Vigilantes in the News

President Obama asked a powerful rhetorical question yesterday about the death of Trayvon Martin:

If Trayvon Martin was of age and armed, could he have stood his ground on that sidewalk? And do we actually think that he would have been justified in shooting Mr. Zimmerman, who had followed him in a car, because he felt threatened?

Zimmerman took the law into his own hands, and Martin would have been justified in doing the same if he had been carrying a weapon. What moral or ethical principle could one have appealed to that would have been unavailable to the other? When a legislature allows individuals to make and apply the law, it ceases to be law and becomes mob violence.

Now let me pose a question analogous to the president’s: If a federal agency were likewise taking the law into its own hands in the name of protecting law-abiding citizens, would one of its employees be justified in similarly removing himself from legality and providing classified documents about the agency’s operations to the press?

If the answer to that question is at least ambiguous, to paraphrase Obama, it seems that we might want to examine the laws that authorized that agency’s activities.

No evidence has emerged so far that the National Security Agency has done anything illegal, and the same could be said of Zimmerman. Yet the Florida state legislature and Congress passed laws that placed both actors outside the realm of legality, in the one case, by setting a limit to the reach of the law in personal altercations, and in the other, by allowing a court to develop a body of common law in secret and without an adversarial process. All of that legislation is suspect for the same reason, which Obama alluded to in his remarks yesterday.

The rule of law is not simply the result of legislation enacted by a duly constituted body. The rule of law also depends on, among other conditions, rules that are applied universally and equally, rules that are public and transparent, and checks and balances that allow for meaningful appeals. Legislatures and courts can constrain the rule of law, placing certain kinds of activity substantively beyond legitimate authority.

There is nothing unusual about their doing so, especially in this country, where the very idea of a law that transcends individual judgments of right and wrong has always been somewhat difficult for us to accept. Adam Gopnik explains how the legal principle of “standing your ground,” now codified in many states, developed in the nineteenth century:

In English common law, there was an old concept that, if you were engaged in conflict and killed someone, to prove self-defense you had to demonstrate that your back was—in most cases, literally—against the wall. You had a “duty to retreat.” In America, the new concept was that you had no duty to retreat—indeed, you had an obligation not to retreat. You were more or less required to blast away at anyone who approached you with, as you saw it, ill will. You didn’t have to show that you had tried to escape the confrontation. In 1856, Texas law … gave private citizens “wide discretionary powers to kill their fellow citizens legally and with impunity.”

This was the legal foundation underlying the Wild West, a time and a place animated by an utterly inconsistent notion of legality. The individual made and applied the law for himself, and the state granted him the right to do so. It was a system defined by vigilante justice, that quintessentially American contradiction in terms.

Based on what’s been reported about him, Gen. Keith Alexander, the head of the National Security Agency, appears to be firmly within this intellectual tradition. He has pressured Congress to constrain the rule of law in order to permit him and his posse to ride through the streets of cyberspace unhindered. Sometimes he has gone as far as lawbreaking himself: after September 11, 2001, he ordered his subordinates to begin illegally monitoring the calls and messages of U.S. citizens unconnected with terrorism. He is a vigilante in much the same way that Zimmerman is. I don’t intend that as a judgment on Alexander’s character. I am willing to believe that he is committed to his life’s work only for the best reasons. Still, both he and Zimmerman have by their actions articulated the view that justice doesn’t belong in the hands of the legislature. The difference between them is that one believes he is protecting a gated community of 300 million.

The question isn’t whether what Zimmerman and Alexander did was legal, as Chase Madar explains. Yet that question is still important, because it brings us to the limits we’ve collectively placed on the law in these cases. There is an inscription on wall of the Department of Justice that reads, “Where law ends, tyranny begins,” which is a line from Locke’s Second Treatise. Locke was referring to illegal acts, yet the legal actions of Zimmerman and Alexander are more alarming than ordinary crimes or abuses of authority. When a bureaucrat embezzles funds or when a man kills his rival in anger, the code by which society operates is not brought into question. The criminals are punished, and the state’s legitimate authority is restored. I’d like to reinterpret Locke’s statement to refer to that line in the dirt that the law does not cross, beyond which lies the tyranny of the mob. Zimmerman and the digital surveillance apparatus placed themselves beyond that line, one by arrogating to himself the police power, the other by acting on the authority of a secret and non-adversarial court. Because neither will be punished, the rule of law in this country is endangered.

I’m most worried and angered by the National Security Agency’s actions because they are a fundamental threat to the rule of law. If that seems like too abstract a principle to be worth defending, Martin’s death demonstrates the consequences of mob rule. I’m not sure why we shouldn’t see his death as analogous to that of Abdulrahman al-Alawki. The son of the radical cleric Anwar al-Alawki was another innocent bystander who likewise became the collateral victim of substantively extralegal efforts to ensure the safety of U.S. citizens.

In Which, Heedless of the Lessons of Modern History, I Intervene in a Conflict I Barely Understand

In a major escalation of the brewing conflict over Friedrich von Hayek’s legacy, already two months old, Kevin Vallier has issued a new attack on an essay by Corey Robin in The Nation. Robin claims that Hayek and the other economists of the Austrian School have what he calls an elective affinity with the philosophy of Friedrich Nietzsche.

To summarize Vallier’s piece, he discusses a number of passages cited by Robin in which Hayek says some extremely elitist and frankly offensive things, explains Hayek’s argument in each case, and then says, “There’s no elitism in this Hayek passage.”

That isn’t fair, actually. Vallier makes several good points. He certainly falls short, though, of proving what he states at the end: “Corey Robin is bad at Hayek. You don’t do intellectual history like this. It’s irresponsible.” That remark is completely unjustified. It diminishes what is otherwise a thorough and cogent response to Robin’s exegesis — a response that reveals an interesting set of questions about Hayek’s ideas that are not easily resolved.

These questions could be formulated as follows: If you have elitist views, but if you have good reasons for having those views, are you still an elitist? Alternatively, do all libertarians, in so far as they defend extremes of entrenched inequality and oppose the redistribution wealth, hate the poor and adore the rich? Put that way, it’s clear why Robin’s piece has been so widely discussed. The argument that Hayek is an elitist in a normative sense applies equally to most libertarians. It’s an indictment of the entire project.

It is possible, of course, to argue that a high degree of both economic liberty and inequality is good for everybody, and that as a result, libertarianism is the worldview that shows the most compassion for the poor. Robin does not address such an argument. He does not condescend to, you could say. He approaches conservatism not as a philosopher, but as an intellectual historian, or maybe as an epidemiologist. None of his arguments have any bearing on the validity of libertarianism. Instead, as he explains in a defense, he is simply pointing out the elective affinity between Hayek and Nietzsche. Both defended the elite, and for broadly similar intellectual and historical reasons:

I draw out deep structural similarities between two ways of thinking (about value, elitism, and the role of struggle and sacrifice in the creation or definition of value) that are seldom put in dialogue with each other. The reason I bring together Nietzsche and the Austrians (as opposed to other figures) is that a similar project animates their thinking: the effort to repulse the socialist challenge of the late 19th and 20th centuries and, behind socialism, the elevation of labor and the laborer as the centerpiece of modern civilization. The idea that the worker drives not only the economy but culture and society as well–and the concomitant notion that an alternative formulation of value might help repel that idea and the politics it inspires—is the polemical context that unites these figures…

The point of an elective affinity is that there’s something in the two traditions—a deep structure of thought common to both that might not be immediately visible in each or arguments peculiar to each that are nevertheless congenial to both—that draws their proponents to each other. Or that explains why proponents of the one, once they have abandoned it, may subsequently be drawn to the other. Or why a culture—or political movement—may comfortably birth or house both at the same time. In the case of a political movement, where power and interests and ideas mix and mingle in ways that don’t always logically fit or follow, elective affinities can be especially potent.

You can accept Robin’s argument entirely and still be a libertarian; if you are, he can still include you among the elitists, because the set as recursively defined by relationships of elective affinity among its members (with Nietzsche as n-naught) is extremely broad. It includes many conservative thinkers in various historical periods and geographical regions. This method might seem unfair on Robin’s part — guilt by association, and a refusal to engage substantively with Hayek’s arguments. I think it is a useful approach as long as it is properly understood.

Let’s hold our noses, then, as we pore over Hayek’s fetid apology for the elite.

Hayek argues that at least some people in society ought to have enough wealth to assume the risks involved in experimentation and innovation.

All right, let’s stop right here. I’m going to betray my ignorance of Hayek immediately and digress: this argument is completely unconvincing to me. If I were allocating society’s resources and my goal were to encourage innovation, I would distribute the wealth as evenly as possible, since the people who truly reinvent some aspect of society rarely have economic motivations, and often do so at great personal expense. The best approach would be to diversify my investment in society’s human capital as much as possible. There is probably some element of the argument that I’m unaware of. Anyway, the point is irrelevant.

Hayek’s concern is that, through the democratic process, the majority will limit the wealth of the elite in order to protect themselves from poverty. The majority must in fact be protected from themselves, according to Vallier:

The challenge here is that engaging in such legislation will not only make the employed worse off, it will make them less free. Hayek emphasizes in the chapter that the employed as free only if they have lots of occupational choices available to them. But they only have those choices if there are entrepreneurs and others with big risk appetites to create new occupations, businesses and the like.

Let’s accept this dubious, nauseous argument and ask simply whether it is elitist. In one sense, it is not, because it is motivated by a concern for the liberty of the working class. On the other hand, to say that this argument is not elitist is to ignore entirely how it and similar arguments are typically used in their historical and political contexts: by people like Mitt Romney and his donors to rationalize the opulence in which they live. Yes, these are elitist arguments, in that they serve the elite. Moreover, there is quite clearly an elective affinity, as Robin defines the phrase, between Hayek and his contemporaries and the wealthy members of the conservative political movement in the United States today, who likely lack both all understanding of Hayek and all compassion for the working class.

This is worth knowing because people are not completely rational. They do not reason all the way from first principles to their conclusions and their actions (a crucial element of Alexis de Tocqueville’s argument in Democracy in America). At some point, far back in the cobwebby corners of the mind, reason gives way to imagination and tradition. It’s back there that ideas have their power over people, from generation to generation and continent to continent.

From Vallier’s point of view, a statement like that one is utterly unhelpful and frustrating. It denies him the status of a person participating in an argument and denigrates him to a mere agent of history. Sorry, Kevin. Studying these elective affinities, these deep trends in intellectual history, is a very valuable pursuit as long as it does not prevent us from engaging with the rational substance of one another’s ideas, but instead forces us to examine our own premises more carefully.

Anyone who wants to understand contemporary conservatism must also understand its elective affinity with Hayek and Hayek’s with Nietzsche, which Robin convincingly demonstrates.

Vallier objects to Robin’s claim that in both Hayek’s system and Nietzsche’s, the elite are arbiters of value. As manufacturing techniques improve and goods become cheaper, products first available to the wealthy become available to the working class. For example, Apple makes expensive phones, and Samsung makes cheaper versions of the same device. Vallier insists that this model of the origin of societal values is different from Nietzsche’s:

Hayek is not trying to justify the claim that the masses must in any sense be deliberately “guided” by people but rather institutionally guided by their consumption choices, which is different. The word “guided” is crucially ambiguous. It is not that people ought to follow elites because they have superior knowledge, character, etc. Instead, the information and options available to the masses have been made available to them via those who have as a matter of fact discovered, produced and consumed things for the first time. How could it be otherwise?

Yet what the rich actually discover, produce, and consume reflects their values. As all sides in this debate concede, modern economics, including Hayek, is subjectivist with regard to use-value. As a result, the infrastructure and the knowledge for the production of a potentially infinite range of goods is never developed. Instead, society develops the ability to produce those goods which are defined as goods by the rich. All of the world’s technology companies are now learning how to mimic the iPhone, because for largely aesthetic reasons, the world’s wealthy decided they liked it. On a more serious note, global capitalism still struggles to produce drugs to fight the diseases of the developing world — a project that should be a matter of economic necessity, not merely of charity.

Hayek’s and Nietzsche’s models are thus quite similar, as Robin argues. (In an earlier volley, Vallier faulted Robin of using the word “value” to refer to different kinds of values, such as moral values and economic values, as I do. Robin’s counterargument that all of these kinds of value are indeed interchangeable is convincing.) Hayek presents a system in which the elite of society assign value to various moral or economic ends, which become the values of society as a whole.

Again, this does not mean that Hayek advocates for Übermenschen, and his adherents can reject the idea of Übermenschen without inconsistency. Hayek is not necessarily a fascist. Neither is Nietzsche, for that matter. Yet to understand the motivations of conservative movements over time, it is important to examine these affinities.

A final point: Vallier emphasizes the fact that Hayek did not believe the wealthy deserved their wealth, and that a class of entrepreneurs might as well be created at random. This view is very different from Nietzsche’s position that the strong, like beasts of prey, cannot help being who they are, and that the elite in society were intrinsically powerful. Yet in a way, Hayek’s position is equally elitist, because it excuses the most absurd and even harmful behavior as socially necessary. The point is not a particularly useful one if your goal is to formulate definitions and contrast different thinkers’ work systematically, but it does help explain the pathologies of the wealthy.

Evolving Views on the Rule of Law

Yesterday, while considering the question of under what circumstances a person is justified in calling herself free, I laid out a worst-case scenario for the development of the digital surveillance state in which the intelligence apparatus convinces everyone that it is capable of monitoring their psychological vulnerabilities in detail, reading not only their thoughts, but also their feelings. Such a state might retain the formal features of a democracy, but it would be a totalitarian democracy, in which no one would enjoy liberty in any meaningful sense. It would not be necessary for the government to violate due process in any case to compel our obedience. There would be no disappearances, no expropriation, no show trials. Instead, agents of the state would control us by anticipating our desires and fears, and providing protections and rewards through other channels.

Such a state is certainly feasible, given existing technology. The only people who would be invisible to it would be those who never communicated except in person and via carrier pigeon. (So, in fairness, would be people who used end-to-end encryption, but while I’m hypothesizing, I don’t want to make additional assumptions about the possible limitations of future technology.) Even so, it probably wouldn’t matter if the state were actually capable of monitoring everyone. It would probably be enough if people believed that it was. In ordinary life, the feeling of being watched makes us change our behavior, even if really no one is paying us any attention.

Conversely, if clear rules are established describing under what circumstances a citizen’s communications can be monitored, and if the population has reason to believe that those rules are being followed, then the state’s power will be severely circumscribed, no matter its level of technological sophistication. The rule of law can shield certain areas of thought and conversation from the public eye, allowing individuals to experience true solitude and genuine intimacy — experiences that depend on the confidence that you are alone.

One of the extraordinary hopes I had at the beginning of the Obama administration was that the president might move the country and the world toward respect for the rule of law. I’d like to remind everyone of the existence of this extraordinary document, the National Security Strategy issued in May 2010. At that time, Obama wrote:

We are clear-eyed about the challenge of mobilizing collective action, and the shortfalls of our international system. But America has not succeeded by stepping outside the currents of international cooperation. We have succeeded by steering those currents in the direction of liberty and justice — so that nations thrive by meeting their responsibilities and face consequences when they don’t…
In all that we do, we will advocate for and advance the basic rights upon which our Nation was founded, and which peoples of every race and region have made their own. We promote these values by living them, including our commitment to the rule of law. We will strengthen international norms that protect these rights, and create space and support for those who resist repression.

Later, the document describes a goal of establishing a “rules-based system” of reward and punishment in “multilateral forums,” and pursuing U.S. interests within such forums and with respect for such a system. This was the right strategy at the time, and it remains so now. The rule of law is the supreme U.S. interest. Where it is respected abroad, foreign governments will be sympathetic to our other military and economic interests. A robust system of international law, one that would provide for swift and demonstrably legitimate responses to abuses, is the only system I can imagine that would be adequate to the challenges the next century will pose to the international order. Otherwise, responsible actors will be continually forced into belated, ineffectual, and ad hoc interventions in crises around the world.

Those who think such a system is too much to hope for fail to understand the degree to which the rule of law is a product of culture and of norms, not of institutions. It might be impossible to legislate the rule of law through the United Nations or any other forum, but it is just as difficult to legislate an end to corruption in a country like India. Instead, the goal of U.S. foreign policy should be to strengthen norms of international law and behavior by example. To be sure, there will always be bad actors, but legitimacy is not like a light switch. It is relative, and the more obviously a government’s behavior diverges from norms, the more difficult it will be for that government to persist.

For that reason, if the Obama administration did in fact decide to persuade European countries to force Bolivian President Evo Morales’s aircraft into an unscheduled landing in Vienna earlier this week, the administration made a poor decision. I am not entirely sure what the administration hopes to achieve by capturing Snowden, but it should be clear, based on the White House’s own explicit strategy, that fostering the rule of law and international norms of behavior is the greater priority.

The incident involving Morales’s plane, assuming all the facts have been reported, is an epitome of the administration’s evolving attitudes on the rule of law. Originally, Obama sought Snowden’s extradition strictly through legal channels. When that approach failed, the administration again revealed the shallowness of its commitment to legality.

Nowhere has this been clearer in the administration’s defense of PRISM, the program described in the documents Snowden gave to journalists. Congress explicitly denied funding for a similar program in 2004, but when the executive is granted power to operate in secret, the bureaucracy is able to act unilaterally and therefore outside the rule of law. The National Security Agency’s activities are not legal or illegal. They are extralegal.

I don’t believe this has to be the case. Ezra Klein wrote last week, “At a fundamental level, the tension between keeping secrets and enforcing democratic accountability can’t be resolved.” It may be true that the premises of democracy and intelligence work contradict each other, but intelligence work and the rule of law do not have to be in conflict. The Foreign Intelligence Surveillance Act seems to have successfully controlled the scope of the surveillance apparatus for several decades, and the act could be amended again to provide additional checks. An advocate could be appointed, a lawyer with a clearance who could review intelligence analysis and secretly argue certain cases on behalf of those who would never know that their rights had been violated. Congress could also give less discretion to analysts in Fort Meade by requiring them to demonstrate with a greater degree of confidence that an account belongs to a foreigner before viewing any other information about any messages sent from that account.

Finally, Congress could simply repeal Section 702 altogether, along with other amendments, to restore the system that existed previously, in which agents were required to seek a warrant in each case. It was not an ideal system, but it at least reassured most people that as long as they hadn’t done anything to arouse suspicion, no one would take the trouble to listen in on their conversations. The minimal check on the authority of federal agents kept surveillance within the bounds of the rule of law.

Whether the massive quantity of data available to the state through PRISM has been useful to law enforcement, or how it could ever possibly serve any legitimate purpose, remains unclear. Without intelligence identifying the owner of an account, it is hard to know how an analyst could make sense of the results of a query, and that intelligence would also allow the analyst to request a conventional roving wiretap.

To conclude, it appears unlikely that the agency acquired these new authorities for the sake of our security. Rather, they seem to exist primarily for the sake of private enrichment and personal aggrandizement.

Independence

When I woke up this morning, Aaron Copland’s “Fanfare for the Common Man” was coming out of the radio. The piece puts into music some of the ideas we have about who we are as Americans. It conveys a notion of liberty that perhaps exists only in art and literature, one that seems more and more untenable the more we know about economics and biology. Since this morning, I’ve been thinking about what liberty is, and what the signatories to the Declaration of Independence had in mind when they wrote that it is an inalienable right.

Even if there is no such thing as free will, democracy and the rule of law are still much better than dictatorship. There is such a thing as meaningful autonomy in a political sense. Michael Lynch offers a thought experiment to show why:

Imagine that I could telepathically read all your conscious and unconscious thoughts and feelings — I could know about them in as much detail as you know about them yourself — and further, that you could not, in any way, control my access. You don’t, in other words, share your thoughts with me; I take them. The power I would have over you would of course be immense. Not only could you not hide from me, I would know instantly a great amount about how the outside world affects you, what scares you, what makes you act in the ways you do. And that means I could not only know what you think, I could to a large extent control what you do…
From my perspective, the perspective of the knower — your existence as a distinct person would begin to shrink. Our relationship would be so lopsided that there might cease to be, at least to me, anything subjective about you. As I learn what reactions you will have to stimuli, why you do what you do, you will become like any other object to be manipulated. You would be, as we say, dehumanized.

It may be true that even in a free state, the aims we work toward are chosen for us by our genes, or the market, or God, or some other system much larger than any one of us. Still, we maintain our liberty in at least one sense as long as our own thoughts are opaque to others, as long as we do not become objects of human knowledge. In a totalitarian state, the state’s knowledge of its citizens’ affairs is enough to control them. They become manipulable, like a bacterium or a turbine.

It would be a mistake, needless to say, to think that there is a clear separation between free and totalitarian states. Last month, Beverly Gage described how the Federal Bureau of Investigation under J. Edgar Hoover controlled legislators by suggesting that the bureau knew their secrets:

The FBI compiled background information on members of Congress, with an eye to both past scandals and to political ideology. But the files were probably not as extensive or all-encompassing as people believed them to be. The point was that it didn’t matter: The belief alone was enough to keep most politicians in line, and to keep them voting yes on FBI appropriations.

The National Security Agency under Gen. Keith Alexander has the same power. As long as the agency’s protocols remain substantively secret, and as long as everyone keeps guessing about how much its analysts know, we should expect Alexander to coerce legislators into protecting his agenda.

You might object that the agency does not permit itself to maintain data on U.S. citizens if there isn’t useful information or evidence of a crime, a rule that might appear to prevent blackmail. Yet as we know from McClatchy’s reporting on the administration’s Insider Threat program, anything that a foreign government might use to blackmail or exploit someone in government is important counterintelligence, including debts, extramarital affairs, homosexuality, and mental illness. If that maxim applies to federal employees, it applies equally to lawmakers and ordinary citizens. That is, the country’s spies not only interested in whether we have committed a crime or are communicating with terrorists. They are interested in precisely the things that we really don’t want them to know about, the things that reveal the most about who we are. Reassurances from intelligence and administration officials should not necessarily give any of us confidence that their work does not involve our personal lives. If they are telling the truth, they aren’t doing their job.

Liberty in any sense is inconceivable in a state that keeps an artificial eye on the psychological vulnerabilities of its citizens. Even if they did enjoy universal suffrage and equal protection under the law in such a state, they would be profoundly vulnerable to manipulation. You would have to describe such liberties as merely procedural and nominal. Recall from Hoover’s example that it is isn’t necessary for the state to ever act on its knowledge. Fear and uncertainty are powerful enough without action.

I am not suggesting that we live in such a state today. Moreover, resisting surveillance at every opportunity will not prevent this country from becoming that state. Every government needs to be able to keep secrets, and the only way to protect what we think of as our liberty is to find a way to control and circumscribe governmental secrecy, not to try to eliminate it. That, however, is a problem for another post.

You Know that Creepy Feeling You Sometimes Get, Like Somebody’s Watching You?

From Ten Miles Square

I’ve felt that much of the commentary surrounding Edward Snowden and the National Security Agency has failed to capture just how radically these revelations may alter our society. A couple of weeks ago, I vaguely assumed that the average citizen had at least a modicum of privacy, but I can no longer justify that belief. The NSA’s programs represent a Panopticon state—where one has a well-founded belief that every single communication of any kind has a nontrivial chance of being monitored. It’s the kind of country that for most of modern history has existed only as a kind of academic bogeyman for the purposes of theoretical demonstration…

Continue reading at the Washington Monthly

Panopticism

A couple of years ago I was standing with a friend on a street corner in San Francisco, trying to hail a cab and talking about something very sensitive and personal. After we’d climbed into a cab and told the driver where to go, my friend continued the conversation. I couldn’t. I’m not used to riding in cabs, and I was worried about what the cabbie might be thinking. I found myself talking around the subject, avoiding saying directly what was on my mind.

When a person knows that an agent of the United States government might just happen to be listening in on any conversation she is having online, does she censor herself? Or, is the expectation of privacy for online conversations similar to that for a conversation in the back of a taxi? Does she expect that those men and women whose consummate professionalism President Obama so eloquently praised last week will, after they’ve read a few paragraphs of her conversation with her friend from Morocco and satisfied themselves that neither of them are terrorists, forget about all of it and move on with their day?

Obviously, the second is more likely. People are constantly broadcasting their thoughts through social media and sharing images of themselves and their friends with the public, and they’ve become acculturated to the fact that advertisers know all kinds of things about them–not just the name and the address, but the age, income, purchasing habits, and level of education associated with that name and address. Google’s algorithms know you better than some of your closest friends do. For that reason, you aren’t going to be particularly upset that National Security Agency personnel might be incidentally storing information about your online communications and even occasionally reading your messages or even clicking through your Facebook albums. You are going to feel that stopping terrorists is more important. The political forces supporting the bipartisan consensus that granted the intelligence community this authority originally will not weaken. There will be no public outrage in response to this week’s news. Nothing will change.

Yet these surveillance operations should be very disturbing to all of us. Privacy is not the right concept for explaining why, because you aren’t likely to be concerned enough about your own privacy to be disturbed by these kinds of violations of it, but there are other reasons for concern.

First, the authority that the agency has arrogated to itself will be abused. It is important not to indulge in paranoia and imagine that these abuses will be systematic. All the same, as long as law enforcement or the military or the administration is able to choose whose communications can be queried, it is inevitable that some of those decisions will be made for political reasons rather than for reasons of security. It isn’t clear from what’s been revealed so far what criteria, if any, analysts are obliged to fulfill to access information, but it isn’t hard to imagine operators manipulating queries to “incidentally” retrieve something from a U.S. citizen who is not dangerous, and of course, a future administration could change whatever criteria do exist.

Second, the United States is now as it always has been a city upon a hill, and it is stunning that President Obama seems unable to understand the consequences of the precedents he has set, even if he is confident in U.S. officials’ circumspection. Dissenters and activists living under oppressive regimes around the world must be in despair, because their governments are now able to monitor communications on the authority of secret arguments made in secret courts without the appearance of repression. Secrecy is sometimes unavoidable for law enforcement and for intelligence, but its presence in the judicial system must be limited because of the potential for abuse. There are only a few things more incompatible with the rule of law than secret law. As Aquinas wrote, laws ain’t laws if they ain’t promulgated. What this country ought to be doing–our responsibility to everyone who will live in this technological world we’ve created in the future–is establishing a precedent. Hannah Arendt called it the dream of the Soviet secret police: a map of every citizen and his or her relationships with every other citizen in the country that would make possible eliminating not only a dissenter, but everyone with a memory of him. We should be demonstrating what a free country needs to do to remain free now that that dream is no longer just a dream. That map is not only technologically feasible, but has apparently been achieved by our government through telephonic metadata.

Also, Obama was careful to explain on Friday that U.S. citizens’ online communications are not the targets of the National Security Agency’s surveillance, and while it is true that his administration does not have legal obligations to the citizens of other countries, that explanation can hardly have made foreigners feel better about the whole thing. It’s not a question of preserving the United States’ moral authority in the desperate hope of retaining diplomatic leverage or preventing radicalization. In this case, it is a question of maintaining a standard to which oppressive and dictatorial regimes can be held accountable, since advancing democracy and the rule of law has been the stated goal of this country’s foreign policy since the invasion of Iraq. Fortunately for the rest of the world, this is not the only country capable of maintaining that standard.

Finally, however, the concerns that led this country’s first citizens to add the Fourth Amendment to the Constitution were very different from these. There might have been a feeling that searches and seizures could be used to suppress political activity, but I doubt that was the primary purpose of the Amendment, and in any case, no one then could have conceived of the contemporary surveillance state. Rather, the Fourth embodies a set of ideas about what kind of society the inhabitants of the freshly sullied colonies wanted to create. A society in which some of the populace’s most personal information is accessible to the state is a qualitatively different society from the one they envisioned and from the one that existed here until quite recently.

In feudal Europe, everyone lived a rigidly defined social station that determined every detail of their existences. There was no private sphere and there was no public sphere. For reasons which it would take too long to even begin to discuss here, the feudal system began to dissolve. Previously, even alone, neither lord nor serf had been entirely free of the state, but now people experienced the radical freedom of true solitude. Representative democracy as we know it became conceivable–a society in which the interactions of many private citizens and their interests, values, and aspirations, formed and pursued in solitude, constitute a public sphere, in which each person’s right to participate is guaranteed by her freedom of conscience. Likewise, only on the assumption of some original, inviolable privacy is a social contract conceivable. Only a private citizen can delegate his authority to a representative, because only a private citizen has any authority to delegate, as only if people are assumed to be private is their consent necessary for the legitimacy of the government. Representative government allows them to return to their privacy. The Framers were, to some degree, Romantics, and they were also capitalists for approximately the same reason–they wanted citizens to enjoy meaningful autonomy, whether in the accumulation of property or of spiritual insight.

Privacy is not just a right. It is a premise. A robust public sphere requires a robust private sphere. A society lacking the second lacks the first–at least in the sense with which we are familiar, and what the old public sphere is transforming into is uncertain. That, however, might not be an objection to the current administration’s policies as much as it is a critique of the culture the Internet has created–a culture of transparency and nakedness, a culture that challenges our conviction in one of our most basic assumptions about liberty and the rule of law.

Red-Handed

A few weeks ago I wrote about Assata Shakur, born Joanne Chesimard, who was recently added to the Federal Bureau of Investigation’s list of most wanted terrorists. The questions I tried to answer in that post seem especially relevant after President Obama’s speech at National Defense University this week, so let me review them briefly. I argued essentially that the fact that Shakur’s faith is the same as the professed faith of most of the terrorists whom the United States has been hunting for the past twelve years is not a coincidence, even though their motivations and their specific beliefs are probably very different. Confronted with the deadly power of al-Qaida, the Bush administration relied on a concept familiar to Americans from previous decades: terrorism. The word recalled memories of a more uncertain time when politically motivated violence, including violence committed by Muslims, was quite common in this country, and summoned once again the outrage of the silent majority that elected President Reagan in a conservative reaction that continues to the present. In other words, the global War on Terror derived its appeal from Bush’s constituents’ fear, not so much of Islamic fundamentalists deploying a weapon of mass destruction here, but of returning to the turmoil of the period of the civil rights movement. The word “terrorist” allowed Americans to understand Osama bin Laden in the context of other terrorists whom they still remembered, such as Shakur. The bureau’s decision about her is best understood as a decision to remind the public that dealing with people like her has traditionally been a matter of law enforcement. The announcement was a move toward reclaiming operational authority from the military and the Central Intelligence Agency, the bureau’s age-old nemesis.

Historical continuity initially characterized the War on Terror. It was at first only the latest manifestation of the long-standing conservative attitude toward political violence. Of course, it quickly changed into something completely new and unprecedented because of neoconservative ideas about executive authority and foreign policy. That historical departure might have been justified by the nature of the threat from al-Qaida. I doubt it, although I’m willing to accept arguments in favor from friends who know much more about that organization than I do. In any case, to draw out a paradox that I did not sufficiently emphasize in the previous post, while a historically unique danger might have justified the Bush and Obama administrations’ responses to al-Qaida, the U.S. strategy might have been possible politically only because of the similarity between al-Qaida and previous groups, such as the Black Liberation Army.

Having established the historical context for Obama’s speech this week, I’d like to write about what I see as its most important moment:

In the 1980s, we lost Americans to terrorism at our embassy in Beirut, at our Marine barracks in Lebanon, on a cruise ship at sea, at a disco in Berlin, and on a Pan Am flight, Flight 103, over Lockerbie. In the 1990s, we lost Americans to terrorism at the World Trade Center, at our military facilities in Saudi Arabia, and at our embassy in Kenya.

The president argued that the current danger from Islamic fundamentalism, while real, is not historically unique. My sense is that only those few with a detailed knowledge of al-Qaida have ever thought that it is, so I doubt that his reasoning will be persuasive to a large audience. Indeed, what has permitted Obama and his predecessor do to what they’ve done until now has been nothing other than the widespread, unarticulated feeling that al-Qaida is not historically unique, but only a recrudescence of the seemingly omnipresent political instability of the twentieth century from which Americans have so long and so desperately wished for a reprieve.

Also, if Obama is right that Islamic fundamentalism today is analogous to Islamic fundamentalism of the last century, then his argument for the continued use of drones is very difficult to accept. He seemed to justify the drone war in terms of law enforcement, comparing drones to to the Special Weapons and Tactics units of local police forces:

When a U.S. citizen goes abroad to wage war against America and is actively plotting to kill U.S. citizens, and when neither the United States nor our partners are in a position to capture him before he carries out a plot, his citizenship should no more serve as a shield than a sniper shooting down on an innocent crowd should be protected from a S.W.A.T. team.

That’s who Anwar Awlaki was. He was continuously trying to kill people. He helped oversee the 2010 plot to detonate explosive devices on two U.S.-bound cargo planes. He was involved in planning to blow up an airliner in 2009. When Farouk Abdulmutallab, the Christmas Day bomber, went to Yemen in 2009, Awlaki hosted him, approved his suicide operation, helped him tape a martyrdom video to be shown after the attack, and his last instructions were to blow up the airplane when it was over American soil.

This defense of the killing of Awlaki is unconvincing. Awlaki was not at all comparable to an armed criminal posing an immediate danger to public safety. He might have been compared to the leader of a criminal organization who directs crimes committed by others, but of course, law enforcement in this country cannot kill such people outright for the sake of public safety.

Obama might counter that the problem confronting Detective McNulty and his fellow officers as they pursue Avon Barksdale in “The Wire” is that the police could apprehend Barksdale if necessary, but then they would not be able to indict him, while U.S. intelligence agents could have prosecuted Awlaki, but they could not have captured him. Accepting the president’s claim that apprehension was impossible in Awlaki’s case, it seems to me all the same that this counterargument would require the president to give up on any substantive due process, since it implies that Awlaki’s death was a punishment that could not otherwise be administered. “America does not take strikes to punish individuals,” he said. “We act against terrorists who pose a continuing and imminent threat to the American people.” The Baltimore police could make a similar argument for an extrajudicial killing in Barksdale’s case, replacing “terrorists” with “drug lords.”

On the law-enforcement analysis, the only justification for the president to order a drone strike, or, for that matter, for a police officer to fire his gun, is the unmistakable and immediate danger someone poses to the lives of those around him or her. Anything less, and the government is taking life without any guarantee that doing so is justified. Obama’s internal protocols for approving the strikes may be thorough, but he is setting a precedent that will be easy for his less scrupulous successors to abuse. Any attempt to involve the judicial branch by establishing some kind of secret court, as Obama suggested in his speech, would essentially be to institute secret trials on capital charges in absentia. Without a high standard — a much higher standard than the one Obama met in his account of Awlaki’s death — the drone war will remain contrary to our most important legal principles.

The policies Obama described for using drones on Thursday cannot be justified in terms of law enforcement. They are unjustifiable for foreign citizens in foreign territory as much as for U.S. citizens in this country, since an agent of law enforcement has even less authority abroad than here. There might be a colorable justification on the grounds of military necessity, but judging by Obama’s characterization of the threat, he doesn’t really believe there is, and neither do I.

The president made an exception for Pakistan, where he does believe drones are a military necessity:

In the Afghan war theater we must, and will continue to, support our troops until the transition is complete at the end of 2014. And that means we will continue to take strikes against high-value al-Qaida targets, but also against forces that are massing to support attacks on coalition forces.

But by the end of 2014 we will no longer have the same need for force protection, and the progress we have made against core al-Qaida will reduce the need for unmanned strikes.

Obama did not say that the United States can’t tell Pakistanis who “are massing to support attacks” — note the lawyerly imprecision of that phrase — from Pakistanis who are gathering for a jirga to settle a mining dispute, but he certainly knows that U.S. drones have killed both, and he deserves praise for insisting that the drone war in Pakistan and Yemen, which clearly exceeds the boundaries of ordinary law enforcement, should not become a precedent.

Why am I wasting so many paragraphs defending Awlaki, a man of such abhorrent words and ideas who is already dead anyway? For that matter, why be concerned about whether a few journalists have the freedom to maintain relationships with sources that are probably illegal to begin with? Why worry about whether the federal government is secretly reading your messages if you have nothing to hide?

Terrorism is the dominant concept of our time. It determines the attitude of the United States toward the rest of the world. In The Origins of Totalitarianism, Hannah Arendt wrote that the fact that something as patently inane as anti-Semitism could have caused the Second World War was “offensive.” She didn’t want to believe that the springs of history were so shallow, but forced herself to admit that they were. The situation is similar with terrorism. It is obviously too broad and weak a concept to be adequate to the diverse social and psychological pathologies of Islamic fundamentalism around the world. All the same, we had better be sure we understand the concept thoroughly, and that requires examining how our government uses it, even the apparently inconsequential details.

As I’ve argued, terrorism as a concept has much more to do with U.S. history than it does with the actual nature of contemporary Islamic fundamentalism. “Terrorism” is just our name for what they’re doing; they call it “jihad” or holy war, which is much more accurate. “Terrorism” is vague enough to be useless, as Glenn Greenwald demonstrated while writing about the death of Lee Rigby, a British soldier, in London on Wednesday. The United States has also directed violence at members of foreign militaries with the goal of delegitimizing a foreign government. That isn’t to defend the crime. It is just to point out that our categories are not rigorously defined.

After butchering Rigby, his attackers apparently stood in the street, their hands covered in blood, to talk with passerby about what they’d done and why. This was the most unnerving part of the story: the moment when reasonable people encountered two cold-blooded killers, by their own admission, and discovered that they weren’t unthinking brutes, but could give reasons for their actions. Evil isn’t a hissing, roaring monster from beneath the ocean. It speaks perfectly good English, and that is why it is so frightening. The only way to defeat it, however, is to understand its motivations, desires, and vulnerabilities, which involves listening carefully to what it has to say. That confrontation, which requires conviction and resolve, is only possible if we give up on the idea of terrorism and begin to understand Islamic fundamentalists on their own terms.

The Gnostics of Capitol Hill

There is a very provocative if ultimately somewhat incoherent piece of performance art in the most recent issue of National Affairs. It’s worth checking out if only because you don’t often see people turning essays into performance art, not these days, anyway.

George Weigel’s performance begins with a profound analysis of political liberalism’s origins in philosophical skepticism:

The drastic attenuation of these three great ideas — that there are truths built into the world, into human beings, and into human relationships; that these truths can be known by reason; and that knowledge of these truths is essential to living virtuously, which means living happily — has taken place over a very long period of time. A good argument can be made that one of the prime villains of the piece was the 14th-century philosopher William of Ockham, whose voluntarism shifted the locus of Western moral reflection from the intellect (which was to discover moral truths in reality) to the will (which could impose, or even invent, its own moral reality). The wedge that the 18th-century Scottish Enlightenment philosopher David Hume tried to drive between “is” and “ought” — an effort that accelerated Western philosophy’s lurch into subjectivism — was surely part of the problem, as was the failure of Immanuel Kant’s “categorical imperative” to meet Hume’s challenge and re-ground serious thought and moral judgment in something other than the insides of our heads…

That the politics of the Western democracies are often in gridlock is not simply because there are deeply different views of personal freedom and public goods in competition in public life; that has always been the case. The difference today is that there are no agreed-upon, reality-based reference points to which the contending parties can appeal in order to settle the argument about whose concept of the public good, and how it ought to be achieved, is the course to be followed.

Liberalism is many things, but one of its first premises is the the absolute autonomy and priority of the subject. The idea of a set of universal rights, first declared in the French Revolution, was a political manifestation of Kant’s system, in which subjectivity itself is the source of obligation and value. The result has been political structures that have protected individual freedom of expression and action and each person’s authority to determine for herself what good and bad are, along with economic systems that, following Jeremy Bentham and John Stuart Mill, seek only to maximize utility without making any assumptions about what’s useful. For 200 years, franchises have been expanded and economies have been rationalized, and in becoming more liberal, society has relied more and more on naked subjectivity as its ultimate moral criterion.

This development, however, has not been without its antinomies, one of which Weigel notes in the passage quoted above. Kant’s transcendental idealism was a response to the all-encompassing skepticism of Hume and others. He wanted to lay unshakeable foundations for knowledge in consciousness itself, and not in external experience or conventional wisdom, which are so vulnerable to doubt. The problem is that while Kant’s elevation of subjectivity has endured, his efforts at defeating doubt have not. He thought that the mental equipment we share as a species, such as the fact that we perceive things in time and space, would guarantee that we would all experience the same reality in the same way. That’s not how it works. Everyone experiences the world differently, and because of Kant’s exaltation of subjectivity, everyone feels justified in espousing her view of the facts without regard for anyone else’s. In practice, skepticism and even nihilism return with liberalism’s sanction — though paradoxically, they take the form of credulity, since very few people bother to develop their own beliefs about the world or about morality and simply believe what they hear.

As a result, this premise of the liberal project frustrates its goals. Liberalism has always envisioned a society governed according to rational and scientific inquiry whose legitimacy, you might argue, is ultimately based in the free and unbiased reasoning ability and observational capacity of each autonomous citizen. Currently, however, one group of citizens has decided to reject all empirical experience of the world and assert instead that the world is otherwise than it is, and liberalism’s resources for addressing this kind of obstinacy are inadequate. This group is conservative in their agenda, but in their method, they are simply carrying liberalism to its logical conclusion in solipsism. The result, as Weigel notes, is political paralysis.

This is where Weigel’s real artistic genius comes in. Julian Sanchez and Bruce Bartlett are conservative thinkers who have observed straightforwardly that the right has a problem with its relationship to reality, but Weigel is cleverer. Just when you’re expecting a sensible critique of the Republican Party’s agenda along those lines, he begins spouting whoppers:

If people are prepared to believe (or, even worse, if people are prepared to insist as a matter of fundamental civil rights) the unreal claim that marriage can encompass two men or two women, why should those same people not believe that America can continue to run trillion-dollar deficits with impunity? Or that the centralization and vast regulatory apparatus to be created by Obamacare will not inevitably lead to the rationing of end-of-life care? Or that the federal budget deficit has primarily to do with the wealthy not paying “their fair share”?

With this shocking reversal, Weigel forces his audience to face the uncomfortable truth that you can derive just about anything from the contradiction at the origin of the liberal project. I’m assuming, of course, that Weigel knows perfectly well how ridiculous he sounds and is doing all of this ironically. I guess it is remotely possible that he believes what he is writing, but that seems highly unlikely. (In any case, what I’m arguing here is that I am free to believe what I choose, and I might as well choose to believe what is both most plausible and most charitable.)

Most of Weigel’s charade concerns gay marriage, and the gist is that social issues are of paramount importance in politics, because they are where society has its epistemological debates. Again, Weigel proves his point by aping a self-righteous religious reactionary: if the Republican Party is to remain relevant, it must abandon views that are flatly contradicted by experience. Weigel compares the conservative tendency to ignore reality to the ancient heresy of Gnosticism:

Gnosticism is a protean cultural virus that has taken many forms over time. Wherever and whenever it has appeared, however, Gnosticism has sought the good outside of reality as we perceive it through the materials of this world. In the Gnostic view, human flourishing (to reach for a contemporary term) comes from the possession of a gnosis, a knowledge, which will lift men and women out of the grubbiness of the quotidian and into the purified realm of truth. Reality, in the Gnostic view, is antithetical to “the pursuit of happiness”; reality is to be rejected, and thereby overcome.

Weigel goes on, pretending to argue that the sexual revolution, the acknowledgement that gender is a cultural artifact, and the legalization of gay marriage are all contemporary examples of Gnosticism. Of course, he has to be taken in character in this section. What he’s really doing is pointing to the obvious wrongness of this argument. The true heresy would be to reject the simple reality of people’s diverse sexual preferences or of different cultures’ varying definitions of manhood and womanhood. Likewise, medical science does indeed allow women to control their anatomy, and to argue that this state of affairs is somehow a violation of a divine decree would be a heresy in religion’s own terms, divorcing God from reality and rendering Him impotent in it.

What’s true for the right is true for the left: epistemology matters. A gay friend once told me she didn’t really care whether she had the right to marry and that gay people had much greater obstacles to overcome, as did the country at large. Perhaps, but I still think the fight over gay marriage has been worth having, because it has been a way of forcing the right to confront the limits of its worldview more broadly.

I am thinking of Niall Ferguson’s remark about John Maynard Keynes’s sexuality this week. Here is a very good summary. Keynes challenged economic convention in the same way he challenged moral convention, and the right has the same squeamishness about loose monetary policy that it has about gay marriage. Will our society continue to insist on policies that reward thrift above all else in the same way that we have so far primarily recognized heterosexual marriages, referring to received notions of ethical action without examining whether those notions are justifiable or commensurate with reality? Or will we realize that reality is much more complicated and interesting than we thought previously, and that we will have to respond to it with more imagination?

Terrorism and Apple Pie

The Federal Bureau of Investigation added Assata Shakur, born Joanne Chesimard, to its list of its most wanted terrorists on Thursday. Shakur, a citizen of this country, was convicted in 1977 of murder in the first degree in the shooting of a New Jersey state trooper named Werner Foerster. She escaped from prison in 1979 and eventually fled to Cuba, where she is apparently living now. From The New York Times:

Ms. Chesimard was named to the list because she is “a supreme terror against the government” who continues to give speeches espousing revolution and terrorism against the United States, Aaron T. Ford, agent in charge of the F.B.I.’s Newark division, said at a news conference.

“She’s a danger to the American government,” he added.

Ford’s claim that a woman at least 60 years of age living in hiding in Cuba could possibly be a danger of any kind to the United States government is, on its face, absurd. Set aside for the moment the questions surrounding Shakur’s conviction, and assume that Shakur is indeed publicly advocating violence, although I have not been able to find any evidence that she is. Shakur is conceivably a danger to public safety, but in what sense could she pose a threat to the government of the United States, which is more than capable of defending itself?

This is the species of logic that has defined our foreign policy since September 11, 2001: a violent individual or group could pose an existential threat to constitutional government in this country, and capturing or killing these individuals must therefore be the government’s first priority; a terrorist is different from a criminal, and terrorism demands that we revise our view of our government’s place in society and its purpose in the world; if federal agents are in earnest about their assessment of Shakur, then the administration may legally kill her at a moment’s notice, whether she is living in Cuba or elsewhere, without further judicial procedure. Since this kind of reasoning is so persuasive to many people, I would like to examine it carefully.

Terrorism was not new to this country on September 11, 2001, and Thursday’s announcement is an opportunity to think about how the country made sense of that day’s destruction. I wonder if labeling al-Qaeda a terrorist organization helped us confront that pain by relating it to the political violence of an earlier era, that of the civil rights movement and the Vietnam War. That day is often seen as the boundary sharply separating the twentieth from the twenty-first centuries. Maybe the new conception of the government’s means and ends is actually a reversion to an older one, in which the state relied on extrajudicial surveillance and violence and a vague global conspiracy against the government seemed somehow omnipresent.

If so, President Bush’s global War on Terror was partly a culture war fought on behalf of public order and the American way of life. I don’t mean to suggest that there weren’t some who advocated a forceful response for more clearly articulated and more compelling reasons, such as the need to prevent jihadi organizations from acquiring fissile material and using it to make a dirty bomb, or the hope of instituting democracy abroad as a prophylactic against violence. (Whether U.S. interventions overseas have accomplished these goals is yet another question.) I do think, though, that explaining some of the excesses of the conflict may be easier when you view it in the historical context of domestic political radicalism. The country feared nothing – nothing – more than a return to the instability and pervasive fear of the years of the Vietnam War, when absolutely anything seemed possible. On this hypothesis, the conflict has been essentially reactionary, a later manifestation of the arguably racist and paranoid conservatism that animated the struggles of that earlier period.

To be clear, the injunction to wage holy war is contrary to civilization and humanity, and even if the goals of the Black Liberation Army, of which Shakur was a member, were more noble, I do not think they justified the organization’s methods. Indeed, you could argue that terrorism does require special attention from the state, even violations of otherwise inviolable rights, because terrorists place themselves outside of the social contract. In a liberal society, the freedom of expression is protected, and so is the freedom of each member to form his or her own convictions based on arguments and evidence. Terrorism replaces discourse with coercion and arguably poses a fundamental threat to society for that reason.

The problem with this analysis is that violence is not contrary to the tradition of American political discourse. Violence is central to it – and not simply because our country has a violent history. Rather, the individual’s sense of his or her right to use violence to achieve political ends derives from our society’s basic principles. Consider the following interpretation of the Second Amendment, which, if it is not the most rigorous defense of the right to bear arms, is at least representative:

The Constitution does not give us the right to bear arms. It says the right to bear arms shall not be infringed. We already have the right, because it doesn’t come from government – it comes from God.

Our founders understood this right is essential to the defense of liberty. It was a lesson they learned firsthand at the Battles of Lexington and Concord, 237 years ago this week. As David Hackett Fischer’s “Paul Revere’s Ride” recounts, in order to quench the beginnings of the American Revolution, British soldiers marched to confiscate gunpowder and other militia supplies, an act that they hoped would incapacitate the colonial rebels. Thus, it was in defense of the right to bear arms as a means of securing the other liberties that the first battle of the American Revolution was fought.

That is Newt Gingrich, former Speaker of the House, writing in Human Events. He argues that there is a universal human right to insurrection when other rights are violated by the state. James Porter, who will be the next president of the National Rifle Association, shares this view. On Friday, he said again that all citizens should learn to use firearms in case they need to protect themselves from tyranny. Some 44 percent of Republicans agree with him in principle. William Deresiewicz writes persuasively that the country’s attachment to guns comes from the memory of the Civil War and the hope of fighting it again.

In fairness, justifying the use of force this way is in one sense to follow the original principle of democratic government: that all citizens are competent to draw their own conclusions. Democracy is based on respect for those convictions and aims to allow individuals to follow the dictates of their consciences without hindrance. There will inevitably be those who feel, justifiably or not, that the current state of affairs is so reprehensible that violence is permissible.

As I pointed out above, however, the use of force outside of the constitutional process for political purposes is terrorism. Gingrich’s argument is no less than an endorsement of terrorism. You could object that the former speaker is thinking of the use of force only to protect certain cherished values, and you might even argue that these values are so important that you would use unconstitutional force to protect them. Yet in a constitutional government, all parties acknowledge that disagreement is inevitable and agree instead on single process by which disputes among people with competing values can be arbitrated to ensure peace and prosperity. The idea of a constitution is incompatible with the belief that some values ought to be defended with violence.

Porter’ exhortations are indistinguishable from those of the Black Liberation Army, whose members felt that their oppression justified violence. The only differences are that Porter lacks the courage of his convictions, and that Shakur’s confederates, whose rights were systematically violated because of their race, had a much stronger claim on violence than Porter does today or conceivably could have in the future. Nonetheless, both are claims that proponents of constitutional government must categorically reject.

If terrorism in one sense contradicts the principles of our social contract, in another sense, it is only the logical consequence of our democratic assumptions. I don’t think this contradiction between the absolute autonomy of the individual and the universality of the rule of law can be resolved easily. The state’s struggle with terrorism will continue for a long time.

The Federal Bureau of Investigation’s press conference this week served mainly to remind everyone that major acts of terrorism were committed – as it alleges – forty years ago. Cuba is unlikely to extradite Shakur, but as a piece of political theater, I think the bureau’s message was clear: terrorism is part of the American political experience, not a foreign import, and addressing it is not the work of the military or of intelligence agencies, but of domestic law enforcement and the agency that J. Edgar Hoover built. Terrorism, though, is much older than the bureau. If Porter can cite what he calls the War of Northern Aggression as precedent, the Black Liberation Army could refer to John Brown, that redoubtable terrorist of Harper’s Ferry. Jihad may be historically unique in other important ways, to be sure, but in thinking about how Americans understand terrorism and why the idea of it alone is so peculiarly troubling for us, the best approach may be the bureau’s: put everybody on the same list.

Where the Guns Come from

From Ten Miles Square:

Despite its frequent assertions that it represents the interests of law-abiding gun owners and dealers, the NRA has put a lot of time into defending precisely those people who do the most to arm criminals.

Lobbying by the association has left the Bureau of Alcohol, Firearms, Tobacco and Explosives almost powerless to enforce laws on gun purchases intended to prevent unscrupulous and negligent dealers from supplying the black market. Since police trace more than half of the guns they recover in investigating crimes to about 1 percent of the country’s dealers, gun-control advocates should ask whether to direct more of this moment’s widespread outrage toward making sure that the basic laws we already have are properly enforced.

For example, the owner of Bull’s Eye Shooter Supply in Tacoma, Wash. could not account for 160 firearms when the bureau audited him in 2000. It is, of course, extremely unlikely that 160 weapons could simply disappear from a gun store without the owner’s knowledge, but there was nothing the bureau could do. In 2002, when police traced the rifle used in the Beltway Sniper killing spree to Bull’s Eye, the owner claimed it had been stolen, though he hadn’t reported the theft of the $1,600 gun before…

Continue reading at the Washington Monthly