I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Wednesday, June 14, 2006

Democratic totalitarianism

By Hume's Ghost

"... there is now a widespread tendency to argue that one can only defend democracy by totalitarian methods ... These people don’t see that if you encourage totalitarian methods, the time may come when they will be used against you instead of for you. Make a habit of imprisoning Fascists without trial, and perhaps the process won’t stop at Fascists." - George Orwell, The Freedom of the Press

The strength and importance of How Would A Patriot Act? as a polemic is that it lays out a clear and easy to follow case that the Bush administration, acting on radical legal theory developed by John Yoo, has claimed for itself unlimited executive power to prosecute an indefinite "war on terror." Glenn develops this central premise by going through various administration scandals - the use of torture, imprisonment of US citizens without due process, NSA domestic surveillance in violation of the law, etc - and relating how they follow logically from John Yoo's belief that nothing, not Congress, nor the Courts, can limit the president's power to act in the name of national security.

Yet, despite this being, frankly, clear as day, there are still many who just don't see a problem with it. These are the people who believe in democracy in principle, but in practice, not so much. They are able to rationalize the administration's totalitarian methods of prosecuting the "war on terror" for two reasons: 1) they lack sympathy for anyone designated a terrorist target and 2) they fail to see the use of totalitarian tactics as a threat to themselves, they see it as a kind of benign, virtuous act necessary to defend democracy.

There are no doubt other factors, but I believe these two can for a large part account for why so many people seem so ambivalent about the use of totalitarian methods. They view complaints of violated civil liberties as hysterics, as worries of "phantom liberties" being lost because they don't perceive having lost any liberty themself. They are incredulous that the Bush administration could abuse such methods, the "noble motives" defense one might call this, and as an example of this defense I refer you to this entry where I respond to David Limbaugh's call for honest debate about the NSA surveillance program. Notice that by "honest debate" Limbaugh meant dismissing criticism of the program a priori on the grounds that the President couldn't possibly have any unpatriotic motives in authorizing the NSA surveillance.

This is something that has appeared obvious to me, but I find myself lacking the words to articulate a better response than the Orwell quote above. Which is why I would like to direct your attention to an article in the current issue of Free Inquiry entitled "Bush's Totalitarian Logic" in which the author, Lissa Skitolsky, has hit this proverbial nail on the head. She begins

There has been much outrcy from both the Left and the Right over the use of totalitarian tactics to fight the way against terror. However, these charges often sound hysterical and superficial; after all, we do not live under constant threat of imprisonment or death.
Skitolsky then makes the point that comparing specific measures taken after 9/11 to totalitarianism is the wrong comparison, one should be comparing the logic that justifies such actions to see the true similarities between these acts and totalitarianism.

The underlying logic of the Bush administration, says Skitolsky, is that "we must respond to threats before they emerge and so attain greater control over our security in an uncertain world." She borrows from Hannah Arendt to identifiy this as the idea that "all is possible." The description of this logic will sound immediately familiar

A government that operates accourding to the view that "all is possible" does not distinguish between an idea of what is or what may occur and the reality of what is ocurring, and so the validity of an idea is not tested by empirical evidence that could serve to verify or refute the idea in question. Rather, as Arendt explains, such a view embraces a flawed logic whereby an idea is proven true by the events that occur as a result of acting on that idea.
As I said, this is familiar. Recall reporter Ron Suskind's account of a conversation with a senior Bush advisor

The aide said that guys like me were ''in what we call the reality-based community,'' which he defined as people who ''believe that solutions emerge from your judicious study of discernible reality.'' I nodded and murmured something about enlightenment principles and empiricism. He cut me off. ''That's not the way the world really works anymore,'' he continued. ''We're an empire now, and when we act, we create our own reality. And while you're studying that reality -- judiciously, as you will -- we'll act again, creating other new realities, which you can study too, and that's how things will sort out. We're history's actors . . . and you, all of you, will be left to just study what we do.''
Skitolsky writes that we see this logic at play in the invasion of Iraq, where the idea of Iraq as the central front in fighting terrorism was "proved" by the invasion itself. This logic is immune from criticism or rational consideration. Reality is what the state's actions define it to be.

[E]very new "fact" - whether the establishment of secret prisons or the endless violence and senseless deaths in Iraq - only serves to provide evidence for the validity of our policies and actions. If we are not attacked, then our policies are "proved" to be working and if we are attacked, then our policies are "proved" to be necessary.
The use of signing statements to usurp the legislative branch's power, Skitolsky says, "indicates that the word of the president now determines the meaning of and binding force of the law." This is a particularly devastating critique considering that earlier in the passage she had noted that a fundamental feature of the Nazi regime was that the word of the Fuhrer was law.

The next point is one that has been discussed here at length, and which has been fully exploited by people like Senator Pat "you don't have civil liberties if you're dead" Roberts.

That our national "security" is always invoked as the ultimate justification for every extra-legal measure only obscures the fact that we are, in fact, much less secure than before the war in Iraq and the pasasage of the PATRIOT Act. That so many Americans affirm the right of the president to suspend civil liberties for the sake of this much needed and elusive "security" only confirms that our values have changed; no longer willing to die for the sake of our democratic ideals, we are now willing to indefinitely suspend those ideals in order to avoid an unexpected death."
Speaking about the warrantless NSA surveillance program Skitolsky explains how Vice President Cheney's contention that the program helps "prevent possible terrorist attacks" is circular totalitarian logic that justifies the program on the grounds that it might prevent a possible attack. She also notes that "in a world where 'all is possible,' facts take a backseat to possibilities, and, since every citizen is a possible terrorist, then every citizen is a possible threat and so also a possible detainee."

The possibility than any citizen might be a terrorist provides the rationale for making every citizen the target of surveillance. And since the world is full of possible, if not actual, threats, preemptive war threatens to turn into perpetual war, perpetually justifying the police state powers claimed by the administration.

The article is worth reading if you can get your hands on a copy.


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