Aug 082013
 

The House recently voted down an amendment by Justin Amash (R-MI and a former classmate of mine at the University of Michigan) to defund mass NSA surveillance. The breakdown of the vote is interesting. It was thoroughly nonpartisan, as it roughly split the Democratic and Republican caucuses in half. It also neatly split the House leadership from the rank-and-file, as Nancy Pelosi joined with John Boehner and virtually the entire House leadership in voting against the measure.  Democratic party booster and serial email spammer Debbie Wasserman-Schultz (D-FL) voted on the same side as the right-wing warmonger Peter T. King (R-NY). The opposing camps on this issue can’t be neatly described by the shorthand political terms we commonly use.

I suppose that because Justin Amash himself is a self-styled libertarian, we might be tempted to say that the vote on his amendment revealed a previously undiscovered groundswell of libertarian sentiment in the Congress. That’s true, but only in the sense of “if opposition to unchecked secret surveillance is libertarian, then we are all libertarians” — which isn’t very accurate or helpful.

A digression: I am fond of making fun of libertarians. I like to find examples of others (from Alain deBotton to China Mieville) who skewer libertarianism in witty ways. I think libertarianism as commonly described by its proponents is a thoroughly junior-high-school, adolescent political philosophy that is only marginally more helpful for navigating in the real world than anarchism or communism [and I will admit that I was explicitly an anarchist… when I was in the 8th grade]. Although some of my most intelligent friends call themselves libertarian, I take that about as seriously as they take me when I self-identify as an ancient elf from Gondolin.

But back to the subject: the Amash vote shows that there’s an important political split on one of the most vital issues of the day that isn’t captured by our common shorthand terms. So we tend to mis-label the sides, or worse, fail to notice often enough that it exists. So let’s think more about what the disagreement is really about. What else do the defenders of current NSA practices have in common? What beliefs does Barack Obama share with Peter King and Eric Cantor? Allow me to speculate.

One thing might be a belief in the seriousness of the threat of terrorism. If you really do think that your own life or even your entire country is in imminent danger from terrorists, you’re more likely to forgive secretive methods (almost any kind of methods) to respond to the threat.

Another might be a belief in the vastly superior effectiveness of blanket surveillance to defeat the threat. This might mean that you’re OK with keeping secrets and violating laws for purely utilitarian reasons — the other alternatives simply won’t work. If anyone out there seriously believes this, I wish they’d be more explicit about it.

You might instead be someone who simply trusts authority figures, i.e., you might be an authoritarian. I don’t mean to use this word in a pejorative sense. I simply mean that you might, contra Amash and his supporters, feel comfortable with a world in which government authority figures are given carte blanche to do whatever they feel is best for the country, and you aren’t troubled by the risks that those people might make grave mistakes, or be corrupted by power, or use their power to advance ends that they haven’t told you about and that you haven’t consented to. All of us, after all, believe this to some extent, or there wouldn’t be any such thing as “consent of the governed”, no “representative government.” Trust in authority falls on a spectrum, and the more authoritarian and credulous end of that spectrum is more likely to be untroubled by secret government surveillance, secret law, and unchecked executive branch power.

I think that some combination of these beliefs are shared by most of the people who aren’t outraged by  the NSAs surveillance regime. There are certainly other reasons not to be outraged,* but I’m betting that these three together capture most of what motivated people to oppose the Amash amendment and to prefer to focus on Snowden himself rather than on what he revealed about the government’s activities.

And what about the other side? Certainly a belief in “libertarianism” as freedom from surveillance motivates many of Amash’s supporters, but what else? There’s got to be something, since the Congress did not suddenly become one-half libertarian when Amash’s amendment came up for a vote.

Apart from blanket surveillance itself, the secrecy surrounding this surveillance is troubling. The lack of Congressional oversight (see James Clapper’s lying to Ron Wyden) and the classification of the FISA court’s decisions regarding the NSA’s programs will worry anyone who believes that inter-branch checks and balances are necessary to prevent abuses of power. The less authoritarian, less trusting, and less credulous you are, the more you’re going to oppose the NSA’s unilateral implementation of blanket surveillance, even if ultimately you don’t object to the surveillance itself.

There is a third reason why the NSA revelations are so odious to so many — the apparent disregard for the rule of law. It takes a lot of hoop-jumping to avoid the conclusion that vacuuming up everyone’s email and phone records regardless of individualized suspicion falls under the powers authorized by Congress when it passed the AUMF against AlQaeda, or that it fails to violate the Fourth Amendment’s prohibition on unreasonable searches and seizures. Coming on the heels of the Addington/Yoo era at the OLC, where corrupt lawyers contorted themselves to whatever degree was necessary to condone torture, and following the Obama administration’s absurd redefinition of the word “imminent” to mean whatever it had to mean to justify its targeted killing programs, many of us are far less likely to trust in lawyerly machinations when it comes to the legality of mass surveillance by the NSA.

So what to call the two sides in the split over NSA surveillance? Tyrants vs constitutionalists? Terroristarians vs Rule-of-law-itarians? I don’t know. Just don’t mention fascism, because that could never happen here.

 

*Tawdry reasons such as a congressman accepting campaign donations from military/industrial interests, etc.

 

 

Feb 082013
 

As the latest apologist for Barack Obama’s policy of targeted killing in secrecy and without oversight, Michael Gerson once again illustrates the price we pay for the political myth that  “we are at war.”

This, of course, is the essence of the matter. If America is in an ongoing war against al-Qaeda and associated groups, then the rules of war apply, Yemen and the Afghanistan/Pakistan border are battlefields, and al-Qaeda operatives are lawful targets. This is the position taken by both the Bush and Obama administrations, consistent with America’s inherent right of self-defense and the 2001 Authorization for the Use of Military Force. If this war were a myth or a metaphor, then the pursuit of al-Qaeda would be a criminal matter, requiring extradition, arrests and due process.

Of course Gerson is right.  If we are really at war, then the idea that we would restrain our commander-in-chief from waging that war is self-evidently absurd.  But if this war were a myth or metaphor, then not only would the pursuit of al-Qaeda be a criminal matter, the current policy of secret kill-lists drawn up by Obama administration officials would itself be criminal.

Gerson presumes that we agree with his assumption that this war we are supposedly fighting is not mere myth or metaphor.  But the stakes are too high for mere presumptions.  In wartime, the ordinary constitutional restraints upon the government no longer apply.  This is why Gerson, and all defenders of unchecked executive authority, must at every point be challenged to demonstrate — not merely assert — that this war is not a metaphor.

My guess is that if challenged, Gerson would cite the AUMF, which presumes to authorize the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

Since September 11, 2001, is now more than ten years in the past, it might be prudent to ask whether the extraordinary powers granted to the President under the AUMF still apply.  If they do still apply, we might ask when we might expect to see them expire.  When will the war against the perpetrators of the 9-11 attacks end?

Unfortunately, apologists for unconstrained governmental killing like Gerson never seem to provide much guidance on these issues.  For them, so long as there is even one cave-dweller somewhere in Pakistan who might harbor thoughts about committing a terrorist act against the United States, we will be obliged to defer to the President’s own determination that drone strikes, wiretapping, indefinite detention, and other practices that in peacetime would clearly be the practices of a dictator, are consistent with the defense of American freedom.