"Every man is a damn fool for at least five minutes every day; wisdom consists in not exceeding the limit."
- Elbert Hubbard
Friday, May 27, 2011
Thursday, May 26, 2011
Secrecy and Democracy
As soon as the United States entered World War I, Congress passed the Espionage Act and the Sedition Act in an effort to bolster security and enhance the recruitment of soldiers. The most famous element of these laws, the subject of the Supreme Court decision in Schenck v. United States made it illegal "when the United States is at war, [to] willfully utter, print, write or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States or the Constitution...or the military or naval forces of the United States, or the flag." Oliver Wendell Holmes, writing for the unanimous court, wrote that such restrictions were constitutional when there was a "clear and present danger" to the state as a whole.
Since 1919, First Amendment law has been much more fully articulated, in part through a long line of Supreme Court decisions. In contrast, the Espionage Act has garnered much less attention, in part because it does not directly implicate the Bill of Rights. The law reads, in part
can be imprisoned for up to ten years.
The intent of the act clearly is to protect the operations of the military from harm resulting from spying. As every president from Wilson to Obama has insisted, violation of this law can place American soldiers immediately in harm's way, and could result in disaster for whole campaigns. Given that the constitution gives the president and Congress explicit power to maintain an army, it seems perfectly reasonable to say that the government has the power to protect it from espionage.
The problem is that the government too often has used the law to shield itself from having to reveal less obviously beneficial secrets. In one early example, the federal government claimed the right to protect military secrets even from judicial scrutiny when the widow of an Air Force officer sought information on the cause of the plane crash that killed her husband. In Reynolds v. United States, the Supreme Court ruled that all the government had to do was say secrets were involved, and everyone had to keep hands off. When those documents finally were released 50 years later, we learned that there were no military secrets involved at all, but that a failure of proper maintenance, which would have exposed the government to embarrassment and legal liability, had killed the airmen. The government lied, and then used the courts to cover its lies. Since then, we know the Nixon, Reagan, Bush, Clinton and Bush administrations also cloaked their activities in ways that were later found to be unethical at least and possibly even illegal.
More recently, according to stories in The New Yorker magazine and CBS's "60 Minutes" news program, the Obama Administration is also stretching the meaning of the law to meet questionable goals. In "The Secret Sharer," Jane Meyer describes the Justice Department's (over?)zealous prosecution of Thomas Drake, a former executive in the NSA who leaked secret documents to the press. Drake says that he not a spy, but a whistle-blower, uncovering graft and incompetence, not secrets important to the US government.
Therein lies the trouble. Without utter secrecy, it's possible that the operation to assassination Osama bin Laden would not have worked. If the government fails to protect its own secrets, such missions might never work. On the other hand, not everyone agrees that the mission against bin Laden was legal -- I, for one, have my doubts. In that case, a full and unfettered public debate about targeted killings, if not specific operations, may be absolutely necessary for the proper functioning of our government. We can't have that debate without the kind of information withheld in cases like these.
My own view is that, except in the case of specific military information having to do with current operations, secrecy is gnerally not good for government. Transparency, as Obama himself once argued, is better.
Since 1919, First Amendment law has been much more fully articulated, in part through a long line of Supreme Court decisions. In contrast, the Espionage Act has garnered much less attention, in part because it does not directly implicate the Bill of Rights. The law reads, in part
Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book,signal book, sketch, photograph, photographic negative, blueprint,plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to
receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it
can be imprisoned for up to ten years.
The intent of the act clearly is to protect the operations of the military from harm resulting from spying. As every president from Wilson to Obama has insisted, violation of this law can place American soldiers immediately in harm's way, and could result in disaster for whole campaigns. Given that the constitution gives the president and Congress explicit power to maintain an army, it seems perfectly reasonable to say that the government has the power to protect it from espionage.
The problem is that the government too often has used the law to shield itself from having to reveal less obviously beneficial secrets. In one early example, the federal government claimed the right to protect military secrets even from judicial scrutiny when the widow of an Air Force officer sought information on the cause of the plane crash that killed her husband. In Reynolds v. United States, the Supreme Court ruled that all the government had to do was say secrets were involved, and everyone had to keep hands off. When those documents finally were released 50 years later, we learned that there were no military secrets involved at all, but that a failure of proper maintenance, which would have exposed the government to embarrassment and legal liability, had killed the airmen. The government lied, and then used the courts to cover its lies. Since then, we know the Nixon, Reagan, Bush, Clinton and Bush administrations also cloaked their activities in ways that were later found to be unethical at least and possibly even illegal.
More recently, according to stories in The New Yorker magazine and CBS's "60 Minutes" news program, the Obama Administration is also stretching the meaning of the law to meet questionable goals. In "The Secret Sharer," Jane Meyer describes the Justice Department's (over?)zealous prosecution of Thomas Drake, a former executive in the NSA who leaked secret documents to the press. Drake says that he not a spy, but a whistle-blower, uncovering graft and incompetence, not secrets important to the US government.
Therein lies the trouble. Without utter secrecy, it's possible that the operation to assassination Osama bin Laden would not have worked. If the government fails to protect its own secrets, such missions might never work. On the other hand, not everyone agrees that the mission against bin Laden was legal -- I, for one, have my doubts. In that case, a full and unfettered public debate about targeted killings, if not specific operations, may be absolutely necessary for the proper functioning of our government. We can't have that debate without the kind of information withheld in cases like these.
My own view is that, except in the case of specific military information having to do with current operations, secrecy is gnerally not good for government. Transparency, as Obama himself once argued, is better.
Thursday, May 19, 2011
Judicial Hierarchy and the Law
At the heart of the Supreme Court's power is the respect for the rule of law. This principle says that we ought to set aside our personal political preferences in deference to the determination of legitimate organs of law. (The problem of what to do when confronted with illegitimate organs of law is the subject of Jefferson and Locke, but even they argue that the rejection of false legal authority must be accompanied by an appeal to legal reason.) More than any other branch of government, the judiciary depends upon adherance to this principle because courts have no guns and no money to use as enforcement tools; they must depend on someone else to make their decisions hold.
As Ronald Dworkin argued recently in The New York Review of Books, the current five-member majority of the US Supreme Court has undermined that principle by making what he calls "embarrasingly bad decisions."
I'm not sure I agree with Dworkin in the degree of his criticism, but I do marvel at the willingness of these five people to rewrite long-standing law while at the same time declaring their allegiance to stare decisis.
But even more alarming is the possible deliberate disregard for Supreme Court rulings by the DC Circuit Court. As the circuit solely responsible for the application of Supreme Court decisions on detentions at Guantanamo, the DC court has enormous power. I can't think of a punishment harsh enough if the suspicions raised by some scholars are true -- that the DC circuit has deliberately ignored rule set down by a majority of the Supreme Court in Boumedienne v. Bush.
As Ronald Dworkin argued recently in The New York Review of Books, the current five-member majority of the US Supreme Court has undermined that principle by making what he calls "embarrasingly bad decisions."
I'm not sure I agree with Dworkin in the degree of his criticism, but I do marvel at the willingness of these five people to rewrite long-standing law while at the same time declaring their allegiance to stare decisis.
But even more alarming is the possible deliberate disregard for Supreme Court rulings by the DC Circuit Court. As the circuit solely responsible for the application of Supreme Court decisions on detentions at Guantanamo, the DC court has enormous power. I can't think of a punishment harsh enough if the suspicions raised by some scholars are true -- that the DC circuit has deliberately ignored rule set down by a majority of the Supreme Court in Boumedienne v. Bush.
The Coming Apocalypse
As we all know by now, the United States government will default on its debts if it does not raise the debt ceiling soon -- by early this summer at the latest. By some accounts, such a default is unimaginable because the resultant economic catastrophe is so obviously forseeable that not even the House of Representatives could allow it to happen. Let's hope that wisdom holds true.
Of course, the more difficult question is how we reduce the necessity of having to go through this exercise repeatedly. Right now the government spends far more than it brings in, for several reasons. Some day soon, we -- and I mean "we," not just the people we elect to Congress and the White House, because it will be our money and our lives that will be affected -- will have to decise how to balance this equation. It will require compromise and probably some level of sacrfice that we have not made in too long.
The TEA Party likes to talk about the spending part of that equation. As Mark Meckler and Jenny Beth Martin wrote in Politico this week,
As far as they can see, borrowing is a moral as well as an economic issue, and sometimes moraility needs to take precedence. They don't like "entitlement" and they don't like debt.
I don't agree about the morality of the "entitlement" programs they hate. I think government has an obligation to its citizens that extend to offering some protection when they are least vulnerable. Such philosophical questions will never be fully resolved are the main stuff of political debate.
On the economic question, though, the answer is a little easier. As Robert Samuelson argued in Newsweek last month, the other side of the equation must be considered, too. That is, we do have to raise taxes while we cut spending. More particularly, we have to increase taxes on the wealthy individuals who benefit so much from the enormous profits of multinational corporations. TEA Partiers might be right about the suppressing effect of taxes on corporations -- and Samuelson argues that corportae tax rates ought to be cut and then enforced -- but
I have no idea whether these specific changes would have the effect Samuelson says they will, though it sounds right to me. Whether you agree with Meckler and Martin or not about the morality of providing the poor with enough food to eat, though, it can't rationally be denied that the government must collect taxes to reduce the deficit. we can't -- we won't -- reduce spending to zero.
And that means that the threats to prevent the raising of the debt ceiling are both hollow and myopic. What threats can the TEA Party people make, what concessions can they extract, that would be worth a meltdown? It's time to find a reasonable compromise.
Of course, the more difficult question is how we reduce the necessity of having to go through this exercise repeatedly. Right now the government spends far more than it brings in, for several reasons. Some day soon, we -- and I mean "we," not just the people we elect to Congress and the White House, because it will be our money and our lives that will be affected -- will have to decise how to balance this equation. It will require compromise and probably some level of sacrfice that we have not made in too long.
The TEA Party likes to talk about the spending part of that equation. As Mark Meckler and Jenny Beth Martin wrote in Politico this week,
"The real medicine needed is to do what Congress originally intended a debt ceiling to do: stop borrowing. Every poll shows the majority of the public is against raising the debt ceiling. In poll after poll, between 60 percent and 70 percent of voters are against an increase. This despite constant wailing from politicians and bureaucrats that failure to raise the ceiling would lead to economic catastrophe.... Refusing to raise the debt limit is likely to force the politicians to deal with entitlement reform and spending cuts today — not after the 2012 elections, when it might be too late."
As far as they can see, borrowing is a moral as well as an economic issue, and sometimes moraility needs to take precedence. They don't like "entitlement" and they don't like debt.
I don't agree about the morality of the "entitlement" programs they hate. I think government has an obligation to its citizens that extend to offering some protection when they are least vulnerable. Such philosophical questions will never be fully resolved are the main stuff of political debate.
On the economic question, though, the answer is a little easier. As Robert Samuelson argued in Newsweek last month, the other side of the equation must be considered, too. That is, we do have to raise taxes while we cut spending. More particularly, we have to increase taxes on the wealthy individuals who benefit so much from the enormous profits of multinational corporations. TEA Partiers might be right about the suppressing effect of taxes on corporations -- and Samuelson argues that corportae tax rates ought to be cut and then enforced -- but
We should lower the tax on corporations. That would make the United States more attractive to U.S. and foreign multinationals. We should then raise taxes on the people who receive the benefits of corporate profits. The economists suggest cutting the corporate rate to 26 percent and increasing the capital-gains rate to 28 percent; dividends would be taxed as ordinary income. If done properly, this switch would create jobs, lower tax avoidance, and cut budget deficits. Eliminating unwarranted business tax breaks could raise extra revenues.
I have no idea whether these specific changes would have the effect Samuelson says they will, though it sounds right to me. Whether you agree with Meckler and Martin or not about the morality of providing the poor with enough food to eat, though, it can't rationally be denied that the government must collect taxes to reduce the deficit. we can't -- we won't -- reduce spending to zero.
And that means that the threats to prevent the raising of the debt ceiling are both hollow and myopic. What threats can the TEA Party people make, what concessions can they extract, that would be worth a meltdown? It's time to find a reasonable compromise.
Tuesday, May 10, 2011
The Mother of All Targeted Killings
Despite the widespread euphoria over the mother of all targeted killings, the attack on Osama bin Laden, the United States now faces an even greater philosophical and legal challenge surrounding government-sponsored assassinations. Not everyone in the world was especially pleased with the killing, of course, but that’s not the issue; no government, and especially not the United States, can hope to please the international community all the time. But the Navy Seals’ very success will increase some pressure on the resident to seek to replicate it. Osama bin Laden’s conduct was so patently loathsome that it’s easy to see why the US would seek his death. Even those who may not like the concept of targeted killing might look the other way in this instance. Other cases may not be so easy.
This question of general acceptance is not only “political.” Unlike domestic law, international law does not depend on written statute. Even United Nations decrees rely not on the authority to make law, but on treaty-made agreements on what constitutes acceptable international behavior. If international law allows targeted killing, that is to say that the nations that make up the “international community” says it does.
In other words, President Obama finds himself squeezed between American popular opinion and international legal opinion. Obama’s approval ratings shot up last week following the killing of bin Laden, and he needs that approval to manage his agenda here. Some Republicans may have moaned on Facebook and elsewhere that Obama was taking credit for something he did not do, but most people associated the success with the president. Things may not be going as well in Afghanistan as Obama might wish, but if he can keep picking off bad guys he may feel better about things. Problem is that to do so might run him as afoul of international law as President Bush was when he invaded Iraq.
This question of general acceptance is not only “political.” Unlike domestic law, international law does not depend on written statute. Even United Nations decrees rely not on the authority to make law, but on treaty-made agreements on what constitutes acceptable international behavior. If international law allows targeted killing, that is to say that the nations that make up the “international community” says it does.
In other words, President Obama finds himself squeezed between American popular opinion and international legal opinion. Obama’s approval ratings shot up last week following the killing of bin Laden, and he needs that approval to manage his agenda here. Some Republicans may have moaned on Facebook and elsewhere that Obama was taking credit for something he did not do, but most people associated the success with the president. Things may not be going as well in Afghanistan as Obama might wish, but if he can keep picking off bad guys he may feel better about things. Problem is that to do so might run him as afoul of international law as President Bush was when he invaded Iraq.
Subscribe to:
Posts (Atom)