We Live In Exceptional Times

Orange is he who determines the exception.

The exception is more interesting than the rule. The rule proves nothing; the exception proves everything. … Sovereign is he who determines the exception.
- Carl Schmitt, German Legal Theorist

Now, we're studying the laws right now. Pam is studying. If we can do that, that's good. And I'm talking about violent people. I'm talking about really bad people, really bad people, every bit as bad as the ones coming in. … Why, do you think they're a special category of person?
- Donald Trump, on deporting American citizens to prisons in El Salvador

Terrorism is a real risk in the real world. The constant use of the word to denote unreal threats creates unreality. And unreality inside institutions degrades capability. Security agencies that have been trained to follow political instructions about imaginary threats do not investigate actual threats. Fiction is dangerous. Treating the administration’s abduction of a legal permanent resident as a heroic defense against terror is not only mendacious and unconstitutional but also dangerous. - Tim Snyder, author of “On Tyranny”

You can probably guess where this is going.

Goodwin’s Law has reached singularity.

“The specific political distinction to which political actions and motives can be reduced is that between friend and enemy.” - Carl Schmitt

A common refrain one might hear referenced is the words of 1930’s Peruvian dictator Oscar Benavides “For my friends, everything; for my enemies, the law.” It’s a pretty simple distillation of the mindset upon which fascists operate. People who are friendly to you, like businessmen offering tribute or media figures engaging in effuse praise of your administration, get special favors. For everyone else, the power of the state is brought to bear against them. It’s a common thread you’ll find across history, from the past examples of Benavides in Peru and the Nazis in Germany, to recent cases like Putin in Russia and Orbán in Hungary.

Of course, the quote is also somewhat misleading. Because, for their enemies, it is not really the law that is being applied to them, but the exception to the law.

One of the traits that separates fascism from other forms of authoritarian movements is that fascism can only spring forth from within a democratic system. This is because the fascist leader’s claim to authority is popular support. This support may not constitute a majority of society, but it will in some manner consist of a plurality of the electorate, and the leader will always claim that the people have given him a mandate to pursue the actions that he takes.

The Nazis only won about 37% of the vote in 1932, but it was a much bigger share than any of the other political parties individually had. Therefore, Hitler claimed, “The People” had given him a mandate, and he systematically began to use that “mandate” in increasingly bold ways, always saying that his will simply represented the will of the citizens of Germany. Of course, the definition of who was a German citizen shrank over time as well.

Popular culture is well aware of the names of the Nazi’s most infamous characters, from the insidious propagandist Joseph Goebbels to that most reviled author of the Final Solution known as Henrich Himmler. These are names that conjure up visions of some of the worst kind of people and are a useful shorthand for making comparisons to various atrocities and villainous plots.

But a less known figure from this time, at least to the average American, is a jurist by the name of Carl Schmitt, who provided much of the legal theory which the Nazis would use to erode Germany’s constitutional law and deprive various groups of their rights. 1930’s Germany did not turn into a dictatorship overnight. It began the decade as a democratic society governed by laws, with legal constraints upon the exercise of power and protections for the rights of its citizens. In order to dismantle this society and build an authoritarian regime, the Nazis would have to frame their actions in such a way that they appeared to be obeying the law while actually destroying it.

Carl Schmitt would help provide two critical ideas to legitimize the takeover of the state by the whims of a single man. They can be summarized as such:

1. In a system where people chose their leaders, the leader must be interpreted as being the manifestation of the popular will. If the people have willed an individual to be their leader, then the leader’s will represents the people. To go against the will of the leader is therefore to be against the will of the people. And this makes you an enemy of the people.

2. The exercise of power is determined less by what the laws are, but by what the exceptions to the law are. The day-to-day business of a society is governed by laws, which is necessary for society to function. Those in power, in order to exercise the will of the people in the person of the leader, must be able to act in ways that are not governable by strict adherence to the law. Rather than remove laws from the books, which would of course mean that the laws did not apply to anyone, it it better to create instances of exceptions to the laws that favor the will of the leader. This can be accomplished by framing the exceptions around some state of emergency which the people have put the leader in charge to deal with, such as a threat from an enemy.

In this way, the Nazi takeover of Germany was less a coup in which power was seized through military force, but rather a corruption of democracy which claimed legitimacy through populist support.

Which brings us to last week.

We are fast moving into a territory in which the Trump administration is testing just how far they can push the limits of operating outside the law. The Supreme Court has ordered the administration to rectify their mistake of wrongfully deporting Kilmar Abrego Garcia and facilitate his return here to the United States to face proper due process of law. Last Monday, El Salvador’s President Bukele met with Trump in the Oval Office. Both men smugly refused to do anything about it.

It is important to understand that the Trump administration is paying El Salvador’s government $6 million to imprison the people the US has sent them. Trump is on friendly terms with Bukele. This is not like trying to return someone from captivity when dealing with a hostile foreign power. All Trump would have had to do in that moment would be to ask Bukele to return Garcia, and the man would have been on a plane back to America the next day.

What Pam Bondi’s Justice Department is arguing here, is not that they are defying the laws that the federal judges are trying to hold them to, but that they somehow deserve an exception to it. This has two different tracks:

1. Within the courts, Justice Department lawyers are arguing that because Garcia is no longer within the territory of the United States, there is nothing they can be made to do about it. His current location in El Salvador means the judges have no jurisdiction over his fate.

   1. Essentially, if the government can get someone on a plane over international waters before a court order intervenes, that person is beyond the reach of due process. Their physical location outside the US creates an exception to the normal legal remedies their lawyers can seek.

   2. Note: This argument is neutral as to the nature of Garcia’s legal status. The same argument applies if he is an illegal alien, a legal noncitizen resident, or an actual citizen. It is also neutral as to whether he has been convicted of any crimes or not. Keep that in mind as we go along.

2. In the battle of public opinion, the Trump administration is trying to assert that Garcia and the Venezuelans are bad guys, and therefore to defend their rights is to be on the side on the bad guys. In other words, if they say that someone is a terrible criminal, then there can be exceptions to how they are handled.

   1. It’s worth taking a moment here to note that around 75% of the people sent to El Salvador have no criminal convictions. This does not necessarily mean that they are innocent. It may well be that several of these men are gang members. It may well be that Kilmar Abrego Garcia is not a good person. But that is what courts are for - to present evidence of crimes and prove that the people you arrested actually are the bad men you say they are. If the authorities can arrest and deport people to a foreign prison for indefinite internment just because they say people are criminals, then there is never a need to find evidence of crimes. One can simply point at a man and say “This man is a terrorist” without ever linking him to a terrorist plot, and from that moment, due process of law need not apply to how his case is handled.

   2. In the case of Garcia, administration spokespeople have presented some semi-valid claims that suggest he is not exactly the most upstanding of people. But they have not presented any evidence of actual crimes committed.

   3. What they have done, however is continue to escalate the severity of their allegations against him. At first, he is just a man who is here illegally, and therefore deportable anyway (technically true, but we don’t deport people to prisons if they’re not legal residents, we just drop them off in another country). When the idea of sending a random illegal migrant to a foreign max security prison becomes untenable, then he is a member of MS-13. When they are unable to offer proof of him being a regular MS-13 member, then he is a leader of MS-13, and they can’t offer proof because it’s “top secret.” So top-secret that they can’t even share the evidence with judges who have security clearances. Garcia’s case is so sensitive, there must be exceptions to transparency about it, they claim.

   4. By calling people leaders of criminal organizations or terrorists, there is an implied tone that if you are defending his right to due process, then you are working against the interests of the American people and are on the side of the bad guys. This, by extension, might make you a criminal accomplice.

Last week, Seb Gorka, a longtime Trump loyalist recently placed in charge of counterterrorism efforts, went on Newsmax to make exactly this case:

There's one line that divides us: Do you love America or do you hate America? It's really quite that simple.

We have people who love America, like the President, like his Cabinet, like the directors of his agencies who want to protect Americans. And then there is the other side, that is on the side of the cartel members, on the side of the illegal aliens, on the side of the terrorists.

And you have to ask yourself: are they technically aiding and abetting them? Because aiding and abetting criminals and terrorists is a crime in federal statute.

Which brings us to what comes next.

In the same meeting, Trump told Bukele that he might need to build five more prisons, because “homegrowns” would be next. The implication is clear. The administration is seeking to send American citizens to El Salvador to be imprisoned there.

Let us be absolutely clear on a few points.

1. There is no need to send American prisoners to foreign countries for incarceration. The US has quite an expansive prison system of its own. The idea that we need to send our most dangerous criminals out of the country because they could somehow escape our own max security prisons is preposterous.

2. What the Trump people mean when they say “We want to send homegrown criminals to these overseas prisons because they are really bad people” it is meant to be translated as “We want to take these people to a place where they are beyond the restrictions of American law so that we can do horrible things to them. You shouldn’t complain about that because we are hurting the bad guys. As long as we say they are the worst of the worst, you should be in favor of us treating them with cruelty.”

What to do when the Reichstag is set ablaze.

Last week, Timothy Snyder issued a warning about the threat of a terrorism attack in the US and the response that it will follow it. You should really read the whole thing, but for the TLDR crowd, I’ll summarize the main points of it here:

1. The Trump administration is gutting the capabilities of the intelligence agencies that are supposed to keep us safe. We have deeply unserious people like Kash Patel and Dan Bongino running the FBI. The Director of National Intelligence is Tulsi Gabbard, who may in some ways be considered a Russian asset, and is at the very least not trustworthy enough for our usual intelligence partners in other countries to share information with us. Kristi Noem’s Department of Homeland Security is almost exclusively focused on attacking migrant communities and deportation photo-ops and has more or less abandoned its core mission of counter-terrorism efforts against actual potential threats. Meanwhile, the experienced veterans of these agencies are being fired by DOGE or driven out of the workforce by their malicious newly-appointed superiors. This makes it highly likely that at some point, a real terrorist attack will happen here on American soil, mostly because of the incompetence of the people who are supposed to stop it.

2. When that attack happens, The Trump administration will have spent a long time building up a language to describe the groups they hate as “terrorists” and “enemies of the people.” A real terrorist attack by real terrorist will allow them to graft their response to the attack onto the groups they have already labelled as such. This will allow them to claim exceptions in the pursuit of dangerous groups and individuals, with no other proof required than that they say they are so.

In 1933, when the Reichstag burned down, the Nazis blamed it as an act of arson perpetrated by Communist agents and used the event to grant Hitler extraordinary emergency powers to deal with this enemy threat. It it highly likely that the fire itself was actually the work of the Nazis.

In our own time, the Trump administration need not stage a dramatic incident to manufacture a crisis. Their actions and incompetence have made America an unsecure nation that invites attacks from a variety of sources foreign and domestic. Give it enough time, and it is not unlikely that an incident will happen where the culprit belongs to some identity group that they seek to marginalize.

When that happens, it will be important to stay focused on where the administration failed to prevent the attack and how they are attempting to use fear to get people to cede their civil liberties. If the attack seems to come from a legitimate source, don’t go around engaging in conspiracy mongering about how its a false flag operation. That is the type of behavior that the normies will look at and say “Ah, just another conspiracy theorist with Trump Derangement Syndrome.” Instead, you should:

1. Acknowledge that a terrorist attack has happened. Do not trivialize the harm done to the victims by claiming that it was a staged incident - this will not give you credibility, and will probably undermine the bigger picture of what is going on if it gets wrapped up in the horseshoe politics fever swamp.

2. Question why the authorities were not able to stop it. Once again, unless there is real evidence of a conspiracy, don’t engage in conspiratorial thinking. Instead, point out the unseriousness of the people running the intelligence agencies, and their focus on the culture wars instead of real national security work. Put them blame on the clown show running the government.

3. When the administration begins trying to assert emergency powers to go after groups that had nothing to do with the attack, ask your fellow citizens this simple question: “The administration has already been relentlessly ignoring laws and firing the officials who stood against their abuses of power. That did nothing to stop the attack. Why should we be giving more power to people who are bad at their job, at the cost of your rights and freedoms?”

Except in the case of a military coup, the authoritarian power grab rarely happens all at once. There is always the precedent of changing the language to create exceptions to suit the agenda, before implementing the agenda itself. Once you see the pattern, you can’t unsee it, but authoritarians rely on the majority of the populace not paying close enough attention to see how things change over time and their capacity to adapt to new norms that once would have shocked them.

Be wary of claims to exceptions, and help bring this awareness to others too.