Sam Smith, 2006 – It is not easy to recognize fascism if you haven’t been there before. Our eyesight is blurred by everything from cultural optimism to psychic denial. But news of the NSA’s mass spying on American’s phone records – in number of victims, at least, perhaps the most broadly illegal and unconstitutional act in our history – makes it all simpler. There is not an ounce of hyperbole in calling the NSA’s action those of a fascist regime and not of a democratic state. NSA has not only violated the law, it even refuses to allow the Justice Department to investigate its violation. This is the behavior of a dictatorship, not of a democracy.
Sadly, even more telling that NSA’s action – in determining how far down the road to fascism we have traveled, is the response to it by the public, the press and the law. In a real democracy, citizens, media and their attorneys stand up against such abuse; in this case there is a truly frightening ambivalence and apathy.
According to the Washington Post, nearly two thirds of Americans support the NSA in its actions – 44% strongly. This may not be so surprising when one considers how little time and space the media has permitted for arguments that paranoia is a poor way to protect oneself or that a regime that will trash its laws and constitution rather than adopt a more reasonable foreign policy is not to be trusted to be either fair or safe. On a regular basis the press reinforces the idea that “national security” is inherently at odds with democracy and decency, repeatedly nudging the citizen towards the former even if it is, as it so often is, a phantom refuge.
Further, many lawyers – and the commentators who quote them – foster such trends by the mythology that justice is best served by following precedents or case law. This bias is based on the cheerful presumption that progress in the law as elsewhere is inevitable. On a number of occasions, however, I have asked extremely intelligent lawyers what does one do in a society where the legal precedents are becoming worse – as they are in a country dismantling two centuries of ideals? Not one has given a coherent answer. One can not tell how much longer America has before it gives up on democracy completely. What we can say, however, is that the road has just gotten much shorter.