Repairing the U.S. Ship of State Matters to the World

by Wayne McCormack 

While the U.S. is debating whether to launch symbolic strikes against the Assad regime in Syria, we can see some interesting connections among the questions of what military strength has to do with the kind of society we are likely to become or want to become, what we desire for the governance of our country, and what we think about electronic privacy. Two close colleagues brought these connections to the fore in response to my latest NSA post, in which I opined that perhaps privacy was an illusion in the digital age but nevertheless worth pursuing. Their responses aimed directly at the kind of society we have now.

First, consider some of the reasons that would cause us to question the continued role of the U.S. as a major player on the world scene, let alone as a pretender to the world’s sole superpower. For 40 years, the American middle class has steadily shrunk – with wealth going higher and the poorer segment becoming larger. The U.S. has lost all credibility on issues of human rights after our behavior with terrorist suspects. Internally, as my friends’ comments below indicate, we are governed by money, not policy. Externally, we have no ability to influence the United Nations into taking action against atrocities, nor any real influence in the struggles between the oil-rich despots and their manifold feuding co-religionists over what the Middle East should look like. Meanwhile, the global middle class is predicted to almost double in the next 15 years because of growth in the emerging economies, which could make the U.S. a much less significant player in world markets.

With all this going against us, should I sink into a state of despair and repair to the nearest bar? No, I continue to believe in the pragmatism of American politics and the ability of our people to come back to the real work of building a just society. But I do believe that we will be better off not trying to run the world, and instead accepting our place as one among many in the developed world who will have to learn to live with a radically shifting base of power from the haves to the had nots (the former “have nots” who are in some cases now acquiring wealth and power). As I reflect on the future of America, I think how We the People decide to govern ourselves matters greatly to the rest of the world, even though our actions may not be the most important actions on the world stage.

With that in mind, here is my exchange with good friends David Irvine (General, USA ret.) and Jim Holbrook (Vietnam vet).

Irvine:

The whole NSA enterprise just seems outrageous.  The only thing more outrageous is that so few people  evidently find it even mildly troubling, let alone deeply disturbing.  And having flourished for so many years in secret, it has now taken on such an institutionally-embedded life of its own that even congressional Democrats seem loathe to do anything that might disturb it — being, as we are, in the fourth term of George W. Bush. I’ve recently been intrigued by an observation of George Mason [a major player in the drafting of the Constitution], predicting that  the new government “would end either in monarchy or a tyrannical aristocracy.” As I think about what that new government has become, it strikes me that Mason may have been right on all counts, simultaneously — which goes beyond what even he contemplated.  Those terms fit the modern presidency and  our ridiculously gerrymandered Congress rather well. I suspect it’s just a matter of time until Richard Nixon II employs the sweeping powers and technology of the NSA against his political opposition. 

Holbrook:

We have more to fear from ourselves than from the NSA. Rather than rule by “aristocracy,” I call it rule by oligarchy or plutocracy. The Koch brothers have been busy for 20 years  trying to buy the most supportive government (including judges) possible; Rupert Murdoch and his minions are mightily  assisting. And they are succeeding: we have gone from a center-left society forty years ago to a center-right society today. Perpetual war and fear, Congressional gridlock, racial enmity, and economic and social hot buttons (such as budget deficits and the national debt, Obamacare, Social Security, gay marriage, abortion, a path to citizenship, etc.) divide and distract us as a nation while the uber-rich accumulate even greater wealth, which is their only interest. They have divided and are now conquering us.

America has had its  day in the sun. We have hollowed out our cities, middle class values, public education and personal opportunities for a better future. We are presiding over the disappearance of the American dream for most Americans and the declining relevance of  America in the Mid-East, Africa, and Asia. Having military might without influence is not power, but weakness, as we are seeing in Syria. Our real existential enemies  are our own social passivity, systemic blindness and strategic stupidity. We have drunk our own Kool-Aid.

McCormack:

I assume I have been on many watch lists ever since I started teaching this stuff [national security and counter-terrorism]. At least 15 years ago, I was going to include something about Ed Wilson in my teaching materials, so I wanted to know how much damage could be done by the 20 tons of C4 explosives that he tried to ship to Libya. Extensive internet research on C4 failed to give me any guidance, but I’m quite confident my amateurish efforts came to the attention of somebody.

As for the “Imperial Presidency,” I find myself continuing to be the Pollyanna in the room. I just can’t see our system failing to correct itself at some point. The 200 years of “transition of power by election” surely must count for something. But the last 12 years have severely damaged the ability of either the public or the courts to demand accountability. I wasn’t aware of Mason’s comments, but the Virginians certainly were wary of the new government. If Hamilton could not have enlisted Madison into writing the Federalist Papers, and if Madison had not promised Patrick Henry a Bill of Rights, there is no way it would have been ratified.

So then the question is what we would look like if the Confederation had remained in place. Clearly the secession of the South would have happened earlier under Clay and Calhoun, and it would have been successful. My guess is that the North would have taken the road toward coalescence just as the EU has done, but there would have been huge conflict between North and South over the natural resources west of the Mississippi. Might there have emerged yet another set of nation-states in the West?

This sort of speculation makes my brain hurt, so I’ll go back to your point about monarchy or aristocracy. In many ways we have already reached a reasonably entrenched aristocracy. The power of money in our system is obvious. So I too fear for the ability of that power to abuse, and the loss of privacy is one long step on the pathway.

How’s this for future speculation? I wonder if Bill Gates and the Apple/Google execs might wake up and realize the monster they have created. Ironically, for them to have the power to confront and challenge the technological collapse of privacy, they would probably have to combine forces. Which then means we would have a private company more powerful than all the governments on earth. I think that’s something like the scenario that George Orwell had in mind. With great power comes the option of doing great good or great harm – and we know the saying about power and corruption.

I have almost talked myself out of my Pollyanna role. But why is it I still have this lingering sense of optimism? Somehow, the spirit of justice and freedom still seems to capture my soul. I think Alito and Roberts are starting to get the message – I see very hopeful signs in the Supreme Court (e.g., the GPS tracking concurrence as well as the health care decision). Once Scalia and Thomas are gone, there could be some push for transparency and accountability in government again. It may take a long time for the Ship of State to right itself after the severe damage of the last decade, but “We the People” still have the helm if we choose to use it.

Wayne McCormack is a Professor of Law at the University of Utah S.J. Quinney College of Law, where he teaches Constitutional Law, Counter-Terrorism, International Criminal Law, Torts, and Civil Procedure. From 1997-2002 he coordinated the University of Utah’s involvement with the 2002 Olympic Winter Games, and that experience led to security planning for major events and interest in international legal issues, including the law related to terrorism.