States of exception (part IV)

20 December 2005, 1505 EST

A hypothetical conversation between Kristol and Schmitt.

Kristol: Gary, this is bad. What can we come up with in a few days?

Schmitt: Well, Bill, I’ve got some arguments sitting around about how the President actually has unlimited powers in times of crisis…

Kristol: Is it the old “Commander-in-Chief” argument? Everyone’s making that one.

Schmitt: Sort of. You know the President’s oath?

Kristol: I think I can remember. How does it go again?

Scmitt: He swears “to preserve, protect and defend the Constitution.”

Kristol: Uh, Gary, the argument is that he violated it.

Schmitt No, no, you’re wrong. This is the cool part. We’ll say something like this: “Implicit in that oath is the Founders’ recognition that, no matter how much we might wish it to be case, Congress cannot legislate for every contingency, and judges cannot supervise many national security decisions. This will be especially true in times of war.”

Kristol: Hey, yeah, that’s kind of neat. We need another talking point anyway… Wait, a minute. What happens when the liberals say that gives the President dictatorial power?

Schmitt: How about: “This is not an argument for an unfettered executive prerogative. Under our system of separated powers, Congress has the right and the ability to judge whether President Bush has in fact used his executive discretion soundly, and to hold him responsible if he hasn’t. But to engage in demagogic rhetoric about “imperial” presidents and “monarchic” pretensions, with no evidence that the president has abused his discretion, is foolish and irresponsible.”

Kristol: I see one problem, Gary. All this stuff is secret, so how will people know if he’s abusing his power? And a Republican congress would never impeach a Republican President in time of war. Actually, that’s two problems.

Schmitt: Uh, Bill. What are we trying to do here?

Kristol: Oh, riiiight. What was I thinking? These aren’t problems!

Schmitt: Exactly.

Kristol: I think we can write the sucker up in a couple of hours. Great work, Gary. I love the part about how the President’s “Constitutionally prescribed” oath allows him to violate the Constitution! Genius. Absolute genius.

Schmitt: Well, they don’t call me “Schmitt” for nothing!

Kristol: Hah. That’s a good one!

Josh Marshall has the details.

UPDATE: John Holbo makes the same connection.

Filed as: John Yoo, NSA, George Bush, impeachment

Dan Nexon

Daniel H. Nexon is a Professor at Georgetown University, with a joint appointment in the Department of Government and the School of Foreign Service. His academic work focuses on international-relations theory, power politics, empires and hegemony, and international order. He has also written on the relationship between popular culture and world politics.

He has held fellowships at Stanford University's Center for International Security and Cooperation and at the Ohio State University's Mershon Center for International Studies. During 2009-2010 he worked in the U.S. Department of Defense as a Council on Foreign Relations International Affairs Fellow. He was the lead editor of International Studies Quarterly from 2014-2018.

He is the author of The Struggle for Power in Early Modern Europe: Religious Conflict, Dynastic Empires, and International Change (Princeton University Press, 2009), which won the International Security Studies Section (ISSS) Best Book Award for 2010, and co-author of Exit from Hegemony: The Unraveling of the American Global Order (Oxford University Press, 2020). His articles have appeared in a lot of places. He is the founder of the The Duck of Minerva, and also blogs at Lawyers, Guns and Money.