The Crack Between the Worlds: Judge Pauley vs. Judge Leon

The 9 11 attacks on the USA have exposed a previously hidden but dangerous crack running through the current nominal free world. On one side is freedom; the other, security.

On December 27 Judge Pauley (ACLU vs. Clapper) ruled in favour of the NSA security apparatus spying activities against the citizens of the United States. In his decision, he made the claim that the choice between liberty and security is a false dichotomy. Pauley makes this statement after his nation has fought wars for freedom, ostensibly, and against nations and notions of buttoned down security. Wars have been fought to defend the USA against ideologies that may compromise the free individual. It is certainly not a false dichotomy. While this question will always be on a spectrum, there is a clear divide between secure societies (especially where everybody is monitored) and a free society.

Earlier this month, Judge Richard Leon ruled in favour of freedom. And there it is; the crack that separates federal judges. It also shows up in broad ideological terms. It separates conservatives from libertarians, liberals from liberals, and socialists and anarchists from so called communists. It is a crack that runs through philosophy, religion, and history. It probably runs through most individuals.

Pauley argues that “National security investigations are fundamentally different from criminal investigations. They are prospective – focused on preventing attacks – as opposed to the retrospective investigation of crimes.” Pauley aims to take due process into a nebulous realm where slippery pro fascist arguments may hold sway with fascistic minded individuals. He moves the locus of interest offshore to foreigners that are not protected under the Constitution. Then he uses that to justify pre-emptive strategies to stop the crime before it happens. Not only is Judge Pauley being disingenuous with the law pertaining to the fourth amendment, he is also on the wrong side of the Magna Charta and the basic legal principles that have been underlying planks to freedom for centuries. Preventing crime before the crime happens sounds good, we can then lock up anybody that will probably commit a crime before he commits the crime. Unfortunately, there is no way to live in a free society with this kind of security. To live in a free society, we need to tolerate the pedophile down the street and, we need to live with the possibility of being killed by violent people whether they are deemed (however arbitrarily) by the state ‘terrorist’ or not.

This is not about terrorism. It is about you. The state is not spending the time and money on the security state as it is in order to keep Al Qaeda from killing citizens. If fear, death, or any other types of citizens suffering were important to policymakers, they would address the fear, death, and suffering they directly cause in decisions where big money win out over human health and well-being. It isn’t terrorism they are afraid of. They are afraid of you.

A society where the state places the individual in a high tech goldfish bowl is a society where the state lords itself over, above, and against the population. It is a state aiming for total knowledge and control over the individual. While NSA activities may not result in jackbooted fascists storming through your door in the middle of the night, the differences are really cosmetic. We are moving to a paradigm you may remain marginally free compared to Germans under Hitler, Russians under Stalin, or Saudis under their current monarchs but, it is important to recognize that American society has crossed the aforementioned crack. Once that line is crossed, it is much easier for future explicit fascists and tyrants to rule with arbitrary power.

Judge Pauley makes much of the possibility that another terrorist attack may occur against the USA. What is much more devastating to the USA and indirectly to many other nations is the sustained decade old attack on individual freedom, an attack where Pauley himself is a guilty party. Individual physical attacks are one thing, attacking the fundamental legal and political basis of the nation is far more serious.

We can easily imagine the divide where on one side stand Madison and the American revolutionaries that brought the USA and the free world to modernity. Behind them stand millions of dead soldiers and citizens that have died for freedom. With them are countless intellectuals, philosophers, and revolutionaries the world over and throughout history; on the other side – a totalitarian nightmare.

Historically, the political left and right have been comfortably at each other’s throats – and we like it that way. On this occasion however, the left may find allies on the libertarian right and vice versa. No matter what we think and believe on other issues, the issue of freedom is the battle du jour and we need to win it. Together we may rise up against the cowards on both our sides of this existential crack in time.