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Tuesday, March 18

Ripped from the pages of the Ed Snowden Dossier:  The Nazification of American Liberalism

Somewhere in a Remote, Wild Place

Why there? Because these stories always happen in such places. And there must have been a trusty Native bearer -- why, because there's always a trusty Native bearer in the story; in this case probably a graduate student or untenured professor who after the requisite number of prostrations said something like, 'Effendi, not a good idea to bungee jump from this height without a bungee cord.  Especially not a good idea when heathen Trotskyists challenge you to jump into their lands.'

Any such advice would have been wise to follow. But to call him a Brown Shirt -- he of all people!  Did he not have Liberal credentials piled high over a span of decades?  Did not readers at Huffington Post, the New York Times and Washington Post seek his guidance on the way a Liberal should think about legal matters?  And had he not already distinguished himself as a critic of the NSA? 

He'd made a simple, straightforward point: you couldn't let private citizens play vigilante and turn the public forum into a kangaroo court to put a government agency on trial. The point held even if any of the NSA surveillance programs revealed by Edward Snowden turned out to be illegal. So to make a mountain of this molehill -- the American Trotskyists were never tightly wrapped to begin with. The calendar was always 1932.  A Stalinist lurked under every bed in America and a Nazi in every closet, ready to spring on the clueless American voter.

And it wasn't as if he'd be landing in the jungles of Borneo. What were they going to do?  Put on war paint and shoot copies of Das Kapital at him?  Besides, he was from Chicago and in Chicago there are rules.  First rule: Never back down from a fight.

And so on June 19, 2013, Geoffrey R. Stone, constitutional law scholar, Dean Emeritus and Edward H. Levi Distinguished Service Professor at the University of Chicago Law School, broke into a run, yelled "Geronimo!" and jumped into the land of the heathen Trotskyists. 
 
Earlier

On June 14, 2013, from a bunker at the World Socialist Web Site, American Trotskyists David North and Eric London launched a fusillade at the American Liberal establishment. They took special aim at arguments that Liberal commentators on legal matters, attorney Jeffrey Toobin and law professor Geoffrey R. Stone, had put forward in the attempt to discredit Edward Snowden's rationale for making classified documents public. 

Toobin, however, was a mere pundit who held forth at CNN and The New Yorker.  North and London saved their heavy ordnance for Professor Stone and the narrative he constructed on June 10 -- the day after Snowden had been introduced to the public -- to help the politically liberal Huffington Post's readers understand Snowden's actions.  He expanded on the narrative during a June 12 debate at Democracy Now!

The gist was that Snowden, in acting on his own against the legally elected and appointed government of the United States, was nothing more than a criminal who'd defied the will of the American people. 

North and London's response was almost completely free of Trotskyist cant if you don't count the last part about the rich and privileged; they were addressing the widest possible audience.

In plain language they charged that Stone's narrative conflated the principles upholding the American republic with its governing apparatus.
 
For good measure they fired off quotes from a history of the Nazi regime to get across that the narrative was evocative of the regime's concept of justice and rationale for punishing German civil servants whose actions contradicted the Führer's wishes. 

And they cited earlier statements by Stone to back their claim that in condemning Snowden's actions he'd reversed his position:
Just a decade ago, in 2004, Professor Stone wrote a book entitled Perilous Times: Free Speech in War Time from the Sedition Act of 1798 to the War on Terror. This work provided a historical account of wartime attacks on democratic rights by American governments. Discussing his book in a television interview, Stone reviewed the impact of the 1798 Sedition Act and warned:

“One of the important lessons is that if American citizens want to have the freedoms that are guaranteed to them, they cannot sit back passively and allow elected officials and judges to protect their rights for them. It’s very important for the American people to recognize that if they want their freedoms -- want their liberties -- they have to take responsibility for preserving them in these times.” The interview can be viewed here.
Professor Stone is singing a very different tune today. Precisely because Snowden did not “sit back passively” but instead took responsibility for the defense of democratic rights, Stone declares that he “is most certainly a criminal who deserves serious punishment.”

The essence of Stone’s argument is that Snowden, having accepted government employment, forfeited all right, let alone responsibility, to expose illegal actions by the government. The argument is based on authoritarian premises that are not fundamentally different from those that prevailed in Nazi Germany.

As German historian Ingo Müller wrote in Hitler's Justice: The Courts of the Third Reich, the Nazi Supreme Court “defined the ‘legal nature’ of the civil service as ‘loyalty, obedience, and conscientious performance of duty’ and had referred to civil servants as ‘the political troops of the Führer in the area of administration.’” [p. 83]

Stone advances a concept of employee discipline that closely resembles the Nazi ethos. In a passage that exposes Stone’s repudiation of essential democratic principles, he writes:

“But what if the employee decides, in his own wisdom, that some classified information doesn't need to be classified or that it would be good for the public to know the classified information? Should the employee be allowed to make that judgment? Merely to state the question is to answer it. There is no reason on earth why an individual government employee should have the authority, on his own say so, to override the judgment of the elected representatives of the American people and to decide for the nation that classified information should be disclosed to friends and enemies alike. Such an act is a complete usurpation of the rule of law."

This is an astonishing declaration! “No reason on earth?" In other words, an employee of the state must keep his mouth shut and refrain from exposing criminal activity no matter how injurious it may be to the rights of the American people. “No reason on earth!"  What if a civil servant uncovers a secret memorandum authorizing the assassination of a citizen? Or plans for the mass incarceration of political dissidents?
[...]
Drawing his tirade to a conclusion, Stone declaims that Ed Snowden had no right to decide that he knew “better than anyone else in government how best to serve the national interest.”

Once again, Stone advances an argument that conforms entirely with the legal principles of the Third Reich, which insisted on the subordination of the individual to the Führer.

Müller recounts the official denunciation by the Nazi court of a civil servant who counterposed his individual sentiments to the will of the state. In words that are in spirit eerily similar to those of Stone, the fascist authorities denounced the hapless civil servant for holding “notions about his freedom, according to the crassest form of the liberalist view … Freedom to him means the authority to refuse to carry out all duties not explicitly prescribed by the law, as he himself sees fit.” [p. 84]
[...]
Eric London sent Stone a copy of their response, which WSWS had titled in understated manner, Liberal advocates of a police state turn savagely against Edward Snowden, with an invitation to respond at WSWS.  

Stone had to know that David North wasn't any old Trotskyist and WSWS wasn't any old socialist publication.  Decades ago in the United States the Democratic Party and Liberal media had politely herded the Trotskyists onto a reservation where they could yammer about the true socialist doctrine without embarrassing the Party. While the reservation had no set geographic location its borders were a total blackout in the American mainstream media.
 
But since the financial crash younger Liberals had been traipsing to the reservation, seeking counsel and solace from Trotskyist chiefs.  Even Glenn Greenwald started showing up at the sweat lodge.

North was a chief.  A hardened veteran of the long, world-spanning cold war between Stalinists and Trotskyists, he was the author of a number of books on socialism, and according to Wikipedia, "the principal political and theoretical leader of the International Committee of the Fourth International during the organization's split with the Workers Revolutionary Party."  He was also the chairman of the International Editorial Board of the World Socialist Web Site, the publication arm of the ICFI.  The internet era had come to the reservation. WSWS was the most widely read socialist website in the world. 
         
For all these reasons the North-London writing hadn't languished in the backwaters of Google's search engine. It had been on the front page of Google News for many hours.  

In short, Stone knew he'd been called out before a large audience. Again, caution would have been the better part of wisdom under the circumstance.
      
Back in the Remote, Wild Land

Geoffrey Stone refused to modify his position.  After a dismissive greeting to Eric London ("Thanks for sharing.") and an admonishment that grownups must not see things in black and white ("What you seem not to understand is that situations are different and not everything is or should be on one side of the line or the other."), he reiterated his June 10 lecture to Huffpo readers.  As to the accusation that he'd reversed himself, which were North and London gonna believe, him or their lying ears?:
Everything I’ve said about Snowden is perfectly consistent with everything I’ve ever said on this subject.

Although I think we need a healthy distrust of our public officials, I also oppose the arrogance of a single, unelected individual who takes it upon himself, with no lawful authority or justification, to disclose properly classified information to persons unauthorized to receive it just because HE thinks the information shouldn’t be classified.

The plain and simple fact is that Snowden betrayed the rule of law and the trust of the American people when he decided, without any legal authority, to disregard the judgments of the executive branch, the Congress and the judiciary in a way that put the security of the nation at risk. Even if what he did has beneficial consequences, he had no legal or moral right to do it. He is a criminal
Professor Stone's jump landed him in one piece. He looked around.  North and London were nowhere in sight.  Probably hiding in a cave on the rez.  He waved up to the Native bearer, who suddenly covered his eyes.

Then he noticed an odd trembling in the ground under his feet and a strange sound: thoom. thoom.  The sound was coming from the direction of what looked like an opening to a large cave. It was a sound not unlike the sound in Jurassic Park after the green Jell-O starts quivering.
 
The sound got closer. THOOM. And closer. THOOM.

Happily for Professor Stone what emerged from the cave was not a Tyrannosaurus Rex but it was the legal correspondent for the World Socialist Web Site.

Meet Tom Carter

Published by WSWS on July 8 under the title, A Letter from Geoffrey R. Stone, Liberal Advocate of a Police State, Tom Carter's response was a five-part analysis of Stone's June 19 letter.  As with North and Carter he was sparing in his use of the Trotskyist cudgel.  He launched by addressing Stone's concept of the rule of law:
[...]
Despite being written by an American law professor, Professor Stone’s letter consists of conceptions that are utterly alien to the democratic legal tradition of the United States.

Reiterating his previous statements, Professor Stone announces that it is contrary to the “rule of law” for a “single, unelected individual” to take it upon himself “to disclose properly classified information to persons unauthorized to receive it.” In the context of Snowden's revelations, this formulation inverts the “rule of law,” turning it upside down and transforming it into its opposite.

For Professor Stone, the “rule of law” becomes the duty of unquestioning obedience to superiors.

This is not what the “rule of law” means. As Thomas Paine wrote in his revolutionary pamphlet Common Sense (1776), “in America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other.”

The “rule of law” means that the acts of every person, up to and including the highest public official, are beneath the law. The Constitution provides that even the “President, Vice President, and all civil officers of the United States” may be impeached for violating the law. This is the essence of the phrase, “a government of laws not of men.”

In other words, the “rule of law” means that public officials who engage in illegal conduct run the risk of having their behavior exposed, their orders disregarded, and their official powers terminated.

If a citizen is ordered by a public official to participate in illegal conduct, then the “rule of law” does not mean that citizen should obey the order without question. On the contrary, the “rule of law” means that going along with the illegal conduct of one’s superiors, even when ordered to do so, may itself be illegal.

In American history, this principle found perhaps its fullest expression in the arguments of Supreme Court Justice Robert H. Jackson at the Nuremberg trials of Nazi war criminals, which took place from November 1945 to October 1946.

The Nazi defendants famously asserted that they were merely “following orders,” and that they did not have any legal or moral right to question the orders they were given or to refuse to carry them out. Rejecting these arguments with contempt, Justice Jackson declared that modern civilization “cannot tolerate so vast an area of legal irresponsibility.”

Nuremberg Principle IV reads, “The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility. .. provided a moral choice was in fact possible to him.”

Professor Stone’s phrases such as “no lawful authority” and “properly classified information” simply beg the question. Can a criminal conspiracy to violate the fundamental rights of hundreds of millions of innocent people be “properly” classified, or “lawfully” kept secret?

Professor Stone’s letter does not actually address the substance of Snowden’s revelations. Nor could it. Edward Snowden brought to light what is perhaps the most spectacular breakdown of the “rule of law” in American history. The pervasive illegal spying on Americans revealed by Snowden makes the criminal conduct of figures such as Richard Nixon seem petty and trivial by comparison.
[...]
The words Justice Jackson used to describe the hypocritical posturing of the Nuremberg defendants applies in full force to Snowden’s persecutors. These men, Jackson declared, “are surprised that there is any such thing as law. These defendants did not rely on any law at all. Their program ignored and defied all law. ... International Law, natural law, German law, any law at all, was to these men simply a propaganda device to be invoked when it helped and to be ignored when it would condemn what they wanted to do.”
Then, drawing on a variety of American historical incidents, Tom Carter continued to demonstrate that Snowden not only had a right but also a duty as an American to reveal secret government actions that were given a veneer of legality only by abrogating principles on which the U.S. republic stood.

Last Whistlestop

By the time he wound up the civics lesson nothing was left of the Liberal position that Stone represented except rubble.  The only comparable analogy in American history is the televised dynamiting on April 17, 1972 at 3:32 PM of the second building in the Pruitt-Ingo public housing complex. As the completely unlivable structure collapsed into rubble it brought down with it the modernist era in architecture and social engineering

But this isn't a discussion about bad urban planning. David North and Eric London had set the charges and Tom Carter had pushed the plunger on an era in the United States when political Liberalism was considered the bulwark against tyranny. 

Trouble is, they'd managed the demolition only when the train of U.S. government was hurtling toward a depot where the calendar on the wall read 1932.

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