The policy ratchet and US civil liberties (crosspost at CT)
Apropos of recent proposals to stop giving Miranda warnings to terrorism suspects,
, the reaction is still exactly the same to every Terrorist attack, whether a success or failure, large- or small-scale. Apparently, 8 years of the Bush assault on basic liberties was insufficient; there are still many remaining rights in need of severe abridgment. Even now, every new attempted attack causes the Government to devise a new proposal for increasing its own powers still further and reducing rights even more, while the media cheer it on. It never goes in the other direction.
This kind of policy “ratchet” is quite common, but I haven’t seen a fully satisfactory, or general, analysis of either the metaphor or the phenomenon.
The crucial feature of a ratchet is that, at any time, the mechanism is a locally stable equilibrium, which can be shifted in one direction, with a moderate energy input, but can’t be shifted the other way without breaking the mechanism.
The metaphor hasn’t been used in political discussion as much as I would have expected. The most notable example is that of Huber and Stephens who apply it to social democratic reforms, with the idea that welfare state measures, once implemented are too popular to repeal. Certainly, the welfare state has proved far more resilient, through decades of market liberal dominance, than might have been expected, and the passage of Obama’s health plan suggests the possibility of further movement. But equally, the regular upward movement implied by the metaphor ended some decades ago.
One aspect of the policy ratchet that isn’t quite as clear to me is that, for the ratchet effect to work, it appears to be necessary that there is a consensus, or at least elite majority view, that the desired end state is a long way in the direction of the ratchet movement. The success of the social democratic policy ratchet depends on general acceptance of a policy ideal that could be described as the end of poverty.
So, how does all this apply in the case of the erosion of the US constitution? The operation of the ratchet mechanism is clear enough. But what is the end state? And will the process be stopped before it gets there? The constitutional theories put forward by John Yoo and others, along with general conservative criticism of “judicial activism”, provide a pretty clear answer to the first of these questions. That is, the end state is an expansion of police powers in general, sufficient to ensure that anyone who is, in the police view of the matter, definitely guilty, can be convicted with no concern about “legal technicalities”, combined with an essentially unlimited presidential power to override the law in the interests of national security.
The critical test might come when the new rules are applied (or not) to white Christianist terrorists like the Hutaree.  . This could happen either because such a group mounts an actual attack, or because the state decides (as it could have done, but hasn’t so far in the Hutaree case) to use its full powers against a group that is planning, or maybe just talking about, something like this. At this point, the number of people potentially affected by the next upward ratchet would suddenly become much larger – the militia movement, for example, and then the more rhetorically bloodthirsty elements of the Tea Party crowd. Or, more plausibly perhaps, a Tea Party government could project its fantasies on to its opponents and use the powers inherited from Obama against Democrats.
That sounds apocalyptic, so presumably the ratchet will stop at some point before this. But where is the political force that will stop it?
fn1. It’s striking, as Greenwald has pointed out quite a few times, that this ratchet effect seems to be confined to the US. Other countries have restricted civil liberties in various ways, but there has been nothing like the continuous pressure seen in the US, and there have been notable steps in the opposite direction (in Australia, for example, the National Security Legislation Amendment Bill 2010 removes some of the most objectionable features of anti-terrorism legislation passed in 2005, as well as repealing sedition laws that were seen, until recently, as dead letters). By contrast, Obama’s one big announced measure, the closure of Guantanamo Bay, has gone nowhere.
fn2. Assuming for the sake of argument that the government’s case is factually correct, there’s no doubt that their alleged actions constitute terrorism)