Over at the Volokh Conspiracy, David E. Bernstein argues that Justice Stephen Breyer’s dissent in the Campaign Finance Case (McCutcheon v. Federal Elections Commission) is dangerous. He writes, rightly, that progressives have historically been uneasy with the First Amendment since strong rights are anti-democratic and exert a conservative and limiting impulse on democratic self-government and progressive programs. Thus free speech interferes with hate crimes legislation and stands in the way of attempts to limit offensive speech. And, most recently, free speech has proven the main impediment to regulate the insane amounts of money that are corrupting the political system.
Bernstein asks: “But how can liberals, who so expansively interpret other constitutional provisions, narrow the First Amendment so that campaign finance no longer gets protection?” His rhetorical answer is that the liberal willingness to limit free speech evident in Justice Breyer’s dissent is dangerous:
The danger of this argument is that analogous reasoning could be used to censor major media corporations such as the New York Times, Hollywood, and so on, to wit: ”When Hollywood spends billions of dollars each year advancing a liberal agenda, the general public will not be heard. Instead of a free marketplace of ideas, we get a marketplace in which major Hollywood moguls have hundreds of thousands of times the ‘speech power’ of the average American.” And given that almost everyone deems it appropriate to regulate the economic marketplace to counter inefficiencies and unfairness, why should the much-less-efficient (because it’s much more costly for an individual to make an error in his economic life than to have a mistaken ideology) marketplace of ideas be exempt from harsh regulation? In short, once one adopts the Progressive view of freedom of speech as only going so far as to protect the public interest in a well-functioning marketplace of ideas, there is no obvious reason to limit reduced scrutiny of government “public interest” regulation of speech to campaign finance regulations. Nor is it obvious why the Court should give strict scrutiny to speech restrictions that don’t directly affect the marketplace of ideas, instead of just using a malleable test balancing “speech interests” versus other interests.
It is of course right to worry about placing limits on speech, especially speech that is so clearly political. That is why Justice Robert’s plurality opinion has such straightforward appeal:
There is no right more basic in our democracy than the right to participate in electing our political leaders. Citizens can exercise that right in a variety of ways: They can run for office themselves, vote, urge others to vote for a particular candidate, volunteer to work on a campaign, and contribute to a candidate’s campaign. This case is about the last of those options. The right to participate in democracy through political contributions is protected by the First Amendment, but that right is not absolute. Our cases have held that Congress may regulate campaign contributions to protect against corruption or the appearance of corruption. … If the First Amendment protects flag burning, funeral protests, and Nazi parades—despite the profound offense such spectacles cause—it surely protects political campaign speech despite popular opposition.
What this means is that as long as campaign finance reform is viewed according to the lens of free speech, those who labor to protect our political system from the corrupting influence of excessive amounts of money will tread a treacherous path. They must, as Justice Breyer does at times in his dissent, argue for a version of free speech that is instrumental, one that is limited by its assumed purpose. Here is Breyer:
Consider at least one reason why the First Amendment protects political speech. Speech does not exist in a vacuum. Rather, political communication seeks to secure government action. A politically oriented “marketplace of ideas” seeks to form a public opinion that can and will influence elected representatives.
Breyer, like too many of those who would support campaign finance reform, insists on fighting the battle over the meaning of free speech. The problem is that such arguments must speak about limiting speech on rational grounds or suggest that speech is designed to make government better. This raises the specter of the government deciding when speech does and when it does not improve democracy. Some may welcome judges making such difficult judgments—it may be what wise judges actually should do. But having judges decide when speech favors democracy would subject all sorts of offensive or radical speech to the test of whether it was directed to secure government action and whether it invigorated the marketplace of ideas.
The problems with the free speech approach to campaign finance reform have led Lawrence Lessig and Zephyr Teachout to seek a different path. Thus it is worth looking at the responses both of them penned to the McCutcheon decision.
Lessig, writing in the Daily Beast, argues that advocates of reform need to stop talking about free speech and instead focus on corruption:
The only way for the government to win, in other words, was to convince the Court that while corruption certainly includes quid pro quos, it need not be limited to quid pro quos. The roots of that argument were handed to the government from an unlikely source: the Framers of our Constitution. Building upon the work of Zephyr Teachout, two researchers and I scoured every document that we could from the framing of our constitution to try to map how the Framers used the word “corruption.” What was absolutely clear from that research was that by “corruption,” the Framers certainly did not mean quid pro quo corruption alone. That exclusive usage is completely modern. And while there were cases where by “corruption” the Framers plainly meant quid pro quo corruption, these cases were the exception. The much more common usage was “corruption” as in improper dependence. Parliament, for example, was “corrupt,” according to the Framers, because it had developed an improper dependence on the King. That impropriety had nothing to do with any quid pro quo. It had everything to do with the wrong incentives being allowed into the system because of that improper dependence.
Teachout, writing in the Washington Post, argues that we need to stop trying to ban money in our current system of campaign laws and, instead, create a new system, one modeled on examples in Maine, Connecticut, Arizona, Massachusetts, North Carolina, New Mexico, New Jersey, Hawaii and West Virginia, which have all experimented with publicly funded elections:
But the legislative branch has to take some responsibility. Relying on bans is akin to continually passing seat-belt laws that keep getting struck down while never building safe cars. We should take this McCutcheon moment to build a better democracy. The plans are there. Rep. John Sarbanes (D-Md.) has proposed something that would do more than fix flaws. H.R. 20, which he introduced in February, is designed around a belief that federal political campaigns should be directly funded by millions of passionate, but not wealthy, supporters. A proposal in New York would do a similar thing at the state level…. They have learned that they are most effective when every office’s election is publicly funded, so that candidates learn how to raise money by going to the people, and that it is better to give a public match only to in-state individuals and not to PACs or out-of-state donors. Big lobbyists don’t like this because they are used to getting meetings with candidates to whom their clients give money. We’ve also learned that more women and minorities run for office with a public-funding system.
The campaign finance decisions are a disaster for our democracy and are preventing attempts to limit the truly corrosive impact of money throughout our political system. But it is also the case that the decisions are principled when viewed within the rubric of our free speech jurisprudence. Instead of limiting the amount of money in an inevitably corrupt system, it is time to change the system itself. Lessig and Teachout are leading the charge. Their op-eds are your weekend reads. In addition, you can revisit my comments on Teachout’s talk at the Hannah Arendt Center last year, here. And you can watch a recording of Teachout’s speech here.
There is a fascinating essay over on the Guernica blog, where David Bromwich examines “how Obama became a publicist for his presidency (rather than the president).” In his first term Obama delivered 1,852 separate speeches, comments, or scheduled public remarks and granted 591 interviews. These exceptional numbers, explains Bromwich, were the result of “magical thinking” on the part of the Obama White House: if the American public heard the president often enough, they would see how sincere and bipartisan he was and accept his policies. An endless string of speeches, road trips, and town hall meetings thus came to serve as a stand-in for the decision-making and confrontation that true leadership requires, and genuine conviction demands. Argues Bromwich: “…The truth is that Obama’s convictions were never strong. He did not find this out until his convictions were tested, and they were not tested until he became president.
Perhaps the thin connection between Obama’s words and his actions does not support the use of the word “conviction” at all. Let us say instead that he mistook his preferences for convictions—and he can still be trusted to tell us what he would prefer to do. Review the record and it will show that his first statement on a given issue generally lays out what he would prefer. Later on, he resigns himself to supporting a lesser evil, which he tells us is temporary and necessary. The creation of a category of permanent prisoners in “this war we’re in” (which he declines to call “the war on terror”) was an early and characteristic instance. Such is Obama’s belief in the power and significance of his own words that, as he judges his own case, saying the right thing is a decent second-best to doing the right thing.”
Bromwich’s reflections call to mind two classic statements of what might be called the nihilism of the modern age—the psychological state in which all values are relative and none may rise from preference to conviction. The first is a fragment from Friedrich Nietzsche’s notebooks composed in 1881-1882. It reads:
…we call good someone who does his heart’s bidding, but also the one who only tends to his duty;
we call good the meek and the reconciled, but also the courageous, unbending, severe;
we call good someone who employs no force against himself, but also the heroes of self-overcoming;
we call good the utterly loyal friend of the true, but also the man of piety, one who transfigures things;
we call good those who are obedient to themselves, but also the pious;
we call good those who are noble and exalted, but also those who do not despise and condescend;
we call good those of joyful spirit, the peaceable, but also those desirous of battle and victory;
we call good those who always want to be first, but also those who do not want to take precedence over anyone in any respect.
As Nietzsche writes elsewhere, “The most extreme form of nihilism would be: that every belief, every holding-as-true, is necessarily false: because there is no true world at all.” To call the President a nihilist is nothing extreme; it is simply to say that he well represents the age in which he lives, an age that is extraordinarily uncomfortable with convictions of any kind. Some believe in God, but too strong a belief in God is unseemly, even fanatic. It is good to believe in democracy, but we recognize the need for stable tyrannies as well. The free market is the best system of economics, but only if it is not too free. We live in a pragmatic age and Obama is our pragmatic President. That is precisely what many like in him. And yet we also want him to lead. In other words, we want strong leadership of a convinced leader and at the same time we want the pragmatic and technocratic malleability of someone with preferences absent convictions.
There is no better expression of this fear basic psychological state of modernity than William Butler Yeats poem, “THE SECOND COMING”
Turning and turning in the widening gyre
The falcon cannot hear the falconer;
Things fall apart; the centre cannot hold;
Mere anarchy is loosed upon the world,
The blood-dimmed tide is loosed, and everywhere
The ceremony of innocence is drowned;
The best lack all conviction, while the worst
Are full of passionate intensity.
The problem with President Obama is not that he lacks convictions. It is that he doesn’t know that he lacks convictions. And despite what Bromwich writes, the President hasn’t learned this. He still believes that he has strong convictions that Syria cannot use chemical weapons in a civil war against its own people. He still believes that it is intolerable to allow Russia to annex part of a sovereign country. He stands up and makes his strong convictions clear. But then he sits down and refuses to fight for those convictions, proving them beliefs. The point is not that he should fight in Syria or in Ukraine. The point is that he should not be speaking loudly and issuing ultimatums when he lacks the conviction to back them up.
-RB (hat tip Anna Hadfield)
There is promise and peril in Ukraine. Ukrainians have evicted a corrupt President and embraced democracy. Just today, the Parliament worked towards a new government while citizens listened in on the debates from outside:
At the Ukrainian Parliament in Kiev Thursday morning, as legislators debated the confirmation of a new temporary government, hundreds of people gathered outside to listen to the debate on loudspeakers, press for change and enjoy the argumentative fruits of democracy.
There is the natural temptation to celebrate democratic success. But we must also note that in Kiev, a Molotov cocktail was thrown at a synagogue and the Rabbi of Kiev warned Jews to leave Ukraine:
Ukrainian Rabbi Moshe Reuven Azman, called on Kiev's Jews to leave the city and even the country if possible, fearing that the city's Jews will be victimized in the chaos, Israeli daily Maariv reported Friday. “I told my congregation to leave the city center or the city all together and if possible the country too," Rabbi Azman told Maariv. "I don't want to tempt fate," he added, "but there are constant warnings concerning intentions to attack Jewish institutions.”
It is hard to know if such warnings are premature and there have been no laws depriving of Jews of either political or civil rights. Nevertheless, there is always danger in populist revolutions, as Hannah Arendt knew. Indeed, the tension between calling for grassroots populist engagement and the worry about the often ugly and racist tenor of such movements was at the center of much of Arendt’s work. It also may have impacted one instance where she withdrew something she wrote.
If one takes the trouble to find her missing epilogue, one finds it’s full of surprisingly naive optimism—and surprisingly naive optimism is not a quality most saliently associated with the name of Hannah Arendt. I say it was naive because it stressed the spontaneous democracy of the worker’s councils that were set up in Budapest. I think perhaps here she was expressing a nostalgia—even a little romance—for the German revolutions of 1919 in Munich and elsewhere, in which her future husband Heinrich Blücher had played such an honorable part.
Arendt’s epilogue was naive also because it laid great stress on what she called the peaceful and orderly and good-humored crowds of Budapest. She rather romanticized the good-naturedness of the Hungarian revolution. Now, this optimism may possibly be justified in the long term, which is why it’s worth looking up that epilogue again. After all, in 1989, not more than three decades later, there was a peaceful, bloodless, and orderly velvet revolution; it had its beginning in Budapest when the Hungarians allowed their East German brethren to resist by transiting Hungarian soil without hindrance. It led, in the end, to the fall of the Berlin Wall. And that was a classic case of the recovery of what Arendt so beautifully called, I think, the lost treasure of revolution.
The lost treasure of revolution is the common property to which Hannah Arendt alludes, very lyrically, in the opening passages of her collection Between Past and Present. She describes this ability to recover freedom: the spirit of an unforced liberty that is latent, she thought, in all people and which she claimed to detect in “the summer in 1776 in Philadelphia, the summer of 1789 in Paris, and the autumn of 1956 in Budapest.” Which, as you can see, is putting 1956 in Budapest on quite a high pedestal and threshold. Now this concept of the hidden treasure, the treasure that’s always hidden but that can be reclaimed, is remarkable for its lack of what a Marxist would call concreteness. Here’s how it appears according to Hannah Arendt, this treasure: It appears only “under the most varied circumstances, appears abruptly, unexpectedly, and disappears again under different mysterious conditions, as though it were a fata morgana,” or, so to say, as a will of the wisp or ignis fatuus. The lost treasure of the revolution is a very, very elusive, almost ethereal concept for Hannah Arendt to be dealing with. And let me say, one of the nice things about reading and rereading Hannah Arendt is to discover how nice it is when she is fanciful every now and then.
But is the fantastical element of the lost treasure the reason why she so sternly decided to remove that epilogue? I think I know why she did it. Further research and disclosure of what happened that time in Budapest had brought it to her attention that those events in 1956 hadn’t been as beautifully spontaneous as she had supposed. Mixed into the grandeur of the Hungarian rebellion was quite a heavy element of ultra-Magyar, ultra-Hungarian nationalism. The revolution also included quite a lot of antisemitism, directed at the strongly Jewish membership and character of Hungary’s Communist elite. Many of the Jewish communist leaders had been denationalized from Hungary, having spent the war in the Soviet Union, in Moscow, some of them becoming Russian citizens. They came back to take over Hungary, which was still largely a Catholic, rural, and conservative country, and they did so only with the support of Red Army bayonets. The resentment aroused by the returning Jewish Communist leaders was considerable. The revolution did not lead to pogroms in the true, ghastly, meaning of the word, but there were some ugly lynchings of Jewish communists and some nasty rhetoric. And I think this must have weighed very much with her.
You can read the whole talk here.
"To get others to come into our ways of thinking, we must go over to theirs; and it is necessary to follow, in order to lead."
Peter Ludlow in the Stone remarks on the generational divide in attitudes towards whistle blowers, leakers, and hackers. According to Time Magazine, “70 percent of those age 18 to 34 sampled in a poll said they believed that Snowden “did a good thing” in leaking the news of the National Security Agency’s surveillance program. This fits a general trend, one heralded by Rick Falkvinge—founder of the European Pirate Parties—at the Hannah Arendt Center Conference last year, that young people value transparency above institutional democratic procedures. Distrusting government and institutions, there is a decided shift towards a faith in transparency and unfettered disclosure. Those who expose such in information are lauded for their courage in the name of the freedom of information.
Ludlow agrees and cites Hannah Arendt’s portrait of Adolf Eichmann for support of his contention that leakers like Edward Snowden and Chelsea Manning acted justly and courageously:
“In “Eichmann in Jerusalem,” one of the most poignant and important works of 20th-century philosophy, Hannah Arendt made an observation about what she called “the banality of evil.” One interpretation of this holds that it was not an observation about what a regular guy Adolf Eichmann seemed to be, but rather a statement about what happens when people play their “proper” roles within a system, following prescribed conduct with respect to that system, while remaining blind to the moral consequences of what the system was doing — or at least compartmentalizing and ignoring those consequences.”
Ludlow insists: “For the leaker and whistleblower the answer to [those who argue it is hubris for leakers to make the moral decision to expose wrongdoing], is that there can be no expectation that the system will act morally of its own accord. Systems are optimized for their own survival and preventing the system from doing evil may well require breaking with organizational niceties, protocols or laws. It requires stepping outside of one’s assigned organizational role.” In other words, bureaucratic systems have every incentive to protect themselves, thus leading to both dysfunction and injustice. We depend upon the actions of individuals who say simply: “No, I can’t continue to allow such injustice to go on.” Whistle blowers and leakers are essential parts of any just bureaucratic organization.
Ludlow’s insight is an important one: It is that the person who thinks for himself and stands alone from the crowd can—in times of crisis when the mass of people are thoughtlessly carried away by herd instincts and crowd mentality—act morally simply by refusing to go along with the collective performance of injustice. The problem is that if Snowden and Manning had simply resigned, their acts of resistance would have had minimal impact. To make a difference and to act in the name of justice, they had to release classified material. In effect, they had to break the law. Ludlow’s claim is that they did so morally and in the name of justice.
But is Ludlow correct to enlist Arendt in support of leakers such as Snowden and Manning? It is true that Arendt deeply understands the importance of individuals who resist the easy path of conformity in the name of doing right. Perhaps nowhere is the importance of such action made more markedly manifest than in her telling of the mention of Anton Schmidt when his name appeared in the testimony of the Eichmann trial:
At this slightly tense moment, the witness happened to mention the name of Anton Schmidt, a Feldwebel, or sergeant, in the German Army - a name that was not entirely unknown to this audience, for Yad Vashem had published Schmidt's story some years before in its Hebrew Bulletin, and a number of Yiddish papers in America had picked it up. Anton Schmidt was in, charge of a patrol in Poland that collected stray German soldiers who were cut off from their units. In the course of doing this, he had run into members of the Jewish underground, including Mr. Kovner, a prominent member, and he had helped the Jewish partisans by supplying them with forged papers and military trucks. Most important of all: "He did not do it for money." This had gone on for five months, from October, 1941, to March, 1942, when Anton Schmidt was arrested and executed. (The prosecution had elicited the story because Kovner declared that he had first heard the name of Eichmann from Schmidt, who had told him about rumors in the Army that it was Eichmann who "arranges everything.") ….
During the few minutes it took Kovner to tell of the help that had come from a German sergeant, a hush settled over the courtroom; it was as though the crowd had spontaneously decided to observe the usual two minutes of silence in honor of the man named Anton Schmidt. And in those two minutes, which were like a sudden burst of light in the midst of impenetrable, unfathomable darkness, a single thought stood out clearly, irrefutably, beyond question - how utterly different everything would be today in this courtroom, in Israel, in Germany, in all of Europe, and perhaps in all countries of the world, if only more such stories could have been told.
For Arendt, great civil disobedients from Socrates to Thoreau play important and essential roles in the political realm. What is more, Arendt fully defends Daniel Ellsberg’s release of the Pentagon Papers. It seems, therefore, that it is appropriate to enlist her in support of the modern day whistleblowers.
There is, however, a problem with this reading. Socrates, Thoreau, and Ellsberg all gave themselves up to the law and allowed themselves to be judged by and within the legal system. In this regard, they differ markedly from Snowden, Manning and others who have sought to remain anonymous or to flee legal judgment. For Arendt, this difference is meaningful.
Consider the case of Shalom Schwartzbard, which Arendt addresses in Eichmann in Jerusalem. Schwartzbard was a Jew who assassinated the leader of Ukranian pogroms in the streets of Paris. Schwartzbard stood where he took his revenge, waited for the police, admitted his act of revenge, and put himself on trial. He claimed to have acted justly at a time when the legal system was refusing to do justice. And a French jury acquitted him.
For Arendt, the Schwartzbard case stands for an essential principle of justice: that to break the law and act justly, one must then bring oneself back into the law. She writes:
He who takes the law into his own hands will render a service to justice only if he is willing to transform the situation in such a way that the law can again operate and his act can, at least posthumously, be validated.
What allows Schwartzbard to serve the end of justice is that he took the risk of putting himself on trial and asked a court of law and a jury to determine whether what he did was just, even it were also illegal. By doing so, Schwartzbard not only claimed that his act was a matter of personal conscience; he insisted as well that it was legal if one understood the laws rightly. He asked the representatives of the law—the French jury—to publicly agree with his claim and to vindicate him. He had no guarantee they would do so. When they did, their judgment brought the justice of Schwartzbard’s act to the bright light of the public and also cast the legal system’s inaction—its refusal to arrest war criminals living openly in Paris—in the shadow of darkness.
When I have suggested to colleagues and friends that Snowden’s flight to Moscow and his refusal to stand trial makes it impossible to see his release of the NSA documents as an act of justice, their response mirrors the argument made by Daniel Ellsberg. Ellsberg—who turned himself over to the police after releasing the Pentagon Papers—has defended Snowden’s decision to flee. The United States of 2013, he argues, is simply no longer the United States of the 1960s. When Ellsberg turned himself in, he was released on bail and given legal protections. He has no faith that the legal system today would treat Snowden with such respect. More likely Snowden would be imprisoned, possibly in solitary confinement. Potentially he would be tortured. There is every reason to believe, Ellsberg and others argue, that Snowden would not receive a fair trial. Under such circumstances, Snowden’s flight is, these supporters argue, justifiable.
I fully admit that it is likely that Snowden would have been treated much less generously than was Ellsberg. But aside from the fact that Snowden never gave the courts the chance to treat him justly, his refusal to submit to the law makes it impossible for his act of disobedience to shine forth as a claim of doing justice. He may claim that he acted in the public interest. He may argue that he acted out of conscience. And he may say he wants a public debate about the rightness of U.S. policy. He may be earnest in all these claims. But the fact that he fled and did not “transform the situation in such a way that the law can again operate and his act can be validated,” means that he does not, in the end, “render a service to justice.” On the contrary, by fleeing, Snowden gives solace to those who portray him as a criminal and make it easier for those who would to discredit him.
All of this is not to say that Snowden was wrong to release the NSA documents. It is clearly the case that the security state has gone off the rails and become encased in a bubble of fearful conformity that justifies nearly any act in the name of security. We do need such a public conversation about these policies and to the extent that Snowden and Manning have helped to encourage one, I am thankful to them. That said, Manning’s anonymity and Snowden’s flight have actually distracted attention from the question of the justice of their acts and focused attention instead on their motives and personal characters. They have, by resisting the return to law, diluted their claims to act justly.
It is a lot to ask that someone risk their life to act justly. But the fact that justice asks much of us is fundamental to the nature of justice itself: That justice, as opposed to legality, is always extreme, exceptional, and dangerous. Arendt knew well that those who act justly may lose their life, as did Socrates and Anton Schmidt. She knew well that those who act justly may lose their freedom, like Nelson Mandela. But she also knew that even those who die or are isolated will, by their courage in the service of justice, shine light into a world of shadows.
Peter Ludlow’s essay on the Banality of Systematic Evil is well worth reading. He is right that it is important for individuals to think for themselves and be willing to risk civil disobedience when they are convinced that bureaucracies have lost their moral bearings. It is your weekend read. And if you want to read more about Arendt and the demands of justice, take a look at this essay on Arendt’s discussion of the Shalom Schwartzbard case.
The detention facility in Guantanamo Bay, Cuba hangs over the United States and now the Obama administration like a cloud of acid rain. In recent months hunger strikes once again have brought the injustice of the camp, the inhumane treatment of its inhabitants, and the indefinite detention of its inmates to the attention of the world. The camp is now an indelible blot on the United States, both on our reputation abroad, as well as upon our self-image as a land of constitutional republicanism. Above all it is a meaningful challenge to our self-respect.
Most of the 779 people that Wikipedia says were brought to Guantanamo were never charged with a crime. Of the fewer than 200 who remain, some no doubt are terrorists and criminals; others, equally as clearly, were unjustly captured, imprisoned, tortured. They are now being held outside rules of law and in violation of our legal and constitutional traditions of freedom. No doubt there are inconvenient questions about what to do with these men. But they are men under our collective care and they are owed more than being kept like animals in pens in purgatory.
President Obama has announced once again his decision to close the camp. We wish him the courage to do what is right. At this moment, it is worth recalling the case of Mohammed Jawad, the first Guantanamo detainee to testify under oath and to a military commission about being tortured by his American captors. Last month there was a dramatic reading of statements made by Jawad's lawyer, David Frakt, juxtaposed with statements made by the case's lead prosecutor, Darrel Vandeveld who left the military in order to help free Jawad. The reading was held at the Pen World Voices Festival of International Literature. In their statements, both men use the language of Constitutionality to suggest that, by torturing detainees such as Jawad, "America," as Frakt puts it, "lost a little of its greatness."
Here is what Vandeveld, a lifelong military man, writes of his choice to testify in favor of Jawad:
In 2007, I volunteered to prosecute detainees at Guantanamo in the U.S. military commissions. I was assigned as the lead prosecutor in several cases, including the case of Mohammed Jawad, a young man from Afghanistan. While I was a prosecutor, David Frakt helped me to find and expose gross human rights abuses of Mohammed and other detainees by the U.S. government. In September 2008, I became convinced that the prosecution of Mohammed was unjust and that the military commissions were grossly flawed. I requested to be relieved and reassigned to other duties. After stepping down from the prosecution, I worked with David Frakt to expose detainee abuse, to secure Mohammed’s release and bring about much-needed reforms to the U.S. military commissions.
Vandeveld served 24 years in the army, winning a bronze star for valor in Iraq. After his service he went to law school and became a military lawyer. His decision to ask to be relieved from his prosecution duties was, he writes, simply doing his duty: “I did it because I believe in truth, justice, the rule of law, and our common humanity. I did it for Mohammed Jawad, I did it because it was my duty, and I did it for us all.”
As the debate about closing Guantanamo heats up, this is a good time to acquaint oneself with the case of Mohammed Jawad. The transcript from the staged discussion between David Frakt and Darrel Vandeveld is a good place to begin. We are all indebted to The Mantle for publishing it. It is your weekend read.
Hannah Arendt considered calling her magnum opus Amor Mundi: Love of the World. Instead, she settled upon The Human Condition. What is most difficult, Arendt writes, is to love the world as it is, with all the evil and suffering in it. And yet she came to do just that. Loving the world means neither uncritical acceptance nor contemptuous rejection. Above all it means the unwavering facing up to and comprehension of that which is.
Every Sunday, The Hannah Arendt Center Amor Mundi Weekly Newsletter will offer our favorite essays and blog posts from around the web. These essays will help you comprehend the world. And learn to love it.
Clocking in as the longest article ever in Time (h/t Dylan Byers), Steven Brill’s cover story is the single-best account of the insanity and corruption of our current medical system. Why do we accept the skyrocketing costs of medical care? “Those who work in the health care industry and those who argue over health care policy seem inured to the shock.” Brill shows us why the bills are really way too high. Hint: it is not because the care is so good. There are so many excess costs in the system, that reforming it should be easy, if it weren’t so corrupt.
David Goldhill wants to give all working Americans $1,800,000, the amount he calculates a 23 year-old beginning work today at $35,000/year will pay, directly or indirectly, in health care insurance benefits. Goldhill argues that our health care system wastes most of that money because people have no incentive to attend to costs. He suggests a dual system. Give every American health insurance for truly rare and unpredictable illnesses. But for regular costs and smaller emergencies, he would refund workers the money they are losing and let them pay for healthcare themselves.
Oliver Sacks walks through his past and, with the help of his brother, discovers that a memory he had believed his own had actually been that of another. Starting from there, he gives a short account of the weakness of individual remembering, which allows us to take in something we've heard or seen and make it our own. He concludes, finally, that "memory is dialogic and arises not only from direct experience but from the intercourse of many minds."
Michael Lewis writes of the rise of an unapologetic business class in the 1990s and early 2000’s, that they enjoyed the “upside to big risk-taking, the costs of which would be socialized, if they ever went wrong. For a long time they looked simply like fair compensation for being clever and working hard. But that’s not what they really were; and the net effect was… to get rid of the dole for the poor and replace it with a far more generous, and far more subtle, dole for the rich.”
Five women. “Two are wives and daughters in ordinary families unable to comprehend why such misfortune has overtaken them. A third is a young bride living in the household of a high party official. The last two are wives of the Master’s executioners. These stories are based on their memoirs—some written by themselves, others by close friends or by their children. These five women put a human face on the terror of Stalin’s purges and the Gulag in the Soviet Union of the 1930s.”
“Debt doesn’t look like much. It has no shape or smell. But, over time, it leaves a mark. In Spain, it manifested itself, first, as empty buildings, stillborn projects, and idled machines.” So writes Nick Paumgarten. To see how debt looks and smells, look at Simon Norfolk's surreal photographs of Residencial Francisco Hernando, an unfinished development near Seseña, Spain. Working his way through a half-finished city with few people in it, Norfolk's photography suggests that even beginning construction was an act of hubris; "everyone," he says, "wanted to get rich doing nothing."
The Arendt Center’s 2012 conference “Does the President Matter?” asked whether political leadership is still possible today. Guatam Mukunda believes that we can measure the value of a particular leader based on their behavior at the margins—what did that person accomplish over and above what another would have been able to do? In the accompanying video, Mukunda argues that leaders can only be great or terrible when the people selected for such roles are relatively unknown to those making the selection. In an age of information, the chances are slim.
This week on the blog
This week on the blog, we argued that American reformers should shift their efforts at reforming education towards high school and pointed towards Richard Kahlenberg's recent piece in The Chronicle of Higher Education, adding that "poverty, more than race or gender, is increasingly the true mark of disadvantage in 21st century America." We also continued the inquiry into the growing threat that entitlements pose to the next generation, highlighting Geoffrey Canada and Peter Druckenmiller's argument that entitlements are a generational theft that must be arrested. Elsewhere, Na'ama Rokem quotes from Arendt's only Yiddish-language article to explore the philosopher's language politics and her Jewish identity. Jeff Champlin looked at some similarities between Habermas and Arendt in their understandings of power. In the Weekend Read, Roger Berkowitz argues that we need to free federalism from its present partisanship and recall the important connection between federalism and freedom. Finally, if you didn't get around to our remembrance of Ronald Dworkin, you should take some time and give it a read.
Until next week,
The Hannah Arendt Center
Jürgen Habermas sees Arendt as usefully placing emphasis on the origin of power as opposed to its means of employment. In contrast to Max Weber, who understands power in terms of particular individuals seeking to realize a fixed goal, she separates power from the telos (end), developing what Habermas calls a theory of power as "communicative action". This formulation gestures towards his own conceptual language (see Theory of Communicative Action, 1981) and in Arendt he names plurality as the condition for communication, quickly moving from distinctness to connection:
"The spatial dimension of the life-world is determined by the "fact of human plurality": every interaction unifies multiple perspectives of perception and action of those present […]"
Perceptively-and provocatively-Habermas compliments this description of the spatial dimension of the world with a temporal one:
"The temporal dimension of the life-world is determined by the "fact of human natality": the birth of every individual means the possibility of a new beginning; to act means to be able to seize the initiative and to do the unanticipated."
In this description, we see that a kind of conceptual past allows something new to happen in the future. Further, the reference to the past is singular ("the birth of every individual") but allows action between people. So in natality, as Habermas describes it, we go from the past to the future and the individual to the group. The very emphasis on the origin of power, however, raises the question of how it is to endure over time. The phrase "temporal dimension of the life-world" points to this problem: how to use power in the future when, as Arendt writes in the Human Condition: "power cannot be stored up and kept in reserve for emergencies." This citation helpfully emphasizes that power shouldn't be seen as capital that can be deployed at the time that a ruler or executive wishes. Arendt suggests instead that it cannot be virtualized, that it always exists in a one to one relation with opinion as it shifts.
Habermas ultimately accuses Arendt of a sleight of hand in taking refuge in the idea of the contract to solve the problem of her radical conception of action. In ending his article with an emphasis on the "contract theory of natural law" however, he overlooks the difference between a promise and a contract in Arendt. The promise offers individual stability of one's identity over time in the same way that the contract offers consistency to group action and both in a sense win consistency through the virtual. In both cases the reality of identity comes into being only over time. However, there is a different kind of "storage" in the model of the promise than the one we imagine with capital. Arendt suggests the contract as a way to make a short term structure that retains flexibility that the idea of stockpiled power does not.