Trusting the Government

by Jonathan Wallace

Sometime this year, the Supreme Court will consider the appeal of Jose Padilla. Padilla was an American citizen from Chicago who converted to Islam in prison. He travelled to Afghanistan, hooked up with Al Quaeda, supposedly received the mission of casing the United States for a site to set off a dirty bomb (conventional explosives dispersing radioactivity) and was arrested upon his return to a U.S. airport. For about two years now, he has been in military custody without access to an attorney or any charges against him, one of several American citizens being held as "unlawful combatants" by the U.S. military. The Second Circuit Court of Appeals recently held that Padilla was being illegally detained, and the Supreme Court will decide if it agrees or not.

While many, perhaps most, Americans seem to feel that dangerous times justify quite extreme measures, the critical issue which has been forgotten is that of the extent to which it is appropriate for us to trust the government. If the military can hold a U.S. citizen without subjecting itself to habeas corpus or any other legal process to determine the validity of its actions, the government is asking us for absolute trust. Why couldn't the government arrest the barber, cop, stockbroker, or restauraunt owner who lives next door to you, and announce only that it is holding him on secret evidence of treason, which it will not disclose? If you respond that this could never happen, because Frank next door is American and a regular guy (also not Hispanic, not a gang member, not a convert to Islam), what you are really saying is: "I trust the government absolutely to continue to make a distinction between Jose Padilla and Frank." Trust is the operative word, the verb which gives the sentence its meaning.

As you learned in civics class in high school, our entire system is built on the limitation of governmental power, on checks and balances. Although your teacher probably never used the word "trust", checks and balances and limitations wouldn't be necessary if we had absolute trust in government power. In fact, distrust of government is the cornerstone of our system.

John Locke, in his Second Treatise of Government (1690), so influential on the American Founders, has this to say about separation of powers:

And because it may be too great a temptation to human frailty, apt to grasp at power, for the same persons who have the power of making laws to have also in their hands the power to execute them, whereby they may exempt themselves from obedience to the laws they make, and suit the law, both in its making and execution, to their own private advantage, and thereby come to have a distinct interest from the rest of the community contrary to the end of society and government....

In 1720, the anonymous Cato published, in guarded, amusing language, his letter, "On the unhappy state of despotick Princes", in which he compared the realm of absolute power to that of checks and balances:

Thrice happy is that people, where the constitution is so poised and tempered, and the administration so disposed and divided into proper channels, that the passions and infirmities of the prince cannot enter into the measures of his government....

In Common Sense (1776), his elegant and influential argument to the American colonists that the time had come to separate from England, Thomas Paine argued that the government of Britain was not effectively one of checks and balances, though it claimed to be: "To say that the constitution of England is a union of three powers reciprocally checking each other, is farcical, either the words have no meaning, or they are flat contradictions." He makes the interesting argument that kings are not equipped to exercise absolute judgment because, by their nature, they are insulated from the affairs of the world, an argument which seems to apply equally to presidents (remember Bush Sr. marvelling over the bar code scanner in the grocery store):

There is something exceedingly ridiculous in the composition of monarchy; it first excludes a man from the means of information, yet empowers him to act in cases where the highest judgment is required. The state of a king shuts him from the world, yet the business of a king requires him to know it thoroughly; wherefore the different parts, unnaturally opposing and destroying one another, prove the whole character to be absurd and useless.

He asks trenchantly: "How came the king by a power which the people are afraid to trust, and always obliged to check?" Such power, he concludes, can only be human-granted, not divine: "neither can any power, which needs checking, be from God." But if it is human-granted than it can be revoked or supervised by humans.

Substantial attention is given separation of powers in the Federalist. James Madison wrote in no. 47:

The accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self-appointed, or elective, may justly be pronouned the very definition of tyranny.

He cites Montesquiou, whom he regards as being the great progenitor of the concept of separation of powers:

Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary controul, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.

He concludes in Federalist 51 that the government's "several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places."

Alexis DeTocqueville, the observer of American democracy, whose insights and predictions continue to be eerily accurate more than 150 years after he published them, concluded Democracy in America with a chapter about the dangers of despotism in the United States. He begins with the insight, counter-intuitive to us today, that the despots of old were, though very violent, restrained by comparison to what the American government would be if it went bad.

It is evident that in the time of the Caesars, the diverse peoples living in the world of the Romans had still preserved their separate customs and cultures; although all submitted to the same monarch, most of the provinces were separately administered; they were full of strong and active city governments, and though the rule of the entire empire was concentrated in the hands of a single emperor, who was always, whenever he needed to be, the arbiter of all things, the details of social life and of individual existence ordinarily evaded his control.

By contrast, "if despotism is established in today's democratic nations, it will have a different character: it will be more extensive and gentler, and it will degrade men without tormenting them." DeTocqueville had elsewhere complained of the sameness of belief in America, where peer pressure achieves what government never could, reducing people to a complacent sharing of the same unchallenged beliefs. He believed that it was just a small step from there to the complete abandonment of freedom in favor of a paternalistic dictatorship, in which everyone devotes his life to the pursuit of individual and mundane pleasure. People, he said, are "incessantly worked over by two conflicting passions: they feel the need to be managed and the desire to remain free." He painted a Brave New World-like image of a possible future:

Above them arches an immense, guardian-like power, which takes sole charge of assuring their enjoyment of life and watching over their lives. This power is absolute, detailed, regular, all-seeing and gentle. It would resemble a father's care, if, like a father, it had the goal of preparing children to become adults, but, on the contrary, it only seeks to make them irrevocably and permanently infants; it wants its citizens to take pleasure in life, so long as they do not think of anything but pleasure. It works willingly for their happiness; but it wants to be the exclusive agent of such happiness, and the sole arbiter; it provides for their security, foresees and takes care of their needs, facilitates their pleasures, takes care of their most important business, directs their efforts, determines their inheritances, and divides their assets among the heirs; how can it not take from them entirely the difficulty of thinking and the pain of living?

The dystopia envisioned by DeTocqueville results from excessive trust of government, the loss of checks and balances, and the consensual infantilization of the people.

The Bush administration could have submitted its actions to the jurisdiction of the courts, arguing that its detention of Jose Padilla was legal under American and international law. Instead, it has argued that the courts have no jurisdiction to determine the rights or status of Padilla and the other "illegal combatants", American or foreign. By so arguing, the government sets itself up as legislature (determining the rules of such detention), judiciary (determining the guilt or innocence of those whom it chooses to try in military tribunals, holding the rest indefinitely without trial), and executive (arresting, holding and disposing of the prisoners). While it carries on this arrogant, unsupervised activity, the message to the American public at large is: "Be good children, and trust us." But that is exactly what we cannot do, if we are listening to the architects of the system of which George W. Bush is just the latest in a series of small, all-too-human caretakers.