Free Markets, Free People

Crime

The Case Against “Not Enough Regulation” Causing Financial Meltdown

The case against?

Bernie Madoff, of course.  A man who bilked investors of some 80 plus billion dollars over a couple of decades knew how to fool the regulators and was not shy about passing on that information to those who worked for him.

Money quote (no pun intended):

“You know, you don’t have to be too brilliant with these guys because you don’t have to be …”

Apparently the regulation regime, which should have easily have caught Madoff, failed too because regulators got to cozy with him:

“The guys . . . ask a zillion different questions and we look at them sometimes and we laugh, and we say, ‘Are you guys writing a book?’ ” he said.

“These guys, they work for five years at the commission then they become a compliance manager at a hedge fund now.”

Yeah – we need more regulations. That’s the ticket. More. That’ll fix it.

The regulations were there – the regulators, however, failed to enforce them. My guess is that a close examination of why we ended up in the financial pickle we did had less to do with the lack of regulation and more to do with what let Bernie Madoff skate for so long – a criminal lack of oversight by regulators as authorized by law.

~McQ

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What If Chappaquiddick Had Happened Today?

Eric Zorn does a little “what if” in the Chicago Trib, wondering if Ted Kennedy could have survived Chappaquiddick in today’s news environment.

If we’d had insatiable 24/7 cable news networks in July 1969, the accident on Chappaquiddick Island in which a passenger in a car driven by Sen. Edward Kennedy drowned would likely have dominated the national consciousness for months.

Zorn then proceeds from the premise that Kennedy’s life and work after that event make the point that it is a good thing we didn’t have the 24/7 news cycle because we’d have lost a giant among legislators.

Of course, you have to accept his premise that Kennedy’s life and work after Chappaquiddick were worthwhile to sign on to the premise. I, for one, don’t.

I mean this is a guy who, as he schemed to figure out a way to become president, tried to make a deal with the General Secretary of the Soviet Union, Yuri Andropov, to undermine Ronald Reagan and gain politically.

So there are probably just as many out here who might have welcomed such coverage if it had had the desired effect of running Kennedy out of public life.

“Politically, Kennedy wouldn’t have survived that kind of media bombardment,” said Bruce DuMont, president of Chicago’s Museum of Broadcast Communications and host of “Beyond the Beltway,” a national weekly talk-radio show. “It wouldn’t have just been a spotlight, it would have been a heat lamp. On him, on all the investigators, on everyone connected to the story.

The cable networks turned Scott and Laci Peterson into household names, DuMont said. “Just think what they would have done with Ted and Mary Jo. Remember all the coverage they gave to the [1999] plane crash that killed John F. Kennedy Jr.? Multiply that by 10.”

Two things argue against this scenario. One – Scott and Laci Peterson didn’t have the upper hand with an adoring media. The Kennedys have always seemed larger than life because the media made them that way. One also has to remember the media of the time knowingly covered up brother Jack’s infidelity. 24/7 news coverage or not, that same sort of mentality was at work with any Kennedy. Expecting a critical look at this particular event is simply not something one can assume – especially given the fact that it never really got it at the time.

Two – Ted Kennedy was shameless. There was nothing that would run him out of public life, to include his cowardly act which led to the death of Mary Jo Kopechne. Had it been otherwise, the facts surrounding the incident at Chappaquiddick and the amount of coverage it did receive should have been sufficient to do what Zorn claims only 24/7 coverage would have accomplished now. But Kennedy waved it off, ignored it and plowed on.

So while I find Zorn’s point about today’s news cycle (and talk radio) to be interesting, I also find it to be a flawed rationalization for keeping certain bad actors in place supposing that some will become “Ted Kennedys” if we don’t run them off. In fact, he says as much:

Or, as I believe, is the nation — particularly our disabled and disadvantaged residents — better off for the 40 years of service he was able to render after that terrible night?

The momentary satisfaction of destroying Ted Kennedy for his failings would have had a significant price. Something to keep in mind when the next fallen figure, Democrat or Republican, stumbles into the heat lamp.

Zorn’s argument is that justice delayed or belayed might turn out for the better in some cases. That’s an incredibly silly notion. And again you have to agree with the premise that Kennedy’s “40 years of service” were worth Kopechne’s life. Zorn is arguing it is. And he’s not the only one.

Joyce Carol Oates attempts to push the very same premise under a different guise:

His tireless advocacy of civil rights, rights for disabled Americans, health care, voting reform, his courageous vote against the Iraq war (when numerous Democrats including Hillary Clinton voted for it) suggest that there are not only “second acts” in American lives, but that the Renaissance concept of the “fortunate fall” may be relevant here….Yet if one weighs the life of a single young woman against the accomplishments of the man President Obama has called the greatest Democratic senator in history, what is one to think?

One is to think that there isn’t equal justice for all, that some are more privileged and apparently valuable than others. And certainly any future accomplishments, if good, are simply pure luck, even if you agree they’re “good” . We have no way to look into the future and decide that someone will contribute to society in a grand way.

But we can look into the the interior of a ’67 Oldsmobile, see a woman left to drown through the sheer cowardice of the driver who was more concerned about his political career than her life, and draw certain conclusions then.

To some, such as Zorn and Oates, they see a redeemed person who did well with the second chance. Others, such as myself, see such thinking as rationalization for making an exception of Kennedy where they wouldn’t make one for anyone else (despite the lip service). “Second acts” or second chances, where I come from, occur after a price has been paid for the act in question. Kennedy never paid that price.

What Zorn and Oates are really saying here is since it turned out well in their opinion, the ends justify the means. As I see it that’s not justice, it’s elitism on steroids.

~McQ

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Darn Right-Wing Militias

Via The Jawa Report, a little “domestic terrorism” update. First St. Louis:

A federal search warrant obtained by the Post-Dispatch connects a former Democratic campaign strategist to a Clayton bombing last year that seriously injured an attorney.

About two months after the October bombing, federal law enforcement officials searched the downtown loft of Milton H. “Skip” Ohlsen III, seeking “evidence related to the planning, execution, and/or cover-up of the bombing in Clayton, Missouri, on October 16, 2008.” Ohlsen in recent weeks has been at the center of a swirling political scandal that is threatening the political careers of at least two Missouri Democratic legislators.

Then, Austin, Texas:

A Texas woman faces trial this month in Austin on charges she threatened to kill a government informant who infiltrated an Austin-based group that planned to bomb the Republican National Convention in St. Paul, Minn., last fall…

…Crowder and McKay were part of a group of activists that had gone to the Twin Cities to take part in street demonstrations. The FBI had infiltrated the group with Darby. Crowder and McKay built eight of the gasoline firebombs but didn’t use them, a fact law enforcement officials credited to Darby.

Members of the Austin protest community heaped scorn on Darby, saying he had betrayed longtime friends and colleagues.

I’m headed over to the Southern Poverty Law Center’s website to see what they have to say about these right-wingers and their hate crimes …. oh, wait …

~McQ

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An Interesting But Apparently Obscure Health Care Fact

One of the questions constantly posed as the debate over health care insurance reform rages is, “if we have such a great health care system, why is our life expectancy lower than countries with socialized care?”

Well apparently it is our propensity to murder each other and die in car accidents which obscures the fact that with those factored out, we actually enjoy the longest life expectancy. James Joyner provides the numbers and a handy little chart.

But the bottom line is when you remove homicide and car crashes, we jump from number 15 with a life expectancy of 75.3 to number 1 with a life expectancy of 76.9.

So we must be doing something right in the medical field wouldn’t you say – certainly more so than anyone else if you want to hang your hat on life expectancy data that only focuses on what medicine can help.  Drive safely and avoid getting on the losing side of a gun fight and you can expect to be around for longer than any of those in the so-called “more advanced” countries.

And, as Dodd points out, there’s even a way to improve the homicide numbers:

Homicide, however, we could impact immediately and irrevocably right now simply by decriminalizing most (or all) currently illegal drugs. Remove the artificial, government-created scarcity, and the profits and incentive to engage in underworld violence that goes with it, and the homicide rate would fall significantly. More of our young men would survive to middle adulthood, hundreds of thousands of prisoners would be freed (or never created) to engage in productive work, and our life expectancy at birth would jump immediately and permanently. All without the government having to nationalize one-sixth of the economy and expropriate trillions more dollars from the private sector to pay for the hope that the outcome will be improved.

He’s right, of course – remove profit, remove incentive. The drug market today is a government created market. And it reacts to the distorted incentives prohibition introduces into such a market.

We know how to regulate such markets legally. We do it fairly successfully with alcohol. And we don’t have booze gangs shooting it out in turf wars or finding bunches of bodies from bootleg deals gone wrong.

Why we don’t consider reform in this area is beyond me. Life expectancy numbers would certainly see an increase if we did. So would our freedom and liberty numbers.

~McQ

Racism and Crying Wolf

As we discussed on the last podcast, as well as in various posts here at QandO, the biggest missed opportunity in the whole Gates kerfuffle was to draw attention to the civil liberties issues. By immediately crying racial profiling, Prof. Gates clouded an otherwise sympathetic view of his standing as a homeowner. Of course, if he hadn’t behaved the way that he did (calling Sgt. Crowley a racist cop), then he likely would never had been arrested in the first place. Nevertheless, what we should have taken from the l’affair Gates was that scenes such as the following are all too familiar:

Pepin Tuma, 33, was walking with two friends along Washington’s hip U Street corridor around midnight Saturday, complaining about how Gates had been rousted from his home for not showing a proper amount of deference to a cop. “We’d been talking about it all day,” said Tuma. “It seems like police have a tendency to act overly aggressively when they’re being pushed around,” Tuma recalled saying.

Then the group noticed five or six police cruisers surrounding two cars in an apparent traffic stop on the other side of the street. It seemed to Tuma that was more cops than necessary.

“That’s why I hate the police,” Tuma said. He told the Huffington Post that in a loud sing-song voice, he then chanted, “I hate the police, I hate the police.”

One officer reacted strongly to Tuma’s song. “Hey! Hey! Who do you think you’re talking to?” Tuma recalled the officer shouting as he strode across an intersection to where Tuma was standing. “Who do you think you are to think you can talk to a police officer like that?” the police officer said, according to Luke Platzer, 30, one of Tuma’s companions.

Tuma said he responded, “It is not illegal to say I hate the police. It’s not illegal to express my opinion walking down the street.”

According to Tuma and Platzer, the officer pushed Tuma against an electric utility box, continuing to ask who he thought he was and to say he couldn’t talk to police like that.

“I didn’t curse,” Tuma said. “I asked, am I being arrested? Why am I being arrested?”

It should come as no surprise that, in fact, Tuma was arrested on a charge of ‘disorderly conduct”:

D.C.’s disorderly conduct statute bars citizens from breaching the peace by doing anything “in such a manner as to annoy, disturb, interfere with, obstruct, or be offensive to others” or by shouting or making noise “either outside or inside a building during the nighttime to the annoyance or disturbance of any considerable number of persons.”

[...]

Tuma spent a few hours in a holding cell and was released early Sunday morning after forfeiting $35 in collateral to the police, he said. A “post and forfeit” is not an admission of guilt, and Tuma doesn’t have a court date — but the arrest will pop up if an employer does a background check.

So, adding insult to injury, Tuma gets arrested for expressing his opinion on a public street, spends the night in jail, and then is “legally” pickpocketed by the police. This is a problem, just as it was with the Gates mess, and is the real issue that should be discussed.

Forget racial profiling and other obscurants for a moment and contemplate just how much power has been granted to the police here. Is that a wise decision? Surely we want the police to be able to use their judgment in a given situation, but when a law is drafted so broadly as to provide cover when a cop feels insulted then such law flies in the face of constitutional protections.

Furthermore, situations like this really undermine the concept of police being “professionals”. Having the power to arrest someone because they get a little mouthy is not a power any real professional should want or need. Being a professional means being able to negotiate the situation through one’s abilities, not through one’s grant of extraordinary power. I mean, could you imagine if lawyers had the ability to throw people in clink for insulting them? Who would be safe?

The fact of the matter is that there are just too many laws to begin with. Cut down on number if infractions cops are expected to enforce, and you will cut down on the number of incidences where the police overstep their authority. When the only thing in danger is a cop’s feelings, then I think it’s safe to say that incarcerating anyone is a monumental waste of time and resources that could be better spent going after real criminals.

Chips, Skips and Apologies

Justified anger is a wonderful thing. It allows one to act like a complete ass with little, if any, impunity. For example, I recall once while backpacking my way through Egypt when a taxi driver I made a deal with for a ride ditched me for some other riders. We were in a sleepy, seaside town on the Sinai peninsula, separated by several miles of harsh desert terrain from the local bus stop. The driver wanted to maximize the trip, understandably, and sought out a few more riders (there was only two of us) before leaving. Of course, when he returned the taxi was full and we were left without a ride, stranded in Dahab. Needless to say, I was a bit miffed.

Luckily, I had consulted my trusty, Harvard-drafted “Let’s Go: Egypt” prior to entering the country, which suggested throwing a loud and boisterous fit if put in a situation where you are likely being cheated. So, I did. And it worked like a charm. I threw luggage, cursed at the top of my lungs, and glared menacingly at the taxi driver causing him to quickly exit the situation as a crowd of onlookers gathered. But suddenly, something wonderful happened; the crowd sympathized with my plight, took me under their care, and within a few minutes I was being treated to warm food, cold drink and a new taxi (driven by someone’s cousin as I recall) was summoned to take us on our journey. By acting like a spoiled child, just because I was screwed out of a ride, I was treated as a victim in need of comfort, and not a damned fool in need of discipline.

My tantrum was quite effective and confirmed to me that “justifiable anger” is a powerful, and intoxicating, thing. It is the “castle doctrine” of emotional responses which places blame for any incident squarely on the shoulders of the instigator, leaving you with unquestioned moral authority. However, like any intoxicant, it also tempts overuse and abuse.

Gates being arrested at his home

Gates being arrested at his home


By now you are probably aware of Dr. Henry Louis “Skip” Gates, Jr.’s arrest in Cambridge, Massachusetts. What should have been a non-story became a huge imbroglio because of Dr. Gates’ stature, and the media’s endless pursuit of “Racism in America” stories. Even so, it was likely on its way to dying on the back pages of Boston newspapers until Pres. Obama resurrected it with his rather careless and admittedly ill-informed denunciation of the police officer involved.

After spending most of an hour patiently reiterating his arguments for changing the health insurance system, President Barack Obama turned his press conference sharply toward an iconic moment in American race relations: The arrest of Harvard professor Henry Louis Gates Jr. earlier this week by the Cambridge Police.

[...]

“I don’t know – not having been there and not seeing all the facts – what role race played in that, but I think it’s fair to say, number one, any of us would be pretty angry; number two that he Cambridge police acted stupidly in arresting somebody when there was already proof that they were in their own home,” Obama said in response to a question from the Chicago Sun-Times’s Lynn Sweet.

Gates, Obama allowed, “is a friend, so I may be a little biased here. I don’t know all the facts.”

In other words, despite not knowing all the facts, the President decided to weigh in anyway on the side of his friend and to assume the worst about the police. Unfortunately, Obama is not alone in his ignorance or willingness to castigate someone without questioning the actions of Dr. Gates.

Chips

If anything is clear about the situation, it is that escalation was not necessary and could easily have been avoided. Dr. Gates apparently has a huge chip on his shoulder with respect to white cops, in the very least, and reacted poorly to Sgt. Crowley following up on a breaking and entering call. Indeed, Pres. Obama, among many others, opined that Gates was perfectly justified in being angry (“but I think it’s fair to say, number one, any of us would be pretty angry”) because he was being accused of robbing his own house.

Yet such reaction completely ignores the reason for Crowley being there in the first place: to protect Dr. Gates’ house. Why would a policeman acting in defense of Dr. Gates’s own home upset him? Because Dr. Gates has a huge chip on his shoulder and succumbed to that sweet temptation of justifiable anger to grab the moral high ground. In doing so, he elided right past the justifications for Crowley’s visit, as well as his questions, and instead went right into victimization mode.

Crowley, for his own part, also seems to be carrying a chip or two. One, that is not uncommon to policemen, appears to be a distinct aversion to challenges to his authority. After all, yelling at a cop in your own front yard hardly seems like a criminal offense. In addition, and more understandably, Crowley carries a big chip on his shoulder regarding being called a racist. Here’s why:

The Cambridge cop prominent Harvard University professor Henry Louis Gates Jr. claims is a racist gave a dying Reggie Lewis mouth-to-mouth resuscitation in a desperate bid to save the Celtics [team stats] superstar’s life 16 years ago Monday.

“I wasn’t working on Reggie Lewis the basketball star. I wasn’t working on a black man. I was working on another human being,” Sgt. James Crowley, in an exclusive interview with the Herald, said of the forward’s fatal heart attack July 27, 1993, at age 27 during an off-season practice at Brandeis University, where Crowley was a campus police officer.

It’s a date Crowley still can recite by rote – and he still recalls the pain he suffered when people back then questioned whether he had done enough to save the black athlete.

“Some people were saying ‘There’s the guy who killed Reggie Lewis’ afterward. I was broken-hearted. I cried for many nights,” he said.

Surely someone who faced such criticism, despite administering his best efforts, is going to be a little sensitive to being called a racist. I wouldn’t be surprised if “oh no, here we go again” was the primary thought running through Crowley’s mind while Gates was delivering his tirade.

Unfortunately, Crowley’s chips may have caused him to ignore the obvious (if unwarranted) source of Gates’ ire, and instead to grab for that justifiable anger high ground himself. The end result is that a normally routine procedure becomes a huge production that serves the interests of no one.

Skips

Of course, to be fair, Gates’ reaction was quite confusing to the officer.

Consider for a moment, how you would assess the situation had you been in Crowley’s place. You receive a call about a B&E in progress and immediately respond, asking the caller who reported the incident to meet you at the front door to the residence. In all likelihood you’ve responded to similar calls before only to find that the either it’s someone breaking into their own home, or that an estranged girlfriend/wife is calling for backup in a domestic situation, or something other than an actual robbery. Therefore, you request the caller to be there just to be sure.

Upon arrival, you have to assess the situation without having any knowledge. You meet the caller who tells you that two black men with backpacks were observed trying to “wedge” the front door open with their shoulders, thus raising suspicion and precipitating the call. OK, now you can be reasonably certain that it’s not a domestic situation, but there still may be an innocent explanation. You notice someone inside the house, looking out at you as you approach the front door. Who could it be? The owner? A friend? Or perhaps a potential burglar? You don’t know but the only way to find out is to question the person.

Now, stop and think for a moment. If the person you are about to question is the home’s owner, wouldn’t you expect a rather cooperative attitude? You are defending their home after all. In contrast, if the person inside is someone who shouldn’t be there, then you would expect a more evasive, or possibly hostile reaction. But how do you deal with the rightful owner calling you a racist (pdf)?

As I turned and faced the door, I could see an older black male standing in the foyer of [redacted] Ware Street. I made this observation through the glass paned front door. As I stood in plain view of this man, later identified as gates, I asked if he would step out onto the porch and speak with me. He replied “no I will not.” He then demanded to know who I was. I told him that I was “Sgt. Crowley from the Cambridge Police” and that I was “investigating a report of a break (sic) in progress” at the residence. While I was making this statement, Gates opened the front door and exclaimed “why, because I’m a black man in America?”. I then asked Gates if there was anyone else in the residence. While yelling, he told me that it was non of my business and accused me of being a racist police officer. I assured gates that I was responding to a citizen’s call to the Cambridge Police and that the caller was outside as we spoke. Gates seemed to ignore me and picked up a cordless telephone and dialed an unknown telephone number. As he did so, I radioed on channel 1 that I was off in the residence with someone who appeared to be a resident but very uncooperative. I then overheard Gates asking the person on the other end of his telephone call to “get the chief” and “what’s the chief’s name?”. gates was telling the person on the other end of the call that he was dealing with a racist police officer in his home. Gates then turned to and told me that I had no idea who I was “messing” with and that I had not heard the last of it. While I was led to believe that Gates was lawfully in the residence, I was quite surprised and confused with the behavior he exhibited toward me. I asked Gates to provide me with photo identification so that I could verify that he resided at [redacted] Ware Street and so I could radio my finding to ECC. Gates initially refused, demanding that I show him identification but then did supply me with a Harvard university identification card. Upon learning that Gates was affiliated with Harvard, I radioed and requested the presence of the Harvard University Police.

The statement above if from Sgt. Crowley and, most likely, is self-serving. Then there is Gates’ version of events:

When Professor Gates opened the door, the officer immediately asked him to step outside. Professor Gates remained inside his home and asked the officer why he was there. The officer indicated that he was responding to a 911 call about a breaking and entering in progress at this address. Professor Gates informed the officer that he lived there and was a faculty member at Harvard University. The officer then asked Professor Gates whether he could prove that he lived there and taught at Harvard. Professor Gates said that he could, and turned to walk into his kitchen, where he had left his wallet. The officer followed him. Professor Gates handed both his Harvard University identification and his valid Massachusetts driver’s license to the officer. Both include Professor Gates’ photograph, and the license includes his address.

Professor Gates then asked the police officer if he would give him his name and his badge number. He made this request several times. The officer did not produce any identification nor did he respond to Professor Gates’ request for this information. After an additional request by Professor Gates for the officer’s name and badge number, the officer then turned and left the kitchen of Professor Gates’ home without ever acknowledging who he was or if there were charges against Professor Gates.

In comparing the two statements, they contain a lot of agreement on how the events unfolded. Both accounts state that Crowley asked Gates to step outside and that he explained the reason for his visit. They also both agree that Crowley asked for verification that Gates belonged in the residence, as well as that Gates provided at least his Harvard ID. They further agree that Gates asked for Crowley’s identification, although they differ as to why.

In fact, Gates never suggests why he wanted the officer’s ID, nor what could have possibly prompted the request. If Gates’ statement is to be accepted as true, we would have to believe that he was a perfect gentleman throughout the process until his request for Crowley’s ID was ignored. Indeed, Gates’ entire story depends on the idea that he only became outwardly upset when Crowley refused to give him identification. And even if that were true, it does not explain how the charges of racism and racial profiling came to be leveled. It’s not as if refusing to show official ID has some racially disparate component to it.

Gates has further problems with his story as well. According to Crowley’s statement, he radioed into ECC with pertinent information as he got it and requested the presence of Harvard Police. In addition, he observed Gates making a phone call to someone and asking for the “chief” while declaring that a racist police officer was in his home. All of these statements are verifiable by looking at the radio transmissions from Crowley and the phone records from Gates. Oddly, Gates makes no mention of the phone call, nor offers any explanation as to how the Harvard Police came to be at the scene. That tends to lend credibility to Crowley’s version of events.

On the other side of the ledger, however, it sure does look like Crowley lured Gates outside in order to arrest him and show him who was boss. His claim that he went outside to speak with Gates because the acoustics were inhibiting his ability to communicate with ECC sounds just a little too perfect. Crowley further neglects to explain why he could not have offered to write the information down for Gates, or even better, simply handed him a business card (which every cop I’ve ever dealt with has had plenty of). That would have presumably satisfied Gates for the time being and allowed Crowley to exit the situation without any further ruckus. Instead, both parties claim that Crowley asked the professor to step outside, in full view of the poor crowd who’s tender mercies were then violated by Gates’ tirade, and voilà Crowley then had a reason to arrest him.

Despite all the foregoing, and regardless of whose version of events you believe, there is simply no indication of why this has been turned into a racial incident. Some suggest that the original caller was racist for immediately assuming that two black men trying to force a door open were criminals. But that’s just absurd, and I would hope that if a passerby sees anyone of any color breaking into my home they call the police. Others hypothesize that a white professor would not have experienced the same treatment at the hands of the police, but that ignores (a) the agreed upon facts, and (b) the fact that police would be derelict if they did not verify who was in the home, and whether or not they belong there. I’m sure there are plenty of people who have run into similar circumstances regardless of race (I know I have). To date, no one has offered a reasonable explanation as to how the incident justifies charges of racism and racial profiling, although plenty of people are perfectly willing to assume such is the case.

Apologies

I may as well get the ball rolling for turning what could have been a succinct piece into a meandering tome. So, sorry about that.

Next up is Officer Crowley who is adamant that no apology will be forthcoming.

Crowley himself, speaking to the Globe yesterday and again last night in Natick, said he will not apologize and asserted, “I am not a racist.’’

Crowley’s police union issued a statement saying it had reviewed the arrest of Gates and expressed “full and unqualified support’’ for his actions.

“Sergeant Crowley is a highly respected veteran supervisor with a distinguished record in the Cambridge Police Department,’’ said the Cambridge Police Superior Officers Association. “His actions at the scene of this matter were consistent with his training, with the informed policies and practices of the Department, and with applicable legal standards.’’

I guess you can forget about the Police Department delivering one either.

As for Gates, well he hasn’t been asked for one, and it does not appear that one will be forthcoming, especially now that the President of the United States has backed him.

Obama acknowledged that Gates is a friend and that since he was not there, he cannot know exactly what role race may have played in the incident.

Gates’ daughter and attorney said they were pleased by the president’s comments.

Charles Ogletree, Gates’ attorney and a fellow Harvard professor, told “Good Morning America’s” Dan Harris today that Gates “was simply pleased that Barack acknowledged he was a friend and what he had read and heard and understood to have been reported that Professor Gates did not violate the law.”

Perhaps the media will apologize for turning this into a major story, and perceptibly backing Gates’ version by playing up the racism angle, not to mention raising the issue at a prime time news conference on health care. Hmmm … no, I guess that’s just silly.

Once the tempting fruit of justifiable anger is consumed, it almost impossible to give up. Should Crowley apologize for arresting Gates? Yes, he probably should, but I’m sure he feels too justified in his anger to do so: Gates shouldn’t have berated him for protecting Gates’ own home, and certainly shouldn’t have called him a racist.

Should Gates apologize for his tumultuous behavior and unwarranted accusations? Most definitely, but that isn’t likely to happen either because Gates feels justified in his anger as well: Crowley shouldn’t have arrested him, causing him embarrassment and extreme discomfort, simply because he was yelling and screaming while on his own property.

So, nobody will apologize, nothing will be fixed, and no wounds will be healed. Welcome to post-racial America.

Miranda and War

An interesting discussion broke out in the comment section of the Miranda post, which I’m hoping will continue. The primary issue (and I’m simplifying here) centers around just how detainees caught on a battlefield should be handled if they don’t fit the established parameters of soldiers under the Geneva Conventions. Although there appears to be agreement that reading detainees Miranda rights is a step (or three) too far, there is also wide agreement that we should be skeptical about allowing our government so much latitude as to hold anyone indefinitely. I think closing the gap on those parameters is the challenge to be met, but I don’t think it is possible to do so without understanding how war differs from law enforcement.

Clausewitz defined war as “continuation of policy with other means.” The crux of his definition is that “war” is simply a tactic used to further political goals. War is not waged as end in itself, but as a means towards other ends which, for whatever reason, could not be accomplished through non-violent tactics. There are always exceptions, of course, but certainly a rational state will not expend blood and treasure when the same goals can be accomplished without. Even an irrational state, with irrational goals, will not waste such resources if it understands that it does not have to.

The other tools in the box for continuing policy include diplomacy and capitulation. Once those are deemed exhausted or unacceptable (as the case may be) then the tool of war is likely to appear. In other words, if agreement cannot be reached between erstwhile enemies, and surrender by one side or the other is not acceptable, then actual battle will be necessary to decide whose policy will be continued. At that point all manner of understanding between the parties is dead and only victory or a credible threat thereof will allow the discarded tools to once again be used in the construction of policy.

In the absence of war, there is general agreement as to how competing parties will conduct themselves in the pursuit of their policies. Citizens may vote, senators may argue, special interests may agitate, and whole nations may barter. The agreements may deal with how citizens deal with one another, how governments deal with their citizens, or how violations of the agreements are handled (i.e. law enforcement). In the modern world those general agreements are reduced to treaties, constitutions, rules, regulations and the like, all of which may be considered law. The policies themselves may also be enacted into law, but without some understanding as to the mechanisms for peacefully deciding which policy will be followed, then war is the only tool available. A rule of law, which is only useful where there is broad agreement on it, obviates the need to use war to advance policy. All of the foregoing are the hallmarks of a civil society that depends on pursuing policies through peaceful tactics. To turn Clauswitz’s definition around, law is the continuation of war by other means.

To be sure, transgressors of law will be dealt with at times in violent ways, but there is at least a tacit agreement to the law’s authority to do so where the violator is operating from within the society and generally partaking of its benefits. If enough transgressors get together then the agreements have broken down, and civil war or revolution may occur. Therefore, war can be understood as the tactic that is used when the law has ceased to be of use. More simply, war is the absence of law.

Given the above, which is nothing more than a condensed version of my personal views on the subject, it is difficult for me to understand how legal concepts can be introduced into war. Opposing factions may agree with one another to fight under particular rules of engagement, or to treat enemy prisoners a certain way, but when those rules are broken there is no legitimate authority to enforce them. The Geneva Conventions represent a more elaborate attempt to impose limits on warfare, but even those were never intended to apply to non-signatories except in very limited circumstances (pre-Hamdan anyway). More importantly, it seems obviously ludicrous to apply laws outside such limited agreement to any of the parties involved in battle, because there would be no battle if such laws were being adhered to in the first place.

So while any number of parties may agree amongst themselves to fight under self-imposed rules, that does not give any of them authority to impose those rules on others. Furthermore, except where explicitly agreed to otherwise, such rules would not govern war between a party to such an agreement and a non-party. To look at it another way, if Mike Tyson and Evander Holyfield agree to fight under certain sanctioned rules, that does not mean that either fighter must adhere to the same rules if attacked by a third party on the way home from the match.

Accordingly, in a world of asymmetrical warfare, the basic principle that “war is the absence of law” seems to apply. In this context, the very idea of approaching war with terrorists in foreign countries under a rubric of law intended to govern domestic life appears absurdly out of place. Treating detainees captured on the battlefield to the luxury of legal niceties intended to protect the very citizens those terrorists seek to harm defies all logic. And pretending that reading any of them Miranda rights will do anything more than hamper our ability to defeat these cretins is an exercise in serious delusion. In short, law is a manifestation of the agreements underlying a peaceful community, and war is the means of protecting those agreements from those who seek to subvert them.

When considering just where the line should be drawn then, between reading enemies their “rights” and allowing the government to detain them indefinitely, I think it’s useful to understand that we are not really talking about a “rule of law.” Instead, we are talking about how best to utilize the tactic of war in furthering our policy of not allowing crazed radicals to murder our citizens. While I find great merit in placing the government (i.e. our instrument of war) on a firm leash, I don’t think it is at all useful to conflate the means by which we protect ourselves from an overbearing government with the means by which the government protects us from enemies bent on our destruction.

Was Von Brunn An Equal Opportunity Hater?

It appears that could be the case. Kathy Shaidle:

The anti-semitism of von Brunn is the first thing one notices when visiting these bizarre websites. However, like those of most “white supremacists”, many of von Brunn’s political views track “Left” rather than “Right.” Clearly, a re-evaluation of these obsolete definitions is long overdue.

For example, he unleashed his hatred of both Presidents Bush and other “neo-conservatives” in online essays. As even some “progressives” such as the influential Adbusters magazine publicly admit, “neoconservative” is often used as a derogatory code word for “Jews”. As well, even a cursory glance at “white supremacist” writings reveals a hatred of, say, big corporations that is virtually indistinguishable from that of anti-globalization activists.

Shaidle’s point is valid (as is her point about the “obsolete definitons”). This guy wasn’t a product of “right-wing” or “left-wing” views, this guy was a hater of all things that even hinted of Jews, right or left. He was an anti-semite to the core and, frankly, a nut.

Trying to score political points with this tragedy seems badly strained at best and truly an example of how low our political discourse has fallen. Instead of talking about the tragedy of the loss of the security guard to a lunatic, the first thing some want to do is play politics, point fingers and stereotype. That says more about them (you know, the tolerant and non-judgmental types?) than those to whom they’re pointing.

~McQ

Miranda Warnings In The Battlefield?

This simply can’t be right, can it? That the Obama administration secretly directed the military to Mirandize combatants and terrorists when captured? Surely this is just crazy talk:

… the Obama Justice Department has quietly ordered FBI agents to read Miranda rights to high value detainees captured and held at U.S. detention facilities in Afghanistan, according a senior Republican on the House Intelligence Committee. “The administration has decided to change the focus to law enforcement. Here’s the problem. You have foreign fighters who are targeting US troops today – foreign fighters who go to another country to kill Americans. We capture them…and they’re reading them their rights – Mirandizing these foreign fighters,” says Representative Mike Rogers, who recently met with military, intelligence and law enforcement officials on a fact-finding trip to Afghanistan.

Rogers, a former FBI special agent and U.S. Army officer, says the Obama administration has not briefed Congress on the new policy. “I was a little surprised to find it taking place when I showed up because we hadn’t been briefed on it, I didn’t know about it. We’re still trying to get to the bottom of it, but it is clearly a part of this new global justice initiative.”

Ever since the Boumediene decision I’ve been warning that we’re turning legitimate military actions into law enforcement nightmares. No matter how badly we may want to achieve a world where transparency and the rule of law are the basis for all government action, the fact of the matter is that there are plenty of people out there who want to see the US destroyed regardless of the cost to themselves or their families. If we start dealing with these people as if they were common criminals, then we erode the very fabric that binds us as a nation. No longer does the word “jurisdiction” mean anything. Instead, we hand our enemies the keys to the castle.

Consider the following:

A lawyer who has worked on detainee issues for the U.S. government offers this rationale for the Obama administration’s approach. “If the US is mirandizing certain suspects in Afghanistan, they’re likely doing it to ensure that the treatment of the suspect and the collection of information is done in a manner that will ensure the suspect can be prosecuted in a US court at some point in the future.”

But Republicans on Capitol Hill are not happy. “When they mirandize a suspect, the first thing they do is warn them that they have the ‘right to remain silent,’” says Representative Pete Hoekstra, the ranking Republican on the House Intelligence Committee. “It would seem the last thing we want is Khalid Sheikh Mohammed or any other al-Qaeda terrorist to remain silent. Our focus should be on preventing the next attack, not giving radical jihadists a new tactic to resist interrogation–lawyering up.”

According to Mike Rogers, that is precisely what some human rights organizations are advising detainees to do. “The International Red Cross, when they go into these detention facilities, has now started telling people – ‘Take the option. You want a lawyer.’”

Rogers adds: “The problem is you take that guy at three in the morning off of a compound right outside of Kabul where he’s building bomb materials to kill US soldiers, and read him his rights by four, and the Red Cross is saying take the lawyer – you have now created quite a confusion amongst the FBI, the CIA and the United States military. And confusion is the last thing you want in a combat zone.”

Prosecution of any war, regardless of what your betters may think, is absolutely impossible in a law enforcement setting. Imagine having to “arrest” enemy soldiers instead of shooting them on sight. Or worse, think about the complications involved when a soldier shoots anyone, as compared to when a policeman is involved in a shooting. How would it work to take custody or extract intelligence from any enemy soldier if our soldiers have to apply mercurial Supreme Court precedent to each situation before risking their lives? Any cop will tell you that it’s hard enough keeping up with the norms as laid down by the high court (and interpreted by the administrators) in order to simply arrest common criminals. The idea that soldiers in the field of battle have the time or ability to “arrest” terrorists and the like, in places where English is not likely to be a common language (N.B. does that mean the military will be required to provide interpreters before apprehending anyone?) is simply ludicrous.

War is not pretty, and anyone who pretends to make it so is simply a fool. Ugly, unmentionable, outrageous and despicable things happen in war, as they do in any struggle for life. Creating an imaginary world in which there are breaks for tea and the enemy plays by the same (or any) rules is how the British lost North America. Subjecting ourselves to the vagaries or our enemy’s backwardness, by ignoring their complete denial of our moral superiority, will only serve to hasten our defeat.

For the foregoing reasons, I have to assume that Stephen Hayes is on the wrong end of some very bad information. As much as I may disagree with the Obama administration on a great many things, I have a hard time believing that they could be this naive and unconcerned about the future of our country that they would grant unprecedented gratuity to those who most wish us ill. The policies are most certainly wrong, but they can’t possibly be this misguided.

Domestic Terrorism?

Picking up on Bryan’s excellent post yesterday, we now have two examples of what could be classified as “domestic terrorism”.

We have the Tiller case in Kansas where a doctor that offered late term abortions was murdered at his church while acting as an usher.

And we have the murder of a soldier and the wounding of another by a “muslim convert” who “was opposed to the US military” in Arkansas.

Each perpetrator appears to have been “a lone wolf”, i.e. someone who may have acted out of some sort of belief, but was otherwise unaffiliated with any group or movement which could be identified as a terror or pressure group.

If that’s the case, would you see each of these cases as “domestic terror” cases – i.e. do they fulfill the definition Bryan used, “the pursuit of political goals through the use of violence against noncombatants in order to dissuade them from doing what they have a lawful right to do”?

If so, what do you think the “political goals” of each given they were, or appear to be “lone wolves” (or was this simply a “crime of conscience” most likely rationalized by a rather sick mind) and do you think their acts were actually intended to dissuade others from doing what they have a lawful right to do?

And, given the new tendency toward attempting to classify crimes in this manner – were each of them “hate crimes”?

~McQ