Executive Overreach and Its Season of Discontent: Judge Scheindlin Rebukes Stop-and-Frisk


In a landmark ruling on Monday, federal judge Shira A. Scheindlin found that the stop-and-frisk tactics of New York police violated the constitutional rights of minority youth. According to the New York Times, she said the NYPD had “adopted a policy of indirect racial profiling” and that the city was responsible for a battery of constitutional violations. While not ordering an end to the practice, she said the stops had to be carried out in a manner that “protects the rights and liberties of all New Yorkers.”

She found that the NYPD’s practices violated not only 4th Amendment rights but also the 14th Amendment’s equal protection clause, ruling that “Targeting young black and Hispanic men for stops based on the alleged criminal conduct of other young black or Hispanic men violates bedrock principles of equality.”

Writing before the verdict was announced, Guardian writer Gary Younge commented that the stop-and-frisk investigation, together with the trials of Bradley Manning and George Zimmerman, “raises fundamental questions about the function and purpose of the American state, the moral underpinnings of the legal system in which it is grounded, and the degree to which the law is designed to work for or against the people in whose name it operates … while [the state] has aggregated power, it has failed to garner the influence to sustain or justify it.” His implication is that the executive’s overreach has undermined the social consensus needed to maintain the state’s legitimacy.

Judge Scheindlin’s decision answered Younge’s questions by demonstrating that the U.S. state is not a monolithic entity but rather a complex of competing bureaucracies, in which sections of the judiciary as well as legislators who believe the law must work for the people coexist in an antagonistic relation with executive power. Judge Scheindlin is as much a part of the state as the Supreme Court and the National Security Agency, as are whistleblowers like Bradley Manning and Edward Snowden; the state as a whole is a battleground between competing interests, and its history is one of both repression and resistance, just as U.S. society embodies the history of savage racial discrimination and courageous movements for civil rights.

Instead of an informed and engaged public, as envisioned by the Constitution’s drafters, the national security state has a different objective.  Tom Engelhardt of TomDispatch argues that its goal “is to turn the American people into so much absorbable, controllable intelligence data, our identities sliced, diced, and passed around the labyrinthine bureaucracy of the surveillance world.” He adds: “thanks to our ‘spies’ [Manning and Snowden], we know a great deal more about how our American world, our government, really works, but we still don’t know what this thing that’s being built really is. … We lack words for what is happening to us.  We still have to name it.”

One feature of what has happened to us is the exponential growth of the security apparatus in relation to other state agencies. Juan Cole points out: “It is one of the problems with having a standing army and a huge intelligence-industrial complex, which the founding generation warned against – it becomes a lobby within the government for militarism and against civil liberties.” The excesses of the executive under Bush that have been continued by the Obama administration trace their roots to the military role of the U.S. state in policing the world. Since the late 1970s, the capture of government agencies by corporate and plutocratic interests has exacerbated anti-democratic tendencies, turning policing against Americans and their resistance to the social disruption and unemployment created by globalized production.

Even though Americans are divided culturally, most share a commitment to ideals of freedom and equality that originate with the American Revolution. That is why Edward Snowden’s revelations of NSA surveillance produced a visceral reaction of support that cut across party and ideological ties. He showed in detail how the security agencies cooperated closely with high-tech companies not only to carry out electronic surveillance but also to conceal and control the information available to the public.

After Amazon.com founder Jeff Bezos bought the Washington Post, Amy Goodman asked author Bob McChesney about the time Amazon shut down the servers it was renting to WIkileaks. McChesney replied: “I consulted people I knew fairly high up in the State Department off the record, and they said that they did not have to put pressure on … Amazon for that to happen, that Amazon was more than willing to cooperate. It was not a difficult sell, and there was no real pressure on them. … the large Internet giant monopolies, starting with, at the top of the list, Amazon, but really including Apple, Google, Facebook, Microsoft, AT&T, Verizon, right on down the list, they all have an extraordinarily cozy relationship with the national security state, with the military, the intelligence community. … we’ve created this military-digital complex of sorts.”

McChesney argues that the corporations have the dominant role in this relationship, adding: “How much power is in unaccountable monopolies? And these companies are really unaccountable to the government. You look at Obama running around trying to be on good terms with the companies. And now they control the news media directly, some of them, like Bezos.”

Glenn Greenwald, on the other hand, thinks that it was the government that initiated “the vast public-private surveillance partnership … as our reporting has demonstrated, most US-based tech and telecom companies (though not all) meekly submit to the US government’s dictates and cooperative extensively and enthusiastically with the NSA to ensure access to your communications.”

Whoever took the lead in forming the partnership, it would seem to me that both the tech corporations and security state have a joint dependency: the tech companies need state legislative sanction and government subsidies to operate, and the security forces need tech companies’ expertise in gathering data on individuals. There is a convergence of interests where economic exploitation of consumers and political surveillance of citizens come together.

Globalization has transformed states insofar as the executive is drawn closer to a corporate view of society as abstract consumers whose behavior needs to be monitored. This has led to a paranoid drive for secrecy and vindictive punishing of whistleblowers – because the security agencies require citizens to remain passive while they are being “protected,” and fear public reaction to what they are really up to.

Should we then call the U.S. state a plutocratic dictatorship, some kind of police state or “corporate totalitarianism,” as Chris Hedges believes? That would be jumping the gun, in my opinion, because the state is divided internally as a reflection of potential resistance from the public and of its own democratic traditions. Americans are energized today not just by outrage at government surveillance, but also by economic hardship. Since unions and strikes have been virtually legislated out of existence, the low-waged are driven to strike actions aimed at leveraging public opinion – such as the campaign for a $15 minimum wage – which inevitably turn towards political action, like the Washington DC City Council decision to mandate a $12.50 hourly wage for projected Walmart stores in the area.

So I would venture to characterize the U.S. as a transitional state in which there is a growing tension between democracy and the security forces, between the remaining institutions of the New Deal and neoliberal dispossession of the public estate. Its exact nature has still to be fought out, but thanks to courageous individuals within the state itself, the struggle is one in which the public is increasingly engaged.

UPDATE: Google has argued in court that users of its gmail service should expect to have their correspondence scanned for delivery of targeted ads.  There’s no technical difference between mining email content for ads and scanning it for dissent.

UPDATE 2: The Washington Post has reported that the NSA broke privacy rules on US citizens’ communications thousands of times since 2008. “One team of analysts in Hawaii, for example, asked a system called DISHFIRE to find any communications that mentioned both the Swedish manufacturer Ericsson and ‘radio’ or ‘radar’ — a query that could just as easily have collected on people in the United States as on their Pakistani military target.”

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Filed under Bradley Manning, Edward Snowden, low-waged, National Security Agency, Neoliberalism, political analysis, Supreme Court, Walmart

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