If you were listening to Morning Edition on NPR a couple of days ago, you had a remarkable opportunity to hear the Banality of Evil demonstrated concretely for you, within your own earshot. I’m talking about Steve Inskeep’s interview with John Yoo, a former lawyer for the Bush administration. Here are some of his remarks on the recently-passed Star Chamber law. I’ll reprint them, but you really must listen to Yoo to understand it fully–there is no way to convey the sheer blandness of Yoo’s plain-spoken, calm explanation and apologetics for the most despicable sort of Stasi-statism.

Inskeep: Now [if you’re a citizen accused of being an enemy combatant] you can challenge your status in court, but if you lose that, are you entitled to a trial, as a U.S. citizen?

Yoo: No, and that’s something that the Supreme Court made clear two years ago, is that if you are an enemy combatant, there is no constitutional requirement that you get a criminal trial. You can be held until hostilities are over.

Of course, the rules for imprisoning enemy soldiers were developed in a context where hostilities meant wars between two or more particular States, which had declared beginnings and definite endings. How long will it take for these hostilities, which are part of an undeclared global war waged against a vaguely-specified enemy with no identifiable central authority, and pursued with no defined conditions for victory, for surrender, or for truce, to count as over? But we’d best hurry along. Now that you are being held, quite possibly until you die in prison….

Inskeep: Now what if you’re a non-citizen, what happens then? Same scenario. The government has some suspicions about you, they think you’ve done something, they arrest you, they say you’re an enemy combatant, you disagree. What can you do?

Yoo: Well, first, according to the law passed by Congress last week, I’d have the right to go to what’s called a combatant status review tribunal, which is set up by the Defense Department, where I’d have a hearing, where I could challenge the evidence against me, that I’m an enemy combatant.

Oh, well then. That sounds reasonable enough.

Inskeep: –Wait, let me stop you for a second. When you go to that hearing, do you get a lawyer?

Yoo: I believe you don’t get a lawyer. You have representation from an officer, but not necessarily one who’s a military lawyer.

Oh.

Inskeep: And when you say that you could challenge your detention, how would you gather evidence to show that you’re not an enemy combatant?

Yoo: Well, first you can tell your own story, and also I think you would have the abliity to see unclassified evidence against you, and to challenge it.

Um.

Inskeep: You said unclassified evidence. So classified evidence, that the government says, We have evidence against you and we can’t share it with you, that’s the end of the story?

Yoo: I believe so. I believe that classified evidence is not provided to the defendant. It’s not even provided under the military commissions, or often in civilian trials, even, for terrorism or spying.

Well.

Inskeep: If you’re an enemy combatant, who decides if you ever get a full-blown trial–a military commission trial as it’s been called?

Yoo: That’s ultimately up to the President. I think it’s still up to the President and the Secretary of Defense who’s going to be tried by a military commission.

Inskeep: The government will decide that when it’s in the government’s best interest, a trial will be held, and when it’s not, the person will be held without a trial?

Yoo: That’s right.

Full stop.

Then Inskeep asks the next question.

Inskeep: Do you think it’s inevitable that some people who are innocent are going to end up in this system, spending years and years at Guantanmo Bay?

Yoo: There’s no perfect system. I agree, Steve, there’s always the chance that there will be people who are detained who are not enemy combatants. The same is true of our criminal justice system. There’s no doubt that we have people in the criminal justice system who are innocent. That’s why we have all these processes, that’s why we have all these appeals levels, is to try to correct any mistakes that were made, and prevent errors.

Inskeep: You said there’s always the chance. I mean, isn’t a certainty, especially given that some cases have already been found, to be almost indisputably cases of people who were innocent being held at Guantanamo for a long time, or held elsewhere.

Yoo: I would say, look, in wartime, there’s always going to be people who might be picked up. It’s also the case in wartime that you have mistaken targets attacked and people killed by accident. But my only point is that you also have that in the criminal justice system. No system is going to be perfect.

Inskeep: Do you, as a lawyer who’s worked in the Bush administration, and obviously thought about these isues, think that this law does everything possible to prevent error?

Yoo: Well, I think we could probably do a lot more, but it would be a lot more expensive. I think what we have here is something that’s very close to the civilian system.

Inskeep: Are you saying it would be too expensive to give habeas corpus protection to non-citizens?

Yoo: Yeah, I think that’s what Congress decided when it passed this law last week, is that, you could have the possibility of hundreds and hundreds of habeas corpus proceedings, and they do impose a cost. They impose a cost on our judicial system. They impose a cost on our government, on our military. Think about… you’d have to pull in witnesses in from abroad, you’d have the cost of potentially releasing classified information… all this process does have a cost on our system. It’s not free.

Inskeep: John Yoo is author of War by Other Means, which is out this week.

Good night, and good luck.

Today is the 219th annual International Ignore the Constitution Day.

Here’s William Lloyd Garrison, in The Liberator, on December 29, 1832:

There is much declamation about the sacredness of the compact which was formed between the free and slave states, on the adoption of the Constitution. A sacred compact, forsooth! We pronounce it the most bloody and heaven-daring arrangement ever made by men for the continuance and protection of a system of the most atrocious villany ever exhibited on earth. Yes—we recognize the compact, but with feelings of shame and indignation, and it will be held in everlasting infamy by the friends of justice and humanity throughout the world. It was a compact formed at the sacrifice of the bodies and souls of millions of our race, for the sake of achieving a political object—an unblushing and monstrous coalition to do evil that good might come. Such a compact was, in the nature of things and according to the law of God, null and void from the beginning. No body of men ever had the right to guarantee the holding of human beings in bondage. Who or what were the framers of our government, that they should dare confirm and authorise such high-handed villany—such flagrant robbery of the inalienable rights of man—such a glaring violation of all the precepts and injunctions of the gospel—such a savage war upon a sixth part of our whole population?—They were men, like ourselves—as fallible, as sinful, as weak, as ourselves. By the infamous bargain which they made between themselves, they virtually dethroned the Most High God, and trampled beneath their feet their own solemn and heaven-attested Declaration, that all men are created equal, and endowed by their Creator with certain inalienable rights—among which are life, liberty, and the pursuit of happiness. They had no lawful power to bind themselves, or their posterity, for one hour—for one moment—by such an unholy alliance. It was not valid then—it is not valid now. Still they persisted in maintaining it—and still do their successors, the people of Massachussetts, of New-England, and of the twelve free States, persist in maintaining it. A sacred compact! A sacred compact! What, then, is wicked and ignominious?

… It is said that if you agitate this question, you will divide the Union. Believe it not; but should disunion follow, the fault will not be yours. You must perform your duty, faithfully, fearlessly and promptly, and leave the consequences to God: that duty clearly is, to cease from giving countenance and protection to southern kidnappers. Let them separate, if they can muster courage enough—and the liberation of their slaves is certain. Be assured that slavery will very speedily destroy this Union, if it be left alone; but even if the Union can be preserved by treading upon the necks, spilling the blood, and destroying the souls of millions of your race, we say it is not worth a price like this, and that it is in the highest degree criminal for you to continue the present compact. Let the pillars thereof fall—let the superstructure crumble into dust—if it must be upheld by robbery and oppression.

— William Lloyd Garrison, The Liberator (1832-12-29): On the Constitution and the Union

Here’s Lysander Spooner, in No Treason (1867-1870):

The practical difficulty with our government has been, that most of those who have administered it, have taken it for granted that the Constitution, as it is written, was a thing of no importance; that it neither said what it meant, nor meant what it said; that it was gotten up by swindlers, (as many of its authors doubtless were,) who said a great many good things, which they did not mean, and meant a great many bad things, which they dared not say; that these men, under the false pretence of a government resting on the consent of the whole people, designed to entrap them into a government of a part; who should be powerful and fraudulent enough to cheat the weaker portion out of all the good things that were said, but not meant, and subject them to all the bad things that were meant, but not said. And most of those who have administered the government, have assumed that all these swindling intentions were to be carried into effect, in the place of the written Constitution. Of all these swindles, the treason swindle is the most flagitious. It is the most flagitious, because it is equally flagitious, in principle, with any; and it includes all the others. It is the instrumentality by which all the others are mode effective. A government that can at pleasure accuse, shoot, and hang men, as traitors, for the one general offence of refusing to surrender themselves and their property unreservedly to its arbitrary will, can practice any and all special and particular oppressions it pleases.

The result — and a natural one — has been that we have had governments, State and national, devoted to nearly every grade and species of crime that governments have ever practised upon their victims; and these crimes have culminated in a war that has cost a million of lives; a war carried on, upon one side, for chattel slavery, and on the other for political slavery; upon neither for liberty, justice, or truth. And these crimes have been committed, and this war waged, by men, and the descendants of men, who, less than a hundred years ago, said that all men were equal, and could owe neither service to individuals, nor allegiance to governments, except with their own consent.

… Inasmuch as the Constitution was never signed, nor agreed to, by anybody, as a contract, and therefore never bound anybody, and is now binding upon nobody; and is, moreover, such an one as no people can ever hereafter be expected to consent to, except as they may be forced to do so at the point of the bayonet, it is perhaps of no importance what its true legal meaning, as a contract, is. Nevertheless, the writer thinks it proper to say that, in his opinion, the Constitution is no such instrument as it has generally been assumed to be; but that by false interpretations, and naked usurpations, the government has been made in practice a very widely, and almost wholly, different thing from what the Constitution itself purports to authorize. He has heretofore written much, and could write much more, to prove that such is the truth. But whether the Constitution really be one thing, or another, this much is certain — that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.

–Lysander Spooner, No Treason No. 2 and No. 6

Here’s me, from last year’s celebration in the Rad Geek People’s Daily:

You, too, can celebrate Ignore the Constitution Day! Today, completely ignore all claims to authority granted in the Constitution. Live your life as if the Constitution had no more claim on you than the decrees of Emperor Norton. Enjoy your rights under natural law; you have them whether or not the Constitution says one mumbling word for them. While you’re at it, treat the Constitution as completely irrelevant in political arguments too; instead of complaining that unbridled war powers for the President are unconstitutional, for example, complain that they are evil; instead of reciting that damn Davy Crocket bed-time story again and complaining that government-controlled disaster relief is unconstitutional, complain that government-controlled disaster relief is foolish and deadly. (If the Constitution clearly authorized unilateral war powers for the President, or abusive and incompetant government-controlled disaster relief, would that make it okay?) And, hell, while you’re at it, quit complaining that forced Constitution Day celebrations may be unconstitutional; complain instead that they force children to participate in cultish praise for the written record of a naked usurpation.

Just go ahead. Ignore the Constitution for a day. See what happens. Who’s it gonna hurt? And if your political reasoning becomes sharper, your discourse no longer bogs down in a bunch of pseudo-legal mummeries, and you have a pleasant day without having to ask anybody’s permission for it, then I suggest you continue the celebration, tomorrow, and every day thereafter.

— GT 2005-09-17: International Ignore the Constitution Day

I think that legalism is an insidious error that liberals and libertarians alike are all too prone to fall into. In fact the rule of law is something to be hoped for only insofar as the laws are just: rigorously enforcing a wicked law–even if that law is duly published and generally formulated–is just relentlessness, not virtue. And in our bloodstained age it is as obvious as anything that many laws are very far from being just. But one way of trying to accomodate this point, while entirely missing it, is to throw your weight behind some Super-Duper Law that is supposed to condemn the little-bitty laws that you consider unjustifiable. Besides taking the focus away from creative extremism and direct action, and leaving power in the hands of government-appointed conspiracies of old white dudes in black robes, this strategy also amounts to little more than a stinking red herring. It diverts the inquiry from the obvious injustices of a State that systematically robs, swindles, extorts, censors, proscribes, beats, cuffs, jails, exiles, murders, bombs, burns, starves countless innocent people in the name of its compelling State interests, and puts the focus the powers that are or are not delegated to the government by another damn written law. As if the contents of that law had any more right to preempt considerations of justice than the subordinate laws supposedly enacted under its authority. Those who have spent their days trying to find a lost Constitution under the sofa cushions are engaged in a massive, sophisticated, intricately argued irrelevancy. I’d compare it to debating how many angels can dance on the head of a pin, but that would be grossly unfair–to Scholastic metaphysicians.

Further reading:

• GT 2006-04-09: Freedom Movement Celebrity Deathmatch
• GT 2006-01-05: An Open Question for Constitutionalist Liberals
• GT 2005-09-02: Definition 2
• GT 2005-07-04: Burn, baby, burn
• GT 2005-12-15: Bill of Rights Day festivities
• No Treason! 2005-12-11: Bush gets it right

This week around the web…

• Pam Spaulding @ Pandagon (2006-01-31): A Towering Figure is Gone remembers the life and legacy of Coretta Scott King:

  This loss is so great because Mrs. King was an advocate for civil rights who believed that phrase was inclusive — those of us in the LGBT family knew that she was on our side. While other figures in the civil rights movement, including Coretta's daughter Bernice, have chosen exclusion, demonization, and marginalization of gays and lesbians, Coretta Scott King stood regally and spoke eloquently about why discrimination of any kind is wrong.

• Lynn Harris @ Broadsheet (2006-01-31): Ice cheerleader boos Rangers highlights a couple of recent stories about sexual harassment against women at Madison Square Garden, from the bottom to the top of the corporate ladder.

  From today’s New York Daily News: Madison Square Garden is a den of sexual harassment, according to the former Rangers City Skater who is suing the World’s Most Famous Arena, and heaven help the woman who complains about it.

  Courtney Prince, once the captain of the Rangers’ on-ice cheerleaders, sued the Garden for sexual harassment in 2004, claiming, among other things, that management basically pimped the skaters out to VIP guests. (Read the story for the rest of the gories.)

  The other woman who may need heaven’s help is Anucha Browne Sanders, who earlier this week filed a lawsuit accusing Knicks president Isiah Thomas of sexual harassment.

  This is a company that doesn’t have respect for women, Prince told the News. Anucha Browne Sanders is at the top of the organization and I’m a lowly cheerleader at the the bottom. I have to believe there’s something going on in the middle, too. I now see how polluted it is.

  MSG refused a settlement deal in 2004, committing to fight the charges in court.

  Prince says that in the meantime, she’s been the target of threats and attempts to defame her character. Regardless, she says, her perspective on sexual harassment has done a 180. I went into this being anti-feminist and I used to judge women who claim sexual harassment the same way I’m sure people are judging me, says Prince. But it’s been worth it.

  Be sure to follow the links, but only if you’re ready to be mad at men in suits for the next few hours (madder than you already were, I mean). It’s an ugly, ugly business.

• Kevin Carson @ Mutualist Blog (2006-01-26): Another Free-for-All: Libertarian Class Analysis, Organized Labor, Etc. rounds up, fleshes out, and adds to debate over socioeconomic class, the legitimacy of strikes and other union tactics, and the promise of old school Wobbly tactics such as the use of direct action on the job and the minority union to effect change without collective bargaining (and without the need for an NLRB permission slip, either). He also has some kind words for some comments of mine, here and in various comments sections.

  One of the most important effects of Wagner was to channel union activity into 1) state-certified majority unionism, 2) a contract regime relying heavily on the state and the union bureaucracies for enforcement against wildcat strikes and direct action on the job, and 3) reliance on conventional strikes rather than on forms of direct action more difficult to detect or punish. In short, Wagner channelled organized labor into the kinds of activity most vulnerable to employer monitoring and countermeasures. What’s more, Wagner got the federal government’s foot in the door for subsequent labor legislation like Taft-Hartley, which prohibited the secondary strikes that were so successful in the 1930s.

• fafblog! (2006-01-25): Q & A: Our Omnipotent President offers a guide for the perplexed.

  Q. Can the president spy on Americans without a warrant?
  A. The president has to spy on Americans without a warrant! We’re at war, and the president’s gotta defend America, and he’s not gonna wait for a permission slip from a judge or a senator or America to do it!

  …

  Q. Things sure have changed since the innocent days of mutually assured destruction! But is it legal for the president to ignore the law?
  A. Maybe not according to plain ol stupid ol regular law, but we’re at war! You don’t go to war with regular laws, which are made outta red tape and bureaucracy and Neville Chamberlain. You go to war with great big strapping War Laws made outta tanks and cold hard steel and the American Fightin Man and WAR, KABOOOOOOM!

• Twisty @ I Blame the Patriarchy (2006-02-01): My Jarring Experience has the displeasure of waking up to the second worst part of a film classic. Several commenters independently point out that part of the reason that the worst part of My Fair Lady is so appalling is because that’s not the way it was written to begin with, and that Shaw himself observed that only an idiot whose sensibility has been ruined by romantic comedy would expect things to turn out as, well, the Hollywood writers made it turn out.

• And, in the comments to No Treason (2006-01-31): Dear Karen (No, Not That One), I discuss a personal pet peeve: using the word suicide bombing as if it named a moral rather than a tactical category of attack.

  “I don’t think it justifies suicide bombings however.”

  There’s nothing about suicide bombings that makes them essentially or even presumptively unjustifiable. The problem isn’t the method of delivery but rather the use of the method to attack civilians. (Would it be better if Hamas bombed innocent people from planes?)

  Guerrilla tactics, even tactics as terrifyingly dangerous as body-bombing, aren’t the problem. The use of guerrilla warfare to attack innocent civilians is.

You know the rules. Here’s the quote. This is from Susan Brownmiller’s In Our Time: Memoir of a Revolution, which I’ve been re-reading in parts recently, as a source for WikiPedia contributions on Andrea Dworkin and a new entry on Women Against Pornography. I mention, off to one side, that things are often more complicated than they seem, and that this is relevant to one of the most frequent questions that Roderick and I most frequently get on our qualified defense of Andrea Dworkin and Catharine MacKinnon, and our passing comments about anti-pornography radical feminism, in our paper on libertarian feminism.

Brownmiller has been discussing the fights over municipal anti-pornography civil rights ordinances authored by Dworkin and MacKinnon in 1983-1984.

Andrea mailed me a copy of the ordinance on December 29, the day before it passed by one vote in the city council. I hadn’t even known that she and MacKinnon were in Minneapolis and working on legislation, but on reading the bill I quickly concluded that it was unworkable–full of overblown rhetoric, overly broad and vague intentions, tricky and convoluted legal locutions. Any court in the land, I believed, would find it unconstitutional, an observation I offered in my usual blunt manner when Andrea called a few days later to get my endorsement.

I assured her I would not go public with my negative opinion. I still cared tremendously about the issue, and for all its flaws, I figured the ordinance might be a valuable consciousness-raiser and organizing tool. In a bad lapse of political judgment, I failed to perceive how it would polarize an already divided feminist community by providing an even better organizing tool for the opposition. Not that what I thought mattered at that point. I had ceded leadership in antipornography work to those willing to carry it forward when I’d retreated to finish my book on femininity, just then reaching bookstores after a very long haul.

Few people noticed my absence from the national list of ordinance supporters. Gloria Steinem, Robin Morgan, Phyllis Chesler, and the new leadership of Women Against Pornography had already sent Dworkin and MacKinnon their glowing commendations. I thought it was fucking brilliant, Robin Morgan remembers, just brilliant the way they circumvented the criminal statutes and obscenity codes identified with the right wing, and took a new path through the concept of harm and civil rights discrimination. Robin, coiner of the slogan Pornography is the theory, rape is the practice, did not se any constitutional problem. If I had, she concedes, I doubt that it would have affected my position.

The ordinance was vetoed within days of its passage by Mayor Donald Fraser, who maintained that the city did not have the financial resources to defend the law’s constitutionality in court. Seven months later it came up before the council again, with minor modifications. This time around, pornography was defined only as a contributory factor, not central to the subordination of women. Dorchen Leidholdt flew to Minneapolis to help with a petition drive. Upon her return, she persuaded Women Against Pornography to contribute a few thousand dollars from its dwindling treasury to the effort.

The switch from a plucky, inventive campaign to educate the public about pornography’s dangers to the promotion of new legislation was a huge change in direction for WAP, although given the times, it was probably inevitable. Mehrhof and Alexander, the last of WAP’s original full-time organizers, had already resigned, needing a more reliable weekly paycheck than antipornography work could offer. Increasingly frustrated, the remaining activists had lost their faith in the powers of hand-cranked slide shows and hastily organized protest demonstrations to curb a phenomenal growth industry which was taking advantage of the latest technologies (pre-Internet) to create a multibillion dollar X-rated home video market, Dial-a-Porn, and public-access television channels.

Although WAP backed the ordinance, other antiporn groups were not so sanguine about it. In Washington, political scientist Janet Gornick recalls, the ordinance split her group, Feminists Against Pornography, right down the middle, and ultimately she resigned. We were black and white, lesbian and straight, and almost every one of us had been a victim of sexual violence, says Gornick, whose own activism had started six years earlier, after she was stabbed on the street, dragged twenty feet, and raped a block away from the Harvard campus in a crime that was never solved. FAP was doing very daring direct-action things in addition to the usual slide shows and Take Back the Nights, she relates. We were waging a small war against the Fourteenth Street porn strip north of the White House. But the minute I heard about Minneapolis, I knew it was a strategic catastrophe. It broke my heart. Before then we’d always maintained that we wern’t for new legislation, that we weren’t trying to ban anything. Some of our younger members just couldn’t comprehend that very committed feminists–our elders, our leaders, who were pulling us along by their rhetoric–could make such a big mistake that would lead the movement astray.

… The decision to ally herself with FACT and against the ordinance had come only after some tortured soul-searching by [Adrienne] Rich, whose previous expressions of faith in Andrea Dworkin had attributed to her leadership the greatest depth and grasp. In a special statement for off our backs, optimistically titled We Don’t Have to Come Apart over Pornography, the activist poet wrote, I am less sure than Dworkin and MacKinnon that this is a time when further powers of suppression should be turned over to the State. The lawyer and writer Wendy Kaminer, another early WAP member, went public with her opposition to the ordinance a year or so later.

–Susan Brownmiller, In Our Time: Memoir of a Revolution (1999). 319-322.

Quick review.

ANARCHISM … the name given to a principle or theory of life and conduct under which society is conceived without government — harmony in such a society being obtained, not by submission to law, or by obedience to any authority, but by free agreements concluded between the various groups, territorial and professional, freely constituted for the sake of production and consumption, as also for the satisfaction of the infinite variety of needs and aspirations of a civilized being.

— P. A. Kropotkin, Anarchism, for the Encyclopedia Brittanica (1905). Emphasis mine.

From the Left today, Scott at Angry White Kid comes out for fair government elections:

It is already hypocritical enough for Israel and the U.S. to claim to support democracy in Palestine while the U.S. monetarily favors one party and Israel to tries to block voting in East Jerusalem. Assuming they are fair, the world must respect the results of the elections.

— Angry White Kid (2006-01-25): The So-Called Palestinian Elections. Emphasis mine.

Meanwhile on the Right, non-voting LewRockwell.com contributor William L. Anderson is shocked! shocked! to discover that,

… people like Fitzgerald do not give a rat’s behind about Constitutional rights.

And demands to know,

For that matter, how in the world can Sarbanes-Oxley even be Constitutional?

— William L. Anderson, LewRockwell.com Blog (2006-01-18): Sarbanes-Oxley and Patrick Fitzgerald. Emphasis mine.

I am an anarchist. I don’t respect the results of any government elections, and I don’t give a rat’s ass about Constitutional rights, either. That’s part of what being an anarchist means: government elections don’t permit anything, and government Constitutions don’t forbid anything, because they have no legitimate authority over anyone at all. I take it that this is part of what being an anarchist means: if you take seriously an election’s or a Constitutional convention’s claim over the lives of its subjects, then you are accepting the legitimacy of a form of government. Anarchists don’t.

Postscript

This isn’t to offer a brief against voting, or against mentioning the Constitution in some argumentative contexts. It’s perfectly reasonable to look at voting, or appealing to the text of the Constitution, as a low-cost, if often ineffective, tactic of self-defense. It may even be worthwhile to try to use appeals to majoritarian popular sovereignty or to the Constitution as dialectical starting points, to try to get your conversation partner away from galloping Caesarism towards trotting Caesarism, and closer to the point where they will stop caring about The Will of The People and Constitutional Rights, and start caring about the will of people and human rights instead (although I’ll have more to say on dialectical strategies sometime soon…). That’s all fine. But it is one thing to use these arguments in the right contexts, and quite another thing to take them seriously and treat them like we ought to care at the end of the day.

A little more Socratic irony, please.