September 30, 2006

"Thus the World Was Lost"

We are not gods, and we are not omniscient. We cannot foretell the future with certainty. Most often, cultural and political changes are terribly complex. It can be notoriously difficult to predict exactly where a trend will take us, and we can be mistaken. We do the best we can: if we wish to address certain issues seriously, we study history, and we read everything that might shed light on our concerns. We consult what the best thinkers of our time and of earlier times have said and written. We challenge everyone's assumptions, including most especially our own. That last is often very difficult. If we care enough, we do our best to disprove our own case. In that way, we find out how strong our case is, and where its weaknesses may lie.

Barring extraordinary circumstances, we cannot be certain that a particular development represents a critical turning point at the time it occurs. If we dare to say, "This is the moment the battle was lost," only future events will prove whether we were correct. We do the best we can, based on our understanding of how similar events have unfolded in the past, and in light of our understanding of the underlying principles in play. We can be wrong.

Before I wrote it, I had thought a great deal about the numerous issues and themes discussed in my lengthy essay about the Military Commissions Act, and what that Act means for our future. I have been writing about many of those issues for several years now, so I have been thinking about them for a long time. I have continued to reflect on them since I posted that essay, and I have read still more. Among other reading, I have visited several blog entries, and considered the remarks in the posts themselves and in the often lengthy comment threads. You might find them of interest as well: Kevin Drum, Mark Kleiman, The Editors, IOZ. There may well be others that are instructive; those are the ones I was aware of.

I am certain of several key aspects of the issues that have been raised, and I should clarify a couple of points. There is no question that the Military Commissions Act, given the language it now contains, grants -- in principle -- full dictatorial powers to the executive. As I explained in the earlier essay, the executive and certain entities it controls can designate anyone, including any American citizen, as an "unlawful enemy combatant." That person can then be imprisoned for the rest of his life, with no recourse whatsoever. Period.

That is absolute power over every single one of us. Absolute. Consider the word, and what it means. Your life is no longer yours. It is the executive's, to dispose of as he chooses. I must repeat an earlier point: it is most likely that this power will not be exercised to the full extent possible, or anything close to its full extent, any time soon. The exercise of that power will come, if it does, in stages. See Jim Henley's post on this point. Of course, the specifics may be very different, depending on many other events -- and depending on what particular individuals hold this fearsome power, and what their specific objectives are.

The critical point is what, in principle, the grant of power includes. As noted, the grant is absolute: it includes everything. As I have pointed out, the determination of the Bush administration to achieve absolute power has been indisputably clear since shortly after 9/11. And this is hardly the first time that I and others have noted that the mechanisms for a complete dictatorship have now been put in place.

In the various other blog posts linked above, there is great concern about where responsibility for this heinous bill lies. I will have more to say on this point when I return to my series, "On Evil, Guilt and Responsibility." For the moment, I offer these basic guidelines as to my own thoughts on this question. Primary responsibility -- and primary guilt -- lies with those who proposed and drafted this abomination, and with those who voted for it. It lies with the Bush administration, which desperately wanted this bill (since, among other things, it immunizes them for their barbarity and crimes), and with the Republicans in the House and Senate. That much is obvious.

But the responsibility and guilt do not end there, although the questions become more complicated. This bill did not concern the specifics of an agricultural subsidy, or particular modifications to the tax code. This bill concerned "the writ of habeas corpus [which] is the fundamental right for the political system originally envisioned by the founders of the United States." This bill concerned the ultimate foundation of individual liberty. In the most important and deepest sense, this bill was the ball game. Moreover, as detailed in the second half of my long essay, we have all been on notice for more than three years that this battle would arrive. We all had plenty of time to prepare for it, and to wage the necessary struggle -- necessary, that is, if we wished to ensure that the foundation of liberty would survive.

The Democrats in Congress had that same time to prepare. They did not. They passed the major work off to the three "maverick" Republican Senators, and hoped they would eradicate the worst that was in the bill. In the event -- as was entirely predictable -- the "uncompromising" Senators compromised on all the points that mattered. They gave the administration everything it wanted: they made all of us property of the executive, to be disposed of according to his whim. At the last minute, and on the last day, some Democrats gave speeches about the grave dangers contained in the bill. By then, it was far too late.

Given the very considerable lead time they had, the Democrats in Congress could have been educating their colleagues -- and all Americans -- about why habeas corpus is the foundation of our political system. They could have explained why, in the absence of habeas corpus, none of us is free -- and why our liberty would become only an illusion to be destroyed at any moment. The Democrats could have explained the momentous nature of this battle, and why the administration could not be allowed to succeed. They could have made certain that enough Democrats understood the issues and were committed to the fight -- and they could have at least ensured that the bill would not be passed in the manner it was: on a thoughtless, depicably hasty schedule, designed only for electoral purposes. By means of a filibuster or utilizing some other mechanism provided by their endless rules, the Democrats could have prevented passage of this bill prior to Congress's adjournment.

With proper preparation, and with the requisite understanding that freedom itself was imperiled, the Democrats could have achieved these aims. All of us would be forever in their debt. Surely liberty itself is worth such a battle, isn't it? But the Democrats did none of these things, so the bill passed. Thus, they share in the guilt and responsibility. The guilt and responsibility that accrues to the Democrats is not as great as that of the Republicans, but it is surely great enough. And when your freedom, and that of your family and friends, and that of every single one of us, is destroyed in this manner, how do you even go about measuring degrees of guilt? How do you say this failure is worse than that one? The bill passed. They all failed, Republicans and Democrats alike. In principle, torture was enshrined and liberty was destroyed.

But now we are told that, if and when Democrats take back Congress, they will erase this abominable blot from our nation's record. On what basis are people so certain of that? You hope they would do so, as do I, but you do not know that. On this point, I would be prepared to feel some confidence that Democratic majorities would do the right thing -- if only they were speaking out in opposition to the coming attack on Iran now. In the same way that the Democrats could have educated Americans about the profound dangers in this latest bill well before the battle was finally joined, they should have been educating Americans about the grave immorality and destructive insanity of an attack on Iran for months now, as I suggested at the conclusion of my essay, "Morality, Humanity and Civilization" (which is, I confess, one of my personal favorites; because of the issues it discusses, I implore you to read it). But they have not been speaking out in this manner at all. They merely echo the administration line that a nuclear Iran is "unthinkable" and cannot be "allowed," because we say so. In this manner, they only increase the likelihood of such an attack, rather than decrease it. After the catastrophe of Iraq, after the catastrophe of the Military Commissions Act, the Democrats still do not know how to fight these battles. It is not even clear they wish to. So on what basis are you so confident they will undo the monstrousness of this bill?

Such confidence that the Democrats will do the right thing also rests on what I consider to be a deeply dangerous naivete about the political dynamics in play. In the runup to the 2008 election, we will still be in Iraq. The "war on terror" will be a continuing enterprise. Given the Democrats' overpowering fear of being portrayed as "soft" on terrorism, would they dare undo this legislation in such a climate? I strongly doubt it; I am 99% certain they would not. And if the undoubtedly disastrous after-effects of an attack on Iran are playing out (see this post and the other entries linked there, including this one, for much more on this), the ongoing national hysteria would probably lead to further and still worse legislation and police state tactics, to which the Democrats will probably also accede.

I do not think it is confidence that the Democrats will do the right thing in the future, so much as it is a desperate hope. To be sure and as I said, I share that hope. The Republicans are loathsome and beyond redemption. The Democrats represent the only possible opposition -- but thus far, they have not provided any that matters. If they did, they could save us all.

Some argue that the Supreme Court will find the act, or at least certain key provisions, unconstitutional. That, too, is a hope, but I myself am far from certain that the Court will rule in such a manner. In any event, we do not know what the ultimate outcome will be as far as the judicial system is concerned.

So we are confronted with one stark certainty, opposed by fragile and uncertain future hopes. We know the Military Commissions Act destroys liberty at its very foundation. We do not know if this fatal injury will ever be ameliorated. The Act should have been stalled at the very least. It was not.

Destroying the very basis of liberty is not an event that occurs every day. Mark the date. Historians may well have cause to note it.

People often exhibit a visceral rejection of comparisons of our dire predicament to the rise of Nazi Germany. I will let Jacob Hornberger speak to that point, here:
Have you noticed how many Americans get upset over the comparisons that are increasingly being made between the United States and National Socialist Germany? After all, it’s not as though we’re living in a police state, right?

Well, if U.S. officials could somehow assure us that the U.S. government’s treatment of accused terrorists isn’t moving in the same direction in which Nazi Germany treated accused traitors, maybe that would help to put those comparisons to rest.
And here:
Now, I know that conservatives get upset when libertarians bring up Adolf Hitler in the context of the post-9/11 U.S. government assaults on civil liberties (Have you ever noticed that they never get upset when U.S. officials compare recalcitrant foreign rulers to Hitler?), but as I pointed out in my article "A Democratic Dictatorship," when the U.S. government is doing something that Hitler did, while that doesn’t automatically make it bad, it at least should raise some red flags.

As I pointed out in my article "How Hitler Became a Dictator," after the terrorist strike on the Reichstag, which enabled Hitler to secure the Enabling Act that temporarily suspended civil liberties in Germany, a German judge, while convicting one of the defendants, acquitted others, much to Hitler’s chagrin and disapproval. After all, they were obviously "terrorists." How dare that German judge find them not guilty?

So, Hitler decided to implement a new "independent" judicial system within Germany to try terrorists and traitors. Known as the "People’s Court," it became nothing more than a judicial lapdog to carry out prosecutions, convictions, and punishments in accordance with Hitler’s will. In fact, it was the infamous People’s Court that convicted German college students Hans and Sophie Scholl and their friends in the White Rose organization and quickly tried and executed them (3 days after their arrest) for treason for distributing antiwar and anti-government pamphlets.

The military tribunals that Bush and the Congress are setting up will supposedly be used only on foreigners, not on Americans accused of terrorism. The reason for that differentiation in treatment is political — the feds know that Americans are less likely to object to this new judicial system if Americans think that will be applied only to "other people," not to them.

How can such a system be reconciled with the legal principle of equal application of the law and the political principle of the rule of law? Answer: It cannot be.
Finally, I offer several excerpts from Milton Mayer's illuminating and frightening book, They Thought They Were Free: The Germans, 1933-45. I will not belabor the parallels,and I leave you free to draw what conclusions you will.

In Chapter 14, "Collective Shame," Mayer refers to the "excesses" of the "radical" Nazis, and discusses how some people attempted to oppose them:
""Yes," said my colleague, shaking his head, "the 'excesses' and the 'radicals.' We all opposed them, very quietly. So your two 'little men' thought they must join, as good men, good Germans, even as good Christians, and when enough of them did they would be able to change the party. They would 'bore from within.' 'Big men' told themselves that, too, in the usual sincerity that required them only to abandon one little principle after another, to throw away, little by little, all that was good. I was one of those men.

"You know," he went on, "when men who understand what is happening--the motion, that is, of history, not the reports of single events or developments--when such men do not object or protest, men who do not understand cannot be expected to. How many men would you say understand--in this sense--in America? And when, as the motion of history accelerates and those who don't understand are crazed by fear, as our people were, and made into a great 'patriotic' mob, will they understand then, when they did not before?

"We learned here--I say this freely--to give up trying to make them understand after, oh, the end of 1938, after the night of the synagogue burning and the things that followed it. Even before the war began, men who were teachers, men whose faith in teaching was their whole faith, gave up, seeing that there was no comprehension, no capacity left for comprehension, and the thing must go its course, taking first its victims, then its architects, and then the rest of us to destruction. ..."
A few pages later, Mayer tells the story of a chemical engineer, who brought Mayer "even closer to the heart of the matter...":
One day, when we had become very friendly, I said to him, "Tell me now--how was the world lost?"

"That," he said, "is easy to tell, much easier than you may suppose. The world was lost one day in 1935, here in Germany. It was I who lost it, and I will tell you how.

"I was employed in a defense plant (a war plant, of course, but they were always called defense plants). That was the year of the National Defense Law, the law of 'total conscription.' Under the law I was required to take the oath of fidelity. I said I would not; I opposed it in conscience. I was given twenty-four hours to 'think it over.' In those twenty-four hours I lost the world."
The engineer recounts how his refusal to take the oath would have meant the loss of his job, and that he would have had difficulty getting another, at least in his chosen field. But he tried "not to think" of himself or his family -- but of "the people to whom I might be of some help later on, if things got worse..."

He finally took the oath: "That day the world was lost, and it was I who lost it." But in fact, the engineer did save lives:
"For the sake of argument," he said, "I will agree that I saved many lives later on. Yes."

"Which you could not have done if you had refused to take the oath in 1935."


"And you still think that you should not have taken the oath."


"I don't understand," I said.

"Perhaps not," he said, "but you must not forget that you are an American. I mean that, really. Americans have never known anything like this this experience--in its entirety, all the way to the end. That is the point."

"You must explain," I said.

"Of course I must explain. First of all, there is the problem of the lesser evil. Taking the oath was not so evil as being unable to help my friends later on would have been. But the evil of the oath was certain and immediate, and the helping of my friends was in the future and therefore uncertain. I had to commit a positive evil, there and then, in the hope of a possible good later on. The good outweighed the evil; but the good was only a hope, the evil was a fact."
As their conversation continues, and to make the case for the engineer's decision to take the oath as strong as possible, they agree that "only" three million innocent people were slaughtered by the Nazis, while the engineer saved as many as a thousand lives. The engineer asks:
"And it would have been better to have saved all three million, instead of only a hundred, or a thousand?"

"Of course."

"There, then, is my point. If I had refused to take the oath of fidelity, I would have saved all three millions."

"You are joking," I said.


"You don't mean to tell me that your refusal would have overthrown the regime in 1935?"


"Or that others would have followed your example?"


"I don't understand."

"You are an American," he said again, smiling. "I will explain. There I was, in 1935, a perfect example of the kind of person who, with all his advantages in birth, in education, and in position, rules (or might easily rule) in any country. If I had refused to take the oath in 1935, it would have meant that thousands and thousands like me, all over Germany, were refusing to take it. Their refusal would have heartened millions. Thus the regime would have been overthrown, or, indeed, would never have come to power in the first place. The fact that I was not prepared to resist, in 1935, meant that all the thousands, hundreds of thousands, like me in Germany were also unprepared, and each one of these hundreds of thousands was, like me, a man of great influence or of great potential influence. Thus the world was lost."

"You are serious?" I said.

"Completely," he said. "These hundred lives I saved--or a thousand or ten as you will--what do they represent? A little something out of the whole terrible evil, when, if my faith had been strong enough in 1935, I could have prevented the whole evil."
So, take the time to be sure to understand the momentous nature of the battle. Speak out about it, wherever and as often as you can. Make clear to everyone you know what is at stake, and convince them to fight, too.

For the present, we have the certainty of the Military Commissions Act -- and the hope that we may still prevent its most ghastly eventualities. I pray that hope will be realized. The most terrible and terrifying thing of all, for those of you who will still be alive in forty or fifty years, will be to look back on this time, and to have to say, "Thus the world was lost" -- and to know that, because you did not do everything you could, you helped to lose it.