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.

Thursday, October 19, 2006

Is protection from threats the highest political value?

When President Bush signed the so-called Military Commissions Act of 2006 into law this week, he dismissed away objections to its Draconian and tyrannical provisions with one very simple and straightforward argument:

Over the past few months the debate over this bill has been heated, and the questions raised can seem complex. Yet, with the distance of history, the questions will be narrowed and few: Did this generation of Americans take the threat seriously, and did we do what it takes to defeat that threat? Every member of Congress who voted for this bill has helped our nation rise to the task that history has given us.

That paragraph from the President's remarks is an excellent summary of the philosophy of the Bush movement. Because the threat posed by The Terrorists is so grave and mortal, maximizing protections against it is the paramount, overriding goal. As a result, no other value really competes with that objective in importance, nor can any other objective or value limit our efforts to protect ourselves against The Terrorists. That's what the President is arguing when he said: "Yet, with the distance of history, the questions will be narrowed and few: Did this generation of Americans take the threat seriously, and did we do what it takes to defeat that threat." All that matters is whether we did everything possible to protect ourselves.

That is the essence of virtually every argument made by Bush supporters on virtually every terrorism-related issue. No matter what objection is raised to the never-ending expansions of government power, no matter what competing values are touted (due process, the rule of law, the principles our country embodies, how we are perceived around the world), the response will always be that The Terrorists are waging War against us and we must protect ourselves. That is the only recognized value, the only objective that matters. By definition, there can never be any good reason to oppose vesting powers in the government to protect us from The Terrorists because that goal outweighs all others.

This form of thinking is also what explains the fact that anyone who opposes their policies is seen by them as allies of The Terrorists (rather than advocates of competing values). As the President said, the only real question will be: did "Americans take the threat seriously, and did we do what it takes to defeat that threat?" Given that this is the sole objective that is recognized, this means that every person can essentially be categorized as either (a) someone who does take the threat seriously and wants to do what is necessary to defeat it, or (b) someone who does not.

But our entire system of government, from its inception, has been based upon the precise opposite calculus -- that many things matter besides merely protecting ourselves against threats which might kill us, and beyond that, we are willing to accept an increased risk of death in order to pursue those other values. That worldview -- that maximizing physical safety to the exclusion of all else leads to a poor and empty way of life, and that limiting government power is so necessary that we do it even if it means accepting an increased risk of death when doing so -- is what lies at the very core of what America is.

The Bill of Rights contains all sorts of limitations on government power which make us more vulnerable to threats that can kill us. If there is a serial killer on the loose in a community, the police would be able to find and apprehend him much more easily if they could simply invade and search everyone's homes at will and without warning. But the Fourth Amendment expressly prohibits the police from doing that -- it requires both probable cause and a judicial warrant before they can do so -- even though that restriction makes it more likely that we will be victimized, even fatally, by criminals.

Imagine the Bush movement present during pre-founding debates over the Constitution. Is there any doubt that Bush followers would have argued against the Fourth Amendment restriction on police powers by stressing that violent criminals can kill our children, that we must do everything to protect ourselves against them, and that those who favor search warrant requirements for the police are pro-murderer? If you're not doing anything wrong in your home, what do you have to hide?

Our country is centrally based upon the principle that we are willing to risk death in order to limit government power. Numerous other amendments in the Bill of Rights are identically based on that same principle and, of course, that is the central belief that drove the founders to risk death by waging war against the most powerful empire on earth. We have never been a country that ignores other objectives and asks only, as the President put it, did "Americans take the threat seriously, and did we do what it takes to defeat that threat?" There have always been numerous other values beyond mere protection which are at least as important and that have to be fulfilled in order to be convinced that we acted properly.

The President's comments are as historically inaccurate as they are contrary to core American principles. Historically, the worst mistakes made by America -- those instances in which it has most radically departed from its principles and aspirations -- have come not when Americans failed to take seriously enough some external threat, but to the contrary, when government leaders exaggerated the threat and induced overreactions among citizens. That is the question that will almost certainly be asked by historians. As History Professor Joseph Ellis wrote earlier this year in The New York Times:

My second question is this: What does history tell us about our earlier responses to traumatic events?

My list of precedents for the Patriot Act and government wiretapping of American citizens would include the Alien and Sedition Acts in 1798, which allowed the federal government to close newspapers and deport foreigners during the "quasi-war" with France; the denial of habeas corpus during the Civil War, which permitted the pre-emptive arrest of suspected Southern sympathizers; the Red Scare of 1919, which emboldened the attorney general to round up leftist critics in the wake of the Russian Revolution; the internment of Japanese-Americans during World War II, which was justified on the grounds that their ancestry made them potential threats to national security; the McCarthy scare of the early 1950's, which used cold war anxieties to pursue a witch hunt against putative Communists in government, universities and the film industry.

In retrospect, none of these domestic responses to perceived national security threats looks justifiable. Every history textbook I know describes them as lamentable, excessive, even embarrassing. . . . .

But it defies reason and experience to make Sept. 11 the defining influence on our foreign and domestic policy. History suggests that we have faced greater challenges and triumphed, and that overreaction is a greater danger than complacency.

Our history is not -- as the President's argument assumes -- composed of a failure to take seriously enough external threats, but is instead composed of external threats being exaggerated in order to justify grave excesses and an abandonment of our core values. The scare tactic of telling Americans that every desired expansion of government power is justified by the Terrorist Threat is effective because it has immediate rhetorical appeal. Most people, especially when placed in fear of potentially fatal threats, are receptive to the argument that maximizing protection is the only thing that matters, and that no abstract concept (like liberty, or freedom, or due process, or adhering to civilized norms) is worth risking one's life for or accepting heightened levels of vulnerability to fatal threats.

A couple of months ago, Dean Barnett, writing on Hugh Hewitt's Townhall blog, wrote a post (which I started to write about back then but never finished) which expressed the mindset that lies at the core of the Bush movement (emphasis added):

The most important thing any conservative writer can do today is convince people who think that we’re perfectly safe that we’re not. Personally, I desperately want to reach those who think once Bush leaves office, the republic will be safe. I badly want to communicate with the vast majority of Americans who are benignly indifferent to politics and convince them of the peril we face. I doubt there’s a way of knowing how successful I am at these things - I’m pretty sure progress in such matters is measured in inches, not miles. Anyway, I'm trying.

Barnett says that his goal is to "convince people who think that we’re perfectly safe that we’re not." But nobody thinks we're "perfectly safe." Nothing in life is "perfectly safe." Perfect safety is an illusion, something that is wasteful to pursue, and when pursued to the exclusion of all else, creates a tragically worthless, paralyzed way of life. On a political level, pursuit of "perfect safety" as the paramount goal is precisely what produces tyranny, since one will be motivated by that value system to vest as much power as possible in the government, without limits, in exchange for the promise of maximum protection.

That is the mindset being used to justify endless expansions of presidential power and a radical abandonment of our country's values. Eliminating all risk of the Terrorist Threat is what matters, and nothing else can stand in its way. Hence, torture, indefinite detention, warrantless eavesdropping -- the whole array of authoritarian powers sought by this administration -- are justified because none of the abstract principles and values that are destroyed by vesting such powers matter when placed next to the scary prospect that The Terrorists will kill us. That is the precise opposite of the American ethos, but -- as the President's remarks this week illustrate, appropriately voiced when our country legalized torture and indefinite detention -- it is the predominant mindset under which the country is being governed.

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