We live in what the German political scientist Ernst Fraenkel called “the dual state.” Totalitarian states are always dual states. In the dual state civil liberties are abolished in the name of national security
President Barack Obama announces James Clapper, left, as director of national intelligence during a ceremony in the Rose Garden at the White House on June 5, 2010. (AP/J. Scott Applewhite)
On Thursday the former National Security Agency official and whistle-blower William E. Binney and I will debate Stewart A. Baker, a former general counsel for the NSA, P.J. Crowley, a former State Department spokesman, and the media pundit Jeffrey Toobin. The debate, at Oxford University, will center on whether Edward Snowden’s leaks helped or harmed the public good. The proposition asks: “Is Edward Snowden a Hero?” But, on a deeper level, the debate will revolve around our nation’s loss of liberty.
The government officials who, along with their courtiers in the press, castigate Snowden insist that congressional and judicial oversight, the right to privacy, the rule of law, freedom of the press and the right to express dissent remain inviolate. They use the old words and the old phrases, old laws and old constitutional guarantees to give our corporate totalitarianism a democratic veneer. They insist that the system works. They tell us we are still protected by the Fourth Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Yet the promise of that sentence in the Bill of Rights is pitted against the fact that every telephone call we make, every email or text we send or receive, every website we visit and many of our travels are tracked, recorded and stored in government computers. The Fourth Amendment was written in 1789 in direct response to the arbitrary and unchecked search powers that the British had exercised through general warrants called writs of assistance, which played a significant part in fomenting the American Revolution. A technical system of surveillance designed to monitor those considered to be a danger to the state has, in the words of Binney, been “turned against you.”
We live in what the German political scientist Ernst Fraenkel called “the dual state.” Totalitarian states are always dual states. In the dual state civil liberties are abolished in the name of national security. The political sphere becomes a vacuum “as far as the law is concerned,” Fraenkel wrote. There is no legal check on power. Official bodies operate with impunity outside the law. In the dual state the government can convict citizens on secret evidence in secret courts. It can strip citizens of due process and detain, torture or assassinate them, serving as judge, jury and executioner. It rules according to its own arbitrary whims and prerogatives. The outward forms of democratic participation—voting, competing political parties, judicial oversight and legislation—are hollow, political stagecraft. Fraenkel called those who wield this unchecked power over the citizenry “the prerogative state.” The masses in a totalitarian structure live in what Fraenkel termed “the normative state.” The normative state, he said, is defenseless against the abuses of the prerogative state. Citizens are subjected to draconian laws and regulations, as well as arbitrary searches and arrests. The police and internal security are omnipotent. The internal workings of power are secret. Free expression and opposition political activity are pushed to the fringes of society or shut down. Those who challenge the abuses of power by the prerogative state, those who, like Snowden, expose the crimes carried out by government, are made into criminals. Totalitarian states always invert the moral order. It is the wicked who rule. It is the just who are damned.
Snowden, we are told, could have reformed from the inside. He could have gone to his superiors or Congress or the courts. But Snowden had numerous examples—including the persecution of the whistle-blowerThomas Drake, who originally tried to go through so-called proper channels—to remind him that working within the system is fatal. He had watched as senior officials including Barack Obama lied to the public about internal surveillance. He knew that the president was dishonest when he assured Americans that the Foreign Intelligence Surveillance Court, which meets in secret and hears only from the government, is “transparent.” He knew that the president’s statement that Congress was “overseeing the entire program” was false. He knew that everything Director of National Intelligence James Clapper told the press, the Congress and the public about the surveillance of Americans was a lie. And he knew that if this information was to be made available to the public he would have to do so through a few journalists whose integrity he could trust.