Archive for June, 2002

Unlawful Combatants

Tuesday, June 25th, 2002

It is always amazing how many who do not care one whit about constraints on First Amendment rights implicit in contemporary “campaign finance reform” or limitations on peaceful protests around abortion clinics or who insist on the narrowest possible interpretation of the Second Amendment manage to get their shorts tied up in a rigid knot about the detention of illegal combatants associated with Al Qaeda. There are certainly serious civil rights issues that need to be addressed, but there remains a strange and unsavory sensitivity to rush to the defense of only those who hate America.

Some try to invoke Pastor Martin Niemöller’s warning:

“First they came for the Jews
and I did not speak out
because I was not a Jew.” …
“Then they came for me
and there was no one left
to speak out for me.”

However, even this sound observation can be misapplied. There are also times they come for thugs; there are also times they come for murderers; and there are also times when they come for the evil. We should be able to discern the difference and speak up for those who come to protect us.

The Bush Administration is faced with an awkward situation. They are charged with fighting a war that sometimes takes place on American soil against enemy soldiers who do not conveniently, and according to the laws of war, wear uniforms. These “llegal combatants” fall into an unfamiliar legal no man’s land. They are not quite prisoners of war since they are not part of a regular armed force. They do not even have formal “ranks and serial numbers” that are normally required of prisoners. At the same time, these people are not mere criminals, but part of an enterprise that is at war with the United States. The sooner the United States makes a formal declaration of war, the easier it will be sort out the legal categories.

Americans feel uncomfortable, and justly so, when arbitrary executive authority is used to detain people, even extremely dangerous people. While there is little evidence that the Bush Administration has abused its authority in this matter, there is always a danger of tyranny when one branch of government can act solely and unilaterally to detain people. In Ex Parte Quirin, decided in 1942, the Supreme Court invoked common law practices to empower the government to try un-uniformed Nazi saboteurs (one of whom was an American citizen) in military tribunals. The court was silent about indefinite detention of similar illegal combatants. Yet, under the Ex Parte Quirin doctrine the government will probably be able to hold indefinitely people like Jose Pedilla who were likely conspiring to engage in terrorist activity. Nonetheless, there is a more appropriate and Constitutionally regular way to hold illegal combatants.

The US Constitution has made provision for dangerous situations where conventional and important legal protections might need to be modified. Article I of the US Constitution provides that:

“The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”

Obviously, in cases of “rebellion or invasion”, other measures can be taken and Congress should make a provision for dealing with these new illegal combatants in a thoughtful and formal way. Consider the following proposed steps:

  1. Via legislation, Congress should provide the temporary authority for the executive branch to detain those who it has strong reason to believe are part of the foreign network at war with the United States. The legislation should make clear the level of proof required for this detention.
  2. Congress should provide for a special court with the sole purpose of supervising this detention. Members of this court could be cleared to review classified information. Every six months (or whatever time period Congress specifies), the executive branch must re-make the case for continued detention to this special court.
  3. Congress should place a time limit on this legislation so that this special executive power does not continue indefinitely and so that the specific provisions of the legislation can be reviewed and modified as necessary.

These legislative steps would not only protect the country, but also insure that anyone who is detained is done so under the review and care of all three branches of government. Importantly, these special provisions would be temporary in nature.

It is time for Congress to act in order to protect Americans and American liberties and avoid the unnecessary distraction of constant arguments about what may be more detentions.

Dishonesty in the Service of Higher Goals

Sunday, June 9th, 2002

“There may be honest differences of opinion as to government policies; but surely there can be no such difference as to the need of unflinching perseverance in the war against successful dishonesty.” — Theodore Roosevelt.

The goal of the 1973 Endangered Species Act was “to provide a means whereby the ecosystems upon which endangered species … depend may be conserved.” If the Secretary of the Interior determines that the habitat or range of an endangered species is threatened by human activities, then those activities can be curtailed. In practice, the act has been both praised and criticized. It has maintained habitat for endangered species, but has sometimes done so at the cost of jobs for humans. The reduction of federal lands available for logging because these lands encroached on the habitat of the endangered spotted owl is one of the most famous and controversial applications of the act.

Successful application of the Endangered Species Act depends on the unbiased identification of habitats crucial to the survival of endangered species. The importance of this responsibility makes recent events disturbing.

The Canadian lynx is endangered and the government is trying to assess its range. The location of Lynx hair samples found in the wilderness are an important means for this assessment. A number of Federal and State employees were discovered taking hair samples from captive lynx and submitting these as if they had been obtained from the wild. Some of those involved claimed they were just trying to test the accuracy of the lab to which the samples are sent, but such tests were outside the specific study protocols. That explanation has the foul stench of deception. Some believe the fudging of data as a means to prevent development is widespread. The Washington Times cites a retired Fish and Wildlife Service biologist as saying, “I’m convinced that there is a lot of that going on for so-called higher purposes.”

In Piper City, KS just outside of Kansas City, biology teacher Christine Pelton determined that 28 of 118 students were guilty of plagiarism on a biology assignment. Pelton awarded the students a zero on the assignment. After protests by parents concerned about the effect of poor grades on the competitiveness of their children in the college admissions race, the school board investigated. The Board found that the students had indeed plagiarized material, but thought the punishment too severe. The Board then directed Pelton to raise the grades of the affected students. Pelton resigned in protest.

The Enron energy company and its accounting firm, Authur Anderson, engaged in misleading, dishonest, and perhaps illegal accounting practices to hide the true financial status of the company. The result is company bankruptcy and the decimation of the savings of investors and employees. The efforts to untangle the web of deception woven by this dishonesty still are not complete.

These and other instances point to a growing cultural acquiescent to dishonesty, particularly when honesty and integrity prove to be inconvenient. There always seems to be an easy justification or rationalization. The dishonesty is always in service of a higher cause, whether it is environment, economic advantage, or simply higher school grades.

It would be easy and perhaps a little too much fun to blame the spread of dishonesty on former President Bill Clinton’s studied dissembling in a federal civil rights case. While Clinton may have raised deceit to a high art form, he was not the cause, at least not the sole cause, of the cultural acceptance of dishonesty. The trend existed before Clinton’s presidency.

If we want to look at intellectual sources for this tolerance, we might try to blame Friedrich Wilhelm Nietzsche. He argued that truth may not be as absolute and universal as we had supposed. However, most people do not read Nietzsche, and fewer accept his analysis.

Unfortunately, conservatives and free market libertarians may be partially to blame for tolerance of dishonesty. One of the virtues of free markets is to tame and sublimate otherwise aggressive animal impulses into constructive market competition. This virtue can simultaneously be a vice. Markets are notoriously amoral schemes aimed only at practical measures of success. Only the result is important. Such a neglect of means relative to ends diminishes the importance of means. It habituates the public to an ethos of indifference to honesty and integrity.

In order for free market societies to successfully exist, they cannot rely on markets as the only instructors of morals and molders of temperament. Governments are instituted to provide an honest legal structure within which free transactions can confidently take place. However, the cost and awkwardness of prosecutions means that such enforcement will be reserved for only the most egregious violations.

By-and-large, enforcement and self-control must arise organically from the culture. Shame and embarrassment in the face of peers can act as powerful social constraints. Intermediary institutions, religious, private and civic, can engage in moral instruction and nurture our better natures.

Those who believe in the power of markets, who believe that countries and economies should be organized and directed by free markets, have an additional obligation to insure the character of their citizens and the success of those intermediary institutions that form such character. Not surprisingly, social institutions that rely on individual self-direction and self-rule are dependent upon the wise and honest use of this freedom.

Declaring War on Iraq

Sunday, June 2nd, 2002

“The Congress shall have Power … to declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” — United States Constitution.

In the immediate aftermath of the terrorist attacks that destroyed the twin towers of New York City’s World Trade Center and demolished a wing of the Pentagon, the moral authority to take military action to stop those responsible from future attacks was clear. Sure, there were a few of the “Blame America First” temperament, who wanted to know what the US did to make these terrorists hate us. Fortunately, the voices of those who habitually make excuses for mass murders were few and isolated. The moral authority to respond to the terrorists was quickly followed by the legal authority to do so.

On September 18, 2002 only seven days after the attack, Congress passed the joint “Authorization for Use of Military Force” resolution. The resolution gave direct authority for the president to act militarily. Specifically, Congress resolved:

“That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

The Al Queda organization hosted by the Taliban in Afghanistan was quickly identified as the proximate group responsible for seizing the planes and turning them into weapons. The US government requested that the Taliban hand over the Al Queda leaders. When the Taliban refused to cooperate, it demonstrated its complicity with attacks on the US. The original “Authorization for Use of Military Force” resolution clearly sanctioned the subsequent US military defeat of the Taliban.

Nine months after September 11, the case for attacking Iraq is not nearly so clear. For a while, there was the suspicion that Iraq may have cooperated and directly helped the Al Queda. While this may indeed be the case, the public evidence for this is not clear. As a consequence, the authorization given by Congress for action may not be sufficient to cover efforts to militarily overthrow the Baghdad regime.

It is very possible and perhaps probable that Iraq is providing critical aid and funding to a loose-network of anti-US terrorist groups. It is very conceivable that Iraq, who has used weapons of mass destruction against its own people, is sufficiently malicious to provide some of these weapons to terrorist groups willing to use them against the American homeland. The case to attack Iraq as a necessary measure to preempt a future attacks on the US may be strong and compelling, but it has not been made publicly.

Presidents sometimes see Congress as an unfortunate impediment to the efficient execution of foreign policy and sometimes it is. On occasion, representatives and senators act like 535 secretaries of state raising a cacophonous din, confusing allies and adversaries alike. Nonetheless, a premeditated attack to depose the government of a sovereign state, months, or perhaps years after provocations is war and ought to be declared so by Congress.

President George Bush can probably stretch the “Authorization for Use of Military Force” resolution to authorize an attack against Iraq without much public objection. It is not to his benefit to do so. Asking Congress for additional authorization will impose an important discipline. It will force Bush to unambiguously articulate the rationale for military action against Iraq. It will force Bush to clearly define objectives and measures of success. It will also compel Congress to affirm Bush’s judgment in a way that will unite the country and make it difficult for others to second-guess Bush later.

There is a legitimate concern that in articulating and describing the perceived threats from Iraq, important intelligence and means of collecting intelligence might be compromised. However, the intelligence committees in both houses of Congress are capable of dealing with secret information and reporting summary findings to the remainder of Congress.

Countries that boast rule by consent of the governed should not easily shed their ideals under serious challenges. Returning to Congress for additional authorization to attack Iraq will be a difficult challenge for Bush’s leadership. However, by engaging Congress Bush will provide an important precedent for future Presidents contemplating military action. Indeed, such a precedent may prove to be an important Bush legacy.