US Executive Power and the ‘State of Exception’

After decades of global integration, Dan Steinbock sees imperial presidential policies based on “national security interests” producing majestic mistakes.

How Carl Schmitt Took Over the White House

By Dan Steinbock
Special to Consortium News            

As the controversial German jurist Carl Schmitt saw it in the interwar Third Reich, legal order ultimately rests upon the decisions of the sovereign, who alone can meet the needs of an “exceptional” time, transcending the law so that order can then be reestablished. “Sovereign is he who decides on the exception,” he wrote. “All law is situational law.”

In post-Weimar Germany, such ideas contributed to the eclipse of liberal democracy. Following Sept. 11, 2001, similar arguments renewed neoconservative interest in Schmitt and the “state of exception.” In this world the status quo is in a permanent state of exception, as enemies — “adversaries, others and strangers” — will unite “us” against “them.”

In this view, the U.S. response to 9/11 was not unusual because liberal wars are “exceptional.” Rather, it was a manifestation of ever-more violent types of war within the very attempt to fight wars that would end “war” as such.

Similarly, it is politically expedient to legitimize a trade war and other political battles in the name of “national security,” which allows the sovereign to redefine a new order on the basis of a state of exception. Subsequently, a new national security strategy redefines “friends” as “enemies” and “us” as victims who are thus justified to seek justice from our “adversaries” — “them.”

The logic of the state of exception leaves open the question how the White House could establish such a trade war as a sovereign, when such trade wars have not been supported by most of President Donald Trump’s constituencies and have been opposed by much of the Congress and by most Americans.

Unitary Executive Theory

What looms behind the Schmittian White House is a tradition of conservative thought relying on the unitary executive theory in American constitutional law, which deems that the president possesses the power to control the entire executive branch.

The first administration to make explicit reference to the “unitary executive” was the Reagan administration. Typically, the practice has evolved since the 1970s, when President Richard Nixon decoupled the U.S. dollar from the Bretton Woods gold standard and trade deficits began to rise.

The terrorist attacks of 9/11 allowed the George W. Bush administration to make the unitary executive theory a common feature of signing statements, particularly in the execution of national-security decisions, which divided Capitol Hill and were opposed by most Americans.

In the case of Trump, the need for inflated unitary executive power arose with Special Counsel Robert Mueller’s investigation, which restricted the president’s strategic maneuverability to operate with the Republican Congress in 2017-18 but permitted actions that required only executive power, typically in tax and trade policy.

In this view, efforts at a U.S.-Sino trade compromise may prove more challenging than anticipated, as evidenced by the extended truce talks. Even a trade compromise may prove unlikely to deter subsequent bilateral technology wars, which have been heralded by U.S. actions in the case of Huawei and longstanding efforts to sustain American primacy in 5G technologies. As U.S. production capacity has been offshored since the 1980s, such efforts rely on national security considerations.

If the trade war is less about trade than about a U.S. effort at economic and strategic primacy, no “concession” may prove enough for the Trump White House, which may be more likely to re-define the status quo on the basis of a national emergency.

‘Costly, Mysterious Wars’

The idea of the “imperial presidency” in America is hardly new, as historian Arthur M. Schlesinger Jr. demonstrated in the Nixon era:

“The weight of messianic globalism was indeed proving too much for the American Constitution .… In fact, the policy of indiscriminate global intervention, far from strengthening American security, seemed rather to weaken it by involving the United States in remote, costly and mysterious wars.”

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Ostensibly moderate administrations, including that of President Barack Obama, have conformed to this rule. During Obama’s first term in office, America expanded its military presence in Afghanistan and increased drone missile strikes across Pakistan, Yemen and Somalia. The administration also deployed the military to combat piracy in the Indian Ocean, engaged in a sustained bombing operation in Libya, and deployed U.S. Special Forces in Central Africa. In these cases, Obama decided to use force without congressional approval.

During the past half century, amid a series of asset bubbles, a slate of new foreign interventions, the Iraq War debacle and the $22 trillion U.S. sovereign debt, the imperial presidency has become a target of broader criticism. But why has it grown even harder to challenge?

Certainly, one critical force has been campaign finance and the increasing role of “big money” in American politics. In particular, the Supreme Court’s 5-4 decision in Citizens United v. Federal Election Commission, which struck down a federal prohibition on independent corporate campaign expenditures, paved the way for corporate power to override democratic power in the White House.

At the same time, the ultra-rich have begun to play a more active part in politics, with serious consequences for American democracy, as many American political scientists have warned.

In the new status quo, neither 20th century American Empire nor 21stcentury Third Reich is needed for majestic policy mistakes. Imperial Presidency will do. Indeed, even the sovereign’s executive power may suffice.

Emergency Powers in Time of Peace

The uses of executive power are likely to go far beyond the current rivalry  for artificial intelligence (AI), as evidenced by Trump’s efforts to re-define, re-negotiate or reject major U.S. trade deals on the basis of national security. By the same token, foreign investment reviews will be overshadowed by national security considerations.

As postwar multilateralism has been replaced with unilateralism, the White House sees itself in international strategic competition with other great powers, particularly Russia and China, yet old allies – including Europe and Japan – are not excluded.

Since the U.S. Constitution ensures the president a relatively broad scope of emergency powers that may be exercised in the event of crisis, exigency or emergency circumstances (other than natural disasters, war, or near-war situations), it matters how the White House chooses to apply its definition of a “state of exception.”

Under the current, wide definition, it is prudent to expect escalated international trade disputes between the U.S. and other members of the World Trade Organization, even against the WTO itself. Citing diffuse national security reasons, the White House defends its tariffs under the GATT Article XXI; the so-called national security exception.

There is a big difference between the repercussions of such executive decisions in the postwar era and the early 21stcentury. In the past, policy mistakes could penalize the U.S. economy and democracy. After half a century of increasing global interdependency, they can derail global economic prospects.

Dr. Dan Steinbock is the founder and director of Difference Group and has served at the India, China and America Institute (U.S.), Shanghai Institute for International Studies (China) and the EU Center (Singapore). For more, visit the Difference Group

This commentary draws in part from his new analysis, “U.S.-Sino Futures,” released by Chinese Quarterly of International Studies (CQISS).

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For Hollywood, ‘Vice’ Is Remarkably Astute About Politics

Adam McKay’s movie may be flawed, but it’s still must-see for his depiction of how Cheney amassed power by exploiting Watergate, an inexperienced president and 9/11, writes James DiEugenio.

By James DiEugenio 
Special to Consortium News

 In 2015, director Adam McKay did something unusual in Hollywood.  He made a good film out of a good book.  In fact, one could argue that McKay’s movie “The Big Short” is even better than Michael Lewis’ book.  It is funnier, has a faster pace and is much more innovative stylistically.

McKay has now done something even more unusual for Hollywood.  He has made a good film about an unattractive and unlikeable character, former Vice-President Dick Cheney. Appropriately, the film is called “Vice.” I am going to say some critical things about “Vice.”  But let me start by recommending that everyone who reads this website see this film. It’s not often that Hollywood produces a film this honest, ambitious and intelligent about the contemporary American political scene.

Early in his life, Cheney flunked out of Yale and was tagged with two DUI’s.  His wife Lynne—who later became a prolific author—helped straighten him out  and put him on a path toward a political career.  From that point on, McKay, who also wrote the script, frames Cheney with the following epigraph, which is written across the screen at one point: 

“Beware the quiet man.  For while others speak, he watched. And while others act, he plans.  And when they finally rest, he strikes.”

The warning applies to three key sections covered by the film.

Watergate Power Vacuum

During the Watergate scandal, Cheney believed that any Republican not touched by the scandal should be valued like gold. So he and Donald Rumsfeld schemed to fill a power vacuum in the Gerald Ford White House. In order to compensate for the laws sapping executive power after Watergate, he met with a young up-and-coming lawyer named Antonin Scalia. The future U.S. Supreme Court justice supplied Cheney with the unified executive theory, a doctrine Scalia drew from article two of the U.S. Constitution that vests “executive power” in the president. Cheney tried to utilize this doctrine as chief of staff under Ford.

George W’s Search for VP

The dangerous quiet man reappears during the presidential campaign of George W. Bush. As the film depicts, due to an agreement he’d made with his wife, Cheney was only supposed to lead Bush’s search for a vice president. But sensing that W was tentative and unsure of himself on the national stage of foreign policy, Cheney made an agreement with George W. that would make him the most powerful vice-president in history.  Through this pact, Cheney achieved something that Lyndon Johnson had tried for but failed to attain with John Kennedy: a co-presidency. He set up offices for himself at both the House of Representatives and the Senate.  He also had virtual offices at the CIA and the State Department

Post 9/11

These arrangements put him in a propitious position during the 9/11 attacks. Cheney advised President Bush to stay in the air for safety purposes while he–without clearance from Bush–issued a shoot-down order to Secretary of Defense Rumsfeld.  And that was just the beginning of the Cheney domination of the War on Terror. 

As McKay shows in the film, it was Cheney who almost unilaterally chose the suspects that he wanted the CIA to pick up and deport for rendition purposes to foreign black sites, or secret prisons. It was Cheney, aided by neoconservative lawyer David Addington and State Department analyst Doug Feith, who constructed the “stove piping” of intelligence in order to avoid any rigorous review of sources and methods for intelligence reports.

Like the Plan B neocons of the 1970s, who overrode the CIA’s estimates of the Soviet military threat, Cheney descended into the spy agency’s headquarters in Langley, Virginia, and rode herd on its officers and analysts. The vice-president demanded access to all the information, no matter how dubious the source or how much duress had been applied in attaining it. It was this imperiousness that allowed disinformation by the likes of German-born informer Rafid Ahmed Alwan al-Janabi, also known by his CIA moniker of Curveball, to lay the false foundations for the invasion of Iraq.

And Cheney made sure that as much duress as possible was applied to the suspects he had chosen.  Through Addington, Cheney recruited John Yoo, a Yale-educated lawyer at work in the Justice Department’s Office of Legal Counsel. Yoo agreed with Scalia’s unitary executive theory. He wrote legal memoranda that stated that, in the War on Terror, America could discard the Geneva Convention’s guidelines on the treatment of prisoners. Yoo’s memos infamously stated that the CIA should only ban physical pain equivalent to organ failure or death. It was Yoo’s almost complete denial of international law that set America on the path to Abu Ghraib, the Iraq prison where the CIA and U.S. Army infamously oversaw the extreme abuse and torture of prisoners.

Still Incomplete

It is remarkable that McKay managed to get all this information about Cheney into a film that runs only slightly over two hours.

But the trail of perfidy is incomplete.  For example, as chronicled by the late Bob Parry, it was Cheney who led the counter attack to the Iran/Contra affair from Congress.  Cheney was at a meeting at the home of Evan Thomas where it was suggested that National Security Advisor John Poindexter commit perjury to protect President Reagan. 

But all of the above tells you little about the experience of watching the film. As with “The Big Short,” the exceptional thing about “Vice” is McKay’s cinematic approach. Once again, he uses a battery of visual devices that are unprecedented in contemporary film. About halfway through the film, for instance, before Cheney becomes vice president, the film appears to reach an abrupt ending. The credits roll, with cornily cheerful music on the soundtrack. Meaning we all would have been better off if Cheney had not become co-president.

In “Vice,” however, such clever innovations don’t necessarily help the overall storyline. “The Big Short” was about an event, namely the economic meltdown of 2007-08. “Vice” is about a man’s life and career.

Had McKay lessened, rather than increased, his visual inventiveness he might have done a better job explaining how Cheney ended up as a character worthy of Shakespeare’s treacherous Iago. (A spoofy bedroom scene written and performed in Shakespeare’s iambic pentameter—which happens—does not solve the riddle of character explication.) A bit more straightforward story telling would have also given the actors—Christian Bale as Cheney and Amy Adams as his wife– more to work with.  They are quite adequate here, but because of McKay’s attention to other matters, neither can be really good.

None of this makes me any less enthusiastic about the film or about McKay. How can someone not admire a millionaire film director who identifies himself as a social democrat? And makes films like this?  More power to him.

James DiEugenio is a researcher and writer on the assassination of President John F. Kennedy and other mysteries of that era. His most recent book is  “The JFK Assassination : The Evidence Today.” 

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