Preventive Detention: What Would Thomas Jefferson Do?
By all accounts, the White House is going to unveil its proposal for indefinite detention within the next four to eight weeks, and it has begun dispatching proponents of that scheme to lay the rhetorical groundwork. In The Washington Post today, one of the proposal’s architects — Law Professor Robert Chesney, a member of Obama’s Detention Policy Task Force — showcased the trite and manipulative tactics that will be used by advocates of indefinite detention to win support for their radical program [anyone doubting that detention without trials is radical should recall that Obama's own White House counsel Greg Craig told Jane Mayer back in February that it's "hard to imagine Barack Obama as the first President of the United States to introduce a preventive-detention law"; New York Times reporter William Glaberson wrote that "Obama's detention policy "would be a departure from the way this country sees itself"; Sen. Russ Feingold warned that it "violates basic American values," "is likely unconstitutional," and "is a hallmark of abusive systems that we have historically criticized around the world"; The New York Times' Bob Herbert said that "Americans should recoil as one against the idea of preventive detention"; and the Obama policy's most vigorous Congressional proponents are Tom Coburn and Lindsey Graham].
According to Chesney, though, the real extremists are those “on the left” who oppose preventive detention; those who believe that radical liberties such as criminal charges, trials and due process are necessary before the state can put someone in a cage for life; those who agree with Thomas Jefferson that trial by jury is “the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” Chesney insists that such people (these “leftists”) are (as always) the mirror images of the extremists on the Right, who “carelessly depict civil-liberties advocates as weak-kneed fools who are putting American lives at risk.” These two equally partisan, radical, extremist sides (i.e., those who believe in due process and trials and those who oppose them) are — sadly — “shrink[ing] the political space within which reasonable, sustainable policies [i.e., Chesney's preventive detention scheme] might be crafted with bipartisan support.”
…This is how political debates are typically carried out in Washington by the Serious Centrists and Responsible Adults. Chesney writes an entire Op-Ed defending the soon-to-be-unveiled preventive detention policy without describing a single aspect of it. To Serious people, the substance of the policy is irrelevant. What matters is that anyone who opposes it is a radical, partisan, shrill extremist. Conversely, as long as the Obama administration stays somewhere in the middle of the two sides — between Tom Coburn and Russ Feingold — then it proves they are being sensible, moderate and responsible, regardless of how extreme and dangerous their proposal actually is, and regardless of how close to Coburn and as far from Feingold as they end up.
No system of justice is perfect. But it’s no improvement to decide that in certain cases we can just do better without one.
All that such a policy does is to move the act of judging back one level — and to locate it at the point where someone, somewhere decides that this particular case doesn’t get judged in the usual way. And so the accused gets “detention” rather than “trial, followed possibly by prison.” But we are still putting a person, and perhaps a dangerous person, in a cage, are we not? The acts of judging and of punishing are still there, and we have hidden them only from ourselves.
It is no improvement to shift the fundamental problem of justice to a different location — out of open courtrooms, out of review, out of established legal tradition — and into a shadowy realm where potentially anything goes. We’re deluding ourselves if we think that it is a step forward or a refinement in the criminal law to have its work done somewhere else, by someone else. The work goes on, and with it all of the associated dangers. Western legal philosophy has spent centuries forcing these dangers out into the open, so that we may confront them directly.
But oddly, Professor Chesney is actually right in one respect:
The problem is twofold. First, the national dialogue has been dominated by a pair of dueling narratives that together reduce the space available for nuanced, practical solutions that may require compromise from both camps. On the one hand, critics of the government’s policies promiscuously invoke the post-Sept. 11 version of the Imperial Presidency narrative, reflexively depicting security-oriented policies in terms of executive branch power aggrandizement (with de rigueur references to former vice president Dick Cheney; his chief of staff, David Addington; or Justice Department attorney John Yoo, if not all three). On the other hand, supporters of the government’s policies just as carelessly depict civil-liberties advocates as weak-kneed fools who are putting American lives at risk.
Second, individual issues in the debate over detention policy are often framed in stark and incompatible terms. Take, for example, the Guantanamo detainees, who are portrayed in some quarters as innocent bystanders to the last man and in other quarters as the “worst of the worst.” While both extremes are misleading, their influence is pervasive.
True enough. A reasonable middle position? Give the detainees trials in which they can individually prove their guilt or innocence. Surely they aren’t all guilty, and I don’t believe I’ve ever seen anyone claim that they are all innocent, either. The truth really is somewhere in between, and it just so happens that we already have a mechanism for sorting out muddled cases like these.
Taxpayer-Funded Lobbying
There’s lots of outrage in the blogosphere over revelations that some of the biggest recipients of the federal government’s $700 billion TARP bailout have been spending money on lobbyists. Good point. It’s bad enough to have our tax money taken and given to banks whose mistakes should have caused them to fail. It’s adding insult to injury when they use our money — or some “other” money; money is fungible — to lobby our representatives in Congress, perhaps for even more money.
Get taxpayers’ money, hire lobbyists, get more taxpayers’ money. Nice work if you can get it.
But the outrage about the banks’ lobbying is a bit late. As far back as 1985, Cato published a book, Destroying Democracy: How Government Funds Partisan Politics, that exposed how billions of taxpayers’ dollars were used to subsidize organizations with a political agenda, mostly groups that lobbied and organized for bigger government and more spending. The book led off with this quotation from Thomas Jefferson’s Virginia Statute of Religious Liberty: “To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical.”
The book noted that the National Council of Senior Citizens had received more than $150 million in taxpayers’ money in four years. A more recent report estimated that AARP had received over a billion dollars in taxpayer funding. Both groups, of course, lobby incessantly for more spending on Social Security and Medicare. The Heritage Foundation reported in 1995, “Each year, the American taxpayers provide more than $39 billion in grants to organizations which may use the money to advance their political agendas.”
In 1999 Peter Samuel and Randal O’Toole found that EPA was a major funder of groups lobbying for “smart growth.” So these groups were pushing a policy agenda on the federal government, but the government itself was paying the groups to lobby it.
Taxpayers shouldn’t be forced to pay for the very lobbying that seeks to suck more dollars out of the taxpayers. But then, taxpayers shouldn’t be forced to subsidize banks, car companies, senior citizen groups, environmentalist lobbies, labor unions, or other private organizations in the first place.
Mr. Jefferson Regrets
Thomas Jefferson was an advocate of public schooling, after a fashion. He knew that an educated public was the only protection against government abuses, and he assumed that a state-run, state-funded school system would provide that essential education. If he could only see public schooling today.
The Arizona-based Goldwater Institute has just released a study on the civics knowledge of that state’s high school students. Matt Ladner, Goldwater’s head of research, administered the same trivial test that’s given to immigrants applying for citizenship, using the same trivial pass/fail threshold. [I know it's trivial, 'cause I took it a few years ago.] The results of Goldwater’s little experiment… Oh. My. God. Becky:
96.5 percent of AZ public high school students failed
Honestly, why did anyone — especially Thomas Jefferson – ever imagine that a government monopoly would be a good way to educate kids about a democratic republic and protect them from abuses of government power?
Canada and Jefferson’s Natural Progress
Thomas Jefferson famously opined that “the natural progress of things is for liberty to yield and government to gain ground,” but Canada has bucked that gloomy forecast in recent years. As my co-authored op-ed in the Washington Post yesterday showed, Canada has:
- Cut government spending
- Cut government debt
- Balanced its budget consistently
- Pre-funded its version of Social Security to make it solvent
- Decentralized power within its federation of provinces
- Cut taxes, particularly corporate taxes
Meanwhile, the United States has headed in the opposite direction in each of these policy areas. Consider further that Canada has other economic policy advantages over the increasingly uncompetitive welfare state to its south:
- Canada has more liberal immigration policies for highly skilled workers than does the United States, which has added greatly to the entrepreneurial vibrancy of Canada’s economy.
- Canada has long had a stable, efficient, and competitive financial sector, which avoided the government-assisted meltdown that occurred in the United States.
- Canada has a home ownership rate as high as the United States, yet it does not have a distortionary mortgage interest tax deduction.
- Canada recently implemented large Roth IRA style savings accounts, which are much more flexible than the U.S. version.
- The Canadian federal capital gains tax rate is 14.5 percent, which compares to the current 15 percent in the United States and 20 percent under Obama’s tax plan.
- Canada has no federal ministry or department of education. The K-12 schools are the sole responsibility of the provinces, yet Canadian kids generally do better than American kids on international tests.
- In recent years, Canada has probably been more supportive of NAFTA, and free trade in general, than its main trading partner, the United States.
Major pro-market reforms are possible in advanced welfare states — Jefferson can be proven wrong, as Canada illustrates. U.S policymakers can prove Jefferson wrong as well. They can start by cutting spending, decentralizing power out of Washington, and making pro-growth tax reforms in response to globalization, as Canada has, rather than imposing self-defeating “Buy America” provisions and making childish rants about “corporations moving jobs offshore.”
Filed under: International Economics and Development; Tax and Budget Policy
Will the Government Be the New King of All Media?
Howard Stern swore off free broadcast radio in 2004 in part because of federally mandated decency rules. The self-annointed “king of all media” may have stepped off the throne in doing so. Them’s the breaks in the competitive media marketplace, contorted as it is by government speech controls.
Some would argue that a new king of all media is seeking the mantle of power now that the Obama administration is ensconced and friendly majorities hold the House and Senate. The new pretender is the federal government.
And some would argue that the Free Press “Changing Media Summit” held yesterday here in Washington laid the groundwork for a new federal takeover of media and communications.
That person is not me. But I am concerned by the enthusiasm of many groups in Washington to “improve” media (by their reckoning) with government intervention.
Free Press issued a report yesterday entitled Dismantling Digital Deregulation. Even the title is a lot to swallow; have communications and media been deregulated in any meaningful sense? (The title itself prioritizes alliteration over logic — evidence of what may come within.)
Kaiser vs. “Czar”
Just when you thought you’d seen everything, ol’ Kaiser Bill emerges from the Beyond to castigate the U.S. president:
Mr. President,
Gott im Himmel! Enough with the czars!
You’ve named 18 so far, according to something I read in Foreign Policy. That includes a border czar, a climate czar, an information technology czar and — I don’t think Thomas Jefferson grew enough hemp in his lifetime to dream up this one — the “faith-based czar.” Your car czar, Steve Rattner, was in the news last week, trying to keep Chrysler out of bankruptcy.
It took Russia 281 years to accumulate that many czars. Even with hemophilia, repeated assassinations and a level of inbreeding that would gag a Dalmatian breeder. You did it in less than 100 days.
And every one of them hurts. I think I speak for all passed-over Victorian despots when I say that.
[...]
…maybe it’s time for a new autocrat to get some air time. Time for something that will stand out even in a White House with a czar in every cubicle.
President Obama’s archduke of information technology announced today . . . Pricks up the ears, doesn’t it?
In Detroit, the president’s car sultan . . . Instant respect. Mainly because those who defy the car sultan might be killed by eunuch assassins.
Or might I humbly suggest the title of an enlightened ruler who — unlike the czars — actually worked well with parliament and the nobility (in your terms, that would be “Congress” and “Oprah”). Somebody whose record is nearly unblemished, except for one invasion of Belgium that everybody’s totally over now.
Today, President Obama congratulated his new climate kaiser . . .
Goosebumps.
Yours in friendship, Wilhelm II
Week in Review: A Health Care Summit, School Choice and Ayn Rand
Obama Holds White House Health Care Summit
President Obama hosted almost 150 elected officials, doctors, patients, business owners, and insurers on Thursday for a White House forum on health care reform. The Washington Post reports Obama “reiterated his intention to press for legislation this year that dramatically expands insurance coverage, improves health care quality and reins in skyrocketing medical costs.”
Cato senior fellow Michael D. Tanner responds:
The Obama administration and its allies mainly seek greater government control over one-seventh of the U.S. economy and some of our most important, personal, and private decisions. They favor individual and employer mandates, increased insurance regulation, middle-class subsidies, and a government-run system in competition with private insurance. On the other side are those who seek free market reforms and more consumer-centered health care.
These differences are profound and important. They cannot and should not be papered over by easy talk of bipartisanship.
In a new article, Tanner explains why universal health care is not the best option for Americans seeking a better system:
If there is a lesson which U.S. policymakers can take from national health care systems around the world, it is not to follow the road to government-run national health care, but to increase consumer incentives and control.
To find out how the free market system can increase health care security, read University of Chicago professor John H. Cochrane’s new policy analysis, which explains how markets can “provide life-long, portable health security, while enhancing consumer choice and competition.”
Battle Over Washington DC School Choice Program Continues
Congressional Democrats are considering cutting the funding for a pilot education program that sends low-income children in Washington, D.C., to private schools through vouchers. The program serves as an example of how helpful school choice programs can be to children who are born into families that cannot afford to send them to good schools.
Adam Schaeffer, policy analyst at Cato’s Center for Educational Freedom, says even the mainstream media is on the side of school choice this time.
In a recent study, Andrew J. Coulson, director of Cato’s Center for Educational Freedom, demonstrates the superiority of market-based education over monopolies.
For comprehensive research on the effectiveness of charter schools, private schools, and voucher programs, read Herbert J. Walberg’s book, School Choice: The Findings.
Cato Celebrates Women’s History Month
The Cato Institute pays homage to three women during Women’s History Month who unabashedly defended individualism and free-market capitalism early in the 1940s — an age that widely considered American capitalism dead and socialism the future.
In 1943, Isabel Paterson, Rose Wilder Lane and Ayn Rand published three groundbreaking books, The God of the Machine, The Discovery of Freedom and The Fountainhead, that laid the foundations of the modern libertarian movement.
On Rand’s centennial, Cato executive vice president David Boaz highlighted the many contributions she made to liberty:
Although she did not like to acknowledge debts to other thinkers, Rand’s work rests squarely within the libertarian tradition, with roots going back to Aristotle, Aquinas, Locke, Jefferson, Paine, Bastiat, Spencer, Mill, and Mises. She infused her novels with the ideas of individualism, liberty, and limited government in ways that often changed the lives of her readers. The cultural values she championed — reason, science, individualism, achievement, and happiness — are spreading across the world.
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