Police State, U.S.A.

• Author: Coyne, Christopher J.

"Emergencies" have always been the pretext on which the safeguards of individual liberty have been eroded--and once they are suspended it is not difficult for anyone who has assumed such emergency powers to see to it that the emergency will persist.

--F. A. Hayek, Law, Legislation, and Liberty, vol. 3: The Political Order of a Free People

Police states are typically defined by certain general characteristics--a highly centralized form of authoritarian government with few, if any, constraints, the prevalence of the state in all areas of socioeconomic life, corrupt elections, a state surveillance apparatus, misinformation operations, arbitrary detention without trial, a militarized domestic police force employed for social control, efforts to silence or censor dissent and the media, and a lack of respect for civil liberties and human rights. (1) Standard examples of police states include Italy under Benito Mussolini (1922-43), Germany under Adolph Hitler (1933-45), the Soviet Union under Joseph Stalin (1927-53), and North Korea under Kim Il-sung (1948-94), Kim Jong-il (1994-2011), and Kim Jong-un (2011-present). Although these governments represent many of the salient features of a police state, the concept is applicable beyond the most egregious totalitarian states.

Real-world governments exist on a multidimensional continuum ranging from a perfectly protective state, where full rights are protected, to an entirely unconstrained predatory state (Marx 2014, 2062). This suggests that the notion of a police state is better understood as a marginal rather than an "either-or" concept. "There is no strict tipping point or threshold that directly determines whether a nation can be considered as a police state per se; that is, there are degrees of being a police state depending on the governance dimension under examination" (Kurian 2011, 1217). From this perspective, all governments are potential police states, and governments can adopt police-state characteristics on some margins but not on others.

Constitutionally constrained democracies are no exception, as demonstrated by America's experience with the U.S. government's "war on terror" after the terrorist attacks on September 11, 2001 (9/11). In the wake of the attacks, the U.S. government expanded its domestic police powers on the grounds of protecting the person, property, and liberties of U.S. citizens. Many of these expanded police-state powers persist today, two decades after the initial attacks. In this paper we explore how a constitutionally constrained democratic government can take on police-state powers that sustain themselves over time. We then catalog some police-state powers implemented in the United States after the 9/11 attacks that remain in effect today.

We contribute to three strands of literature. The first is the literature in constitutional political economy, which asks whether and how government can be simultaneously empowered to be protective and productive yet constrained so as not to abuse those powers (see Brennan and Buchanan 1985; Gordon 2002; Coyne 2018). The second is the scholarship on "low" and "high" policing. Low policing is regular law enforcement aimed at protecting individuals, whereas high policing is intelligence-led policing aimed at protecting the state itself (see Brodeur 1983; Marx 2014). High policing poses a challenge for free societies because state power meant to protect the citizenry can be used to further the higher interests of those constituting "the state," independent of the interests of the populace. Finally, we contribute to the literature on crisis and government growth (see Higgs 1987), especially in the context of national emergencies and the war on terror (Higgs 2004, 2005, 2007, 2012; Posner and Vermeule 2007; Unger 2012). Our analysis contributes to these categories of literature by exploring how the U.S. government's response to the 9/11 attacks resulted in lasting expansions in police-state powers.

From Protective State to Police State

The Protective State and the Security-Liberty Trade-off

To understand how a constitutionally constrained government can increasingly adopt the characteristics and behaviors of a police state, we begin with an ideal protective state that protects the core rights of citizens. This involves the provision of contract enforcement and the provision of security against internal and external threats. Within this framework, the protective state is a purely liberty-enhancing apparatus. It assumes that mechanisms exist to select the appropriate mix of state-provided security to ensure that rights are adequately protected and to protect against abuses of power.

This logic underpins the trade-off model (illustrated in figure 1) discussed in the context of the emergency powers of the state and applied to the U.S. government's war on terror (see Posner and Vermeule 2007). In this framework, there is a straightforward trade-off between citizens' security and citizens' liberty, which are presented as aggregate categories. The state increases citizens' security against threats by adopting police-state characteristics, which result in reductions in citizens' liberty (the move from point A to point B in figure 1). It is assumed that as threats increase, so too does the benefit of more security and less liberty for citizens. "The problem from the social point of view is to optimize: to choose the joint level of liberty and security that maximizes the aggregate welfare of the population" (Posner and Vermeule 2007, 22). (2)

In this model, well-functioning political institutions address threats by increasing security and reducing citizen liberty to increase social welfare. "As threats increase, the value of security increases; a rational and well-motivated government will then trade-off some losses in liberty for greater gains in increased security" (Posner and Vermeule 2007, 27). As threats subside, the value of liberty, relative to security, increases, and there is movement down the frontier (back toward point A).

Under this ideal protective state, the point selected on the frontier will effectively balance liberty and security of threats to maximize citizen welfare. "Officials do not systematically act as agents either for a majority or for a minority. Rather, the government impartially maximizes the welfare of all whose interests and preferences should count" (Posner and Vermeule 2007, 30). From this perspective, government actors engage in more police-state activities only where it is in the interest of citizens' aggregate security.

However, in this model these expansions in state power are not sticky or permanent, and police-state powers contract as the benefits of citizen security, relative to liberty, fall. Errors and political opportunism in the security-liberty balance are corrected through political checks and balances--for example, congressional oversight, judicial review, citizen voting--such that there are no persistent and systematic policy errors or abuses of police-state powers. The result is that the police-state powers adopted tend toward efficiency, emerging and persisting only where they effectively secure the core rights of citizens.

The Political Economy of Police-State Powers

The trade-off model assumes that policy makers (1) possess the requisite knowledge to maximize social welfare by selecting the optimal security-liberty bundle and (2) face appropriate incentives to adopt welfare-maximizing policies and to minimize policy errors related to police-state powers. However, numerous frictions in real-world politics call these presuppositions into question.

In principle, a social welfare function ranks alternative states of the world, allowing an analyst to consider the multiplicity of people's ends and to determine the best allocation of resources to maximize societal welfare. However, as James Buchanan notes, this assumes that individual utilities are given and known to the analyst (1954, 121-22). The issue is that individual valuations are subjective--that is, in the mind of the chooser--and, in contrast to being fixed and given, emerge and evolve only through the process of experiencing life (Buchanan 1959, 1969, 1979). This goes for security, too, which is a highly individualized and subjective concept consisting of many heterogeneous margins.

Thus, even the most benevolent analyst "must remain fundamentally ignorant concerning the actual ranking of alternatives until and unless that ranking is revealed by the overt action of the individual in choosing" (Buchanan 1959, 126). Given the inability to construct a genuine social welfare function, no optimal aggregate security-liberty mix can be known to policy makers as if they are benevolent social planners exogenous to the system they act upon. Instead, they must impose their valuations and judgments on members of society.

The specific policies that constitute the security-liberty mix are not designed and implemented in a vacuum but rather through imperfect political processes. Public choice scholars have identified numerous frictions in democratic politics. Voters' incentive to be informed is weak due to the small impact of a single vote. Even for voters who wish to be informed, the operations of the national-security state are shrouded in secrecy and have only opaque connections to actual outcomes (see Coyne, Goodman, and Hall 2019). This secrecy weakens the ability of even the most willing voter to be informed in a manner that can check abuses by police-state powers.

Congressional oversight is also limited (Coyne 2018; Coyne and Hall...