An assault on our constitutional government
Todd E. Pierce, National Law Journal / Islam Daily
Submitted by David Culver
January 10, 2012 | The 10th anniversary of the opening of Guantánamo Bay, Cuba, as a detention facility and the diversion of terrorism prosecutions into a new military commission system is now upon us. Consequently, I thought I would take this opportunity to briefly explain why I, an Army Reserve Judge Advocate General officer with more than 30 years of active and reserve military service, would volunteer as defense counsel for prisoners being held there.
I might add that I consider myself to be a conservative. In the United States of America, that means to conserve the legal order that this nation was founded upon, the Constitution. In fact, as a member of the military, I took an oath to defend the Constitution against all enemies, foreign and domestic. I did not take an oath of allegiance to the “leader,” or to the “state,” as required in some other nations. Thus, it came as something of a shock to me when Alberto Gonzalez, John Yoo and Robert Delahunty began issuing legal opinions that the Geneva Conventions, a treaty incorporated into our law, were quaint and did not apply, or that the president could, at his or her sole discretion, suspend them.
Carl Schmitt and Guantanamo at 10: Todd Pierce, a Judge Advocate General officer, speaks out, Alan Gilbert, Democratic Individuality
Will Altman sent me this striking piece from Todd Pierce, a Guantanamo defense lawyer in the Pentagon* from the National Law Journal below. It tracks the introduction and dangerous near triumph of Carl Schmitt’s doctrine stated in the first sentence of his 1923 Political Theology: “he is sovereign who makes the decision in the state of the exception” in the United States at the expense of the separation and balance of powers in the Constitution.