Perilous Seas

I'd like to blame the lack of posting on business, or writer's block, or harmonic convergence.

The sad fact is that I've had a post simmering on the hob here and just haven't had the heart to finish it.

Because it depresses me just to look at it, for what it says about my country.

The roux that started it is found here; the now-public Department of Justice "white paper" laying out the grounds for executive killing of U.S. citizens in league with "Al Qaeda or its associates."

Let me start off by saying this; this isn't "news" in the sense that it is nothing new and nothing startling. The bit about eliding the legal limits on extra-legal killing of citizens is, a bit, but as the position paper spells out there are precedents there for the recommended military actions. This is who we are, and where we've been, since 2001. All this memo does is recapitulate the current views of the executive agencies of the U.S. government regarding the "law of war" of the "War on Terror".

No, what I find so miserably bleak about this is not what it does but what it promises.

For a moment let's step away from the specific circumstances involved, the "non-international conflict" between the United States and whatever it may define as "Al Qaeda and its associates". Let's try and remove the self-fanned furnace of fear and suspicion that fuels the sorts of flights of conspiracy-theory and terror-fantasy and look at the specific acts that this paper justifies.

It posits that the U.S. government can, and should, deploy military force against an individual if

"...an “informed, high-level” official of the U.S. government may determine that the targeted American has been “recently” involved in “activities” posing a threat of a violent attack and “there is no evidence suggesting that he has renounced or abandoned such activities.”

Most commentators have remarked, and worried, about the implications of the vague definition of such terms as "informed, high-level" and "activities". The primary concerns of the critics seem to be about both the very limited sorts of oversight on who gets be the Chooser of the Slain and what "evidence" they need to have to make that choice.

I want to suggest that our concerns, as citizens of a republic that is technically a "government of laws not of men", should be broader and deeper.

Because I want to argue that this memo is simply another link in the chain, the chain we have forged link by link since 2001, that is dragging us closer to a place we may not want to go, a place where the fundamental relationship between the nation-state, our nation-state, and individual people are sharply redefined.

First, I would posit that since the codification of the concept of the modern nation-state a system of law and the status of legal authority differentiates how states deal with each other and how they deal with individuals, persons subject to their own authority as well as foreign nationals.

Relationships between nations are dominated by the reality that there is no higher authority that can bind or loose those nations.

"Higher" levels of organization which do exist, such as the United Nations, have no legal authority, and in practice lack the power of force majeur, to impose conditions or judgements on contending nations.

Rulers of those nations, therefore, often have (or see themselves as having, which comes to the same thing) no practical recourse outside of armed force when dealing with disputes with other nations. There is no functional way to impose legal constraints on a sovereign state outside those imposed by the state itself. Ideally those nations find some way short of force to solve their issues, but failing that force of arms has and presumably will remain the ultimate argument of sovereigns. So we say that "in times of war the law falls silent".

But this rule has a corollary; nations do not make war on individuals, even during wartime. They may kill or maim those individuals as part of that conflict. But AS individuals, when taken as individuals - even as spies - they are dealt with under law, albeit often the laws of war.

A nation-state, at least in theory and typically in practice, that has a disagreement with one of its own citizens will prosecute that conflict through its legal system. Such a system might be corrupt, or misused, or ineffective, or biased...but the very basis of civil society, the place beyond Hobbes' "war of all against all" is that the individual can - must - feel secure that the nation must pursue him or her through the forest of the law.

And this even applies to persons citizens of or subject to foreign nations.

During wartime captured enemies may be tried for violations of the laws of war, or as spies. During the Cold War both foreign nationals and U.S. citizens were tried and convicted and even executed under the law for their actions.

Such citizens may be pursued through the laws of their home country, or may be extradited (or their extradition pursued) to face the rigors of the law of the pursuing nation.

But they remain, as individuals, within the boundaries of the law. Not before this time has the U.S. attempted to deal with individuals or groups of individuals as it has with other nations, arguing that no law exists, that such people should be attacked as a nation may be attacked because there is no alternative.

What I want to suggest that this memo should remind us, and warn us, of the deep, dark, dangerous waters we have ventured out upon with the passage of the 2001 Authorization to Use Military Force that give the President of the United States the authority "...to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

Because, as the DOJ paper merely echoes, this is a revolutionary change in the way the United States defines war, nations, and individuals.

By making "organizations" and "persons" subject to military force this law gives the Executive the power to, in effect, define anyone as an enemy of the state, and as such unprotected by the traditional measures that have shielded individuals from the monstrous power of the modern industrial nation.

And - so long as this law remains in force - there is no legal recourse for any of us who are so defined.

Worse; given the veil of security around the entire process of collecting "evidence", of determining what are "future acts of terrorism", of what constitutes "aiding terrorists" it is entirely likely that an individual's first intimation that he or she was a terrorist would be the arrival of a missile through the living-room window.

We have all read of the recent fulminations of those Americans who are beyond incensed by what they see as the U.S. government's frightful plan to violate their rights under the Second Amendment. Groups, often angry groups, have rallied, protested, are even now speaking out in strident tones at the dreadful spectre of the loss of individual liberty inherent in the proposals now debated in various public fora.

But this...this vast and restless expanse of unlimited power, this immense, lethal sea-change in the relationship between the individual, whether foreign or citizen, and the U.S. government...remains there in public view largely not just unfought but unexamined. The broader implications - implications that frighten me when I consider the possibility that actions that I might take, say, to protest some act of my government or its allies might place me beyond all legal safety into that Hobbesean bourne from which few travelers may hope to return safely - are taken simply as an accomplished fact, the new reality of our world, the fixed bounds of the power of our nation and the settled relations between it and us.

I know this, and yet, like most of us I pass through the days without thinking about it, like a sailor who sails calm seas and gentle breezes, never considering what might happen if the winds began to rise and the sea turn rough. It is only when I am forced to contemplate the perils of the deep waters charted by such documents as this one that I am fearful of the storms we may be brewing for ourselves.

And, of course, these are the wastes to which these storms will drive you; from Charles Pierce's observations on the Brennan hearings today:

"It was most clear when Senator Ron Wyden of Oregon, a persistent critic of the administration's drone program, asked Brennan point-blank whether the president could order a drone strike on an American citizen inside the United States and Brennan didn't — or couldn't — give him an answer. What evidence, Wyden asked, does the president need to engage a drone strike? And could that power be used inside the United States?

"I have been a string proponent of being as open as possible," Brennan answered. "I believe we should optimize transparency and optimize secrecy and national security concerns. We can do both. The Office Of Legal Counsel advice established the boundaries, and we don't operate at those boundaries."

The man whom the administration has put up to head the CIA would not say whether or not the president of the United States has the power to order the extrajudicial killing of a United States citizen within the borders of the United States. (And a thousand heads on conspiracy websites explode.) And the hearing, remarkably, went on as though nothing untoward had happened.

He also couldn't answer straight out whether waterboarding is torture. He hid behind legalities as Carl Levin fumed. "I am not a lawyer," Brennan kept saying. People kept congratulating him for the blunt, straight answers he was giving. It was like watching an exotic tribe worship in its native tongue. This was not America as it would recognize itself. This was the worship of a different god."

And not, needless to add, a god of the bright shallows and clear skies, but a deity of an entirely different, and frightening, ocean.

Hispanics in your backyard at 3 a.m.

Let's get this straight up front: George Will is a curmudgeonly old stick who has managed to lose whatever common sense and humanity he ever had toadying to the power brokers in today's GOP. He's become Rush Limbaugh in a tweed jacket.

Still, the man is what passes for an "intellectual" of the Right. I can only assume that this is the only reason that today's Oregonian ("We're the Worst Newspaper In the World But We're The Only Newspaper In Portland!") was willing to front up his appalling screed on the Arizona "Papieren, bitte!" immigration law.

As usual, Will takes his little conservative sawed-off shotgun of Deep Conservative Thinking, aims it at the Godless Lib'ruls, and blows off his own foot. And, no, I'm not going to link to the sunovabitch. Google "George Will" and "Arizona immigration" and you'll find his worthless ass.

Specifically what he does is he manages to completely miss the whole point of those of us who find the new law so frigging stupid.

It doesn't have anything to do with racism. Or fascism. Or anti-Mexican prejudice. Or the damn Tea Party idiots and what they do or don't believe is true.

Nope. It's in the process that's stated in S.B. 1070 in these words: "For any lawful contact made by a low enforcement official or agency...where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a resonable attempt shall be made, when practical, to determine the immigration status of that individual."

"Where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States..."

Do you see the problem here?

Let's say that I am Canadian. I slipped across the border into Oregon, applied for a state ID (which in my state does not require proof of citizenship). I have a job, a house, am in all ways indistinguishable from someone born in Portland or Gresham except that I'm not a legal U.S. citizen.

How is a Maricopa sheriff's deputy going to know that?

Should I wear a Canucks jersey? Go around saying "eh?" a lot? Wear snowshoes in Tempe and run gallumphing away when the county cruiser drives by?

Let's cut through the bullshit being spouted about this and man up to the fact that there are only two ways to enforce this law:

1. Target groups or individuals who are "likely" to be in the U.S. illegally.

This is clearly what the law intends. It is designed to smoke out Latinos; Mexicans, Salvadorians, Hondurans, Guatemalans, who are in the country without their papers. Will's column admits as much. He describes it as a "cry for help" because the feds have failed to control passage through our southern border. In the process he also makes the specious claim that Democrats and liberals who object to this are only doing so to win Hispanic votes, but, nevermind, it's George Will. Will makes the assertion that this is merely federalism at work, and that we who know Hispanics only as people with leafblowers in our front yards at noon - rather than in our backyards at 3 a.m. - need to get over it and let Arizonans get on with the job.

(Let me also observe the nasty implicit racisim in the notion that because the Arizonans who like this law are more "familiar" with brown people they have more reason to suspect that many of them are criminals. But, nevermind, it's George Will.)

If this is the intent - which it is - the law is clearly both wrong in intent and illegal in practice. If it becomes obvious that Arizona lawmen are stopping hispanic-looking people and asking for their papers the disparity and prejudicial intent of the law will be legally unavoidable. When the first Hispanic U.S. citizen unable to produce the appropriate papers is arrested (and at least one will be - the Border Patrol and the USCIS, charged with enforcing immigration law, do this all the time) the violent and debilitating payout of taxpayer funds in lawsuits will begin. How many deputies and librarians will Arizona counties have to lay off before realizing that this is a mug's game?

2. Begin asking random individuals for their proof of citizenship.

Game over. The "Papers, please!" chestnut is the oldest shorthand for dictatorship we know. When and if this happens, Arizona will have officially become the rubber bobo head for all the dumb nativist beliefs spouted everywhere in the U.S. And yes, I'm looking mostly at you, conservatives. You've embraced this tarbaby all on your ownselves.

More to the point, none of this really has anything to do with dealing with the problem of controlling our southern border and why it is so difficult.

I have no doubt that this law has something to do with hating on some Mexicans and something to with the a certain type of person's approach to a problem being to find the biggest stick possible and beat on it. But that's not the problem.

One problem is that this law is an unenforcibly bad law; it requires Arizona cops to choose between racism and authoritarianism. It's said that hard cases make bad law. Well, bad law makes for hard cases, and this one is going to be as bad as can be. But that's not the problem, either.

The problem is that this law is a symptom. The problem is that this is a symptom of the kind of bad, stupid, things that people do when they have no patience and no intelligence to come up with a complex solution to a complex problem. The problem is that this law isn't all that much different than doing bad, stupid things like launching land wars and occupying lands in central Asia in retaliation for an act of civilian criminality by a handful of raggedy-ass guerillas. It's not all that much different from doing bad, stupid things like passing legislation that let slicky-boys run financial Ponzi schemes and then refusing to change anything when their greed and dumb stupidity impoverish others.

Back in June of 2007 I talked a lot about this. About how the "illegal immigration" problem isn't really an "illegal immigration" problem but a multi-car pileup of social, economic and political ills in Central America, economic imbalance across the Border, pig-stupid U.S. drug and labor laws, wishful thinking and reality-avoidance on all sides wrapped up in the bone-deep simplicity of the sort of people like Arizona's governor and her fellow thumb-hammerers in the state legislature. About how this does nothing more than punish people desperate to help themselves and their families while doing nothing, less than nothing, about the problems and structural instability that brought them there.

I have no hope that the sort of people in Arizona who thought this law would work will suddenly get smarter. In fact, I have little hope at all that my nation as a whole can avoid the long slide into magical thinking and stupid answers to difficult questions that this law represents. All I can do is repeat to Governor Brewer and the idiotic legislators of Arizona now what I said then:

"The real issue - the one Which Dare Not Speak Its Name - is that the institutional poverty, misgovernance and social maladjustment of most Latin American countries is so profound and so destructive that to address it would take every penny that the U.S. has spent on poorly planned foreign adventures and more. Much more.

So instead we get this idiotic argument that all we need to do is fence these little heatherns out and everything wil be Good. God will once again be White and in His Heaven, the food will magically get harvested, processed, cooked and served by Real Amurikans (actual Citizens) who will suddenly, magically, want to work for the pittance we want to pay for these jobs to prevent our food, clothing and service costs from reflecting what it would cost to pay humans actually living wages to do these things.

As Hadrian himself might have said: Nam tua res agitur, paries cum proximus ardet.

It is your business when your neighbour's house is on fire."

Hadrian used stone to build his wall and try and keep the Pictish wetbacks out. It was a warlike act and as such it worked for a time. But eventually the pressure from without and the rot from within knocked the rocks down.

I have no idea of what it means that the only rocks involved here are inside people like Jan Brewer's and Russel Pearce's and George Will's heads.