So what IS so wrong with being Brave?

So last post I talked about why I think the current uncritical enthusiasm for the U.S. military as the guarantor of all things constitutional ("Land of the Free Because of the Brave") isn't a particularly good thing in general.

Now I want to talk about why I think it's not politically healthy for the United States in particular.

See, here's the thing:

Military power is, at bottom, about compelling action through the application of relatively unrestricted violence. In a sense, any authority works this way. You or I may obey civil law because we believe it is in the greater interest of our community, state, or nation. But if we choose not to that authority - because in a republic we vest our representatives with the authority - can use anything up to lethal force to compel that obedience.

But. We have chosen, in the United States, to hedge our civil authorities about with proscriptions. Theoretically our police and our domestic law enforcement authorities cannot do many things that would make their business simpler - things like searching, profiling, spying, or detaining, those they merely suspect of wrongdoing. Because, again, in theory, the civil contract still exists, even between those who violate that contract. We choose to imprison those of our citizens that break the rules rather than deport or execute them. They are civil criminals, not enemies. They are still within the bounds of the social contract. Our police - at least so the theory goes - cannot act towards us like our soldiers act towards an enemy.

Mind you, I suspect that they still do it, a bit, in places, at times. But I would argue that those cases merely proof the rule rather than invalidate it.

Wartime, however, is, and soldiers at war are, a legal dies non; a war, by its very nature, means that there is no civil contract. We have agreed to wartime rules that suggest that we cannot treat even our enemies like vermin to exterminate, but they are not bounded within our polity. We don't arrest them and try them - they are not violators of our contract but aliens, utterly outside of it. If we capture them we merely hold them until violence has resolved the political dispute that has made them our chattel. Then we may choose to try them, if we believe that they have committed civil crimes during the wartime, or we release them back into their own society.

And we should note that wars, in general, are often destructive to the social contract within the warring nation. In our own country we have taken actions, from imprisoning individuals without trial to imprisoning entire racial groups without substantial grounds, that would be unthinkable, were unthinkable, in peaceable times.

The history of governments, our own as well as others, suggests that wars are often destructive of political liberties. Wartime governments assume powers to prosecute wars that curtail individual freedoms. While arguably needed to be successful in war these powers are sometimes difficult to divest once peace has returned. The United States government expanded significantly in both of the Twentieth Century world wars, and was likewise fortified by the global Cold War. When Sun Tzu said that no state ever benefited from prolonged war he was speaking of the economic and social drain of blood and treasure. But the effect on politics - the effect we have seen over the past decade - tends to strengthen the government at the expense of the individual. Wars, especially modern wars, are fought by masses. The effect of war is to encourage the government to mold the citizen into a mass, to shape its public into a shaft for the military spearhead.

So.

First, we have a current situation in which a certain portion of our leadership wishes to exercise national will in a certain portion of the globe, the Middle East. This is unsurprising and the inevitable consequence of our economic, political and military status as a Great Power.

Second, we have the natural conflict with the residents of that portion of the globe that occurs when the great power puts pressure on an extraterritorial objective. Some of this conflict will, inevitably, take the form of physical violence.

Third, we have the deliberate choice of the leadership, or at least a significant portion of that leadership, to treat this resistance as a "war", and the citizenry's choice of, or at least the indifference to, this designation, and

Fourth, we have a significant portion of this citizenry that is convinced that their nation's internal defense - its "freedoms" - depends on the power of its military to fight such a war.

The result, I opine, is that there is a critical mass of U.S. citizens who believe that "Freedom is Power". They wouldn't phrase it that way, of course, but what they believe is that military power equals political freedom. That the acts of physical force, untrammeled by civil law, that a soldier must take to win a war with an external enemy are needed to ensure civil liberty. That submission to armed force - or to the sorts of legionary disciplines used to control soldiers in battle - is what is needed to "preserve our freedoms".

I submit to you that the person who believes this sort of thing is the sort of person who has little or no objection of applying military solutions to civil problems.

Secret trials? Secret sentences? Secret prisons? How are they different from what happens to enemy soldiers in wartime, who disappear into prison camps in anonymous masses, who are, if anything, dealt with by military courts martial?

Wiretapping? Spying? How are these different from military intelligence units ferreting secrets by intercepting enemy commo, interpreting recon photos, or interrogating captured troops?

A very good example of this sort of thinking is contained in the discussion of this issue can be found over at Greenwald's blog in John Eastman's response to Greenwald's criticism of the surveillance state that has grown up as part of the "War on Terror". Eastman, who as former Dean of the Chapman University School of Law, candidate for California Attorney General, and former clerk to judges Clarence Thomas and Michael Luttig should understand the difference between civil law and the law of war, even equates the surveillance of civilian suspects with the censorship of his soldier grandfather's letters in WW1.

If this sort of "we're at war so we are all like soldiers under military discipline" attitude has captured the mind of an attorney, jurist, and potential public official, how much more likely is it that the sort of person sporting a "Land of the Free Because of the Brave" bumper sticker is willing to see military discipline, wartime rules, the spartan code of the brave, applied to the everyday life of the citizen? To the civil code of the state?

This is not a healthy thing for a republic. This is not something that any politician, any pundit, any leader, should want or should encourage. This is the sort of thinking that takes the citizen and makes them the subject, the sort of thinking that makes republics into the-nation-in-arms; that takes nations with Cincinnatus and gifts them Napoleon.

Do we really want to find out if we can do that here?