Libya, Limited Government, and Imperfect Duties
Glenn Greenwald observes that we’re hearing a familiar false dilemma from advocates of intervention in Libya—the same one that was trotted out so frequently in the run-up to the war in Iraq: Either you support American military action, or you must be indifferent to the suffering of civilians under Qadaffi. Bracket for a moment the obvious empirical questions about the general efficacy of bombs as reliable means of alleviating suffering. What I find striking is the background assumption that whether the United States military has a role to play here is taken to be a simple function of how much we care about other people’s suffering. One obvious answer is that caring or not caring simply doesn’t come into it: That the function of the U.S. military is to protect the vital interests of the United States, and that it is for this specific purpose that billions of tax dollars are extracted from American citizens, and for which young men and women have volunteered to risk their lives. It is not a general-purpose pool of resources to be drawn on for promoting desirable outcomes around the world.
A parallel argument is quite familiar on the domestic front, however. Pick any morally unattractive outcome or situation, and you will find someone ready to argue that if the federal government plausibly could do something to remedy it, then anyone who denies the federal government should act must simply be indifferent to the problem. My sense is that many more people tend to find this sort of argument convincing in domestic affairs precisely because we seem to have effectively abandoned the conception of the federal government as an entity with clear and defined powers and purposes. We debate whether a particular program will be effective or worth the cost, but over the course of the 20th century, the notion that such debates should be limited to enumerated government functions largely fell out of fashion. Most people—or at least most public intellectuals and policy advocates—now seem to think of Congress as a kind of all-purpose problem solving committee. And I can’t help but suspect that the two are linked. Duties and obligations may be specific, but morality is universal: Other things equal, the suffering of a person in Lebanon counts just as much as that of a person in Lebanon, Pennsylvania. Once we abandon the idea of a limited government with defined powers—justified by reference to a narrow set of functions specified in advance—and instead see it as imbued with a general mandate to do good, it’s much harder for a moral cosmopolitan to resist making the scope of that mandate global, at least in principle.
Cyber-Intrigue and Miscalculation
If you haven’t been following the intrigue around Wikileaks and the security companies hoping to help the government fight it, this stuff is not to be missed. Recommended:
- “How One Man Tracked Down Anonymous—And Paid a Heavy Price,” on Ars Technica.
- “A Disturbing Threat Against One of Our Own,” on Salon.
The latter story links to a document purporting to show that a government contractor called Palantir Technologies suggested unnamed ways that Glenn Greenwald (author of this excellent Cato study) might be made to choose “professional preservation” over his sympathetic reporting about Wikileaks. A later page talks of “proactive strategies” including: “Use social media to profile and identify risky behavior of employees.”
Wikileaks has no employees. I take this to mean that the personal lives of Wikileaks supporters and sympathizers would be used to undercut its public credibility. Because Julian Assange hasn’t done enough…
While we’re on credibility: This may well be Wikileaks’ rehabilitation. Wikileaks erred badly by letting itself and Julian Assange become the story. We’re not having the discussion we should have about U.S. government behavior because of Assange’s self-regard.
But now defenders of the U.S. government are making themselves the story, and they may be looking even worse than Wikileaks and Assange. (N.B.: Palantir has apologized to Greenwald.) That doesn’t mean that we will immediately focus on what Wikileaks has revealed about U.S. government behavior, but it could clear the deck for those conversations to happen.
The concept of “miscalculation” seems more prominent in international affairs and foreign policy than other fields, and it comes to mind here. Wikileaks and its opponents are joined in a negative duel around miscalculation. The side that miscalculates the least will have the upper hand.
Conservatives, Liberals, and the TSA
Libertarians often debate whether conservatives or liberals are more friendly to liberty. We often fall back on the idea that conservatives tend to support economic liberties but not civil liberties, while liberals support civil liberties but not economic liberties — though this old bromide hardly accounts for the economic policies of President Bush or the war-on-drugs-and-terror-and-Iraq policies of President Obama.
Score one for the conservatives in the surging outrage over the Transportation Security Administration’s new policy of body scanners and intimate pat-downs. You gotta figure you’ve gone too far in the violation of civil liberties when you’ve lost Rick Santorum, George Will, Kathleen Parker, and Charles Krauthammer. (Gene Healy points out that conservatives are reaping what they sowed.)
Meanwhile, where are the liberals outraged at this government intrusiveness? Where is Paul Krugman? Where is Arianna? Where is Frank Rich? Where is the New Republic? Oh sure, civil libertarians like Glenn Greenwald have criticized TSA excesses. But mainstream liberals have rallied around the Department of Homeland Security and its naked pictures: Dana Milbank channels John (“phantoms of lost liberty”) Ashcroft: “Republicans are providing the comfort [to our enemies]. They are objecting loudly to new airport security measures.” Ruth Marcus: “Don’t touch my junk? Grow up, America.” Eugene Robinson: “Be patient with the TSA.” Amitai Etzioni in the New Republic: “In defense of the ‘virtual strip-search.’” And finally, the editors of the New York Times: ”attacks are purely partisan and ideological.”
Could this just be a matter of viewing everything through a partisan lens? Liberals rally around the DHS of President Obama and Secretary Napolitano, while conservatives criticize it? Maybe. And although Slate refers to the opponents of body-scanning as “paranoid zealots,” that term would certainly seem to apply to apply to Mark Ames and Yasha Levine of the Nation, who stomp their feet, get red in the face, and declare every privacy advocate from John Tyner (“don’t touch my junk”) on to be “astroturf” tools of “Washington Lobbyists and Koch-Funded Libertarians.” (Glenn Greenwald took the article apart line by line.)
Most Americans want to be protected from terrorism and also to avoid unnecessary intrusions on liberty, privacy, and commerce. Security issues can be complex. A case can be made for the TSA’s new procedures. But it’s striking to see how many conservatives think the TSA has gone too far, and how dismissive — even contemptuous — liberals are of rising concerns about liberty and privacy.
Prop. 19 Roundup
Here’s some recent commentary on California’s Prop. 19 ballot initiative:
- Today, New York Times columnist Nicholas Kristof makes the case against the war on cannabis. Although there is no mention of Cato, Kristoff mentions the work of our senior fellow, Jeff Miron, and links to our report on the Budgetary Impact of Ending Drug Prohibition. Kristoff also mentions Portugal’s drug decriminalization policies and links to a Time Magazine article that highlights the Cato report on that subject by Glenn Greenwald.
- Nick Gillespie and Matt Welch make the case that Prop. 19 is the most important item before the voters in this election cycle. Even more important than whether Barbara Boxer can continue her work in the Senate? Yes, read the whole thing. Dan Mitchell has additional thoughts here.
- George Soros is in the news for helping the Prop. 19 effort with a one million dollar contribution. He explained his reasons for supporting Prop. 19 in a Wall Street Journal op-ed.
For additional Cato scholarship on drug policy, go here.
Targeted Killing of U.S. Citizen a State Secret?
That’s the claim the Obama administration made in court. As Glenn Greenwald puts it:
[W]hat’s most notable here is that one of the arguments the Obama DOJ raises to demand dismissal of this lawsuit is “state secrets”: in other words, not only does the President have the right to sentence Americans to death with no due process or charges of any kind, but his decisions as to who will be killed and why he wants them dead are “state secrets,” and thus no court may adjudicate their legality.
Italics in the original. My colleagues Gene Healy and Nat Hentoff have expressed concerns about targeted killings. Charlie Savage wrote a good piece on this that highlights how even the most ardent defenders of executive power may blush at this broad claim of power.
The government’s increasing use of the state secrets doctrine to shield its actions from judicial review has been contentious. Some officials have argued that invoking it in the Awlaki matter, about which so much is already public, would risk a backlash. David Rivkin, a lawyer in the White House of President George H. W. Bush, echoed that concern.
“I’m a huge fan of executive power, but if someone came up to you and said the government wants to target you and you can’t even talk about it in court to try to stop it, that’s too harsh even for me,” he said.
In fairness, Rivkin would defend the administration’s claim of power on other grounds — that targeting is a “political question” for the elected branches of government — but this approach seems to have lost out because it invites the judiciary to determine whether the U.S. is at war in Yemen.
Amending the Authorization for the Use of Military Force passed by Congress after 9/11 is long overdue. What groups are we truly at war with, where does the line between war and peace sit, who can we detain and kill, and what process is owed before a citizen may be targeted with lethal force? Questions of war are political in nature, and if we don’t know the answers, it is Congress’ role to step in and provide them.
Obama Administration Wins in State Secrets Case
A split panel of the 9th Circuit Court of Appeals decided, on a 6-5 vote, that a lawsuit filed by extraordinary rendition and torture victims is barred by the State Secrets Privilege. Over a year ago, a three-judge panel ruled that the case should proceed with traditional application of the Privilege — individual pieces of evidence would be excluded based on their secret nature, but other evidence would remain available for litigation.
Robert Chesney has some thoughtful commentary on how the current state of the law deals with rule of law versus individual justice concerns. By any measure this is, as Glenn Greenwald notes, a broad victory for the government and further evidence of continuity between the Bush and Obama administrations’ approaches to terrorism.
Cato Unbound: The Digital Surveillance State
In the years since September 11, 2001, the secret digital surveillance state has grown enormously. Given heightened security measures, heightened anxiety, and cheaper-than-ever data collection and storage, such growth was perhaps inevitable.
But what are the proper limits on the secret collection of information? Where do our constitutionally guaranteed civil liberties stand in this new era? Do the federal government’s increased powers of surveillance even accomplish the security tasks at hand?
Constitutional lawyer and columnist Glenn Greenwald argues in this month’s Cato Unbound that the digital surveillance state is out of control. It’s also failed to deliver on its promises of greater security. Rather than helping to find the needle in the haystack, we have only made the haystack bigger.
Commenting on Greenwald’s essay will be Professor John Eastman, of Chapman University Law School; Paul Rosenzweig, now of the Heritage Foundation and formerly Deputy Assistant Secretary for Policy in the Department of Homeland Security; and the Cato Institute’s own Julian Sanchez, a prolific journalist on the interface of technology and civil liberties. Please stop by through the rest of this month for a discussion of one of our country’s most pressing issues in both civil liberties and national security.
Obama, Civil Liberties, & the Left
A confession: For all my innumerable policy disagreements with Barack Obama, on election night 2008, I found myself cheering with the rest of the throng on U Street. I fully expected to be appalled by much of his agenda — but I had also spent years covering the Bush administration’s relentless arrogation of power to the executive in the name of the War on Terror, its glib invocation of “national security” to squelch the least gesture toward transparency or accountability, its easy contempt for civil liberties and the rule of law. However fitfully, I thought, we could finally hope to see that appalling legacy reversed. And that seemed worth celebrating even if little else about the declared Obama agenda was.
As you might guess, I had a lot of disappointment coming — and not just with Obama. There were, of course, principled civil libertarians on the left, like Salon‘s Glenn Greenwald and Firedoglake‘s Marcy Wheeler who kept banging the drum with undiminished fury. But many progressives seemed prepared to assume that Bush’s War-on-Terror policies would be out the door close on the heels of their author — conspicuously muting their outrage even as the reasons for it persisted. Meanwhile, the right — disappointingly if not entirely surprisingly — managed to fuse a penchant for breathless Stalin analogies with an attitude toward expansive surveillance powers and arbitrary detention authority that ranged from indifference to endorsement.
So it’s a little encouraging to see evidence over the last few weeks that burgeoning progressive disenchantment with Obama along a number of dimensions seems to be bringing these issues back into sharper focus. In a recent interview in Der Spiegel, Daniel Ellsberg of Pentagon Papers fame (described by the paper as a “lefty icon”) blasted Obama for “continuing the worst of the Bush administration in terms of civil liberties.” ACLU director Anthony Romero declared himself “disgusted” with the president, and Kevin Drum of Mother Jones catalogued a slew of reasons to agree with that appraisal. The real test of an issue’s salience, however, is whether it makes The Daily Show, and so perhaps the most significant bellwether is Jon Stewart’s decision to devote an unusually long and blistering segment to Obama’s failure to live up to his rhetoric on civil liberties and executive power:
| The Daily Show With Jon Stewart | Mon – Thurs 11p / 10c | |||
| Respect My Authoritah | ||||
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Democrats have spent most of the past decade playing defense against “soft on national security” attacks from the right, on the assumption — borne out thus far — that the base wasn’t going to punish them for folding on civil liberties issues. But while many progressive complaints now being aired are themselves the product of an unrealistic view of presidential puissance, this really is one sphere where the president has enormous latitude to unilaterally affect policy. It’s therefore also a set of issues where scant progress can’t easily be blamed on Republican obstructionism.
During the Bush era, we saw the brief emergence of a small but hardy left-right “strange bedfellows” coalition opposed to the FISA Amendments Act. Now I find myself wondering: If progressive grumblings on this front continue and grow louder, will the Tea Party movement that’s sprung up in the intervening years realize that their own rhetoric logically commits them to the same position? And if they do, will civil libertarians on the left be open to resurrecting that odd alliance?
War and the Intellectuals
Apologies in advance for the epic-length post.
There’s been a fair bit of wailing and garment-rending about war on the op-ed pages. In addition to the cloying and tiresome Mark Helprin piece to which David links below, E.J. Dionne, Glenn Greenwald, and Fred Hiatt have all touched on the subject in recent days. One common theme is the idea that Americans are insulated from the costs and benefits of war, and that this is a problem.
To their credit, some of the writers offer proposals for redressing matters: Helprin suggests American citizens should force congressional declarations of war characterized by “extraordinary, penetrating debate” in order to ensure that decisions to go to war have been “ratified unambiguously by the American people through their constitutional and republican institutions.” (Do we also owe the troops good decisions?) Further, citizens must recognize that it is “unacceptable” to “starve the means to fight” in order to defray the costs of war. “If the general population must do with less, so be it, for the problem is only imagined.”
What planet does Helprin live on? The ways in which citizens and legislators behave when it comes to war are shaped by the incentives each group faces. Helprin — and the other writers — should try to think about those incentives if they actually care about solving these problems.
Citizen Shahzad
Two smart guys on opposite sides of the political spectrum have sound points about the treatment of suspected Times Square bomber Faisal Shahzad. First, Orin Kerr points out that investigators have some flexibility in determining when and whether to read Miranda rights. In this case, they refrained initially and questioned Shahzad for a while under the public safety exception. And despite the apparent belief of the perpetually terrorized that Miranda warnings are some kind of magical incantation that causes the cone of silence to descend upon blabbermouths, they determined that he would probably continue cooperating even after being Mirandized. But as Kerr points out, they could have proceeded sans Miranda had that seemed necessary—provided they were willing to waive the ability to introduce Shahzad’s confession at trial. Given that there appears to be plenty of other evidence against him, that might well have been a viable option.
Either way, this surely seems like the kind of judgment call best left to the investigators on the scene, not Monday morning quarterbacks in Congress like Rep. Peter King (R-NY) who gave us this priceless reaction:
“Did they Mirandize him? I know he’s an American citizen but still,” King said.
Putting aside that nauseating “but still,” does King really imagine that he possesses some deep insight into the pernicious effect of Miranda warnings that the agents on the ground lacked? Again, Shahzad is apparently still cooperating—maybe they knew what they were doing.
From Steve Benen, meanwhile, we have one of many posts around the blogosphere pointing out the incoherence of a cowardly proposal mooted by Joe Lieberman (I-CT) that would revoke the citizenship of Americans who join foreign terror groups. The blindingly obvious question: By what process do we determine that a suspected member of a foreign terror group is really a member of a foreign terror group? As Glenn Greenwald writes, there’s not much point to having a Bill of Rights if the government gets to revoke those rights at its whim. But no, Lieberman wants to assure us that suspects would have a right to challenge the revocation of their citizenship in a court—a civilian court, one hopes. Except giving material support to a foreign terror groups is, in fact, a crime. If there’s enough evidence to persuade a court of law that someone is a member of such a group—congratulations, there’s enough evidence to convict them in the civilian system as well! It’s heartening that there doesn’t seem to be a great deal of support for this odious proposal, but depressing that a sitting senator would treat the rights of citizenship so lightly for the sake of a vapid, strutting display of “toughness.”
Justice Sunstein?
Glenn Greenwald takes a look at the prospect of Obama nominating Cass Sunstein to the Supreme Court. Whereas Randy Barnett has championed a “presumption of liberty” whenever a constitutional controversy is unclear, Sunstein seems to champion a “presumption for the state.”
More on Sunstein here.
Free Speech in Canada
Free speech isn’t exactly free in Canada, and even Glenn Greenwald and Mark Steyn agree on this point. When conservative commentator Ann Coulter (who can be uncivil, but shouldn’t be muzzled by the state for it) tried to give a speech at the University of Ottawa, she was warned by the political correctness police not to hurt anyone’s feelings:
I would, however, like to inform you, or perhaps remind you, that our domestic laws, both provincial and federal, delineate freedom of expression (or “free speech”) in a manner that is somewhat different than the approach taken in the United States. I therefore encourage you to educate yourself, if need be, as to what is acceptable in Canada and to do so before your planned visit here.
You will realize that Canadian law puts reasonable limits on the freedom of expression. For example, promoting hatred against any identifiable group would not only be considered inappropriate, but could in fact lead to criminal charges. Outside of the criminal realm, Canadian defamation laws also limit freedom of expression and may differ somewhat from those to which you are accustomed. I therefore ask you, while you are a guest on our campus, to weigh your words with respect and civility in mind. . . .
So much for inalienable rights.
Steyn highlights the view of the lead investigator of Canada’s “Human Rights” Commission: “Freedom of speech is an American concept, so I don’t give it any value.”
I would offer a rebuke, but Ezra Levant has done it better than I ever could. Crank your volume up, sit back, and enjoy:
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