Suppose I am a turnip

>> Thursday, March 12, 2009

Suppose I am a hamster. Using my four paws, I would climb up into a wheel and run around in it all day. I would sniff around my cage for pellets of food dropped through the wire mesh on top, using my pink, twitchy nose to detect savory, rock-hard lumps of processed vegetable protein that I would gnaw upon with my constantly-growing front teeth. I would pee in the same corner all the time and cover it with shredded newspaper. Also, if my mate had pups, I would eat them.

Suppose you are a beach ball. You will not read this post (assuming you haven't stopped already). You are spherical, and full of stale air. Your only protuberance is an invertible nipple that can be extracted for inflation or pushed into your brightly-colored, slightly sticky plastic side. A little boy will throw you at his sister, and she will go tell on him. Or a college student might co-ordinate a motel-swimming-pool volleyball game during spring break, easily using you in lieu of a real volleyball.

Suppose al Qaeda branched out from crashing airliners into American cities. Using small arms, explosives, or biological, chemical or nuclear weapons they could seize control of apartment buildings, stadiums, ships, trains or buses. As in the November 2008 Mumbai attacks, texting and mobile email would make it easy to coordinate simultaneous assaults in a single city.

Ah, the joy of the contrafactual hypothetical! Suppose you are a rock. Suppose I am another rock. Suppose we are all rocks. Suppose the right thing, and it is likely an imaginative individual unmoored in morality and indifferent to the law can justify nearly anything. Choose a frightening and provocative contrafactual hypothetical, and perhaps people will stop listening to everything else you actually say and nod their heads at the end of the spiel and ask you where to sign. Suppose that I have a gun. Suppose I am in your room, standing over your shoulder while you read this. Suppose the gun is pointed at the head of a puppy--no, not an obnoxious puppy that yaps all the time and won't stop ruining the carpet, this is an adorable puppy with enormous brown eyes that practically paper-trained himself; also, you are wearing brand new white shoes.

In the weeks after the Sept. 11, 2001, strikes on New York City and Washington, D.C., these were hypotheticals no more. They became real scenarios for which responsible civilian and military leaders had to plan. The possibility of such attacks raised difficult, fundamental questions of constitutional law, because they might require domestic military operations against an enemy for the first time since the Civil War. Could our armed forces monitor traffic in a city where terrorists were preparing to strike, search for cells using surveillance technology, or use force against a hijacked vessel or building?

-John Yoo, ibid.

It is a curious definition of the word "real" that supposes things that aren't true and then says these things aren't hypotheticals. For that matter, it is a curious use of the words "scenarios" and "possibilities" that treats them with broad and radical measures that undermine bedrock Constitutional principles.

The attacks on the World Trade Center on September 11th, 2001, involved a scheme proposed in 1996, with preliminary steps towards execution actually being initiated in 1999 and the actual terrorists involved entering the United States early in 2000. And, of course, there's a very strong argument that the subsequent success of these terrorist cells had more to do with missteps by the FBI than with the suave success of the al-Qaeda agents.

Naturally, the likelihood that al-Qaeda shot its collective wad on September 11th, 2001 is something that only emerged in the post mortems. On September 12th, perhaps, it was harder to tell signal from noise. Perhaps more planes were about to be hijacked, or an apartment block about to be seized by nefarious men with small arms. Then again, certain possibilities should have seemed obviously improbable on the spot: surely if al-Qaeda was on the verge of somehow acquiring a nuclear weapon on September 10th, somebody would have contacted the cells to tell them to cancel their flight plans, something "better" was in the works. And if al-Qaeda's 9/11 masterstroke involved nineteen guys, give or take, hijacking four airplanes, what would be the odds of al-Qaeda members taking over an apartment building or stadium with small arms? How many men does it take to seize a stadium, anyway, one full of twenty thousand pissed off Americans still horrified and angry about that last shit your guys pulled? How many rounds of ammunition are your guys carting, anyway?

Which brings up one other point that seemed obvious immediately after September 11th, 2001, that has repeatedly gotten lost in further discussions: the 9/11 attacks worked, in some large degree to the extent they worked at all, because the al-Qaeda terrorists cheated, and broke the time-honored pact between hijacker and hostage that dates back to near the dawn of aviation. You take us prisoner, we sit tight, you try to figure out how to get this plane to Cuba; or something along those lines, anyway. We'll huddle in the back and cry and pray, and you'll wave your weapons around and possibly get shot to pieces when we have to land to refuel. Later, we will be on the Today show (you won't, because you will be in custody, or dead). This is how things work, you see, or how they worked before the September 11th hijackers exploited this ancient symbiosis to keep the passengers pacified while they slammed the planes into large buildings. It is no surprise at all (and no diminishment of their bravery or sacrifice to say it's no surprise) that the passengers on Flight 93 rose to the occasion when they discovered, via cell phone, that their hijackers intended to breach the contract. Indeed, when you know your hijacker is intent on living, being a sheep is the most rational thing you can do; conversely, the most rational thing you can do when he's a murderous, suicidal religious psychopath is to be a wolf.

Later, if you're evaluating the prevention of terrorist attacks, this is something you take into account: will al-Qaeda terrorists armed with boxcutters take over another plane and crash it into something? No, for several reasons, not the least of which is we're all onto that trick now. "Fool me once, shame on, shame on you. Fool me, you can't get fooled again," as they say in Texas and probably Tennessee.

And however much you may be in a fog of war on September 12th or September 13th, surely by the time you're writing legal memos in October in which you claim that the Posse Comitatus Act only applies when you say it does you have some better idea of what constitutes a realistic threat. Suppose terrorists armed with biological weapons are in downtown Boston. Suppose that SPECTRE has captured two nuclear submarines and stashed them in an underwater base in the middle of the Atlantic Ocean somewhere in order to start a nuclear war between the superpowers. Suppose that my cat can talk, but he only speaks in a Cantonese dialect and the two words of Chinese I retain from college are in Mandarin (since I can constantly thank him, our conversations are extremely polite, however limited).

One wonders how in the world somebody like John Yoo doesn't have the sense to be quiet, how he goes along writing idiotic and indefensible defenses in places like The Wall Street Journal? One wonders, too, if the Journal continues to publish such essays because they agree or merely because Mr. Yoo is the author of notorious and discredited legal memorandums for the previous President, and so the fact he's disingenuous and quite possibly a total idiot is newsworthy. (If Mr. Yoo is not himself an idiot, he thinks his readers must be; actually, these aren't exclusive possibilities, now that I think about it.)

Mr. Yoo proposes that the Civil War would have been unwinnable had Fourth Amendment protections been applied to contested territory. One might agree with this proposition while still wondering what it has to do with anything in this present universe. Suppose that al-Qaeda brings in thousands of sleeper agents. Suppose one April day these al-Qaeda agents decloak to fire upon Fort Sumter; suppose they convince the legislatures of various states to secede from the Union. Suppose they use a mind-control ray to do it. Suppose they have orbital superlasers. Suppose they are being led by General Zod and that Superman will not respond to the President's desperate pleas for help because he has used the red crystal to remove his superpowers so he can have sex with a human woman. Suppose the sex was hot but couldn't be included in the final cut because the movie needed a PG rating.

The problem with Mr. Yoo's suppositions isn't that they're wholly irrational within the funhouse context of any bizarre scenario he draws up. I imagine Mr. Yoo, who might be missing career opportunities in the alt-history subgenre of science fiction, could come up with a scenario in which repealing the Third Amendment of the United States Constitution seems like a boffo idea or one in which all cats must wear diapers lest America fall into a dark twilight of feline-fecal decay. The problem is that his suppositions are themselves a post-facto funhouse context to advocate what he thought the Bush Administration wanted to hear: you want grounds for military operations on American soil? Suppose there are terrorists fighting in the streets! You want to hold people indefinitely and torture them for information? Suppose they are planning a catastrophic something-or-other. Suppose they might do these things, how awful it would be! Let's do something illegal and dangerous now to avoid the improbable and far-fetched might.

Realistic threat assessment goes out the window when you do this. Suppose the terrorists unleash chemical weapons in a major city subway system used by thousands of people every day! Yes, suppose they do, I wonder what would happen--perhaps they'd kill more than a dozen people and injure more than fifty--and this would necessitate massive repeals of civil liberties? Suppose the terrorists acquire a nuclear bomb! Do you have any idea just how difficult that would be? The truth is that as conceptually "simple" as a nuke is, actually obtaining or building one, and then transporting it and arming it and detonating it, is something that only roughly a half-dozen nations have been able to do during a sixty-year period and after expending vast amounts of money, sweat, and intellectual labor.

It's not that these things are impossible, mind you, and I'm certainly not saying that. What I am saying, of course, is that a few minutes' rational thought begins calling into question whether a low-probability possibility is worth sacrificing foundational civil liberties that actually define a nation--we are, after all, not a nation by ethnicity or faith, but a nation united by a notion of what an idealistic state ought to look like. Yoo's failures, then, aren't just failures of professional responsibility and basic human decency, but failures of reason in the face of monstrous, nightmare-black, mindless panic. Should al-Qaeda procure Sarin and set it loose in a public place, could they kill and harm more people than Aum Shinrikyo? Maybe, maybe not, but you don't see Mr. Yoo mentioning--now or ever--that a terrorist attack using chemical weapons isn't just a scenario, but an experience that can have its measure taken. Or that maybe the odds of common ordinary citizens just sitting there with a reasonable expectation of survival during a terrorist seizure of a plane, train, ship, bus, paddleboat, bicycle or child's rollerskates have dropped to zero in light of the realization that the social contract has been unilaterally revoked by one party. Or that telling the President he may use the Army as a police force is okay and even legal so long as he doesn't use the magic words "police force" is an atrocious and irresponsible idea (if only because it's still bad and embarrassing advice even if he doesn't act on it).

Suppose you are an intelligent, rational, reasoning creature.


Ilya Thursday, March 12, 2009 at 8:39:00 AM EDT  

Didn't Executive Decision "predict" the breach of contract between high-jackers and hostages? We need to close down Hollywood, I think, they are giving terrorists ideas...

Janiece Murphy Thursday, March 12, 2009 at 9:41:00 AM EDT  

Eric, that was a most fabulous analysis. Thank you.

Random Michelle K Thursday, March 12, 2009 at 11:34:00 AM EDT  

The whole to keep the populace alarmed (and hence clamorous to be led to safety) by an endless series of hobgoblins.
--Henry Louis Mencken

Nathan Thursday, March 12, 2009 at 12:01:00 PM EDT  

we are, after all, not a nation by ethnicity or faith, but a nation united by a notion of what an idealistic state ought to look like.

Hear, hear!

Also, "Contrafactual Hypothetical" is just jammed full of win.

Eric Thursday, March 12, 2009 at 1:05:00 PM EDT  

That's a great and apt H.L. Mencken quote, Michelle!

Random Michelle K Thursday, March 12, 2009 at 10:19:00 PM EDT  

Here's a related quote made years ago by my friend Dee when she was defending the Pledge of Allegiance.

Other countries haven't needed to instill the notion of patriotism. We are and continue to be a nation of immigrants. Other countries may change governments or names or creeds- but their populations are stable and native born. Furthermore what immigrants they do have are NOT invited to keep their ethnicity and individuality intact the way we do here. Our bonds are not birth place, culture, religion or skin color. Our only common bond is a willingness to uphold the constitution. The pledge is a very nice way to teach or remind ourselves of that.
--Dee Plath

Eric Thursday, March 12, 2009 at 11:29:00 PM EDT  


See, because I consider the Pledge to be a flag oath and not a Constitutional oath, that's one of the major problems I have with it. I'm proud of the oath (or affirmation, actually) I took to uphold the Constitution when I was sworn (or affirmed, actually) into the Bar, but I don't say the Pledge and I won't. Even if you took out the "under God" bit that was added into it in the '50s, I have a problem with it.

Nor is it that I don't like the flag--I like it quite a bit, maybe even love it. There's just something... well, I don't want to invoke Godwin's Law, but... y'know, to me flag oaths are the kind of thing that's done by... well... I mean.... Flag oaths, see, they're... yeah.

Sorry. That's just how I feel about it.

Random Michelle K Friday, March 13, 2009 at 3:50:00 PM EDT  

I do see. But I wanted to point out that Dee was expressing a similar idea to what you were, she just had different conclusions from yours.

For me, the pledge is standing in a group and everyone together saying what we believe--that we support and love our country, that despite all our differences, this is our country--all of us together.

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