Let’s run through the main problems associated with illegal immigrants: state welfare costs, crime (or is it?), lack of assimilation (particularly if they’re allowed to vote), and suppressing wages for poor natives.
I think we can mitigate a lot of these problems with solutions far more realistic (in the short-to-medium term) than mass deportation, amnesty or ridding ourselves of the welfare state.
First, let’s recognize that the security threat becomes more complicated when you place wishful restrictions on immigration. When there’s a flood of mostly non-threatening people crossing the border outside of any official process, it’s a lot harder to pick out the few really malicious ones. And it’s really hard/expensive to stop that flood along such a long border.
We should be striving to funnel as many of them through official processes as possible, so we know who’s here, we know their backgrounds and we can separate the villains from those who just want to observe a basic civic peace and take advantage of opportunities in a freer country. That means offering carrots and sticks to both prospective immigrants as well as those who are already here, and I’ll get to those incentives below.
Second, minimize how much the welfare state serves and controls non-citizens.
- Uncompensated care makes up only 2.2% of medical costs in this country, and a good chunk of that doesn’t come from illegals, so the fact that many illegals wait until they need to use the emergency room, while irritating to some, isn’t a political hill to die on. As long as it’s mostly limited to taking care of communicable diseases and real emergencies, which can be enacted into law, it’s tolerable.
- Education is a much bigger problem. I recall reading that there are 1.6 million illegal immigrants under age 18 in the States, and being from Southern California, where the largest budget item by far is education, I know that they (and natural born citizens born to noncitizens) represent a big cost. Here we can do a bit of political jiu-jitsu: target guest worker families with a school voucher program.
- They’re already in public schools, so it’s a win if they instead form the basis for a larger private school market. The larger the market, the more the market can work its magic.
- It can come with strings attached, like a requirement that any school accepting vouchers be able to show an improvement in English language skills at least as good as nearby public schools.
- It’s not like Democrats have a good argument against it: it’s nearly the opposite of cream-skimming. And when guests get this, naturally other groups are going to want it too.
- Transfer payments (Social Security, unemployment, welfare, etc.), obviously, should be off the table for non-citizens. I have no problem with people who want to take risks in a freer market; a host country owes them nothing more than securing their rights.
The idea here is to weed out those who aren’t seeking opportunity so much as handouts. Those seeking opportunity are naturally more eager to assimilate.
Third, take the prospect of adding tons of dependent immigrants to the voter rolls off the table. Instead, we can get most of what we want by creating a liberal guest worker program that virtually all prospective immigrants and current illegal residents can join simply by identifying themselves to authorities, as long as it’s clear that they’re going to generally be paying their own way, so that people with a dependent mindset are weeded out by attrition.
So what are the carrots and sticks here? Without doing anything that would turn stomachs (and thus make reform politically impossible), we can get rid of the bad apples while not incurring the large costs associated with trying to throw 12 million people out of the country.
- A program allowing people to easily enter the country without being harassed should increase suspicion of anyone who’s still trying to immigrate the hard way — and that would increase public support for border security.
- Deport illegals who fail to register under the guest program and then commit serious crimes — violent crimes or big property crimes like auto theft. Those who commit petty crimes and can’t prove their status can either apply for guest status and take their punishment here or accept deportation.
- No sweeps or “asking for papers” for those who are just here peacefully. Only those charged with another crime can be asked to prove their status within a reasonable time frame.
- Come to an agreement to build cheaper-run prisons in Mexico to hold illegals during their sentences — no sense in keeping them in expensive American prisons if we’re planning on deporting them anyway.
- Illegals can’t access the school voucher program, but guest worker families can.
- Perhaps also allow vouchers for English-language and Civics education for adults.
I’m open to any other ideas, but that seems like a good foundation, accepting (in the neolibertarian fashion) that the welfare state won’t disappear tomorrow, but offering a positive agenda that tends to increase liberty.
So why would libertarians not be “open borders guys” as Dale admits in his post about Arizona’s new illegal immigration law? Well, for one, for the same reason Milton Friedman understood when he said “you can’t have free immigration and a welfare state.”
I’d love to have free immigration or “open borders”. I’d like to see free people who want to work and better their lives be able to freely wander to where such opportunities exist. In an ideal world, what I would call my moon pony and unicorn world, that’s the way it would work.
I’d also prefer not to have a welfare state. Welfare states are, in my opinion, destructive states that kill human productivity and builds the power of the state to a degree that “citizens” eventually become vassals. Additionally, I’m not keen on my hard earned dollars going to support such a state. But they do.
If you eliminate the welfare state, the “open borders” argument has more credibility. But borders aren’t going away anytime soon. Unilaterally eliminating ours or, for the sake of argument not monitoring who comes in the country, isn’t going to change anything as regards the welfare state. Unless those coming in are required to immediately contribute to the state welfare apparatus (an anathema any open border theory) before taking advantage of it, the desire to keep illegals out and away from state welfare that the citizenry has paid for will remain high. That’s a practical concern that drives much of the anger and desire of the citizenry to keep illegals out.
Since the welfare state doesn’t appear to be going away any time soon (if ever) either, again it seems rather silly to argue that “open borders” is a viable solution. Yes, it’s an ideologically pure libertarian solution, but it denies reality. That doesn’t mean it’s not a good goal, but it does mean that in the current situation, no one is going to listen to it seriously or give it any credence.
And then, to compound the argument against open borders, there’s a second problem. There are a whole bunch of people out there who are trying to kill us. Not random criminals, who are bad enough, but an entire movement dedicated to the demise of those who live in this country. “Open immigration” or open borders would only grant full and unimpeded access to those who want to do us harm. It is something they’d welcome. Imagine, if you will, not monitoring anyone who comes in or what they might bring. How long would it take for our enemies to establish themselves and strike?
Now the natural inclination of my libertarian kin at this point in a discussion like this is to say, “yeah, but if we hadn’t gotten entangled in those foreign alliances and remained isolationist, we could have …”. Could have what? Sold our products to ourselves? Avoided a religiously driven zealotry that targets nations like ours just because they’re” infidels?” Pretended Nazism and Japanese imperialism weren’t a threat to us and our way of life?
Even if that’s shrugged off, we still need to trade to live. And trade requires interaction. International trade requires international interaction. You can’t do that as an isolationist (and “open borders” seems contradictory – at least to me – to being an isolationist. How does one “isolate” themselves except behind their borders?). Those you interact and trade with have certain demands that come with trade you either negotiate or they refuse the trade. While it is wonderful to think that we could have survived quite nicely by being internally self-sufficient and trading only within our borders, it’s probably nothing more than a pipe-dream. We could no more keep the world out of here than the Japanese were able to keep us out of Tokyo bay. Simple demand of the citizenry for products from other nations would have forced that.
Open borders have only existed in times when there was no welfare state and no existential threat – and, in fact, no real government in place. Think the settling of the west and the borders of both Canada and Mexico. People passed through them pretty much at will seeking a better opportunity or a better life. That is an era which has passed. Even as we were warned by our founders to avoid foreign entanglements, we were becoming aware of their necessity – self-protection or mutual protection among them. And even as we wished for the ability to open our borders to all free people, we became aware of those who would use such an advantage to harm us. Or, as the welfare state developed, to take advantage of that to which they’re not entitled.
Like many laudable desires, that of “open borders” doesn’t survive reality of a changing (and smaller) world. All things being equal, I’d prefer open borders for free people. But that’s not how this world works and the disadvantages – partly our own doing, partly that of our enemies – argues pretty strongly against “open borders” – at least in the present.
All of that said, we have a problem to deal with. The welfare state isn’t going away nor are our enemies. The border situation is intolerable, we have an antiquated and essentially broken immigration system and we a very large number of illegals already here. What are we going to do about that?
Whether or not you agree with Arizona’s recent law, it points out the frustration that many of the border states are undergoing as the problem continues and grows. I’ve mentioned any number of times that while the solution won’t be simple, the general outline isn’t rocket science:
- Streamline the legal immigration system so people can more easily access it, apply, receive visas, green cards, etc. It shouldn’t take us half a lifetime or cost multi-thousands of dollars to immigrate here, prove their worth and become US citizens.
-Streamline the work visa program and the seasonal work visa program. If I can order a kindle book from Amazon with a single click and have it downloaded to the kindle within a minute , it tells me the technology is probably available to make such a program much easier than it is at present.
-Kill the “anchor baby” provision. It may take a Constitutional amendment, but whatever it takes, remove the incentive. Heck in some countries they have tour packages aimed specifically at pregnant women in other countries to come here and have their baby. Sorry – no short cuts, no breaking the line, no gaming the system.
-Deal with the illegals in the country. Require them to register by a certain date or face permanent deportation. Once registered provide them with a clear, but back of the line path to citizenship, if they so desire. Make the requirements tough but fair. My guess is we’ll find many, if not most, of them would instead prefer a work visa or a seasonal work visa rather than citizenship. Many are here illegally because they can’t get those sorts of visas now.
-Secure the border. We do have an existential treat. Throughout our history we’ve had many existential threats. As long as different ideologies exist, especially those based in religious zealotry or secular imperialism, we’ll continue to have existential threats. Until those go away, we’re always going to have borders and those borders are going to have to be guarded to protect our citizenry.
I believe in immigration. I believe, in some ways, it represents the heart and soul of this country. I believe in giving those what want to work hard and better themselves the opportunity to come to this country to do so. But they need to come here legally through an improved system to do that. Since we do indeed have a welfare state, I want those who try to game that system by illegal entry stopped. And since we have existential enemies, I want them stopped at the border too.
It may not be my moon pony and unicorn utopia, but it is reality and it is that with which we have to deal. Then we can work on utopia.
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Also known as the “Mt. Vernon Statement” is a statement designed to reorient “conservatism”. I’m not sure it does that at all.
Anyway, the 5 “first principles” which should guide “Constitutional Conservatives” (ConCons?) and which are supposed to “inform” this agenda are:
* It applies the principle of limited government based on the rule of law to every proposal.
* It honors the central place of individual liberty in American politics and life.
* It encourages free enterprise, the individual entrepreneur, and economic reforms grounded in market solutions.
* It supports America’s national interest in advancing freedom and opposing tyranny in the world and prudently considers what we can and should do to that end.
* It informs conservatism’s firm defense of family, neighborhood, community, and faith.
Through point 3, it’s indeed mostly a Constitutional approach I could support as a matter of policy.
However, point 4 is the NeoCon point and point 5 justifies the SocialCon agenda.
Since it isn’t politicians saying it, and despite my former criticism, I assume the writers are committed to them, meaning they’d obviously like to see politicians use point 1 through 3 as their basis for judging the merit of any legislation they may consider. What needs to be more closely defined is what “limited government” means. If that’s not done – and I think a Constitutional case can be made for what government should and shouldn’t do – then the term is relatively meaningless.
Point 4 also needs some further defining. I’m not sure I’m in agreement that as a matter of policy it is our job to “advance freedom” and “oppose tyranny” except here at home. That’s not an isolationist stance, it’s a non-interventionist stance. I recognize “prudently considers what can and should be done” is tacked on to the end of the sentence to provide options. And I’m sure by that they mean soft power as well as hard power, i.e. aid and diplomacy among a myriad of “soft power” options as well as the military option if necessary.
I’m one of those who believe that our job as a country is to defend itself against threats to its security. If, in the pursuit of that, we advance freedom or oppose tyranny via military power, then that’s a good thing. However as a policy objective in and of itself (i.e. our foreign policy is designed to “advance freedom and oppose tyranny”), I’d have to say, “no thanks”. Our foreign policy should be designed to protect this country and advance its peaceful interests (like trade, etc) and generally stay out of the business of other states in areas that don’t involve our national security or trade.
Point 5 is obviously designed to make the SocialCons happy – it’s wide ranging, nebulous and pretty much cancels point 1. In my world, individual liberty has a very specific meaning. Primarily it means I don’t impose my beliefs on others. Practicing your beliefs is the best defense in the world. It demonstrates their power. And, as long as they don’t violate another’s rights, you should be able to do that. Imposing them, however, is a form of “tyranny”, something point 4 says Conservatives are against. The desire – on both sides – to use the law to impose beliefs is not what the Constitution was designed to do. And since this is a manifesto about the “Constitutional Conservative”, I can only suppose that the intent of this rather broad statement is to announce an intent to use the document as a basis for such impositions of belief, via law (because that’s what the Constitution is) of their defense of “family, neighborhood, community, and faith.”
Points 4 and 5 mostly serve to underline “why I’m not a Conservative”. Had they stopped at point 3, I’d have happily endorsed their attempt to refocus “conservatives” (and Republicans). With the inclusion of 4 and 5, they again demonstrate they’ve learned nothing from the NeoCon debacle and on the SocialCon side are just as committed as the left to using the Constitution and the law as a means of imposing their beliefs on others.
Those last two points are simply not consistent with the first three – especially when citing the Constitution. And they certainly don’t reflect what the founders of this Republic intended when they wrote the Constitution. Politicians on the right who adopt all 5 points are asking for trouble. If indeed the intent is to have “Constitutional conservatisim” guide policy, 4 and 5 should be dropped.
Of course, doing so would make them mostly libertarian, wouldn’t it?
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Michael Shermer has a very interesting post over at the HuffPo, surprisingly. It’s entitled “The Case For Libertarianism”. His thesis is that there actually are agreements in moral principle between conservatives and liberals and those agreements should be exploited to put a system together that would be mostly satisfying to both sides. Read his explanation as to how he arrives at that conclusion – it’s interesting.
But the list below is what he concludes would do the job. Surprisingly, or actually unsurprisingly since I gave you the title of his piece, it’s libertarian at base. Here’s his ideas of the limited governmental functions that would, or should, if they actually believe in their avowed moral principles, satisfy both sides (and libertarians as well):
1. The rule of law.
2. Property rights.
3. Economic stability through a secure and trustworthy banking and monetary system.
4. A reliable infrastructure and the freedom to move about the country.
5. Freedom of speech and the press.
6. Freedom of association.
7. Mass education.
8. Protection of civil liberties.
9. A robust military for protection of our liberties from attacks by other states.
10. A potent police force for protection of our freedoms from attacks by other people within the state.
11. A viable legislative system for establishing fair and just laws.
12. An effective judicial system for the equitable enforcement of those fair and just laws.
For the most part, his list is ok, but, being a libertarian, I disagree with one of them outright and disagree with the wording of a couple of others.
The one I outright disagree with is “mass education”. No. Not under the auspices of government. We’ve seen how that works – it doesn’t. Let’s not continue something that is obviously beyond the government’s capability.
10 – A military robust enough for protection of our liberties ….
11 – A police force potent enough ….
As for the banking system – yes, the point is valid and yes, I know that we’re pretty much stuck with what we have right now because it is a global system, but, given the last few months, I’m not at all sure it is the system I want in the future because I’m not at all sure it is either stable or secure. But that’s a topic for another time.
Last, but not least, yes, I understand that many infrastructure projects become reality because the people see their benefit and empower the government to use the power of taxation to fund them. My problem, of course, is how easily that power gets abused. Yes, I’d like a “reliable infrastructure”. But I’d also want strict controls over the government entities in charge of that. Again a topic for another time.
Notice, given the list, that he’s not talking about a large government. In fact, he’s talking about a “night watchman” type. One that would be pretty much limited to preventing the use of force or fraud by bad actors.
As much as I’d love to believe his conclusion that this would satisfy both conservatives and liberals, the last 40 years have a tendency to disabuse me of that notion.
One of the single most important reasons we’ve been railing against the push for universal health care around here is because, at bottom, it will result in a massive loss of individual freedom. Aside from the physicians who will be treated like slaves (the only possibility if their services are considered a “right”), government will have every reason to control how we live our lives since, after all, if its paying for our health care then it has a vested interest in how we live our lives. Too much sugar, Tylenol or cigarettes? Well you’ll just have to quit or pay heavy fines or even go without health care altogether. Indeed, this is how virtually all bureaucracy works — i.e. once the state has responsibility for some part of your life, it starts taking over greater and greater portions thereof. As it turns out, cap-and-trade will be no different:
Let me introduce you to a little section of the Waxman-Markey cap-and-trade bill called the “Building Energy Performance Labeling Program”. It’s section 304 [ed. - It's actually Section 204] of the bill and it says, basically, that your house belongs to the state. See, the Federal Government really wants a country full of energy-efficient homes, so much so that the bill mandates that new homes be 30 percent more energy efficient than the current building code on the very day the law is signed. That efficiency goes up to 50 percent by 2014 and only goes higher from there, all the way to 2030. That, by the way, is not merely a target but a requirement of the law. New homes must reach those efficiency targets no matter what.
But what does that have to do with current homeowners like you? Well, I’m glad you asked. You’re certainly not off the hook, no way, no how. Here’s what the Democrats have planned for you. The program requires that states label their buildings so that we can all know how efficient every building (that includes residential and non-residential buildings) is and it requires that the information be made public.
First, a couple of corrections: (1) The “Building Energy Performance Labeling Program” is in Section 204 of the bill; (2) Section 304 of the Energy Conservation and Production Act (42 U.S.C. 6833) is amended by Section 201 of this bill to mandate the efficiency standards set forth above.
Taking these in order, the labeling program essentially coerces the states into adopting the federal standards set forth in the bill for identifying and reporting the energy efficiency of each structure, whether residential or commercial. Essentially this means that Uncle Sam will get all the information it wants about your energy use in the home by strong-arming the states into gathering it for them.
That’s bad enough, but it’s the amendment to Section 304 of the Energy Conservation and Production Act that really inserts the feds into your life. That’s where the efficiency mandates are laid out in Congress’ attempt to create a national building code:
(c) State Adoption of Energy Efficiency Building Codes-
‘(1) REQUIREMENT- Not later than 1 year after a national energy efficiency building code for residential or commercial buildings is established or revised under subsection (b), each State–
‘(i) review and update the provisions of its building code regarding energy efficiency to meet or exceed the target met in the new national code, to achieve equivalent or greater energy savings;
‘(ii) document, where local governments establish building codes, that local governments representing not less than 80 percent of the State’s urban population have adopted the new national code, or have adopted local codes that meet or exceed the target met in the new national code to achieve equivalent or greater energy savings; or
‘(iii) adopt the new national code; and
‘(B) shall provide a certification to the Secretary demonstrating that energy efficiency building code provisions that apply throughout the State meet or exceed the target met by the new national code, to achieve equivalent or greater energy savings.
If states or localities fail to adopt measures implementing or exceeding the efficiency standards promulgated under this bill, then the federal standards simply become the law of that land:
(d) Application of National Code to State and Local Jurisdictions-
‘(1) IN GENERAL- Upon the expiration of 1 year after a national energy efficiency building code is established under subsection (b), in any jurisdiction where the State has not had a certification relating to that code accepted by the Secretary under subsection (c)(2)(B), and the local government has not had a certification relating to that code accepted by the Secretary under subsection (e)(6)(B), the national code shall become the applicable energy efficiency building code for such jurisdiction.
This is a massive arrogation of power to the federal government, and an intolerable invasion of individual property rights. In order to avoid a fairly blatant exercise of unconstitutional authority, the bill essentially denies federal funds to states that do not comply. However, it also leaves wide open just how compliance will be enforced:
‘(f) Federal Enforcement- Where a State fails and local governments in that State also fail to enforce the applicable State or national energy efficiency building codes, the Secretary shall enforce such codes, as follows:
‘(1) The Secretary shall establish, by rule, within 2 years after the date of enactment of the American Clean Energy and Security Act of 2009, an energy efficiency building code enforcement capability.
‘(2) Such enforcement capability shall be designed to achieve 90 percent compliance with such code in any State within 1 year after the date of the Secretary’s determination that such State is out of compliance with this section.
‘(3) The Secretary may set and collect reasonable inspection fees to cover the costs of inspections required for such enforcement. Revenue from fees collected shall be available to the Secretary to carry out the requirements of this section upon appropriation.
‘(g) Enforcement Procedures- (1) The Secretary shall assess a civil penalty for violations of this section, pursuant to subsection (d)(3), in accordance with the procedures described in section 333(d) of the Energy Policy and Conservation Act (42 U.S.C. 6303). The United States district courts shall also have jurisdiction to restrain any violation of this section or rules adopted thereunder, in accordance with the procedures described in section 334 of the Energy Policy and Conservation Act (42 U.S.C. 6304).‘(2) Each day of unlawful occupancy shall be considered a separate violation.‘(3) In the event a building constructed out of compliance with the applicable code has been conveyed by a knowing builder or knowing seller to an unknowing purchaser, the builder or seller shall be the violator. The Secretary shall propose and, not later than three years after the date of enactment of the American Clean Energy and Security Act of 2009, shall determine and adopt by rule what shall constitute violations of the energy efficiency building codes to be enforced pursuant to this section, and the penalties that shall apply to violators. To the extent that the Secretary determines that the authority to adopt and impose such violations and penalties by rule requires further statutory authority, the Secretary shall report such determination to Congress as soon as such determination is made, but not later than one year after the enactment of the American Clean Energy and Security Act of 2009.
Subsection g above appears to empower the Secretary to assess civil penalties against individuals for noncompliance. I say “appears” because the italicized portion does not actually show up when you view the bill, only when you cut and paste it as I’ve done here (I never considered the idea that “transparency” in law-making meant “making the law transparent”). Of course, even without that italicized section, it’s pretty easy to see where this is going. If your home isn’t as efficient as the federal government wants it to be, then you will probably be facing some sort of civil penalty. How that could possibly be constitutional I have no idea.
In addition to the outrageous invasion of our homes represented by this bill, the mandates set forth are sure to drive up the costs of new homes in ways that will probably make them unaffordable for a great many people. For example, I would guess that if homes are to be 30% more efficient in just a few years, then they will likely be roughly 30% more expensive. It may be less, it may be more, but either way those prices are going up. That’s not exactly the best prescription for an ailing home market.
The bottom line of all this is that you had better be sure to tidy up your home because the federal government is coming to stay awhile and it’s bringing an awful lot of demands with it. It’s going to make having your mother-in-law over for a spell seem like a Bahamian resort vacation.
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?
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.