The Defense Authorization Act and unlawful detention

Lynne Kiesling

Have you been paying attention to the National Defense Authorization Act (NDAA) that the Senate passed last week? I don’t blame you if you have not heard much about it, since most media have not been covering it. In addition to military expenditure authorization, it includes controversial provisions about the detention of terror suspects; as summarized by Spencer Ackerman at Wired:

But far more dramatically, the detention mandate to use indefinite military detention in terrorism cases isn’t limited to foreigners. It’s confusing, because two different sections of the bill seem to contradict each other, but in the judgment of the University of Texas’ Robert Chesney — a nonpartisan authority on military detention — “U.S. citizens are included in the grant of detention authority.” …

So despite the Sixth Amendment’s guarantee of a right to trial, the Senate bill would let the government lock up any citizen it swears is a terrorist, without the burden of proving its case to an independent judge, and for the lifespan of an amorphous war that conceivably will never end. And because the Senate is using the bill that authorizes funding for the military as its vehicle for this dramatic constitutional claim, it’s pretty likely to pass.

This development is disturbing in many dimensions. Note the narrowing and weakening of the long-standing habeas corpus protections of citizens against unlawful detention that our legal system inherited from English common law going back to the Magna Carta. The U.S. Constitution in Article 1, Section 9, states 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.” Maybe this “cases of invasion” exception is the reason why Senator Lindsay Graham, one of the most vocal supporters of these detention provisions, argues “Is the homeland the battlefield? You better believe it is the battlefield.” A consequence of this position is, as Conor Friedersdorf notes at the Atlantic,

That quote is important, for Graham is saying that as long as terrorists are trying to recruit  on American soil, our homeland is a battlefield. That means a perpetual state of war. Here are the senators who refuse to affirm that American citizens retain the right to due process during this war that is supposedly being waged everywhere on earth and that has no foreseeable end in sight.

He then provides the roll call on one of the amendments that would have limited these detention powers over U.S. citizens. Note also that many of the Senate supporters (and the House supporters of the version passed there earlier this year) claim to be supporters of limited government, but are indeed here codifying increased government powers to wage perpetual war. How can they, and we the voters, not see the hypocrisy and venality inherent in these positions?

Glenn Greenwald highlights another disturbing dimension of this legislation — or, more accurately, of the detention and military powers of the U.S. government. He points out that President Obama may veto this legislation, not because it includes gross violations of the civil liberties of American citizens, but because it represents Congress claiming oversight of executive powers that the Obama Administration (like the Bush Administration before it) asserts to already possess: “… the Bush and Obama administrations have already successfully claimed most of the powers in the bill, and courts have largely acquiesced … this bill would codify indefinite military detention, but the actual changes when compared to what the Executive Branch is doing now would be modest.” Greenwald observes:

But, with a few exceptions, the objections raised by the White House are not grounded in substantive problems with these powers, but rather in the argument that such matters are for the Executive Branch, not the Congress, to decide. In other words, the White House’s objections are grounded in broad theories of Executive Power. They are not arguing: it is wrong to deny accused Terrorists a trial. Instead they insist: whether an accused Terrorist is put in military detention rather than civilian custody is for the President alone to decide. Over and over, the White House’s statement emphasizes Executive power as the basis for its objections to Levin/McCain.

It’s truly disturbing to consider how much centralized political and military power we have allowed to build over the past decade. If the issues surrounding the NDAA are new to you, I recommend Greenwald’s post as a thorough discussion of the substantive and procedural issues. Sheldon Richman’s thought-provoking analysis at the Freeman is also a worthy read.

Finally, note (as do the articles linked above) the bipartisan nature of the support for this increase in government power and authority; a public choice theory-based analysis would easily lead you to that conclusion. Both the Republican wing and the Democrat wing of the Authoritarian Party have offered substantial support for perpetual war and the associated funding and power accompanying it, for both the executive branch and the “representative” branch. The discipline that’s supposed to be provided through our ability to “vote the bums out of office” seems incredibly weak here … or is this state of perpetual war truly the will of the people?

Maybe Orwell was right after all, although I thought most people saw his writing as cautionary tales rather than how-to manuals.

An example of what not to do in persuasion

Lynne Kiesling

Alex Tabarrok has an excellent post this morning at Marginal Revolution:

David Warsh and Paul Krugman try to write Hayek out of the history of macroeconomics. …

It is true that many of Hayek’s specific ideas about business cycles vanished from the mainstream discussion under the Keynesian juggernaut but what Krugman and Warsh miss is that Hayek’s vision of how to think about macroeconomics came back with a vengeance in the 1970s. …

… Hayek was an important inspiration in the modern program to build macroeconomics on microfoundations. The major connecting figure here is Lucas who cites Hayek in some of his key pieces and who long considered himself a kind of Austrian.

I offer this as a cautionary “what not to do” note to students in particular, but also to all of us. In the piece to which Alex is responding Krugman chooses his definition of “modern macroeconomics” in a way that clearly maps into his preconceptions and reflects his confirmation bias. Such a rhetorical stratagem is unscientific and anti-intellectual. It’s also easy to critique (no disrespect intended for Alex’s good, pointed critique) by simply looking at the literature and seeing that modern macro encompasses a breadth of ideas and approaches, many of which are substantially informed by models and methodological approaches that Krugman chooses to reject.

Thus both on intellectual grounds and with a view toward crafting an argument that is persuasive to those who don’t already agree with you and share your worldview, don’t do this. Being more ecumenical and treating the contributions of your intellectual opponents with respect will make your arguments more thorough, effective, and persuasive.

On a substantive note, I’d like to echo the recommendation that Jacob Levy made in the comments on Alex’s post; the conclusion of Warsh’s essay is a good one, and suggests that incorporating more of a complexity approach into macro would enable us to build better models:

That said, it is pleasing to think that Hayek himself may yet turn out to have been a very great economist after all, far more significant than Myrdal or Robinson, when seen against the background of a broader canvas. The proposition that markets are fundamentally evolutionary mechanisms runs through Hayek’s work. Caldwell, of Duke University, notes that, starting with the Constitution of Liberty, “the twin ideas of evolution and spontaneous order” become prominent, especially the idea of cultural evolution, with its emphasis on rules, norms, and decentralization.

These are today lively concepts in laboratories and universities around the world. “It could have been that Hayek was running a different race, and the fact that he didn’t do well in the Walrasian race was that he wasn’t running in it—he was running in the complexity race,” says David Colander, of Middlebury College. Hayek may yet enter history as a prophet of evolutionary economics, a discipline dreamt of since the days of Thorstein Veblen and Alfred Marshall in the late nineteenth century but not yet forged, whose great days lie ahead.

UPDATE: See also Pete Boettke on this same theme, motivated by Alex’s post.