The Banality of Systems and the Justice of Resistance

09-20-2013

Peter Ludlow in the Stone remarks on the generational divide in attitudes towards whistle blowers, leakers, and hackers. According to Time Magazine, “70 percent of those age 18 to 34 sampled in a poll said they believed that Snowden “did a good thing” in leaking the news of the National Security Agency’s surveillance program. This fits a general trend, one heralded by Rick Falkvinge—founder of the European Pirate Parties—at the Hannah Arendt Center Conference last year, that young people value transparency above institutional democratic procedures. Distrusting government and institutions, there is a decided shift towards a faith in transparency and unfettered disclosure. Those who expose such in information are lauded for their courage in the name of the freedom of information.

Ludlow agrees and cites Hannah Arendt’s portrait of Adolf Eichmann for support of his contention that leakers like Edward Snowden and Chelsea Manning acted justly and courageously:

“In “Eichmann in Jerusalem,” one of the most poignant and important works of 20th-century philosophy, Hannah Arendt made an observation about what she called “the banality of evil.” One interpretation of this holds that it was not an observation about what a regular guy Adolf Eichmann seemed to be, but rather a statement about what happens when people play their “proper” roles within a system, following prescribed conduct with respect to that system, while remaining blind to the moral consequences of what the system was doing — or at least compartmentalizing and ignoring those consequences.”

Ludlow insists: “For the leaker and whistleblower the answer to [those who argue it is hubris for leakers to make the moral decision to expose wrongdoing], is that there can be no expectation that the system will act morally of its own accord. Systems are optimized for their own survival and preventing the system from doing evil may well require breaking with organizational niceties, protocols or laws. It requires stepping outside of one’s assigned organizational role.” In other words, bureaucratic systems have every incentive to protect themselves, thus leading to both dysfunction and injustice. We depend upon the actions of individuals who say simply: “No, I can’t continue to allow such injustice to go on.” Whistle blowers and leakers are essential parts of any just bureaucratic organization.

Ludlow’s insight is an important one: It is that the person who thinks for himself and stands alone from the crowd can—in times of crisis when the mass of people are thoughtlessly carried away by herd instincts and crowd mentality—act morally simply by refusing to go along with the collective performance of injustice. The problem is that if Snowden and Manning had simply resigned, their acts of resistance would have had minimal impact. To make a difference and to act in the name of justice, they had to release classified material. In effect, they had to break the law. Ludlow’s claim is that they did so morally and in the name of justice. 

But is Ludlow correct to enlist Arendt in support of leakers such as Snowden and Manning? It is true that Arendt deeply understands the importance of individuals who resist the easy path of conformity in the name of doing right. Perhaps nowhere is the importance of such action made more markedly manifest than in her telling of the mention of Anton Schmidt when his name appeared in the testimony of the Eichmann trial:

At this slightly tense moment, the witness happened to mention the name of Anton Schmidt, a Feldwebel, or sergeant, in the German Army - a name that was not entirely unknown to this audience, for Yad Vashem had published Schmidt's story some years before in its Hebrew Bulletin, and a number of Yiddish papers in America had picked it up. Anton Schmidt was in, charge of a patrol in Poland that collected stray German soldiers who were cut off from their units. In the course of doing this, he had run into members of the Jewish underground, including Mr. Kovner, a prominent member, and he had helped the Jewish partisans by supplying them with forged papers and military trucks. Most important of all: "He did not do it for money." This had gone on for five months, from October, 1941, to March, 1942, when Anton Schmidt was arrested and executed. (The prosecution had elicited the story because Kovner declared that he had first heard the name of Eichmann from Schmidt, who had told him about rumors in the Army that it was Eichmann who "arranges everything.") ….

During the few minutes it took Kovner to tell of the help that had come from a German sergeant, a hush settled over the courtroom; it was as though the crowd had spontaneously decided to observe the usual two minutes of silence in honor of the man named Anton Schmidt. And in those two minutes, which were like a sudden burst of light in the midst of impenetrable, unfathomable darkness, a single thought stood out clearly, irrefutably, beyond question - how utterly different everything would be today in this courtroom, in Israel, in Germany, in all of Europe, and perhaps in all countries of the world, if only more such stories could have been told. 

For Arendt, great civil disobedients from Socrates to Thoreau play important and essential roles in the political realm. What is more, Arendt fully defends Daniel Ellsberg’s release of the Pentagon Papers. It seems, therefore, that it is appropriate to enlist her in support of the modern day whistleblowers.

There is, however, a problem with this reading. Socrates, Thoreau, and Ellsberg all gave themselves up to the law and allowed themselves to be judged by and within the legal system. In this regard, they differ markedly from Snowden, Manning and others who have sought to remain anonymous or to flee legal judgment. For Arendt, this difference is meaningful.

Consider the case of Shalom Schwartzbard, which Arendt addresses in Eichmann in Jerusalem. Schwartzbard was a Jew who assassinated the leader of Ukranian pogroms in the streets of Paris. Schwartzbard stood where he took his revenge, waited for the police, admitted his act of revenge, and put himself on trial. He claimed to have acted justly at a time when the legal system was refusing to do justice. And a French jury acquitted him.

For Arendt, the Schwartzbard case stands for an essential principle of justice: that to break the law and act justly, one must then bring oneself back into the law. She writes:

He who takes the law into his own hands will render a service to justice only if he is willing to transform the situation in such a way that the law can again operate and his act can, at least posthumously, be validated.

What allows Schwartzbard to serve the end of justice is that he took the risk of putting himself on trial and asked a court of law and a jury to determine whether what he did was just, even it were also illegal. By doing so, Schwartzbard not only claimed that his act was a matter of personal conscience; he insisted as well that it was legal if one understood the laws rightly. He asked the representatives of the law—the French jury—to publicly agree with his claim and to vindicate him. He had no guarantee they would do so. When they did, their judgment brought the justice of Schwartzbard’s act to the bright light of the public and also cast the legal system’s inaction—its refusal to arrest war criminals living openly in Paris—in the shadow of darkness.

When I have suggested to colleagues and friends that Snowden’s flight to Moscow and his refusal to stand trial makes it impossible to see his release of the NSA documents as an act of justice, their response mirrors the argument made by Daniel Ellsberg. Ellsberg—who turned himself over to the police after releasing the Pentagon Papers—has defended Snowden’s decision to flee. The United States of 2013, he argues, is simply no longer the United States of the 1960s. When Ellsberg turned himself in, he was released on bail and given legal protections. He has no faith that the legal system today would treat Snowden with such respect. More likely Snowden would be imprisoned, possibly in solitary confinement. Potentially he would be tortured. There is every reason to believe, Ellsberg and others argue, that Snowden would not receive a fair trial. Under such circumstances, Snowden’s flight is, these supporters argue,  justifiable.

I fully admit that it is likely that Snowden would have been treated much less generously than was Ellsberg. But aside from the fact that Snowden never gave the courts the chance to treat him justly, his refusal to submit to the law makes it impossible for his act of disobedience to shine forth as a claim of doing justice. He may claim that he acted in the public interest. He may argue that he acted out of conscience. And he may say he wants a public debate about the rightness of U.S. policy. He may be earnest in all these claims. But the fact that he fled and did not “transform the situation in such a way that the law can again operate and his act can be validated,” means that he does not, in the end, “render a service to justice.” On the contrary, by fleeing, Snowden gives solace to those who portray him as a criminal and make it easier for those who would to discredit him.

All of this is not to say that Snowden was wrong to release the NSA documents. It is clearly the case that the security state has gone off the rails and become encased in a bubble of fearful conformity that justifies nearly any act in the name of security. We do need such a public conversation about these policies and to the extent that Snowden and Manning have helped to encourage one, I am thankful to them. That said, Manning’s anonymity and Snowden’s flight have actually distracted attention from the question of the justice of their acts and focused attention instead on their motives and personal characters. They have, by resisting the return to law, diluted their claims to act justly.

It is a lot to ask that someone risk their life to act justly. But the fact that justice asks much of us is fundamental to the nature of justice itself: That justice, as opposed to legality, is always extreme, exceptional, and dangerous. Arendt knew well that those who act justly may lose their life, as did Socrates and Anton Schmidt. She knew well that those who act justly may lose their freedom, like Nelson Mandela. But she also knew that even those who die or are isolated will, by their courage in the service of justice, shine light into a world of shadows.

Peter Ludlow’s essay on the Banality of Systematic Evil is well worth reading. He is right that it is important for individuals to think for themselves and be willing to risk civil disobedience when they are convinced that bureaucracies have lost their moral bearings.  It is your weekend read. And if you want to read more about Arendt and the demands of justice, take a look at this essay on Arendt’s discussion of the Shalom Schwartzbard case.

-RB