“A novel form of government” is the phrase Hannah Arendt uses to describe totaltitarianism epitomized in the Soviet Union beginning with Lenin and reaching its apogee under Stalin. Totalitarianism is a new government idea under the sun, having its origins in the 20th C. During the Cold War, the United States positioned itself on the world stage as the arch-enemy of totaltitarianism.
Totalitarianism, as Arendt, the descripting political philosopher who defined it says, is a political institution that gains power by destroying all legal, social, and political traditions in a country.
Totalitarianism adapts an ideology of process (a never ending theoretical phenomenon) as its guiding principle rather than rules of law (a fixed set of guidelines based on known human behavior). On the surface, the Bush Administration’s ideology, or “ism,” appears to be Terrorism. As long as Bush and his henchmen can assert that terrorism is still threatening us, there can be no end to the so-called war against it.
My, how the times have changed. The Soviet Union is no more, and in the 21st C., we have met the New Enemy. It is us.
How did the USA become a modern near-totalitarian state? By a single act of terror on 9/11 that created the conditions for creeping authoritarianism. Where some saw tragedy, others saw opportunity.
As Jack M. Balkin (Knight Professor of Constitutional Law and the First Amendment Director, The Information Society Project at Yale Law School) characterizes the immediate aftermath of that date in his essay “Beware of Creeping Authoritarianism,” December 4, 2001:
(All emphasis mine)
In times of fear, authoritarian impulses are less constrained and people feel less able to complain about them. After all, no one wants to be thought unpatriotic when the country is in such grave danger. And when there is no check on government officials certain of their own rectitude, the temptation for them to act unilaterally and arbitrarily becomes irresistible.
Balkin describes how the post-9/11 political atmosphere is akin to the Cold War era.
Little by little, the basic elements of procedural fairness that keep democratic governments from acting arbitrarily are being chipped away. No apology is offered for these actions. Those who seize power always feel perfectly entitled to it. Instead, they blame their critics for failing to recognize the seriousness of the situation or for being soft on terrorism — in the past other critics were blamed for being soft on communism.
Similarly Arnedt schools us to understand that arbitrary power, unrestricted by law, wielded in the interest of the ruler and hostile to the interests of the ruled uses fear as its main tool to subjugate its citizens, and seeks to operate in secrecy. These are the hallmarks of tyranny.
Thus we have come to the present un-pretty paradox. A president who declares himself fully justified in using illegal electronic surveillance on the citizens of the country whose Constitution he supposedly upholds and at the same time seeks renewal of the infamous Patriot Act. On the one hand the Foreign Intelligence Surveillance Act (FISA)
. . .actually authorizes some forms of surveillance without FISA court approval order for up to one year, but such surveillance is subject to specific statutory limits, the most of important of which is that there must be “no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.”
<snip>
FISA further specifically makes it a crime to “engage in electronic surveillance under color of law except as authorized by statute.” Balkinization Blog
Unfortunately,
. . .the NSA is intercepting communications involving “U.S. persons” — citizens and lawful permanent resident aliens — without any judicial warrant or any approval from the FISA court. That is expressly prohibited by FISA (50 USC 1802(a)(1)(B)).
On the other hand, Bush scolds Congress for failing to reenact the Patriot Act, which he doesn’t seem to need anyway since he has the authority to do whatever nearly everything in the Patriot Act under Article II of the Constitution. Plus
Congress has already (in the Authorization to Use Military Force [in Iraq], AUMF) authorized the President not only to do whatever it takes to defeat Al Qaeda, but also to ignore any preexisitng legal restrictions.
So, why do Bush even need the Patriot Act?
Further, Professor Balkin rightly asks, “Why didn’t the NSA simply get approval from the FISA Court — which would have made these interceptions entirely legal?”
The press and the blogosphere have their theories. Kevin Bass, a FISA expert says
. . .the administration might have thought it did not have enough evidence to obtain a warrant. Bass, a Washington lawyer who worked on intelligence matters during the Carter administration, speculated that U.S. authorities might have seized a computer or a phone that was used by an Al Qaeda operative.
“The scuttlebutt is they were then using all the links or phone numbers they found,” Bass said. “It certainly sounds reasonable to say, ‘We are targeting people with links to Al Qaeda,’ but it may be just a list of phone numbers,” he said. “That probably wouldn’t satisfy the FISA court.” LA Times
John Aravosis & friends at Americablog posit another theory. The Bush Administration
. . .may be targeting US journalists and that may be why Bush never got it cleared by the court and is worried about it coming forward now.
President Bush himself offers us a hypothetical scenario that he wants to “save us from.”
“We know that a two-minute phone conversation between somebody linked to al Qaeda here and an operative overseas could lead directly to the loss of thousands of lives.” CNN
But I say it is a political move by the Bush Administration to replace what used to be this country’s representative democracy with a version of neocon totalitarianism, or at the very least, tyranny. It is a straightforward naked grab at Power for the sake of Power in order to perpetuate the self. A kind of DNA Imperative of the Far Right. It is an attempt to replace the idea of Constitutional government with the ideology of patriarchal Judeo-Christian Theocracy.
Having created a miasma of fear, having flogged it to death with color-coded terror alerts and oft-repeated references to 9/11, having disregarded law, having arrogance in abundance, President Bush executes audacious power grab after audacious power grab. In doing so he demonstrates his contempt for the Law, the Constitution, Congess, the American people, and world opinion.
[Crossposted at Daily Kos]
