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The NSA and the Emancipatory Limits of Legal Liberalism

by ANDREW SMOLSKI

The formal institutional legal structure of our society is meant to deal with concrete circumstances; events that have already occurred or could possibly occur due to an actual prior pattern of occurrence. In order to maintain a universal principle of how laws are applied, at least in normative theory, the law can’t deal with ad hoc justifications for it based on possibilities of future patterns of occurrence. The law must treat all occurrences and patterns of occurrence through a universal application of the law and disregard any and all possibilities of future occurrence unsubstantiated by prior patterns of occurrence as beyond its realm to legislate.

The reason possibilities of future patterns of occurrence without prior actual patterns of occurrence are not sufficient for a liberal legal framework is the liberal legal framework’s roots in empiricism. Empiricism’s doctrine is about the ‘sense’ or experience of an event. If the event has not occurred prior, philosophically speaking, the empiricist would not consider it as real. Therefore, in order to degrade the indiscriminate use of law applied arbitrarily, the liberal’s law does not permit preemptive prosecution of perceived possible future illegality. It does however permit the investigation of perceived current illegality due to prior patterns of actual occurrence.

This is why the 4th amendment to the Bill of Rights exists, to protect against unreasonable searches and seizures (i.e. intrusive and unnecessary investigations). As well, a Federal legal code has been established detailing how criminal cases are legally executed based upon due process arising from the 5th amendment (i.e. the State is not allowed to arrest and indict arbitrarily). Because investigation is necessary to discover illegality and because illegality can also be the nature of the State’s actions, restrictions are placed on the investigative capacities of the police. Empiricism is then both the argument against the indictment of an individual for crimes not committed and an argument for the investigation of possible crimes based upon actual prior patterns of occurrence. It is not the investigation of unsubstantiated possibilities of future patterns of occurrence.

Even further based on the Magna Carta and English common law, the purpose from the perspective of the political multitude has always been to curtail the State’s legal power to surreptitiously remove a citizen’s freedom. History then from this standpoint has been driven by a constant opening of political freedom, and legal freedom has been an accompanying auxiliary after-effect of political freedom. This drive has always been a critique or reaction to authoritarian political and legal structures and agents; which/who can arbitrarily make legal judgments based on the unsubstantiated possibility of future patterns of occurrence. The purpose was always to increase the qualitative capacity for justice in the formal institutional legal framework concretely applied in a given society by increasing the rights of the citizens against the State. This has been done through legal constraints upon the State in how it carries forward investigations and its ability to intrude into the lives of its citizens.

This discussion applies directly to the NSA program. By utilizing a possible future crime, they are ruling out an empiricist justification for law. No longer is crime tied to a sensed event or pattern of events. Instead, it operates purely as an illusion beyond the capacity to disprove it, because it has no materiality. Now, the NSA data collection program could be reasonable, if it was reasonable to assume that the majority of Americans were in contact with terrorists (i.e. a prior pattern of Americans interacting conspiratorially with terrorists). Since this is a completely ridiculous notion, they are basing their legal claim on arguments that fly in the face of the universal empiricist liberal legal framework, which is the groundwork of our formal legal institutions. The notion that by collecting data they may stumble upon illegality removes the 4th amendment protections and also destroys 5th amendment protections about self-incrimination by removing personal privacy.

By tearing asunder this legal framework, the government is paving the way to arbitrary and indiscriminate use of the law. Judging before the occurrence, before the sensed event, is to state no crime must occur in order for someone to be guilty or at least perceived as suspect. The law would lose all meaning, except the meaning conferred upon it by those with power. The democratic aspects of law are those which remove meanings conferred by power and replace them with meanings arrived at by consensus between equal citizens. The NSA represents a retrograde version of the law and a horrendous corruption of American values. The program criminalizes the entire population by investigating based on the unsubstantiated possibility.

Hence, the NSA legal doctrine is very un-American and anti-liberal in the worst ways. Its complete disregard for the empirical legal principle of innocent until proven guilty, which means an evidentiary empirical claim based on a real event’s occurrence, should enrage all of us. It is a clear, if shrouded, attack on personal, legal and political freedom. Yet, it would be foolish and naïve to act as if the normative theory of the universal empiricist liberal legal framework was how the world actually operated. The question is put thus; ‘What are the internal contradictions of the universal empiricist liberal legal framework that produce a society operating contrary to its founding politico-philosophical and legal principles?’

The universalistic framework based upon empirical judgment of events that have occurred falters on the liberal political framework based on the sovereignty of the State to confer rights removing power from the multitude. The collected data becomes a representation of our lives, because we are voiceless in presenting our lives within this framework. We are defined by data and categorized, our assessment leading to possible pre-event action against us. Our political claims become either non-existent or worse mangled copies of our actual propositions and demands.

In this sense the NSA embodies the eclipse of reason as objective rationality, traded in for a technical process, a quantifiable life that lacks luster. Everyone one becomes a possible terrorist, with the meaning of terrorist morphing into a fangled hodgepodge of the State’s paranoid thought processes and reactionary actions. The State’s bricolage of symbols representing threats to its secretive existence, a woefully dangerous fantasy of the ability to preempt all actions against it by defining what is illegal based on unsubstantiated possible future events of criminality. Data is not life. The idea that a life can be mapped out in all its qualitative complexity through the use of algorithms and graphing programs is ridiculous. Ludicrous might be a more apt word. What post-structuralist studies of meaning have shown us is that life is not singular. It is varied, deep and in some ways irrational. Life cannot be plotted with any exactitude. Yes, there is the ability to show forms of probabilistic causality, but life is funky and carries with it discontinuities and fractures.

How would an NSA agent ever understand the differences between sarcasm, metaphor or real discussions about terrorist acts? Or how do they deal with the justifications for said actions and attempt to remedy possible disputes? By singularizing the legal framework in terms of a violent, repressive and over-rationalized State apparatus, they exclude life. Yes, it may be justified in terms of it being a protective State, but patriarchy maintains violence as its tool and removes power, power centralized in the hands of a few. And this is where the legal framework we have falters. Because it is imposing in its sense as a universal doctrine, those who wield power are able to act as if they make universal legal claims. The NSA represents the limits of a liberal legal and political framework’s emancipatory ability, because the liberal framework gives meaning construction away to an autocratic system of technicians. They are enabled with the institutional role to define how the legal framework operates and is executed.

For an example of power’s ability to develop meaning, I want to employ the concept of the citizen in terms of how our legal principles are applied. Our legal principles should not end with the semantic limits of the word citizen. By placing this limit on our legal principles, the NSA was allowed to backdoor this program as it slowly grew like a virus eventually returning to the domestic theatre. Because the universal legal claims are tied to the word citizen, they are actually limited universal legal claims. Yet, what is the difference to us ‘citizens’ whether or not someone else is a citizen in terms of our legal framework being extended to them as well?

By allowing the term to be constructed by the State, the State then has the ability to define who the enemy is. This is important, because in order to justify large military expenditures and the legitimate use of violence, the State needs to claim an enemy from whom they defend the population. When there has been no attack on the State or the citizens, the State must once again act based upon perceived or possible threats, a possible enemy. Therefore, the State does not extend rights beyond the citizen, because every non-citizen is a future possible enemy. This is clear as a cloudless day. The State must leave itself an opening; it must disregard the need for an event to occur in order to leave open possible retroactive judgment of a future possible enemy. The NSA data collection centers on this eventuality of the future possible enemy. It is also this need for an enemy that drives the patriarchal paranoia of the State. Why else would the State need to justify the NSA program in terms of the future possible attack or the future possible unnamed and anonymous enemy symbolized by the word terrorist?

So, instead of pushing the limits of citizen further to some international universalistic legal claim, the limits of terrorist were pushed to include any and all future occurrences, however abstract and unsubstantiated those events may be. All of this undercuts the universal and empirical legal framework, because the State becomes the sole decider in the meaning of the law. Therefore, the State is able to twist the framework based upon the concrete application of universal law on empirical events into the retroactive or preemptive judgment based on arbitrary ad hoc interpretations of legal meaning.

The ‘citizen’ is too tied to a nation-state, to politico-geographical boundaries, enclosing into itself the very framework legitimating the State’s intrusion. In order for the State to protect its ‘citizens’ from the future possible enemy, it’s ‘citizens’ must be treated themselves as future possible enemies of the State. At least this is how the NSA program is operated, its logic. Contrary, I believe, to the belief that we are all citizens with the same universal legal and political rights. Instead, under this logic, we are all future possible enemies. The maintenance of both cases is not pragmatic, but an affront to a universal interpretation of law. It is an either…or proposition. By allowing the State to decide on future possible enemies without our democratic consent, they are then able to decide on legal meaning and ipso facto declare that we are all possible future enemies of the State, citizen or not.

Therefore, the liberal legal framework offers a glaring internal contradiction. Even though the liberal legal framework is based on universal application to empirical events, it gives the power to decide legal meaning to a State that maintains the legitimate use of violence through its ability to lay claims to who is an enemy of the State. The State, by exiting from the world of actual events and retreating into the infinite void of unsubstantiated possible future events, alters the legal framework to its benefit. You cannot have universal application when a certain segment of society has the power to alter legal meaning to its benefit at will. Empirical events no longer matter, because everyone is now a suspect without prior patterns of criminal activity to demonstrate this to be a reasonable way to go about investigations. The very State that gives the liberal legal framework its impetus is then, also the very real limit to any emancipatory project within the universal empiricist liberal legal framework.

This leaves us with a few, more critical questions to ponder. I will not answer these here, but please do ruminate on them. First, is a universal application of law possible without law emanating from the State? Second, is a universal application of law actually a good? Or, is it a remnant of a euro-centric era, excluding societies whose history is not tied to liberalism? Lastly, in terms of the legal framework as it now stands, is it possible to retrieve our personal privacy from the ever encroaching national security State? Troublesome and yet pointing to a new opening for the multitude.

Andrew Smolski is building his own micro-politics of desire little by little and brick by brick doing his part to rebuild the dreams of the oppressed, such as himself, for multiple better worlds. He can be reached at andrew.smolski@gmail.com

Andrew Smolski is a writer and sociologist.

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