I blame Dick Cheney. He appears to be the criminal intelligence of this administration. He has the bright, hard look the men around Richard Nixon had, Erlichman, Haldeman, and the rest, the ones who believed that there are no limits on the things you can do in pursuit of a political goal. Rumsfeld has that look too. There is not a shade of difference between Rumsfeld and Cheney except that Rummy has a sense of humor. The president himself is like an eager puppy, straining to understand, being taught by these two men.
The rationale that in urgent times one can do anything "necessary" to survive, without regard to law or ethics, is old, trite, boring. If this were true as a generality, there would be many more incidents of cannibalism among people in lifeboats, who would kill and eat the weakest in order to survive. The fact that almost everyone refrains from devouring their least lucky shipmate makes sense in my world, but not in Dick Cheney's. This doctrine of necessity echoes tiredly throughout history; September 11 takes its place alongside other famous triggers such as the assassination of Archduke Ferdinand, the Reichstag fire, the Gulf of Tonkin incident.
As with so many of the excuses proffered by the powerful, there is much less to the doctrine of necessity than meets the eye. The rationale actually breaks down at every step in the analysis. "Necessary" most often translates to "convenient" for starters. If you and I are in a lifeboat and neither of us has eaten for days, at what point does it become "necessary" to the survival of one of use to dine on the other? The law says never. There are many things that promote our security that never become acceptable. Why in general should rules that are never waived for individuals become mere shadows or tatters for government? If it never becomes "necessary" for a landlord to torture a tenant to obtain the rent (no matter how needy the landlord or his family have become), why is it ever "necessary" for the U.S. to torture a suspected Al Qaeda terrorist?
The law is unequivocal that there are circumstances, quite a few actually, where we as private individuals have an obligation to die rather than do the "necessary". If you and I are being chased by wild dogs, and it is becoming evident you are the faster runner, I never acquire the right to trip you, stun you, ane leave you as a distraction for the dog pack. My rights in the situation extend to doing the best I personally can to survive, and then accepting my fate if you are the faster runner. Even if disabling you and leaving you for the ravening animals is my only means of survival, it is still murder. But are such laws only applicable to use as citizen-sheep? Should they routinely be suspended or ignored when the survival of entire nations is at stake? When if ever does a nation have an "obligation" to die, or at least to lose identity or cohesion, rather than do the "necessary"?
South Africa provides an interesting example. Founded on injustice and living on the backs of a subject people, the South African government and secret police for decades found it "necessary" to kill anyone perceived to threaten their nation. Eventually, in a remarkable, almost unique example of moral decision-making at the state level (the dissolution of the Soviet Union also has some points of similarity, but has a much larger economic component), South Africa chose to yield its identity, to allow itself to transform into something completely different, rather than continuing to commit "necessary" murders.
Even in circumstances where we break the law to promote our short term survival, there is another way to proceed which is entirely different than the Cheney methodology. If I resided in lawless New Orleans right after the Katrina disaster, and stole a boat to escape the waves or food when there was no-one there to sell it to me, I always have the choice of submitting myself to the sanction of the laws when they are back in force. I can hope that the law will be merciful and will dispense with punishing me because of the exigencies I faced. While cannibalism should never be excused, the theft of a boat may very well be, as it does not result in the death of another. Even if I am punished, I have accomplished two goals: I survived but I also have shown my respect for the law and done what I could to support its return after the huricane.
Dick Cheney is not Cincinnatus. He never plans to return to the status quo ante. The power he assumes is his permanently, so he represents the most dangerous kind of public figure there is. The administration has lied about its activities, and then sought every justification imaginable when caught, principally an expansive concept of presidential power that makes the laws seem like a convenience or even a luxury, a thing the president tolerates only when there is no danger. The profound disrespect for law promoted by this philosophy is obvious.
Given human nature, claims of necessity become bolder and are advanced in less and less dangerous circumstances, while the acts we commit, torture, kidnapping, spying, become more and more routine as the people committing them lose their moral bearings and become desensitized to them. Much of the domestic spying that has been revealed in recent weeks has to do with domestic groups that are very far from being Al Qaeda. The New York police, slipping out of the restrictions imposed for decades by the Handschu litigation, have returned to their 1970's methods of low level brutality and dirty tricks against groups like "radical" bicyclists and antiwar demonstrators at political conventions. PETA, Greenpeace and other similar organizations become the "new" Al Qaeda. Law enforcement bureaucrats who have no desire to learn Arabic and Islam and work in the field in dangerous conditions must manufacture work to justify their own raises and promotions. It is so much easier to spy on clean, safe middle class people than on terrorists. In the folkloric land of Helm, a man who had lost his watch in the dirty, dark part of town was found looking for it under the streetlamps in the town square. "the light is better here," he explained.
The reason I am not more frightened about all of this right now is (aside from the possibility that I am dangerously naive and placid as a cow) that the balance of power envisioned by the founders seems to have some life in it still. Despite the increasing conservative majority on the Supreme Court, the Nine, rather than holding the president's coat-tails, seem to have some conception of democracy, limitations on executive power, and the importance of protecting their own preregatives. Recurring Supreme Court decisions affirming the rights of the "disappeared" in Guantanamo and elsewhere to resort to the U.S. courts, and the administration's fascinating recent back-pedaling on several of its assertions of authority, lead me to think that the balance is being restored. Of immense symbolic importance was the government's recent transfer of accused homegrown terrorist Jose Padilla from the limbo of indefinite detention without charges to the more familiar and defined world of the American justice system.
Now that we have finished fighting over whether Roberts and Alito should be on the Supreme Court, I hope for an immediate and effective display of quiet strength by the court. It is time to perform a major yank of the leash on this administration.