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Street Legal

The national security state comes home

Published August 2, 2013.

In the aftermath of the 1993 World Trade Center bombing, the 1995 Oklahoma City bombing, the 1996 bombing at the Atlanta Olympics, and the paired 2001 attacks on the World Trade Center and the Pentagon, here’s what didn’t happen: whole cities weren’t locked down, armored personnel carriers with police logos didn’t rumble in, and SWAT teams in combat uniforms and body armor didn’t storm through the suburbs for a loosely ordered set of (ultimately hapless) house-to-house searches. Somehow, though, 2013 was the year it became appropriate to close cities, turning off taxis, buses, and trains and telling residents that the governor was suggesting—okay, strongly suggesting—that they not leave their homes until the police said so. One of those familiar moments in which officials ask the public to be on the lookout turned into a remarkable new moment in which officials ask the public to cease to exist in its public form so that the police can have the streets.

And you’d better believe they had the streets. News photographs showed Boston emptied like the opening reel of The Last Man on Earth. The quaint idea that cities can be made safe by sharing public burdens in public space—by, in Jane Jacobs’s words, neighborly “eyes on the street”—vanished into an annihilated space in which the only players with a role in the maintenance of order were the mandarinate that makes social control its profession: the helicopters flying overhead, the military police conducting block-by-block inspections, and the local media relaying their instructions.[*] Sociologist Zygmunt Bauman has described modern bureaucratic culture as a “garden culture,” a system of behavioral expectations that aims to make tidy flowerbeds of human societies: “It defines itself . . . through its endemic distrust of spontaneity and its longing for a better, and necessarily artificial, order.” Pulling weeds, the bureaucracies of the modern order are restrained by “the pluralism of the human world,” that great enemy of order. How routine it felt—how uncontested it was—when the pluralism of the human world was simply told to go indoors until further notice.

The disease of police militarization is usually diagnosed as a pathology of the political right: born in Richard Nixon’s hippie-loathing heart, nurtured by Ed Meese and Co. in the Reagan years, delivered from adolescence into the full blossom of adulthood during the Cheney administration. For years, liberal-minded journalists have mocked the cartoonish sheriff of Maricopa County, Arizona, a far-right yahoo so beyond redemption that he polices his jurisdiction with an armored personnel carrier. And look how the right-wing project came to fruition this year, as a New England Democratic governor and Democratic mayor turned metropolitan Boston into cop Disneyland. Spot the place of the political right in the following sentence: Cambridge, Massachusetts, was locked down and filled with police and military personnel dressed for combat, a set of actions that occurred under the executive authority of governor Deval Patrick. And here you thought Americans were divided by their differences.

This Weak Man

Touring the South in the late 1930s and early 1940s, Gunnar Myrdal found that law enforcement had split from criminal justice and that the role of a policeman was to enforce racial “caste rules” imperfectly reflected in statutory formalities:

It is demanded that even minor transgressions of caste etiquette should be punished, and the policeman is delegated to carry out this function. Because of this sanction from the police, the caste order of the South, and even the local variations of social custom, become extensions of the law. To enable the policeman to carry out this function, the courts are supposed to back him even when he proceeds far outside normal police activity. His word must be taken against Negroes without regard for formal legal rules of evidence.

“This weak man,” is how Myrdal described the Southern cop, “with his strong weapons.” Social disease piled up behind the screen of the police badge, hiding power and hatred and repression in the act of keeping the peace. Cops were the principal armed component of power in a society structured by race.[**]

We’re trying to figure out what has gone so badly wrong with our criminal justice system. Didn’t it used to work? Didn’t it used to be fair and reasonable? It didn’t. We have new forms of injustice and excess, so we think the injustice and excess themselves are entirely new. Our strong weapons remain in weak hands.

A New England Democratic governor and Democratic mayor turned metropolitan Boston into cop Disneyland.

Large and foundational pieces of our criminal justice system constitute an internal security regime that regards policing as being little different from war-making. “The Justice Department is not a domestic agency,” attorney general William French Smith said in a cabinet meeting shortly after taking his place in the Reagan administration. “It is the internal arm of the national defense.” National defense is everything, and everything is national defense. Childhood obesity, Michelle Obama explains, is a “national security threat.” Federal deficits, Hillary Clinton reveals, are a “national security threat.” Melting icebergs? “Does Global Warming Compromise National Security?” Time magazine asks. (You’ll never guess the answer.)

With pervasive national security consciousness comes a metastasizing national security elite. No one has yet charted its entire form and substance, but many have seen its outlines coming. Early in World War II, for example, political scientist Harold Lasswell predicted the emergence of the “garrison state,” a “world in which the specialists on violence are the most powerful group in society.” Residents of Boston and Watertown are to be forgiven for thinking Lasswell wholly correct. But his scenario missed the reality of what eventually happened: his predicted “abolition of ‘the unemployed’” in the service of total state mobilization, for example, seems bitterly funny under current conditions. Still, some form of the garrison state has come into being, even if it looks different from Lasswell’s. It’s now streamlined into a highly specialized, technical, data-driven form of expertise—as disconnected from criminal justice as any Southern cop back in the bad old days.

These specialists exert their power via big data, connecting National Security Agency product to the latest kill list and subpoenaed email messages to whistleblower prosecutions. Information is their weapon. A reporter who receives classified information from a government employee about the North Korean nuclear weapons program may have his email account searched as a “coconspirator,” an unindicted criminal who warrants a full-existence pat down, and, like the Jim Crow courts in the South of yesteryear, our ultramodern courts will back it.

imageThe NSA is putting the finishing touches on a million-square-foot data center in Utah, merely the latest of its many and powerful facilities. Military and intelligence officials speak openly of the decades of war still ahead of us. Everything, sooner or later, will come down to data. And so the professional instinct to seek total control of information shows up in the disproportionately aggressive prosecutions of Aaron Swartz and Bradley Manning, two young men who shared the unfortunate-for-the-historical-moment belief that information should be free. After allegedly forwarding piles of classified government material to WikiLeaks, Manning was arrested and held for a punitive pretrial detention period of three years before his trial finally began in early June. Swartz, who committed suicide at the age of twenty-six, faced federal charges that could have led to decades in prison—for downloading articles from JSTOR, a database of academic research articles, shortly before JSTOR decided to make 4.5 million of those articles available online for free to nonsubscribers.

Neither Manning nor Swartz destroyed anything; Swartz, a Harvard research fellow with authorized access to the database he supposedly plundered, can barely be alleged to have committed a theft. But they released information, and they gestured at the social and political meaning of the act in ways that left a distinct professional chill in the government’s spine. To possess data is to possess power; to give information away is to deplete power. My god, don’t you know we’re at war?

Twentieth-century state power, the thing that administered society from central offices and hierarchically arranged regional hubs via a system of top-down memoranda implemented by credentialed, professional middle-class managers, is today faced with the apparently disintermediating effects of a new century’s technology. Distributed action, fractured and scattered communication: a world that resists regulation. So government wants to capture all of it, wants to consolidate its fractured and scattered currency of power, wants every train from every scattered line to transit a central depot. This contest between the centralization and decentralization of information is the real culture war of our moment.

This is why Bradley Manning was stripped naked and kept in solitary confinement: he represents a guerrilla victory in an existential war for status. “Once effectively dehumanized, and hence cancelled as potential subjects of moral demands,” the sociologist Bauman wrote, “human objects of bureaucratic task-performance are viewed with ethical indifference, which soon turns into disapprobation and censure when their resistance, or lack of co-operation, slows down the smooth flow of bureaucratic routine.” Manning and Swartz dispersed accumulated power, deliberately, as a matter of principle, while organizations like the NSA are trying to hoard it for future use.

This is also why Edward Snowden is a traitor and a criminal: he publicly identified actual state actions, a dreadful offense against the industry that wrote his paychecks. Tellingly, Snowden worked not at the NSA but at Booz Allen, a piece of the shadow state embodied in corporate power. In the wake of Snowden’s leaks, the news media leapt into its usual dismal role, working to provide all of the really important information. Why is Snowden such a bad person? What’s wrong with Glenn Greenwald, the lawyer and activist who was Snowden’s contact at the Guardian? Is it bad for individuals to reveal the projects of state power, or is it unspeakable? But a few stories hinted at the outlines of our burgeoning reality, describing telecom and Internet companies as active partners in an exchange with government rather than mere victims of bureaucratic overreach. An employee of Booz Allen showed us, at least in outline, the intimate connections between the security state and its adjuncts in what we quaintly refer to as the “private sector.” That’s treason. Patriots don’t interfere with healthy business relationships.

A Man’s Home Is His Caste

Two recent books have tried to explain different pieces of these developments in state power: Harvey Silverglate’s Three Felonies a Day: How the Feds Target the Innocent (2009) and Radley Balko’s Rise of the Warrior Cop: The Militarization of America’s Police Forces, released this summer. Both are important efforts by exceptionally admirable people.[***] Both offer sharp-eyed description—but also end with magical prescriptions, as if to demonstrate what happens when decent people try to understand indecency.

Federal prosecutors use increasingly obscure federal laws in increasingly opaque and unfair ways, bringing criminal charges against people who never intended to act criminally or never realized they were committing criminal acts. The examples are so plentiful and the narrative so thorough as to become tedious: one outrage, and another, and another, and fifty more. Physicians, for example, find themselves targeted as drug dealers, especially for treating patients who experience chronic pain, as the Drug Enforcement Administration second-guesses clinical decisions. The classification of drugs into schedules, the product of federal legislation passed in 1970, was supposed to build clear lists of harmful narcotics and beneficial medications. “Such, however, turned out not to be the case,” according to Silverglate. “Instead of achieving a medically-rooted balance, the feds drew an arbitrary line between what they believed to be the appropriate medical administration of pain-killing drugs versus ‘drug dealing’ by physicians.”

imageAnd then comes the important part: “Worse, the regulatory language made it virtually impossible for even the most responsible pain specialist to discern when he or she crossed the line into an area the DEA would consider akin to ‘street dealing.’”

So a federal agency declined to establish clear limits on its own power. Obscurity of rules is a bureaucrat’s freedom; arbitrary authority is unbounded. For a government to say plainly what actions will lead to criminal charges would be to simultaneously designate those acts it won’t punish. It’s a choice that costs an organization something to make, but nothing to avoid. Actually, it’s a choice that it pays a bureaucracy to evade: draw a line that only you can see, and then you can never be the one who gets caught crossing it.

Like Silverglate, Balko exhausts his topic, describing in great detail outrages that come to feel endless. “In Riverside, California, police staged fourteen simultaneous raids over a two-and-a-half block area,” goes a typical story that ends with a multijurisdictional cluster of SWAT teams finding “very little contraband.” Half-assed investigation leads to insane acts of official violence; in this case, “fifty-year-old Richard Sears and his wife Sandra woke up to flash-bang grenades and armed men in their bedroom.” Disoriented and shocked awake, Richard Sears “resisted and was repeatedly struck in the face with the butt of a rifle.” Sensibly running from explosions, Sandra Sears “was pulled back into the room and thrown to the floor.” The story ends with criminal charges being dropped and police admitting that the couple “had done nothing wrong.” Then it’s on to the next paragraph, which describes a police officer shooting an unarmed man in the back because he thought a police flash-bang grenade was a gunshot. Next paragraph: panicked cops shoot a colleague in the back of the head; the officer who dies had “himself shot an unarmed, fleeing suspect during a drug raid in 1982.” And so on.

Obama pantomimes dissent from his own power, gesturing against the choices he continues to make.

And then the benefits: police officers raid a trailer outside a truck stop in rural California, with a pair of SWAT teams that “swarmed the building as part of a predawn drug raid.” The sleeping occupant of the trailer, a truck stop employee named Richard Elsass, who woke to the sound of breaking windows, shot and killed one of the black-clad men storming into his trailer in the dark—prompting the other officers to pour gunfire through the walls. “The police found no drugs in Elsass’s trailer,” Balko writes, “nor any evidence linking him to a drug crime.” A police investigation quickly cleared the officers of wrongdoing. Drug warriors, the police had followed the rules of the battlefield. “The police conducted a violent, volatile drug raid on the home of an innocent man, killed him, and got one of their own killed in the process,” Balko concludes. “Yet by their own measure, they followed all the proper procedures, and nothing about those procedures needed to be changed. The inescapable conclusion: raiding and killing innocent people is an acceptable outcome of drug policing.”

Official acts are presumed proper. If proper procedures are followed, no culpability attaches. And the procedures are always proper, because if they’re not, then new ones will be invented to make them so. See?

Balko notices how criminal justice turns into national security, linking the “policies, rhetoric, and mind-set of the Reagan-Bush all-out antidrug blitzkrieg” (for example) to a 1989 poll that showed the willingness of sizable American majorities to surrender “a few of the freedoms we have in this country if it meant we could reduce the amount of illegal drug use.” Silverglate similarly acknowledges the willingness of a credulous public to perceive outrageous federal prosecutions as bold efforts against some “dire threat to the nation.”

But then both authors, moving from problems to solutions, veer into magical thinking. “Testimony and sentencing deals must be scrutinized by an independent press, not by Fourth Estate lackeys,” writes Silverglate, as if that outcome can be attained by wanting it. With similar implausibility, Balko suggests that politicians should “be held accountable when they use war rhetoric to discuss crime and illicit drugs.” How? As illustrated by the poll Balko cites, large majorities have no idea what you’re talking about when you say politicians should be held accountable for talking about a war on drugs and crime, or that police should be held accountable for conducting it.

“But it’s still rather remarkable,” Balko writes, that “domestic police officers” are “breaking into homes and killing dogs over pot. They’re subjecting homes and businesses to commando raids for white-collar and even regulatory offenses, and there’s barely been any opposition or concern from anyone in Congress, any governor, or any mayor of a sizable city.”

Resistance is Futile

Police power in the Jim Crow South followed the dominant assumptions of time and place, and the courts threw their weight behind it even when the results fell “far outside normal police activity,” as Myrdal wrote. Now the NSA builds a million-square-foot data center so it can store all of your email messages, prosecutors design questionable criminal charges from the hazy material of statutes carefully structured to hide their purpose and scope, and Private Bradley Manning is a dire threat to national security. Massachusetts governor Deval Patrick and Arizona sheriff Joe Arpaio, something close to the bluest and reddest politicians in the country, agree on the utility of armored personnel carriers in domestic policing. Dissent and resistance are blown away in a light breeze of official announcement.

imageSometimes resistance gets a voice, in brief and empty interruptions to the bigger story. Barack Obama, for example, gave a speech in May in which he announced that he is “insisting upon clear guidelines, oversight, and accountability” for the use of deadly force against suspected terrorists; that framework, he explained, “is now codified in presidential policy guidance that I signed yesterday”—that is, five years into his presidency. The president orders drone strikes, but regrets them; commands a military that detains prisoners indefinitely, but feels sorrow over that ongoing act; controls armed forces that candidly go on planning for decades of continuous war, but warns that “perpetual war—through drones or Special Forces or troop deployments—will prove self-defeating.” He pantomimes dissent from his own power, gesturing against the choices he continues to make. Someone should really do something about this unrestrained national security state, says the current president of the United States.

Give him credit for believing any of it, but don’t expect his words to be made real. These weak men with their strong weapons: they are always with us.


[*] The surviving member of the brotherly duo alleged to have carried out the Boston Marathon bombings was discovered outside the search perimeter after police lifted the lockdown and allowed residents of Watertown to go outside again. Leaving his house, a neighbor quickly spotted the person the police had been unable to locate, hunkered down in a boat stored in his backyard. Ordinary people are effective observers of their personal environments, when permitted to view them.

[**] The Federal Bureau of Investigation, that great Cold War apparatus of repressive and politicized state security, blossomed into full flower from the progressive high point of Franklin Roosevelt’s first term as president. The emergence of J. Edgar Hoover’s FBI, writes the historian Claire Potter, “required structural reforms and cultural interventions that reflected and reinforced other types of political consolidation during the New Deal. Recasting the federal government as inherently moral and good policing as a central democratic value, Hoover’s campaigns against kidnappers and bank robbers produced political narratives that articulated the benefits of an interventionist state.”

[***] Silverglate is a criminal defense lawyer in Boston, directly involved in long personal efforts against overly aggressive federal prosecutors. Balko, a libertarian journalist and former Cato fellow, has spent years of his life digging into police militarization and (in particular) Mississippi’s dismal justice system.