On Thursday the former National Security Agency official and whistle-blower William E. Binney and I will debate Stewart A. Baker, a former general counsel for the NSA, P.J. Crowley, a former State Department spokesman, and the media pundit Jeffrey Toobin. The debate, at Oxford University, will center on whether Edward Snowden’s leaks helped or harmed the public good. The proposition asks: “Is Edward Snowden a Hero?” But, on a deeper level, the debate will revolve around our nation’s loss of liberty.
We live in what the German political scientist Ernst Fraenkel called “the dual state.” Totalitarian states are always dual states. In the dual state civil liberties are abolished in the name of national security. The political sphere becomes a vacuum “as far as the law is concerned,” Fraenkel wrote. There is no legal check on power. Official bodies operate with impunity outside the law. In the dual state the government can convict citizens on secret evidence in secret courts. It can strip citizens of due process and detain, torture or assassinate them, serving as judge, jury and executioner. It rules according to its own arbitrary whims and prerogatives. The outward forms of democratic participation—voting, competing political parties, judicial oversight and legislation—are hollow, political stagecraft. Fraenkel called those who wield this unchecked power over the citizenry “the prerogative state.”
The masses in a totalitarian structure live in what Fraenkel termed “the normative state.” The normative state, he said, is defenseless against the abuses of the prerogative state. Citizens are subjected to draconian laws and regulations, as well as arbitrary searches and arrests. The police and internal security are omnipotent. The internal workings of power are secret. Free expression and opposition political activity are pushed to the fringes of society or shut down. Those who challenge the abuses of power by the prerogative state, those who, like Snowden, expose the crimes carried out by government, are made into criminals. Totalitarian states always invert the moral order. It is the wicked who rule. It is the just who are damned.