It Was Nice While It Lasted

Reflections on the end of America.

Despite the measly stop-gap measure presented on Wednesday in Congress, will we someday look back on the government shutdown of 2013 as the moment that America's grand democratic experiment began irreversibly to disintegrate? Here's a look into one possible future, from the perspective of the year 2060....

It was nice while it lasted. Having a government, I mean. You grandkids don't remember the government, of course: We got rid of it long before you were born. I don't remember why, exactly. Some people got angry because they thought the government was going to force them to get health insurance, which they didn't want because -- well, I'm not sure why they didn't want it.

No, no -- the government wasn't going to send them to prison or anything if they didn't get health insurance. It was just a tax: The people who could afford to get health insurance but refused to buy it were going to be taxed a little more than people who bought health insurance. The tax was to pay for giving health care to people who couldn't afford to to buy their own insurance. But the same people who didn't want to be told to get health insurance didn't want to be taxed to pay for something that would help someone else.

Yes, those were the people who called themselves the Tea Party, after the Boston rabble-rousers who threw several boatloads of British tea into Boston Harbor in 1773. Though there was a big difference between the two groups: The Tea Party of 1773 was protesting the imposition of taxes by the British Parliament, in which the American colonies had no elected representatives. The Tea Party of 2013 was protesting taxes voted on by the American Congress. Our own government.

You didn't know that? Well, no reason you would. Somehow the Tea Party managed to make it sound like the law requiring people to get health insurance or pay a tax had been foisted on them by an undemocratic, alien entity, but that's not how it was. I'm not saying President Obama -- you've heard of that guy -- was perfect, but the American people voted for him twice, and Congress voted to pass the health care legislation Obama wanted, and the Supreme Court said it was constitutional. The Tea Party people in Congress kept trying to get everyone else to vote to overturn that law, but they kept on losing, vote after vote after vote.

And you know what happened? They shut the government down.

In 1773, the Tea Party fought for the right to have a democratically elected government in which hard decisions would be made by voting. I guess the Tea Party of 2013 decided they only liked democracy when the voting went their way.

I know, it all seems a little crazy today, when you can't get decent medical care for love or money. Now that the government's gone, and along with it the subsidies that enabled pharmaceutical companies to do research on new medications, and the rules that ensured drugs were actually safe, and the scholarship and loan funds that sent students through medical school-well, now almost no one has health care. Who can afford it? The few who still have money go to Canada for their health care, though of course it's getting harder and harder to get to Canada. With no government around to fund highway maintenance, the roads got worse and worse, and with no money for policing, the bandits got out of control. By 2030, long-distance travel wasn't really safe anymore for ordinary people, unless you traveled in heavily armed convoys.

And then the Canadian government built that wall along the border and stopped allowing commercial planes to fly in from the United States. I can't say I blame them: Why would they want millions of desperate, hungry people flooding into their country every year? Sad to say, it's not like we can offer them much of anything. Once the federal funds that supported public schools stopped flowing, the whole education system, which was weak to start with, collapsed in pretty short order. The teachers weren't getting paid. At the top, the wealthy kept sending their kids to private schools for a while, but, pretty soon, most of them opted for private schools in other countries. And once those kids got a taste of life in places where they still had governments, they didn't want to come back here. By the time the Canadian border closed in 2041, most of the educated people were already long gone.

Everyone else just had to make do with Bible schools or homeschooling, and, as things got worse, the Bible schools started being less and less about schooling in any traditional sense and more and more about the Bible.

Again, I can't say I blame anyone. When you're going hungry and just trying to keep your kids safe from the roving gangs, I guess maybe religion's more comfort than math and science for a lot of people. But the fact is, the Canadians and the Chinese and the Europeans want immigrants who can do calculus, fix 3-D printers, and program nanosurgery robots. They don't really need people who can quote the Bible but not much else.

Why couldn't we just force the Canadians to let us in? Well, that's a good question. We used to have the best military in the world, you know. Really, we did. But, starting even before we shut down the government, we were piling more and more onto the military. We had our soldiers doing everything from fighting wars to listening in on people's phone conversations, can you believe it? I guess they just got tired. Then, when we shut down the government, the military was the only part of the government that the Tea Party was willing to keep going. They didn't want to pay for teachers or roads or hospitals or anything like that, but they wanted to pay the soldiers.

You ever see a chicken with its head cut off, still running around because its body hasn't figured out yet that it lost it's brain, and it's dying? That's what we were like for more years than I can remember. The country kind of staggered along for some years after the shutdown. Congress kept coming up with short-term fix after short-term fix, each time buying a few weeks or months, but it wasn't enough. Even after the United States defaulted on its debts, things somehow kept going for a while. But, eventually, things started coming to a stop, and naturally the Tea Party people wanted the military to just pick up all the tasks the rest of the government used to do.

But, after a while, the military just kind of fell apart, too. I suppose the Tea Party people forgot that the military isn't something completely separate from the whole rest of society: All those soldiers and sailors and airmen and marines had mothers and siblings and children and spouses. They couldn't -- wouldn't -- keep on just as if nothing had changed when their kids' schools closed down and their parents lost their life savings in the crash of 2015 or the crash of 2021 or the crash of 2029. A lot of servicemembers left to try to take care of their families.

Also, crime was terribly high. People with military skills were in demand everywhere. For a long time, the wealthy were trying to lure them to provide private security, and a lot of servicemembers figured that was a better way to keep their families afloat than staying in the service. And then, after a while, the military couldn't find any decent new recruits, what with the schools failing and the gangs and the resurgence of polio and drug-resistant tuberculosis in the 2030s. So that reduced the military's strength, too.

Anyway, even though soldiers could still get paychecks, the money for training them and maintaining their equipment was mostly gone. Fighter planes were rusting in hangers, and companies stopped developing expensive new high-tech weapons systems, because their buyer was gone. So, to answer your question, by the time the Canadians closed the border we weren't in much position to do anything about it. Wars take money, you know, and we didn't have any left.

Somewhere out there I guess we still have nuclear weapons. But I don't know if anyone really knows where, or if they're still even usable. I remember back in 2035 or thereabouts there was some worry that gangs or terrorists or what have you would get hold of them.

Truth is, if it weren't for the Chinese, I don't know where we'd be today. When the Chinese sent troops in to safeguard the nuclear weapons in 2039, I honestly think everyone was pretty relieved. By then things were already pretty bad, and what was left of our military was happy to cooperate with anyone they could rely on not to do anything crazy.

And never forget that it was the Chinese who tried to bail us out back in the teens, when we first defaulted on our debts after a series of stop-gap temporary deals fell apart. Oh, I know it wasn't exactly charity: They had bought up so many U.S. government bonds that they couldn't afford to let us go belly up too fast.

I still remember how shocked my parents were when they saw the editorial published by China's state news agency back in October 2013: It accused the United States of having introduced "chaos into the world" and said, "Such alarming days when the destinies of others are in the hands of a hypocritical nation have to be terminated, and a new world order should be put in place."

Well, that's what they did in the end.

Still, I'm certain we'd have fallen even harder and faster without the Chinese. And bad as things are today, think how much worse they'd be without the Chinese troops garrisoned in most major cities. They keep the gangs from getting completely out of control, and thousands of Americans have been able to find honest work cooking and cleaning on the Chinese bases. Even more important, having all those Chinese soldiers here makes the Russians and the Iranians keep a respectful distance.

It's pretty ironic when you think about it. In 1773, the Tea Party protesters were trying to free America from what they saw as rule by unelected foreigners. In 2013, the new Tea Party wanted to put a stop to a government run by their own fellow citizens. Well, they got what they wanted: Now it's the Chinese who make the rules for Americans.

Funny how things turn out, isn’t it? 

Spencer Platt/Getty Images

National Security

Consider the Duck-Rabbit

How this Wittgenstein sketch explains the Somalia SEAL raid.

Consider the duck-rabbit.

As art, it ain't much. But as a metaphor for the legal conundrums created by the war on terror, it's pretty good.

The humble duck-rabbit has an impressive pedigree: In the 1930s, the philosopher Ludwig Wittgenstein sketched it for his Cambridge University students to illustrate his theory of language games. "I shall call the following figure ... the duck-rabbit," he declared. "It can be seen as a rabbit's head, or as a duck's." So -- naturally -- when I read reports on the recent U.S. "snatch and grab" operations in Libya and Somalia, I immediately thought of the duck-rabbit.

Yes, readers, this is what happens to those of us who leave government service and go into academia: One minute, we're in the White House Situation Room making vital, real-world policy decisions; the next, we're yammering on about long-dead European philosophers and drawing pictures of duck-rabbits. But bear with me.

The snatch-and-grab operations (one successful, one aborted prior to the capture of the target) triggered a renewed bout of blogospheric commentary on the legal status of the global war on terror (or GWOT, or the "armed conflict against al Qaeda and its associates," or the "global struggle against violent extremism," or whatever we're calling it these days). You know: Were these law enforcement operations, military operations, or something else? Were the targets (Abu Anas al-Libi and Abdikadir Mohamed Abdikadir, alias Ikrima) wanted criminals or enemy combatants? And so on.

Legal experts have debated the very same questions for well over a decade now, starting way back when the Bush administration first began to send detainees to Guantanamo and then-Attorney General Alberto Gonzales quaintly pronounced the Geneva Conventions "quaint." Were the 9/11 attacks crime, or war? Is the legal framework applicable to combating terrorism a matter of international criminal law and human rights law, or the law of armed conflict?

I think it's time to face up to an uncomfortable truth: These questions have no answers. They sound like they should have answers, but they don't, they won't, and they can't. In fact, they're the functional equivalent of arguing about whether the duck-rabbit is a rabbit or a duck.

The search for legal certainty

This hasn't stopped legal commentators from insisting that there's a manifestly right and a manifestly wrong way to understand the 9/11 attacks and subsequent U.S. counterterror efforts.

Immediately after 9/11, many legal experts took the view that since the 9/11 attacks were carried out by non-state actors using nothing that resembled traditional weapons, they were best understood as crimes (albeit crimes of a frightening magnitude and complexity) and were therefore appropriately addressed through an ordinary law enforcement paradigm.

French law professor Alain Pellet labeled the claim that the United States was at war with al Qaeda "legally false," and Amnesty International argued that under international law, "It is not possible to have an international armed conflict between a state on the one hand and a non-state actor on the other." James Cole (who was later appointed to a senior Justice Department position by President Obama) similarly insisted in a 2002 article that "for all the rhetoric about war, the Sept. 11 attacks were criminal acts."

More than a decade later, variants of this view continue to have strong adherents. As a recent European Council on Foreign Relations report by Anthony Dworkin notes, most European legal scholars and courts  reject "the notion of a de-territorialised global armed conflict between the US and al-Qaeda" and believe that "the threat of terrorism should be confronted within a law enforcement framework."

But if some commentators viewed law enforcement as the "obviously" correct legal paradigm for addressing 9/11 and subsequent terrorist threats, many others insisted with equal certainty on the correctness of the opposite proposition. "There is little disagreement ... that if the September 11 attacks had been launched by another nation, an armed conflict under international law would exist," argued Justice Department lawyers John Yoo and James Ho in 2001. This "should qualify the attacks as an act of war."

The Obama administration's legal analysis is similar. As former White House counterterrorism advisor (and current CIA director) John Brennan put it in 2011, "[W]e are at war with al Qaeda. In an indisputable act of aggression, al Qaeda attacked our nation and killed nearly 3,000 innocent people." President Obama has repeated the same sentiment, leaving little room for doubt: "Under domestic law, and international law, the United States is at war with al Qaeda, the Taliban, and their associated forces."

Back to the duck-rabbit

Return to the duck-rabbit, which achieved scholarly immortality through its inclusion in the posthumous publication of Wittgenstein's Philosophical Investigations. It is a mistake, Wittgenstein argued, to imagine that words are straightforward representations of some fixed external reality; rather, language itself is inseparable from context. Thus, as Wittgenstein put it, "The picture [of the duck-rabbit] might have been shewn me, and I never have seen anything but a rabbit in it.... [But imagine now] I see two pictures, with the duck-rabbit surrounded by rabbits in one, by ducks in the other."

When the duck-rabbit is surrounded by other images that appear to "clearly" and unambiguously represent rabbits, engaged in typically rabbit-like activities, one would never think to see the duck-rabbit as anything but a quickly sketched rabbit. But when the duck-rabbit is surrounded by images that are "clearly" of ducks, engaged in duck-like activities, one would be equally unlikely to perceive the duck-rabbit as anything other than a duck.

Looking back and forth between a picture in which the duck-rabbit is surrounded by rabbits and a picture in which it is surrounded by ducks, wrote Wittgenstein, one would "not notice that [the original duck-rabbit image is] the same" in each. But "[d]oes it follow from this that I see something different in the two cases?"    

Like Wittgenstein's duck-rabbit, the 9/11 attacks can be seen as crime or as war -- and, as with Wittgenstein's duck-rabbit, it would be a mistake to insist that one vision is somehow "truer" than another, and equally mistaken to insist that there is a "right" and "wrong" legal paradigm by which to make sense of the 9/11 attacks.

Why it matters

Of course, saying that there is neither a "right" nor "wrong" way to understand terrorism doesn't mean that the choice of paradigms is inconsequential. After all, the choice of "duck" versus "rabbit" is hardly inconsequential, if one is a hunter -- or, for that matter, if one is a rabbit, or a duck. (If it's duck-hunting season but not rabbit-hunting season, ducks are fair game but rabbits are immune from violence; if it's rabbit-hunting season but not duck-hunting season, the opposite is true. The lawfulness of the hunter's shot depends on whether we view the duck-rabbit as duck or as rabbit. For the duck-rabbit, survival itself is at stake.)

So it is with U.S. counterterror activities. "The speaking of language is part of an activity, or a form of life," noted Wittgenstein. If the events of 9/11 constituted an "armed attack" and U.S. efforts to combat terrorism constitute "a war," then the international law of armed conflict applies; if 9/11 was a crime (albeit a horrific crime), then ordinary criminal law applies. And a great deal hinges on which legal framework we choose, for war rules are extremely permissive when it comes to the use of lethal force and other forms of state coercion, while the law enforcement framework is far less permissive.

In a war, the United States can lawfully kill enemy combatants with no judicial process whatsoever, and it can lawfully capture them and detain them indefinitely without trial. But if there's no war, suspects must be treated as innocent until proven guilty. They can't be killed just because officials believe they might commit further crimes in the future, and if they're apprehended, they need to be provided with lawyers and brought promptly before a duly established court.

The war/not-war distinction matters. If we can't figure out whether or not there's a war -- or where the war is located, or who's a combatant in that war and who's a civilian -- we have no way of deciding which rules to apply. But if we can't figure out what rules apply, we lose any principled basis for making the most vital decisions a democracy can make.

When can lethal force be used inside the borders of a foreign country? Which communications and activities can be monitored, and which should be free of government eavesdropping? What matters can the courts decide, and what matters should be beyond the scope of judicial review? When can a government have "secret laws," and when must government decisions and their basis be submitted to public scrutiny? Who can be imprisoned, for how long, and with what degree, if any, of due process? Who is a duck, and who is a rabbit?

Ultimately: Who lives, and who dies?

Forget about law -- and forget about lawyers

We can ask whether "snatch and grab" operations or drone strikes are "legal" until we're blue in the face, but in a world full of duck-rabbits, we won't learn anything interesting or useful.

Instead, we should focus on some very different questions: Do we prefer a world in which there are few constraints on the state's use of lethal force, which creates one set of dangers -- or do we want a world in which the state is more constrained, which creates a different set of dangers? How can we manage the dangers that accompany either vision? Or, if this is a false choice, what kind of world do we want to live in -- and how can we get there?

These are questions about morality, policy, and competing visions of the good, and I don't know how we will ultimately decide to answer them. But I do know one thing: Today, as in 2001, those who look to the law -- or to lawyers -- for guidance will look in vain.