Corey Robin's Blog, page 75

Smith/Brecht

Adam Smith, The Theory of the Moral Sentiments:

The poor man, on the contrary, is ashamed of his poverty. He feels that it either places him out of the sight of mankind, or, that if they take any notice of him, they have, however, scarce any fellow-feeling with the misery and distress which he suffers. He is mortified upon both accounts. For though to be overlooked, and to be disapproved of, are things entirely different, yet as obscurity covers us from the daylight of honour and approbation, to feel that we are taken no notice of, necessarily damps the most agreeable hope, and disappoints the most ardent desire, of human nature. The poor man goes out and comes in unheeded, and when in the midst of a crowd is in the same obscurity as if shut up in his own hovel….The man of rank and distinction, on the contrary, is observed by all the world. Every body is eager to look at him, and to conceive, at least by sympathy, that joy and exultation with which his circumstances naturally inspire him. His actions are the objects of the public care. Scarce a word, scarce a gesture, can fall from him that is altogether neglected. In a great assembly he is the person upon whom all direct their eyes; it is upon him that their passions seem all to wait with expectation, in order to receive that movement and direction which he shall impress upon them; and if his behaviour is not altogether absurd, he has, every moment, an opportunity of interesting mankind, and of rendering himself the object of the observation and fellow-feeling of every body about him.

Bertolt Brecht, “Mackie Messer” (“Mack the Knife“), Three Penny Opera:

And some are in the darkness

And the others in the light

But you only see those in the light

Those in the darkness you don’t see

But you only see those in the light

Those in the darkness you don’t see

[Und die einen sind im Dunkeln

Und die anderen sind im Licht

Doch man sieht nur die im Lichte

Die im Dunklen sieht man nicht

Doch man sieht nur die im Lichte

Die im Dunklen sieht man nicht]

 

Is the Boycott of the University of Illinois Illiberal?

I’m hearing whispers that some liberal-ish academics think the boycott of UIUC is illiberal and censorious. So let me get this straight. Is the underlying idea that, as an academic, you’re obligated to accept every single speaking invitation you receive? (Let’s recall the terms of the boycott: simply that we will refuse to accept an invitation to speak, or otherwise participate in an event, at the UIUC, until Steven Salaita is reinstated.) Or is it that you’re allowed to say no if your reasons are strictly careerist—i.e., the institution is not high-prestige or the honorarium too low—but not if your reasons are moral principles? Or is it that you think careerism is not only a moral principle but the only acceptable moral principle that would justify a refusal of an invitation? Or is all this liberalism talk besides the point, and it’s just Israel Israel Israel?

It’s Not the Crime, It’s the Cover-up

In the latest turn in the Salaita affair, Ali Abunimah has filed a public records request with the University of Illinois, which the University has not complied with. Raising suspicions of…

Here’s Ali:

The University of Illinois at Urbana-Champaign says it cannot find a key document that may shed light on donor pressure and organized efforts to convince top administrators to fire Steven Salaita for his criticisms of Israel.

The Electronic Intifada requested the document – a memo on Salaita’s views handed to Chancellor Phyllis Wise by a major donor – under the Freedom of Information Act.

However, an 18 September letter from the university informed The Electronic Intifada that “no records responsive to your request could be located.” Under Illinois law, Wise is required to preserve the document as a public record.

…

The existence of the document in question was revealed in a 24 July email (see below) Wise sent to the university’s senior fundraising staff reporting on a meeting she had with what appears to be a major donor…In the email, Wise writes (emphasis added):

He said that he knows [REDACTED] and [REDACTED] well and both have less loyalty for Illinois because of their perception of anti-Semitism. He gave me a two-pager filled with information on Steven Salaita and said how we handle this situation will be very telling.

This “two-pager” is the document that was requested by The Electronic Intifada and that the university now claims it cannot find.

Maria LaHood, senior staff attorney at the Center for Constitutional Rights (CCR), which is part of the legal team representing Salaita, expressed skepticism toward the university’s claim that it cannot locate the document.

“It is hard to believe that Chancellor Wise would have thrown out the two-pager on Professor Salaita given to her by a donor at a meeting that was important enough for her to email details about to top Illinois fundraising officials at midnight, unless there’s a reason she didn’t want it to be made public,” she told The Electronic Intifada.

“The two-pager might indicate a more organized effort to go after Salaita, and it will be one of the many documents we’ll seek in litigation,” LaHood added.

…

Under the Illinois State Records Act, documents received by Wise and the university are the property of the state. As a public official, Wise is legally required to preserve such records, which may not be disposed of except under conditions set out in the law.

…

The Electronic Intifada has filed a request with the Public Access Counselor at the office of the Illinois Attorney General to review the facts and law surrounding the University of Illinois’ failure to release the “two-pager” on Steven Salaita handed to Chancellor Phyllis Wise by a pro-Israel donor.

The request notes that under the Illinois State Records Act, Wise, a public officer of a state agency, is legally required to preserve the document in question and the university is legally required under the State Records Act and the Freedom of Information Act to produce the record for public inspection.

As the State Records Act states:

All records made or received by or under the authority of or coming into the custody, control or possession of public officials of this State in the course of their public duties are the property of the State and shall not be mutilated, destroyed, transferred, removed or otherwise damaged or disposed of, in whole or in part except as provided by law. Any person who knowingly and without lawful authority alters, destroys, defaces, removes, or conceals any public record commits a Class 4 felony.

Such felonies may be punishable by a term of imprisonment.

Given the facts set out in the post above and provided to the Public Access Counselor, the request asserts that “reasonable suspicion exists that a public record has been disposed of without lawful authority.”

The Public Access Counselor is an office established by law to help enforce the Illinois Freedom of Information Act and the Open Meetings Act.

“Working under the direction and supervision of the Attorney General and with a team of attorneys and professional staff, the Public Access Counselor’s mission is to help people obtain public documents and access public meetings,” according to the Attorney General’s website.

What Is Wrong With Zionism

I could convert to Christianity, declare myself no longer a Jew, start and sell a line of artisanal bacon, raise my daughter to be a Wiccan, and many Jews I know would be totally cool with that. But oppose the State of Israel—a state, let us recall, a state—and suddenly I’ve crossed a line. I’m no longer a Jew in good standing, I’ve betrayed some basic trust, I’ve become a problem. This is what Zionism has done to Judaism. This, among other things, is what is wrong with Zionism.

Copyrights and Property Wrongs

Jeffrey Toobin has an interesting piece in this week’s New Yorker on the effort of individuals to get information about themselves or their loved ones deleted from the internet.

Toobin’s set piece is a chilling story of the family of Nikki Catsouras, who was decapitated in a car accident in California. The images of the accident were so terrible that the coroner wouldn’t allow Catsouras’s parents to see the body.

Two employees of the California Highway Patrol, however, circulated photographs of the body to friends. Like oil from a spill, the photos spread across the internet. Aided by Google’s powerful search engine—ghoulish voyeurs could type in terms like “decapitated girl,” and up would pop the links—the ooze could not be contained.

Celebrities who take naked selfies, ex-cons hoping to make a clean start, victims of unfounded accusations, the parents of a woman killed in a gruesome accident: all of us have an interest in not having certain information or images about us or people we care about shared on the internet. Because it provides such a powerful sluice for the spread of that information and those images, Google has become the natural target of those who wish to protect their privacy from the prying or prurient eyes of the public.

In Europe, Toobin reports, the defenders of the right to privacy—really, the right to be forgotten, as he says—have had some success. In the spring, the European Court of Justice upheld the decision of a Spanish agency blocking Google from sharing two short articles about the debts of a lawyer in the newspaper La Vanguardia. While the newspaper could not be ordered to take down the articles, the Court held that Google could be “prohibited from linking to them in any searches relating to” the indebted lawyer’s name. As Toobin writes:

The Court went on to say, in a broadly worded directive, that all individuals in the countries within its jurisdiction had the right to prohibit Google from linking to items that were “inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed.”

While the decision has quite a bit of support in Europe, it has been widely criticized in the United States as a violation of the First Amendment, threatening both freedom of speech and freedom of the press. Where the right to privacy is held to be “a fundamental human right” in Europe, claims Stanford scholar Jennifer Granick, Americans are more sensitive to issues of freedom of expression; they prefer to deal with the privacy issues, if they do deal with them at all, in a piecemeal fashion. Europe’s position, as Toobin explains, comes out of the

And yet…

As Toobin goes onto explain, Americans can legally protect themselves from unwanted scrutiny or embarrassment on the internet through a different legal instrument: copyright law.

Because Google is extremely sensitive to the legal claims of those who own specific words or images, it steadfastly refuses to link to copyrighted materials and images (or allow people to post copyrighted videos on YouTube, which it owns.) So if a celebrity were to take a selfy, or if the Catsouras family owned the photographs of their daughter—they tried, unsuccessfully, to get the California Highway Patrol to give them the copyright—Google could be forced, or persuaded, to stop linking to any sites that posted them. That threat of copyright violation can be very effective.

In August, racy private photographs of Jennifer Lawrence, Kate Upton, and other celebrities were leaked to several Web sites….Several of the leaked photographs were selfies, so the women themselves owned the copyrights; friends had taken the other pictures. Lawyers for one of the women established copyrights for all the photographs they could, and then went to sites that had posted the pictures, and to Google, and insisted that the material be removed. Google complied, as did many of the sites, and now the photographs are difficult to find on the Internet, though they have not disappeared. “For the most part, the world goes through search engines,” one lawyer involved in the effort to limit the distribution of the photographs told me. “Now it’s like a tree falling in the forest. There may be links out there, but if you can’t find them through a search engine they might as well not exist.”

I don’t have much of an opinion about the fundamental issue in the article: the battle between the right to privacy and freedom of speech. Toobin presents the various arguments on all sides of the question, and it’s pretty clear that the European approach, favoring the right to privacy, raises many difficult legal and institutional issues.

What I’m more struck by is how little traction the right to privacy has in the United States, as compared to the claims of copyright.

I don’t know much about copyright law, either in the US or in Europe, but I can’t help wondering if one of the reasons its claims are so potent here, trumping those of privacy, is that copyright is  a property right.

The right to privacy, of course, is historically intertwined with property rights: in the Griswold decision, for example, which struck down Connecticut’s ban on contraception, Justice Douglas cited the Third Amendment, which forbids the quartering of soldiers in private homes, as the basis for a broad constitutional right to privacy. Even so, the right to privacy is not nearly as dependent on the claims of property as is copyright, which is a variant of intellectual property (patents and so forth).

Where copyright is designed to protect a person’s ownership over a text or image on the theory that that ownership benefits the public—if an author can reap the full monetary benefits from the production or sale of a text or image, she will be encouraged to produce those texts and images—the right to privacy is designed to protect a person’s claims against the public. Copyright protects a person’s property by conscripting it on behalf of the public (at least in theory); privacy shields a person from the public.

It’s interesting that an allegedly individualistic US is less sensitive to these issues of privacy than an allegedly collectivistic Europe, but the rights of privacy in the cases Toobin cites don’t involve any property rights. Save the damage to one’s reputation, which might gain some traction from the law if a person were powerful, but gets virtually none when a person is not.

The whole discussion reminds me of another Justice Douglas opinion: his concurrence in Heart of Atlanta Motel v. United States. In that case, the Supreme Court upheld Title II of the Civil Rights Act. That provision made it illegal for restaurants, inns, and public accommodations to discriminate on the basis of race. The Court claimed that Title II was a legitimate exercise of Congress’s power under the Commerce Clause. The majority held that Congress had the power to regulate interstate commerce, that the travel of African Americans to and from the South involved interstate commerce, and that ending segregation in these public accommodations would facilitate such travel.

In his concurring opinion, Douglas conceded that Congress had the right to use its interstate commerce powers in these ways, but he was discomfited by the Court’s resting Title II on that basis. He would have preferred to rest it on Congress’s power under the 14th Amendment.

Though I join the Court’s opinions, I am somewhat reluctant here, as I was in Edwards v. California, 314 U.S. 160, 177, to rest solely on the Commerce Clause. My reluctance is not due to any conviction that Congress lacks power to regulate commerce in the interests of human rights. It is, rather, my belief that the right of people to be free of state action that discriminates against them because of race, like the “right of persons to move freely from State to State” (Edwards v. California, supra, at 177), “occupies a more protected position in our constitutional system than does the movement of cattle, fruit, steel and coal across state lines.” Ibid. Moreover, when we come to the problem of abatement in Hamm v. City of Rock Hill, post, p. 306, decided this day, the result reached by the Court is, for me, much more obvious as a protective measure under the Fourteenth Amendment than under the Commerce Clause. For the former deals with the constitutional status of the individual, not with the impact on commerce of local activities or vice versa.

But American being America, commerce ruled. And rules. Like property.

What was it those two dudes said? “In bourgeois society capital is independent and has individuality, while the living person is dependent and has no individuality.”

Thinking about Hannah Arendt and Adolph Eichmann on Erev Rosh Hashanah

George Steiner writes somewhere that the deepest source of anti-Semitism may lie in three Jews: Moses, Jesus, and Marx. Three Jews who formulated a great and demanding ethics/politics, an almost unforgiving and humanly unbearable ethics/politics, that the rest of the world has repeatedly bridled at and hated. And never forgiven the Jews for. Setting aside the bit of self-congratulation that lies at the heart of that formulation—ah, we Jews, we’re so ethical and righteous—I wonder if some part of that may not lie at the heart of the rage and reaction that Hannah Arendt’s Eichmann in Jerusalem has elicited over the years. There is something unforgiving at the heart of that book. It is a relentless indictment—not just, pace what Arendt herself said later of the book, of one man, but of many men, and women—an indictment, despite Arendt’s best and professed intentions, in which ordinary readers (ordinary men) can’t help but see themselves. And an indictment in the name of (or at least implicitly and distantly in the name of) a difficult and demanding ethics and politics. An indictment that seems to stir the same kind of reaction to Arendt that historically was stirred up against the Jews. Oh, that Hannah Arendt: she sets herself apart; she thinks she’s smarter than the rest of us; she belongs to no one, not even the Jews. Only this time it’s not the reaction of just non-Jews to Jews, but also of Jews to a Jew. Shana Tova.

From the Arms Race to Climate Change, Conservatives Have Never Cared Much About the Day After

Sunday’s the big climate march in New York City, which I’ll be going to with my family and, well, a lot of other people. I had promised my friends Ted Levine and Carolina Bank-Muñoz that I would blog about it. But the last couple of weeks have gotten away from me.

But tonight I read a great post by David Roberts that my wife sent me. It’s about the conservative refusal to deal seriously with climate change. And it tells an unbelievable story.

I give you North Carolina, where a government-sponsored scientific report revealed that, by the end of the century, oceans would rise up to 39 inches and the Outer Banks would be under water — an economic and cultural cataclysm for the state.

Galvanized by the threat, the Republican-controlled legislature … threw out the forecast.

The state’s new Republican governor appointed a new coastal commission chairman, Frank Gorham, an oil and gas man who announced this spring that the new forecast would be limited to 30 years.

These are people who literally close their ears to the news that their own homes will be underwater…

Roberts tells this story as a counter to a friend of his, George Marshall, who thinks conservatives can be reasoned with on the question of climate change.

Marshall’s suggestions are sensible: find spokespeople within the movement to do the talking; frame things in terms of values like conservation, purity, and loss-aversion; avoid divisive, hot-button topics like cap-and-trade. My contention is simply that the [conservative] tribe is too far gone.

Count me on Roberts’s side of this one, but I want to take issue with that last “the tribe is too far gone” remark. Because it implies that once upon a time, they weren’t.

Now I’ve blogged many a time against the notion that once upon a time, conservatives were different, that they were like Edmund Burke and Bill Buckley. In fact, I’ve written a whole book against that notion. So I won’t rehearse those arguments here.

Instead, I want to focus on that North Carolina story and what it tells us about how conservatives think about time. Not necessarily about the environment, about which their views may have changed in response to political contingencies, but time. And the truth is, though conservatives are supposed to care about conserving the past for the sake of the future—hence, Roberts’ friend Marshall urging him to talk about “conservation, purity, and loss-aversion”—they’ve always had a strangely distended notion of time. Even Burke. An almost teenage, James Dean-esque, version of time.  In which we’re burning the candle at both ends, so why worry today about what we may not survive to experience tomorrow?

I was going to write more about this and then remembered that I already have in a previous post:

In my junior year of high school, ABC televised a film, The Day After, about what the world would look like after a nuclear war. This was a time, some of you might recall, when talk of “nuclear winter” was all the rage. One of the strongest memories I have of the film was of its depiction of that winter. Dust and debris were everywhere; they looked like snow flakes of death, made to match the color of Jason Robards’ hair.

After the film was aired, Ted Koppel convened a panel of worthies—Henry Kissinger, Robert McNamara, Brent Scowcroft, Elie Wiesel, Carl Sagan, and William F. Buckley—to debate its implications. I can’t remember much of what was said, but one comment from Buckley has stayed with me all these years (see 2:45 in this video link).

In response to a provocation from Wiesel—who asked how it was possible for his co-panelists even to talk about a nuclear war, as if such a war could be fought and won (one wonders where Wiesel had been all those years)—Buckley said:

I think we do have to talk about it. Dr. Kissinger, twenty-five years ago, got hell for consenting to talk about it. So did Herman Kahn. The fact of the matter is here we are talking about all the tensions we’re going to be living on, fifteen years from now, twenty years from now. Well, the implied assumption is we’re going to be alive fifteen years from now, twenty years from now. That’s pretty good news, isn’t it?

Someone else on the panel, perhaps Scowcroft, muttered an encouraging “yep,” and Buckley went on. Until Koppel broke in:

Fifteen years may be pretty good news to men of your generation and mine. I suspect that some of our children might regard that as a rather limited life span.

The conservative imagination is supposed to prize longevity and continuity. It is the wisdom of old men. Yet here we have its most genteel modern tribune sounding like Edna St. Vincent Millay, happily mooting his own extinction and that of his child, declaring the shelf life of civilization to be little more than the life span of a reckless teenager. This is not Rambo conservatism but Rimbaud conservatism, betraying less a disregard for death than an insufficient regard for life.

When conservatives in North Carolina in 2014 hear “by the end of the century” in the context of climate change, they’re responding the way Bill Buckley did in 1984 in the context of the nuclear arms race: You’re saying we’ve got 15 more years? 20 more years? That’s pretty good news, isn’t it?

No, it’s not.

See you on Sunday.

Chronicle of Higher Ed Profiles Me and My Blog

Marc Parry has written a long profile of me, this blog, and my work and activism in the Chronicle of Higher Education.

Some excerpts:

The Salaita Affair has riveted academe. One story line that has drawn less attention is the role played by Mr. Robin. For more than a month, the professor has turned his award-winning blog into a Salaita war room, grinding out a daily supply of analysis, muckraking, and megaphone-ready incitement.

…

“A lot of people see him as an intellectual leader,” says Michael Kazin, a professor of history at Georgetown University and co-editor of the magazine Dissent. “He can be counted on to battle people.” (Those people include Mr. Kazin, who crossed swords with Mr. Robin last year when Mr. Kazin published an article critical of academic anti-Israel boycotts.)

…

Mr. Robin is something of an odd fit for his current role.

Although people constantly ask him to speak about the Israel-Palestine question, he turns down the invitations because he does not consider himself an expert on the subject. His current scholarship focuses on the political theory of capitalism. His last book, The Reactionary Mind (Oxford University Press), was a much-debated collection of essays about conservatism.

And although he has been lauded as the “quintessential public intellectual for the digital age,” Mr. Robin is really something of a technology dinosaur.

The professor does not own a smartphone. He flees the Internet by riding New York’s subway trains for four hours at a time after dropping off his 6-year-old daughter at school or camp. He devotes these trips to reading: ­”Schumpeter in Queens, The Theory of Moral Sentiments in the Bronx, Hayek in Brooklyn,” as he wrote in one post.

Like an addict, Mr. Robin tries to set boundaries for his habit. For instance: No blogging first thing in the morning. That way the process won’t eat up his whole day.

“I’m always telling myself, ‘OK, this is the last day I’m blogging,’” Mr. Robin says.

When I arrived at his apartment for an interview around noon one day this week, he had already violated his no-blogging-in-the-morning rule. Twice.

…

Mr. Robin can be a pugnacious online presence. During the BDS donnybrook, for example, he ripped a former student, Jumaane D. Williams, who had gone on to become one of the City Council members critical of the event. “U took my class on civil liberties,” Mr. Robin wrote in a series of tweets directed at Mr. Williams. “Pressure from govt officials on campus speech is ok? That’s what U learned?”

In person, though, he comes off as polite and cool-headed (mostly). The professor is a compact man with rosy cheeks and light brown hair that falls over his forehead; on the day of our interview, he wore a wrinkled white shirt and dark slacks, which gave him the look of an off-duty waiter.

Recent years have radicalized his views on the role of the academy in Israel debates. Previously, he didn’t have a position on BDS and even sympathized with critics who questioned the relevance of such boycotts. He now supports the movement. “I think the academy actually is quite important on the Israel debate,” he says.

…

In the Salaita case, Todd Gitlin faults Mr. Robin for failing to engage with the substance of Mr. Salaita’s tweets, at least as far as Mr. Gitlin has seen. Mr. Gitlin, a professor of journalism and sociology at Columbia University, points to this Salaita tweet from July: “There’s something profoundly sexual to the Zionist pleasure w/#Israel’s aggression. Sublimation through bloodletting, a common perversion.” As Mr. Gitlin views it, “Salaita crossed the line from incivility to rank hatred.”

Mr. Robin has actually blogged about one of the most potentially offensive tweets. More broadly, though, he acknowledges “deliberately not engaging in the content.”

As he explains why, he seems on the verge of exploding.

“Todd Gitlin and I could go back and forth for days,” he says. “Parsing tweets! Like, tweets! Tweets!”

“The serious thing to do is to figure out what’s actually happening,” he says. “An outspoken critic of Israel, speaking in an inflammatory way about it, being punished and drummed out of the academy—that’s what’s happening.”

Getting into the details of the tweets, he says, is “missing the forest for the trees.”

Wished I had remembered, when I was talking about why universities and academics like Steven Salaita get targeted in the Israel/Palestine debate, that I had remembered this, from Hobbes’s Behemoth:

The core of rebellion…are the Universities; which nevertheless are not to be cast away, but better disciplined.

Barack Obama’s Upside-Down Schmittianism

Reading this post by David Cole—on Obama’s unauthorized war on ISIS—my mind drifts to the German political theorist Carl Schmitt.

Schmitt famously defined the sovereign as “he who decides on the exception.”

Long established and stable constitutional regimes presume and rest atop legal routines, social patterns, political order, normalcy: “For a legal order to make sense, a normal situation must exist.” In such situations, political authority is constrained by a set of rules and its exercise of power is almost as predictable as the social order itself.

But there are moments in the life (and death) of a society that exceed the boundaries of these laws and routines, moments, as Schmitt says, when “the power of real life breaks through the crust of a mechanism that has become torpid by repetition.” Such moments are ones of grave existential threat. The decision as to whether we are in such a moment—that is, whether we are confronting “a case of extreme peril, a danger to the existence of the state”—is not self-evident. Such a decision cannot be made in accordance with, cannot be prescribed or contained by, these laws and routines. Such a decision does not emanate from a constitutionally authorized office or conform to a preestablished list of specified conditions. It must instead by made ex nihilo; it necessarily “emanates from nothingness.” It is a decision that, in the very doing, sets out and enacts the grounds and norms of its own justification.

He who makes such a decision is sovereign.

I was reminded of Schmitt’s teaching, as I said, by Cole’s post on Obama’s unauthorized war on ISIS. Here’s Cole:

In his speech, President Obama avoided the word “war,” but that is the more common word for the kind of sustained military campaign he described. And under our constitution, the president cannot go to war without congressional approval except in narrow circumstances not present here.

…

Obama has given no indication that he intends to seek Congress’s authorization for airstrikes. There has been some talk of obtaining approval to send troops to train Iraqi forces, but Obama apparently thinks he doesn’t need any authorization to drop bombs from the sky with the aim of killing human beings—even in a country, Syria, where he plainly will have no permission from the sovereign to do so….On Meet the Press this Sunday, Obama claimed, “I have the authorization that I need to protect the American people.” The host, Chuck Todd, didn’t press him on where that asserted authority comes from. Congress certainly has not given it.

Under the Constitution, whether to use military force is Congress’s decision, not the president’s. The framers gave Congress the power “to declare war” and even to authorize lesser uses of force, through what were at the time called “letters of marque and reprisal.”…

There is one situation in which the president can use military force without congressional authorization—when responding in self-defense to an attack or an imminent attack. But Obama has not made that argument in announcing the campaign against ISIS. As he said on Meet the Press, “I want everybody to understand that we have not seen any immediate intelligence about threats to the homeland from ISIL. That’s not what this is about.”

I am quite sympathetic to Cole’s argument, but something about its relation to American history gives me pause. Take Latin America. In the last two centuries, the United States has intervened militarily in that continent literally dozens of times. In Mexico, Panama, El Salvador, Nicaragua, Guatemala, Haiti, Dominican Republic, Grenada, Cuba, and more. It has sent troops, occupied cities, killed foreign soldiers, overthrown governments, created new governments, and governed militarily. The history of the United States in Latin America is of one damn war, at least as Cole understands that term, after another. And only two of them declared by Congress. Both in the nineteenth century.

Thinking about Obama’s war on ISIS in the context of that history, it’s hard for me to summon anything but a “shocked shocked” indifference to the president’s disregard for the Constitution. I’m not proud of that, and I’m not trying to proffer a knowing cynicism against Cole’s quite sound legal arguments. It’s just the history that overwhelms me.

Which brings me back to Schmitt.

Against virtually everything Schmitt argued in Political Theology—he does offer this throwaway line as a parenthetical observation: “not every extraordinary measure, not every police emergency or emergency decree, is necessarily an exception”—in the Unites States, the legally and constitutionally prescribed path to war has been the exception, and the unauthorized, extra-legal (if not illegal) military expedition has been the rule. At this point, he who would decide the exception—that is, he who would be sovereign, he who would make a decision that “emanates from nothingness”—would be he who seeks a constitutionally authorized congressional declaration of war.

We thus confront a situation of upside-down Schmittianism, in which war is “the crust of a mechanism that has become torpid by repetition” and law “the power of real life” that might break through. Which could be grounds for hope, were it not for the fact that the law is almost as lifeless as the victims of America’s torpid, repetitive wars.

Forget Pinkwashing; Israel Has a Lavender Scare

Speaking of McCarthyism, 43 veterans of an elite Israeli intelligence unit have not only come out against Israel’s treatment of Palestinians but declared that they will no longer “take part in the state’s actions against Palestinians.” The intelligence on Palestinians that they gathered, they claim, “is used for political persecution,” which “does not allow for people to lead normal lives, and fuels more violence, further distancing us from the end of the conflict.” According to the Times:

In the testimony and in interviews, though, the Unit 8200 veterans described exploitative activities focused on innocents whom Israel hoped to enlist as collaborators. They said information about medical conditions and sexual orientation were among the tidbits collected. They said that Palestinians lacked legal protections from harassment, extortion and injury.

One of the hallmarks of a repressive state, particularly in the twentieth century, is the use of blackmail against gays and lesbians in order to get them to collaborate and inform on their friends, colleagues, acquaintances, and other potential or actual dissidents. The Stasi was notorious for turning gays and lesbians into collaborators (see pp. 567ff); one of the key figures in Timothy Garton Ash’s The File—Schuldt—is just such an informant. So pervasive was the use of this type of blackmail during the Cold War that it also figured prominently on the US side: one of the main justifications proffered for drumming out gays and lesbians from the federal government during the McCarthy era was that they were susceptible to being blackmailed by the Soviets. Though no one ever found a single instance of that.

Now here comes news that the Israeli state is doing the same thing among Palestinians. It will be interesting to see how the people who were so rightly appalled by the Stasi’s recruitment of gays and lesbians to a repressive state apparatus—including Israel defenders like James Kirchick—and who routinely hold up Israel’s record on gays and lesbians as a measure of its freedom and democracy (critics of Israel call that “pinkwashing”) will rationalize this away.