CBC.ca | As it Happens | Tuesday, April 5, 2011


CBC.ca | As it Happens | Tuesday, April 5, 2011

If you missed the CBC’s interview with Donna Marsh O’Conner this evening, you should follow the link and listen to the segment. Ms. O’Conner lost her daughter in the 9/11 attack on the World Trade Center.

In this interview, she expresses regret that Khalid Sheik Mohammed will not be tried according to the rule of law under the US Constitution, but according to military law, where guarantees of Due Process and Habeas Corpus are, at best, questionable.

Much more eloquently than I could, Ms. O’Conner identifies the ways that Attorney General Holder and President Obama caved into political pressure from Republican politicians to suspend the rule of law and Due Process.

For the purposes of our studies this semester, Ms. O’Conner’s spirited defense of Republican institutions and values is packed with significance. At the very least it places the primacy of the political (think Carl Schmitt) over the rule of law at center stage, not simply in the pressure placed on Holder and Obama by Republicans, but on Obama’s own political calculation that it could be a mistake to mount a reelection campaign with this issue haunting him in the background. Both calculations are strictly political.

But, Ms. O’Conner’s statement also foregrounds the increasingly tenuous character of the rule of law for a political community whose participants are increasingly ignorant and dismissive of (or even hostile toward) the founding principles of their own constitution.

Finally, the interview suggests that post-democratic society is fully compatible with political actors who become increasingly sensitive to the mass character of public sentiment and not by law or reason.