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Life, Liberty, and the Pursuit of Terrorists

December 20, 2011

Oof. Even though I have certainly become numb by now and I should have known better from the start, it still hurts. No, I’m not talking about the fact that I just had my phone stolen from out from my hands (AGAIN!), I’m talking about the fact that the National Defense Authorization Act is one of the scariest pieces of legislation I’ve ever even heard of, let alone the legislation that will have been passed by Barack Obama. Forget the PATRIOT ACT; this is pure Orwellian crude.

In the most scarily relevant part, the NDAA would enable the Executive branch to not only indefinitely detain any individuals classified as “terrorists,” but also much more. As Glenn Greenwald put it:

Section (2) is a brand new addition. It allows the President to target not only those who helped perpetrate the 9/11 attacks or those who harbored them, but also: anyone who “substantially supports” such groups and/or “associated forces.” Those are extremely vague terms subject to wild and obvious levels of abuse (see what Law Professor Jonathan Hafetz told me in an interview last week about the dangers of those terms). This is a substantial statutory escalation of the War on Terror and the President’s powers under it, and it occurs more than ten years after 9/11, with Osama bin Laden dead, and with the U.S. Government boasting that virtually all Al Qaeda leaders have been eliminated and the original organization (the one accused of perpetrating 9/11 attack) rendered inoperable.

In layman’s terms: the military can arrest anyone who they think (or can justify) may have supported “the terrorists.” Does kind of logic ring a bell to anyone who lived through the Bush administration? Does “Either you are with us, or you are with the terrorists” sound familiar? Do you think that such a Manichean worldview is consistent with American values such as the right to dissent or freedom of speech and thought? Did you know that protests are considered “Low-Level Terrorism” by the Department of Defense? Yes, Time Magazine’s “person” of the year may be considered a terrorist, as long as the military personnel say that the protester was getting “violent” of course.

The ability to indefinitely detain has always been sold to the public and the Courts as necessary to wage the war on terror, even though such tactics violate our most basic conceptions of human rights, let alone rights we normally accord to our own citizens (see, e.g., Guantanamo Bay, Abu Ghraib, Hamdi v. Rumsfeld, etc.). Where is the idealism that Obama promised he would bring to the Oval Office to cleanse it of the stink left by the Bush Administration?

While my own interests in technology and copyright make me passionate about terrible legislation like SOPA (especially given that it will–according to the engineers who know anything about the subject–break the Internet), the implications of the NDAA are far more terrifying, given the interests that hang in the balance when either piece of legislation comes up for judicial review.

On the SOPA side of the equation, the interest being protected is mostly just the entertainment industry. Surely, this is an interest group to fear, given their appeal to both Democratic legislators (for filling their campaign coffers) and to Republican legislators (who will take any opportunity to decry illegal acts and subject them to harsh punishment). However, the Courts stand as a strong potential bulwark of this interest gone greedy; the Courts have a historical inclination to invalidate a law as overbroad as SOPA, and the necessary historical jurisprudence to back them up. What’s more, even if Congress doesn’t understand the implications that SOPA will have on the architecture of the Internet, a Court can take the time to learn and understand the implications of overzealous takedown notices. At that point, a Court can weigh the competing interests and, in all likelihood, find SOPA to be an unconstitutional infringement on Freedom of Speech.

However, the set of competing interests and questions on the table for the NDAA is completely backward. National security has long been an opaque black box that the Courts have not been able to effectively review thanks to the assertion of the State Secrets privilege by the Bush and Obama administrations. Under this doctrine, the Executive branch says, “we can’t tell you why we need this extra power because telling you why would reveal information we need to fight The Terrorists®.” The Court is thus faced with the dilemma of forcing the administration to divulge potentially life-threatening information or allowing them to proceed in dealing with the War on Terror® on their own terms and without an effective check. Such courts are often been inclined to let the government slide instead of creating life-threatening risks. It’s a lot harder for a Court to enable needless deaths than it is to allow speech to go a little unpunished.

Therein lies the microcosm of Hobbesian philosophy in today’s politics. As early as the mid-17th Century, Hobbes had argued that the human imagination’s capacity to generate nightmare scenarios is essentially infinite, which thereby justifies the retention of unlimited power by a Leviathan government in order to guarantee the safety of its citizens (security being the number one obligation of the government to its people pursuant to a social contract). The government had to have the right to enter or possess one’s property at all hours in order to guarantee its safety.

Of course, America is often thought to be premised on different assumptions; Locke diverged with Hobbes and said that we collectively and voluntarily designate the powers that the Government will retain. When America granted powers to its government, it tried to limit them by never granting such broad powers to the government in the first place, and in the second place by explicitly retaining rights to assembly, peaceable petitions for redress of grievances, freedom from unreasonable searches and seizures, and so on.

However, over the last two centuries of crises, there has been a continual erosion as the infinite fears of the populace become more realized. Whether it is the Civil War or the War on Terror, the threat to human life is a powerful force that can induce Americans to prefer the sacrifice of our liberties, which Hobbes would be quick to note as an essential condition of humanity. That’s why, when the American people gave to the Executive Branch the power to wage war, America gave the corresponding “check” to Congress, and required them to declare when war should be waged. However, the NDAA is not a declaration of war; it is a declaration of perpetual war.

Both the NDAA and SOPA are tragic examples of how government action is frequently subjected to the Politician’s Syllogism:

Something must be done.

This is something.

Therefore, this must be done.

This logically fallacious line of thinking lies at root of each problem. SOPA is the industry-approved version of copyright enforcement, and of course it’s overbroad because the industry wrote it for themselves, not the public’s benefit. By the same token, the NDAA was written to appease people who have the responsibility of waging war against a very difficult and clandestine enemy, and the NDAA could provide one more weapon in that fight even if it means that America has to give up a lot of freedom in the trade. There are many, many reasons to critique either of these proposals, but those critiques rarely come with an alternative magic bullet solution to the problem that the legislation purports to solve. At that point, the people who want to have the problem solved often win the day because their interests are much more wrapped up in the legislative process than the dispersed majority of Americans who aren’t paying for lobbyists to protect their generalized interest in freedom.

Part of the problem seems to be that both democratic politics and democratic peoples have a gut reaction that requires them to prefer any kind of bold action (even if it’s reckless) to criticism of that policy if that criticism doesn’t come bundled with a more compelling alternative course of action. People want to believe that we can succeed if we just show our will to fight.

But what of the end goal of all of this? America seems to have forgotten that what we wanted for ourselves in the first place was more freedom, not more government-provided security at the expense of those liberties.

Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety.

–Benjamin Franklin

3 Comments leave one →
  1. December 20, 2011 3:33 pm

    I think that this unbridled extension of the Executive Office’s war powers is completely unconstitutional, not to mention unnerving. Hopefully the American people can be smart in the next election and vote for people who will uphold the constitution

  2. January 8, 2012 11:51 pm

    Great articles on SOPA, Rick. Regarding trying to find legislation that will strike the right balance — I think I’m leaning towards the belief that anti-piracy legislation that doesn’t break the internet is actually impossible. What tipped me that way was a vigorous (as in, “What are you, CRAZY? What are you, NUTS?!”) debate Leo LaPorte recently had with Nilay Patel of on “This Week in Tech” episode 332:

    Patel believes SOPA is really bad but tries to make the argument that we still need some kind of middle-ground legislation and enforcement.

    The arguing starts at about 10 minutes into the episode. Fascinating.


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