Positive Liberty

[Updates: First, I offer my apologies for not realizing, in replying to it, that Sandefur's previous post had been updated. In my defense, it only was updated within an hour of when I replied to it in the post below. As I am sure Sandefur realizes, composing a lengthy post like this one typically takes more than an hour. Accordingly, I hope this can be forgiven as a simple oversight. I have placed the offending passage in strikethrough text.

But regarding my characterization of his previous post as "unlibertarian," I stand by it. Perhaps Matt Welch does not want to go so far. I do. I find that applauding such wide-ranging expansions of government power is certainly far removed from libertarianism, even in its most moderate forms. I mean... threatening the press with charges of treason? I just can't see this as libertarian in any sense at all. I also stand by the notion that words have meanings. You know, Orwell and all...]

Matt Welch has offered a series of questions to pro-war libertarians, and Sandefur has replied. I have to say that Sandefur’s responses are perhaps the most unlibertarian bits of writing that I have ever seen from him.

Torturing Citizens: First, I am frankly horrified by Sandefur’s curt answer to Welch’s question number three:

3) Can you imagine a situation in which the government would be justified in waterboarding an American citizen?

Yes.

That’s it, just a simple “yes,” as though such a provocative response needed no elaboration whatsoever, not even to libertarians like Welch — or me.

Now, I can imagine many situations where waterboarding an American citizen could be expedient (although, admittedly, most of them involve having ex ante knowledge that we could not possibly have had: If someone knew where the ticking time bomb was, and if we could find him, and if we knew we had the right guy, and if waterboarding would make him talk, and if we could know all of this before the bomb went off, and if we could perform the interrogation in time, and if we could reach the bomb in time, and if it turns out he was telling the truth rather than sending us on a wild goose chase until the whole thing didn’t matter… ) Yes, in that case, I could imagine situations where, with appropriate ex ante knowledge firmly in place, waterboarding might be expedient.

But I can’t imagine a single situation where it would be justified.

First, I am convinced that the practice is unconstitutional in so many ways that they become difficult to count. There is a prohibition, for instance, on cruel and unusual punishment; there are several more forbidding punishment before due process of law has been given; finally, there is the Ninth Amendment, about which I know Sandefur is not ignorant, and which seems self-evidently to forbid this horrid nonsense. So much for the Constitution’s prohibitions, and I cannot see how any of the enumerated powers — or even those that have been inferred in the meantime — could ever allow this form of torture.

But wait, I am sure that the pro-waterboarders will say, what if it stops a nuclear attack? These folks would no doubt hunger for some reasoning beyond the ex ante conditions given above, and to that effect they would likely say something about the Constitution not being a suicide pact.

In reply, I would note that while the Constitution is certainly not a suicide pact, it most definitely is a list of rules for our own conduct, rules that we hold sacred and that we also trust to be efficacious. That’s the meaning of the document; it’s the reason that we have this particular document rather than any other: We believe that we can live by these rules, and we invite the world to test our belief, even to the utmost.

Now, if your argument is that the Constitution is no longer efficacious, then you are not permitted simply to ignore it or to infer a bunch of new powers under the premise that the Constitution is not a suicide pact. Remember, we are libertarians, and this not the sort of thing that our political philosophy can permit us to do. On the contrary, it is now up to you to change the Constitution, adding an explicit permission to use torture on apprehended suspects — before or without a trial — under a set of declared conditions that you find appropriate.

Recall as well that the equal protection clauses are not likely ever to be revoked; together with your new torture amendment, they will give you, like everyone else, an equal shot at being waterboarded, so that you will tell the nice, all-powerful government everything that you know, and probably many things that you never realized you knew, and possibly many things that you made up as well, merely to stop the torture.

That, and that alone, would be equitable. It would be monstrously unjust to everyone alike, but it would at least be equitable.

Punishing Journalists: I am as puzzled by Sandefur’s response to question number four as I am horrified by his response to question number three.

4) Are there American journalists who should be investigated for possible treason? Should Sedition laws be re-introduced?

This is two questions. Yes, there are probably journalists who ought to be investigated for treason. I don’t have anyone in mind, but I don’t categorically deny the possibility. And no, sedition laws should not be revived.

“I don’t have anyone in mind” — but yes, probably? What are we to make of this? Is this not an argument from intimidation? What good could it possibly do, except to frighten the press away from considering difficult or controversial stories? How does this serve the republic?

I’d also like to suggest that Welch’s question is not really two questions, unless, of course, the journalists of which we speak were engaged in activities other than printing and publishing. If these last were the only material things that they have done, then they cannot be convicted — unless sedition laws are indeed reintroduced.

Perhaps Sandefur knows of journalists who have done more to help the enemy than merely articulating positions that the administration finds disagreeable, but I do not know of any. I doubt that he knows of any, either, as he specifically admits that he has no one particularly in mind. So it appears he now believes that criticizing the administration, or the United States, or the war… is treason, sedition laws or no.

Pro-Victory and Anti-Victory: I have some deep reservations about adopting Sandefur’s term “pro-victory” for those who favored going to war with Iraq. Simply put, it is a truism that when one favors going to war, a victory is the result for which one hopes. Is anyone ever pro-war without being pro-victory? Of course not. So don’t pat yourself on the back for it.

Further, and in conjunction with the previous question, there are distinctly sinister implications for those of us who are, by implication, pro-defeat. Does this make us traitors? Are we to be put on trial?

And really, now, is there a pro-defeat position? I mean, a position that any sane person honestly supports? Even those lefties who have been the most critical of America (like, shamefully, Ward Churchill) clearly don’t support victory for the other side. Ward Churchill is no more an Islamic theocrat than Sandefur is. Clearly, Churchill is grossly, horribly mistaken. We may even argue that he is just as mistaken as the Islamic theocrats. But to say that he’s on the same side as the Islamic theocrats is one simplification too many.

No Serious Threat? I would also object to Sandefur’s summary of my position, to the effect that I supposedly find Islamic theocrats “no serious threat,” and that they are merely a hobgoblin being used to strengthen presidential power. This type of thinking is a good example of the fallacy of the excluded middle.

I wrote the following:

It will one day be recognized that America could never be wiped out by a bunch of lunatic fundamentalists hiding in caves on the far side of the world. Can they hurt us? Of course. But ruin us? Please. Only we have the power to do that.

It’s about time we… get serious about the serious dangers (like unsecured nuclear weapons), and treat the rest not as a threat to our very civilization (which it clearly is not) — but merely as one gross evil among many others in this deeply flawed world of ours.

And, should the above statements need any clarification, here it is: Al Qaeda is evil. By itself, however, it represents a real but comparatively minor threat to the United States. They can hurt us — “Of course,” as I wrote above. But they cannot destroy us, not if we don’t let them.

Notably, it is only when state actors support al Qaeda (in particular by providing nuclear weapons), that the organization becomes a grave threat to the United States. Otherwise, it’s certainly a threat, but not so serious a threat as it is often made out to be. It is not a threat to our civilization in the way that, say, Soviet communism was. To the extent that we are now doing many things that we refused to do in fighting communism — and to the extent that al Qaeda is weaker than the Soviets ever were — to that extent, and to that extent alone, the threat is a hobgoblin.

I think the recent history of terrorism bears out my view; it is notable, for instance, that the lethality of al Qaeda’s operations against targets in the West has declined steadily since September 11. I attribute this chiefly to the (entirely laudable) elimination and/or reform of the main regimes that supported al Qaeda, namely Afghanistan, Sudan, and Pakistan. If we wage wars against the state sponsors of al Qaeda, these wars are justified. If we wage an endless war, against a nebulous enemy, with no limits on what we may or may not do, then we have entered the same territory as the War on Drugs — with consequences that will likely be just the same or even worse.

And answers? Sandefur writes, “Now, my ten questions for the other side.” And he posts ten fairly provocative questions, which I do not intend to answer in their entirety. In part this is because I have answered them already (particularly questions 1-4 and 7) in posts that the regulars here will no doubt recall.

But the real reason I don’t feel I have to give these questions a full treatment is that honestly, I don’t think that I’m on the other side. I think I have considered a variety of positions, and I have chosen the one that represents America’s real interests — and its real values — the most accurately. I’m not on the other side. I’m on our side.

All the same, some of Sandefur’s questions deserve a reply. Here’s one in particular:

Can you name a specific case in which an American dissenter, not actually affiliated with a terrorist organization, has been jailed or otherwise deprived of civil rights under the PATRIOT Act?

I can certainly name groups that have been spied upon improperly. Consider for example the Catholic and Quaker peace activists surveyed by the FBI. This should never have happened. Never. It was completely unjustified, and these groups deserve no less than an official apology.

And here’s another:

With regard to interrogation or incarceration: do you believe that infringements of religious sensitivities (e.g., mistreating the Koran) or personal sensibilities (e.g., making men wear women’s underwear on their heads) ought to be regarded as comparable with physical torture?

I believe that these things are different in one sense, and similar in another. I believe that torture is distinct from degrading treatment, in that they are treated distinctly by the law, they are of different orders of severity, and they are of correspondingly different levels of inappropriateness. Thus far, they are different.

They are the same in one respect, however: I think that both represent a serious tactical mistake. We gain an important advantage at war when the enemy thinks that they will be well-treated on surrender. The easiest way to ensure that the enemy will think that they will be well-treated is to treat them with actual decency. We need not coddle them, but to refrain from all forms of abuse will likely do more good than the hardliners imagine.

Decent treatment in captivity weakens the enemy’s morale; it shows that their hated enemy (us!) is not so evil after all; it plants the seeds of doubt in their fanaticism; with the aid of the press, it softens the Islamic world toward the United States; up close, it softens the captured toward their captors. Why we would avoid a policy with all these advantages is beyond me.

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