Whatever else one might say about Cass Sunstein, he surely knows who his enemies are. The former head of the White House Office of Information and Regulatory Affairs and member of the President’s panel on NSA "reforms" – infamous for his suggestion that government agents should "cognitively infiltrate" alleged "conspiracy-minded" groups – is out with a new one, this time aimed at "paranoid libertarianism." Taking up where Princeton University historian and Clintonista Sean Wilentz left off, Sunstein avers:
"It can be found on the political right, in familiar objections to gun control, progressive taxation, environmental protection and health-care reform. It can also be found on the left, in familiar objections to religious displays at public institutions and to efforts to reduce the risk of terrorism."
In short, any objection to the Obama administration’s agenda is indicative of "paranoia" on both sides of the political spectrum. While it would be tempting to write this off as mere partisan bombast, this isn’t the case with Sunstein, an ideologue whose faith in the beneficence of government action underlies all his public pronouncements. If government sees some benefit to state-sponsored displays of religiosity, well then what’s your problem? And as for the Surveillance State – it’s just a program to "reduce the risk of terrorism," and has absolutely nothing to do with industrial espionage, compiling dossiers on innocent Americans, and tapping Angela Merkel’s phone.
By carrying on the discussion on the plane of High Theory, Sunstein avoids talking about specifics that contradict his thesis: but for those of us not ensconced in the ivory tower of a Harvard professor this simply will not do. In reality, it has been shown that the justification for the National Security Agency’s data dragnet – that it has supposedly stopped several major terrorist plots in the past – is simply untrue.
So how do you spot these libertarian subversives who deserve to be "cognitively infiltrated" and quite possibly suppressed? According to Professor Sunstein, they share five characteristics:
"The first is a wildly exaggerated sense of risks – a belief that if government is engaging in certain action (such as surveillance or gun control), it will inevitably use its authority so as to jeopardize civil liberties and perhaps democracy itself. In practice, of course, the risk might be real. But paranoid libertarians are convinced of its reality whether or not they have good reason for their conviction."
What would be a "good reason," in Sunstein’s view? He doesn’t say, conveniently enough, but what about secrecy? Shouldn’t our suspicions be aroused by the fact that the NSA started spying on us behind our backs? Not even the author of the Patriot Act knew it was being utilized by this administration – and its predecessor – to justify scooping up all telephonic and Internet data generated within our borders and far beyond. Why was it all done in the dark, with even the court proceedings “legalizing” this anti-constitutional coup kept secret? The answer is clearly because such brazen chicanery could never stand the light of day.
And surely Sunstein’s argument can be turned around and aimed at its author: isn’t his proposal that the US government hire paid snoops to "cognitively infiltrate" so-called conspiracy theorists on the Internet (and elsewhere) using a hammer to kill a flea? In his infamous paper, he cites polls showing a good proportion of the people of New York believe the 9/11 attacks were the work of the US government, but even if this somewhat dubious statistic reflects reality what is the risk of failing to confront it with government action? Does Sunstein expect 9/11 "truthers" to take over the state of New York anytime soon? Who’s paranoid now?
Which leads us quite naturally into a discussion of the alleged second characteristic of these supposed paranoids:
"A presumption of bad faith on the part of government officials – a belief that their motivations must be distrusted. If, for example, officials at a state university sponsor a Christian prayer at a graduation ceremony, the problem is that they don’t believe in religious liberty at all (and thus seek to eliminate it). If officials are seeking to impose new restrictions on those who seek to purchase guns, the ‘real’ reason is that they seek to ban gun ownership (and thus to disarm the citizenry).
Sunstein’s choice of examples is the equivalent of putting his hands over his ears and shouting "Lalalalalalalala! I can’t hear you!" What we’re talking about is the NSA and its relentless campaign to abolish privacy in much of the world: the key element here, which Sunstein ducks, is secrecy: not even members of Congress knew the nature and extend of the NSA’s all-out assault on the Fourth Amendment. This is enough to assume bad faith on the part of government officials – unless you’re Cass Sunstein, in which case faith in the superior moral status of these officials is akin to a religious dogma.
It’s not surprising Sunstein wants to change the subject and talk about prayer and gun control – after all, he’s appealing to the Democratic party’s "progressive" base, which hates both – but let’s address his disingenuous argument anyway.
As we know, Sunstein’s esteem for the Constitution as written is quite low: after all, this is someone with grave doubts about the First Amendment, which, he avers, needs to be amended to establish "federal guidelines for the coverage of public issues," i.e. government censorship of the media. So his disdain for the Second Amendment, not to mention the establishment clause of the First, hardly comes as a shock. This is all part of his crackpot idea that we need a "New Deal" for the Constitution – by gutting the Bill of Rights. While Sunstein and his fellow authoritarians want to get rid of the Constitution as we know it, they have yet to muster the political muscle to pull it off: doesn’t the preservation of the rule of law, and the very "liberal state" he says he champions, require that he wait until this sea change is formalized?
"The third characteristic," we are told, is:
"[A] sense of past, present or future victimization. Paranoid libertarians tend to believe that as individuals or as members of specified groups, they are being targeted by the government, or will be targeted imminently, or will be targeted as soon as officials have the opportunity to target them. Any evidence of victimization, however speculative or remote, is taken as vindication, and is sometimes even welcome. (Of course, some people, such as Snowden, are being targeted, because they appear to have committed crimes.)"
Is it really necessary to catalogue the long history of US government surveillance and targeting of dissident political groups? Must I detail the shameful record of the FBI’s "Cointelpro" program, or invoke the attempted blackmail of Martin Luther King? And those are just the most well-known examples of what our benevolent masters in Washington do when they have the power to do it.
Sunstein knows all this, so it’s hard to understand his point unless one examines the last parenthetical remark: clearly he believes that those who are indeed being targeted deserve to be targeted because they are either criminals or else potential criminals – thought-criminals, as George Orwell put it in his classic dystopian novel, Nineteen Eighty-Four, who should be "cognitively infiltrated" by the cybernetic equivalent of the American Stasi. Get it?
"The fourth characteristic is an indifference to trade-offs – a belief that liberty, as paranoid libertarians understand it, is the overriding if not the only value, and that it is unreasonable and weak to see relevant considerations on both sides. Wilentz emphasizes what he regards as the national-security benefits of some forms of surveillance; paranoid libertarians tend to see such arguments as a sham. Similarly, paranoid libertarians tend to dismiss the benefits of other measures that they despise, including gun control and environmental regulation."
The infinite uses of utilitarianism in the service of expanding government power is something Milton Friedman never understood, but here we see it unfold in all its inglorious Sunsteinian illogic. The assumption here is that every possible condition or measure has benefits and costs, but that is clearly not the case. There is no benefit to, say, death, just as there are no benefits attendant to slavery. Wilentz claimed "benefits" for the Surveillance State that are contradicted by the report of the NSA "reform" commission on which Sunstein served: the Privacy and Civil Liberties Oversight Board report seconded this conclusion, albeit in more sweeping terms. But the real question is: beneficial to whom, and for what?
Surely an all-knowing all-seeing NSA is a "benefit" to the US government, which can put on quite a performance of "security theater" in order to justify the multi-billions that go into keeping the Surveillance State afloat – they benefit materially, as well as politically in being seen as doing their job. But what about the rest of us? As the PCLOB report states, not a single terrorist plot has been uncovered and/or prevented by the NSA’s spying on Americans. So what "benefit" are we enjoying?
And let’s say there had been even a single plot that James Clapper and his gang of professional sneaks had uncovered and nixed – would that justify the program?
Let’s take an example from real life: in Sonoma county, California, where I live, a 15-year-old boy, Andy Lopez, was recently shot to death by a police officer. Andy was walking down the street in a neighborhood not considered the best carrying a toy gun which the officer (and his partner) mistook for a real AK-47. Upon seeing him, they stopped the police car and one officer jumped out, ready to fire: Andy turned around to face them and they shot him dead.
Now – what are the costs and the benefits of this kind of police policy: shoot and ask questions later? The risk of not shooting was that Andy was really a mass murderer intent on mayhem. The costs? A young boy’s life. According to Sunstein’s calculus, it was just fine and dandy that the officer killed Andy Lopez – because to believe otherwise would exhibit "an indifference to tradeoffs."
What if you believe a 15-year-old boy’s life is not to be "traded off" in the name of the Greater Good? Well, then, that’s how we know you’re a "paranoid libertarian"!
Which leads us to "the fifth and final characteristic" of those conspiracy-theorizing paranoid libertarians: "passionate enthusiasm for slippery slope arguments." As Sunstein puts it:
"The fear is that if government is allowed to take an apparently modest step today, it will take far less modest steps tomorrow, and on the next day, freedom itself will be in terrible trouble. Modest and apparently reasonable steps must be resisted as if they were the incarnation of tyranny itself."
For a scholar of constitutional law, Sunstein’s disdain for the spirit of that document is amazing: for the Founders were famously suspicious of government power – being students of history and all – and insistently warned against sliding down the very slippery slope Sunstein doesn’t want to acknowledge. Aside from that, however, there is the subjective nature of what it means to take "modest and apparently reasonable steps." Apparent – to whom? Modest – by what standard? Sunstein thinks we need to "rethink" the First Amendment: not exactly a modest goal. He wants the government to "infiltrate" – his word – dissident groups of which he does not approve. Is this "reasonable"? If so, count me as eminently unreasonable.
All these attacks on libertarianism are a good sign: we don’t need to ask "Why do they hate us?" We’ve earned their hate – and that is a measure of our success. Their hate is rooted in fear – and that, too, is justified, from their perspective. Because the power and influence of outright authoritarians of Sunstein’s ilk is threatened by the very existence of our movement, let alone its recent upsurge in popularity. Sunstein & Co. would love to take measures against us, "legal" measures that would limit our ability to influence the public discourse. For now, they are confining those measures to the realm of High Theory and the op-ed sections of our newspaper: tomorrow – well, we’ll see….
Progressivism today is increasingly an openly authoritarian movement: shorn of their liberal roots, progressives in the year 2014 sit atop a decidedly illiberal state. Sunstein’s job is to provide the theory behind this hideous sea-change, while Clapper and the NSA demonstrate the practice. But never fear: the more these latter day neo-Stalinists come out of the closet, so to speak, and show their true colors, the better it is for us. So here’s to the prospect of many more columns by Sunstein (who is, by the way, one of President Obama’s closest advisors) – keep talking, buster!
NOTES IN THE MARGIN
You can check out my Twitter feed by going here. But please note that my tweets are sometimes deliberately provocative, often made in jest, and largely consist of me thinking out loud.
I’ve written a couple of books, which you might want to peruse. Here is the link for buying the second edition of my 1993 book, Reclaiming the American Right: The Lost Legacy of the Conservative Movement, with an Introduction by Prof. George W. Carey, a Foreword by Patrick J. Buchanan, and critical essays by Scott Richert and David Gordon (ISI Books, 2008).
You can buy An Enemy of the State: The Life of Murray N. Rothbard (Prometheus Books, 2000), my biography of the great libertarian thinker, here.