Explaining the Dem's Collapse on Surveillance Bill: The Law of Fear

As Dan Eggen and Paul Kane reported in yesterday's Washington Post, Democrats have handed Bush yet another victory in legitimating his approach to the war on terror.

House and Senate leaders agreed yesterday on surveillance legislation that could shield telecommunications companies from privacy lawsuits, handing President Bush one of the last major legislative victories he is likely to achieve.

The agreement extends the government's ability to eavesdrop on espionage and terrorism suspects while effectively providing a legal escape hatch for AT&T, Verizon Communications and other telecom firms. They face more than 40 lawsuits that allege they violated customers' privacy rights by helping the government conduct a warrantless spying program after the Sept. 11, 2001, attacks.

How can this be? The President is down to his historic low of 26% approval rating. The Supreme Court has just handed the administration its fourth or fifth consecutive loss concerning the Guantanamo side of its war on terror. Barack Obama has won the right to his party's nomination in August by speaking out forcefully against being "governed by fear" and has managed to move ahead by 15 points over McCain the latest Newsweek poll.

So what is it?

1) The Dems are constitutionally spineless

2) They can't stand to jinx their good luck

3) They really believe an inspector general and one more "report" will deter future Presidents from ordering major corporations to betray their custormers (and having them comply).

Sadly, I conclude, its none of the above, but something worst because even harder to change. Its a continuation of the pattern laid down during the 40 year long war on crime. As I explain in chapter 3 of the book version of Governing through Crime, law makers have long come to understand themselves as representing above all crime victims, who as the idealized citizen subjects of our time define the governable interests of the people. As demonstrated in decades of biannual crime bills, Congress in this mode cannot resist the aggressive exertions of the executive so long as they are directed to protecting the people as crime victims against those motivated wrongdoers who seek to victimize them.

While the Bush administration has cynically exploited the idea that the war on terror is not about crime control to confuse the public, they have actually extended the exact same logic as executives of both parties have during the war on crime. So long as we act in the name of preventing violent victimization of the innocent, we can trample on the liberties of the people and any resistance in the name of freedom is simply identification with the wrongdoers.

The other common theme is the ability of the executive to represent judicial functions (the lawsuits here, the criminal trials of the war on crime) as creating conditions that expose Americans to more risk of violence.

If there is hope (and a logic to Barack deciding not to fight this from the floor of the Senate), it lies in the ability of an executive to help break up this circuit of power. As President, Barack Obama could directly terminate this cycle of declining freedom and begin to a agenda of governing that help break Congress out of its representational dead end as the brainless ciphers of crime victims