Hannah Arendt Center for Politics and Humanities
4Jan/120

Why and What You Should Know About the NDAA

On New Year’s Eve President Obama, despite serious reservations, signed into law a bill that has generated much controversy and charged rhetoric over the last few weeks. That annual bill, the National Defense Authorization Act, specifies the budget and expenditures for the Department of Defense. But the 2012 NDAA is not restricted to the technicalities of the budget. Embedded within the act, as carefully broken down by Glenn Greenwald in an article for Salon, are several sections enabling indefinite military detention without trial and expanding the scope of the War on Terror even further.

The section in question, “Subtitle D- Counterterrorism,” codifies the following:

  1. The indefinite detention, without trial, by the military and under military rather than civilian jurisdiction, of certain classes of persons;
  2. The persons covered by the Bill include not only persons who are part of terrorist groups, but also those who offer substantial support to terrorist groups, a vague standard that in recent cases has been applied to lawyers and human rights activists;
  3. U.S. Citizens are, in certain circumstances, also subject to indefinite detention by the military;
  4. The use of funds to build a facility in the US for Guantánamo detainees and the transferring of those detainees to the US for any reason is prohibited, rendering the closing of Gitmo impossible.

Some argue that the NDAA merely codifies detention authority that the administration and the military have already claimed, both in their actions and in the 2001 Authorization for Use of Military Force. This argument does hold some weight, particularly because the NDAA’s purposeful ambiguity, as well as Obama’s stated concern about “certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists,” makes it difficult to determine exactly how the provisions will be used.

But even if it is the case that the NDAA does not constitute a major change in policy (which Greenwald and others dispute), the fact that the NDAA’s provisions put the legislative weight of Congress behind such policy is no small tragedy. From the ACLU to Human Rights Watch to Ron Paul (who called one of its earlier versions “a slip into tyranny”), the NDAA has been denounced for its frightening disregard for the rule of law and the US Constitution. ACLU’s executive director, Anthony D. Romero, had particularly strong words about the bill’s signing:

President Obama’s action today is a blight on his legacy because he will forever be known as the president who signed indefinite detention without charge or trial into law…We are incredibly disappointed that President Obama signed this new bill into law even though his administration has already claimed overly broad detention authority in court. Any hope that the Obama administration would roll back the constitutional excesses of George Bush in the war on terror was extinguished today.

Sadly, what is clear is that the NDAA further entrenches what was already unjust and legally questionable policy. The fact that the bill passed both the Senate and the House, as well as avoided a presidential veto, is unfortunately not a testament to its validity or harmlessness, but to just how much compromising of constitutional values we’ve let ourselves swallow.

The NDAA is the latest manifestation of the crisis mentality that has gripped Washington since the so-called War on Terror began. It seems that we are living in a chronic state of emergency, in which a policy as un-American as indefinite detention is justified simply by claiming that it is keeping us safe. As Elaine Scarry writes in her recent book Thinking in an Emergency, there is an unspoken presumption in times of emergency that either one can think or one can act. We bypass deliberation exactly when it becomes most necessary. Arendt agreed, believing that in exceptional times deliberation and judgment must come to the forefront in all political matters. For her, the faculty of judgment is not the ability to know right and wrong abstractly, but the ability to tell right from wrong, in a given situation.

In the case of NDAA, Congress has washed its hands of its responsibility to think, to determine what is right and wrong in this War of Terror. Instead Congress and the President have handed off authority to the military to use as it sees fit, taking refuge in the bill’s ambiguous phrasing to avoid having to take a real stand. In their unwillingness to say, in law, that indefinite detention is wrong, our politicians have made what was an implicit policy an explicit statement: this is what America does.

You can read Glenn Greenwald’s article here, the ACLU’s statement here, and Obama’s written statement on the detention provisions here.

-Anna Hadfield

 

The Hannah Arendt Center
The Hannah Arendt Center at Bard is a unique institution, offering a marriage of non-partisan politics and the humanities. It serves as an intellectual incubator for engaged thinking and public discussion of the nation's most pressing political and ethical challenges.
15Nov/111

Thinking in an Emergency

Bard student, Anna Hadfield reviews a new book by Elaine Scarry, Thinking in an Emergency.

Emergency, Elaine Scarry writes in her new book Thinking in an Emergency, is a claim that shuts down thinking in favor of action. When states make the claim of emergency, they are insisting that the nature of the situation requires that all existing procedures and deliberation be bypassed so that appropriate and rapid action can be taken. “The unspoken presumption,” she writes, “is that either one can think or one can act, and given that it is absolutely mandatory that an action be performed, thinking must fall away.” Emergency, therefore, justifies the abandonment of thinking.

According to Scarry, this dichotomy we perceive between thinking and acting is false. This is because, as she writes, “the acts of thinking that go on in an emergency are not recognized by us as acts of thinking.” These acts of thinking are habits, our “internalizing regulating mechanisms.” Like deliberation, which constrains our irrational impulses and forces us to stop and think about what we are doing, habit is a limiting force; it narrows the field of possibility in an emergency because it predisposes us to particular behavior and actions. The habits that take over in an emergency are by no means necessarily arbitrary; they can be consciously learned or practiced prior to an emergency so that they can come into play should one occur. Indeed, Scarry often equates habits with laws, protocols, and procedures, regulatory measures that we deliberate in advance of when we will need them.

The American Constitutional provisions that require particular steps be taken before we resort to military action are such habits; they are structures that are meant to automatically take over in an emergency. Yet these Constitutional roadblocks, or “stop and think” procedures, have been largely ignored since the invention of nuclear weapons. “Complaints are often made that involving Congress and the population in war decisions will slow down the act of going to war because so much energy is needed to persuade them. That is precisely what the Constitution intended,” Scarry writes. This displacement of thinking is not confined to the US alone: all eight of the nuclear powers, for example, have ceded control of nuclear weapons to their presidents or prime minsters, thereby removing legislatures and citizenry from the decision-making process. The practice of public and legislative deliberation has been pushed to the side exactly when deliberation seems most crucial, when just a few quick decisions have the potential to kill tens of millions of people within several hours.

The importance of thinking in an emergency, which is at the root of the constitutional brake on war, is illuminated by Hannah Arendt in her essay Thinking and Moral Considerations. Like Scarry, Arendt comments on the dichotomy between thinking and acting. In her discussion of what she terms “thinking as such,” Arendt notes that there is in fact a paralysis that accompanies the act of thinking and writes that “thinking’s chief characteristic is that it interrupts all doing.” However, while Arendt calls thinking a “resultless enterprise,” she by no means wishes to imply it is worthless. Not only does thinking actualize the “difference within oneself” by alerting us to our own consciousness and creating a dialogue with our individual selves, thinking also liberates judgment, which is the manifestation of thinking in the world of appearances.

Both Scarry (drawing from Aristotle) and Arendt differentiate between two different types of thinking. The first is the perception/contemplation type of thinking (“thinking as such” in Arendt’s terms) which does not aim for practical answers and which will never be able to demonstrate, once and for all, what “right” is and what “wrong” is as abstract notions. The second is deliberation, or, for Arendt, judgment, which enables the taking of action and is how we decide whether to do one thing or another. Deliberation/judgment deals with tangible particulars and ends in tangible results. It is not the ability to know right and wrong abstractly but rather the ability to tell right from wrong, in a given situation.

In an emergency, Arendt writes, “thinking ceases to be a marginal affair” and instead comes to the forefront in all political matters. Thinking as such, which brings out the implications of unexamined opinions and destroys them, is suddenly of much use in dire times, because it enables judgment. When we are confronted with the possibility of war, our primary approach is not to think in terms of what is a “just war” and what is an “unjust war”, abstractly. Rather, we attempt to evaluate whether the war in question is just or unjust, right or wrong. For both Scarry and Arendt, this deliberation, this ability to think, is exactly what is called for in an emergency.

One reason we sideline deliberation in times of emergency is that we think of emergencies as exceptional instances that are necessarily disruptive. Emergencies, as times in which we are forced to confront the possibility of real danger affecting our lives, take on a fundamentally different character than ordinary life. And yet the idea of emergency as an exception, as a break from the norm, may not fit the world today. As Mark Danner writes in a recent piece for The New York Review of Books, “…the very endlessness of this state of exception—a quality emphasized even as it was imposed—and the broad acceptance of that endlessness, the state of exception’s increasing normalization, are among its distinguishing marks.” While we may envision the privileging of rapid action over deliberation to be isolated to times of actual emergency, this tendency, as can be seen in the ongoing erosion of law and Constitutional procedures, has become frighteningly normal.

We may indeed be living in a chronic state of emergency, due to two distinguishing markers of our political time: the notion of torture as a legitimate means of obtaining information, as advanced by the Bush administration, and the existence of nuclear weapons. Scarry illuminates the parallels between the two: “Both torture and nuclear weapons inflict their injuries without permitting any form of self-defense, both inflict their injuries without obtaining any authorization from their own legislatures or populations; both starkly nullify even the most minimal requirements of a contractual society; both destroy the foundational concept of law.” Torture and nuclear weapons are tolerated because we believe extreme times warrant extreme responses, but these phenomena end up intensifying and perpetuating the emergency itself; they are not a means for keeping us safe, but a means of endangering our political and social freedom.

In our time of emergency, what should we take from Scarry’s determined emphasis on the role of habit in emergency action? Ultimately, what she is pointing to is that deliberation itself is a habit. It is something that must be practiced: “It could be said that all congressional deliberation during peacetime, no matter how trivial or grand the subject, is a rehearsal, a constant act of practicing, for the moment when it will be called upon to debate the gravest matter of all, the matter of going to war.” This habit of deliberation entails taking responsibility for our own governance, by both Congressmen and ordinary citizens. It is a habit that we cannot afford to lose, and one that may end up, as Arendt writes, preventing a catastrophe.

-AH

The Hannah Arendt Center
The Hannah Arendt Center at Bard is a unique institution, offering a marriage of non-partisan politics and the humanities. It serves as an intellectual incubator for engaged thinking and public discussion of the nation's most pressing political and ethical challenges.