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Obama’s Zones of Ambiguity

by WILLEM de LINT and ADAM POCRNIC

“Fascism is capitalism plus murder.”

― Upton Sinclair

“If the president does it, it isn’t illegal.”

― Richard M. Nixon

In a 5-4 ruling labelled “Kafkaesque” the Supreme Court refused an application by a group of activists including Chris Hedges, Daniel Ellsberg, and Noam Chomsky to vacate a stay on an injunction barring the use of indefinite detention on the finding that the plaintiffs could not prove that they were subject to provisions of the National Defence Authorization Act.

Developed from the writings of Franz Kafka, “Kafkaesque” describes individual experience within punitive bureaucracies – including alienation, powerlessness, uncertainty and vulnerability – that arise as the individual finds himself confronted with Catch-22 dilemmas.

In Kafka’s Before the Law a man waits his whole life to gain entry to the law but is prevented by the doorkeeper from doing so. The doorkeeper assures the man that entry is possible but does not indicate how, leaving open the possibility that he must change rules that are not accessible or use extraordinary means that would be offensive to law’s rule. When the man is about to expire from old age the doorkeeper closes the gates, remarking that this portal was only for him, without whom it serves no purpose.

Unlike the man of Kafka’s parable who lacks the nerve to resort to exceptional measures, President Nixon was only too honest in remarking to David Frost that illegality and the presidency cannot be one and the same. And although bothered by the pesky UN Special Rapporteur on Torture – who has not put to rest the file on rendition-torture – GW Bush, Tony Blair, and other powerful world leaders believe that law is an executive instrument that cuts one way.

Obamaesque is presidential vigour that capitalizes expressly on the ambiguity between law and presidential action. It is supported by constituency disempowerment. It is the sometimes secret, often duplicitous and even capricious work that is done to build up a zone of executive freedom and decision-making. Finesse in this domain is marked by the ability to talk eloquently about all those connective values that inspire liberals.

It is to wag the finger above the rule of law, civil rights, the Constitution, and liberal democratic principles. Most importantly, it is to seize the constituency opportunity to expand the zone even more aggressively than conservatives. The Obama administration has carved out more space and used the zone of ambiguity most purposively because in addition to the support of law and order jingoists and xenophobes on the right they can count on the immobilization of all of the centrists that prefer the Obama brand to the alternative.

Under GW Bush war was popularized in Orwellian newspeak as perpetual, asymmetrical and targeted against a tactic (terrorism) rather than an ideology, territory or people. With a motley coalition in tow, Bush soapboxed on WMD, ignored UN Charter illegalities and invaded Iraq.

Perpetual war, restarted time and again, has never been off the table. Theodore Roosevelt understood this, “I should welcome almost any war, for I think this country needs one.” During each relaunch the zone of ambiguity is extended. The zone does not so much swallow up (legal) liberal democratic values as capitalize on them. A state of exception is its legal instrument. Accordingly, national security should provide sufficient cover until executive decision-making is made legal retroactively, as in the case of NSA surveillance and extrajudicial assassination.

Obamaesque comes to Washington most Tuesday mornings in a festive meeting between the Potus and his advisors in deliberations over the unofficial “kill list”. To do one better than the perpetual, asymmetrical war against a chameleon target is to do it from the arcane vantage of constitutional law and institutionalized cowardice. It is said that the Potus will be limited in the tactical deployment (action) of drone warfare on American soil. However, in a state of exception options are not removed from a table that spreads out long and deep with game and fare both lawfully and unlawfully obtained.

Within the zone of ambiguity is the brain trust of the Potus. Barristers and solicitors finesse and contrive law following Obamaesque concerns. Jurisprudence is made compliant with executive discretion. If the Constitution obliges a legal process of assessment before government is able to “kill an American,” Anwar al-Awlaki and his teenage son were made amendable without judicial review. The broad strokes of Barron and Lederman’s pen equipped the strike force with a law that is ever present even in abeyance – that constantly awaits the rewriting of law. Ironic, but Obamaesque, since both Justice Department lawyers wrote against the Bush Administration’s ubiquitous power to supersede liberty in the name of security.

When considering our own options and to avoid being erased in a signature strike, we are asked to shrink from the nostalgia of human rights and to revise our tags. Gone are heady the days of resistance, gone is Jam Echelon. The onus has been reversed. It is you who are invited to adjust your behaviour. Do it with a view to helping those who disappear others by disappearing yourself as an algorithm presented as a blip on a screen or reviewed on the kill floor. Don’t be provocative. Think twice before you search for like-minded people or pen that extols your favourite political hero. Let that be your act of preventative asymmetry – or good citizenship. Imagine yourself a Muslim before you leave cookie trails of connective threads. Attorney General Eric Holder imagines. In the glint in his sanguineous eye, the Potus imagines.

To be Obamaesque is to love the Espionage Act more than all previous presidents combined. When former CIA agent John Kiriakou blew the whistle on the practices of the U.S. torture program he was sentenced to more than a year in jail. When former NSA employee Thomas Drake challenged standards of procedure in relation to the Trailblazer project he faced investigation and the charge of espionage. When Bradley Manning tried to show Americans the “true cost of war” he was imprisoned without charge and is only now beginning to see the light of an enthusiastic public prosecution. In zones of ambiguity liberal democratic ideals are the pointy end of the nail that drives the state deep into the data files you used to know as your home and sanctuary.

As government by secret state the Bradley Manning prosecution and the NSA warrantless wiretapping case are quintessential Obamaesque. The former suggests that any future leaking of suspect government action will be met with strong resistance and the most serious charge available. And what true American patriot would disagree that the secret state should have standing as a worthy victim of crime no matter its provactive excesses?

The latter is equally troubling. Despite soothing words to the contrary, the sorry record of trumped-up terrorism entrapments relying on the invisible hand of the NSA should give you pause as you produce your own “profile of perilousness.” As whistleblower William Binney has revealed, the NSA data repository in Bluffdale Utah can store 100 years of the world’s total electronic communications. Even the FBI’s lowly Naris program records the emails of nearly every US citizen. Now you can be matched up for a signature and strike. The underlying justification is just now receiving retroactive approval via the asymmetrically reassembled forward-looking Constitution, brought to you by the Supremes.

Potus Obamaesque? When you stand up and publicly hector others on human rights before meeting in secret to oversee a “kill list”. When you are offered change you can believe in but are served a double helping of the same old kleptocracy. When you are told that leadership means looking forward and not backward upon war crimes and human rights abuses (as Robert McNamara notes, war crimes belong with losers). When you become known as a grassroots organizer and then proceed to co-opt the cause for increased acceptance. When you declare criminality legal (foreign assassinations and domestic surveillance of Americans) instead of limiting criminality. When you talk like a liberal but wage war like a neocon. When you forget about what it might be like not to expect duplicity in political speech and action.

Let us now return to Kafka’s parable with a little attitude from Obamaesque.  By our reading, the gatekeeper seems to impose himself before the law. Charisma has warmed him up, but hasn’t shaken his resolve. So our man leaves and returns with a look of boyish determination and two colleagues. One is well-built, no-nonsense, discretely armed, and fortyish. He is sporting an earpiece and shades despite the overcast weather. Let’s call him colonel Steel. The other is oligeaginous and wears a briefcase like an appendage. Let’s call him Mr. Holder. Our man approaches the gatekeeper, the other two hanging back. A throbbing noise becomes vaguely perceptible from the sky.

Well, you can guess how this plays out. The doorkeeper is offered one of two choices. He can consult with Mr. Holder and sign the papers that declare a zone of ambiguity and change the rules accordingly to allow the gates to open without a fuss.  Or he can get to know colonel Steel, after which he will be attending the signing ceremony and be pleased to stand and watch as the gates are opened, although not with much dignity intact. In the meantime, his “quaint” objection to the manner of access to law will be studiously recorded and may even see the light of day, after a requisite 50 years as a national secret.

Willem de Lint Willem is a professor in criminal justice at the Flinders University of South Australia. He is currently writing on counter-terrorism, blended policing, and resilience. He can be reached at willem.delint@flinders.edu.au

Adam Pocrnic Adam is a postgraduate student at Flinders University of South Australia. He is currently completing a doctoral study of Occupy and public order police interaction. He can be reached at adam.pocrnic@flinders.edu.au

 

 

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