 52). This, for example, was the position of MaoZedong.

14. Salan’s political preferences, Schmitt points out, were initially those of a left republican.15. However, I am not convinced that Münkler recognizes the extent to which “tradition” here

is manufactured or constructed in oftentimes anti-traditional ways.16. Münkler, Gewalt und Ordnung, 127–41.17. Polls show that a large minority, if not a majority, of Sunni Arabs are of the view that

armed attacks on US forces represent a legitimate form of resistance. A good source for recent newsreports on the situation in Iraq is http://www.globalpolicy.org. See also the revealing description ofthe Iraqi insurgency in Patrick Cockburn, “Looking for Someone to Kill,” London Review of Books(August 4, 2005): 6–7.

18. I am referring to Senator Durbin (D-Illinois), who quickly retracted his statements. Ofcourse, the camp’s secret character makes it difficult to determine precisely what is taking placebehind its barbed wire fences.

19. Amnesty International reports that the practices routinely used at Guantánamo Bay“include immersion in cold water to simulate drowning, forced shaving of facial and body hair,electric shocks to body parts, humiliation (e.g., being urinated upon), sexual taunting, the mockingof religious belief, suspension from shackles, physical exertion to the point of exhaustion (e.g.,rock-carrying), and mock execution.” Tony Judt, “The New World Order,” New York Review ofBooks (July 14, 2005), 17.

20. This point is made well by Seymour Hersh, Chain of Command: The Road from 9/11 toAbu Ghraib (New York: Harper, 2005).

21. Detter de Lupis, Law of War, 116. This is also the view of Yale law professor RuthWedgwood, who has vocally defended the Bush Administration’s treatment of accused terrorists in

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a series of Op-ed pieces published in major newspapers. Of course, this position still raises the obvi-ous question of how one is to determine fairly and competently who deserves to be categorized as a“terrorist” in the first place, a problem which has vexed US officials. In addition, the fact that(accused) terrorists may lack the protections afforded ordinary combatants by no means implies thatthey are without legal protections altogether. In both domestic and international law, for example,other rules (including prohibitions on torture) still obtain. On the political battles which led to theextension of legal privileges to guerrilla fighters, see Keith Suter, An International Law of GuerrillaWarfare: The Global Politics of Law-Making (New York: St. Martin’s, 1984).

22. Even orthodox “realist” theory concedes this point. See Morgenthau, Politics AmongNations: The Struggle for Power and Peace, 2e (New York: Knopf, 1954).

23. For Schmitt’s arguments here, see again my “International Law as Historical Myth.”24. See, for example, David Held, Democracy and the Global Order (Stanford: Stanford Uni-

versity Press, 1995).25. This is an important theme, for example, in Guido Calabresi, A Common Law for the Age

of Statutes (Cambridge: Harvard University Press, 1977).26. See Scheuerman, Liberal Democracy and the Social Acceleration of Time (Baltimore:

Johns Hopkins, 2004).27. Schmitt, Die Lage der europäischen Rechtswissenschaft (Tübingen: Universitäts Verlag, 1950).28. “Memo: Jay S. Bybee to Alberto Gonzales, August 1, 2002,” in Mark Danner, ed., Torture

and Truth: America, Abu Ghraib, and the War on Terror (New York: New York Review of Books,2004), esp. 144–56. The Germans have a wonderful phrase for bureaucratic actors of this type: Sch-reibtischtäter, or “desk perpetrators.”

29. Louis Fisher, Military Tribunals & Presidential Power: The American Revolution to theWar on Terrorism (Lawrence: University of Kansas Press, 2005), 206–7.

30. Hersh, Chain of Command, 5–6. The relevant memo is also reprinted in Danner, Tortureand Truth.

31. A string of US Supreme Court rulings in the summer of 2004, by the way, only provides acautious and insufficient constitutional response to the Administration’s claims, as Ronald Dworkinand many others have pointed out. I should also mention that the memos confirm Andrew Arato’sworst fears about the authoritarian character of the Bush Administration’s response to 9/11. “TheBush Tribunals and the Specter of Dictatorship,” Constellations 9, no. 4 (2002).

32. However, he conveniently forgets to mention that the 1977 Protocol was aimed at over-coming some of these difficulties.

33. “Memo: Alberto Gonzales to President Bush, January 25, 2002,” in Danner, Torture andTruth, 83–87. Gonzales has since been richly rewarded by President Bush as well. He is now Attor-ney General.

34. I am grateful to an astute criticism of an earlier draft of the paper by Mark Tushnet for this point.35. Carl Schmitt, Political Theology, ed. Tracy Strong (Chicago: University of Chicago Press,

2005 (1923)).36. Danner, Torture and Truth, 42–44.37. Geoffrey D. Miller, “Assessment of Department of Defense Counterterrorism Interrogation

and Detention Operations in Iraq,” September 13, 2003, reprinted in Danner, Torture and Truth, 205–11.38. David L. Dyzenhaus, “Humpty Dumpty Rules or the Rule of Law: Legal Theory and the

Adjudication of National Security,” Australian Journal of Legal Philosophy 28 (2003): 25.

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

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Carl Schmitt and the Road to Abu Ghraib

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