Freedom and Liberty
An moment of sanity prevailed in the Senate today:
For the second time in two years, a provision to allow bankruptcy judges to modify mortgages died in the Senate today, handing the Obama administration a significant defeat in its plans for arresting the foreclosure crisis.
Supporters argued the measure would keep 1.7 million borrowers in their homes, but it ultimately foundered in the face of fierce financial industry and Republican opposition. The bankruptcy modification provision, which was offered an amendment to a broader housing bill, failed by a vote of 45 to 51.
I love how this is reported by the WaPo. The measure failed because of ‘fierce financial industry and Republican opposition?”
Apparently it failed because 14 Democratic Senators said “no”.
Of course, passage of such a measure would make legal contracts in this country subject to review by the courts and arbitrarily changed based on political concerns. Certainly, in this case, such power is only being given for changing mortgage amounts – but as we all know, precedent is what courts operate under, and such a precedent would just as certainly be used to attempt to give the court similar power with other types of contracts.
It’s a phenomenally bad idea, but one you can expect to see attempted again and again, as promised by Dick Durbin:
“I’ll be back. I’m not going to quit on this,” said Senate Majority Whip Richard J. Durbin (D-Ill.), who sponsored the measure.
“At some point the Senators in this chamber will decide the bankers shouldn’t write the agenda for the United States Senate. At some point the people in this chamber will decide the people we represent are not the folks working in the big banks, but the folks struggling to make a living and struggling to keep a decent home.”
You’ve got to love the populist rhetoric and the absolute misrepresentation of what he and those that were trying to get this monstrosity passed were attempting. A fundamental change in how this country has operated since its inception. If courts can arbitrarily change the terms of a contract for social/political reasons, we’re doomed. And that’s precisely what Durbin and his ilk are proposing.
Unfortunately I have no confidence that he won’t manage, at some future time, to push this piece of legislation through. But at the moment, it’s where it needs to be – in the virtual garbage heap of bad legislation.
As you may or may not know, I just sent the last week touring the houses of Thomas Jefferson, James Madison and James Monroe – three of this nation’s founding fathers. So when I glanced through the following interview with Barack Obama I tried to picture any of these three men ever contemplating this question or a role for government in the context of the question and frankly, it’s unimaginable.
The only vision I could even begin to imagine is the three of them looking on sadly and shaking their heads “no” in unison as they tried to grasp the size of government and the depth of its intrusion into the lives of citizens the questions and answers indicated. I’m sure they’d also be trying to figure out where it all went wrong. The questions have to do with “end of life care”:
Q:…where it’s $20,000 for an extra week of life.
THE PRESIDENT: Exactly. And I just recently went through this. I mean, I’ve told this story, maybe not publicly, but when my grandmother got very ill during the campaign, she got cancer; it was determined to be terminal. And about two or three weeks after her diagnosis she fell, broke her hip. It was determined that she might have had a mild stroke, which is what had precipitated the fall.
So now she’s in the hospital, and the doctor says, Look, you’ve got about — maybe you have three months, maybe you have six months, maybe you have nine months to live. Because of the weakness of your heart, if you have an operation on your hip there are certain risks that — you know, your heart can’t take it. On the other hand, if you just sit there with your hip like this, you’re just going to waste away and your quality of life will be terrible.
And she elected to get the hip replacement and was fine for about two weeks after the hip replacement, and then suddenly just — you know, things fell apart.
I don’t know how much that hip replacement cost. I would have paid out of pocket for that hip replacement just because she’s my grandmother. Whether, sort of in the aggregate, society making those decisions to give my grandmother, or everybody else’s aging grandparents or parents, a hip replacement when they’re terminally ill is a sustainable model, is a very difficult question. If somebody told me that my grandmother couldn’t have a hip replacement and she had to lie there in misery in the waning days of her life — that would be pretty upsetting.
“…society making those decisions to give my grandmother … a hip replacment?” Above that he points to a doctor giving who that choice?
Below that who is Obama talking about making that decision or having that choice? Well it isn’t his grandmother. And although he uses the term ‘society’, he means government. Note he says that if someone had told him no he’d be upset, but he’s setting up the table to be ‘upset’. This is an old Obama trick – acknowledge the downside in a very personal way while still pushing for that downside.
Q: And it’s going to be hard for people who don’t have the option of paying for it.
THE PRESIDENT: So that’s where I think you just get into some very difficult moral issues. But that’s also a huge driver of cost, right?
I mean, the chronically ill and those toward the end of their lives are accounting for potentially 80 percent of the total health care bill out here.
Anyone who hasn’t quite figured out the rationing model Obama is talking about with his answers to these two questions needs to take a remedial reading course. Anyone – where does he see the opportunity to “cut costs” in the medical field?
And, how will he do it. Unless you’re still hungover from celebrating Guinesses’ 250th birthday, he is talking about denial of service especially to the elderly. Government will determine whether or not you’re worth that $20,000 operation. And the “moral issue” he’s talking about is all wrapped up in egalitarianism. What he’s implying may be “immoral” is allowing those who can pay access to the service while those who can’t pay (and for whom government won’t pay) are denied it.
Again, contemplate the model Obama talks about – reducing the cost of health care – and tell me which way that “moral issue” would be decided? Got the money? Too bad – it would be “immoral” to let you buy the service others are denied.
Q: So how do you — how do we deal with it?
THE PRESIDENT: Well, I think that there is going to have to be a conversation that is guided by doctors, scientists, ethicists. And then there is going to have to be a very difficult democratic conversation that takes place. It is very difficult to imagine the country making those decisions just through the normal political channels. And that’s part of why you have to have some independent group that can give you guidance. It’s not determinative, but I think has to be able to give you some guidance. And that’s part of what I suspect you’ll see emerging out of the various health care conversations that are taking place on the Hill right now.
What a question. The assumption is swallowed whole. Where was the question “what if ‘we’ don’t want others making those decisions?”
And apparently you guys in fly-over country are too emotionally involved to make that sort of a decision through “normal political channels” so government have some unelected outside group develop the “guidance.” Only the elite can answer these questions properly.
Three questions, stunning in their implications. Three answers which should make the skin of all lovers of liberty crawl. I’m again left imagining Jefferson, Madison and Monroe listening in on this with unbelieving looks of horror on their faces. The irony is, their opposition to this incredible power grab by government would again leave them in the category of “radical”.
With the spike in interest about combating piracy suddenly, any number of people have been sought out and quoted concerning their ‘expert’ opinion about what to do.
Cyrus Mody of the International Maritime Bureau said that his organisation had qualms about the use of armed guards on ships: “We always have been against the carriage of arms on vessels. First, we don’t think there is legal backing. Two, there’s a risk of escalation. Three, you cannot carry arms on ships carrying hazardous or dangerous cargo.
“If you permit armed guards on certain vessels, the others, which cannot carry the armed guards will become vulnerable and be targeted a lot more.”
Maybe it is just me, but I simply don’t understand thinking like this. It reminds me of the rightfully ridiculed “if rape is inevitable, lay back and endure it” school of thought.
Note how Mr. Mody seems not to understand that we have an inherent right to self-defense and thus shouldn’t be particularly concerned with whether or not exercising that right has “legal backing”. When armed thieves attack you and your property, they certainly aren’t concerned with the niceties of legal backing. They are called “outlaws” for a reason. But like all human beings, they’re looking for easy targets. Lay back and offer no resistance and they’ll happily take your property and, perhaps, your life. Although that hasn’t been the case yet, it certainly could happen now that the military of various states are killing pirates. In fact, because they are using deadly force now, the need for being able to defend one’s self would seem to me to be even more urgent than before.
That brings us to point two – escalation. I hate to break it to Mr. Mody, but as noted, the military reaction to piracy has escalated the situation. What is obvious, however, is the military cannot provide protection to all of the shipping transiting the area – it can only react to attacks. In the last two attacks on American ships, there was no way for our navy to react immediately. In both cases the USS Bainbridge was hundreds of miles away when the attacks occurred. That leaves immediate self-defense in the hands of the crew of the ship being attacked.
As for three, of course you can have weaponry on such ships if done properly. And think of it this way, pirates don’t know whether or not the ship is carrying “hazardous or dangerous cargo” when they attack. So when they launch that RPG they’re much more of a danger to those cargoes (and the crew) than someone on the ship putting a line of .50 cal rounds across the bow of a pirate skiff and scaring them away.
And four, per Mr. Mody, it just isn’t fair if some ships have armed guards (Mr. Mody was reacting to a story about armed guards on an Italian cruise ship foiling a pirate attack) and others don’t. That’s just nonsense. It’s like “gun free zones” – what do they tell criminals? That no one will be able to defend themselves because the criminal will be the only one with a gun. It’s stupid. The whole point is to make the pirates unsure as to whether the ship has armed guards and whether it is worth it to them to attempt to attack such a ship. One way to take that sort of calculation out of their attacks is to ensure ships are “gun free zones”.
Certainly there are non-lethal ways to fight pirates, but as Gen. Petraeus said the other day, and I’m paraphrasing, I wouldn’t want to be on a water cannon when the guy at the other end has an RPG.
Fighting off pirates requires resistance, and resistance requires at least equality in firepower. The whole point is to make piracy less and less attractive. Right now the pirates pick a target, board it and name their ransom. The risk to reward ratio is so low they won’t consider returning to their former life. One way to help them make such a decision more readily is to raise that reward-to-risk ratio to a level that it is no longer attractive. Seems to me armed ships along with military intervention are certainly a good way to do that.
What we don’t need to be doing is listening to the likes of Mr. Mody and trying to dress up stupidity as some form of “civilized behavior”.
Nick Gillespie at Reason is none too impressed with the new Edward M. Kennedy Serve America Act just signed into law.
At a mere 5.7 billion dollars +200 mil in “stimulus” funds – and yes I’m being facetious (and don’t worry, they’re saving 100 mil among the administration cabinet) – we get legislation that:
reauthorizes and expands national service programs administered by the Corporation for National and Community Service, a federal agency created in 1993. The Corporation engages four million Americans in result-driven service each year, including 75,000 AmeriCorps members, 492,000 Senior Corps volunteers, 1.1 million Learn and Serve America students, and 2.2 million additional community volunteers mobilized and managed through the agency’s programs.
Or an expansion of the Community Organizer’s Full Employment Act if you really want to come clean about it.
Paid “volunteerism”. Is that government’s job?
And as Gillespie points out, the language under which this is organized – and I use the term loosely – is rife with opportunities for urban entrepreneurs to “benefit” mightily from things which will be extremely hard to measure (even though it claims, in the language, to have it covered):
The Serve America Act, which goes into effect on October 1, would increase and enhance opportunities for Americans of all ages to serve by increasing AmeriCorps from 75,000 to 250,000 positions over the next eight years, while increasing opportunities for students and older Americans to serve. It will strengthen America’s civic infrastructure through social innovation, volunteer mobilization, and building nonprofit capacity. The new law is also designed to strengthen the management, cost-effectiveness and accountability of national service programs by increasing flexibility, consolidating funding streams, and introducing more competition.
Ye gods – what could go wrong with that?
And this, as Gillespie points out, in the face of attempts to limit charitable tax breaks for the income class which makes most of those donations and are the engine for much of the charitable giving. Make sense?
Well, it does if your entire focus is to see how dependent on government you can make the population, certainly. This is another example of a liberal wet dream.
But what you should keep in mind is it was begun under Clinton and survived 8 years of a Republican administration.
Tell me – whose fault is that?
Sometimes math is actually pretty easy. For example, when someone, say some MIT professors, writes a report claiming that a tax on certain businesses will raise a specific amount of revenue for the government ($366 Billion to be exact), and that revenue is divided by an estimated number of American households (117 Million), there isn’t any doubt about how much money per household that tax represents ($366 b./117 m. = $3,128.21). Unless, that is, there are politics involved. Then the math becomes Bistromathic, which allows one of the progenitors of the original numbers to declare “you’re doing it wrong!” and almost everyone will believe him. Unfortunately for them, real math operates on real facts, and thus reality is destined to intrude upon their fantasy.
That, in a nutshell, is basically how the argument over costs of the Obama Administration’s cap and trade policy has unfolded. MIT’s John Reilly co-authored the original study, Republicans used the numbers to derive a cost per taxpayer, Reilly balked, and the media/leftosphere went into paroxysms of outrage about how the GOP were all a bunch of liars. But that was just the main course. For dessert, there will be crow (my emphasis):
During a lengthy email exchange last week with THE WEEKLY STANDARD, MIT professor John Reilly admitted that his original estimate of cap and trade’s cost was inaccurate. The annual cost would be “$800 per household”, he wrote. “I made a boneheaded mistake in an excel spread sheet. I have sent a new letter to Republicans correcting my error (and to others).”
While $800 is significantly more than Reilly’s original estimate of $215 (not to mention more than Obama’s middle-class tax cut), it turns out that Reilly is still low-balling the cost of cap and trade by using some fuzzy logic. In reality, cap and trade could cost the average household more than $3,900 per year.
The $800 paid annually per household is merely the “cost to the economy [that] involves all those actions people have to take to reduce their use of fossil fuels or find ways to use them without releasing [Green House Gases],” Reilly wrote. “So that might involve spending money on insulating your home, or buying a more expensive hybrid vehicle to drive, or electric utilities substituting gas (or wind, nuclear, or solar) instead of coal in power generation, or industry investing in more efficient motors or production processes, etc. with all of these things ending up reflected in the costs of good and services in the economy.”
In other words, Reilly estimates that “the amount of tax collected” through companies would equal $3,128 per household–and “Those costs do get passed to consumers and income earners in one way or another”–but those costs have “nothing to do with the real cost” to the economy. Reilly assumes that the $3,128 will be “returned” to each household. Without that assumption, Reilly wrote, “the cost would then be the Republican estimate [$3,128] plus the cost I estimate [$800].”
In Reilly’s view, the $3,128 taken through taxes will be “returned” to each household whether or not the government cuts a $3,128 rebate check to each household.
In short, Reilly’s claim of “you’re doing it wrong!” amounts to parsing of direct vs. indirect costs. Yes, the cap and trade taxes will be passed onto the consumers in some way, but those aren’t the “real costs” to the economy. Only those direct expenditures made necessary by the policy (the “but for” costs) are “real costs.” As long as the federal government provides a benefit to the taxpayers with the cap and trade taxes, then those higher utility bills are a wash:
In Reilly’s view, the $3,128 taken through taxes will be “returned” to each household whether or not the government cuts a $3,128 rebate check to each household.
He wrote in an email:
It is not really a matter of returning it or not, no matter what happens this revenue gets recycled into the economy some way. In that regard, whether the money is specifically returned to households with a check that says “your share of GHG auction revenue”, used to cut someone’s taxes, used to pay for some government services that provide benefit to the public, or simply used to offset the deficit (therefore meaning lower Government debt and lower taxes sometime in the future when that debt comes due) is largely irrelevant in the calculation of the “average” household. Each of those ways of using the revenue has different implications for specific households but the “average” affect is still the same. […] The only way that money does not get recycled to the “average” household is if it is spent on something that provides no useful service for anyone–that it is true government waste.
He added later: “I am simply saying that once [the tax funds are] collected they are not worthless, they have value.”
Essentially, Reilly is making the pernicious claim that a dollar in the taxpayer’s hand is the same as one in the government treasury. But we all know that’s not true, including (I’ll bet) Mr. Reilly.
No matter how efficient the government is, it will never be able to take $X from me and return exactly $X of benefit. Indeed, at least some portion of that $X will be needed just to support the system of taking the money and providing the benefit. Already the taxpayer is at a loss.
Moreover, there is an implicit assumption in Reilly’s explanation that, in exchange for this de facto tax, the government benefits provided would be returned in proportion to their costs. But that would defy all historical precedence when it comes to the federal government which, once the money is received, tends to dole it back out to suit its own purposes. As Merv aptly states:
I really doubt the government will return any cost of cap and trade dollar for dollar. If they did it would be just an expensive money swap. To the extent the government does return any money you can bet that it will be based on conduct they want from people and not unconditionally. They will be imposing their choices on American families and their lifestyles.
To be fair, Reilly tacitly acknowledges this fact when he explains what use of his numbers would be acceptable to him:
“If the Republicans were to focus on that revenue, and their message was to rally the public to make sure all this money was returned in a check to each household rather than spent on other public services then I would have no problem with their use of our number.”
The fact is, cap and trade is going to cost taxpayers significantly more than the measly $13/week tax cut that the Democrats and the left are so excited about. While the $3,900 cost cited by John McCormack above is an accurate accounting of what Reilly’s study portends, even that is probably an unrealistically low estimate. Consider how the same policy has affected Europe:
Europe’s experiment with cap and trade has turned into a bureaucratic mess that has failed to live up to its initial expectations. A report by the GAO reveals that the supply of carbon permits has exceeded the demand causing allowance prices to fall substantially. This policy failure has caused the European economy to suffer and expectations to reduce CO2 emissions have been lowered.
Additionally, Europe’s cap and trade experiment has led to decreased employment opportunities and higher energy prices across the continent. In France manufacturers have packed up and left for Morocco. In the Netherlands factories are forced to close early to meet emissions standards. In Germany energy prices have risen 5% each year sparking widespread outrage. All across Europe evidence shows that cap and trade has hurt the economy. If the United States implements a European style cap and trade system, estimates show that it could wipe out between 1.2-1.8 million American jobs by 2020.
So the 95% of you who received a “tax cut” from Obama had better start saving that extra money up. You’re going to need every penny to service the debt required to pay for your costs of cap and trade.
What to make of this trend? I think Oklahoma got the 10th Amendment push-back ball rolling, Montana advanced the ball several yards, Texas got into the game recently (albeit, too glibly), several other states are getting their shots in, and now North Dakota takes it’s turn.
The resolution in the North Dakota legislature asking the federal government to begin recognizing the 10th amendment and to stop overreach into state matters, the one the Fargo Forum wrote off as being part of a “secessionist movement, has passed in the Senate. By a strictly party-line vote, unfortunately, meaning not one Democrat in the legislature had enough respect for the sovereignty of North Dakota to vote for it.
The resolution now goes to the House, where I expect it will also pass. Also, I’m guessing, by a strictly party-line vote. Which, if it happens, would be a small bright spot in an otherwise dim legislative session. It takes a certain level of conviction for politicians to vote for a resolution like this one. Would that the Republicans voting for it now had the courage of those convictions when faced with legislation that grows spending and government in the state.
At Say Anything, Rob Port has a copy of a state Senator Joe Miller‘s speech in support of the resolution from the Senate floor. I recommend you go there and read it.
Combined with some Governors rejecting portions of the stimulus funds, and the Tea Parties breaking out all over the country, I’d say it’s a good sign that people are finally telling Washington to take a hike. Personally, I would say that both Porkbusters and the Sunlight Foundation are owed some credit as well, but either way it’s about time that the federal government was reminded of its place. Granted, it’s a fairly small reminder, but maybe one that can be built upon.
So where does all of this lead anyway. Is there any hope that all of this momentum will lead to less federal government interference? How about some support for repealing the 17th Amendment? I’d like to think that it will end up reducing the size of government (i.e. electing fiscally conservative representatives who will cut taxes and greatly slash spending), but once that horse left the barn, the barn was burned to the ground and a giant spending dance was done on the smoldering ashes. Nevertheless, is there some small ray of hope that the states will rein in our profligate Congress?
A level of economic government intrusion is now being contemplated like none we’ve ever seen before. If you didn’t understand the one of the main purposes of the tea parties, perhaps this will help.
But what Obama rarely says about ending the “cycle of bubble and bust” is this: he’s prepared to intervene to make sure that kind of red-hot growth doesn’t occur.
And he’s willing to do it with added government regulation if needed to prevent any one sector of the economy from getting out of balance – the way the dot-com boom did in the 1990s and the real-estate market did earlier this decade.
According to Austan Goolsbee, a key Obama economic adviser, the president plans to focus on stopping bubbles along with preventing busts. And in an interview with POLITICO, Goolsbee said the administration will be on the lookout for new bubbles, like the tech stocks or housing prices.
If new threats are spotted, he said Obama would use “regulatory oversight to prevent guys who want to make a quick buck from doing real harm to the economy. . .That is what it means to get out of the bubble and bust cycle.”
In other words, government would decide what is or isn’t a “bubble” and move to stop what it determines is a bubble. As CATO points out, one man’s expansion might be another’s “bubble”. Are you comfortable with government calling that shot?
And government would also arbitrarily decide who was or wasn’t entitled to profit from that market – it would be the final determiner of who was or wasn’t making a “quick buck” from the growth.
Any idea what that would do to any market in which the government stepped in to slow down?
Yeah, nothing could go wrong that that idea, could it?
Bottom line: you have a governing elite picking winners and losers.
Thankfully, it isn’t quite as easy as you might imagine to do what Goolsbee and Obama would like to do.
…[T]here’s not much an administration can do in practical terms to burst a developing bubble. The best way to cool things down is raising interest rates, which is the purview of the Federal Reserve. Another option would be for regulators to order banks to curtail lending to buyers of certain kinds of assets.
The lesson here, of course isn’t necessary the plan itself, but the fact that those in a position of power are contemplating this seriously. Those aren’t the plans of a moderate, and certainly not those of a capitalist. They’re the plans of a group who apparently believes that complex economies can indeed be controlled and manipulated successfully from above.
Amazing hubris. Even more amazing arrogance. Most importantly, incredibly dangerous economic thinking.
I have to admit to some surprise in seeing Michael’s post on torture below. QandO has been pretty much opposed to the use of torture, and we’ve taken some heat for it every time the subject has come up. But, once you open up a libertarian blog to others to write for it, and tell them to feel free to write their own opinions without prejudice or favor, then, before you know it, they go off getting ideas of their own, disagreeing with you, and generally acting with an outrageous sense of independence.
What’re you gonna do?
I understand the attraction of torture, both on utilitarian grounds, and in terms of what I will call “emotional reciprocity”, so I won’t re-cover Michael’s arguments, tendered, as they are, more inquisitively than asseveratively.
When I speak of “torture”, I want to be sure that we all have the same thing in mind when I use the word. So I will define it here as the intentional application of physical pain, accompanied by the possibility of permanent injury, scarring, derangement, or death. This will, I think, encompass the entire spectrum pf physical discomfort comfort from beatings to anything else more severe. I specifically reject a definition of torture that includes psychological pressure, such as putting a particularly nasty-looking beetle in the cell of a prisoner who’s afraid of bugs. I also reject questioning methods as sleep deprivation for a couple of days, or discomfort from keeping the air conditioning too low as torture. These things might be unpleasant, but they are not physically or mentally harmful in any significant sense.
It’s possible to construct any number of scenarios in which torture is acceptable–perhaps even moral. But that doesn’t negate the general rule that torture is, in fact, wrong.To continue, I would then proceed to the question, “Is torture always wrong?” Well, that’s a silly formulation of the question. In every human action, context matters. I think there is general agreement that lying is generally wrong, yet if a terrified woman approaches us and pleads for us to hide her from a crazed stalker who intends to kill her, I think there is also general agreement that if the stalker subsequently approaches us, we would have a positive moral duty to lie to the stalker and deny any knowledge of her whereabouts. There might also be general agreement that lying has a social purpose at times, in the sense that the answer to the question “Does this dress make me look fat?” is pretty much always, “No.”
In light of the above, it’s possible, then, to construct any number of scenarios in which torture is acceptable–perhaps even moral. But that doesn’t negate the general rule that torture is, in fact, wrong, in the widest range of circumstances. If we actually believe in all that stuff about “inalienable rights”, then certainly the right not to have hot needles shoved under our nails is one of them.
Beyond that, however, we enter a terrifically complicated area, when we begin to discuss giving the government the power to have recourse to torture as a matter of policy. As a practical matter, it is nearly impossible to construct a system in which any official sanction to torture will not inevitably spiral out of control. Once a set of rules is in place–any set of rules–there will inevitably be torture imposed on anyone on whom an official wishes to impose it. Officials will ensure that the rules will apply to the persons they wish to torture. Sure, the guy may look like an innocent Kabul taxi driver, but there will always be an official who “knows” better, and who will ensure that all the proper boxes are checked before the flensing knives are brought out.
We have elaborate rules, for instance, covering the issuance of search warrants, and severe criminal and civil sanctions for their abuse, yet, oddly enough, police agencies fairly routinely deliver no-knock drug warrants on innocent homeowners, which, not infrequently, result in homeowners or policemen getting shot. Or in the case of 90 year-old Kathryn Johnson in Atlanta several months ago, police just ignore those rules, and seek to provide creative ex post facto justifications. In that case, of course, we learned that such actions were not at all uncommon in portions of the Atlanta PD.
It is nearly impossible to construct a system in which any official sanction to torture will not inevitably spiral out of control.Providing legal sanction to use torture invites similar overzealousness on the part of officials. Moreover, if the government can point to some cases of torture’s utility, the pressure to increase the range of acceptable subjects will inevitably increase–just as the drug war has increased the incidence of no-knock warrants being issued to “take down” non-violent drug offenders. And, frankly, we haven’t done a very good job of guarding the slippery slope in these and similar areas of government activity.
That doesn’t make me sanguine about giving the government the legal sanction to engage in torture, especially in an environment where heathen foreigners will be on the receiving end of it, and their redress in case of mistakes are…limited. That seems to me to have all the element necessary for an unconscionable abuse of power.
Now, let’s look at the question of whether torture works. That answer to that is, yes, but not reliably. There are a number of celebrated cases in World War II where French or Yugoslav partisans were captured by the Germans, turned over to the Gestapo, and essentially tortured to death without telling the Germans anything. We also have, conversely, literally thousands of “confessions” of witchcraft during the Inquisition, extracted under torture.
What does that tell us? Well, nothing really that we didn’t already know, which is that if you wish to get a suspect to talk, 220 volts to the genitals will probably work better than a medium-rare steak au poivre with shallots, and a robust glass of Côte de Nuits.
Whether the subject can be relied upon to tell you the truth, or just what he thinks you want to hear, is more problematic. Torture can work–by which I mean you can receive reliable information from it– through the following iterative process:
1) The subject can be induced to talk through physical pain. You can eventually get someone to tell you something, if enough torture is applied. To ensure that something is useful,
2) You must be able to verify the subject’s information in whole, and provide…correction if any part of the subject’s statement appears to be untrue.
You must be able to repeat the above steps until the subject is convinced of your ability to verify his statements and punish evasions or subterfuges. This can, needless to say, become an elaborate process. If you can’t go through the process, then you don’t really know if you’re getting reliable information from it, or if the subject is shining you on to obtain relief. Perhaps he’s telling you the truth. Perhaps he’s just getting you to look askance at an innocent taxi driver in Kabul.
Moreover, if it really is ineffectual, why does it continue to happen? Clearly, somebody somewhere is getting results.
Two things come to mind.
First, the vast majority of torture use, both historically, and in the modern world among those regimes that use it, is directed to obtaining confessions of guilt from criminal suspects. It comes as no surprise that it’s highly effective at obtaining them. Again, I refer to the Inquisition, where the possibility of death at some unspecified future date became more attractive than than the prospect of a continuance on the rack in the present case.
Second, as I wrote previously, torture does provide more information than would be obtained by abstaining from it. One wonders, however, how much of that information is actually reliable, as opposed to how much of that information is beleived to be reliable by officials. Or simply politically convenient. Those two latter things may not, in fact, be the same as the former.
Finally, the question arises, “who do we torture?” Certainly, every real terror suspect has some knowledge that can be useful. Do we get to torture all of them? Most of the justifications I’ve seen would give us the option to torture someone in a ticking bomb scenario. Which sounds nice…if you actually know there’s a ticking bomb. In the normal scheme of things, though, you really need to torture people to find out if a ticking bomb exists, not to figure out where it is.
The vast majority of torture use among those regimes that use it, is directed to obtaining confessions of guilt from criminal suspects. It comes as no surprise that it’s highly effective at obtaining them.Or do we just torture the higher-ups in the terrorist movement, as a sort of fishing expedition? This is, I gather, the justification for the interrogation techniques used on some of the al Qaeda biggies. We thought they were up to something, and we used harsh interrogation to find out what they knew.
The most interesting thing about that is that we didn’t have to brand these guys with hot pokers to get them to give it up. These guys apparently have little resistance. Threaten to open a box of StayFree® Maxi-Pads in front of them, and they sing like superstars. So maybe we got lucky in that some of these guys were easy marks.
But, as the Gestapo experience of WWII shows, sometimes, people will let you torture them to death without telling you anything. Even in Vietnam, our POWs in Hanoi would resist real, actual torture for extended periods before giving up a “confession” to their captors.
But I digress.
Either you are going to define the torture-liable population so broadly, that officials will pretty much have a license to torture, or so narrowly that, as a practical matter, you’ll never use it. If the former, you’ve got a slippery slope problem, if the latter, it’s not useful enough to even worry about sanctioning it, rather than just worrying about it on an ad hoc basis.
Jonah Goldberg has written often about the unwritten law, vs. the written law. Fifty years ago, it was against the law for the police to dispense street justice. In practice, the beat cop, who walked the same neighborhood day after day and who knew the residents, would occasionally rough up some troublemakers pour encourager les autres, and in so doing, kept the peace on his block. It wasn’t legally sanctioned, but it worked–and the cop knew that when he did it, he was risking at least his career, if it became a problem.
For a variety of reasons discussed above, as well as other, more prudential reasons in terms of the country’s image, and diplomatic reputation, I’d prefer never to see torture be enshrined in the written law.
I’ve noted before that, when I was on active duty, if I’d ever been faced with getting caught behind enemy lines in a Soviet attack in Europe, I would like to have the option of capturing a Russian officer, and finding out how to get back to our lines. And, if I had to hook up a field telephone, and make a collect call to his genitals, I’d do it without blinking, if that’s what it took to get my guys back home alive.
I wouldn’t brag about it, or mention it to anyone in responsible authority later, but if I got found out, I’d expect to take the Court-Martial. And, as long as I’d gotten my guys out, I’d have been happy to do it.
Necessity, it’s often said, knows no law. But the law shouldn’t explicitly bow to necessity. I would rather have it understood that any torture inflicted is done without sanction, and the official authorizing the torture may be in danger of serious sanctions if he uses it.
It’s probably not the best solution. But, on balance, I think it’s a better solution than giving the government explicit permission to conduct torture however they see fit. Torture is problematic for a number of reasons, and the ethics of engaging in it are, at the very least, difficult to parse. And, as Michael should well know, “hard cases make bad law”.
UPDATE [McQ]: What Dale said.
Paralleling the song, the answer should be “absolutely nothing” with a testosterone laced “Huhn!” thrown in for good measure. Personally, I have my doubts.
This is not a new topic here at QandO, as my esteemed brethren have weighed in on numerous occasions, each time settling on an emphatic “No! Torture is not acceptable.” While it would be difficult, if not impossible, to put into words the esteem that I hold for my blog brothers, I have to say that I disagree. That may be because I have never been in the military, nor been subjected to anything close to the sort of forced life-or-death decision making that breeds a camaraderie distinct unto itself. And it may be because I have the luxury (thanks to said camaraderie) to simply ponder these things at my leisure. Just the same, I cannot say that I am opposed to torture of our nation’s enemies, nor can I honestly say that any experience will change my opinion.
First, the reason I even broach the subject: release of “secret torture memos” (link added):
President Barack Obama’s administration said it would Thursday release four memos, with sections blacked out, covering the Bush administration’s justification for CIA interrogations of terror suspects … The memos were authored by Jay Bybee and Steven Bradbury, who at the time were lawyers for the then-president George W. Bush’s Justice Department Office of Legal Counsel.
The memos provided the legal framework for a program of interrogations of “war on terror” detainees that included techniques widely regarded as torture such as waterboarding, in which a detainee is made to feel like he is drowning.
I have not read the memos, and I probably won’t. The sole reason being that I’ve slogged through enough of these legal documents to have a pretty good idea of what’s in there, and to know that there is plenty of qualifying language to mitigate whatever damning quotes are eventually culled therefrom. In point of fact, these “memos” are little more than legal research projects specifically drafted so as to provide both the underlying judicial framework for the issue at hand, and the best guess at how the current policy might fit into that framework under certain factual parameters. They are merely legalese for “this is what the law says, and this is how the policy may not run afoul of that law.”
Leaving aside definitional problems (does being confined with an insect constitute “torture”?), let’s just assume that what the memos described was not only policy, but a policy that was carried out. Why is that a bad thing?
Tom Maguire provides some thoughts:
IN OUR NAME: The newly released torture memos are cold-blooded and clearly client-driven – the lawyers knew the answers they wanted and reasoned backwards. Quick thoughts:
1. The US concern about actually harming someone comes through on every page. In fact, at one point (p. 36 of .pdf) the legal team wonders whether it would be illegal for the interrogators to threaten or imply that conditions for the prisoner could get even worse unless they cooperate. I suppose these memos will provide welcome reassurance of our underlying civility to both the world community and the terrorists in it.
2. There are some fascinating legal gymnastics on display. My favorite might be on p. 39, where we learn that Article 16 of the Geneva Convention does not apply because the CIA is operating in areas not under US jurisdiction. Nor do the protections of the US Constitution extend to aliens being held prisoner under US control but abroad outside of US jurisdiction.
However, another contender for the “It Would Take A Lawyer To Think Of This” prize is the argument that waterboarding does not constitute a threat of imminent death because, even though the prisoner thinks they are drowning, they are not, and anyway, the mental effect is transitory and does not result in long term mental harm – call it the “Psych!” defense. (The absence of long term harm comes from the experience of US sailors and soldiers passing through SERE school in the service of their country; whether a jihadist waterboarded by the Great Satan would also rebound psychologically is not explored here). I would think that a game of Russian Roulette played with a fake bullet might pass all these requirements other than the SERE experience.
Tom’s comparison to Russian Roulette intrigues me because I think it is the perfect analogy. I’ve written before that, in my opinion, waterboarding crosses the legal line because of the way the law is written. I’ve never been convinced that the technique crosses any moral boundary because I’m not so sure that it’s any different than placing a caterpillar in the same cell as a man who’s deathly afraid of caterpillars. Playing on the mind’s fears is part and parcel of both manipulation and torture, but does not mean that the two are equivalent. Morally speaking, therefore, I have doubts that techniques akin to waterboarding amount to “torture” per se.
But assuming that they do, again, what exactly is the problem? Aficionados of the subject will say that torture is ineffectual. Yet, Khalid Shaikh Mohammed would appear to be a test case in contrast to that wisdom, as would the fact that our own soldiers are routinely informed that “everyone breaks eventually.” Moreover, if it really is ineffectual, why does it continue to happen? Clearly, somebody somewhere is getting results.
Even leaving aside the efficacy vel non of torture, does it hold such moral deficiency as to abandon it altogether? Here I plead ignorance because, in my mind, I view enemies to my country as enemies to my family. By that I mean, if anyone were to hurt, or even threaten to hurt, a member of my family, I can’t even begin to express the unholy hell I would visit upon such a cretin. When I view A Time To Kill I can’t help but think that that the murderous, rapist scum got off too lightly (which, of course, was the point of Grisham’s characterization). Other than the fear of anything nefarious happening to my children, my greatest fear is of what I would try to do to those who hurt them or even suggested that they might do so. I have the same feeling when it comes to anyone who seeks to destroy my country and her citizens with whom I’ve (gratefully) cast my lot. My morality directs me to say that what any of you visit upon the least of my fellow countrymen, I will repay you a thousandfold and more. That may be my Irish bravado speaking, but it speaks as honestly as any man possibly can.
So I am left with the conundrum of how my actions in response to an attack on my family should be any different than an attack on my country, and why I should feel any differently about the perpetrators of such actions, whether they have followed through with their plans or not. I understand that my response — i.e. the sanctioning of “torture” — may not be entirely rational. Indeed, if a firetruck runs over my child while rushing to save an orphanage, I would feel no less grief, and probably wish an equal amount of horror upon the transgressors as I would upon 19 hijackers who murdered 3,000 of of my fellow citizens. In fact, probably more. There is nothing particularly rational in such a response. But I have little confidence that, should I have the chance to avoid either disaster, I would refrain from running the perpetrators’ minds through a psychological cheese grater if there was even a small chance that the disaster could be avoided. That may be little more than a testament to my weakness as a moral human being, but I think that I’m not alone.
Torture, however defined, is not a pretty thing. I make no bones about having zero regard for my enemies (i.e. those who want to destroy my country a la 9/11). If subjecting them to extreme psychological and/or physical discomfort, or the threat of such, will prevent further attacks, then I confess that I am happy to reward those monsters with the penalty they richly deserve. I accept that I may be wrong in such thinking, but I don’t find that case has been successfully made as of yet. Indeed, I defy you to take this test and declare that “torture” can never be acceptable.
The ultimate point is, torture is a horrible thing and should be avoided if at all humanly possible. But, unfortunately, we live in a world where the “humanly possible” has limits. In those cases, why is it that torture should be off limits? Is there a rational reason? I’m willing to be convinced, but I have my doubts.
DHS Secretary Janet Napolitano reacts to the uproar over the, and I use the phrase very loosely when referring to it, “analysis and intelligence” report released by her department on “rightwing extremists”:
The primary mission of this department is to prevent terrorist attacks on our nation. The document on right-wing extremism sent last week by this department’s Office of Intelligence and Analysis is one in an ongoing series of assessments to provide situational awareness to state, local and tribal law enforcement agencies on the phenomenon and trends of violent radicalization in the United States. I was briefed on the general topic, which is one that struck a nerve as someone personally involved in the Timothy McVeigh prosecution.
Let me be very clear: we monitor the risks of violent extremism taking root here in the United States. We don’t have the luxury of focusing our efforts on one group; we must protect the country from terrorism whether foreign or homegrown, and regardless of the ideology that motivates its violence.
We are on the lookout for criminal and terrorist activity but we do not – nor will we ever – monitor ideology or political beliefs. We take seriously our responsibility to protect the civil rights and liberties of the American people, including subjecting our activities to rigorous oversight from numerous internal and external sources.
I am aware of the letter from American Legion National Commander Rehbein, and my staff has already contacted him to set up a meeting next week once I return from travel. I will tell him face-to-face that we honor veterans at DHS and employ thousands across the department, up to and including the Deputy Secretary.
As the department responsible for protecting the homeland, DHS will continue to work with its state and local partners to prevent and protect against the potential threat to the United States associated with any rise in violent extremist activity.
A couple of points – if what we saw is the level of intelligence the department is gathering and is indicative of the sophistication of the analysis it sees fit to publish, we are all in very deep trouble. That is one of the worst products I’ve ever seen produced by an agency anywhere, and I’ve read hundreds of intelligence analysis in my time. No specifics, vague and over-generalized threats, and nonsensical reasoning were its hallmark. That was my primary problem with it. As I pointed out, half of America, to include the news media, falls under their “rightwing extremist” umbrella.
Secondly, as the commander of the American Legion so aptly put it, the report resorted to a “casual defamation” of all soldiers with its claim that they were likely to be recruited by right wing hate groups. So yeah, she needs to meet with him and she needs to apologize for that ‘casual defamation’ and also admit that the product that was sent out was, to be kind, a piece of crap.