Archive for the ‘Law’ Category

Assassination of U.S. Citizens

Wednesday, February 6th, 2013

A Department of Justice memo, leaked yesterday to NBC News, details the Obama administration’s justifications for assassinating U.S. Citizens. The memo begins by stating the conditions required for a legal assassination:

 [W]here the following three conditions are met, a U.S. operation using lethal force in a foreign country against a U.S. citizen who is a senior operational leader of al-Qa’ida or an associated force would be lawful: (1) an informed, high-level official of the U.S. Government has determined that the targeted individual poses an imminent threat of violent attack against the United States; (2) capture is infeasible, and the United States continues to monitor whether capture becomes feasible; and (3) the operation would be conducted in a manner consistent with applicable law of war principles. (pg 1)

Although the memo only outlines the administration’s assassination policy in broad strokes, even the few details available give many reasons for concern. In this post I present my top three reasons.

Due Process

Simply put, the first criteria listed in the DOJ memo relies on the danger of imminent threats to justify assassination of U.S. citizens. If this were a totalitarian regime, that might be acceptable, but this is the United States of America. Our Constitution was written to limit government power to do just this sort of thing: “No person shall be … deprived of life, liberty, or property, without due process of law.” U.S. Constitution, Amendment V. This language seems to directly prohibit what the DOJ assassination memo proposes. You can’t just kill people without due process of law. But the legal minds at the DOJ find wiggle room in the phrase “due process,” referencing the case of Matthews v. Eldridge, 424 U.S. 319 (1976).

In this case, the Supreme Court decided that the government could terminate disability benefits without conducting a hearing first, so long as a hearing was held later to review whether the decision was appropriate. In explaining why Mr. Eldridge lost, the Court expounded its theory of due process:

identification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and, finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Id. at 335.

Ignore for a minute the troubling sensation you may feel from knowing that the DOJ relied on reasoning designed for disputes about disability benefits to justify assassination. That isn’t the real problem. What should bother you is that a fair application of this balancing test should not result in a green light for assassinations. Plug the criteria listed by the DOJ memo into the Supreme Court’s test. The private interest at stake is a person’s life—the strongest interest recognized by law. The procedure used is determination by a “high-level official of the U.S. Government.” When considering the reliability of “high-level officials,” don’t forget the Bengazi debacle. How many “high-level officials” made erroneous judgments during the weeks surrounding those events? Finally plug in the government interest: prevention of imminent terrorist attacks.

The DOJ assassination memo pays lip service to the first two due process factors, noting that “the erroneous deprivation of a citizen’s life is … significant.” (pg 6) But all is justified because “the ‘realities’ of the conflict and the weight of the government’s interest in protecting its citizens from an imminent attack are such that the Constitution would not require the government to provide further process to such a U.S. citizen before using lethal force.”

It is important to point out that the “imminent attack,” that the DOJ hangs its due process analysis on, is not some scenario in which Jack Bauer has two hours to stop a nuclear apocalypse. Again from the DOJ assassination memo, “[A]n ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.” (pg 7) Granted, governments and other security services face a severe disadvantage: they don’t know when violent acts will happen. Criminals choose places and times when police are absent or unprepared. This doesn’t mean we can start assassinating criminals because some “high-level official of the U.S. Government” decides it’s okay! Compare the DOJ assassination policy with the gyrations that state judicial systems must go through to execute a convicted murderer. Within the federal government, only the President can pardon a death sentence. Why does it only take a “high-level official” to sentence someone to death?

In an effort to make all of this easier to swallow, the entire assassination memo overflows with false analogies to formally declared, conventional war. This leads me to my second reason for concern.

Law of War

It is not controversial that a soldier on the battlefield, engaged in a just war, commits no crime when he kills an enemy soldier in combat. But the law of war developed to regulate conflict between clearly-identifiable, uniformed combatants in a defined area of conflict. Plucking those principles out and attempting to apply them to assassination of U.S. citizens would be laughable if it weren’t so tragic. We aren’t talking about standing armies; al-Qa’ida operatives don’t wear uniforms; and there is no defined area of conflict—any foreign country is fair game.

Conventional law of war prohibits killing civilians unless in self defense. If a civilian were to attack a soldier, the attack would be considered a crime and the civilian could be prosecuted. The DOJ assassination memo is schizophrenic on whether terrorists are soldiers or civilians. Either terrorists are like soldiers and are subject to preemptive killing (aka assassination) during the course of the conflict, or they are civilians and are subject to prosecution for their criminal acts. They can’t be both, and all the dissimilarities between soldiers and terrorists urge the classification of terrorists as civilian criminals.

Language Ambiguity

Not only does the DOJ assassination memo distort the due process test and draw false analogies from the law of war, it also suffers from severe language ambiguity. As quoted in the beginning, the memo starts by stating specific circumstances in which the DOJ deems assassination of U.S. citizens legal:

[W]here the following three conditions are met, a U.S. operation using lethal force in a foreign country against a U.S. citizen who is a senior operational leader of al-Qa’ida or an associated force would be lawful: (1) an informed, high-level official of the U.S. Government has determined that the targeted individual poses an imminent threat of violent attack against the United States; (2) capture is infeasible, and the United States continues to monitor whether capture becomes feasible; and (3) the operation would be conducted in a manner consistent with applicable law of war principles. (pg 1)

At the outset, only a “senior operational leader of al-Qa’ida or an associated force” (no definition provided) could be lawfully assassinated. But, as common sense would lead us to believe, senior operational leaders don’t usually execute the operations. They plan and send out low level operatives to do the dirty work. This makes the imminent threat idea a problem though because assassinating the senior operational leader of an organization probably wouldn’t prevent imminent attacks. It would prevent future attacks that still need planning and logistical coordination, but imminent attacks are likely past that stage. This may be why the drafters of the memo change their terminology when talking about the need to preemptively strike. “The defensive options available to the United States may be reduced or eliminated if al-Qa’ida operatives disappear and cannot be found when the time of their attack approaches.” (Pg 7) Are we targeting operatives or senior operational leaders? This may seem like splitting hairs, but the due process problems become far worse if we are targeting mere operatives because the likelihood of error is much greater when trying to accurately identify minor players in an organization. “Sorry” doesn’t cut it if you drop a hellfire missile on the wrong guy.

Another example of language slippage has to do with the type of behavior that might make one a target. At the outset of the memo, assassination was deemed permissible only when “the targeted individual poses an imminent threat of violent attack against the United States.” Later in the memo, the definition of permissible target changed to, “a U.S. Citizen whose conduct poses an imminent threat of violent attack against the United States.” (pg 15) Why the change? Maybe I’m reading too much into it, but I think that anti-American preaching would not fit the first definition but would fit the second. An anti-American cleric who never took any active role in planning terrorism but was affiliated with a terrorist organization and promoted violence against Americans in his preaching might be subject to assassination under the second definition if a high-level official determines that his “conduct poses an imminent threat.”

In summary, this memo has problems. It doesn’t represent a major policy shift on the part of the Obama administration. After all, it is common knowledge that they have assassinated U.S. citizens in the past. But a debate on this issue is long overdue. This memo reveals just how far the DOJ has stretched legal principles to justify the assassination of U.S. citizens, and it shouldn’t be left unchallenged. Don’t misunderstand. I believe that those who conspire to kill us should be captured and tried for their crimes, if possible, and killed if capture is not possible. But our Constitution does not entrust the roles of judge, jury, and executioner to the executive branch. Under the DOJ assassination memo, there is no provision for judicial review; there are no evidentiary requirements; and there is no accountability to the people. This strikes at the foundation of separation of powers as well as representative government.

Why Privacy?

Tuesday, June 5th, 2012

Discussions about privacy rights often end with the flippant question, why do you care so much about privacy; what are you trying to hide? Of course, most people don’t really believe what this question implies—that privacy has no value other than to shield criminal or embarrassing behavior—but many people do believe that privacy has limited value. Privacy is often viewed as an individual, emotional convenience or comfort rather than as an essential ingredient of a free society. Consequently, in a society that is ever more communal and connected, this mistaken assessment of privacy causes it to be undervalued and sacrificed far too easily—especially when it conflicts with values like security and stability. Even among conservatives—who once upon a time were skeptical of big brother government—privacy rights have gained a bad reputation because of its association with Supreme Court cases dealing with controversial sexual issues and abortion.

Bad reputation notwithstanding, privacy remains an essential ingredient of a free society. The founding generation believed it to be so important that they amended the constitution to protect it:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Constitution, Amendment IV

Privacy is essential because it insulates the people from the power of government, so when government oversteps its bounds, privacy gives the people an opportunity to resist. To the extent that privacy is diminished, the people’s ability to resist government abuses is diminished as well. The bare truth is that government is kept in check only when it fears what the people might do if it steps too far outside of its boundaries. If the election process is functioning with reasonable integrity, then the threat of the ballot box will check government somewhat; but if the election process breaks down, if government decides to ignore the people’s will, then the only check remaining on government abuse is fear by government officials that the people will use force to reclaim their lost freedom.

Before I go any further, let me make it clear that I am not an anarchist. In my opinion the present political/social climate in the United States is nowhere near oppressive enough to justify violent revolution. Whatever flaws that may exist in the election process, we still have a representative government. Consequently, the appropriate way to express displeasure over the actions of elected officials is to speak and vote, not plot and fight.

But this has not always been the case. Don’t forget that the United States was born in a violent revolution. George Washington, John Adams, Thomas Jefferson, and many others who we now call patriots, were then considered traitors and criminals by their government, and they would have been executed had the Revolutionary War turned out differently. Around the world it is easy to find other examples, ancient and modern, of situations in which governments grew so oppressive that violent revolution became necessary. My point is simply that violent revolution is sometimes necessary to reclaim liberty, and it would be naive to the point of foolishness to believe that it could never happen again—even here in the United States.

Considering the unpleasant reality that violent revolution is sometimes necessary, it is easy to see why privacy is so important. Privacy permits people to gather and speak without the government knowing what was said. It allows neighbors to talk about the nation’s problems—political as well as social—without their statements being reviewed by a government bureaucrat. This means that outliers who might use force before it would be appropriate can be talked out of rash actions by their friends and family without government agents appearing at their door the next day. Privacy creates the possibility of anonymity, and anonymity is a mask that allows individuals and groups to resist a government that has far more power than any of them could hope to resist without that mask. Anonymity permits a person to resist government oppression without having to fear immediate reprisal.

A discussion of privacy would be incomplete and one-sided without acknowledging that privacy also permits criminal behavior. Criminals regularly abuse anonymity to harm their neighbors and avoid punishment. Security and privacy conflict sometimes. The solution, however, is not to abandon privacy and allow government to monitor our communications and interactions anytime, anywhere. This is where the concept of a warrant comes into play; it is a compromise between privacy and security. If the government can show probable cause to believe that criminal acts are afoot, then a judge can grant permission to invade the privacy of the suspects.

This solution isn’t new, and it shouldn’t be unfamiliar. But the careful compromise that American citizens have relied upon for so many years is being challenged today. Technology permits private, in-person discussions to be intercepted remotely, and when technology is used to communicate, the conversation can be captured with little more than a keystroke. The ease with which the government can invade a person’s privacy creates the misleading idea that it is somehow non-intrusive because of the technology used, and this has confused many Americans. Compound that with high-visibility terrorist attacks and suddenly the right to privacy comes under fire.

I’m not suggesting that we are living 1984, We, Fahrenheit 451, A Brave New World, or some other dystopia, but there is an important debate going on right now about where to strike the balance between security and privacy. From what I can tell, privacy is losing.

Modern Kings

Wednesday, October 5th, 2011

The struggle between those who love liberty and those who love government boils down to a difference in commitment to the principle of equality. For centuries there were a few individuals who by virtue of their bloodline held enormous power over their fellowmen. They were called kings, princes, lords, emperors, czars, sultans, and so on. In many cases the power which these men held was virtually unchecked. They held the power to take anything from their subjects which force can take. Some countries even formally recognized this power as a divine right conferred by God for some inscrutable reason. Most kings considered themselves the masters and caretakers of their inferior subjects, much in the same way that a man is the master and caretaker of a pet dog.

A few brave men and women rose up and defied those tyrants. It wasn’t just the kings themselves that had to be dealt with; there was a host of supporters who had embraced loyalty to king as a moral duty, who fought tooth and claw to keep their position as human pets. Happily for our generation, the principle of equality gained a strong foothold and most of the kings were cast down. But the struggle over equality didn’t end there. Even here in the United States, the struggle continued. As democracy became fashionable and republics were established to take the place of kingdoms and empires, aspiring men and women saw new opportunities to seize power.

They didn’t try to call themselves kings, of course, that title had become too unpopular. Instead, they disguised themselves as the people’s representatives and then worked to convince people to give them the same powers that the kings had held. They worked to inculcate a blind acceptance of taxation as a moral duty, a right of government. They worked to seize control of the economy and “manage” the monetary supply. They expanded the power to make war, and, to our once humble republic, they grafted tentacles of empire. They worked to nationalize the education system, taxing the people to excess and then offering to give the money to the state school systems if they would adopt federal programs. Steadily they centralized power, taking it from the local governments and usurping it for themselves. It was a relatively gradual process. Every time there was a calamity of any kind, it was twisted and spun to support an ever increasing consolidation of power. War, sickness, economic troubles, crime, poverty, pollution, drug abuse, terrorism, and any other cause for alarm was used to consolidate more and more power to the federal government.

What does this have to do with equality? Each of the new powers they seized is predicated on the principle that all men are NOT created equal. These are not powers that an individual acting alone could rightfully exercise. No man has the right, for example, to insist that his neighbor fund his child’s education. No man has a right to force his neighbor to buy health insurance or give money to the poor. These powers, and others like them, are not derived from the people because the people never had them. They are powers usurped by government. Obviously the usurpation was not done by blatant appeal to force. Instead these grasping, aspiring men and women persuaded a portion of the people that they had power over their neighbors, that they somehow had the moral right to force them to support policies and programs that they liked or believed were economically expedient. They attacked the principle of equality by teaching the principle of tyranny by majority: that if they simply amassed enough votes, they could impose whatever regulation they thought best. This was a direct attack on human equality.

So here we are in the twenty-first century, and with the exception of a few figureheads and third world countries, the time of kings has nominally ended. But would our ancestors who fought so hard to throw off the yoke of kings be satisfied with our progress? We may not have kings in name, but we have men and women who claim powers typical of kings and who have far more effective methods of enforcing their commands than those ancient kings could ever have hoped for. It is high time for us to return to the principle of human equality and vote out these sneaky modern kings.

Jury Nullification

Sunday, July 24th, 2011

Founding-era Americans valued the right to a trial by jury as a key safeguard against tyranny. The Declaration of Independence listed denial of trial by jury as one of the “injuries and usurpations” that made it necessary to dissolve political ties with England. Later, it became a point of contention when the original draft of the constitution didn’t explicitly state the right to a jury trial. In a letter to James Madison on the subject, Thomas Jefferson wrote, “I will now add what I do not like. First the omission of a bill of rights providing clearly and without the aid of sophisms for … trials by jury in all matters of fact triable by the laws of the land.” Letter from Jefferson to Madison dated 20 Dec 1787. Jefferson’s concerns were later answered with Amendments VI and VII of the Bill of Rights: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury … In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved …”

Juries undoubtedly serve an important role in the legal system, but some people, both then and now, insist that a jury should do much more than impartially decide the facts of the case. They argue that a jury should have the power to nullify, or refuse to enforce, laws that it decides are unjust. This is called jury nullification. The basic idea is that since juries deliberate privately, and are not accountable in any way for their decision, judges have difficulty making them follow instructions and apply the written law. The practical outcome is that even if the government presents evidence proving every fact necessary under the law to establish guilt, the jury could still return a verdict of not guilty.

An organization called the Fully Informed Jury Association (FIJA) is among the most vocal supporters of jury nullification today. Its purpose statement includes the following: “The primary function of the independent juror is not, as many think, to dispense punishment to fellow citizens accused of breaking various laws, but rather to protect fellow citizens from tyrannical abuses of power by government.” And further,

When every American juror is aware of and permitted to exercise all of his and her rights, the final judgment of law will return to where it was always intended to be located…in the hands of the people. Once again our jury system will function as our country’s founders intended it to function as people’s final check against the government’s tendency to encroach upon the rights of its people.

Not surprisingly, however, jury nullification has many critics, especially among judges, and they have designed several tools to counter its use:

 Shhhhhh – No Open Argument for Nullification in Court

First and foremost is a rule in many jurisdictions that a lawyer who argues for jury nullification has committed an ethical violation—and may be subject to disbarment. Washington D.C., for example, has such a rule:

A lawyer defending a criminal case may zealously advocate for the acquittal of his client using any evidentiary argument for which he has a reasonable good faith basis. Current legal standards strongly disfavor jury nullification and prohibit express exhortations that a jury nullify the law. Accordingly, a lawyer may not, consistent with the rules of professional conduct, expressly urge a jury to disregard the law.

Opinion 320, Jury Nullification Arguments by Criminal Defense Counsel. Not only do state bar licensing organizations prohibit lawyers from openly arguing for nullification, judges explicitly instruct jurors that they must obey the judge when it comes to questions of law. For example judges in the 5th Federal Circuit give the following instruction to jurors at the outset of criminal trials:

I will decide which rules of law apply to this case, in response to questions or objections raised by the attorneys as we go along, and also in the final instructions given to you after the evidence and arguments are completed. You must follow the law as I explain it to you whether you agree with it or not.

 5th Circuit 2001 Jury Instructions, pg 5. (pdf)

Controlling the Evidence – The Relevance Rule

The restriction against openly asking the jury for nullification is made even more effective by restricting evidence and subsequent argument to issues deemed relevant by the judge. This means that if a lawyer attempts to present evidence that does not relate to an element of the law that the defendant is accused of violating, the opposing side can object to having that evidence presented to the jury. So, for example, if a lawyer defending a marijuana user attempted to introduce evidence that marijuana is mostly harmless to the user or that no one was directly hurt by the use, the prosecution could object and have that evidence excluded as irrelevant because it does not bear on the simple question of whether or not the defendant knowingly and voluntarily used marijuana.

Bifurcation – Dividing the Trial Into Two Parts

Another method used to combat jury nullification is to split the guilt phase and the sentencing phase of the trial into two different proceedings. The jury is first asked to determine whether the defendant did the acts of which he is accused. Only if the jury answers that question affirmatively is there any discussion of an appropriate sentence. Separating the phases of the trial helps to prevent the jurors from getting distracted from the issue of guilt or innocence by the pity and sympathy evoked by discussion of sentence severity. This tool is called bifurcation, and it is made more effective by the creation of statutory minimum sentences.

Voir Dire – Picking the Jury

Finally, judges and lawyers will almost always ask prospective jurors during the jury selection phase of the trial, called voir dire, whether or not they are willing to follow the instructions of the judge and apply the law as it is explained to them by the judge. If a juror hesitates or refuses, then the judge will strike the prospective juror and substitute a more compliant one in his or her place.

I have mixed feelings about jury nullification. Maybe, on this subject, my usual enthusiasm for libertarian ideas is dampened a little by my legal training and experience. On the one hand, I recognize that jury nullification could ideally prevent the enforcement of laws which are unconstitutional or simply unjust. But the tradeoff’s are costly. Jury nullification introduces inconsistency and inequality into a system which requires consistency and equality to function properly. In essence, it makes written law pointless. I’m not the only one who has misgivings. Judge Robert Bork called jury nullification a pernicious practice, and wrote,

To be ruled by each individual’s moral beliefs is to invite, indeed to guarantee, social tumult and disorder. The law alone is uniform, a composite or compromise of varying moral assessments, to be applied to all alike, regardless of personal attitudes … If an acceptable mix of freedom and order are to be maintained, obedience to law must be accepted as a primary moral duty.

Robert Bork, Thomas More for Our Season, 94 First Things 17-21 (June/July 1999). Judge Bork’s argument, as I understand it, is that when jurors are free to nullify the written law, the individual on trial is found guilty or not depending upon the moral and emotional reactions of the jury to the defense attorney’s presentation. This allows all of the prejudices and preconceptions of the jurors to taint the verdict, and introduces a great deal of unnecessary uncertainty into the legal system. One of the primary advantages of written law, uniformly applied, is that it helps avoid consideration of irrelevant facts, such as race, religion, gender, political affiliation, occupation, education, wealth, etc. when deciding guilt or innocence. Jury nullification, by making written law irrelevant, eliminates that advantage.

Judge James Wilson, an important member of the Constitutional Convention, also opposed jury nullification. He wrote,

In the cases and on the principles, which we have mentioned, jurors possess the power of determining legal questions. But they must determine those questions, as judges must determine them, according to law. The discretionary powers of jurors find no place for exertion here. Those powers they possess as triers of facts; because, as we have already observed, the trial of facts depends on evidence; and because the force of evidence cannot be ascertained by any general system of rules. But law, particularly the common law, is governed by precedents, and customs, and authorities, and maxims: those precedents, and customs, and authorities, and maxims are alike obligatory upon jurors as upon judges, in deciding questions of law.

James Wilson, Collected Works of James Wilson, vol. 2 The Subject Continued. Of Juries. Chapter VI (Kermit L. Hall & Mark David Hall eds. 2007). In other words, when a jury decides factual questions, we expect it to use discretion. We expect it to rely upon common sense and its members’ collective life experience to determine who is telling the truth and what really happened. But when it decides legal questions, it must apply the same “precedents, customs, authorities, and maxims” that bind judges.

The concept of obedience to precedent grows out of the belief, perhaps fanciful, perhaps not, that previous generations had some measure of wisdom to pass down to us. That the way they resolved legal issues then may be useful to us in deciding those same issues today. Obedience to precedent also grows out of the principle that the law should be consistent. That it should give fair warning to people of its expectations and requirements before penalizing them. Jury nullification necessarily disregards precedent; it gives no weight to the wisdom of past generations; it creates a situation in which no one can really predict from one case to the next whether the law will penalize behavior or not. All outcomes depend entirely upon the whim of the particular jury.

Ultimately, I guess my feelings about jury nullification are similar to my feelings about judicial activism. If jurors could be trusted to do justice rather than be ruled by emotion, prejudice, and popular feeling, then I would be happy to have them nullify unjust laws. But the simple truth is that that doesn’t happen. A good enough defense attorney can make almost any murderer to look like a Lennie Small and any thief to look like a Jean Valjean. With as many flaws as our legislative process has, I still think it is superior to a system where the law is created on an ad hoc basis by individuals or small groups. An essential part of an impartial legal system is that judges and jurors cannot be held accountable for their decisions, so the law must be made by someone else. The law must be made by individuals who are—at least in some measure—accountable to the people.

Military Members, the Constitution, and Lawful Orders

Sunday, March 27th, 2011

The oath of enlistment in the United States military as well as the officer’s oath includes the phrase “I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same.” 10 U.S.C. § 502 and 5 U.S.C. § 3331.

It seems appropriate that military members swear to support and defend the Constitution of the United States rather than simply swearing to support and defend the United States simpliciter. This is significant. It means that military members are more than just neutral tools of the political party in power. This oath places an affirmative responsibility on military members to read and understand the Constitution, to recognize the source and limits of the authority they have, and to uphold the specific system of government that the Constitution sets forth.

But empowering military members in this way creates problems. Among a list of general orders, George Washington once wrote, “It is required and expected that exact discipline be observed, and due Subordination prevail thro’ the whole Army, as a Failure in these most essential points must necessarily produce extreme Hazard, Disorder and Confusion; and end in shameful disappointment and disgrace.” George Washington, George Washington: A Collection (W.B. Allen ed. 1988). General Washington is also famously quoted as saying, “Discipline is the soul of an army. It makes small numbers formidable; procures success to the weak, and esteem to all.” The military oath of enlistment recognizes the importance of obedience, subordination, and discipline by including the phrase, “I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice.” 10 U.S.C. § 502.

Inevitably, there will be occasions when the military members’ responsibility to support and defend the Constitution will conflict with the orders they receive. This conflict puts military members in a difficult situation. Which part of their oath should they uphold? How do they evaluate and resolve the conflict? How can they know whether the order is really unconstitutional?

For military members, failure or refusal to obey a lawful order is a criminal offense. The Manual for Courts Martial (MCM) explains that the maximum peacetime penalty for willfully disobeying a superior commissioned officer is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for five years. The maximum wartime penalty is death. MCM ¶14.e(2)-(3). Not only that, but “An order requiring the performance of a military duty may be inferred to be lawful and it is disobeyed at the peril of the subordinate. … [T]he dictates of a person’s conscience, religion, or personal philosophy cannot justify or excuse the disobedience of an otherwise lawful order.” MCM ¶14.c(2)(a). In other words, to avoid the penalty stated above, the military member has the burden of proving that the order he or she disobeyed was unlawful. That’s no small task, even for trained lawyers, and many of our military members are 18 to 22 year-old kids with only a high school diploma.

So, what’s the answer? Clearly we can’t permit military members to refuse orders based on their private interpretation of the Constitution. But what is the threshold? When is an order unconstitutional enough that military members can safely disobey it? The easy solution is to say to military members, if you believe strongly enough in your position, then make your stand and face the consequences. But I don’t find that very satisfying. Any ideas?

Some examples you might react to in your comments are listed below.

Private First Class Bradley Manning—the soldier who gave classified information to wikileaks. Below is an excerpt of his explanation for why he violated orders about the use of classified information:

i think the thing that got me the most… that made me rethink the world more than anything was watching 15 detainees taken by the Iraqi Federal Police… for printing “anti-Iraqi literature”… the iraqi federal police wouldn’t cooperate with US forces, so i was instructed to investigate the matter, find out who the “bad guys” were, and how significant this was for the FPs… it turned out, they had printed a scholarly critique against PM Maliki… i had an interpreter read it for me… and when i found out that it was a benign political critique titled “Where did the money go?” and following the corruption trail within the PM’s cabinet… i immediately took that information and *ran* to the officer to explain what was going on… he didn’t want to hear any of it… he told me to shut up and explain how we could assist the FPs in finding *MORE* detainees … everything started slipping after that… i saw things differently i had always questioned the things worked, and investigated to find the truth… but that was a point where i was a *part* of something… i was actively involved in something that i was completely against…

Lieutenant Colonel Terry Lakin, a decorated active-duty Army flight surgeon who refused to deploy for a second time to Afghanistan because he believed that his order to deploy was illegal. In a video statement he said,

I will disobey my orders to deploy because I, and I believe all service-men and women, and the American people, deserve the truth about President Obama’s constitutional eligibility to the office of the presidency, and the commander-in-chief. If he is ineligible, then my orders, and indeed all orders, are illegal because all orders have their origin with the commander-in-chief as handed down through the chain of command.

Finally, the post-Katrina gun grab in New Orleans, where National Guard troops were ordered to confiscate lawfully-owned firearms from law-abiding citizens.

My tentative opinion is that military members’ responsibility to judge the lawfulness of an order has something to do with the nature of the constitutional question as well as the scope of the military member’s responsibility. But I don’t have any useful generalizations yet. I welcome your comments.

Heroes and Lunatics

Wednesday, September 22nd, 2010

The world is full of people with strange ideas. But despite society’s present obsession with diversity in race, socioeconomic background, gender, and sexual orientation in schools and workplaces—all of which are, at best, merely superficial signs of diversity—the modern state will not tolerate diversity in more fundamental areas, such as values. This is particularly evident in decisions concerning one’s life or the life of one’s children. In my previous post I wrote about laws which force parents to administer a medical test to their infant children. Advocates of these laws insist that the child’s life and health are of paramount value, and other considerations—including parental rights, moral beliefs, and individual liberty—must yield.

Our culture and history are full of stories about individuals who chose to value something more than life. Here are a few examples; I’m sure you can think of many more. Patrick Henry famously exclaimed, “give me liberty or give me death.” Christians, Jews, and Muslims all honor Abraham for valuing obedience to God more than his son’s life. Romantics treasure the story of Romeo and Juliette for valuing love over life. Even the academics have Socrates who insisted that “the unexamined life is not worth living.” Plato, Apology. When these individuals are safely pinched into stories and songs, society honors them as heroes, patriots, prophets, and so on. But when society deals with such diverse people in real life, it is much more inclined to label them as lunatics, fanatics, or simply ignorant, and to try to force them to conform their ideas and behavior to that of the majority.

Squelching diversity of values is one prerequisite for any utilitarian or economic analysis of the law. For example, in the recent healthcare debate, the contested issue became cost. Pundits and politicians focused on whether socialized health insurance would cost more or less than the current system. The President and his allies argued strenuously that they would control costs by appointing independent commissions and cutting spending in other programs. Opponents argued that this was not true. There was little said about anything else. Other values, such as property rights and freedom to choose the type and amount of healthcare, took second seat. This is a familiar maneuver: assume without discussion that one value takes priority over all others and then discuss the best way to promote that value. The deception here is that deciding which value to prioritize is often the most important and controversial issue at stake. It merits careful discussion and debate. Liberty, life, love, obedience, spirituality, individuality, human dignity, property; which should take priority, and who should decide? Anyone who values human equality must admit that this is an individual decision.

Liberty is the only value that the state can adopt and promote that will permit each individual to order her values as she chooses. Robert Nozick recognized this simple truth in his work Anarchy, State, and Utopia.

[P]eople are different. They differ in temperament, interests, intellectual ability, aspirations, natural bent, spiritual quests, and the kind of life they wish to lead. They diverge in values they have and have different weightings for the values they share. (They wish to live in different climates—some in mountains, plains, deserts, seashores, cities, towns.) There is no reason to think that there is one community which will serve as ideal for all people and much reason to think there is not. … Utopian authors, each very confident of the virtues of his own vision of its singular correctness, have differed among themselves (no less than the people listed above differ) in the institutions and kinds of life they present for emulation. … The conclusion to draw is that there will not be one kind of community existing and one kind of life led in utopia. Utopia will consist of utopias, of many different and divergent communities in which people lead different kinds of lives under different institutions. Some kinds of communities will be more attractive to most than others; communities will wax and wane. People will leave some for others or spend their whole lives in one. Utopia is a framework for utopias, a place where people are at liberty to join together voluntarily to pursue and attempt to realize their own vision of the good life in the ideal community but where no one can impose his own utopian vision upon others.

310-312 (1977). Despite its plain appeal, statists on both the left and the right resist real freedom because it would mean giving up the power they have usurped. Republicans want to control moral behavior and foreign affairs, while Democrats wish to usurp individual property rights and control citizens’ day-to-day living conditions. Both parties openly and subtly try to control the thoughts and speech of citizens through public education, campaign finance laws, and penalizing unpopular behavior.

Undoubtedly there is a fixed right and wrong. Truth is not relative. But if history and ethics have taught us anything, it is that people cannot be driven to the truth by threats and force. The use of force to suppress an idea—whether right or wrong—will only strengthen its power in the mind of its followers and spark curiosity in undecided onlookers. Conversely, the use of force to promote an idea will ultimately weaken it because it is a tacit admission that the idea cannot stand on its own merits. Teach, persuade, and reason, but don’t threaten or force people to support ideas or programs that you think are right—whether through coerced taxation or police enforcement or otherwise.

Ultimately, we each get to pick our own heroes and lunatics, and we’ll probably disagree a lot. But that should remain an individual judgment, not a judgment of the state.

States’ Rights and Illegal Aliens

Monday, August 2nd, 2010

During the summer of 2007 I lived in southern Arizona, about twelve miles from the U.S.–Mexico border. Needless to say, illegal aliens were everywhere. The border patrol regularly caught large groups of them, dangerously dehydrated, wandering lost through the searing desert. It was more common to see illegal aliens being loaded into the back of Border Patrol vans than to see police issuing speeding tickets. The problem is so bad there that the federal government has posted signs on many rural roads that read “Warning, Smuggling and/or illegal entry is common in this area due to the proximity of the international border. Please be aware of your surroundings at all times and do not travel alone in remote areas,” and “Travel Caution: Smuggling and Illegal Immigration may be Encountered in this Area.”

While it is unlikely that “the majority of [illegal aliens] are becoming drug mules,” it is a mistake to minimize the problem. Although most of the illegal aliens probably enter the United States in search of higher wages and government handouts, illegal entry into the United States—especially along the southern border—fosters lawlessness and threatens individual security and property rights. The difficult question is what to do about it.

After decades of frustration over the federal government’s failure to address the problem, Arizona passed SB 1070. Section 1 of the bill states,

The legislature finds that there is a compelling interest in the cooperative enforcement of federal immigration laws throughout all of Arizona. The legislature declares that the intent of this act is to make attrition through enforcement the public policy of all state and local government agencies in Arizona. The provisions of this act are intended to work together to discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.

Notice that SB 1070 is an effort by Arizona to enforce “federal immigration laws.” It does not create new legal standards and requirements for immigration. Notwithstanding this, the federal government sued Arizona in federal court, seeking to have the law declared unconstitutional.

It its lawsuit, the federal government complains that SB 1070 violates the Supremacy Clause, found in Article VI, Clause 2 of the United States Constitution:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

But claiming that SB 1070 violates the Supremacy Clause seems like a stretch to me. The federal government created a set of laws governing immigration and then adopted a policy of not enforcing those laws. SB 1070 doesn’t conflict with federal law; it conflicts with the federal policy of non-enforcement. A policy conflict doesn’t violate the Supremacy Clause. In fact, Arizona’s actions are probably more constitutional than those of our present and recent presidents. Under Article II Section 3, the President is bound “to take Care that the Laws be faithfully executed.” No honest, thoughtful American can believe that the immigration laws have been faithfully executed.

This doesn’t answer the question, however, of what role the states ought to have in regulating immigration. In other words, just because Arizona hasn’t violated Constitutional restraints by passing its law doesn’t mean that SB 1070 was good policy or that states should have a role in immigration. The drafters of the Constitution included an amendment process for good reason.

Rational critics of the Arizona law—I mean the ones that aren’t out parroting slogans about hate and racism—have offered a number of practical reasons why SB 1070 is a bad idea. See here (Reason Magazine), here (Cato Institute), and here (Cato once again). But good government and legitimate laws must be founded on just principles; mere economic analysis or consequentialist arguments are not enough. So, the initial question is what justifies restricting immigration? What justification exists for regulating movement across national boundaries? I believe that the justification derives from the fundamental individual right of property ownership.

Consider the following startlingly simple argument:

There can be no human right to immigrate, for on whose property does someone else have the right to trample? In short, if “Primus” wishes to migrate now from some other country to the United States, we cannot say that he has the absolute right to immigrate to this land area; for what of those property owners who don’t want him on their property? On the other hand, there may be, and undoubtedly are, other property owners who would jump at the chance to rent or sell property to Primus, and the current laws now invade their property rights by preventing them from doing so.

The libertarian society would resolve the entire “immigration question” within the matrix of absolute property rights. For people only have the right to move to those properties and lands where the owners desire to rent or sell to them. In the free society, they would, in first instance, have the right to travel only on those streets whose owners agree to have them there, and then to rent or buy housing from willing owners. Again, just as in the case of daily movement on streets, a diverse and varying pattern of access of migration would undoubtedly arise

Murray Rothbard, The Ethics of Liberty 119-20 (2nd ed. 1998). In other words, for Rothbard, immigration is simply an issue of private property rights.

For reasons I explained in a previous post (and my lengthy explanatory/rebuttal comments), I don’t accept the idea of absolute private property rights as proposed by Rothbard. This makes the immigration issue more complex, but it is more true to reality. We don’t live in a world of absolute property rights and probably never will.

Additionally, whether we like it or not, many of the systems, resources, and goods in the United States have been socialized. We play in public parks and drive on public roads; we send our children to public schools; and, as of recently, our healthcare system has become socialized as well. Our trash disposal, water, electricity, and gas systems are often government-owned, or at least closely controlled by government. Our telephone, cable, satellite and internet systems and infrastructure are licensed and regulated by government and subsidized through the use of eminent domain. Our financial system is overseen by government regulators, and even our currency depends upon government promises for its value. A system of open borders where landowners control immigration through anti-trespassing laws simply cannot function under these conditions.

Despite all of this, property rights principles still can and should guide immigration law, albeit in a slightly different way. As stated by Rothbard’s argument above, a human right to immigrate would imply the right to enter and or use some property. In the case of private property, the private landowner holds the right to exclude. In the case of government property, the property right belongs to the citizens of the country or state which owns the property. This means that the citizens—through their elected officials—have the right to exclude from government property those who do not satisfy the conditions for its legal use.

This brings us back to the initial question about the role of states in establishing and enforcing immigration law. Traditionally, immigration law has been dominated by the Federal Government, and there is some constitutional support for this: Article I Section 8 Clause 4 explicitly grants Congress the power “To establish an uniform Rule of Naturalization.” But if we justify immigration restrictions by appealing to a modified theory of property rights, the states have at least as much of a right to control illegal immigration as the federal government has. Most public roads are owned by states, counties, and cities. If a utility is government-owned, it is the state or local government that owns it. Police and fire departments are funded through state and local taxes. And public schools are paradigmatically state and local entities. Significantly, these state systems are the ones that are most heavily burdened by illegal immigration.

Given the magnitude of the states’ interest in immigration law, it seems highly unreasonable to insist, as the federal government does in its lawsuit challenging SB 1070, that “the Constitution vests the [the federal government] with exclusive and plenary authority to establish the nation’s immigration policy.” While it makes sense—for uniformity’s sake—to vest control of legal immigration in the federal government, there seems to be no real need to do so for illegal immigration. If a person violates federal law and enters the country illegally, the alien’s state of residence will bear most of the burden that that person causes. So rather than sue the states for trying to protect their taxpaying, law-abiding citizens, let’s let the states protect their interests.

DISCLOSE: Here We Go Again

Wednesday, June 23rd, 2010

Despite the Supreme Court’s recent ruling in Citizens United v. Federal Election Commission (see explanatory video here if needed), Congress seems poised to resume its underhanded and self-serving efforts to control political speech. Congress is now considering legislation, sponsored by Representative Chris Van Hollen of Maryland and Senator Charles Schumer of New York, that would further restrict political speech during election season. This latest legislative effort bears the auspicious title of “Democracy Is Strengthened by Casting Light On Spending in Elections Act,” which generates the acronym DISCLOSE for its short name. (H.R.5175, and S.3295 respectively).

Given the Supreme Court’s clear ruling in Citizens United which protected robust free speech rights, it may surprise you to learn that in many ways the DISCLOSE Act would restrict speech even more aggressively than the law which the Supreme Court recently struck down. For example, the old speech restrictions only applied to electioneering communications that were made within 60 days prior to a general election. The DISCLOSE Act would double that time period to 120 days. Features like this might give the impression, at first glance, that instead of accepting the Court’s scolding for violating the First Amendment, Congress, like a petulant child, is bent on contradiction and belligerence.

But the DISCLOSE Act isn’t just Congress’ reflexive gag to a bitter slice of humble pie. It is cunningly crafted legislation that would, if enacted, stifle challenging, political speech without falling into the same legal pitfalls as the McCain-Feingold Act. Since the Supreme Court rejected an outright ban on all corporations, the DISCLOSE Act pretends to take a more moderate approach. Instead of directly restricting the speech of all corporations and unions, the DISCLOSE Act would directly restrict the speech of only certain classes of corporations. These classes are government contractors if the value of the contract is at least $7 million; recipients of recent government bailout funds; and foreign-controlled domestic corporations. In all fairness, these restrictions are relatively reasonable—as government restrictions go. But the real teeth of the DISCLOSE Act are found—quite fittingly—in the new disclosure requirements. Consider the following.

The DISCLOSE Act expands the definition of “independent expenditure” to include, “an expenditure that, when taken as a whole, expressly advocates the election or defeat of a clearly identified candidate, or is the functional equivalent of express advocacy.” Sec. 201(a). This tack-on at the end about functional equivalence gives the Federal Election Commission broad discretion about what speech it can regulate, and it correspondingly creates uncertainty among potential speakers about what speech is safe from regulation.

The DISCLOSE Act imposes filing requirements on everyone who wishes to spend over a $10,000 on political speech to, “(1) file a report electronically within 24 hours; and (2) file a new report electronically each time the person makes or contracts to make independent expenditures in an aggregate amount equal to or greater than $10,000 (or $1,000, if less than 20 days before an election) with respect to the same election.” Sec. 201(b). These filing requirements apply irrespective of whether it is election season or not. $10,000 may seem like high threshold, but it doesn’t last long when you consider the cost of broadcasting on television and radio. The bottom line is that before you speak about politics in any significant way, you have to warn the federal government of your intentions.

The DISCLOSE Act “Requires corporations, labor organizations, tax-exempt charitable organizations, and political organizations other than political committees (covered organizations) to include specified additional information ….” Sec. 211(a)(5)(A). This information includes, among other things, the names of substantial donors. This disclosure requirement will discourage political speech, especially the speech of those who advocate political messages that don’t agree with their community’s acceptable mainstream. Think, for example, of what this would have done to the civil rights movement in the south. Many political and social issues debated in politics today similarly raise deep prejudice and anger, and publicly disclosing the names of those who support unpopular ideas causes more than minor discomfort.

The DISCLOSE Act requires any television or radio advertisement to include statements by substantial donors stating “‘I am XXXXXXX, and I approve this message.’, with the blank filled in with the name of the applicable individual.” Sec. 214(e). Organizational donors must similarly identify themselves. This, obviously, will waste expensive seconds that would otherwise have been available for the speakers to communicate their message.

This list of restrictions found in the DISCLOSE Act is by no means a comprehensive one, but I think it illustrates a subtle, underhanded strategy for restricting speech that seeks to undermine First Amendment rights while avoiding constitutional challenge. Instead of direct bans, this strategy seeks to increase the costs—both social and economic—for those who wish to exercise their First Amendment rights. It comes on the heels of loud public outcry about many of Congress’s policies, and it immediately precedes an election season in which most voters’ starting assumption will be that “incumbent” means “incompetent and corrupt.” Even if the DISCLOSE Act did nothing more than confuse and intimidate speakers about what was permissible and what was not—which it certainly will do if it is passed, that would be reason enough not to enact it. But this legislation would do far more damage than that.

Trials for Terrorists?

Sunday, June 6th, 2010

As with most issues that appear in the national news, politicians and pundits have badly muddled the question of what to do with non-citizens captured by American soldiers and their allies. The recent debate about if and where to try Khalid Sheik Mohammed has provoked intense debate and strong feelings. For example, in response to President Obama’s plan to bring Khalid to New York for a trial in federal court, Congressman Pete Olson of Texas issued a press release which included the following statement: “This Administration needs to understand what the American people already know. Terrorists captured in foreign battle zones are not like us—they don’t deserve our sacred constitutional rights.” I also oppose measures to try “terrorists captured in foreign battle zones” in federal courts, but for very different reasons.

Congressman Olson is wrong about the U.S. Constitution; it certainly does protect terrorists. It protects everyone. Olson’s mistake is a common one for people who don’t understand the Constitution’s role. The Constitution was meant to restrain the power of the federal government, and its principles derive from self-evident, inalienable rights. These rights belong to all humans as humans. If the Constitution were strictly limited to U.S. citizens or residents, or even if it were limited to people who are not captured in foreign battle zones, it would be ineffective. If membership or non-membership in a category were a prerequisite for having “sacred constitutional rights,” the federal government could avoid constitutional restraints by simply categorizing individuals as unprotected. That process of categorization itself would be unrestrained, because if the government did not have to abide by the Constitution in its dealings with a category of individuals, then it could act however it chose toward them. Such individuals would have no right to a fair trial, no right to due process, no right to be free from torture or even summary execution. This is an absurd result.

But recognizing that terrorists have constitutional rights does not inevitably lead to the conclusion that those rights may or must be adjudicated by federal courts. Although the Constitution is meant to restrain the federal government in all of its interactions, regardless of who it is dealing with, the form of those restraints varies. The important question is not whether terrorists are entitled to constitutional rights, but rather which branch of government is responsible for protecting those rights and the method by which they must be protected. In short, it is an issue of separation of powers and procedural due process.

For Americans today, courts are the natural first choice for protecting constitutional rights. But it was not always so, and the Constitution clearly did not entrust courts with the power to determine those rights in every circumstance. Take, for example, the writ of habeas corpus. The writ of habeas corpus is the legal procedure by which a litigant may compel the government to release a person who the government doesn’t have good cause to imprison. Obviously this is an extraordinarily important procedure, but the Constitution explicitly grants to Congress the power to suspend the writ of habeas corpus “when in cases of Rebellion or Invasion the public Safety may require it.” Art. I, §9, cl. 2. Consider also that the Constitution entrusts to Congress and the President the power to employ military force to destroy the lives or property of foreign nations: “The Congress shall have power … To declare war.” Art. I, §8, cl. 11; and “The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States” Art. II, §2, cl. 1. No court is involved even though the rights of those individuals in enemy countries are drastically curtailed by the federal government.

The Founding Fathers recognized a simple truth that many politicians and pundits cannot seem to grasp: judicial adjudication of constitutional rights is neither possible nor even desirable in every circumstance. The task of dealing with individuals captured by the military on foreign battlefields is one of these circumstances. A federal court trial is not appropriate here for at least two reasons: competence and jurisdiction.

Federal courts are not competent to adjudicate the rights of individuals captured on foreign battlefields. This is not because judges are not smart enough or because of flaws in the trial process. Federal courts are not competent for this task simply because the processes and goals of a criminal trial are not compatible with the exigencies and aims of war. The military is not equipped to handle evidence, find witnesses, or investigate crime; it is equipped to achieve victory by bringing death and destruction to our enemies. The purpose of capture and imprisonment in a military context is not to punish wrongdoing or rehabilitate wrongdoers; it is to neutralize threats. Consequently, the federal courts’ complex rules of evidence and procedure that help ensure fairness in regular criminal trials only cause confusion and mistakes when applied in the context of military prisoners. But even more serious than the lack of competence is the problem of jurisdiction.

For a federal court to have authority to decide a case brought before it, it must have jurisdiction over the individuals involved in the case. Generally, a court has jurisdiction over individuals who are within the territory of the nation to which the court belongs. This makes intuitive sense. For example, prostitution is legal in the Netherlands but it is illegal in the United States. Nevertheless, a United States court clearly has no authority to hear cases about people who prostitute themselves in the Netherlands—even though it violates United States law—because it is outside of the jurisdiction of United States courts. Granted this is easier to accept than the terrorist cases because there are not United States troops occupying the Netherlands, and prostitution in the Netherlands doesn’t directly threaten United States’ national security. But the concept is the same. United States courts don’t have jurisdiction over individuals who commit crimes outside of the United States. Any other policy aggrandizes the United States federal courts as arbiters of justice for the whole world, or at least however far United States military power can reach. This is insufferable arrogance.

The jurisdiction of federal courts is also limited by the fact that warfare and national security are the province of Congress and the President. By constitutional design, courts were not given authority over foreign affairs—especially where there is a need for secrecy, rapid response, or coordinated effort. Justice Scalia effectively argued this position in his fiery dissent from the court’s opinion in Boumediene v. Bush.

What competence does the Court have to second-guess the judgment of Congress and the President on such a point? None whatever. But the Court blunders in nonetheless. Henceforth, as today’s opinion makes unnervingly clear, how to handle enemy prisoners in this war will ultimately lie with the branch that knows least about the national security concerns that the subject entails.

Boumediene v. Bush, 553 U.S. 723 (2008) (Scalia J. Dissenting). So although it seems like the Supreme Court is protecting individual rights by hearing cases about military detention, it is, in effect, a power grab by the Court. It allows the Court to finally extend its reach into the field of foreign affairs—which for so long has been beyond its power.

For all of these reasons, bringing individuals into United States courts to adjudicate the extent of their constitutional rights is a bad idea. It is a bad idea because federal courts are not competent to handle such cases; it is a bad idea because it aggrandizes the jurisdiction of United States courts beyond their territorial limits; and it is a bad idea because it permits the Court to seize power from Congress and the President, once again, under the guise of protecting individual rights.

So although I reject Congressman Olson’s shocking claim—that terrorists don’t have sacred constitutional rights—we reach the same result. Bringing individuals captured on foreign battlefields into the United States for trial in United States courts is the wrong way to vindicate those rights.

Rights, Risk, and Regulation

Sunday, May 23rd, 2010

Libertarians oppose government regulations. This is arguably their defining characteristic. It is also the reason that many Americans reject libertarian political philosophy as unworkable, utopian, or just plain foolhardy. Other political philosophies on both the left and the right embrace government regulation to some degree; they simply disagree about what and how to regulate.

Personally, I feel uneasy about libertarianism’s blanket rejection of government regulation, and for some time I have tried to reconcile this uneasiness with concepts that are critically important to me like self-ownership and individual equality. I have struggled to explain my uneasiness because I believe that no government action can be justified by mere efficiency, expediency, or convenience. I’m not sure I’ve found a good solution, but here’s what I’ve come up with.

Drawing on principles of human equality and individual rights, libertarianism easily seizes the high ground in any discussion of political principles. But there is, I think, a tendency among libertarians—as well as fiscal conservatives, constitutionalists, and anarcho-capitalists—to overstate the reach of these rights-based arguments against government regulation.

Rights-based arguments against government regulation usually run as follows: I have a right to do X; this regulation restricts me from doing X; and since this regulation violates my right, it should be struck down or repealed. This is a persuasive argument, but it is frequently misapplied. The problem, unsurprisingly, is in determining whether the regulated action truly is an individual right.

Generally, individual rights fall into the three categories that were recognized in the Declaration of Independence: Life, Liberty, and Property (Pursuit of Happiness). These rights are phrased broadly, but it is important to recognize that an individual’s rights are always limited by the rights of others. For example, an individual’s right to life evaporates when he attacks someone else: his right to life yields to his victim’s right to life—expressed as the right of self-defense.

It is easy to accept that no individual has the right to intentionally harm innocent others. This is a clear limit to individual rights, and it is fundamental to criminal law. But government regulations go much further. Government regulations often limit actions which are not meant to cause harm, but which create a risk of unintentional harm. Regulations of this kind cause controversy because they restrict actions which may never actually harm anyone. Libertarians seize on this fact and reject these regulations as a violation of individual rights. On its face, this is potent criticism.

True human equality means that individual liberty cannot be restricted unless it is being exercised in a way that violates others’ rights. Actions which don’t in fact harm anyone don’t seem to violate anyone’s rights, so there doesn’t seem to be any principled justification for government regulation. In general, this is an excellent argument, but it fails in the context of unreasonable risk of irreparable harm.

Individuals have a right to be free from unreasonable risk created by others’ behavior. This is heresy to libertarian philosophy, but I think it is right nonetheless. Individuals have a right not to be exposed to unreasonable risk created by others’ behavior. When individuals choose their home, job, transportation method, recreation, and lifestyle, they simultaneously choose to subject themselves to a certain risk level. They accept that risk level because they believe that it is worth it. If that risk level increases because someone in the community chooses to engage in unreasonably risky behavior, then that person has violated the rights of the other members of the community. Differentiating between unreasonable risk and reasonable risk (risk that is just an unavoidable part of life) is difficult, but community standards provide a benchmark.

Unreasonable risk by itself is not enough to justify regulation, however. Regulation is appropriate only when there is unreasonable risk of irreparable harm. Irreparable harm is harm that cannot be undone by the payment of money, such as death and serious bodily injury. If the harm can be undone by payment of money, then the appropriate remedy is a lawsuit rather than regulation. The reason for this is that regulations are necessarily imprecise. Regulations are general rules that cover a whole class of individuals or activities, so, inevitably, some individuals will be included in the class and subjected to the regulation who should not be. If harm can be undone by the payment of money, the individual who was harmed can be put in approximately the same position as he would have been in had the harm never occurred. So the imprecision of regulation is unjustified.

There are easy cases and hard cases, of course, but I think the principles are clear. Consider the following example. A contractor decides to cut costs by storing his dynamite supply in the basement of his home. He does not intend to injure anyone, but he is nevertheless exposing his neighbors to significant additional risk. In a residential community this risk is unreasonable because dynamite storage is more hazardous than most residential activities and dynamite is not commonly stored in residences. Additionally, if the dynamite explodes, it will likely cause irreparable injury. The opportunity to sue in the event of an accidental explosion is not a good solution to this situation because recovering money in a lawsuit is never adequate recompense for death or serious injury. So, a government regulation prohibiting residential dynamite storage is justified and does not violate the contractor’s rights.

I am only tentatively attached to these arguments. The critical leap is the premise that individuals have a right to be free from unreasonable risk of irreparable harm. I think this is right, but this comes more from gut feeling than reasoned argument.