Edward Snowden and the American Condition

Law and lawyers can’t save us from the creeping police state – but politics might.

The law is the law! A 54 percent majority of Americans may approve of Edward Snowden’s sensational leak about the National Security Agency’s indiscriminate surveillance — but just as many think the whistleblower should be prosecuted. The penalty is not light: the three (so far) charges against Snowden carry a sentence up to 30 years. But rules are rules, and despite our national self-image as rebels who buck systems and distrust government, we are, as one recent study bears out, the most obedient people in the industrialized world. And the most legalistic. The law is the law!

This tautology ought to be unquestionable, axiomatic, airtight. Instead, it carries a whiff of desperation, as we see increasingly often that the law is not the law at all — especially in the broad realm of national security. Will James Clapper, National Intelligence Director, be prosecuted for perjuring himself before congress when he lied about the surveillance program? (Clapper answered elected officials’ questions in the “least untruthful manner” available to him, he cutely said.) How often does rape get prosecuted in the military, and when it does, how often does a conviction stick? Did the US Marine unit that slaughtered 24 civilians, execution-style, in Haditha, Iraq, face any real penalty?

When it comes to leaking classified material, we have plenty of statutes but no uniform rule applied impartially. Not a week goes by without some top-secret material being leaked by a high official to the New York Times or the Washington Post; Obama’s own former chief of staff William Daley bragged about his leaking prowess, while noting he is nothing compared to his predecessor, the “leaker-in-chief” Rahm Emanuel.

And yet the law will put on a stern face for Edward Snowden, just as it is has for Pfc. Bradley Manning, whose court-martial is currently underway after a three-year lag that included a spell of unlawful (as the court itself ruled) punitive isolation. The purely hypothetical damage to “national interests” in both of these cases apparently counts for more than the real, flesh-and-blood victims of unprosecuted and unpunished crimes like torture, rape, and the killing of civilians.

National security law can come down like a ton of bricks but just as often it is evanescent. “Capability but not the authority” was the leitmotiv of testimony at Bradley Manning’s court-martial in Fort Meade two weeks ago: on base in Iraq, Army Intelligence analysts flouted any number security protocols with the full knowledge of the chain-of-command: installing proscribed executable files and applications; accessing unauthorized zones of the server without any threat of discipline.

In 2008, we learned that NSA staffers were listening in on phone-sex between US Army officers in Iraq and folks back home. This was of course against the law, but legal barriers were hardly enough to stop officials from using the surveillance tech as they liked. Why on earth should we expect NSA employees now to respect legal fences in surveillance that are so easy to step over and are so unlikely to be enforced? From both Manning and Snowden we have learned how “national security” was actually practiced, abroad and at home, and the vivid accounts of these two twenty-somethings, neck-deep in war and surveillance, contrasts starkly with the official statements spun by PR flacks and heavily processed by lawyers.

Yet law remains our litmus test. Very often the mightiest anathema we can muster for something we oppose is that it’s “illegal” or, even worse, “unconstitutional.” One of the first reasons given for the Iraq War’s wrongness , if not the first reason, is it’s “illegality”; today, the mass surveillance is denounced by progressives (and even a few conservatives) as “unconstitutional.”

These condemnations pack all the fierce visceral impact of Ned Flanders trying to curse. Would the Iraq War have been redeemed by a permission slip from the UN Security Council? Were the sanctions against Iraq, which killed hundreds of thousands, okay because they were in conformance with the UN charter? And even if the NSA surveillance is ruled unconstitutional is this really the problem with it? And what if the courts determine, as is entirely possible, that the NSA surveillance is legally permissible? (Fourth Amendment jurisprudence is marvelously elastic, based as it is on circular reasoning that the “reasonable expectation of privacy” is every day diminished by new technologies and practices.) If the surveillance is legal, as Geoffrey Stone, former dean of University of Chicago Law school and an ACLU board member asserts, does that mean we have to like it?

No, and we urgently need to remind ourselves that “lawfulness” is never an indicator of wisdom, efficacy, prudence, or even justice. 99% of what led to the 2008 financial crash was perfectly legal, transactions working within the law according to legal incentives (and progressive calls to fix the financial system with more criminal prosecutions both misdiagnose and underestimate a systemic problem). Most of the horrors disclosed by Wikileaks — like the slaughter in the Apache helicopter video — are also legally permissible according to the laws of war as they actually exist.  In fact Wikileaks exposed precious few “war crimes,” strictly speaking , but a great many atrocities. It’s an ugly tribute to the power of law and lawyers  how many atrocities are legal.

Given the inadequacies of the legalist outlook, why then is our critical discourse so overrun with law-talk? De Tocqueville noted the intense legalism of the United States, a nation founded on legal documents, as well as the role of the bar as an American clerisy. Philosophy is not taught in high schools, and as a religiously heterogeneous nation we lack a shared theological language that might address our problems in moral terms. An expressly political vernacular, one that discusses policy in terms of interests and values more than law, is out of the question in a country as depoliticized as ours. How else could we talk but in legalese?

And today, most of what little resistance there is against imperial violence and domestic repression (always in the name of security) comes from lawyerly nonprofit groups. Staffed by the cream of elite law schools, rights groups like the ACLU, Human Rights Watch, Human Rights First and, a bit edgier, the Center for Constitutional Rights do a great deal of valuable, often brave work. But these organizations are no substitute for a political opposition, groups with political muscle and expressly political arguments.

This isn’t to blame these lawyerly rights groups for doing what they do: impact litigation, lobbying, report-writing — what else were they supposed to do? It is unfair to expect Human Rights First to act like an antiwar group or the ACLU to fight directly for social democracy when that is not what these outfits are equipped to do. Ideally these NGOs would serve as consiglieres to expressly political groups, groups that don’t have to worry about maintaining their 501(c)3 tax-exemption by staying mostly out of politics; groups that don’t have to worry about upsetting the liberal-minded gazillionaires who provide the bulk of any rights NGO’s budget.

But such political groups do not exist today, and our legally minded nonprofits cannot fill the gap. (Not that they would necessarily want to: many of our human rights law grandees are content to be instruments of Washington.) Politics exerts a gravitational pull on the law; back when there was a strong antiwar movement, the ACLU raised money for Daniel Ellsberg’s criminal defense. Today the group’s former president, Norman Dorsen, thunderously condemns Bradley Manning though there is not much in the way of legal distinction between the two megaleaks.

Our laws are not the miraculous embodiment of a transcendent morality. Legal philosopher Ronald Dworkin, who died earlier this year, was a giant and a genius but we would do well to take a long sabbatical from his high-minded work in favor of his positivist opponent, H. L. A. Hart, for whom laws are the rules of the state, nothing more and nothing less — an opinion that turns out to be widespread among non-lawyers. (As Martin Luther King said, “We should never forget that everything Adolf Hitler did in Germany was ‘legal’ and everything the [1956] Hungarian freedom fighters did in Hungary was ‘illegal.’”) The escape route from legalese is already well-charted by Pashukanis, by China Miéville, even Carl Schmitt, though his challenges are no longer the exclusive province of radicals critiquing liberalism and are fast being swallowed whole by the academic hard right. Anti-legalism is as old as law (with which is it subtly entwined), a rich tradition from Sophocles to St. Paul to moderns like Martti Koskenniemi, David Kennedy, Danilo Zolo. The solutions to most of our problems lie beyond the legal sphere.

Is there any legal hope for Snowden or Bradley Manning? Of course not: no courtroom miracle will save them; what they are up against are not so much abuses of the laws as the laws themselves. All legal systems have some form of pardoning mechanism, which recognize implicitly that law makes mistakes and can lag behind justice. For various reasons, conservative politicians are much more glad-handed with pardons than their center-left peers. (Cf. former Mississippi governor Haley Barbour’s commutation of nearly 200 sentences in his last week of office to the horror of both local and metropolitan opinion; see also Vaclav Klaus’s radically un-Kafkaesque amnesty for nearly one-third of the Czech Republic’s prisoners.) Obama however has been remarkably stingy with commutations and it is impossible to envision him or any other Democrat (or, for that matter, Republican) granting clemency in a national security case.

The law is not nothing, but it sure as hell isn’t everything. The NSA scandal shows that freedoms are far more than legal phenomena, and that any successful pushback against the creeping police state will have to be based more in politics than in law.