One would like to say: whatever is going to seem right to me is right. And that only means that here we can’t talk about ‘right.’ — Ludwig Wittgenstein, Philosophical Investigations §258

Among the arguments for which the great 20th century philosopher Ludwig Wittgenstein is famous, perhaps the best known—and most controversial—is his argument for the impossibility of a truly “private language.” Since Wittgenstein’s own language was, if not quite “private,” notoriously opaque, it’s a matter of some controversy exactly what the argument is, but here’s a very crude summary of one common interpretation:

Language is, by it’s nature, a rule-governed enterprise. Under normal circumstances, for instance, I use words correctly when I say “there’s a yellow school bus outside,” just in case there is a yellow school bus outside. If, instead, there’s a blue Prius, then I may be lying, or trying to make some sort of signally unfunny joke, or confused about either the facts or about what words mean—but I am, one way or another, using the words “incorrectly.” And indeed, the only way words like “yellow” and “school bus” can have any specific meaning is if they’re correctly applied to some things, but not to others.

Now suppose I decide to invent my own private language, meant to describe my own internal sensations and mental states, maybe for the purpose of recording them in a personal diary. On the first day, I experience a particular sensation I decide to call “S,” and record in my diary: “Today I felt S.” As time passes, on some days I write S to describe my private sensations, and on other days maybe I come up with different labels—maybe T, U, and V. This certainly looks like a private language, but there’s a problem: each time I write down “S,” the idea is suppose to be that I’m recording that I had the same sensation I had the first day—S—and not T, U, or V. But what’s the criteria for “the same”? What makes it true that my sensation on day 27 really is “more like” the sensation S that I had on day 1, and not V, which I first had on day 16? How do I know that this new sensation is really an S and not a V? (Say S was an itch in my hand; will I be correct to use S to refer to an itch in my shoulder? Or a pain in my hand? Or for that matter a pain in my shoulder?) The only criterion is that it seems or feels that way to me. But in that case, I’m not really engaged in a rule-governed language system at all, because in effect S applies to whatever I decide it does. Since I can never really be wrong, it doesn’t really make sense to say I’m ever right in my use either. Since the terms are truly private, there’s no difference between “correctly applying S” and “specifying in greater detail what S means.” What looked like a “private language” was actually just a kind of pantomime of a true, rule-governed language.

I found myself thinking of Wittgenstein and his private language argument, oddly enough, when thinking about the various forms of “secret law” and “secret legal interpretations” that increasingly govern our endless War on Terror. Consider, for instance, the secret legal memorandum justifying the assassination of Anwar al-Awlaki, discussed in an October 8 New York Times piece:

The legal analysis, in essence, concluded that Mr. Awlaki could be legally killed, if it was not feasible to capture him, because intelligence agencies said he was taking part in the war between the United States and Al Qaeda and posed a significant threat to Americans, as well as because Yemeni authorities were unable or unwilling to stop him.

Whether or not one agrees with the substantive principle articulated here, this at least sounds like a real rule limiting the discretion of the executive. Except…who decides when a capture is “not feasible” (as opposed to merely risky, costly, or inconvenient)? The same executive who is meant to apply and be bound by the rule. Who determines when the threat posed by a citizen is “significant” enough to permit targeting? Again, the executive.

This is not, one might object, a wholly “private” interpretive problem, because the Office of Legal Counsel provides some kind of quasi-independent check: it will occasionally tell even a president that what he wants to do isn’t legal. But in that case, the president can simply do what Barack Obama did in the case of his intervention in Libya: keep asking different legal advisers until one of them gives you the answer you want, then decide that the more favorable opinion overrides whatever OLC had concluded.

Similar considerations apply to the “secret law” of surveillance. The FBI may issue National Security Letters for certain specific types of records—including “toll billing records”—without judicial approval, but these secret demands must at least be “relevant to an authorized investigation.” A weak limit, we might think, but at least a limit. Yet, again, the apparent limitation is illusory: it is the Justice Department itself that determines what may count as an “authorized investigation.” When Congress initially passed the Patriot Act a decade ago, an “authorized investigation” meant a “full investigation” predicated on some kind of real evidence of wrongdoing. Just a few years later, though, the attorney general’s guidelines were changed to permit their use in much more speculative “preliminary investigations,” and soon enough, the majority of NSLs were being used in such preliminary investigations. Needless to say, “relevance” too is very much in the eye of the beholder.

In most of these cases, the prospects for external limitation are slim. First, of course, anyone who disagreed with the executive’s secret interpretation would have to find out about it—which may happen only years after the fact in whatever unknowable percentage of cases it ever happens at all. Then they’d have to overcome the extraordinary deference of our court system to assertions of the State Secrets Privilege just to be able to have a court consider whether the government had acted illegally. In practice, then, the executive is defining the terms of, and interpreting, the same rules that supposedly bind it.

The usual thing to say about this scenario is that it shows the importance of checks and balances in preventing the law from being perverted or abused. If we think there is at least a rough analogy between these cases and Wittgenstein’s diarist writing in a “private language,” though, we’ll see that this doesn’t go quite far enough. What we should say, rather, is that these are cases where “secret law,” like “private language” is not merely practically dangerous but conceptually incoherent. They are not genuine cases of “legal interpretation” at all, but only a kind of pantomime. Perhaps what we should say in these cases is not that the president or the executive branch may have violated the law—as though there were still, in general, some background binding principles—but that in these institutional contexts one simply cannot speak of actions as “in accordance with” or “contrary to” the law at all.  Where the possibility of external correction is foreclosed, the objectionable and unobjectionable decisions alike are, inherently, lawless.

Wittgenstein, Private Language, and Secret Law is a post from Cato @ Liberty - Cato Institute Blog

Former Vice President Dick Cheney appeared at AEI today to promote his book and again made the claim that waterboarding detainees is not torture because we use this technique on our own troops. As he put it:

“Another key point that needs to be made was that the techniques that we used were all previously used on Americans,” Cheney went on. “All of them were used in training for a lot of our own specialists in the military. So there wasn’t any technique that we used on any al Qaeda individual that hadn’t been used on our own troops first, just to give you some idea whether or not we were ‘torturing’ the people we captured.”

This isn’t a new argument. Plenty of other folks have argued that, because we subject members of the military to waterboarding in Survival, Evasion, Resistance, and Escape (SERE) School (the military’s POW prep course), waterboarding detainees is not mistreatment.

It’s also a nonsensical argument.

The difference is consent. What one person consents to in one set of conditions does not make the same treatment, without consent and in other conditions, somehow less invasive or less illegal under domestic and international law. I was not waterboarded when I attended SERE school, but I endured treatment I wouldn’t willingly accept in other circumstances. If you want to waterboard me, you’d best be ready for a fight.

Export Cheney’s logic to sex. Consenting adults have sex and it’s legal, enjoyable, and essential to the survival of the species. If you accept the premise that, because you can have sex with someone with consent, it is always legal and moral to have sex with others, you’ve just declared that rape is not a crime.

Setting aside the issue of consent, waterboarding was clearly recognized as a criminal act by the laws of war and domestic statute well before we interrogated KSM. We prosecuted our own soldiers for using controlled drowning (the “water cure” and waterboarding) in the Spanish-American War and in Vietnam. We prosecuted Japanese soldiers for using waterboarding after World War II. We prosecuted a sheriff in Texas for waterboarding confessions out of prisoners.

I wrote a piece for the Los Angeles Times a few months back spelling out how Cheney isn’t arguing with Obama here. He’s reliving a battle he lost within the Bush administration:

The legal framework underlying waterboarding collapsed during President George W. Bush’s tenure. The White House Office of Legal Counsel in 2004 withdrew the memoranda that authorized waterboarding. The Detainee Treatment Act of 2005, sponsored by former POW and torture victim Sen. John McCain (R-Ariz.), barred “cruel, inhuman, and degrading” treatment of any detainee in military custody. There may be an argument that waterboarding isn’t torture, but there’s no argument that it’s not cruel, inhuman and degrading…

The Supreme Court put the nail in the coffin with its Hamdan vs. Rumsfeld decision in 2006. The real import of the ruling was not that Congress had to authorize military commissions (it quickly did) but that the Geneva Conventions apply to the armed conflict with Al Qaeda. The application of the laws of war, which allow broad power to kill your enemy but provide no authority to mistreat him, brought down the legal house of cards that authorized coercive interrogation. Bush issued an executive order the next year that banned the bulk of enhanced interrogation techniques. Obama followed suit with his own order applying stricter military standards to the intelligence community.

Read the whole thing. Read some more on waterboarding and detainees here, here, and here.

Waterboarding, Consent, and Rape is a post from Cato @ Liberty - Cato Institute Blog

My DC Examiner column this week focuses on Barack Obama’s transformation into our National Noodge, nudging, shoving, poking and prodding Americans into healthier lifestyles via the powers of the federal government.

A year ago, the New York Times got all excited about the “new age of regulation” the administration was busy ushering in. The president had elevated “a new breed of regulators”: folks like regulatory czar Cass Sunstein, who wants to “nudge” Americans toward healthier consumption choices, and CDC head Thomas Frieden, who, as NYC health commissioner, proclaimed ”when anyone dies at an early age from a preventable cause in New York City, it’s my fault.”

Today’s column tracks how this killjoy crusade is playing out:

Quitting smoking was “a personal challenge for [Obama],” the first lady explained recently, and she never “poked and prodded.”

Of course not. It’s obnoxious to hector your loved ones. “Poking and prodding” is what good government does to perfect strangers. And that’s what the Obama administration has been doing, with unusual zeal, for the past 2 1/2 years.

You’re not a real president until you fight a metaphorical “war” on a social problem. So, to LBJ’s “War on Poverty” and Reagan’s “War on Drugs,” add Obama’s “War on Fun.” Like the “War on Terror,” it’s being fought on many fronts…

Among them: graphic warning labels for cigarettes; a ban on clove cigarettes and possibly menthols; shutting down online poker sites; banning caffeinated malt liquor; mandatory menu-labeling and ratcheting down allowable sodium levels in food to “adjust the American palate to a less salty diet.” Even healthy “real food” aficionados can find themselves in the crosshairs, as Dan Allgyer, an Amish farmer selling raw milk discovered last month, when FDA agents and federal marshals raided his farm.

Last year, in a remarkably silly column entitled “Obama’s Happiness Deficit,” Washington Post editorial page editor Fred Hiatt wondered whether the president’s political difficulties stemmed from the fact that “he doesn’t seem all that happy being president.” I couldn’t care less whether Obama’s enjoying his job. He asked for it, he got it. But if he isn’t having fun, he shouldn’t take it out on the rest of us.

President Obama’s ‘War on Fun’ is a post from Cato @ Liberty - Cato Institute Blog

If you’re a telecommunications firm that helped the National Security Agency illegally spy on your customers without a court order, Sen. Barack Obama will happily vote for legislation he once promised to filibuster in order to secure retroactive immunity. If you’re implicated in the use of torture as an interrogation tactic, you can breathe easy knowing President Barack Obama thinks it’s in the country’s best interests to “look forward, not back.”  But if you were a government official spurred by conscience to blow the whistle on government malfeasance or ineptitude in the war on terror?  As Jane Mayer details in a must-read New Yorker article, you’d better watch out! This administration is shattering records for highly selective prosecutions under the espionage act—and the primary criteria seems to be, not whether national security was harmed in any discernible way by your disclosures, but by the degree of embarrassment they caused the government.

The whole thing is fascinating, but I’m especially interested in the discussion of how electronic surveillance tools that came with built-in privacy controls were tossed in favor of more indiscriminate programs that, by the way, didn’t work and generated huge cost overruns. The most striking quotations come from disillusioned Republican intelligence officials. Here’s Bill Binney, a top NSA mathematician and analyst, on the uses to which his work was put:

Binney expressed terrible remorse over the way some of his algorithms were used after 9/11. ThinThread, the “little program” that he invented to track enemies outside the U.S., “got twisted,” and was used for both foreign and domestic spying: “I should apologize to the American people. It’s violated everyone’s rights. It can be used to eavesdrop on the whole world.”

One GOP staffer on the House Intelligence Committee recounted an exchange with then-NSA head Michael Hayden:

[Diane] Roark, who had substantial influence over N.S.A. budget appropriations, was an early champion of Binney’s ThinThread project. She was dismayed, she says, to hear that it had evolved into a means of domestic surveillance, and felt personally responsible. Her oversight committee had been created after Watergate specifically to curb such abuses. “It was my duty to oppose it,” she told me. “That is why oversight existed, so that these things didn’t happen again. I’m not an attorney, but I thought that there was no way it was constitutional.” [....] She asked Hayden why the N.S.A. had chosen not to include privacy protections for Americans. She says that he “kept not answering. Finally, he mumbled, and looked down, and said, ‘We didn’t need them. We had the power.’ He didn’t even look me in the eye. I was flabbergasted.”

Remember, these aren’t hippies from The Nation,, or ACLU attorneys, or even (ahem) wild-eyed Cato libertarians. They’re registered Republicans appalled by the corruption of the intelligence mission to which they’d devoted their professional lives.

Top NSA Mathematician: ‘I should apologize to the American people. It’s violated everyone’s rights.’ is a post from Cato @ Liberty - Cato Institute Blog

Osama Bin Laden’s death marks a significant achievement in the fight against al Qaeda. It also highlights the fact that our ostensible objective for continuing the war in Afghanistan has been achieved. Although some lawmakers have been quick to claim that bin Laden’s demise proves that our nation-building mission is showing signs of success, others recognize that this momentous achievement justifies scaling down our presence in Afghanistan. Indeed, rather than expansive counterinsurgency campaigns, targeted counterterrorism measures would suffice.

It is encouraging that Republican members of Congress are questioning the mission. Senator Richard Lugar (R-IN), ranking Republican on the Senate Foreign Relations Committee, expressed his concern yesterday:

[Senator Lugar] said Afghanistan no longer holds the strategic importance to match Washington’s investment. He cited recent comments from senior national-security officials that terrorist strikes on America are more likely to be planned in places like Yemen.

Lugar raised concerns that U.S. policy on Afghanistan is focused more on building up its economic, political and security systems. “Such grand nation-building is beyond our powers,” he said bluntly.

Most poignantly, he summed up the problem as such:

With Al Qaeda largely displaced from the country, but franchised in other locations, Afghanistan does not carry a strategic value that justifies 100,000 American troops and a $100 billion per year cost, especially given current fiscal constraints.

These realities have neither shifted the GOP establishment’s talking points on defense, nor the Obama administration’s “stay-the-course” policy in Afghanistan. Nevertheless, this debate, especially among Republicans, is important. As my Cato colleague Ben Friedman has pointed out in original research, the Tea Party Republicans that swept into office last November may have good instincts, but have done little to shift the overarching debate about the efficacy of nation-building. Perhaps increased calls for rethinking the mission will have to come from senior GOP types like Lugar. As my other Cato colleague, Gene Healy, trenchantly notes, “There was always something odd about conservatives jumping from ‘they hate us because we’re free’ to ‘if we make them free, then they won’t hate us.”

Cato scholars have been making the case for de-escalation from Afghanistan for the past several years. Hopefully, more Republicans will recognize, as most libertarians already do, that it is inconsistent to espouse talk of fiscal responsibility and limited government at home while engaging in social engineering and nation-building abroad. More republicans should recognize that there is nothing conservative about wasting taxpayer dollars on a mission that weakens America economically and militarily. As Cato founder and president Ed Crane has argued, it’s time for the GOP leadership to return to its non-interventionist roots.

Since 9/11, America’s mission in Afghanistan has evolved dramatically. It’s gone from punishing al Qaeda and the Taliban to paving roads and building schools. To imagine that the U.S.-led coalition can create a functioning economy and establish civilian and military bureaucracies through some “government in a box” highlights the ignorance and arrogance of our central planners in Washington.

Let’s hope that the landmark death of Osama bin Laden brings a swift end to our ongoing investment and sacrifice.

Bin Laden’s Death and the Debate over the U.S. Mission in Afghanistan is a post from Cato @ Liberty - Cato Institute Blog

• Osama bin Laden’s death gives us a chance to end what might have become an era of permanent emergency and perpetual war.
• The Cold War ended–what are we doing in Korea?
• Two cheers for President Obama for ending eight (well, three) tax breaks to oil companies.
• Does Osama bin Laden’s death mean an end to U.S.-Pakistan relations?
• Please join us next Tuesday, May 10 at 4:00 p.m. Eastern for a Cato Book Forum on America’s Allies and War: Kosovo, Afghanistan, and Iraq, by University of Mary Washington political scientist Jason W. Davidson. Council on Foreign Relations senior fellow and Georgetown University international relations professor Charles Kupchan will join Professor Davidson in a discussion of the book and its themes, particularly U.S. relations with NATO allies, moderated by Cato director of foreign policy studies Christopher A. Preble. Complimentary registration is required of all attendees by Monday, May 9 at noon Eastern. We hope you can join us in person, but we encourage you to watch online if you cannot attend personally.

Wednesday Links is a post from Cato @ Liberty - Cato Institute Blog

• Habeas corpus applies to anyone, citizen or not, in custody under American law, no matter what President Bush and President Obama decree.
• House Republicans’ cuts to the Department of Education, which will spend over $70 billion next year, didn’t even amount to $1 billion.
• “Regardless of whether Pakistan gets its way, its impudence in pushing Afghanistan to abandon America exposes the real balance of power in the region.”
• “It doesn’t make a lot of sense to refer to a government whose intelligence service assists military efforts by al Qaeda and the Taliban against U.S. troops in Afghanistan as an ‘ally.’”
• Here are five ways to cut military spending today without changing our strategic focus:

Monday Links is a post from Cato @ Liberty - Cato Institute Blog

Today’s Washington Post features an op-ed by John Hopkins’ SAIS professor Eliot Cohen arguing – via a series of fictional statements — that the Obama team’s decision to speak with Bob Woodward is likely to have a devastating impact on our ability to win in Afghanistan and elsewhere.

The technique is too cute by half. I could just as easily come up with a series of quotes by people who believe that the costs of the war in Afghanistan far exceed the benefits. (e.g. The widow of a soldier killed in Afghanistan, upon reading the Woodward excerpts, bursts into tears. “Why have we chosen to fight a war that Gen. Petraeus admits we will likely never win, and which our children and grandchildren will be fighting?”)

By the same token, Cohen employs Mahmoud Ahmadinejad and Benjamin Netanyahu to make his case that Obama is weak. How hard would it be to make up fictional statements by two other heads of state — say, by allies who have pulled out of Afghanistan, or are preparing to — that they are encouraged to see that someone in the U.S. government recognizes that the war in Afghanistan is a gross misallocation of resources and is looking for ways to refocus counterterrorism efforts, and away from a decades-long nation-building mission that is likely to fail? Not hard.

But I refuse to play Cohen’s game according to his rules. Better to focus on the flaws of his underlying argument — to the extent that there is one — that the reason we aren’t winning this/these war/wars is because the president’s aides are talking out of school. If they just shut up, and did what the generals said (some of whom, by the way, must also be talking to Woodward) we’d be on the road to victory.

Please.

As with an earlier Afghanistan story that began with a few ill-considered remarks to a reporter, we shouldn’t be focused on the fact that people talk off the record. That is the story that Cohen and other war-hawks tell. The more important story is that the Afghan strategy is fatally hamstrung by 1) an unreliable local partner, a necessary ingredient for any successful counterinsurgency campaign; 2) a profound lack of trust between the Afghan people and the American/NATO counterinsurgents; and 3) a complete mismatch between the ends sought and the resources (time, money, troops) available.

I have no idea how Cohen responds to points one and two. Those two problems are not unique to Afghanistan, and the absence of those two conditions has doomed many other counterinsurgency missions.

As for number three, Cohen might believe that talking about victory will convince the American people that they should back the military’s preferred strategy, which OMB said would cost $889 billion over the next 10 years (on top of the $250+ billion already spent), as the best possible use of money that we do not have. Indeed, Cohen has apparently convinced himself that the American people would be anxious to spend another ten or twenty years bogged down in a distant land trying to rebuild roads and schools, if only the president talked about it more often. Cohen might even believe, contrary to all evidence, as well as basic common sense, that the U.S. government is capable of creating a functioning nation state in Afghanistan, and that it constitutes a vital U.S. national interest to make that happen.

In short, Eliot Cohen believes that President Obama shouldn’t question how the Afghan mission aligns with our vital security interests, or even if it is achievable. He’d rather that he just shut up, believe in it — really believe –and back the generals.

I disagree. Where Cohen scorns (via proxies spouting imagined off-the-record quotes) internal administration deliberations as dangerously misguided, I am perversely encouraged that the president seems at least willing to ask hard questions, and that some of his advisers understand the utter futility of the current enterprise.

Of course, I’d be even happier if President Obama did what past presidents have done: determine the strategy, give the order, and expect the military to carry it out. And if the military leaders that he has won’t do it, he can find others. There are lots of them.

Eliot Cohen’s Key to Victory: Shut Up is a post from Cato @ Liberty - Cato Institute Blog

Earlier this year, both The New York Times and The Washington Post confirmed that the Obama administration authorized the CIA to kill American-born, Yemeni-based Islamic cleric, Anwar al-Awlaki.

Several people I admire and respect—and who are far more versed in the legal aspects of the “war on terror”—have already weighed in on whether the U.S. Government is authorized to kill U.S. terror suspects abroad, so I defer to those experts.

But what’s interesting is that the U.S. Government has killed “many Westerners, including some U.S. passport holders” in Pakistan’s tribal areas dating all the way back to the Bush administration, according to Bob Woodward’s new book.

Jeff Stein over at WaPo’s SpyTalk writes that according to Woodward, on November 12, 2008, then-CIA Director Gen. Michael Hayden disclosed the killings to Pakistani president Asif Ali Zardari during a meeting in New York. At the meeting, Zardari allegedly said, “Collateral damage worries you Americans. It does not worry me.”

It now appears that two human rights groups are challenging the legality of the Obama Justice Department’s right to kill U.S. citizens abroad. Will these groups now do the same with former Bush officials, too?

‘Collateral damage worries you Americans. It does not worry me.’ is a post from Cato @ Liberty - Cato Institute Blog

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:

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?

Obama, Civil Liberties, & the Left is a post from Cato @ Liberty - Cato Institute Blog

This week the U.S. Supreme Court declined to hear the appeal of Maher Arar, a dual-citizen of Syria and Canada who was seized by U.S. agents in September 2002 and deported to Syria under a policy of “extraordinary rendition.” Arar claims that Syrian agents tortured him for a year before letting him go. 

Glenn Greenwald, Dahlia Lithwick, and Talkleft discuss the case and related issues.

Maher Arar is a post from Cato @ Liberty - Cato Institute Blog

Tony Blankley, former press secretary to Speaker of the House Newt Gingrich, exults in the Washington Times that Americans are waking up “to our heritage of freedom” and to the abuse of the Constitution:

All the following acts have suddenly awakened Americans to their Constitution: (1) The nationalization of car companies and banks; (2) the subordination of the car companies’ legal bondholders to union bosses; (3) the creation of trillion-dollar slush funds (the stimulus package) used for, among other purposes, the corrupt purchase of congressional votes; (4) the mandating of individual health insurance purchase against the will of Americans; (5) the attempt to have Obamacare “deemed” to have been enacted, rather than actually publicly voted on by Congress.

Amazingly, spontaneously, Americans are educating themselves about the details of our Constitution.

He’s absolutely right. All those actions do raise serious questions about whether there are still any constitutional limitations on government, which is to say, whether the Constitution is still in effect, questions that Roger Pilon also raised this week in the Christian Science Monitor. But it would be even better if Americans had noticed the threats to constitutional government a bit earlier, if not during the New Deal or the Great Society, then perhaps during the past decade when, as Gene Healy and Tim Lynch wrote in 2006:

Unfortunately, far from defending the Constitution, President Bush has repeatedly sought to strip out the limits the document places on federal power. In its official legal briefs and public actions, the Bush administration has advanced a view of federal power that is astonishingly broad, a view that includes

• a federal government empowered to regulate core political speech—and restrict it greatly when it counts the most: in the days before a federal election;
• a president who cannot be restrained, through validly enacted statutes, from pursuing any tactic he believes to be effective in the war on terror;
• a president who has the inherent constitutional authority to designate American citizens suspected of terrorist activity as “enemy combatants,” strip them of any constitutional protection, and lock them up without charges for the duration of the war on terror— in other words, perhaps forever; and
• a federal government with the power to supervise virtually every aspect of American life, from kindergarten, to marriage, to the grave.

President Bush’s constitutional vision is, in short, sharply at odds with the text, history, and structure of our Constitution, which authorizes a government of limited powers.

But better late than never, and we join Tony Blankley in hoping that the Constitution’s limits on the powers of the federal government will once again be an issue in American politics and governance.

Waking Up at Last is a post from Cato @ Liberty - Cato Institute Blog

In the government of this commonwealth… the executive shall never exercise the legislative [or] judicial powers… to the end it may be a government of laws and not of men. — The Constitution of Massachusetts, 1780, drafted by John Adams, Samuel Adams, and James Bowdoin

In contrast, consider today’s news:

The Obama administration has taken the extraordinary step of authorizing the targeted killing of an American citizen, the radical Muslim cleric Anwar al-Awlaki, who is believed to have shifted from encouraging attacks on the United States to directly participating in them, intelligence and counterterrorism officials said Tuesday.

Americans, this is what arbitrary government looks like. As a simple matter of fact, even George III was never this arbitrary. Even he didn’t make individual colonists’ lives depend merely on an act of his own will.

Indeed, if I wanted a perfect example of what a government of men, not laws, looked like, I could just glance at the newspapers today and see what our government is doing right at this moment.

Do not respond that this power will only be used wisely and sparingly. Doing so just admits my basic point, namely that we now depend purely on the wisdom and restraint of our individual leaders. We depend on their wisdom and restraint — to check their own worst impulses. All power, both for and against, is contained in one individual. No legal processes, and no guarantees, separate us from them. And the stakes are life or death.

Likewise, do not respond that this power will only be used against very bad people. Again, doing so just admits that we now depend on an unreviewable judgment of character, not on a legal system with formal procedures and safeguards. Even in the dark days of the Cold War — even during the Revolution itself — we never ceded so much power to so few.

To those who think our leaders’ prudence is a sufficient check on their own power, consider this. Let’s both grant that Barack Obama is basically a decent, well-meaning guy (apart from the fact that a decent, well-meaning guy would never want a power like this). If he’s a decent guy, then perhaps he’ll use his newly claimed power wisely, insofar as such an atrocious power can be used wisely. But on the other hand, if I were truly evil, and if I wanted to assassinate with impunity all the people I hated… Suddenly now I’d be very interested in running for president.

Glenn Greenwald has a lot more on the issue, including evidence that Barack Obama was apparently against this power… before he was for it.

A Government of Laws, Not Men is a post from Cato @ Liberty - Cato Institute Blog

In recent weeks, conservatives have worked themselves into a self-righteous lather over how the Obama administration handled the would-be Christmas bomber.  It’s a complaint you could hear again and again at last weekend’s Conservative Political Action Conference: Mirandizing the 23-year-old Nigerian Muslim was a big mistake, the story goes, because it denied us valuable intelligence, and it’s just so typical of Barack Obama’s callow, weak, law-enforcement-oriented approach to the terrorist threat.

As a constitutional matter, I’ve never been entirely comfortable with the Miranda decision, which smacks of judicial lawmaking, and I don’t think liberty stands or falls on whether one failed terrorist got read his rights.  In fact, I think Mirandizing Abdulmutallab was a pretty silly thing to do.  The administration could and should have continued to question him and gather intelligence (and it’s not as if you’d need his statements to convict when there were scads of witnesses aboard the plane).

Nonetheless, I still find it hard to see all the hubbub as much more than manufactured partisan outrage.

After all, Richard Reid, the failed shoebomber of December 2001, was Mirandized repeatedly by George W. Bush’s FBI, who, rather than questioning him for 50 minutes, read Reid his rights as soon as the Massachusetts staties handed him over. That was barely two months after the largest terror attack in American history, at a time when we had good reason to fear that the terrorist threat was far greater than it now appears to be.  Somehow, though, I don’t recall hearing quite as much wailing and gnashing of teeth from the Right back then. Moreover, outside of the special pleading of former Bush officials, there’s little evidence that Bush would have handled the situation much differently even if it happened much later in his tenure as president.

We’re told that the Christmas Bomber’s treatment reveals Obama’s pusillanimous new paradigm for the War on Terror. But  virtually anyone who’s taken a serious look at Obama’s terrorism policies has concluded they differ from Bush’s mainly in terms of rhetoric, not substance. You can love the Bush approach or hate it, but if you’re drawing a sharp distinction between his policies and Obama’s, you’re misinformed at best.

Jack Goldsmith, the former head of the Bush administration’s Office of Legal Counsel, notes that the

premise that the Obama administration has reversed Bush-era policies is largely wrong. The truth is closer to the opposite: The new administration has copied most of the Bush program, has expanded some of it, and has narrowed only a bit. Almost all of the Obama changes have been at the level of packaging, argumentation, symbol, and rhetoric.

For instance, Goldsmith notes, the Obama team “has embraced the Bush view that, as a legal matter, the United States is in a state of war with al Qaeda and its affiliates, and that the president’s commander-in-chief powers are triggered.” Moreover, Obama’s Justice Department “filed a legal brief arguing that the president can detain indefinitely, without charge or trial, members of al Qaeda, the Taliban, ‘associated forces,’” et al.

The abortive plan to try Khalid Sheik Mohammed near Ground Zero has to count as Obama’s dumbest political move since he tried to strongarm the Olympic Committee.  But it hardly constitutes a repudiation of the Bush approach to terrorism. When the Bush Team was confident of winning, they tried terrorists in civilian courts — including Zacarias Moussaoui, the would-be 20th hijacker (tried and convicted in Alexandria, so horrifyingly close to the Pentagon!). And since the Obama Team continues to use military tribunals, and reserves the right to imprison KSM indefinitely in the unlikely event he’s acquitted, it’s pretty hard to see their plan for selected civilian trials as a departure from Bush-Cheney — much less an attempt to curry favor with the ACLU.

James Carafano, the Heritage Foundation’s homeland security guru, isn’t the sort of guy who carries water for Barack Obama, but he recently told the New York Times

“I don’t think it’s even fair to call [Obama’s policies] Bush Lite. It’s Bush. It’s really, really hard to find a difference that’s meaningful and not atmospheric.”

Atmospherics seem to matter a great deal to GOP partisans these days, though. Asked what specific policies Obama could adopt to reassure supposedly terrified Americans, Peter King, the ranking Republican on the House Homeland Security Committee (formerly R-Derry), could do no better than: “I think one main thing would be to — just himself to use the word terrorism more often.”

The essence of King’s complaint seems to be that, policies aside, Obama isn’t stoking fear enough, isn’t talking tough enough, and seems reluctant to act the part of “the strong father who protects the home from invaders.” Forgive me if I’m unmoved.  Thus far the discussion serves to remind one of the fact that, though Republicans talk a good game about reducing the size of government, when the rubber meets the road, they repair to reliable political gambits that allow them to duck the hard choices: flag-burning amendments, the Pledge of Allegiance, Terry Schiavo, and the like.

If you’re sincerely concerned about the best way to handle terrorist suspects in the United States, then trying to score cheap political points isn’t the best way to start the conversation.

The Red Team’s Spin on The Christmas Bomber is a post from Cato @ Liberty - Cato Institute Blog

Today Politico Arena asks:

Terror suspects: Eric Holder’s defense (nothing new here)–agree or disagree?

My response:

Holder on the Hot Seat is a post from Cato @ Liberty - Cato Institute Blog

Today, Politico Arena asks:

Terror trials: Is it time for the administration to retreat and rethink? Is it generally mishandling the terrorism issue?

My response:

On no issue is President Obama getting acquainted with reality more clearly than terrorism, or so it seems.  He blazed into office, guns holstered, as the anti-Bush, putting Eric Holder’s Justice Department in charge, not of the War on Terror, a phrase he banished from his administration’s lexicon, but of “bringing those who planned and plotted the [9/11] attacks to justice,” as Holder put it in November when he announced that Khalid Sheikh Mohammed and four others would be given civilian trials in downtown Manhattan.  But as the manifold costs of such a trial became increasingly apparent, and as even New York Democrats have grown increasingly restive, the White House, it seems, has backed down.  We await the line of congressmen saying “Bring the trial to my district.”

How could it be otherwise?  The administration’s law-enforcement approach to terrorism has been unserious and folly from the start.  In an understated yet devastating piece in yesterday’s Washington Post, former CIA director Michael V. Hayden cataloged that folly, nowhere more evident than in the FBI’s handling of the would-be Christmas Day bomber, who was Mirandized and lawyered up long before he could be seriously interrogated by agents with the background to elicit the intelligence we need — not to prosecute terrorists, but to prevent future terrorist attacks.  The most telling revelation in Hayden’s piece came at the end, however.  In August, the government unveiled its High Value Detainee Interrogation Group (HIG) designed to interrogate people like the Christmas Day bomber, and it announced also that the FBI would begin questioning CIA officers about alleged abuses in the 2004 inspector general’s report.  Was the HIG called in to interrogate the Christmas Day bomber?  No — it has yet to be formed.  But the interrogations of CIA officers are proceeding apace.  So much for the administration’s priorities.  Is it any wonder that Scott Brown’s pollsters report that terrorism, and the administration’s mishandling of the issue, polled better even than Brown’s opposition to ObamaCare?

Manhattan Says No to Terror Trials is a post from Cato @ Liberty - Cato Institute Blog

• Nancy Pelosi: “The power of Congress to regulate health care is essentially unlimited.”

• Since August 2008 the monetary base (bills in circulation plus bank credits at Federal Reserve banks) has increased by 137%. If not defused, this bomb will eventually explode into inflation.

• Federal spending  just pushed the government’s debt over $12 trillion. Spending has soared so high that 40 percent of this year’s budget will be funded by borrowing.

• What the NFL can teach us about the War on Terror.

• Podcast: “The Rule of Law and the Fed“

Monday Links is a post from Cato @ Liberty - Cato Institute Blog

Former New York City mayor Rudy Giuliani appeared on Fox News Sunday this weekend to argue against the Obama administration’s plan to try some alleged terrorists in New York courts. He did not acquit himself well.

Giuliani argued, for example, that criminal defendants aren’t tried “at the scene of the crime.” Criminal defendants are almost always tried in the jurisdictions where their crimes took place (not at the actual crime scene, of course). Giuliani’s insistence on misstating basic criminal procedure showed that he was twisting to score points against the administration. This is inappropriate political use of terrorism issues.

But Chris Wallace roasted Giuliani—with quotes from Rudy Giuliani. Of prosecuting the 1993 World Trade Center bombers, Giuliani said: “[Y]ou put terrorism on one side, you put our legal system on the other, and our legal system comes out ahead.” Giuliani said that the trial of Zacharias Moussaoui shows “that we can give people a fair trial, that we are exactly what we say we are. We are a nation of law.”

As he did during his failed presidential campaign, Giuliani appears caught in a terror-warrior time warp. He criticized the Obama administration for eschewing the regrettable phrase “war on terror,” and he betrayed no awareness of what has dawned since 9/11 on the rest of the country: Terrorism seeks overreaction on the part of victim states. Cool, phlegmatic prosecution of terrorists deprives them of rhetorical victories that empower them by drawing others to their side.

The Remnants of “War on Terror” is a post from Cato @ Liberty - Cato Institute Blog

• The War on Terrorism ends; and the winner is… China.

• Fairness Doctrine 2.0: How the government is finding new ways to regulate media.

• Don’t miss Cato’s 27th annual Monetary Conference Thursday, November 19th.

• New Hampshire state government guaranteeing loans to help bail out a local newspaper.

• Podcast: “Atomic Obsession:” When threats are exaggerated, what’s the cost? John Mueller, author of Overblown: How Politicians and the Terrorism Industry Inflate National Security Threats, and Why We Believe Them, comments.

Thursday Links is a post from Cato @ Liberty - Cato Institute Blog

In the New York Times this weekend, columnist Thomas Friedman wrote, “[W]e may be tired of this ‘war on terrorism,’ but the bad guys are not. They are getting even more ‘creative.’”

On September 26th, the New York Times reported in a story by Scott Shane:

Many students of terrorism believe that in important ways, Al Qaeda and its ideology of global jihad are in a pronounced decline — with its central leadership thrown off balance as operatives are increasingly picked off by missiles and manhunts and, more important, with its tactics discredited in public opinion across the Muslim world.

Who’s right? Should we be more concerned or less?

Well, the statements are not inconsistent. But unlike the analysts cited in the news story, columnist Friedman uses loaded terms and broad generalizations like “war on terror”, “bad guys”, and “creative” to misconstrue the nature of the terrorist threat.

Friedman says “war” a dizzying seventeen times in his short column, misdescribing the many different efforts that go into suppressing terrorism, dissuading terrorist recruits, and capturing or killing terrorists.

He lumps all terrorists together as “bad guys” despite expert counsel against assuming they have similar aims and motives, or that they collaborate.

And “creative”?—well, putting a bomb in your keister is creative, but it is not an effective way to harm anyone other than yourself.

But don’t jump to the wrong conclusion. The point is not to dismiss terrorism as a threat. It’s to know that terrorists are fallible, al Qaeda is on the wane, and law enforcement is on the case. In terrorism, we are not confronted by anything close to an existential threat.

Friedman’s column is a reach, and it does a distinctly bad job of working with any of these subtleties. (The only reason I feel compelled to call them “subtleties,” I suppose, is because they seem to remain beyond the grasp of an otherwise intelligent and thoughtful New York Times columnist.)

NYT Columnist, Meet NYT Reporter is a post from Cato @ Liberty - Cato Institute Blog