The Liminal Zone

Do we still have rights? What are they?

There’s a very good book called Nothing Is True and Everything Is Possible, by Peter Pomerantsev, about life in Vladmir Putin’s Russia. “The Surreal Heart of the New Russia” is its subtitle, and the stories in it live up to that promise. One of them is about a woman named Yana Yakovleva, a successful entrepreneur who runs a company that sells industrial cleaning chemicals. She lives with her boyfriend, drives a Lexus and works out with a personal trainer. One day, at the gym, she’s arrested by some government agents in cheap suits. She has no idea why. And then, hour by hour, her reality unravels.

Having done nothing illegal, Yana is bewildered by what’s happening to her, but also confident that it’s a mistake that will be sorted out by the courts. With each passing day that assumption becomes more far-fetched. She’s informed that she’s a dangerous drug dealer, because the chemical she has sold legally for a decade has suddenly been deemed a narcotic, even though it isn’t one. She’s transferred from the police station to prison. Days become weeks. With every failed bail hearing, her sentence is extended. She serves seven months, until she is at last found innocent and released.

Behind her arrest were the machinations of bureaucrats. The head of the Russian security agency tasked with drug control was attempting to shake down the pharmaceutical and chemical industries. A tranche of formerly legal chemicals had been re-listed as narcotics. Veterinarians were being imprisoned for having prescribed ketamine to cats. The point was to terrorize the industries into submission to the gangster state.

Those same bureaucratic designs lurked behind her exoneration, too. The head of the agency that had targeted Yana coveted the job of the director of Russia’s premier spy agency, the FSB. The two administrators despised each other. So when the FSB chief heard Yana’s story, he engineered her very public release and exoneration to embarrass his rival.

This is a signature trait of Russian authoritarianism: laws exist as weapons to be wielded by politicians, bureaucrats and oligarchs in their conspiracies against one another. Ordinary Russians are routinely ensnared in these power games, their lives turned inside out for reasons they could never imagine. One day you’re living a normal life, following the rules, keeping your head down, making a living. The next moment you’re a high value target of the state.

David French wrote an insightful piece a few days ago that points to how the United States under Trump is being transformed into a similar regime. He relies on a different analogy — Nazi Germany — but the pattern is the same. Borrowing a concept from a Jewish refugee who taught law at the University of Chicago, French describes what is emerging here today as a “dual state.” The dual state is comprised by the “normative state,” which is the sovereign system of law and order we’re all taught to believe in, and the “prerogative state,” which is the parallel system of hazy and ephemeral laws and procedures that is entirely subordinate to the arbitrary will of those in power.

One might presume that tyranny depends upon the displacement of the former by the latter, but, in fact, it works best when both operate in tandem. Under a dual state, most of the population live their lives within the ordinary framework of the normative state system. They know they don’t live in a democracy, but they can sustain a more or less normal existence if they keep their disagreements with the government largely to themselves — and don’t, like Yana, have a stroke of terribly bad luck. Things aren’t perfect but they don’t feel dystopian, either. Should they step over an invisible line, however, they will find themselves in a topsy-turvy world in which the familiar old rules become twisted, amorphous and incomprehensible, as if you had accidentally wandered out of the laws of Newtonian physics into the subatomic, quantum realm.

As French points out, we can now dimly perceive the existence of such a line in America today:

(Y)ou can see the emerging dual state in action in Minneapolis right now. In much of the city, life is routine. People create new businesses, enter into contracts, file litigation and make deals as if life were completely normal and the rule of law exists, untainted by our deep political divide.

But if you interact with ICE, suddenly you risk coming up against the full force of the prerogative state. One of the most heartbreaking aspects of the ICE agent’s video of the fatal encounter between Renee Good and ICE is that it’s plain that Good thinks she’s still in the normative state. She has no idea of the peril she’s in.

She seems relaxed. She even seems to have told the agent that she’s not mad at him. In the normative state, your life almost never depends on immediate and unconditional compliance with police commands.

But she wasn’t in the normative state. She had crossed over the border to the prerogative state, and in that state you can be shot dead recklessly, irresponsibly and perhaps even illegally, and no one will pay the price. Your killer might even be rewarded with more than $1 million in donations from friends and allies.

In Minneapolis, ICE is routinely pulling over American citizens who dare to follow them in their cars, film their activities, and blow whistles to alert neighbors of their presence. And it only takes one of those actions to find yourself face-to-face with the prerogative state. On the New York Times’ Daily podcast today, an activist described having followed an ICE vehicle for about 40 seconds before the agents stopped the car, got out, surrounded her, pepper sprayed her vehicle’s ventilation system, smashed her front windows, pulled her and another activist out, handcuffed and arrested them, just to release them later with no charges. The activists have found themselves operating in a world straddling the two sides of the dual state. It’s entirely unclear what the rules are from one moment to the next: Are you safe if you’re not blocking traffic? From what distance can you follow ICE? Is it ok to film from across the street, where you’re clearly not impeding? Is there even a policy to discern at all, or is it whatever the agent in front of you decides it is at a given moment?

If you’re an American citizen and you keep your nose out of ICE’s business, you can keep living a normal life in Minneapolis — albeit deprived of some of your former political freedoms. But not always. You might get questioned at the bus stop. You might have your door kicked in and be pulled out into the cold in your underwear. The van that takes your kids to school might get pulled over. You might choose to keep your kids home and do online learning, just in case.

Just a few weeks ago, it was pretty clear what counted as constitutionally-protected activity. Documenting law enforcement actions fell squarely in that category. Now it’s contested terrain. Until this month, in Minneapolis, if you were a U.S. citizen, it wouldn’t have crossed your mind to carry your passport with you to the grocery store. Suddenly it’s unclear whether agents are now allowed to stop you randomly and demand your papers. The law may be clear on the matter, but does the written law matter anymore? Minneapolis now exists in a purgatory in which neither regular people nor federal agents know what they are and are not allowed to do. But the agents have guns and badges. By default, they get to decide what the rules are at any given moment.

For those of us outside of Minneapolis, it is, if anything, even more uncertain what rights we still have. Our day-to-day lives still appear to be governed by the normative state. But is that an illusion? When ICE comes to your town, will you suddenly find yourself bargaining with men with guns over what you thought the Constitution guaranteed you? Is it still safe to voice your opinions on social media? Should you start deleting your old tweets and Substack posts? Should you start keeping your head down now, before it’s too late?

The new rules are inscrutable to us, because they’re dictated not by statutes or facts on the ground, but by the whims of sycophantic office holders competing for Trump’s ever-shifting favor. Like Yana’s imprisonment and release, it’s all a show for others. One of the audiences is you: you and your neighbors need to be adequately intimidated in preparation for the day when the White House turns its attention to your state or city. The other audience is the President, who rewards those who humiliate his enemies in ways he can watch on TV.

So you have to just keep licking your finger and putting it up in the air, to see which way the breezes are blowing. You have to guess where the written laws end and the real laws — the ones that are followed in practice — begin. You don’t know quite what you are and are not allowed to do anymore in protest of your government. You can only guess at what you’re still allowed to say. Or you can play it safe, and say nothing at all.