Why is Guantanamo still open? Why has there been no public accounting for the Bush Administration's use of torture? Why does President Obama successfully claim the right to kill American citizens living abroad accused of terrorism, with only the flimsiest of “due process” protections?
And why do civil libertarians lose arguments of this sort time and again? In 2008, Obama ran as a civil liberties candidate against the Bush legacy; today, his policies on drone strikes, indefinite detention, and executive power have given that legacy a bipartisan sheen. True, Obama has disavowed torture; but his failure to authorize any investigation into the practice of torture has helped turn what Americans once universally regarded as a war crime into one more election-year football, akin to the auto bailout or the stimulus.
It’s easy, then, for civil libertarians to look at the last two administrations as a double failure: having done little to prevent the excesses of President Bush, they were also unable to stop a seeming ally from endorsing many of those same excesses.
But if the deck looks permanently stacked against civil libertarians’ most persuasive efforts, that isn’t anything new.
Recently, for instance, Salon's Glenn Greenwald looked to ancient Roman history—the history that was constantly on the minds of America's founders—for the origins of one of the strongest arguments against an expanding security state. It's an argument about precedent: when you give expanded power to a leader you like for purposes you support, don't be surprised when a future leader you oppose uses that same power for purposes you deplore.
In 63 BCE, Julius Caesar argued that point to a Roman Senate considering executing suspected domestic terrorists without a trial. He lost. Today, Greenwald writes that he has tried to make the same point "literally hundreds of times over the last several years.” Judging from his pessimism about the Obama Administration's civil liberties record, Greenwald think’s he's losing the argument, as well.
In 63, the Roman Senate was gripped by rumors of an imminent revolt led by the radical Catiline, a failed candidate for Rome's highest office. Catiline and his fellow conspirators allegedly plotted to massacre Rome's political leadership, set fire to public buildings, and march on the capital with an alliance of angry peasants and enemy tribesmen. When the plot's leaders were betrayed by double agents and arrested, most of the Senate demanded their immediate execution.
In the middle of a national security crisis, it took considerable courage for a young Julius Caesar, then still a relative newcomer to Roman politics, to fly into the teeth of public opinion and plead for mercy. The crux of his argument, as Greenwald notes, had to do with the example the Senate would set by flouting the law in the name of safety: "All bad precedents have originated in cases which were good; but when the control of the government falls into the hands of men who are incompetent or bad, your new precedent is transferred from those who well deserve and merit such punishment to the undeserving and blameless."
For a brief moment, it seemed that Caesar had won the day. But then, Greenwald adds in an aside, "after Caesar spoke, Marcus Cato delivered an angry, vengeful, rousing speech demanding death to the accused traitors, and a majority of senators was swayed."
Cato's speech, not Caesar's, was the more important one. Cato, the emerging leader of the Senate's conservative faction, was Caesar's equal in eloquence, in conviction, and in force of personality—and he essentially wrote the playbook for winning the perennial liberty/security debate. Two millennia later, it's remarkable how many painfully familiar tropes and strategies we can find in Cato's words.
Turn security issues into cultural issues. The terms in which we debate civil liberties— "unauthorized surveillance," "harsh interrogation," "indefinite detention"—are often abstract and hard to grasp. By comparison, it's much easier to have those debates in cultural shorthand—to argue not about policies, but about the kinds of people that support certain kinds of policies. Successfully paint civil liberties as soft or weak, and the argument is almost won.
Cato grasped that point instinctively. While Caesar flattered the senators' wisdom, Cato immediately attacked their manhood. "I call upon you," he began, "who have always valued your mansions and villas, your statues and pictures, at a higher price than the welfare of your country." And he returned to the same point at the end: "Since you study each your individual interest, and since at home you are slaves to pleasure, and here to money or favor, hence it happens that an attack is made on the defenseless state."
One might think that insulting the audience so gratuitously is no way to win a debate. But Cato had the insight to cast the revolt in moral terms. Catiline's uprising, in this view, was not the product of a disgruntled lower class or a small clique of extremists—it was a commentary on the moral worth of the state and the cultural failings of the elite. Voting for death was turned from a prudential judgment into a moral test, in which a vote for Caesar's position was a sign of "weakness and want of spirit."
Create urgency. Caesar's speech emphasized prudence, caution, and careful judgment. Cato's message could not have been more different: we must act now. Pointing out that many of the conspirators' forces—including Catiline himself—remained at large, Cato insisted that only an immediate verdict of death could safeguard Rome. "Other crimes you may punish after they have been committed," Cato allowed. "But as to this, unless you prevent its commission, you will... in vain appeal to justice. When the city is taken, no power is left to the vanquished."
In other words, national security threats are qualitatively different from other crimes and demand preemptive action. Or, as another politician put it: "The smoking gun... could come in the form of a mushroom cloud."
Cato was particularly vivid in painting a picture of the fate that awaited Rome if the Senate hesitated: "[the conspirators] are engaging the Gauls, the bitterest foes of the Roman name, to join in a war against us; the leader of the enemy is ready to make a descent upon us—and do you hesitate, even in such circumstances, how to treat armed incendiaries arrested within your walls?" Here, Cato shrewdly alluded to the recent civil wars and domestic massacres that had killed thousands of Romans, within the memory of every senator present; he turned that trauma into a strong, unspoken ally.
Win the past. Caesar and Cato were arguing not only over a policy, but over the character of their state. What counted as "truly Roman," and whose course was consistent with lasting Roman values?
Each senator tried to construct a version of the past convincing enough to make his preferred outcome look inevitable. As Caesar argued, "I regard the lenience of our ancestors as a very strong reason why we should not adopt any new measures of severity."
But Cato's rebuttal was devastating: there is nothing new about Roman severity. Incredulously, he replied to Caesar: "Does anyone talk to me about gentleness and compassion?" Traditional Romans were so severe, Cato pointed out, that an ancient general once executed his own son for fighting the enemy without orders. Catiline and his terrorists only dared to conspire against Rome because the republic had fallen so far from that standard: "Instead of such virtues, we have luxury and avarice."
Cato's demand was simple: punish the conspirators "according to the usage of our ancestors." Despite the fact that immediate execution had little grounding in Roman law, it was, in spirit, the traditionally Roman course of action.
Why did Cato's version of the past win? Perhaps because it matched more closely the way Romans thought of themselves: it reflected back at the senators their stern, martial, uncompromising self-image. Caesar's version was simply too counterintuitive.
Own patriotism. Cato's conclusion was greeted with a roar of affirmation and a vote for immediate executions. Caesar vainly tried to disrupt the proceedings [by TK]] before storming out of the Senate House.
An hour later, in a dank prison cell at the end of the Roman Forum, the conspirators were strangled one by one. When it was finished, Cicero, the head of the republic, who had been instrumental in foiling the plot, emerged to announce the deaths. In a voice loud enough to carry through the Forum, Cato immediately hailed him as "Father of the Fatherland." The rest of the senators took up the cheer.
Even after he had won, Cato took care to insist that his position was not one among many—it was Roman patriotism.
No matter what, declare victory. Cato understood that the argument did not end with the executions; he had to cement his victory by demonstrating to the Roman public that the outcome kept Rome safe.
When word of the executions reached Catiline and his forces outside Rome, much of the rebel army deserted. The remainder was dispatched in an afternoon's work by Roman troops. So did Cato's policy make that military success possible? A poorly armed rabble, even without the desertions, was little match for the army of the republic, but even still, those desertions allowed Cato to credibly claim that his predictions had been right, and that the executions had crushed the revolt. The Roman victory, like all events, was subject to interpretation—and Cato's faction could persuasively interpret it in its favor.
From casting Caesar as soft, to winning the war for Roman values, to spinning the success of Rome's army, Cato demonstrated at every step a superior grasp of the politics of national security. Caesar's case was valid, well-spoken, and far-sighted—but, then, as now, prone to failure. Caesar would grow into a masterful politician; but here, in their first public clash, Cato fatally exposed his naiveté.
Cato's words became the prototypical case for security opposed to liberty. What Caesar missed, and what Cato grasped, was just how central emotional appeals and logical non sequiturs are to security politics: national security as culture war.
Even though they were studied for centuries, Cato's words are barely remembered today, but his way of arguing became a permanent part of our political inheritance—an inheritance that Greenwald and those who share his views would do well to remember.