Long Sunday

The web we're on

Tice says the technology exists to track and sort through every domestic and international phone call as they are switched through centers, such as one in New York, and to search for key words or phrases that a terrorist might use...
President Bush has admitted that he gave orders that allowed the NSA to eavesdrop on a small number of Americans without the usual requisite warrants.
But Tice [former NSA insider] disagrees. He says the number of Americans subject to eavesdropping by the NSA could be in the millions if the full range of secret NSA programs is used.  "That would mean for most Americans that if they conducted, or you know, placed an overseas communication, more than likely they were sucked into that vacuum," Tice said.

Today via The Volokh's, who also raise a few questions about the wisdom of that whole e-annoyance law thing from 50-odd posts ago:

This potentially criminalizes any anonymous speech on a Web site that's intended to annoy at least some readers, even if it's also intended to inform other readers.  This is true whether the poster is berating a government official, a religious figure, a company that he thinks provides bad service, an academic who he thinks is doing or saying something misguided, a sports figure who he thinks is misbehaving, or what have you; so long as he's trying to annoy any recipient (whether the target, if the poster thinks the target is reading the blog, or the target's partisans or fans).

How is this different from traditional telephone harassment law? The trouble is that the change extends traditional telephone harassment law from a basically one-to-one medium (phone calls) to include a one-to-many medium (Web sites).

This is a big change. One-to-one speech that's intended to annoy the one recipient is rarely of very much First Amendment value; people are just rarely persuaded or enlightened by speech that's intended to annoy them. It has some value (see item 3 below), but to the extent that it's in some measure deterred, the loss to public debate isn't that great — speakers are still free to speak to others besides the person they're trying to annoy.

But one-to-many speech that is intended to annoy one or a few readers, but intended and likely to enlighten or persuade many other readers, is potentially much more valuable.

Update:  Then again, maybe not such a  big deal you gullible little bloggers, you.  More blog-able items of this sort beneath the fold:

Democracy to Totalitarianism

As some of you may know, I've spent a good part of the past few weeks reading Claude Lefort and Cornelius Castoriadis. I'm still not entirely sure what to make of them, but, at the very least, reading them has been an excellent corrective to my Foucauldian/Deleuzian tendencies. Among other things, Lefort is a first-rate theorist of democracy, totalitarianism and bureaucracy. Indeed, it is quite possible that Lefort was the first to use totalitarianism as a theoretical concept. While the word 'totalitarianism' pre-dates the second World War, it wasn't until well after the War that the concept was imbued with any theoretical content; previously it was descriptive. Lefort's major intelocutors, it is worth noting, are Arendt and Strauss.

Carl Schmitt at Nuremberg

[Cross-posted to theoria.]

With the revelation of secret and illegal domestic spying in the United States, along with Bush's justification of such actions, people have started talking about Carl Schmitt again.  Afterall, didn't Bush justify his actions in explicitly Schmittian terms?  Recall, it was Schmitt who, in Political Theology, defined the sovereign 'as he who decides upon the exception'.  This sudden interest derives, in large part, from comments made at press conference on Monday, December 19, where Bush said the following:

And having suggested this idea, I then, obviously, went to the question, is it legal to do so? I swore to uphold the laws. Do I have the legal authority to do this? And the answer is, absolutely.

As I mentioned in my remarks, the legal authority is derived from the Constitution, as well as the authorization of force by the United States Congress.

If the liminal relationship between sovereignty, legality and illegality is in question (i.e., whether or not illegal acts can be legally justified as exception within the Patriot Act deemed legal as seen by the Constitution), then commentators are right to wonder if Bush's policy is, at the core, Schmittian.  It is, I think, a fair question.

Two issues invariably rise: (1) we know that much 'national security' policy is in the control of those who deny being part of the international Straussian conspiracy, that Strauss was a student of Schmitt's, and that Schmitt only ended the relationship when it became impossible for him (as a Nazi party member) to remain friends with a Jew (there is no indication that Strauss wanted the relationship to end; he continued sending letters -- unanswered -- to Schmitt well after Schmitt assisted him in fleeing Germany to London) and (2) when people start talking about Schmitt they start talking about Nazis and fascism.  Thus, rather than spending time on (1) Schmitt's intellectual output, (2) potential relations between Schmitt, Strauss and Straussians, (3) whether or not recent policy can be characterized as 'Schmittian', people rather (4) discuss "Hey, wasn't he a Nazi?  How Nazi was he?  Doesn't that make his philosophy 'Nazi philosophy'? Isn't anyone who talks about Schmitt also a Nazi?".

Not wanting to fuel this -- despite it being a moderately interesting question that we've already been over a number of times with Heidegger and then de Man -- I'll nonetheless contribute the following, taken from Schmitt's interrogations at Nuremberg.

Fascism?

"An interesting dynamic is taking shape in this city, not altogether positive: after days of rampant lawlessness (making for what I think most would agree was an impossible job for the New Orleans Police Department during those first few crucial days of rising water, pitch-black nights and looting of stores) the city has now reached a near-saturation level of military and law enforcement. In the areas we visited, the red berets of the 82nd Airborne are visible on just about every block. National Guard soldiers are ubiquitous. At one fire scene, I counted law enforcement personnel (who I presume were on hand to guarantee the safety of the firefighters) from four separate jurisdictions, as far away as Connecticut and Illinois. And tempers are getting hot. While we were attempting to take pictures of the National Guard (a unit from Oklahoma) taking up positions outside a Brooks Brothers on the edge of the Quarter, the sergeant ordered us to the other side of the boulevard. The short version is: there won't be any pictures of this particular group of Guard soldiers on our newscast tonight. Rules (or I suspect in this case an order on a whim) like those do not HELP the palpable feeling that this area is somehow separate from the United States.

At that same fire scene, a police officer from out of town raised the muzzle of her weapon and aimed it at members of the media... obvious members of the media... armed only with notepads. Her actions (apparently because she thought reporters were encroaching on the scene) were over the top and she was told. There are automatic weapons and shotguns everywhere you look. It's a stance that perhaps would have been appropriate during the open lawlessness that has long since ended on most of these streets. Someone else points out on television as I post this: the fact that the National Guard now bars entry (by journalists) to the very places where people last week were barred from LEAVING (The Convention Center and Superdome) is a kind of perverse and perfectly backward postscript to this awful chapter in American history." Brian Williams NBC news anchor/ Posted September 7th

A Question of Ends?

"It is not legitimate to identify the ends of Fascism with the ends of Russian Communism.  The first represents the exaltation of the executioner by the executioner; the second, more dramatic in concept, the exaltation of the executioner by the victims.  The former never dreamed of liberating all men, but only of liberating a few by subjecting the rest.  The latter, in its most profound principle, aims at liberating all men by provisionally enslaving them all.  It must be granted the grandeur of its intentions."

Rove, Nixon's Gray Ghost, Pinball Proto-Fascism...

Remember the 70s? We're doomed to repeat it. So, now let's try to find the hopes and aspirations of the past and reinvigorate them in a new context. Phil Rockstroh has a terrific piece at Dissident Voice. Read the whole thing.

Link: (DV) Rockstroh: Of Karl Rove, Nixon's Gray Ghost, Pinball Proto-Fascism, Muscle Car Imperialism, and the Gong Show of the American Political System.

Nixon's legacy looms large before us, because we Americans have refused to face a few sad and creepy facts regarding why we were (and remain) possessed of the need to tell ourselves Watergate and Vietnam were mere aberrations and that Nixon's resignation from office in August of 1974 purged the demons from our nation's soul and cleansed us all. Even after Nixon was exiled to San Clemente and we took up the mantra “That was that ... Let's move on ... Our long national nightmare is over,” we Americans remained uneasy, desperately clinging to the sustaining self-deception of our being mere bystanders when the crimes were committed -- and, as a consequence, we made ourselves willing marks for political flimflammers (as within a few years time Ronald Reagan would exemplify) who peddle the politics of the comfort zone and all its attendant lies exalting the inviolable grace of our collective obliviousness. Otherwise, we would be forced to face our complicity in Nixon's crimes; otherwise, a million Vietnamese corpses would have risen accusingly in our dreams -- as tens of thousands of Iraqi dead would haunt our sleep tonight.

Murder Anyone?

"Our purpose is to find out whether innocence, the moment it becomes involved in action, can avoid committing murder.  We can act only in terms of our own time, among the people who surround us.  We shall know nothing until we know whether we have the right to kill our fellow men, or the right to let them be killed.  In that every action today leads to murder, direct or indirect, we cannot act until we know whether or why we have the right to kill." Albert Camus, The Rebel