When Legalism Enables Lawlessness


In the late 1930s, Ernst Fraenkel, a German-Jewish lawyer, developed a theory that has surprising resonance today. In Fraenkel’s theory, called the Dual State, a totalitarian society is propped up by two interlocking halves: One half enshrines and enforces legal order, while the other arbitrarily exercises power free of legal constraint. The first half provides the veneer of legality necessary for the second to operate without producing overt rebellion, while the second allows the government to achieve its goals, notwithstanding a superficial commitment to legality. The United States is not a totalitarian society, but Fraenkel’s theory nonetheless sheds light on recent tensions between the rule of law—the oft-quoted notion that the U.S. has a “government of laws, not of man”—and the rule of “technically legal.” First, the country continues to roil over grand-jury decisions not to indict police officers in the deaths of Michael Brown and Eric Garner. The use of a grand jury—a quintessentially legal process used in thousands of cases—would seem to help insulate the outcomes from criticism. Indeed, grand juries historically served as independent bodies. Proceedings were secret to ensure freedom from coercion. But there are problems. Critics charge that secrecy and total prosecutorial control impair a grand jury’s ability to serve justice and have called for reform for years. In the Brown grand-jury hearing, the prosecutor was particularly criticized for not trying to obtain an indictment, and instead presenting the grand jurors with a mountain of evidence to sift through. While some reform advocates have pushed to show grand juries a wider range of evidence, the divergence from the prosecutor’s customary role suggested that the process was being used as legal cover to reach the desired outcome—a technically legal approach, yes, but inconsistent with the spirit of the rule of law. Then, this month, the Senate Intelligence Committee released the “Torture Report,” describing the CIA’s treatment of detainees in its post-9/11 prisons (though calling them that insults the good name of prisons). The report provides, in excruciating detail, a indictment of the CIA’s leadership, judgment, policies, and professionalism, even as some knowledgeable observers warn that more remains hidden. Here, too, the legal system was effectively used to provide cover. Bush administration lawyers crafted memos to cover the CIA’s actions with a thin veneer of legality. The Justice Department and attorney general determined that President Bush could suspend the Geneva Convention. Another administration lawyer produced a memo defining torture so narrowly that detainees had to be near death for their treatment to qualify. These memos served two purposes: first, to allow the CIA interrogators to abuse detainees in horrific (and counterproductive) ways, and second, to ensure they would be legally protected for doing so. Later repudiated by the Justice Department, Bush’s later-term attorney general, and President Obama, these legal memos were not evidence of a dedication to the “rule of law.” Rather, they were thin legal justifications for the profoundly troubling abuses revealed in the report. A commitment to the rule of law is central to America’s self-image; subverting that commitment undermines its claim to embody a fair and just democracy. Citizens must be vigilant, lest they believe that covering themselves with legalisms is equivalent to living under a rule of law. This article was originally published at http://www.theatlantic.com/politics/archive/2014/12/when-legalism-enables-lawlessness/383965/


Court Rules Off Grid Living Illegal in Florida


Living off the grid is illegal in Cape Coral, Florida, according to a court ruling Thursday. Special Magistrate Harold S. Eskin ruled that the city’s codes allow Robin Speronis to live without utility power but she is still requiredto hook her home to the city’s water system. Her alternative source of power must be approved by the city, Eskin said. As previously reported in Off The Grid News, Speronis has been fighting the city of Cape Coral since November when a code enforcement officer tried to evict her from her home for living without utilities. The city contends that Speronis violated the International Property Maintenance Code by relying on rain water instead of the city water system and solar panels instead of the electric grid. “It was a mental fistfight,” Speronis’ attorney Todd Allen said of Eskin’s review of his clients’ case. “There’s an inherent conflict in the code.”

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Surveillance & Social Control


Privacy and surveillance work runs the risk of being siloed in a media and telecommunications sector (because of its relationship to the Internet)–we cannot let this happen. The disastrous impacts of this state and industry sponsored apparatus is, among other things, an extension of neo-liberal policy. As social justice leaders and movement builders we need to ensure media/telcom policy and tech heads are working with us, and shaping their actions and recommendations based on our vision for our schools, neighborhoods, cities, public transportation, work-places–and other sites of place-making.

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