Positive Liberty

I’ll just post some thoughts on each question and on some of the responses to them.

First, I asked, “When, if ever, is preemptive war is ojustified?”

A number of respondents answered “never.” This answer seems dangerous and irresponsible to me. To say that a first strike is never acceptable would impose so great a cost on a nation’s civilians that it would be abrogating the nation’s defense almost entirely. No matter how large an army was massing on your border, you would have to wait for an actual first strike against you before attacking the enemy. How many people this first strike would take out, while you stand by watching and doing nothing, we cannot predict. That is unreasonable.

Kuznicki, in an earlier post, answered this question in a way by saying “if we had certain knowledge of the locations where Iran was making nuclear weapons, I would cheer on the day that we bombed these sites.” That is to say, preemptive war is justified when the other side commits acts which are tantamount to a first strike, and that includes arming themselves with unusually dangerous weapons, and demonstrating and declaring their will to use them against us or our allies. Of course, as I’ve contended before, absolute “certain[ty]” should not be required, but very confident reasonable belief should be enough: and of course, that existed in the case of Iraq.

I thought the most interesting answer was Alan Scott’s: “When the war itself is justified. pre-emptive is just a tactic.” I haven’t thought through all the implications of this view; it seems dangerous in some ways. Surely not all war tactics are justified by the justification of war itself. At least, it seems generally agreed that there are some tactics that are off the table even in the worst wars. On the other hand, the greater generally includes the lesser, and the libertarian justification for the use of force (retaliation only, or acts which are tantamount to retaliation) would seem to say that the big moral hurdle is in justifying the use of force to begin with.

insufficiently advanced says, “When there is a consensus that there is a imminent and specific threat to United States interests to preempt the evidence for and against the imminence of this specific threat has been communicated to the American people there is sufficient political support for a universal draft to support the war effort.” I’m not so sure that it is necessary to communicate the threat to the general public, however. In fact, in some cases, it might be unwise to do so. Perhaps it would cause panic or would cause the enemy to change his plans in a way that would neuter the preemptive attack’s effectiveness. Since ours is not a direct democracy, but a representative republic, we give our leaders the authority to determine the necessity and propriety of armed conflict. That’s as it should be, since most average Americans have better things to do with their time, and lack the expertise to keep up to date on the status of all our international friends and enemies. So I don’t think consensus or public information is always necessary—although, of course, it’s wise in most cases.

I think the most dangerous answer is that provided by Liberty and Reason, that “There is no way that a preemptive war is justified, as much as there is no way that a precrime…is possibl[y] justified. A preemptive war is acting against a suppose[]d and even imagined threat by some other state.” Yes, that’s what a preemptive war is, but it is far from impossible that such a supposition could be justified. It would be exceedingly unwise, and probably immoral, to insist on waiting for your enemy to strike first, and kill an untold number of citizens, before allowing your own army to act. Self-defense often justifies acting first, even in criminal law, where you don’t always have to wait for a burglar to shoot you before you shoot him.

Second, I asked, “When, if ever, is the United States justified in removing a foreign dictator from power?”

Here, I thought Liberty And Reason was better off. “Whenever the dictators are a considerable threat to the security of the USA and its citizens…. I don’t know whether there is in general an obligation to the USA to remove dictators from power, because it usually is the objective of the people who live in those countries…. However, such an act of liberation may not followed by any kind of occupation of the liberated country.” Libertarian theory, of course, holds that a dictator has no legitimate claim to rule, because he violates the rights of the citizenry, and thereby waives whatever claim to legitimacy he might have had. (Of course, some libertarians hold that government is never legitimate, a position I disagree with, but obviously by those standards, a dictator has no legitimate position to begin with.) Libertarianism holds that the authority to govern exists only when the government keeps within the bounds of natural rights, and only when the people consent in some fashion (although this last criterion is contentious also). A dictator doesn’t qualify, and so he is not engaged in government, but is instead in the unjustified use of force; he’s a criminal. And a criminal can be removed at any time that a law-abiding party decides to remove him. Prudence, however, would caution us not to do so except when it is in our national interest for some reason.

Of course, Liberty and Reason also adds, “Perhaps those people like to have a dictator.” This, however, is a dangerous claim. It’s true that, if a dictator were to govern within the bounds of natural rights, and with the consent of the people, then that could be a legitimate government—say, a constitutional monarchy. (I have some doubts as to whether a constitutional monarchy can ever be within the bounds of legitimacy, but I’ll discuss that some other time.) However, tyrannical governments usually coerce or manipulate the people into saying that they “like having a dictator.” The horrors of Kim Jong Il’s regime are the prototypical example of this. As Natan Sharansky puts it in The Case for Democracy, you can’t just ask people if they like having a dictator, because they will of necessity answer yes.

The worst answer was that of reader Francis, who simply answered “Never.” No matter what horrors the dictator inflicts on his own people, no matter how obvious his impending attack on the United States—and apparently even if the dictator does actually attack the United States—there is never a time when it is proper to remove a dictator from power. I think it a curious brand of libertarianism which would hold that it is never appropriate to destroy a dictatorship.

I think our presumption should always be against dictators, and that we should always be willing to remove them, restrained by the bounds of prudence. Of course, it’s not necessary that the American government engage in removing these dictators. In some libertarian future, it might be that citizens volunteer to do so on their own; during the Spanish Civil War, many American and British citizens chose to engage in war by themselves, even though the governments of those countries weren’t officially engaged.

Independent Country added, “Maybe when foreigners are justified in removing American dictators from power.” Of course, America doesn’t have a dictator. If it did, however, then obviously other nations would be justified in removing him or her from power on the same grounds that America is justified in removing a foreign dictator from power.

Third, I asked, “Do you agree with the position—recently quoted approvingly on this blog by Dr. Kuznicki—that Islamic terrorism is not a serious threat, but a hobgoblin used by the Bush Administration to increase its authority?”

Now, obviously there is a correct answer to this one. Islamic terrorism is a genuine danger to this country and to all civilization, and it ought to be wiped off of the face of the earth. It is irresponsible and childish for people to see it as just a trumped up threat used to control the people of America.

Kuznicki objected to my characterization, writing that he does view the militant Islam as a threat, but “not a threat to our civilization in the way that, say, Soviet communism was.” Two observations here are important. First, I’m glad to hear that he thinks this, but the passage he linked to, by Glen Greenwald, characterized the Administration’s warnings over terrorism as a “deeply irrational, fear-driven view of the world,” which is being used to rationalize “intolerable excesses and abuses of…power.” Second, I strongly disagree that militant Islam is not as much of a threat to our civilization as Soviet communism was. Quite the opposite. Soviet communism was certainly a threat to life, liberty, and the pursuit of happiness, but even Soviet communism did not represent a rejection of everything about western civilization, or of those things about it that are worthy of preservation. It was secular; it was superficially intellectual; it did not de jure war against material progress. It was brutal, totalitarian, and ultimately destructive of humanity, but it claimed, disingenuously, to be oriented toward those goals which our civilization treasures. Militant Islam, by contrast, represents a direct and overt attack on everything, from root to branch, about our civilization, including those things which even Soviet communism claimed to cherish: the equality of the sexes, for example, or material productivity. Militant Islam is to Soviet communism, I believe, as the fireating “positive good” school of slavery was to the cotton whiggery of pre-Civil War America.

The answers from the respondents showed that they—in my view, recklessly—share the view that militant Islam is not a serious threat. Reader Alan Scott described it as a “scapegoat to boost the power of certain politicians and avoid dealing with other, more significant problems.” What problem could be more significant than the undeniable possibility of a nuclear or biological attack in a major American city? Not long ago I heard someone say, “well, when a million people are killed by a smuggled nuclear device, then they’ll realize…”—but no. If September 11th was not enough to convince people that the Islamic terrorists are serious threat to the United States, then nothing is.

A far better answer to this question came from reader Abel, who sees bin Laden and his semi-official supporters in Middle Eastern governments as a genuine threat, but also recognizes that there is some “cynical opportunism” being used by our own government in this regard, also. That’s undeniable. It is true, obviously, that the government uses the threat of Islamic terrorism to get people to support some things that are unnecessary , unwise, or unjust. The most obvious example is the unconstitutional detention of prisoners at Guantanamo Bay. But for people to react to these wrongs by suggesting that militant Islam is not really a threat to us is so absurd and irrational that it does not, in my view, deserve any further consideration.

4) Precisely what (if anything) do you propose the United States do about the Iranian nuclear weapons program?

The second worst answer here was “nothing,” from A Day of Cyn. We are discussing a country which has declared for more than twenty years its desire to harm the United States in any way imaginable, and whose leaders have openly called for the “wiping out” of Israel, an American ally and one of only two democracies in the region. Evidently, not only is preemptive war not to be resorted to, but we are not to engage in any diplomatic means of averting what to any reasonable reading of the evidence is obviously an impending nuclear catastrophe with possibly millions of lives lost. This answer is childish and irresponsible—at best.

The worst answer, however, was from Independent Country, which answered,

Nothing. Sovereign nations have the right to defend themselves and deter aggressors. And Iran has every right, and all the evidence in the world, to view the USA as a potential aggressor. Furthermore, we should remind ourselves that just because the Bush Administration claims that there’s an Iranian nuclear weapons program, that doesn’t mean that there is an Iranian nuclear weapons program.

Last things first: it is not only the Bush Administration, but the Iranians, who say that the Iranians have a nuclear weapons program. Although they have played rhetorical games on the issue, it is simply not deniable that the Iranians are developing nuclear weapons right now, and that their current leadership has the will to use them.

Second, Iran is simply not a sovereign nation, in accordance with libertarian theory at least. According to libertarianism, “sovereignty,” if it exists at all, exists only when a government respects the natural rights of the citizenry and is based on some form of consent (although, again, this last element is in some dispute). No sovereign is legitimate who tramples on individual rights and enslaves its people; such a “sovereign” is in fact a criminal, and can be dealt with as such, either by his own people or by bystanders who choose to intercede. To regard Iran as a sovereignty with a “right” to develop nuclear weapons is simply Doughface Libertarianism—the perverse notion that a dictator has the right to do whatever he wants without interference by others. To view the United States as a potential “aggressor,” somehow deserving of a nuclear attack by the most brutal dictatorship on the planet (with the possible exception of North Korea) is beyond the pale of rational discussion, and shows, I think, the level of silliness that animates a good percentage of the supposedly anti-war side of this discussion. Does it even deserve to be called “anti-war”? Is it anti-war to allow hysterical theocratic monsters, who have repeatedly and openly avowed their desire to harm the free people of the world, and particularly Israel, to gain control of the most destructive devices humans have created, and do nothing about it? Only if it is anti-crime to allow murderers and felons to conspire and arm themselves.

An infinitely more reasonable position is taken by Blargh Blog: “We should try to stop Iran from getting nukes without getting into a war with them. Give me a year and the highest level of security clearance and I might be capable of proposing precise methods.” Exactly. If we all had the right information, we would all be in a position to solve this problem. And, of course, we ought to avoid a war with Iran if it is at all possible. But we must do something. “Peace is not secured by praising its virtues,” as Churchill said. Certainly it is not secured by allowing thugs with an avowed mission of making war on free and law abiding peoples to arm themselves with nuclear weapons.

Other curious responses came in. Alan Scott claims that “the greatest threat to Iran is internal reform and revolution,” but I know of no evidence to support this beyond some overly optimistic, distorted media reports. Abel said that we ought to “revoke our sanctions” so as to “dampen their incentives to do anything rash.” Of course, sanctions are a silly and ineffective device, but it seems farfetched to think that revoking them now would be considered as anything other than cowardice and even rewarding the Iranians for developing nuclear weapons with the intent of aggressive war on America and her allies.

With regard to whether we ought to defend Israel at all, reader Francis answers, “Yes. International security agreements have proven to be a remarkably successful tool in preventing a[g]gression.” True. But, of course, an international security agreement is only as strong as the will to back it up. Dictators with plans of conquest often test these agreements, to see if there is such a will. Hitler repeatedly tested the will of western European nations before realizing that he could take the Czechs, the Poles, and even the French before facing any significant opposition.

Liberty and Reason answers that “If called upon and validated by the Senate and the people of the US, I think it is ok for the US to help Israel against invading forces. If those preconditions are not met, I would have to decide from case to case.” A reasonable position, although there is no constitutional requirement that the people validate a treaty of defense, except through their Senatorial representatives and their elected President. There are some other reasonable answers, and unreasonable ones also. I thought Gene Berkman’s contention, that we should just invite the Israelis to move to the United States, was a little odd. Where I come from, we call that “surrender and flee.” And note who agrees with this proposal.

I next asked if people could name a specific case of “an American dissenter, not actually affiliated with a terrorist organization,” being “jailed or otherwise deprived of civil rights under the PATRIOT Act.”

Negative Liberty could not. insufficiently advanced could not. Blargh Blog could not. Alan Scott could not. Liberty And Reason claimed that there are several such cases, but could not name one, and referred instead to Guantanamo Bay which, unconstitutional and abusive as it is, is unrelated to the PATRIOT Act. Abel could not. non-ecumenical ramblings could not. Francis could not. Independent Country could not. A Day of Cyn could not. Even Charles Featherstone could not. Only Gene Berkman could. He referred to the Oregon lawyer falsely accused of participating in the Madrid bombings, which does appear to have been brought under the PATRIOT Act. Still, the connection there is unclear.

Of course, as Francis says, just because we don’t know of an abuse doesn’t mean it hasn’t happened. But I think it interesting that this supposedly glaring enormity of hysteria-driven outrage has yet to produce more than one well-known incident of abuse. Most of all it suggests that we do not know the details that we ought to know before making pronouncements on these issues. As Blargh Blog says, “give me a year and the highest level of security clearance,” and we might know better what we’re talking about.

I asked whether people thought we ought to remove American troops from Iraq immediately, regardless of the consequences to the Iraqis.

Gene Berkman answered,

Many war supporters in 2003 promised that our troops would be in and out of Iraq in 30 days. The goal of the war—to remove Iraq’s WMD threat has been accomplished. Why exactly are we still there? In any case, since American troops kill innocent Iraqis, and at the same time provide a issue to aid the recruitment of the “insurgents” (as Bush calls them) it looks like the Iraqi people would be better off with our troops out of the country.

But, of course, removing Iraq’s WMD threat was not the only goal of the war. One of the great problems with doing what we have done is that, if we leave, the next thug on the ladder takes over, and a repeat performance of Hussein then occurs. Now, I think there are reasonable arguments for saying that that is not our problem: that we ought to take out the top guy, leave, and if the next top guy causes trouble, we go in and take him out and leave again. But the idea of remaining there is to prevent repeat performance if at all possible and to get the Iraqis into a position where their political, social, and institutional structure can resist the next coup attempt by a thug. I consider our chances of success in that mission very weak, indeed, and particularly given the absurd “inclusive” “Peace Process” strategy adopted by the Bush Administration and detailed in the very important article by Angelo Codevilla in the current issue of the Claremont Review of Books (alas, not on line yet).

The vision that haunts me here is that of the Confederacy, 1876, when federal troops withdrew and condemned the former slaves and their descendants to a century of oppression and lynching, while the American government shrugged and looked the other way. That is what we would like to avoid. Perhaps it is unavoidable. Perhaps it is not our problem. But in any case, that is why we are there. As to Americans supposedly killing innocent Iraqis, there are two answers to that. First, the innocence, vel non, of civilians killed in a war in which civilian terrorists are the footsoldiers, and in which civilian residences are used either as actual munitions factories or as shields for such factories, is extremely hard to establish, and the guilt for the deaths of genuinely innocent civilians as a consequence of such acts rests solely on the terrorists who hide behind the skirts. Second, any assessment of innocent Iraqis killed by American forces must be compared to the number of Iraqis killed by the Hussein government—a point I made some time ago. Iraqis, in spite of the awful things going on in their country, are likely more safe today than they were before we invaded. Certainly they have more hope for the possibility of a free and peaceful society.

I asked next whether people thought that doing things like abusing the Koran or making men wear women’s underwear, et cetera, should be regarded as comparable with physical torture. Most people seemed to say no. Blargh Blog said that “I think that it’s wrong (and counterproductive) to try to break detainees down by violating their deeply held religious, moral, or cultural values, and that such practices can damage a person just as gravely as physical torture.” But that’s just the issue I wondered about. There are obviously cases in which infringement of emotional distress reaches such an extreme as to constitute a sort of battery; tort law recognizes this. But it also seems ludicrous to limit what an interrogator or a prison guard may do, on the basis of the psychological susceptibilities of the prisoner, no matter how irrational. In tort law, intentional infliction of emotional distress claims are limited to such extreme misconduct as telling a person that her husband has been in a deadly accident or something. (Wilkinson v. Downton, 2 Q.B.D. 57 (1897)). But irrational, religious sensitivities are much, much more subjective and hard to draw lines around. Abusing the Koran may indeed by really offensive to Muslims (or might not be, I honestly don’t know) but that is not the sort of thing, in my opinion, that our troops or authorities need to respect. I don’t think that anything short of truly unconscionable outrages against “cultural values” ought to be off limits. And I can’t even think off hand of an example of an “outrage against ‘cultural values’” that I would consider beyond the pale. Would it be torture for an Iraqi soldier to burn an American flag in front of a captured U.S. airman? Or to pee on a picture of George Washington? What sort of psychological pressure would be too much for our guys? (Of course, something like Hussein’s troops raping wives in front of their husbands is obviously too much, but that isn’t an outrage against a cultural value—that’s an actual physical injury.)

Gene Berkman, showing the classic sort of overstatement that harms the credibility of his side, says that things like abusing the Koran are typical of an “administration that has shown a complete disregard for the dignity of the individual.” This is absurd, of course. This administration has committed offenses against individual rights just like other administrations, but it certainly has not shown a “complete disregard” for individual dignity.

On this point, let me comment on Kuznicki’s post with regard to my answer about waterboarding. He wrote that he was appalled at my comment that there are probably some cases where waterboarding might be appropriate. He contended instead that there might be cases where it would be expedient, but not justified: specifically, in the classic hypo of the terrorist who knows where the nuke is hidden, but refuses to tell. Now, this argument seems odd to me. In fact, I would think it was just the opposite: waterboarding in such a case would be justified, but probably not expedient, given the fact that torture and extreme psychological strain is not a very effective method of interrogation. But in the hypothetical case of a terrorist who has hidden a nuclear weapon in the city, well, he’s initiated physical force. He’s committed an incipient murder of millions. Why would waterboarding not be justified in such a circumstance? Slapping him would be. Executing him would be. Preaching to him would be. Incarcerating him in a terrible place for a long time would be. And in an emergency such as the hypothetical, torturing him probably would be, too. So I think waterboarding would be justified in such a circumstance—although it might not be effective.

My next question was badly phrased. I asked, “What, if any, legal consequences do you believe flow from a declaration of war?” This was so open-ended as to not really lead to clear answers. But I wasn’t sure what exactly I was looking for here myself. I just wondered if people thought that the legal order was significantly different after a declaration of war than before. For myself, I think that a declaration does trigger an important set of inchoate executive powers on the part of the President, so long as those powers do not directly contradict the Constitution’s requirements (the way the Guantanamo detention does) or the Congress’ orders (the way that NSA surveillance does, vis-à-vis FISA).

Berkman answered that “Congress has not passed a declaration of war.” This is not true, of course, since the September 18, 2001 declaration, as well as the Oct. 16, 2002 authorization for use of force against Iraq, are both declarations of war. The Constitution states that Congress shall have power to “declare War,” but it does not require any sort of magical words. It simply requires a declaration. That declaration is one which authorizes the President to make war, which the Sept. 18, 2001 and Oct. 16, 2002 declarations do. They are therefore declarations of war in the full sense the Constitution uses that term. Berkman says that “There is no constitutional basis for an ‘authorization of force’ so it is not at all clear what the legal consequences of the current situation are,” but of course that’s not true. A “declaration of war” is simply an authorization by Congress that the President conduct a war. So this is as declared a war as there ever was. Francis answered, simply, “The President has the power and the responsibility, as the Commander-in-Chief under Article II, to use the military to achieve victory against the enemy named in the declaration.” That seems the best answer. The strangest was A Day of Cyn’s, which said that “There should not be any consequences in my opinion.” If that is the case, why is there a constitutional provision for such a declaration? Why the outcry among some people that this war has not been “declared” and is therefore not justified? Surely there must be some consequence to the fact that Congress has twice overwhelmingly directed the President to use the full military force of the United States against Middle Eastern powers believed to be associated with terrorism.

Finally, I asked if people believed that the Administration had purposely manipulated intelligence so as to fool Congress into letting them invade Iraq. This is a question with a clear, factual answer, and that answer is no. American intelligence had long believed Hussein was developing weapons of mass destruction; the Clinton Administration had repeatedly said so. And many other intelligence agencies and organizations, emphatically including the U.N., believed so as well. Hussein’s support for worldwide terrorism is simply a matter of fact, which cannot reasonably be denied. The Administration’s intelligence may have been wrong—but there is simply nothing to support the notion that it purposely lied to the Congress to give it the opportunity to waltz into Iraq and seize the oil or do whatever nasty thing they’re alleged to have done. They may have been hasty, they may have seen what they wanted to see, they may have even been right. But the notion that they purposely lied is simply not reasonable.

Yet look how many of the respondents believe it, almost as a matter of religious faith. To me, this is the most disturbing matter. This suggests that at least some of the respondents, and likely others on that side of the argument, are blinded by their hostility of the present Administration and are unable to perceive the genuineness of the threat, or unwilling to acknowledge undeniable facts of our own recent history, or even worse. That bodes ill for our future, I think.

Finally, some people were bothered by my use of the term “other side” when I asked ten questions of “the other side.” They thought I was saying that they support our enemies in the war. I certainly did not mean that. I only used “the other side” to refer to “the other side of this debate,” not knowing quite what to call them. “Anti-war” is wrong, I think. For one thing, it’s silly and inappropriate for them to call us “pro-war.” Likewise, it’s silly and inappropriate—in most cases—for our side to say that they support our enemies. I say in most case, because there are some on that side that do mean to support our enemies: the Michael Moore, Cindy Sheehan faction, who call our enemies “freedom fighters,” and claim that we are going about oppressing the poor, innocent Muslim world, and so forth. Some of that attitude did seep into some of the answers I got, unfortunately. But for the most part, I think what I called “the other side” simply believe that the choices we’ve made in regard to the present conflict have been unwise. Those who fall into that category, I certainly did not mean to castigate as supporting our enemies.