Angelus Novus

by Patricia J. Williams

published in The Nation Magazine, April 3, 2017


I went to the theater with a friend recently. Afterwards, we sauntered around the unfamiliar neighborhood and wandered into what looked like a funky artisanal-beer emporium. Hanging by the entrance was a larger-than-life-size portrait of the actor Michael Richards. I froze, then turned and walked out. My friend, who is British, couldn’t understand: “Isn’t that just the guy from Seinfeld?”

My friend is also someone who keeps mistaking the Confederate flag for the Union Jack. To most Americans remotely familiar with tabloid media, however, Richards is the man who, in 2006, closed down his own comedy show by shouting at a black heckler: “Shut up! Fifty years ago, we’d have you upside down with a fucking fork up your ass!… You’re brave now, motherfucker!… Throw his ass out, he’s a nigger. He’s a nigger! He’s a nigger!” A predictable amount of brouhaha followed, culminating with an apology by Richards on the Late Show With David Letterman: “I’m not a racist, that’s what’s so insane about this. And yet it’s said, it comes through, it fires out of me.” Then he hung his head and received a round of applause for having apologized.

I have spent my life working for civil rights, social justice, and freedom of expression, but at that moment I was just thirsty. I felt the sudden deflation of what had been a very pleasant evening. It made me feel sad… and old. An old, tired “snowflake,” as right-wingers have taken to calling anyone with feelings. I started to explain to my friend what a “snowflake” was, but he reminded me that Milo Yiannopoulos is a Brit. He knew all about that.

Milo Yiannopoulos, of course, is the former Breitbart editor who angered a crowd at the University of Wisconsin, Milwaukee, by mocking a transgender student by name, all the while using a so-called “trigger cam” to live-stream the faces of students in the audience framed within a telescopic gun’s crosshairs. Yiannopoulos shrugged off the distress his antics caused with a sneering dismissiveness: “[They] said I had used violent words, as though violent words were a thing.”


To be fair, I don’t believe that violent words are “a thing,” either. Neither words nor iconography like swastikas or flags—or portraits, for that 
matter—are bats or guns or machetes. But it’s a conceptual mistake to pass off the gloating threat of a fork up the ass as performative passion. If we call people “garbage,” “parasites,” “cunts,” “dicks,” “niggers,” “pussies,” “apes,” “kikes,” “dykes,” or “towelheads”—if we laugh about it, if we chant such words at rallies, if we take them in deeply by sheer repetition alone, then our vision changes. Our hearts shrink. Our exclusions grow meaner and more marked, our laws much more punitive.

While there has been much attention paid to the more horrendous and overt breakdowns of civility—physical attacks on Muslims and Sikhs, the toppling of headstones in Jewish cemeteries, fistfights on college campuses—this insistence that we should “man up” and laugh at cruelty is not without consequences. The violence that erupted at the University of California, Berkeley, campus over an appearance by Yiannopoulous was apparently perpetrated by what was described as an outside group of about 150 masked people identifying themselves as 
antifascists (or “antifa”). Not good at all. But here’s something even more ominous in the long term: A petition has been launched on, now with almost 70,000 signatures, asking President Trump to “formally declare 
ANTIFA a domestic terrorist organization.” Since antifa is less an organization than a broad philosophy urging particular “modes of action,” it remains unclear what ideas would be included or what limits there would be to such a designation. There have also been calls to define Black Lives Matter as terrorist, as well as the protesters and water protectors fighting the Dakota Access Pipeline. This is an extremely serious matter: A categorization as “terrorist” places a person or group under heightened surveillance, infiltration, and the risk of having certain due-process rights suspended under the USA Patriot Act.

Let’s concede that the First Amendment allows people to say whatever nonfactual things float through their heads. But we are at a moment when we must confront the hard realities of genuine censorship—and it’s not about campus brawls or whether you think I cry too easily. The legal meaning of censorship has to do with the government silencing speech. Yes, speech should be utterly free as a general principle, but in our McCarthyite, anti-Muslim mood, the idea that words and images have no real consequence is specious at best. Words can incite, enrage, divide, or just take the wind out of one’s sails. They can affect voting patterns by muddying the waters with “alternative facts” or leaked propaganda.

As a renewed “blood and soil” brand of white nationalism surges throughout Europe, so here at home, Iowa Representative Steve King has endorsed the Dutch fascist Geert Wilders as someone who “understands that culture and demographics are our destiny. We can’t restore our civilization with somebody else’s babies.” But King is no outlier: White House adviser Steve Bannon has also befriended Wilders—as well as Marine Le Pen, Frauke Petry, and other leaders of Europe’s far right—thus placing our executive branch in the tiny hands of those who believe that geneticized “demography” is destiny. This notion that only people within a bounded—and 
biologized—cultural or ethnic geography can replenish a nation’s citizenry is a segregationist instinct that harks back to the Southern white-supremacist Redeemer movement during Reconstruction. “Other people’s babies” do not “restore.” Restoration looks to a fictive past, echoing Donald Trump’s promise to make America great “again.”

Out on the sidewalk in front of the pub, I could all but feel the angel of history being blown backwards, helplessly, into the future. I stood with my friend in the dark, quiet snowfall, wondering where to go.


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Double Standard

In her book Double Character: Slavery and Mastery in the Antebellum Southern Courtroom, legal historian Ariela Gross writes that in the old Deep South, a male citizen’s honor depended on public confirmation, unlike “the inward-looking piety of the Puritan tradition,” which located conscience and guilt in a “private sense of good and evil.” I couldn’t help thinking of that ethic when Elizabeth Warren was silenced on the floor of the US Senate during Jeff Sessions’s confirmation hearing after she called into question his fitness to serve as head of the Justice Department and as attorney general of the United States.

“You stated that a sitting senator is a disgrace to the Department of Justice,” said Republican Senator Steve Daines of Montana, rising to defend the honor of Donald Trump’s nominee.

Warren persisted: “I’m simply reading what [Coretta Scott King] wrote about what the nomination of Sessions to be a federal-court judge meant, and what it would mean in history, for her.” The 1986 letter by Dr. Martin Luther King Jr.’s widow asserted that Sessions “lacks the temperament, fairness and judgment to be a federal judge,” and accused him of pursuing, in his days as a prosecutor in Alabama, a “shabby” voter-fraud case against African-­American activists.

Warren was then formally silenced under Rule XIX of the Senate’s code of decorum, which had not been invoked in perhaps a century. It reads: “No Senator in debate shall, directly or indirectly, by any form of words impute to another Senator or to other Senators any conduct or motive unworthy or unbecoming a Senator.”

As a purely technical matter, the lawyer in me would wish to point out that Senator Warren’s reading of Mrs. King’s remarks didn’t have anything to do with Jeff Sessions’s behavior as a senator, but specifically concerned his fitness to serve either on the federal judiciary or as US attorney general. In particular, attorneys general represent all of the people of the United States in criminal and civil cases. They construe all agency laws, functions, and regulations. They’re in charge of federal prisons; they supervise the activities of US marshals; they oversee the enforcement of civil-rights laws; and they advise the president on the limits of these laws. The accusations relating to Sessions’s history of prosecutorial misconduct, racial stereotyping, and voter suppression would seem germane to his ability to enforce the nation’s laws impartially.

Sessions’s subsequent approval by the Senate notwithstanding, I remain intrigued by the use of Rule XIX to silence Warren. It seems anachronistic, even quaint, this admonishment about “conduct unbecoming”—particularly given the last few years of bitter name-calling, obstructionism, and general bad behavior in Congress. A more familiar version of this code of conduct may be the Uniform Code of Military Justice, which lays out the offenses subject to court-martial. It includes Article 133, which criminalizes “conduct unbecoming an officer and a gentleman,” including defamatory language in one’s official, unofficial, or private capacity that diminishes the standing of the military as an office, a profession, and a duty.

The US military’s invocation of honor has been on display most recently in the pending court-martial of Sgt. Bowe Bergdahl for desertion and “misbehavior before the enemy.” The trial is presently mired in a procedural quagmire, because the commander in chief of our armed forces has denounced Sergeant Bergdahl personally and repeatedly (at least 45 times) in the most unbecoming terms imaginable. President Trump has stated that Bergdahl “should be shot,” that he should be thrown from an airplane without a parachute, that in “the good old days he would have been executed,” and that Bergdahl is a “whack job” and a “son of a bitch.” Alas, that “officer and a gentleman” rule seems to apply to the rank-and-file, but no longer to the commander in chief. (And heaven forbid that a good prosecutor might be tempted to see the similarity between Trump’s conduct in Mar-a-Lago—where he conducted foreign policy in the middle of a crowded restaurant—and what the military-justice code calls “misbehavior before the enemy by endangering the safety of a command, unit or place.”)

“Although honor was most prized when it came from equals,” Gross writes in Double Character, “honor thrived best in societies with a dishonored class, through whom and on whose bodies men could exercise honor.”And so, at various points in our history, those who dwelled in the dishonored geographies of “civil death”—women, slaves, Native Americans, indentured servants—were habitually banned from testifying or speaking in courts, in legislatures, even on their own behalf. Indeed, “talking back”—i.e., persisting in saying anything at all—was construed as not just an insult to one’s honor, but the endangerment of a gentleman’s reputation and status as a first-class citizen. (It’s amusing, perhaps, to think of this as the original “political correctness.”) Honor for some has always meant the silencing of others.

With the resurrection of something that exudes a faint whiff of the peculiar institutions of first-class citizenship and second-class humanity, it will be interesting to see how the ethic of civility among gentlemen plays out over the next few years: who gets to speak freely, and whose words are deemed threatening—or even terrorizing—­to politesse and the polity. We must have room on the record for the spoken objections, lived experiences, and inconvenient truths to be learned from women, from refugees, from Black Lives Matter, from veterans of our multiple wars, and from those water protectors standing vigil through this long, dismal, and very frigid North Dakota winter. We must insist that the honor of being heard is due to all peaceful dissent.

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You’re Fired! The Holman Rule Returns…

by Patricia J. Williams

published in The Nation Magazine, January 19, 2017

 On January 3, the House of Representatives passed a little-remarked funding package with an insidious provision. It reinstates the so-called Holman Rule and gives any legislator the power to amend fiscal appropriations so as to reduce the salary of certain federal employees to $1. In other words, it allows members of Congress to get rid of individual civil servants who are not to their taste.

First proposed in 1876 by Representative William Steele Holman (D-IN), the provision’s original object was to curb corruption among customs officials. Today, the rule has strayed far from its original purpose, instead giving Republicans another tool with which to “starve the beast” and enforce political conformity. Its reincarnation does not grant the power to fire outright, as the original Holman Rule did, but it does allow civil-service salaries to be reduced to $1 at the whim of legislators. Representative Morgan Griffith (R-VA), who spearheaded the rule’s revival, rebuffed the notion that it could be used to fire federal employees en masse. According to The Washington Post, he “favors a strategic application, likening it to a bullet from a sniper rifle rather than a shotgun.” Griffith deemed it unlikely that Congress would “go crazy” with such cuts, but “I can’t tell you it won’t happen…. The power is there. But isn’t that appropriate? Who runs this country, the people of the United States or the people on the people’s payroll?”

History can be a remarkable echo chamber: Griffith’s language is very similar to earlier defenses of the Holman Rule. A 1943 instantiation of the rule was used to justify the proposed elimination of the salaries of thousands of federal employees targeted for being too leftist. The pressure to retrench those salaries was fueled by secret investigations led by Representative John Kerr (D-NC), who summed up the issue as follows: “Whether or not the people of this country want men who are not in sympathy with the institutions of this country to run it…these people under investigation have no property rights in these offices.”

It was in response to those clandestine investigations that Representative Martin Dies, chair of the House Committee on Un-American Activities, proposed an appropriations bill defunding the salaries of 39 employees whom he denounced as “irresponsible, unrepresentative, crackpot, radical bureaucrats” whose associations included “Communist front organizations.” Dies’s appropriations bill became law.

Three of the 39 employees so indicted went on to sue the federal government, becoming plaintiffs in the 1946 case of The United States v. Lovett. One was Goodwin B. Watson, an educational psychologist and, years later, founder of The Journal of Applied Behavioral Science. Another was William Dodd Jr.; he had worked for the Federal Communications Commission, but was apparently punished for his associations with the American League Against War and Fascism and the Committee for Anti-Nazi Literature. Robert Lovett, the named plaintiff, was a Harvard-educated English professor whom President Franklin Roosevelt had appointed as secretary to the Virgin Islands. Perhaps because he’d signed the Humanist Manifesto—a document attesting to the values of humanism, atheism and freethinking—Lovett was accused of being a communist, a charge later shown to be untrue.

       All three men had performed their jobs well, and the agencies in question wished to keep them. Justice Hugo Black, writing for a majority of the Supreme Court, ruled that their being targeted was no “mere appropriation measure” (which would not be reviewable by courts) but instead was designed to “permanently bar respondents from government service.” The Court ruled that the salary amendment was effectively a bill of attainder that was prohibited by Article I, Section 9, of the Constitution. As Justice Black wrote: “Those who wrote our Constitution well knew the danger inherent in special legislative acts which take away the life, liberty, or property of particular named persons because the legislature thinks them guilty of conduct which deserves punishment. They intended to safeguard the people of this country from punishment without trial by duly constituted courts.”

These safeguards include the right to due process, hearing, and review. They include the First Amendment’s proscription against government censorship and the system of independent oversight provided by the Office of Government Ethics, recently attacked by 
Republicans in Congress.

The federal government is the nation’s largest employer, with nearly 2 million civilians on the payroll. For all the glee expressed in some quarters about eviscerating “the bloat” and “draining the swamp,” public jobs are an important part of our democracy as well as our economy. Competitively assigned civil-service positions underwrite America’s remarkable continuity of governance; such an unshakable foundation is enabled by job security and the long-term store of accumulated knowledge produced thereby. As the Trump administration gathers the names of those who believe in abortion rights or global warming or equal pay for women or aid to African nations, it is not unreasonable to fear a coming wave of ex-post-facto punishment, including salary retrenchments that might disable not only bureaus like the Environmental Protection Agency, the Department of Housing and Urban Development, or the Social Security Administration, but also the Public Broadcasting System, the National Institutes of Health, the Kennedy Center, and the Smithsonian’s National Museum of African American Art and Culture.

In view of the Supreme Court’s Lovett verdict, the reassertion of the Holman Rule is unsettling. This Congress seems prepared to gut precisely the insulating mechanisms of nonpartisanship so essential to an enduring agency system—one based on performance rather than unbridled political patronage.



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Serving Two Masters

by Patricia J. Williams

published in The Nation Magazine, December 1, 2016

 Donald Trump’s presidential campaign found its footing in a terrifying, Twitter-driven terrain of real and imagined lawlessness—at the border, in the “inner cities,” at the hands of ISIS—and his ascent to the White House was underwritten by many of his supporters’ yearning for extralegal resolution. As we hover on the brink of a period of extended exceptions to and suspensions of the law, it’s worth tracking how we arrived here, and what might lie ahead. There are three forces I believe have been especially effective in titrating this newly toxic brew of anti-law populist culture.

The first is Trump’s talent for modeling a contagious, near-poetic anger that makes due process seem like a luxury we simply can’t afford. While it may seem scattershot at times, such panic-priming ultimately enables predictive models of policing, algorithmic assessments of “likely” behavior, group profiling, segregation based on suspicion rather than conviction, and a predisposition to literally shoot first and ask questions later. This mode of political address is often couched in talk of “law and order,” but it privileges order above all. As a practical matter, we may see the full unregulated potential of Big Data technologies unleashed—a fear to which I alluded in my last column. Nearly all of us can expect to be surveilled coldly, by strangers, and then tagged and followed and graded and boxed.

A second force attending the coming order is a dangerous predilection for punishment as unfettered play. Trump doesn’t just call for payback; he seems to relish the idea. He not only published his wish to execute the now-exonerated Central Park Five, but spoke of wanting to see them suffer too. He responds disproportionately to the slightest of slights to his ego; no matter how petty, he’s “gonna love” suing ’em, bankrupting ’em, sending ’em to jail. Trump styles himself as powerful with a vengeance—unrelenting vengeance. One sees that extra dollop of avenging glee reflected in the postelection exuberance of some of his followers—not just in happiness about his winning, for example, but in the ubiquitously expressed desire to see Hil
lary Clinton’s supporters actually cry. As projected by and through Trump’s network of delivery systems, his enthusiastic attacks on the “soft,” “wussy,” “coddled” practitioners of “political correctness” can appear as incoherent acts of random sadism. But Trump is telegraphing something consistent: undoing law in the name of order, using a language of violence and the logistics of the hunt.

Third and finally, there is Trump’s boastful self-presentation not just as a Washington “outsider,” but as an exceptional individual beyond the law or judicial regulation—half-sovereign, half-outlaw. (After all, he’s the one who could “stand in the middle of Fifth Avenue and shoot somebody” and get away with it.) When it comes to clear conflicts of fiduciary responsibility, he believes that “the president can’t have a conflict of interest…because everything a president does in some ways is like a conflict of interest. But I have—I’ve built—a very great company, and it’s a big company, and it’s all over the world.” Trump seems to have cribbed this magical theory of total immunity from Richard Nixon, who once told David Frost that “when the president does it, that means that it is not illegal.” This isn’t quite true, as Nixon discovered, since the statement conflates the individual who serves as president with all the powers of the state. When that distinction is lost, a king is born—or a dictator.

While Trump has sold his lawlessness to the American people as a form of zealous advocacy on their behalf, his disdain for the law will likely serve his own enterprises first. Privately profiting while supposedly acting on behalf of another overlaps substantially with what the law calls graft, bribery, extortion, double-dipping, or just plain stealing-from-grandma. This is true even of billionaires and business magnates: If I’m actively serving as both the president of a nation and the head of a profitable clothing manufacturer, by what rule ought my administration be guided when trying to decide between two companies bidding to fulfill an order for Army uniforms—one of which is owned by me? On the one hand, I have a duty to advance the incorporated self-interests of my shareholders; and so I would be bound to ensure that my enterprise was awarded the contract. On the other hand, my oath of office makes clear the responsibility I have to citizens and taxpayers; this would point in the opposite direction, binding me to accept the lowest bid from an independently vetted contractor. In his interview with The New York Times, Trump seems to merge the interests at stake: his company’s profiting in India = making America great again! Alas, this kind of faulty syllogism is commonly known as commingling.

While a president is exempt from being criminally prosecuted under federal conflict-of-interest laws, this is not a license to use the office for personal profiteering. The emoluments clause of the Constitution specifies that “no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” This clause is more or less the secular instantiation of Matthew 6:24, to wit: “No man can serve two masters…. Ye cannot serve God and mammon.”

The role of president of the United States requires operating as a surrogate for the body politic. To paraphrase Aristotle’s notion of justice, a public servant strives for good not in the individual sense, but in terms of that which will render “someone else’s good.” First, this means respecting human dignity instead of relying on data and surveillance without due process. Second, it means executing the laws with restrained self-mastery, without which one is, according to Aristotle, morally “incontinent.”

Third and finally, the president is our embodied head of state. Heading any other incorporation is one head too many.

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Mrs. King and Coretta: A Posthumous Memoir Explores Public and Private Selves

reviewed by Patricia J. Williams

By Coretta Scott King, as told to Barbara Reynolds
Illustrated. 356 pp. Henry Holt & Company. $30.

Nearly every image of Coretta Scott King since her husband’s death has seemed suffused with preternatural stillness, her face fixed with the brave solitude of timeless interior bereavement. For all of her accomplishment and vivacity in real life, she has remained frozen in the collective imagination, among that sad pantheon of civil-rights-era icons: the political widow in a pillbox hat. King describes the weight of that identity in “My Life, My Love, My Legacy,” her posthumous memoir, as told to the journalist Barbara Reynolds over a period of 30 years. “There is a Mrs. King. There is also Coretta. How one became detached from the other remains a mystery to me,” King says.

This book is distinctly Coretta’s story. While there is nothing to radically challenge the impression of her as carefully restrained, what makes “My Life” particularly absorbing is its quiet account of a brutal historical era, as experienced by a very particular kind of African-American woman: well educated, cautious, a prototypically 1950s-style wife and mother. The book’s cover features a picture of King, young and smiling, but still radiating that unmistakable aura of church-lady reserve.

Though such women have rarely been given voice, they were the staunch backbone of the civil rights movement. They raised funds as well as children, did the accounting as well as the housework, taught school and cooked the meals. They kept the minutes at N.A.A.C.P. meetings, played the organ at church, coordinated their husbands’ schedules.
Like Coretta Scott King, they operated within a regime that was both punishing and exhausting for being so utterly beholden to the politics of respectability. The pressure to disprove pervasive cultural stereotypes of slovenliness, ignorance, criminal threat and rapacious sexuality meant striving for perfection always. One could not risk being charged with the slightest human fallibility for fear of deadly retribution. The harshly unforgiving surveillance of the larger white community was reiterated within black communities as the stress of constant, and sometimes cruel, self-surveillance.

Living with terror is the thread that runs through “My Life.” This is a tale of church assaults before Dylann Roof, of cattle prods before there were tasers, of nooses before there were chokeholds, of Cointelpro before there was Breitbart, of voter suppression before anyone bothered to deny it. King’s earliest memories include her parents’ home being burned down when she was 15 years old. As she grows up, neighbors disappear. Bodies are found hanging from trees. Among the in-laws, her husband’s mother was shot and killed in the middle of a church service by a mentally disturbed man; his brother was found floating in a pool under suspicious circumstances; and when his father, Martin Luther King Sr., passes away at the age of 84, it marked “the first time any senior member of the King family had died a natural death.”

Some say that religion is, at base, a mechanism to handle the human response to mortality and loss. And for all the death and tragedy in “My Life,” it is King’s grounding in her husband’s theology of peaceful resistance that enables her survival against excruciating odds. Nonviolence, she reiterates, is not a matter of passively accepting whatever happens. It is active. It is a practice. As her husband preached: “Justice is really love in calculation.”

That power, of love as calculation, composes King, binds her together, time and again. Her practice of such belief is meditative, and becomes reflected in her diction: She speaks of endurance, overcoming, soul-sustenance for the long term. There is little in the way of open sadness in this book; after her husband’s assassination, she turns to the project of creating the King Center as a monument to him, filling the emptiness with boxes of his notes and speeches.

By the same token, there is a marked absence of expressed joy, other than at the birth of her children. Her emotions are muted in a way that is intriguing rather than off-putting. This disposition also presents the reader with a different way of looking at the world — one of extraordinary calm and the purest resolve. It is restful somehow, and generous, in a manner that is unfashionable in our culture of 24/7 emotional display. King’s language does not privilege personal happiness, private delights, exuberant emotional extremes of any sort. Rather, her life is filtered through prescribed priorities, devotions, principles, commitments. This is life lived in service to others rather than with concern for individual regard or even personal safety.

There is unusual inspiration in that mien. Before becoming King’s amanuensis, Barbara Reynolds was a journalist assigned to do a story for The Chicago Tribune. They became such good friends that Reynolds changed her vocation along the way: “Before I started hanging around with Mrs. King, I wasn’t much of a Christian.” But hang around she did, and by the time King died in 2006, Reynolds had become an ordained minister. It is but one small tribute to the power of the King family’s dedication to a “Ministry of Presence.” The larger, more ecumenical meaning of Coretta Scott King’s life, love and legacy may be found in the peace-lending power, needed now as never before, of prophetic traditions that hold us and heal, “bringing into existence images and a destiny we had not seen or lived before.”

Patricia J. Williams is the James L. Dohr professor of law at Columbia University and a columnist for The Nation.

A version of this review appears in print on January 15, 2017, on Page BR9 of the Sunday Book Review with the headline: Mrs. King and Coretta.

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Election Reflection

Race and sex stoke deep responses in the American psyche

Published in The Guardian, November 9, 2016
Patricia J. Williams
Many years ago the great oral historian Studs Terkel recounted a story told to him by a woman who’d been molested by a relative as a child. She’d tried to tell her mother but no one would believe her. Yet one day when she was shopping with her mother and aunt, they spotted a black man far away on the other side of the department store. The women gathered the girl close to them, worrying aloud about the unbridled lust that that man might harbour toward little white girls. The now-grown woman told Terkel that, even as a young child, she could see the craziness in that moment: they could not see or hear that she was being assaulted by a member of the family, but instead marshalled their sexualised anxiety against the distant figure of a black man obliviously going about his business.

I have been thinking about that story quite a bit in recent weeks, as I’ve pondered the phenomenon of Donald Trump’s peculiar appeal to … well, any demographic, but especially a particular stratum of conservative women. I’m particularly intrigued by women who worry aloud about his extreme nativism or misogyny or careless grasp of foreign affairs – yet who then say that what really drives their allegiance is “hatred” of the supposedly murderous and licentious Hillary Clinton. This is often expressed as a repulsion so strong that, like the little girl’s mother and aunt, they are willing to give Uncle Donald a pass in the face of multiple allegations of sexual assault, breathtaking racism, unprecedented crudity, cruelty, verbal incoherence and globalised, soul-searing mendacity.

While the intensity of vitriol directed at Clinton still mystifies me to a great extent, Terkel’s story reminds me that there is an affective dynamic to all politics, an emotional narrative that may make sense in an alternate universe from which I may be functionally excluded. Race and sex stoke deep autonomic responses in the American psyche. Trump began his political career more than 20 years ago by taking out a full-page ad in the New York Times, calling for the execution of five teenagers wrongly accused of raping and beating a young white stockbroker who became known as the Central Park Jogger. Although DNA evidence pinned the crime to another man, Trump has never backed down from his assertion that he was right.

Similarly, throughout the campaign, Trump has evoked old tropes of a ravaged America, endlessly at risk from Mexican rapists, African American thugs and Muslim terrorists. Indeed, with endorsements from the likes of the Ku Klux Klan and George Zimmerman, Trump has revitalised a narrative of warrior masculinity that dates back to DW Griffith’s film Birth of a Nation – the trope of strong, pugilistic white vigilantes fighting against corrupt, lying and libertine black invaders (literally black voters in that movie) – in order to protect the honour of frightened white women. It seems not insignificant that Trump has consistently appeared with a backdrop of attentive women, blonde women, beautiful women who smile and wave and whom he symbolically shelters from rapists and terrorists and the “very bad people” from “certain neighbourhoods”.

Like many of us Nasty Women of a certain age and weight, Clinton is not sheltered by such cowboy chivalry. In addition, her achievements as secretary of state were slandered or obliterated in ways underwritten by suggestions of race-mixing, combined with horrendous and ubiquitous caricatures of Barack Obama: the dangerously “alien” black man who stole the reins of power and, in a lustily miscegenous union with Clinton, supposedly “invented Islamic State”.

In this alternative universe, Trump holds great appeal to those who were only recently forced to remove the Confederate flag from government buildings, and, in a profoundly felt sense, have never conceded that the American civil war is over.

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State of Exception

Americans Are Finding New Ways to Join the Surveillance State | The Nation 08/11/2016 5:40 PM


T here are a few recent reports that are worth considering in our hackable brave new world. The first is from Georgetown University Law School’s Center on Privacy & Technology, titled “The Perpetual Line- Up: Unregulated Police Face Recognition in America.” It documents the growth of immense law-enforcement data banks—accumulated by the FBI and local, state, and federal police agencies—housing digital images of more than 117 million American citizens. These pictures are drawn from mug shots, driver’s licenses, passport photos, and the Internet. While facial-recognition technology is a genuinely useful tool in solving crime, the report highlights potential areas of infringement upon privacy, civil rights, and liberties, as well as a lack of transparency or public accountability. Indeed, unlike voice recordings, the collection of which is governed by the Wiretap Act, the gathering of visual images is pretty much unregulated.

This lack of regulation—and public ignorance of such systems’ existence—means that police departments are able to use facial recognition to identify and track law- abiding citizens as well as criminal suspects. Many police departments are able to run “continuous, real- time scans of people walking by a surveillance camera”—without warrant, reasonable suspicion, or any other limitation. The report found that of 52 agencies polled, only one prohibits officers from “using face recognition to track individuals engaging in political, religious, or other protected free speech.” In addition, facial-recognition technologies are manufactured by private companies using proprietary algorithms generally classified as intellectual property or trade secrets. Hence, few measures exist for ensuring accuracy through public oversight, regular maintenance, or published operating standards.


In addition, the potential for error—particularly racially based error—seems built into the machine. The Seattle Police Department even claims that its system “does not see race.” The Pennsylvania Justice Network’s system, on the other hand, comes with a manual whose only user options are: “Generic Male, Generic Female, Asian Male, Asian Female, Caucasian Male, Caucasian Female or Middle Eastern Male.” Another study suggests that darker faces may significantly reduce accuracy because of badly calibrated color contrast.

If this is not of sufficient concern, add in that there is a hidden but quite lucrative market in mining cell-phone customers’ data: It was recently revealed, for example, that AT&T has been secretly selling information like call time, duration, and location to state and local police departments since at least 2008. It doesn’t take much to imagine how other data from one’s credit cards, Siri, Facebook profile, reading habits, political preferences, entertainment choices, and residential-security cameras might be compiled to create profiles that define citizens as effectively as a new-age caste system.


If even that kind of surreptitious tracking seems not to trouble many Americans, perhaps it may take a more ominous cast when understood as a broad phenomenon in the global context. For example, the Chinese government has been building a comprehensive data bank that would rank all “natural persons, legal persons and other organizations” by adding up “social credits” accumulated in economic and social activities. China hopes to have a population-wide system of measurement up and running by the year 2020, giving “complete rein to mechanisms to encourage keeping trust and punish breaking trust.”

China’s plan purports to rank not merely government, business, or educational enterprises, but a full range of personal virtues, including traffic violations, attention to fire safety, one’s role as student, and the general “online behavior of netizens.” The report suggests online blacklists for nonconformity, with “exposure” as punishment, “rewards for reporting individuals,” with “credit reward alliances across multiple departments and regions, ensur[ing] that those keeping trust receive benefit in all respects, and those breaking trust meet with difficulty at every step.”


Similarly, New Zealand has invited teams of citizens to help monitor its network of CCTV surveillance cameras. “People really don’t realise they are being watched,” said one such volunteer. “That may sound nasty, but I’ve always believed if you have nothing to hide you have no problem with surveillance if it keeps everyone safe.”

Such casual faith in the panopticon assumes a degree of beneficent goodwill among the hidden overseers. It assumes reliable mechanisms of due process and appeal before the undisclosed algorithm calculates one’s threat level and deploys a disciplinary drone. It assumes close social bonds between the viewed and the viewer, and no deep, disenfranchising divisions between citizen and soldier.

Yet here we stand, at a moment when divisions in the United States have rarely been starker. Some look at our president and are certain he is “alien”; others think it “obvious” that Hillary Clinton should be jailed summarily. Recently, Stewart Rhodes, president of Oath Keepers, a militia comprising of former law- enforcement officers, asked his membership to seek out voter fraud by engaging in “incognito intelligence.” His “call to action” included instruction on how to “blend in with the crowd…That may mean wearing a Bob Marley… or ‘Che’ Guevara tee-shirt.”


Having “nothing to hide” only gets you so far when there is no way to contest the judgments of a hidden gaze. “We don’t want the bad guys to know that we’re out there,” declared Rhodes. “We want them to worry about whether or not they’re being watched.” This appropriation of surveillance authority creates a pervasive us versus them mentality, eradicating the boundary between liberty and license. So here we are, fellow citizens—at a moment when libertarianism’s distaste for oversight intersects with technological totalism. We flow seamlessly, helplessly, into sweeping currents of the quietly totalitarian. •


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