Snookered By The (Faux) "Pink Libertairan"

Back in January, I posted a link to what appeared to be something very rare: a blog by a young, attractive, libertarian woman. I found her thinking to be somewhat sophomoric and imbued with the confidence that comes only from youth and inexperience, but the author seemed unique enough that I thought the blog might make interesting reading from time to time. Today, I went back there for the first time, and, low and behold, learned that the young liberterian girl was actually (by his own confession), "an unemployed man without a wife or girlfriend still living with my parents despite being over the age of 30." What a bummer! Sophistry by Libertairan Girl was something I could tolerate, even find amusing. Sophistry by an unemployed 30-year old with no life is simply boring.

Before relegating him to my "deleted items box", though, i should point out that our hermaphrodite does make one observation that may not be entirely irrelevant to the debate raging recently over the paucity of women on America's editorial pages (see, e.g., this and this and this): precisely becuase they are so much rarer, it is a heck of a lot easier for a female (and especially an attractive female) journalist/blogger to attract attention than it is for a male. He/She moans:

When I had a blog as my real self, no one linked to me, no one left any comments, it was as if the blog existed in a vacuum. But things were different for Libertarian Girl. Every day I’d check Technorati and discover new unsolicited links. It was like I had warped into an alternate universe where all the rules had changed. At the rate things were happening, this would have been an A-list blog in a few more months.

It’s funny how there have been some posts in the blogosphere saying that the political blogosphere was a boys club that discriminated against women, as evidenced by how few politics bloggers were women. Boy were they completely off the mark. It’s ten times easier for a woman’s blog to become popular.

Yes, female editorialist/bloggers are realtively rare. But that very rarity has the potential to give them disproportiante impact.

Be careful what you wish for girls!

Scalia on Constitutional Interpretation

Courtesy of Three Bad Fingers by way of Instapundit, here is a transcript of Justice Scalia's recent speech on Constitutional Interpretation. It is a fscinating read, and anyone who believes (as I do) that the meaning we ascribe to the Constitution needs to evolve over time should take the time to peruse this. I guarantee it will challenege you to think more about what you believe in this regard.

Writing Women Into a Corner

Anne Applebaum to Susan Estrich: STFU

Still More Good News: Wolfy is outta here!

Courtesy of Laura Rosen at War and Piece (via Will Bunch), Wolfowitz appears to be headed to the World Bank. I'd have preferred out to pasture, but even at the World Bank he can do a lot less damage than at DoD. How much longer for Rummy I wonder?

Lots of Good News

I have had very little time to blog in the last couple weeks. Too bad too, becuase there is a lot of interesting stuff going on:

Countering the pro-Syrian demonstrations staged by Hezbollah last week, yesterday a Huge Demonstration in Lebanon Demands End to Syrian Control.

The Israelis continue to demonstrate that they are serious about making peace. First, theIsraeli Cabinet Pledges to Raze Some Outposts in West Bank in addition to those in Gaza and then announces that it will Turn Over Control of 2 West Bank Towns to Palestinians. My firend Yuval is just beside himself. But to me it's all to the good.

A California Judge Voids Ban on Gay Marriage. Do you realize that this issue has now been decided by three state courts and all three have held that such a ban is unconstitutional. The holy homophobes must going nuts. Now all we have to do is to (a) get the California Supreme Court and the New York Court of Appeals to affirm and (b) find some way to attack the state constitutional amendments passed last November. Actually, it's not going to be that easy. This is going to be a long bitter fight.

And then, most personally gratifying of all, Bernie Ebbers' "I know nothing" defense fails: Ex-Chief of WorldCom Convicted of Fraud Charges. Small comfort for the drubbing I took on Worldcom stock, but better than nothing.

Comparing Plans for Social Security

There was an interesting table in the Washington Post last week comparing the basic elements of five different approaches to Social Security. Notes on Bush's positions are included, but since he really hasn't proposed anything yet, there is not much there.

The main point the table drives home is that all we are talking about is money: every approach to the issue involves some combination of increased taxes and/or increased borrowing and/or decreased benefits. The only differences are how much of each.

The plan I tend to like the most is the second one on the chart from the Cato Institute. Here is the full text of that proposal. Here are the basic elements:

1. No changes at all for people 55 and older.

2. No increase in FICA rates or in the cap (currently $90,000) in wages subject to FICA

3. A guaranteed minimum pension for all at 120% of the poverty level.

4. Workers between 18 and 55 would technically have the "option" of staying in "traditional" social security. If they did, they would be entitled to receive whatever benefits would be payable (not promised) under current law. The catch: under current law, once the "trust fund" is exhausted, the SSA is required to reduce benefits to the levels payable with then-current FICA receipts. And, since the Cato plan involves a 50% cut in FICA receipts from any worker who opts out of traditional SS, the trust fund would probably be exhausted well before the 2042 current projections. In fact, therefore, most people below 45 or maybe even 50 would be foolish to stay with traditional social security.

5. People between 18 and 55 who opted out of SS would immediately receive a zero coupon bond with a value that, at maturity (i.e. age 62), would buy an annuity paying benefits equal to the benefits social security would have paid that worker under today's rules if that worker had quit working at the age at which he/she received the zero coupon bond.

6. All workers and employers would continue to pay 6.2% (each, for a total of 12.4%) into the government pension program just as they do today. However, half of that money would be invested by the government at money market interest rates during any given year and then, at year end, that half would be deposited automatically (with interest) into a closely controlled private account owned by the individual but offering a severely limited range of investment options (index funds, broad based bond funds, money market funds, etc.)

7. Once such a worker reached retirement age he would be required to use the assets of this account to by a lifetime annuity paying at least 120% of the poverty level. If his account was insufficient to do this, the government would make up the difference out of general revenues. After that, any assets remaining in the account would be treated much like a Roth IRA, with the worker having substantial discretion as to frequency and manner of withdrawals. Any remaining balance at death would become part of his estate.

8. The remaining 6.2% of FICA payments would be used to defray the transition costs. Eventually, these transition costs would start to decline and eventually to zero. Once that happens, the required payments would drop a well until (eventually) the required pension payments would drop to 6.2%.

What I like most about this is that it separates the "welfare" component of SS from its "investment" component. On the welfare side, everyone is treated equally. It answers the question: "Why should the government pay Bill Gates more than it pays Joe Lunchbox. Moreover, 120% of the poverty level seems to me to be a fair level for the government to guarantee. The remainder of the benefits which an individual receives will come from "true" investment. As such, the invested assets should, I think, belong to him. Finally, it begins to address America's miserable savings rate, essentially requiring every worker to save 6.2% of income for his retirement. This will create a huge new pool of capital for investment, and by spurring growth, this investment may actually increase both national wealth and tax receipts, thereby helping to defray the transition costs.

The problem, of course is the transition costs. They will be huge. Cato doesn't even try to estimate them, but the Post attributes an estimate of $7 trillion dollars over 75 years, which the Post says that this is roughly double the current SS deficit of $3.7 trillion over the same period. Estimates of this sort are almost meaningless, since there are way too many assumptions buried in a 75-year estimate of anything to allow reliable forecasting. But, in a larger sense, my answer is that if this is what it will cost, so be it. Getting to the end point Cato describes seems to me to be worth it. And, since $7 trillion divided by 75 years is "only" $93 billion/year, we could get most of the way there simply by rolling back the Bush tax cuts.

Could Bush Be Right Cont'd: On Ends, Means, Costs and Benefits

On Saturday, taking off from and Op-Ed piece by David Brooks, I wrote a post observing that (much to my chagrin) there were tantalizing signs that Bush might actually be right when he claims that the overthrow of Saddam and the efforts to build democracy in Iraq would trigger a liberalization of other Arab governments. I also noted that if these hints proved to have substance, then the invasion itself might well have been worth the costs.

At dinner that evening, I got into a discussion of these same isses with some friends who have even more trouble than I do giving Bush "credit" for anything. One question I was asked repeatedly was whether I was saying that "the ends justify the means?" The question was troublesome, and I admit to pretty much ducking it at the time. But it has stuck in my mind, and I feel compelled to try and answer it. After further (and more sober) consideration, I think the answer is a firm . . . "Maybe." I think a fairer statement of my argument is this: Every change in the status quo involves some costs, frequently in the form of human suffering. But, in some cases, the benefits of the change, to future generations if not to the present ones, are worth the costs entailed in achieiving that change. Perhaps this is the same thing as arguing that the ends sometimes do justify the means. But, to me at least, there are important nuances that are lost in that common indictment of action.

Take a simple example. Suppose a group of terrorists is holding some hostages. Few would disagree that the goal of freeing the hostgaes would be worth the "costs" involved in killing the terrorists, at least if there were no other less violent alternative. But, what if the only availible and effective means of freeing the hostages in any reasonable period of time involved risks to the hostages themselves? And, even more difficult, what if it involved risks to third parties? I think most people would agree that, if the only effective means for freeing the hostages involved risks to the the hostgaes themselevs and even to innocent third parties, the end of freeing the hostages is sufficiently important to justify using those means despite the potential suffering that may flow from that decision.

Obviously, any person charged with effecting a change has a moral obligation to assure that the means chosen is the least costly of the effective means for achieving that end. Thus, use of deadly force would not be warranted so long as there remained some reasonable hope that the goal could be achieved by negotiation. Moreover, there are probably some "means" that are simply too "costly" to consider using in pursuit even of a very valuable goal. For example, the goal of liberating hostages would probably not justify siezing the families of the terrorists and torturing them one by one until the terrorists surrendered.

But, beyond these extremes, the decision of whether to pursue a particular course of action cannot be answered by resort a claim that ends do not justify means. As the hastage example illustartes, some ends do justify the use of some means, even if innocnt people may suffer as a consequence. Thus, deciding particular cases -- like Iraq -- involves a consideration of four sequential questions:

(1) Is the goal itself worth achieving. That is, if a particular change could be effected without any costs at all, would the owrld be better off. If the answer to this question is "No", then considering costs is pointless.

(2) Will a given "means" be effective in achieving the goal. If not, then again, consideration of costs associayted with this means is pointless.

(3) Are there other effective means that would be less "costly". If so, those means should obviously be preferred. But if not, then the choice comes down to:

(4) Are the costsassociated with the means "worth" the benefits that will flow from achieving the goal.

The first and last of these questions are pure value judgments and can be debated as such. The second and third are question of fact, but they can never be answered with complete confidence until after the fact. As a result, these questions do not provide answers to the question of whether a particular means was justified in light of a particular end. However, they do provide a framework for thinking about those issues.

In the case of Iraq, the goal is (or at least is now claimed to be) to achieve a near-term reduction in the threat Islamic fundamentalisms poses to the West by accelerating political liberalization of Arab governments. Few would argue that reducing the threat of Islamic fundmentalism is a worthwhile goal. And, most would agree, I think, that liberalization would tend to reduce that threat. Thus, most would agree, I think, that the goals are worth achieving so long as the costs are no excessive. Anyway, let's assume we have consensus on that point. If we need to debate the premises, we can do so later.

So, we have a goal that we agree is worth pursuing, at least if the means used do not involve significant costs. The next question is "Was the invasion of Iraq an effective means by which to pursue this goal. Bush claims it is. My sense originally was that it clearly was not; indeed, I believed it was actually counterproductive. In fact, this has long been my primary argument against the war. But, given recent developments, I now have to concede that Bush might actually be right. The jury is still veryy much out on this question, and if Bush is not right then the invasion will clearly be the unmitigated mistake we have all thought it was at least since the myth of WMDs was exploded. But, if he is right, then we who have opposed the war have some additional thinking to do if we are to maintain that opposition on any basis other than pure spite. Specifally, to condemn the war, we have to be able to either point to another means that would achieve the same goals at a lower cost, or we have to argue that the benefits of achieving the goals were not worth the costs involved.

On the first of these questions, I do not think one can point to diplomacy as a "less costly but equally effective" means. True, diplomacy is less costly than war. It is also true that negotiation, engagement, incentives, disincentives and other tools of diplomacy (together with what we Americans tend to think of as the historic inevitability of liberal democracy) might well have eventually resulted in Arab liberalization at a far lower human cost than resulted from military action. But that argument involves an implict rejection of a part of the original goal. Diplomacy might welll have worked, but it unquestionably would have taken years, even decades. The goal, here is to significantly accelerate this process in pursuit of a near term reduction in the threat posed by Islamic terrorism. It strikes me that military intervention was probably the only effective means to achieve that goal.

But, was military intervention in Iraq necessary? At the time that decision was made, we had already overthrown the Taliban and were in the process of trying to build a more liberal regime in Afghanistan. Why wasn't that enough? Why did pursuit of liberalization require two examples. It is here that I think the defense of the invasion of Iraq is weakest. (For a more detailed exposition of why I think this, see my critique of a William Safire Op-Ed piece back in Decemeber).

But let's set that point aside for a moment and get to what I think was the real issue behind my friends' ends-versus-means questions: even assuming that pursuit of liberalization in the Arab world was a worthwhile goal and even assuming that an invasion of Iraq was the only effective means available for pursuing that goal, were the benefits that would flow from achieiving that goal worth the costs that invasion imposed on the people of Iraq and on America itself? I presume from their question that my friends believe they were not. I am considerably less certain about that.

First, let's look at the issue from an entirely selfish point of view. I believe that reducing the threat terrorism poses to America and to the developed world as a whole is, by far, the Nation's single most important imperative. For that reason, I am a whole-hearted supporter of the invasion of Afghanistan despite the suffering it caused to the Afghan people and, to a much lesser extent, to the American people. Also, I believe that political liberalization of Arab governments is ultimately a condition precedent to reducing that the threat of Islamic fundamentalism. Thus, if I were convinced that, like the invasion of Afghanistan, the invasion of Iraq were the lowest cost effective means of achieving that end in the near term, I would be in support of that war as well, depite the suffering that it imposed on the Iraquis and the addittonal suffering it imposed on Americans.

But, the benefits of liberalization do not end there. Liberalization unquestionably has benefits for the Iraquis themsleves. For those living today, the balance between the costs and benefits may be a very close one. But if perspective is broadened to include future generations of Iraquis as well as present and future generations of citizens of other Arab countries, then I don't think the is pretty clear. As horrific as the suffering in Iraq has has been and will continue to be, if the result is a stable, relative free Iraq, and a growing liberalization throughout the Arab world, I believe the suffering will have been "worth it" even we ignore the benefits to American interests and security (which we should not, by the way).

In short, the issue for me comes down to this: First, will the invasion of Iraq and Afghanistan prove to have been effective in promoting liberalization in those countires and in the rest of the world? Second, was it necessary to those ends to invade Iraq as well as Afghanistan. If the answer to both of these question is "Yes", then I believe the invasions will ultimately be found to have been worth their costs.

Sooner or later, we will be able to answer the first of these questions. Probably we will never be able to answer the second. And for that reason, I will never be entirely comfortable with the decision to invade Iraq, even if it does result in the liberalization Bush claims it will.

The Latest on Enemy Combatants

Yesterday, Judge Henry F. Floyd of the US District Court for South Carolina held that Jose Padillla, an American citizen arrested on American soil, could not properly be detained as an "enemy combatant" and must be either charged as a criminal defendant or released. The case, Padilla v. Hanft, is the third lower court decision to come out of the Supreme Court's trilogy of enemy combatant cases last summer.

In Hamdi, the Supreme Court held that the "Authorization For Use Of Military Force" (AUMF)passed by Congress shortly after the 9/11 attacks had implicitly authorized the President to capture and detain individuals actively opposing such use of force and/or supporting those responsible for the 9/11 attacks. Thus, the court upheld the detention of Hamdi, even though he too was an American citizen, since he was captured on a foreign battlefield carrying a weapon in active opposition to US forces. Padilla, by contrast, was arrested, unarmed, by civilian law enforcement officials, at Chicago's O'Hare Airport, without a struggle of any sort.

Interestingly, though, the Hanft decision did not turn on whether Padilla was, in fact, an "enemy combatant". Indeed, given the procedural posture of the case (a motion by Padilla for summary judgment), the court was required to assume that the government's factual allegations were true: that Padilla had been in Pakistan and had returned to the United States with the intention of detonating a "dirty bomb." Assuming those contentions are true, it is hard to argue that Padilla is any less an "enemy combatant" than Hamdi was. Nevertheless, while accepting, as he had to, the Supreme Court's holding the AUMF did authorize military detention of American citizens captured on foreign battlefields, Judge Floyd held that it did not authorize military detention of citizens captured on American soil.

To my mind, this is all singularly unsatisfying. The Due Process Clause of the US Constitution provides that "No person shall be . . . deprived of . . . liberty . . . without due process of law . . . " On it's face, at least, this prohibition is directed at the government and protects any "person" whether or not the person is a US citizen. However, the requirements necessary to satisfy "due process" are not fixed but rather can and do vary with the circumstances. Perhaps it is true, therefore, as the Supreme Court held in Rasul, that the only "process" that is "due" to "enemy combatants" is an opportunity to contest the factual basis of their classification. In the case of citizens, however, the Due Process Clause is supplemented by the Detention Act, which was passed by Congress in 1950 in reaction to the internment of Japanese-American citizens during World War II. That Act provides that "No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress."

The government argued both in Hamdi and Hanft that the Detention Act applies only to civilian detentions, not to military detentions ordered by the President in his conduct of a war. The Supreme Court side-stepped this argument, holding that, even if "an Act of Congress" was required, the AUMF provided that Act, at least under the circumstances presented by the Hamdi case.

But, the AUMF does not speak explicitly about detention at all. It provides, simply, 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 [9/11] terrorist attacks" 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." Nevertheless, the Supreme Court held that explicit authorization was not required:

The AUMF authorizes the President to use "all necessary and appropriate force" against "nations, organizations, or persons" associated with the September 11, 2001, terrorist attacks. 115 Stat. 224. . . . We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the "necessary and appropriate force" Congress has authorized the President to use.

The capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by "universal agreement and practice," are "important incident[s] of war." Ex parte Quirin, 317 U. S., at 28. The purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again. . . .

In light of these principles, it is of no moment that the AUMF does not use specific language of detention. Because detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war, in permitting the use of "necessary and appropriate force," Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here.

But, if that is the case, how is Padilla different from Hamdi? The premise of the Hamdi decision was that the United States was at war with Afghanistan and more broadly with Al Queda. If Padilla, acting as an agent or supporter of Al Queda, was plotting to commit a terrorist act (as Judge Floyd was required to assume for purposes of ruling in the motion for summary judgment), then how can the government's interests in his detention be any less (or any less authorized by the AUMF) that they were in the case of Hamdi? The fact that Hamdi was captured abroad while Padilla was captured here hardly seems to be a principled reason for different treatment. Suppose Padilla had been a part of a guerilla force invading the United States? In short, I have to agree with the government that the issue of where an "enemy combatant" is captured is a meaningless distinction, especially in reference to deciding what was and was not authorized by the AUMF.

Yet, at an intuitive level, Judge Floyd's decision seems unassailable. And, if Judge Floyd is right, yet Padilla cannot distinguished in any meaningful way from Hamdi, then perhaps it is the Supreme Court's decision in Hamdi that deserves to be questioned.

It seems to me that Justice Scalia, in his Hamdi dissent, may actually have the "right" answer. Yes, the exigencies of a battlefield do allow military commanders to detain people opposing them for some period of time. But, within a fairly short period of time, those authorities have to process these detainees into two categories: non-citizens and citizens. Non-citizens captured on a battlefield can be detained for the duration of the conflict so as to prevent them from returning to the battlefield, but must be released as soon as the conflict ends. Citizens, by contrast, must either be released or charged with a crime regardless of whether the conflict is ongoing.

But what crime could Padilla and Hamdi be charged with. In Padilla's case, if the government's contentions are true and provable, the potential criminal charges are probably myriad: conspiracy to commit murder being only the most obvious. But what about Hamdi. He was, arguably, "just a soldier" captured on a battlefield, no more guilty of a crime than any of the POWs captured by the US in WWII. As Scalia suggests, though, his citizenship makes all of the difference. If he truly was an enemy combatant, actively engaged in fighting US forces on a foreign battlefield, is he not, in fact, guilty of treason? This is Scalia's point when he writes:

Justice O'Connor, writing for a plurality of this Court, asserts that captured enemy combatants (other than those suspected of war crimes) have traditionally been detained until the cessation of hostilities and then released. Ante, at 10-11. That is probably an accurate description of wartime practice with respect to enemy aliens. The tradition with respect to American citizens, however, has been quite different. Citizens aiding the enemy have been treated as traitors subject to the criminal process.

Citizenship, in short, is a two-edged sword. One edge cuts against the government, limiting the government's incarceration power (primarily) to cases where the citizen is charged with, tired within a reasonable time for, and convicted of a crime. The other edge, however, cuts against the citizen, imposing upon him obligations not imposed on aliens. Principal among these, of course, is to refrain from taking up arms against his country and/or aiding an abetting an enemy with which his country is at war.

The difficulty with this is that the government, despite being convinced that the citizen is planning to commit a terrorist act or has been actively engaged in aiding and abetting an enemy in a time of war, may not be able prove that fact with sufficient certainty to secure a criminal conviction, either because the evidence does not reach the "beyond a reasonable doubt" standard or because the government can not reveal the evidence without creating other, perhaps even more serious, dangers. In this case, an actual terrorist could well go free.

As this last point illustrates, these cases present a conflict of values. What do we value more, security or due process and the presumption of innocence. I, at least, come down in favor of the former. I would prefer to accept the risk that an actual terrorist will go free than to deny to a citizen accused of terrorism the due process rights to which, as a citizen, he is entitled.