The Worst That May Befall

I've argued consistently that BushCo's response to a flu pandemic will focus on repressive social control and extraconstitutional maneuvering. Now that Bush himself has more or less confirmed my fears, I want to discuss a possible pandemic scenario, in light of what increasingly looks like a policy of planned chaos in New Orleans.

My assumption here is that planned chaos is the ideal environment for BushCo, and that even a relatively mild pandemic will thus be milked for as much panic and unrest as possible. Quarantines will be imposed selectively, with low-income and high-density areas coming in for especially vigorous enforcement. People will not legally be able to leave these areas, and I suspect that services (e.g., garbage collection) will be curtailed. The unrest that will logically result will be met with the sort of brutal measures previously called for by conservatives in the wake of the mythical violence in New Orleans. And as in New Orleans, violence - or the mere rumor of it - will be used as an excuse to hold up or cancel delivery of life-sustaining necessities to poor areas.

The role of hard-right fundamentalism, as usual, will be to sanctify violence and repression on the one hand, and to ridicule compassion and leniency on the other. Bush's pseudoreligious surrogates will explain that the areas hardest hit - not just by the virus, mind you, but by consciously planned official neglect - were singled out by God for their sinfulness. Among other things, this will serve to assure Bush's increasingly restless base that God has taken matters into His own hands. The spectacle of a rampant and ululant God - who has finally gotten around to kicking ass and taking names - will be as balm in Gilead to the fundamentalist hordes that Bush has repeatedly, cynically jilted. Fatalities that don't fit this narrative will be ignored or downplayed by fundamentalists, perhaps with a remark about how God sees secret vice where the world sees naught but pomp and glory.

We know that medical supplies and hospital beds are insufficient to handle even a relatively mild pandemic. Far from being a problem, this is a requisite for the Right, which treats public health as a deadly game of musical chairs. Those who fail to secure a seat when the music stops are deservedly out of the game. Social Darwinism, not opposed to but buttressed by fundamentalism, will be invoked to explain why those who died in the greatest numbers were "life unworthy of life."

Corpse collection will undoubtedly be handled by Kenyon International, who are longtime cronies of the Bush family. In all likelihood, they'll simply ignore bodies festering in low-income, high-density areas; after all, they'll be paid handsomely from the public coffers whether they do the job or not. And if anyone complains about dereliction of duty in the inner cities, it's always possible to float the rumor that workers were chased away from half-eaten bodies by deranged cannibalistic blacks with assault weapons.

Having written out a death warrant for an unspecified number of undesirables, and forged God's signature on it, BushCo will turn to the far more important issue of removing constitutional obstacles to perennial one-party rule.

When considering these possibilities, it's worthwhile - and increasingly customary - to invoke the ideas of Carl Schmitt, an authoritarian legal theorist who questioned the viability of liberal constitutional government (and, for a time, threw in his lot with the Nazis). He claimed that such governments enable those who are enemies of the constitution to gain tyrannical power legally, by exploiting pluralism and tolerance; thus, the "open society" sows the seeds of its own destruction:

As soon as the assumption so essential for the system of legality collapses, specifically, that of legal disposition held equally on all sides, then there is no longer a remedy. The majority power in legal control of the means of state power must assume that the opposing party, when it achieves power legally, will use legal means to ensconce itself in power and to close the door behind it, hence, legally eliminating the principle of legality itself.

Under such circumstances, Schmitt argued, legality has no meaning: "there is no norm that is applicable to chaos."

In a "state of exception" - which might be caused by a terrorist attack, a pandemic, political unrest, or any number of other things - the sovereign must go beyond the legal system in order to preserve (one hopes) the preconstitutional spirit of the law; this dictatorial figure assesses the law from a point outside its boundaries, and modifies or annuls it as necessary. Schmitt says that "all significant concepts of the modern theory of the state are secularized theological concepts"; accordingly, "the exception in jurisprudence is analogous to the miracle in theology."

Schmitt argues that the possibility - or rather, inevitability - of the state of exception can best be addressed by a quasi-divine sovereign with broad extralegal powers, which must be available whenever the sovereign deems them necessary: "the law cannot protect itself." Legislative and executive functions coincide in the person of this sovereign, whose decisions have the force of law inasmuch as they reflect a homogenous popular will.

The potential for abuse of this concept by corporate and authoritarian elites - who have the means not just to represent and enforce, but to invent the "popular will" - must have been glaringly obvious in 1932, and is even more obvious today; we understand very well that once a ruler has declared a state of exception, under which unilateral executive decisions suspend or overturn existing laws, there may be no nonviolent incentive for the ruler to rescind it. Whether such decisions can be legitimated by popular acclaim and consent, or simply by popular failure to resist, is a question worth considering.

With all that said, my guess is that an H5N1 pandemic, so long as it's severe enough - or represented as severe enough - to cause public panic will bring issues like these ever more explicitly to the fore, as Bush arrogates an increasing number of "necessary" extralegal powers to himself, in order to confront a state of emergency that his actions will probably intensify, if not actually cause.

This scenario is speculative and limited in scope; it describes what I believe Bush would like to see happen, and thus it consciously ignores possibilities that I suspect Bush and his creatures are, themselves, choosing to ignore. What will actually happen depends on any number of factors that are partially or completely beyond BushCo's control. What's most worrisome to me - and at the same time, most heartening - is that BushCo itself probably doesn't realize this.