Yesterday Jon Henke challenged the Right to come up with policies that are popular, viable, workable, transformational and sustainable. (Follow the link to see what he means by each of those.) I’ve previously suggested a broad-based agenda that I thought could be sold as an alternative to the Democrats’ agenda, but I think a few of the specific policies are particularly strong, and they stick to a consistent theme.
Libertarian paternalism — which means that certain initial decisions are made for you, but you are left a way to opt out — can be a good or a bad thing, depending on the status quo. If the status quo is freedom, I’d just as soon not add in an element of paternalism in virtually any case. But if the status quo is paternalism, then libertarian paternalism is a step in the right direction. Fortunately, giving people more options is much more popular than changing their status quo decision.
I propose that the Right should target existing paternalism and offer as many opportunities to opt out as we can devise. My main two examples are education and entitlements.
I consider education to be any political coalition’s #1 long-term priority. If your opponents control education, chances are you will eventually lose on everything else. So, what policies should the Right pursue on education?
Vouchers aren’t a new idea, but we on the Right could be pursuing them in much more creative ways than we are now, to build a broad working alternative to state schools. With variable-cost vouchers and pilot programs that target the “victim classes”, the Right can play full court press on vouchers in every school district.
In every school district across the country, we should have vouchers at least equal to the variable cost of sending one extra child to public school. Democrats have argued for a long time that we need more spending per student to give kids smaller class sizes and better materials such as textbooks, and have used that to justify countless bond measures and tax increases to increase public school funding.
If a voucher just covers the variable cost of an extra student, then a voucher helps create smaller class sizes and increases the amount of money the public school can spend on each student.
You can see how a voucher for variable costs puts the Left in a Catch-22: Every extra dollar they want to spend per student is an argument for a bigger voucher, and an opportunity for the private sector to spend the dollar more efficiently than the public sector.
Make Friends in Low Places
We can do even better: pilot voucher programs should very openly target kids who are performing worst in the current system, in part because proposing vouchers for them undercuts the argument that vouchers just skim the cream of the crop.
Voucher proponents have already focused on several low-income and minority populations, using needs-based criteria and simple geography; the Right should be pushing this smart strategy much more aggressively – it undercuts Democrats’ arguments against vouchers beautifully, and makes a direct play for the Left’s base. The apparent success of the DC voucher system has made attempts to cut the program very embarrassing for Democrats; we need more of that.
Moreover, the Right should propose vouchers that help children who score on the bottom half of the test-score distribution. The research I’ve read indicates that these children show the greatest gains from voucher programs. For the same reason, target kids with histories of disciplinary problems and special-needs children (paging Sarah Palin).
It would be a bridge too far for the Democrats to argue that these kids enhance the performance of public schools after using the opposite argument to fight vouchers for so long.
And finally, the Right should propose voucher programs to target the many minors who have already dropped out of school. Kids who have outright given up on the public school system, or who rarely show up, aren’t doing anything to improve the performance of those schools. If Democrats want to keep up the pretense that they care about these kids, they shouldn’t have any problem with helping these kids become part of a new private education market.
Those are just a small number of ways we can turn the Left’s most popular arguments against them and start to build a real market in education. In the meantime, the Right would be demonstrating that markets can work better than state-administered programs, and help the “little guy” who’s been screwed by the public system.
Where necessary to make the policy viable, the Right could be flexible on the matter of vouchers for church-founded schools (like Catholic schools); the first priority is building a broad education market outside of the state.
Here’s another place where reform would be truly transformational. The Right should push for an opt-out for the major entitlements – Medicare and Social Security. A reform doesn’t have to be a full privatization to accomplish a great deal of good.
Many people are currently collecting benefits from Medicare and SocSec, and we can assume that they will turn out to vote against anything that takes away those benefits. The Right can start making progress on reducing our crushing long-term obligations by (once more for effect) giving everyone as many opportunities to opt out as possible.
Why not allow people to adjust their expected benefits, with higher or lower individual taxes to compensate for the change from the “standard” level? The SSA could set a minimum level of contributions to guarantee its promised benefits, so that the legislation becomes non-threatening to beneficiaries, and thus politically viable. To get the greatest tax cut, you opt out of all retirement benefits; you can change your mind later, but your benefit and/or tax level must be adjusted appropriately. And the more people who opt out, the lower the minimum tax rate can go; that rate could be adjusted at periodic intervals, perhaps once a year.
Similarly, why not allow people to adjust their expected retirement age, again paying higher or lower taxes to compensate?
Both of these adjustments would introduce flexibility along with a price mechanism.
Yes, this means that some people might choose to pay the minimum tax and find themselves at age 67 regretting their earlier decisions, but everyone would know that they made a conscious choice to change from the status quo. And in the meantime, those who opt out don’t feel like such direct stakeholders.
Medicare and other state medical benefits
To get more people off the rolls, allow them to opt out of Medicare eligibility and other state medical benefits in exchange for some mix of:
- lower payroll taxes
- tax-free health savings accounts
- a tax cut on their individual health insurance
- vouchers for private insurance and private disability coverage
… as long as the total cost of the mix is lower than the expected cost of Medicare benefits. This way, the Right can not only cut into the massive expected costs on the near horizon, but also get fewer people to feel like stakeholders in the future of the state-administered system.
The most effective arguments against reform are allegations that people will lose the benefits they have now. Psychologically, we regret losing a dollar more than we regret not acquiring that dollar in the first place. That’s a big part of how the Right beat universal health care under Clinton: by telling the American people that they would lose their current insurance, with which most of them were satisfied.
Whether we like it or not, it is stupid to do a frontal assault on a hardened position. Instead, we should apply libertarian paternalism to divide and conquer by giving our opponents as many chances to defect as possible.
Bizarro world continues unabated. The logic behind this assertion is … uh, “subtle” to say the least (my emphasis):
First, on “constitutional dictatorship,” there is, somewhat surprisingly, Minnesota, where Gov. Tim Pawlenty, a favorite of the Repblican right wing (assuming there is anything else than a right wing in the GOP these days) is apparently going to use all of his powers under the Minnesota have exercised such powers, but Pawlenty’s exercise in unilateral government seems to be of a different magnitude. Perhaps we should view Minnesota as having the equivalent of a Weimar Constitution Article 48, the “emergency powers clause” that allowed the president to govern by fiat. Throughout the 1920s, it was invoked more than 200 times to respond to the economic crisis. Pawlenty is sounding the same theme, as he prepares to slash spending on all sorts of public services. The fact that this will increase his attractiveness to the Republican Right, for the 2012 presidential race that has already begun, is, of course, an added benefit, since one doubts that he is banking on a political future within Minnesota itself (which didn’t give him a majority at the last election; he was elected, as was Gov. Rick Perry of Texas, only because of the presence of third-party candidates). One might also look forward to whether he will refuse to certify Al Franken’s election to the Senate even after the Minnesota Supreme Court, like all other Minnesota courts, says that he has won. Whoever thought that Minnesota would be the leading example of a 21st-century version of “constitutional dictatorship” among the American states?
I don’t know who Sandy Levin, the author of the above screed, is but I have to believe he has become lost in his own rhetoric. We are honestly being asked to accept the premise that a Governor, using his constitutionally-approved and legislature-granted powers, is somehow a “dictator” for … slashing spending in a time of budget shortfalls?
Gov. Tim Pawlenty promised Thursday to bring Minnesota’s deficit-ridden budget back into balance on his own if the session ends Monday without an accord, using line-item vetoes and executive powers to shave billions in spending.
Pawlenty held out the possibility of a negotiated agreement, but said he was prepared to use vetoes, payment suspensions and so-called unallotment to cut the two-year budget to $31 billion. That’s about $3 billion smaller than the slate of spending bills sent to him.
The move infuriated Democrats who run the Legislature. House Speaker Margaret Anderson Kelliher of Minneapolis dubbed Pawlenty “Governor Go It Alone.” Pawlenty shot back that without the step Kelliher would be “Speaker Special Session.”
“There will be no public hearings. There will be no public input. There will just be a governor alone with unelected people whispering in his ear of what to cut and what not to cut,” Kelliher said, calling it “bullying.”
Apparently this is exactly what Levinson and the Minnesota left want us to believe — i.e. that using duly constituted powers is the equivalent of behaving as a dictator. How utterly ridiculous.
If this were a situation where the governor was unilaterally deciding to burden the taxpayers more, or he was singling out a particular group of people to bear the brunt of arbitrary government rules, I could see where the dissenters here would have a point. If the executive branch suddenly declared, without any legislative input, that English was the official language of Minn. and no other languages would be recognized anywhere in the state upon penalty of law, then, legally granted powers or not, I would understand and support Levinson et al.
Instead, the perfectly preposterous idea that balancing a state budget, using the very powers granted the governor to accomplish the task, is now deemed the equivalent of the Weimar Republic emergency powers (you know, the ones that allowed Hitler to declare himself supreme dictator over Germany).
To be sure, the focus of this vitriolic (and, I’d say, hysterical) attack on Pawlenty stems from his threatened use of “unallotment” powers:
The procedure exists under state statute, and “the first prerequisite to unallotment is that the Commissioner of Finance ‘determines that probable receipts for the general fund will be less than anticipated, and that the amount available for the remainder of the biennium will be less than needed.”
Then the ball is in the governor’s court:
“After the Commissioner of Finance determines that the amount available for the biennium is less than needed, the governor must approve the commissioner’s actions before the commissioner can either reduce the amount in the budget reserve or reduce allotments.”
The Legislature is consulted but does not have any power or ultimate say in the governor’s actions. The process starts at the beginning of the next fiscal biennium, which means that Pawlenty won’t enact anything until July 1. And what he’ll do is anyone’s guess.
“Depending on what he does with line-item vetoes, I figure we’ll see anywhere from a half a billion to $2 billion in unallotments,” Schultz said. “It’s unprecedented in dollar amount and in willingness to use it.”
Is it good policy or politics?
Schultz points out that unallotment is on the books for “emergency conditions” in which “the Legislature can’t do its job,” such as a budget forecast that comes out when lawmakers aren’t in session.
But in Schultz’s opinion, Pawlenty is “creating the emergency conditions that allow him to use it.”
“He appears to not want to negotiate in good faith,” Schultz offered. “Working with the Legislature is supposed to be a cooperative venture, not a take-it-or-leave-it one.”
The problem, of course, is that the legislature keeps sending a bill that proposes more spending than Minnesota’s revenues will allow. Because the governor and the legislature can’t agree on identifying new revenue sources (e.g. Leg. wants to tax the rich, Gov. wants to borrow against tobacco settlement), then the two sides are at an impasse. Despite what some might say, a proposed $3 billion deficit with no budget alternative in place does represent a fiscal emergency. After all, the money has to come from somewhere, or the services (giveaways, or whatever) will have to be cut, and the government may be forced to shut down. Why that doesn’t represent a fiscal emergency of the very type contemplated by the unallotment statute remains a bit of mystery for us less hysterical folks.
Jumping out the weeds, and regardless of how one might view the necessity of spending more or less via the Minnesota budget, I am simply flabbergasted that anyone could possibly suggest that forcing the government to spend less is in anyway, shape or form equivalent to dictatorship. To accept such premise is accept the idea that government spending is the sole source of freedom. I categorically reject any such notion. And if dictatorship is to be defined as standing in firm opposition to it, then sign me up.
Steven Rattner, the Obama administration’s “Car Czar,” was recently accused of acting, well, rather czar-ishly by White & Case attorney Tom Lauria. Those accusations were later corroborated by others privy to the meetings. Now comes a rather disturbing (and presently unsubstantiated) account of exactly what was said1:
Confronting the head of a non-TARP fund holding Chrysler debt and unwilling to release it for any sum less than that to which it was legally entitled without compelling cause, this country’s “Car Czar” berated the manager of said fund with an outburst of prose substantially resembling this:
Who the f*** do you think you’re dealing with? We’ll have the IRS audit your fund. Every one of your employees. Your investors. Then we will have the Securities and Exchange Commission rip through your books looking for anything and everything and nothing we find to destroy you with.
Faced with these sorts of threats, in this environment, with valued employees in the crosshairs and AIG a fresh, open wound upon the market, the fund folded.
Keep in mind that the non-TARP creditors in the bankruptcy have been forced to lump their fates in with the TARP recipients (emphasis added):
As of last night’s deadline, we were part of a group of approximately 20 relatively small organizations; we represent many of the country’s teachers unions, major pension and retirement plans and school endowments who have invested through us in senior secured loans to Chrysler. Combined, these loans total about $1 billion. None of us have taken a dime in TARP money.
As much as anyone, we want to see Chrysler emerge from its current situation as a viable American company, and we are committed to doing what we can to help. Indeed, we have made significant concessions toward this end — although we have been systematically precluded from engaging in direct discussions or negotiations with the government; instead, we have been forced to communicate through an obviously conflicted intermediary: a group of banks that have received billions of TARP funds.
Rattner’s alleged threats should give everyone some pause. Is it really the case that private companies will be forced to do the President’s bidding or face the full brunt of the state’s police power? Because that’s exactly what’s being alleged. I share the concern of the reporter of Rattner’s comments in that I certainly hope the accusations are inaccurate/misstated/outrageously untrue.
It is my deepest wish at this point that there is nothing about this latest bit of Car Czar thuggery even remotely based in fact- as this would mean that this country has truly and unarguably descended into fascism.
I use this term, “fascism,” quite deliberately. I also use it well aware that many will consider it needlessly inflammatory. Be this as it may, I submit there is simply no other term that properly describes the style and tenor of government emerging both in public and behind once closed doors.
The corporatist model — i.e. where unelected government officials and industry “leaders” fashion economic policy for the benefit of the state as whole, and in complete disregard of, and often quite hostile to, individual liberty — has never died, and is used more often than you might think (e.g. in the creation of energy policy, environmental policy, financial market rules, etc.), albeit in less radical form. That does not mean that Jews or any other disfavored groups will be marched off to concentration camps (opponents of gay marriage not named “Barack” can be forgiven for thinking otherwise). But it does mean that the preconditions necessary to ease the way for totalitarian control are already present. If enough people buy the “myth” presented by those in charge, then more and more power will eventually be ceded to a central authority, who will then have the ability to steamroll any opponents to the collective will. The accusations presented above suggest that Rattner (and one has to presume Pres. Obama), believes that enough Americans have bought the myth as to allow for such bullying. If so, that is a truly disturbing thought to contemplate.
UPDATE: In an article at the WSJ essentially chiding the MSM for failing to dig into this story, Tom Blumer notes the following (my emphasis):
The New York Times, in a report by Michael J. de la Merced and Jonathan D. Glater, does note the threats and Gonzales’s ruling, and has the following at its second-last paragraph.
When the debtholders, calling themselves the Committee of Non-TARP Lenders, made their first public statement last Thursday, they said their group consisted of about 20 investment firms holding about $1 billion. According to their motion to file under seal, the group now claims about $300 million in holdings.
de la Merced and Glater were apparently not curious about the possible reasons why the amount involved, and presumably the number of holders, is significantly lower than it was just a few days ago.
Maybe it’s because the threats are real, guys.
1 Edited to make SFW.
Will someone please buy these people a subscription to Google or something? In trying to compare TANF and TARP spending, Nancy Folbre makes a rather glaringly error:
Robert Rector and Katharine Bradley of the Heritage Foundation, a conservative research organization, estimate that federal welfare spending amounted to $491 billion in fiscal 2008. (They don’t explain what specific programs they included in this estimate, and I’ll try to unpack it in a future post.) Even their extremely high estimate remains far below estimates of the total of $2.5 trillion spent on financial bailouts this year. The libertarian Cato Institute often emphasizes the issue of corporate welfare, but it’s remained remarkably quiet so far on the topic of bailouts.
David Boaz begs to differ:
Since she linked to one of our papers on corporate welfare, we assume she’s visited our site. How, then, could she get such an impression? Cato scholars have been deploring bailouts since last September. (Actually, since the Chrysler bailout of 1979, but we’ll skip forward to the recent avalanche of Bush-Obama bailouts.) Just recently, for instance, in — ahem — the New York Times, senior fellow William Poole implored, “Stop the Bailouts.” I wonder if our commentaries started with my blog post “Bailout Nation?” last September 8? Or maybe with Thomas Humphrey and Richard Timberlake’s “The Imperial Fed,” deploring the Federal Reserve’s help for Bear Stearns, on April 14 of last year?
Boaz goes onto reproduce a video compilation of Cato scholars denouncing bailouts on “more than 90 radio and television programs.” He also produces an impressive list of papers, articles and media appearances which seriously challenge Folbre’s notion of “remarkably quiet.”
Folbre doubles down here:
You’re right. The Cato Institute website has not been silent. It just didn’t meet my expectations of adequate noise.
Yeah. Too bad her post didn’t meet reality’s expectations for factual.
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?
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.
The over-reaching isn’t only confined to the federal government. My latest Examiner column.
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.
My latest Examiner column taking on the recently increased federal tobacco tax.
In what I can only surmise is the latest talking point to emerge from JournoList, Glenn Beck has replaced Rush Limbaugh asthe token leader of the Republican Party, against whom all manner of mud will be slung. Reminiscent of the Clinton years, talk radio hosts are being assailed as the progenitors of hate, and even being blamed for recent shootings such as that in Pittsburgh. All of this nonsense, of course, but the smears will be cast about by lefty cohorts just the same.
The most recent offering is from Michael A. Cohen writing at Politico, entitled “Extremist rhetoric won’t rebuild the GOP”:
Watching Fox News’ new sensation Glenn Beck is not for the faint of heart. It is a disquieting entree into the feverish mind of a conspiracy theorist who believes, among other things, that the government wants to remotely control our thermostats, that the relaxing of the ban on stem cell research — as well as efforts to prevent global warming — is reminiscent of Nazism, that the Federal Emergency Management Agency might be setting up concentration camps and, finally, that the country is on the path to socialism or possibly fascism but definitely some “-ism” that should be avoided.
Frankly, that is all you really need to read of Mr. Cohen’s piece to understand what he is on about. The short version is that rightwing leader, Glenn Beck, is spreading dangerous conspiracy theories that hurt the GOP and the nation. The problem, as always, is that the charges just aren’t true.
Taking them one by one from the cited paragraph, here is what Cohen asserts are the product of “the feverish mind of a conspiracy theorist”, and why his assertions are false:
(1) “the government wants to remotely control our thermostats”
I don’t know to which Beck comments Cohen is referring, but the fact is that the California government proposed exactly such a law:
Next year in California, state regulators are likely to have the emergency power to control individual thermostats, sending temperatures up or down through a radio-controlled device that will be required in new or substantially modified houses and buildings to manage electricity shortages.
The proposed rules are contained in a document circulated by the California Energy Commission, which for more than three decades has set state energy efficiency standards for home appliances, like water heaters, air conditioners and refrigerators. The changes would allow utilities to adjust customers’ preset temperatures when the price of electricity is soaring. Customers could override the utilities’ suggested temperatures. But in emergencies, the utilities could override customers’ wishes.
Clearly, it takes no “feverish mind” to grasp the fact that such programs are being considered.
(2) “the relaxing of the ban on stem cell research — as well as efforts to prevent global warming — is reminiscent of Nazism”
Well that does sound pretty bad. At least, until you track down what Beck actually said. In an interview with Professor Robert George of Princeton University, Beck rehashed why allowing progressive political interests to be in charge of steering “science” in the name of the public good was not necessarily desirable:
GLENN: I tell you, it’s so disturbing. I’m getting a lot of heat today because yesterday on television I talked about this and I said, you know, it was the progressives and the scientists that brought us eugenics. The idea that science — if evolution is true, then science should be able to help it along, and it was the guys in the white jackets. It was the scientists and the doctors that brought us the horrors of eugenics and it’s because —
PROFESSOR GEORGE: Glenn, can I fill you in a little bit? Because you are absolutely right. Let me tell you a little bit of the history. It’s fascinating. Those guys in white coats were not even during the Nazi period. These weren’t guys working for the Nazis. This was years before the Nazis during the Weimar Republic.
GLENN: It was here.
PROFESSOR GEORGE: When progressive, as they were then called, doctors and lawyers and others, decided that there were some lives unworthy of life. And two scholars, a guy named Bending and a guy named Hoka (ph) who were not Nazis who were opposed to the Nazi federy and so forth, they saw them as really sort of lower class thugs. But these two guys, a law professor and a medical professor, wrote a book called Lebens unwürdig von Leben, life unworthy of life which was a roadmap for taking the life destroying the lives of retarded people, people regarded as inferior because of their low intelligence or physical impairment or so forth. That was the roadmap. It was before the Nazis. You are 100% right.
GLENN: And a lot of this stuff, I mean, started here originally, did it not? Didn’t some of the original thinking —
PROFESSOR GEORGE: Well, it didn’t just begin in Germany. It’s certainly true that there was a strong eugenics here among the elite, among the progressive, the people who regarded themselves as the forward thinkers. Just the name, one figure from my own field of philosophy of law, Oliver Wendell Holmes, the great American jurist and philosopher and eventually Supreme Court justice who was with the program entirely of eugenics before the Nazis gave it a bad name. So it was here in America just as it was in Germany.
GLENN: So here’s what I’m afraid of and, you know, call me crazy, but whenever you unplug from ethics and you put science at the top and then you surround it with a bunch of progressive elitists, that usually doesn’t spell, you know, spell out anything that’s good.
With respect to the dangers of separating ethics and embryonic stem cell research, the conversation also included this tidbit:
GLENN: The guy who started embryonic stem cell research, I heard a quote from him yesterday, said if you haven’t — if this whole concept of research on embryos hasn’t given you pause, then you haven’t thought about it enough.
PROFESSOR GEORGE: Oh, yes, that’s Jamie Thompson you are quoting who was the first person to isolate human embryonic stem cells. He is a research scientist at the University of Wisconsin. And he said that in explaining why he had done path-breaking work, very important pioneering work to create alternative sources of pluripotent stem cells, pluripotent just means like embryonic stem cells, cells that are able to be manipulated to become any sort of cell tissue so they would be very useful in regenerative medicine if all things work out. But Thompson was explaining why he went down another path and created a technology for which he’s likely to win the Nobel Prize called induced pluripotent stem cells which can be created without using embryos or destroying embryos or killing embryos. So yes, even somebody like Thompson recognizes that there’s a huge ethical issue here. But President Obama’s just swept past it, just swept past it.
To be fair, whenever Nazism or fascism enters the fray, noses are sure to get bent out of shape and even clearly expressed thoughts will be missed. However, as easily surmised from the snippets of conversation above (much less the whole thing), it’s quite clear that Beck was not comparing stem cell research to Nazism, but instead warning against allowing progressive scientists to drive the debate without regard for the ethical issues. By referencing an historical consequence of blindly following such advice, Beck is simply making a useful comparison to illuminate his point. Nowhere does he compare stem cell research to Nazism.
(3) “the Federal Emergency Management Agency might be setting up concentration camps”
Of all the accusations leveled at Beck by Mr. Cohen, this is the most egregiously false. In my opinion, the charge would fairly support a suit for defamation against Cohen, even under the heightened “actual malice” standard set forth in New York Times, Co. v. Sullivan. Far from asserting that FEMA was setting up concentration camps, Beck actively and thoroughly debunked the conspiracy theory [HT: Allahpundit]:
How Cohen could make the assertion he did is simply bewildering. Even the barest amount of research would have shown how wrong he was. If nothing else, Cohen should immediately retract his claim and apologize to Beck.
(4) “the country is on the path to socialism or possibly fascism but definitely some “-ism” that should be avoided.”
After delving into pure libel, Cohen quickly steers into idiocy. The assertion here is that Beck’s opinion that the Obama administration policies are grounded in statist/collectivist ideology is a conspiracy theory. Missing from Cohen’s analysis is any mention of the last eight years of BusHitler! droning. Nor is there any explanation as to how an opinion regarding the underlying ideology of the President’s governing philosophy could be a conspiracy theory. Typical of liberals nowadays, Cohen simply likens any mention of similarities between Obama’s agenda and actual socialist/fascist/statist policies as fear-mongering worthy of no examination, and what’s wrong with socialism anyway? Apparently ignorance of recent events is not Cohen’s only forte, as he is also seemingly unaware of anything that has happened over the last century or so.
Regardless of how one might feel about Glenn Beck, and whether you agree with him or not, he is being unfairly smeared by Mr. Cohen. The sorts of attacks set forth above will only broaden in scope unless confronted, and they will be used to discredit any similar veins of thought no matter how tangential to Glenn Beck, Rush Limbaugh, or any other strawman leader the left chooses to hang around the necks of those opposed to statist politics. Hit these rhetorical bullies in their lying collectivist mouths now, or face the unfortunate consequences of letting them drive the agenda and control the language of the debate.