I'm only now getting around to reading Jane Mayer's must-read article on the justifications for torture. The whole thing is worth reading. But there's one passage that really struck me as shocking. It's John Yoo's description of why presidential power supersedes the precedent of Youngstown Sheet & Tube Company v. Sawyer, which ruled that presidential power was limited in areas where Congress had legislated.
“The war on terrorism makes Youngstown more complicated,” he said. “The majority opinion explicitly said it was not considering the President’s powers as Commander-in-Chief in the theater of combat. The difficulty for Youngstown created by the 9/11 attacks is that the theater of combat now includes parts of the domestic United States.”
Now, I'm sure Glenn Greenwald and Anonymous Liberal and Marty Lederman have been making this point for weeks, but I must have missed it. Basically (and I welcome any kibitzing from the lawyers in the crowd), this argues that because of the nature of the war we're fighting, presidential powers cannot be limited in ways they have historically been limited. This is the answer, btw, to the objection of why 9/11 would justify measures that we didn't take under World War II, which clearly represented a much bigger threat to our way of life. During World War II, we were fighting discrete nation-states with recognized sovereign borders. Therefore, the president's power as commander-in-chief only extended outside of our borders. But now that we're fighting an enemy that is not a sovereign nation-state, one that has infiltrated our own country, commander-in-chief powers extend into the domestic sphere. (A question for the lawyers out there--does this hold for the justification for internment camps?)
There are a lot of reasons to find this justification troublesome. But what most concerns me is the way in which it fits so neatly with recent efforts to roll back the concept of sovereignty as it has developed since WWII.
Since WWII, international law has recognized the sovereignty of nations, particularly members of the UN. A nation was free to establish and execute laws within its own country. But a sovereign nation had to deal with others according to certain rules, except during times of war. And even the justification for war was limited to certain cases, and the conduct of war was limited by certain rules. While this agreement did nothing to ensure that conduct within a country met any standards of morality, it provided at least the appearance that conduct between countries met certain standards of legality (in many cases, it really was just an appearance, as the Soviet Union and the US found plenty of ways to violate the sovereignty of client states). There have been exceptions to this system (most notably the ANC during the apartheid era and the PLO now). But it worked fairly well in practice.
But in the last 20 years, the US has spearheaded changes in this understanding. One of the reasons for changing this understanding is really important. If a country (like Serbia or Rwanda or Sudan) is massacring a subsection of its population, then how does the international community justify going into that country to stop it? Particularly if (as happened) there is not agreement among the international community about who is responsible for the massacres and why? Our intervention in the former Yugoslavia is an example of where violating the sovereignty of a country represented a net good.
At the same time, though, the US led a move away from the UN as the primary moderator of relations between countries, to the WTO. And the WTO has a completely different concept of sovereignty built into it. Some of this is voluntary, the concessions a country makes to join the WTO. But some of it is inherent to the organization. WTO puts economic relations above issues of legal sovereignty, limiting the ways in which an individual country can use labor, environmental, or consumer protection legislation to protect its interest. While the punishment is economic (not military), it still cuts into the "modern" notion of sovereignty.
The problem with this move away from sovereignty is that it limits the way people can mobilize to represent their own interests. Regardless of whether a country is democratic or authoritarian, this raises the relationship between employer and laborer and consumer and producer to the same level of import as the relationship between citizen and state (arguably, in some cases, it replaces the latter with the former). At the same time, the economic reality created by globalization has created huge numbers of economic migrants who, once they migrate, often become stateless people, with no legal outlet or protection (note, this is an economic consequence, not a legal one). When I say the people running our country are really Neo-Feudalists, this change in the concept of sovereignty is one of the key concepts I'm talking about. They're trying to break up the legal status the citizens of a sovereign state have, thereby making them less secure and more compliant.
So how does this relate to Yoo's justification for torture?
Well, if I'm understanding the justification correctly, it basically says the president cannot be bound by law (international or domestic) so long as he is engaged in activities related to the war on terror. This means he can violate the sovereignty of other countries (though if our allies helping us with extraordinary rendition in Europe are any indication, they're happy to cede their sovereignty on their own). And it means he can violate our rights as citizens. As we've seen with the NSA domestic spying case, these people are arguing that, in the pursuit of terrorists (however vaguely defined), the president can violate our Fourth Amendment rights. At both the national and international level, it serves to further dismantle the relationship between citizen and state.
Now, any review of the NSA program makes it clear this is what they're doing. But the reason I'm shocked is how well the justification fits into this larger trend. The reason I'm shocked is how easily they've turned a terrorist attack into a justification to advance their anti-sovereign dogma. (I guess I shouldn't be surprised, since Israel is the test case for this, but still.)
No wonder they don't want to fight terror as an issue of law and order. Fighting it as a war advances their larger goals so well.