The following paper was presented at the Seventh Annual Telos Conference, held on February 15–17, 2013, in New York City.
With the confirmation hearings of John Brennan as director of the CIA fresh in the news, who can doubt the accuracy, or at least the resonance, of Carl Schmitt’s conception of the sovereign—the sovereign is “he who decides on the exception.” With sovereignty so conceived, it has effectively been cast outside the law, introducing a certain arbitrariness and creating a legal limbo that undermine the principles of a liberal democracy.
Enhanced interrogation. Drone attacks on foreign soil. Targeted assassinations. And now, a 16-page white paper from the Department of Justice outlining the legal authority to kill a U.S. citizen without trial. In the words of the New York Times report, the legal brief “adopts an elastic definition of an ‘imminent’ threat, saying it is not necessary for a specific attack to be in process when a target is found.” It also asserts that the decision to kill is not subject to judicial review or restraint.
