Notes From the Middle Ground Between Complacency and Panic

This Administration seeks to achieve a panoply of organized and systematic changes in the civil order, a strengthening of the security apparatus at the expense of civil liberties. It is wrong, I think, to be at all complacent about these changes, which is one of the reasons I started this blog. (If you haven't read my early post about my grandmother's political advice, Rose Burawoy, Political Scientist, please do so.)

Looking around today, there are four interrelated sets of reasons to be concerned.

First, the Administration has advanced a series of legal claims that are inherently incompatible with justice. The invention or, if you prefer, extension of the category “enemy combatant” is one example. The administration claims that it can strip a US citizen of his Constitutional rights by attaching this designation to him, and it has done this on US soil, grabbing a citizen and then disappearing him into near-incommunicado detention in a military prison. The Justice Department claims that the courts' only role is to enquire if the administration really says someone is an enemy combatant. Once handed a conclusory declaration signed by an official, the Justice Department says the courts have no further role.

I am not in any way suggesting that this is the first administration to commit excesses in the name of security. The modern list is legion, from Cointelpro through Waco. What makes the current situation almost unique is that the large majority of those earlier incursions were either clandestine (because they were known to be illegal at the time), or later acknowledged (overtly or tacitly) to be errors. This Administration advances the current set of changes as either consistent with the existing legal order, or as so necessary for our security as to require changes in it. Some of these changes would systematically gut the ideas of Due Process, Speedy Trial, and Confrontation of Accusers enshrined in the Fifth1 and Sixth2 Amendments to the Constitution. That's new.

Second, this Administration seeks to set a wide range of legal precedents that allow law enforcement to operate in secret. From secret deportation hearings to Guantanamo Bay to increased use of a secret court for wiretaps that have a domestic angle, all these things together breed a culture in which, human nature and bureaucratic imperatives being what they are, it is inevitable that excess and injustice will flourish.

The intangible and attitudinal effects of the claim that substantial traditional elements of liberty must be sacrificed for the (eternal) duration of the “war” on terrorism may be as important as any change in the law. If the sole effect were an increase in law enforcement arrogance, we could cope. But if left unchecked, the combination of a government empowered to act fundamentally unjustly (whether it's to grab people off the street or just to burden the conduct of their lives by subjecting them to routine and regular questioning and, say, no-fly lists), and to do so in secret, will have corrosive consequences. In time the combination will provoke either a climate of self-censorship and fear, or a revolutionary fervor. Neither would serve democracy well.

The fourth area of concern has to do with armed intolerance. In the ivory tower where I live, one doesn't run into many death threats. However, David Neiwert, aka Orcinus, has written a number of eloquent essays suggesting that the drumbeat of increasingly violent, even eliminationist anti-liberal rhetoric on the airwaves and in other media have consequences felt in the daily lives of people living far from the ivory tower. I've explained before why I'm not persuaded that today's brownshirt-like political rhetoric is that much different than what we heard in the Nixon era, for example—“America, love it or leave it.” Even if I'm right about that, however, it's possible that with 24/7 media the rhetoric Neiwert writes about is more pervasive than before, or that contemporary conditions — economic insecurity combined with fear of terrorism — create a more fertile ground for something ugly or even violent. (And, in the event of a major economic shock …)

In looking around at today's politics, I worry about complacency, and I worry about panic. It is wrong to shout 'Nazi' at this administration. (Neo-Peronist would be closer to the truth, but doesn't quite fit either.) We do not face — and assuming the country reacts to the forthcoming Mel Gibson movie in a grownup way, are not likely to face — anything like the worst horrors of mid-20th-century Germany. While it is almost always wrong to shout 'Nazi', if 'eternal vigilance' means anything then it is never wrong to debate the ways in which some current policies and trends are and are not reminiscent of the sometimes unwitting precursors of the fascism or authoritarianism (or simple economic chaos) that have destroyed democracies elsewhere. And right now it is even less wrong than usual.


1 Fifth Amendment.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

2 Sixth Amendment

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

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