Balkinization  

Friday, December 15, 2006

Using Our Fears to Justify a Power Grab

JB

[This essay was first published in the Los Angeles Times two months after the 9/11 attacks, on Thursday, November 29, 2001. It was written before many of the Administration's most controversial decisions were revealed to the public, including the NSA domestic surveillance program, the torture memos, the detention of American citizens as enemy combatants, the practice of extraordinary rendition to countries that torture, the secret CIA prisons, and the abuses at Guantanamo Bay. Nevertheless, its analysis of what was about to happen, and of the incentives facing government officials seems entirely relevant five years later.]

* * * * * * *

Moments of crisis do not merely create emergencies. They also create temptations.

Many see the central issue before us as how to balance civil liberties and national interests. This is wrong. The danger we face today is not that government officials will make hasty decisions out of fear or that they will strike the wrong balance between liberty and security. It is that they will use a national crisis as an opportunity to make themselves more powerful and less accountable for what they do--not because they are corrupt and venal but because they are so utterly convinced of their uprightness.

In times of fear, authoritarian impulses are less constrained and people feel less able to complain about them. After all, no one wants to be thought unpatriotic when the country is in such grave danger. And when there is no check on government officials certain of their own rectitude, the temptation for them to act unilaterally and arbitrarily becomes irresistible. Such is the problem we face today, with a president and an attorney general who have dedicated themselves to stamping out all evildoers both outside the country and within it.

An increasingly authoritarian tone is pervading the Bush administration. We have seen it in the so-called USA Patriot legislation hastily pushed through Congress. We have seen it in the presidential order authorizing military tribunals without traditional due process protections and without a right of appeal to anyone but the president himself. We have seen it in new federal policies that permit eavesdropping of confidential communications between attorneys and their clients. And we have seen it in new regulations that allow the attorney general to imprison noncitizens indefinitely, even if an immigration judge has ruled that there is no evidence to justify holding them against their will.

Little by little, the basic elements of procedural fairness that keep democratic governments from acting arbitrarily are being chipped away. No apology is offered for these actions. Those who seize power always feel perfectly entitled to it. Instead, they blame their critics for failing to recognize the seriousness of the situation or for being soft on terrorism, as in the past other critics were blamed for being soft on communism.

The authoritarian impulse is justified, as it always is, through paranoia. The more fearful Americans are, the more they are willing to give their officials a free hand. It is no accident that the same attorney general who has withheld information about who is being detained and why has also repeatedly warned in ominous tones that more terrorist attacks are just around the corner. Secrecy lends credibility to paranoia, which in turn justifies increased secrecy and increased power.

Officials who want greater authority always prefer to work in secret so that they cannot easily be called to account. And when complaints are raised, lack of available information makes it all the more difficult to prove that violations have occurred.

Thus, it is entirely predictable that the current administration has made a fetish of secrecy, for secrecy increases power, not only overseas but in our own country.

Authoritarianism never attacks the institutions of freedom at their strongest point; it always attacks them at their weakest. Even before Sept. 11, the country's immigration laws were often arbitrary and highhanded. Therefore it is no surprise that the administration's latest grabs for executive authority have targeted noncitizens, who have no right to representation and no natural constituency to defend them. The present conflict may not be a war on Islam. But it is increasingly turning out to be a war on noncitizens.

The members of this administration do not want to be dictators. They simply do not want anyone getting in their way. They do not want to be autocrats. They simply do not want to be second-guessed when they know that they are right. They do not want to be antidemocratic. They simply want to be able to act unilaterally in the interests of righteousness. If we would merely allow them to go about their business in secret, and with as much authority as they feel they need, they will take care of things for us.

In times like these, it is a tempting offer, but we should refuse it. For what profit has a country if it shall control the whole world and lose its democratic soul?

Comments:

Professor Balkin: It is that they will use a national crisis as an opportunity to make themselves more powerful and less accountable for what they do--not because they are corrupt and venal but because they are so utterly convinced of their uprightness.

I must respectfully disagree here. "Utterly convinced of their uprightness" correlates too strongly with atrocities throughout history, from the Inquisition to Hilter's Final Solution. One might argue it is really a fair gloss for "corruptible."

In the instant case, with this administration, son of an ex-CIA chief, puppet of or participant in the openly imperialist PNAC, which in turn "just happens" to be made up of financial interests of Haliburton and Bechtel, what we have is high-flown ideals acting simply as facade for unbridled will to wealth and power. This is not news, nor is it particularly controversial. We can argue all we like whether the financial interests drive the ideological or the other way around. The result is the same, evil worked in your name and mine.

In particular I would like to point to arguments that H.R.3162, the so-called "patriot" act is a fine example of exactly the opportunism you write of. The result of cointelpro was, in part, the "stove-piping" complained of post-nine-one-one. The intelligence community, with it's obvious links to this administration, leapt at the chance to undo these fetters, "in the name of security." And to this day too wide a swath of our citizens are blind to the dangers therein. Some are willfully blind, some are blinded by their immersion in backwaters of popular culture dominated by the likes of Coulter or O'Reilly or Limbaugh. But the result is the same, evil being done in your name and mine and theirs. Don't give the miscreants of PNAC and this administration one iota of ground, the simply don't deserve it.
 

Lex Gabinia was passed to empower Pompey to rid Rome of its difficult pirate problem (I note that fighting terrorists is sometimes compared here to fighting pirates). It in fact worked and Pompey cleared the Mediterranean of pirates in a season, yet it also contributed to the rise of Caesar.

I realize the comparisons between then and now are not complete and there are many differences, but its also a somewhat noteworthy that the number of Pompey's force was fairly close to the size of the occupying force in Iraq. Again, I admit there isn't much commonality beyond that, but it struck me as interesting nonetheless.
 

Professor Balkin:

In times like these, it is a tempting offer, but we should refuse it. For what profit has a country if it shall control the whole world and lose its democratic soul?

While you may disagree with the tools with which we are fighting this war, these tools were the product of our democracy.

Our twice elected President is exercising the authority granted him as commander in chief by the Constitution.

In concert with the President, our elected Congress enacted the Patriot Act, the DTA, the MCA and AUMFs against al Qaeda and Iraq by large bipartisan margins.

There is nothing authoritarian about this democratic process. No one has seized the government by force and is enacting laws by decree. This is our democracy at work.
 

In concert with the President, our elected Congress enacted the Patriot Act, the DTA, the MCA and AUMFs against al Qaeda and Iraq by large bipartisan margins.

It's interesting to examine those large bipartisan margins in terms of the arbitrary chipping of "procedural fairness" that the original post laments. For example, while the MCA passed handily (65-35) in the Senate, Specter and Leahy's amendment to the MCA that would have preserved habeas corpus was very narrowly defeated (51-48). Systematizing the military commission system may have bipartisan appeal, but stripping people of their rights does not. Would that it had no appeal at all!
 

PMS_Chicago said...

BD: In concert with the President, our elected Congress enacted the Patriot Act, the DTA, the MCA and AUMFs against al Qaeda and Iraq by large bipartisan margins.

It's interesting to examine those large bipartisan margins in terms of the arbitrary chipping of "procedural fairness" that the original post laments. For example, while the MCA passed handily (65-35) in the Senate, Specter and Leahy's amendment to the MCA that would have preserved habeas corpus was very narrowly defeated (51-48). Systematizing the military commission system may have bipartisan appeal, but stripping people of their rights does not. Would that it had no appeal at all!


Nearly all of the Dems voted for their own amendments to satisfy their left base and then 25% or so jumped ship to vote for the overall GOP bill so that they could get re-elected back home where the left Dem base is a small minority.
 

Nearly all of the Dems voted for their own amendments to satisfy their left base and then 25% or so jumped ship to vote for the overall GOP bill so that they could get re-elected back home where the left Dem base is a small minority.

I think Specter and Leahy's stated intent to restore habeas corpus under the MCA speaks against your election year hypothesis. If it were just a matter of politics, Specter wouldn't have put the amendment up in the first place.
 

PMS_Chicago said...

BD: Nearly all of the Dems voted for their own amendments to satisfy their left base and then 25% or so jumped ship to vote for the overall GOP bill so that they could get re-elected back home where the left Dem base is a small minority.

I think Specter and Leahy's stated intent to restore habeas corpus under the MCA speaks against your election year hypothesis. If it were just a matter of politics, Specter wouldn't have put the amendment up in the first place.


Pennsylvania is a solid blue state and Vermont a deep blue state. I am referring to those Dems from the far more numerous purple or red states.
 

"Bart" DePalma:

Pennsylvania is a solid blue state...

Just like good ol' Colorado, eh? Yepsters, Pennsylvania is so "solid blue" that it elected Rick Santorum to the Senate until people wised up to the fact that's he's in fact batsh*t crazy.

Just remember, folks: "Bart" lives in a wonderful world where facts come true to fit his theories, rather than the ther way around. He'd make a good 'creation scientist'.

Cheers,
 

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