On “Illegal” Disclosure of Governmental “Crime”

There is an important ongoing debate on whether or not the citizenry has the right to appropriate and disclose government information that the government protects through use of positivist legal theory (i.e., what’s legal and illegal is whatever government says it is, without required philosophical, moral or ethical premises).

In that context, some of us believe that we need to keep in mind the precedent of our own revolution against an ostensibly “legitimate” government and the philosophical foundations laid out in our Declaration of Independence. The supposed Social Contract which forms the basis for our sacred political texts (they resemble a secular religion) is a bilateral agreement but government power is now so overwhelming and access to justice so ephemeral that obedience to our government’s laws no longer coincides with morality, it doesn’t have to. However, legal positivism, the new god in town, runs diametrically counter to the nationalistic myths that underlie American “history” and which would seem to delegitimize today’s government the way they did prior to the civil war with respect to the concept of “legal” slavery, legal pursuit and return of fugitive slaves and the illegality of providing them shelter and aid.

The fact is that legal positivism so veers from the philosophical premises reflected in the Declaration of Independence and the arguments reflected in the Federalist Papers (it turns out that the anti-federalist arguments were the harbingers of current reality) that it seems the only rational remedy is a new Constitutional Convention. It may be time to objectively reevaluate the Social Contract. Government is out of control and while it may be that the citizenry will elect to establish that security trumps all and dictatorship and authoritarian – totalitarian policies are justified (something with which I would strongly disagree), the operative sociopolitical premises need to be formally reconsidered and reset.

There is a fascinating corollary with respect to the current debate about rights to accurate information and the fundamental premise on which the Second Amendment is based: i.e., that the People must have the resources necessary to avoid tyranny by being better collectively armed than the government. That of course is no longer possible with respect to weaponry; we would have to enjoy both the right and the capacity to possess and use nuclear weapons, military aircraft, aircraft carriers, etc. It is only possible, and just barely so, with respect to information and technology yet the most ardent supporters of the Second Amendment seem to have no understanding of that philosophical connection. In fact, many, rather than inchoate revolutionaries (as Thomas Jefferson hoped they’d be) are proponents of a “my country right or wrong” mentality failing to realize that such perspective involves abdication of the duties most dear to the country’s founders.

The conflict between security and liberty has always involved an irreconcilable tension, the threat of insecurity historically abused (and frequently manufactured) to curtail liberties, something Benjamin Franklin, our greatest founding father (purportedly on several levels) firmly believed. Some of us believe that’s the case now. Back when we were very young the actions we criticized in others and on which expended great natural treasure (both human and financial) to defeat, are the ones our government is now advocating, but without a critical analysis to ponder whether we were right then and wrong now, or whether it was our erstwhile enemies who were right. That is a necessary reflection for logical conclusions but one too many of us ignore, preferring to avoid painful truths, as so many have done in the past, by relying instead on the age old crutch of emotion provided by abuse of the concept “patriotism”.

True, the required logical analysis is very painful and very difficult, in many cases too painful and too difficult for many of the people I most love and admire: dedicated, loyal, intelligent people who have spent virtually their entire adult lives in military or related government service. That’s extremely sad because they’re the ones most invested in the real American Dream, one not based on economic success but on justice, equality, liberty and in the end, the love of peace.

In a country that in terms of political leadership now so disparages the strategic and moral experience that military service provides (think of the triad of Clinton, Bush II and Obama), perhaps the abuse of power that has now become the norm is explicable, if not justifiable. I’ve always felt that General Eisenhower was among our greatest presidents not only for what he did (it was Ike and not JFK or Lyndon Johnson who took the first and hardest steps to forcibly enforce termination of segregation) but for what he refused to do, commit the lives and welfare of US military personnel to causes in which we had no legitimate interests. A military leader with deaths on his conscience, who’s had to directly face the consequences of his decisions, explaining them to grieving mothers, fathers, spouses and children, does not so easily commit other people’s children to ghastly fate. One such as Ike, who directly faced the loss of so much to supposedly defend the principles of liberty, equality and justice, would seemingly be much better prepared to resolve the current debate and reject the amoral concepts inherent in legal positivism.

Perhaps what we need now is another Ike.

James Webb, where are you?

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