Tag Archives: Liberty

The gutless media

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Lynne Kiesling

Yesterday I posted a roundup of some of the media’s reporting on the NSA’s collection of domestic communications metadata. I concluded the post thus:

But the most striking commentary is from the editors of the New York Times, who state that “the administration has now lost all credibility”.

If you follow the link you will see that the editors have revised their editorial to say

… the administration has now lost all credibility on this issue.

If you doubt me, here it is in track changes from newsdiff.

When the media are this gutless, is it any wonder that most Americans are indifferent to the  destruction of their rights?

The government is at fault and is to blame for its violations of our rights, but the media are complicit. And, as Arik Hessedahl said in the All Things D post I linked to yesterday, the American people are the boss. We are the ones who grant the government these powers, and we, individually and through the media, have done a spectacularly bad job of holding government agents responsible when they overstep their legal boundaries and when they abuse the power that we allow them to have.

America’s surveillance state: Can you hear me now?

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Lynne Kiesling

Today has seen a flurry of information in the wake of Glenn Greenwald’s breaking the news in the Guardian last night about the National Security Agency’s (dubbed in the Washington Post the “eavesdropper in chief“) collection of Verizon phone customer metadata on a daily basis. Here’s a roundup of the resources I have found most useful and informative:

Shane Harris in the Washingtonian provides an overview of the NSA metadata surveillance program. If you are not familiar with metadata, this is a good place to start:

In fact, telephone metadata can be more useful than the words spoken on the phone call. Starting with just one target’s phone number, analysts construct a social network. They can see who the target talks to most often. They can discern if he’s trying to obscure who he knows in the way he makes a call; the target calls one number, say, hangs up, and then within second someone calls the target from a different number. With metadata, you can also determine someone’s location, both through physical landlines or, more often, by collecting cell phone tower data to locate and track him.

The NSA is data mining to look for patterns, ostensibly with a national security/terrorism reduction objective. They store, analyze, manipulate the data on our communications. These surveillance activities are supposed to be applied only to foreign communications may be associated with terrorist threats, not to the widespread collection and storing of the communications metadata of U.S. citizens.

And they have done so under legal authority granted in the late 1970s to FISA courts. Timothy Lee in the Washington Post provides background on the use of FISA courts. The FISA courts were fairly moribund until the Patriot Act created Congressional authority for the NSA to use FISA courts to process secret authorizations of widespread surveillance of our communications. The authorizations processed in FISA courts are rolling three-month authorizations, and according to a USDOJ Office of Legislative Affairs report in April 2013 to the Senate, of the 1,976 surveillance requests the NSA made, the FISA court did not reject one. Seems suspiciously like a legal rubber stamp …

Julian Sanchez does an excellent job of explaining why the NSA’s collection of our communication records is a problem:

We are, predictably, being told that this program is essential to protecting us from terrorist attacks. But the track record of such claims is unimpressive: They were made about fusion centers, and the original NSA warrantless wiretap program, and in each case collapsed under scrutiny. No doubt some of these phone records have proven useful in some investigation, but it doesn’t follow that the indiscriminate collection of such records is necessary for investigations, any more than general warrants to search homes are necessary just because sometimes searches of homes are useful to police.

And Arik Hessedahl at All Things D reminds us that we, the citizen-voters, are the boss:

Now that we live in an age where data storage is inexpensive and computing power all but limitless, finding that meaning and achieving that understanding is simply a matter of will.

Clearly, the will exists, or the court order would not have been sought or granted. But will implies intent, and we can only guess at that intent. Officials in all branches of federal government have a long history of overstepping their legal authority and of abusing outright the powers granted them by their boss.

That boss, by the way, is us.

At this, it’s worth reminding ourselves what the boss’s policy is. It’s contained within the Fourth Amendment to the Constitution:

Which, by the way, has been in precipitous decline over the past 13 years, as the surveillance state has evolved in the face of either fear or indifference, or both.

Other useful commentary today is from Jim Harper of Cato in the Daily Caller, Kashmir Hill in Forbes, and the editors of Bloomberg News.

But the most striking commentary is from the editors of the New York Times, who state that “the administration has now lost all credibility”.

Friday Music Fun: Radar vs. Wolf

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Lynne Kiesling

Some Friday fun listening from Nashville-based Radar vs. Wolf, a video from their debut album!

Radar vs. Wolf singer/songwriter James Bratton recently wrote a post on Bleeding Heart Libertarians articulating his particular take on political philosophy, and it’s a take I find congenial. Especially this part:

Why would I give them the legal power to regulate my whole life? And why would I claim for myself the power to regulate anyone else’s life?

… F.A. Hayek referred to such a mindset as “the pretense of knowledge.”

It is insanity for one person to put this kind of trust in another man or group of men, especially men who believe we exist solely in order to serve the “greater good.” Public choice theory and history have shown that “benevolent” men set above others are subject to the same faults and selfishness as the rest of us, regardless of the good intentions with which their offices were created.

That’s a pretty succinct articulation of my belief.

Happy Friday!

“Free Market Fairness” and self-authorship

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Lynne Kiesling

[NOTE: The following is an economist's musings about philosophy, so if my philosopher friends can flesh out my argument and identify errors I'd be grateful. Also, this post is meant for you if you are interested in electricity regulation, so don't just mark it as read because it's philosophy ;-) ! --LK]

Although I have not yet finished John Tomasi’s Free Market Fairness, I am very much enjoying the conversation about it in progress at the symposium on it at Bleeding Heart Libertarians. John’s project is laudable — rediscover and synthesize common ethical ground between the two dominant branches of classical liberal thought. Roughly speaking, the bifurcation into what John labels “libertarianism” and “high liberalism” arose out of John Stuart Mill’s argument for the treatment of economic liberty as less essential than other civil liberties. Mill’s argument is that “… in the sphere of liberty are activities that primarily concern only the individual, …” (Tomasi p. 29), while the other sphere, that of coercion, addresses activities that affect other people. Mill categorizes exchange and commerce as inherently social due to its “you need two to tango” essence, and thus places it in the realm of coercion and not of liberty. More substantively, as John goes on to explore, Mill did not think that exchange and commerce could “contribute to individuality” (Tomasi p. 30) or to the moral foundations of personhood in the way that other civil liberties do, such as speech, assembly, and so on.

Thus the two branches of thought bifurcate from the classical liberalism tree trunk: modern libertarianism, which prioritizes property rights and economic liberty as foundational to all other civil liberties (e.g., Rothbard), and high liberalism, which picks up Mill’s moral demotion of economic liberty and builds upon it to justify a substantial government apparatus for regulation and intervention in the private economic decisions of individuals, with the stated objective of designing a social system that will generate benefit particularly for the least advantaged in society (Rawls’ operationalization of the maximin principle). John’s book probes ways to find commonalities in these two branches. In part his argument is a reinvigoration of the original tree trunk — classical liberalism, with which in the 20th century (i.e., after the bifurcation) he identifies Hayek. Classical liberalism neither prioritizes nor demotes economic liberty, embodying the principle that there is only liberty, and that its manifestation in various aspects of human action and interaction should be treated as moral equals. John notes (p. 24) that

… classical liberals see these wide-ranging economic liberties as being especially weighty compared to other social values. … But classical liberals do not treat economic liberties as moral absolutes or as in any way more basic than the other fundamental rights and liberties.

In particular, in all of the realms of liberty the presumption should be toward respecting individual liberty, but recognizing from a consequentialist perspective that there may be net benefits from allowing some coercion, such as taxation and wealth transfer to provide resources for a social safety net (a policy that, for example, Hayek advocated).

But I want to focus on one specific insight in John’s book that will stick with me and change how I think about individual liberty and economic regulation: self-authorship (The specific semantics here may be common in philosophy, but they are new and exciting to me). Embodying a definition from Rawls, John defines self-authorship as (p. 40)

… the capacity to develop and act upon a life plan (whether that plan be individual, collective, or otherwise shared). People are life agents and their agency matters. As responsible self-authors, they have the capacity to realistically assess the options before them and, in light of that assessment, to set standards for a life of a sort that each deems worth living.

The flip side of self-authorship is the individual’s recognition that others are themselves responsible self-authors, and that each of us has a duty to respect that self-authorship to the greatest extent possible when designing social systems that will necessarily involve some degree of coercion. One way we can use this concept of self-authorship is as a way to interpret Mill’s original argument; to me, it looks like Mill was arguing that economic activity such as commerce and exchange does not fall within the realm of activity relevant to self-authorship. However, classical liberals argue, and John is arguing here, that economic activity is just as essential a dimension of self-authorship as speech, association, political representation, and other dimensions arising out of our core civil liberties. Consider how much of our moral capacity to act upon a plan as a responsible agent takes form and meaning through our work and consumption decisions. I see self-authorship as one essential strand that can synthesize across these two post-Mill branches, but such a synthesis requires some common ground agreement on the extent to which economic activity is important for self-authorship. I expect John will develop this in the chapters I haven’t gotten to yet.

Why should you care about this issue of civil liberties, economic liberty, and self-authorship if you are reading KP because you are interested in electricity regulation and technology? Regulation as implemented in electricity interferes with self-authorship for individuals in a range of roles, consumer and innovator in particular. One consequence of acting on self-authorship is innovation and technological change, which is a manifestation of human creativity and thus intimately connected to self-authorship. Furthermore, look back at John’s definition of self-authorship. Economic regulation of retail electricity markets removes individual agency in consumption choices, in production choices, and in innovation choices. By preferencing an increasingly obsolete engineering-driven top-down model of vertically-integrated infrastructure financing and retail service provision, regulation demotes individual agency and treats it as unimportant. Especially if you come to electricity from an engineering and/or a rate-making perspective you may not think often about the ethical foundations of the regulatory system we inhabit; here’s one ethical aspect of it that I think is worthy of your consideration. Technological change has made choice more feasible and potentially attractive to some consumers, and environmental concerns make consumer choice and awareness of fuel use implications more important. Thus a dimension of economic activity — the production and consumption of electricity services and the innovations interacting with those services — that used to be treated as a commodity/infrastructure transaction does have aspects of self-authorship to it that traditional economic regulation constrains. There are ethical implications of regulation.

Ironically, actually, one justification often offered for this regulatory system is to maintain uniform treatment of residential customers in a way that will ensure that prices stay low and stable for “vulnerable” consumers such as elderly and low-income consumers; this justification sounds Rawlsian. But it also does constrain the self-authorship of other consumers, producers, and innovators in ways that may make them worse off, and moreover, if those others were allowed choice and freedom of expression through their technology and energy consumption decisions, they may bring about a world in which new products and services actually drive down costs or create unanticipated value that could benefit those vulnerable consumers. Is that tradeoff worth it, ethically or economically?

I’m only a few chapters in, and I’m sure that the rest of the work will be just as thought-provoking and insightful.

Reasons to end the War on Drugs. Now.

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Lynne Kiesling

Today in Forbes Art Carden has an essay arguing that we should end the War on Drugs and make marijuana legal, now. He’s right. Here’s why.

  • As Art argues, the War on Drugs is a policy poster child for unintended consequences, because the inelastic demand for the regulated good means that stronger enforcement leads to more profits from selling the good. The War on Drugs increases drug dealer profits.
  • Because of those profits relative to other alternatives, the War on Drugs just doesn’t work. An example: here in Chicago we had a recent spate of unusual gun violence, and even though new police chief Garry McCarthy said last year that he thought the War on Drugs was ineffective, after this violent weekend he joined mayor Rahm Emanuel in promising more vigorous and aggressive enforcement and targeting of drug transactions. Note at the head of the lede that Mick Dumke says “The first time I heard a police officer argue that the war on drugs wasn’t working was in 1994.” Law Enforcement Against Prohibition has been saying it since 2002.
  • The War on Drugs violates the fundamental individual right that humans have of self-ownership; individuals have the right to choose their own actions without interference as long as their actions do not violate the fundamental individual rights of others.
  • The War on Drugs has created horrific law enforcement violations of individual rights: police brutality, increased police militarization, no-knock raids resulting in property destruction and death of innocent citizens when they get the wrong addresses, civil asset forfeiture rules that police departments have incentives to exaggerate so they can sell assets to raise revenue. The actions that the police rationalize using the War on Drugs increasingly are the actions of a police state.
  • The War on Drugs has virtually eliminated the constitutional protection of individual rights against unreasonable search and seizure, and is seriously eroding judicial due process rights.
  • The War on Drugs has costly and socially corrosive blowback in other areas. If you think that the invasive actions of the TSA are solely related to the War on Terror, you haven’t been paying attention. When the TSA crows about its “successes” in airport security, they are often items of “contraband”. The War on Terror is in part a red herring for the War on Drugs, and the two combine to give law enforcement officials substantial discretion in the militarization, unreasonable search, etc. mentioned above.
  • The War on Drugs has destroyed the fabric of urban families and communities much more than drug use would, through the disproportionate incarceration of young African American men (see above point about how regulation increases the profits from the drug trade).
  • In addition to the immorality of the War on Drugs described above, as a matter of public policy it fails benefit-cost analysis. Jeffrey Miron estimates the net effect annually of reducing enforcement, legalization, and taxation of marijuana to be $15 billion — an increase in tax revenue of almost $7 billion and a reduction in enforcement costs of $8 billion. The net social savings from extending legalization to other drugs is even larger. Think about the other uses of those resources — revenue for deficit reduction, reallocation of law enforcement activity to some other area where it may actually have meaningful beneficial impacts (like, say, intelligence gathering, community development, cops walking the beat).
  • The beneficial budgetary effects and reduced social corrosion that Miron suggests have actually happened recently in Portugal, which has liberalized its drug trade and consumption, with net beneficial financial and social effect.
  • The hypocrisy of the War on Drugs is astounding, particularly the president’s recent heavy-handed opposition to legalization after his admission in 2004 that the War on Drugs is a failed policy. In the face of the fact that the health effects of alcohol are more negative than of marijuana and the fact that general social mores have moved so that more than half of the U.S. population believes that marijuana should be legal, this hypocrisy is downright absurd.

Nick Gillespie says it well in this reason.tv video:

We cannot afford the War on Drugs, either morally or economically. End this costly, ineffective, corrosive policy. Now.

 

Commemorating Martin Luther King and liberty

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Lynne Kiesling

For the past couple of years, I’ve commemorated Martin Luther King day by rereading his Notes From A Birmingham Jail, which I recommend to you as an eloquent articulation of, among other things, the values of liberty and of equality before the law.

It’s interesting to reread it this year,as our awareness of increasing encroachment and violations of our civil liberties grows. The juxtaposition of “Birmingham Jail” with Jonathan Turley’s analysis of the top ten ways in which the United States is no longer the land of the free is striking and thought-provoking. We lose such liberties incrementally, and King’s reminder of the importance of disobeying unjust laws is important to remember as we consider Turley’s list and how to regain our freedom. Note also the juxtaposition with the Economic Freedom of the World report from 2011, in which the US fell in stature due to increasing regulatory invasiveness to accompany the civil liberty invasiveness.

The Defense Authorization Act and unlawful detention

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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.

Horwitz, Henderson, Hayek on the police state

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Lynne Kiesling

On a subject too important to overlook … today Steve Horwitz wrote a short, clear argument providing evidence that we are indeed living in a police state. As evidence he offers 3 related phenomena:

  1. The immoral, ineffective, and financially irresponsible security theater we endure in the form of the Transportation Security Administration (as I’ve discussed previously here and here);
  2. The militarization of local police and the increase in activity, and the brutality of that activity, of SWAT teams and extensive inland border patrols; and
  3. Border patrol agents boarding trains and buses and demanding identification papers.

All of these actions are part of the growth of the national security state associated with the Orwellian-named PATRIOT Act. Sadly, I agree wholeheartedly with his conclusion:

When residents of the United States have a legitimate fear of being sexually abused by agents of the State when engaging in peaceful air travel, we live in a police state. …

When residents of the United States have serious reason to fear the door being busted down in the middle of the night by armed agents of the State despite having done nothing wrong, we live in a police state. …

When American citizens are stopped while traveling within their own state and asked to account for their whereabouts, we live in a police state. …

When innocent American citizens are told they should have “their papers” on them, we live in a police state. …

Since 9/11 the biggest threat to the American people is not radical Muslim terrorists, nor deranged domestic terrorists, but the terrorists with the blue uniforms, badges, and body armor. Their weapons of mass destruction are not bombs, but state-approved guns, latex-gloved hands, and a profound disregard for our rights. Until we stand up and say, “Enough!”these terrorists will keep winning and our rights will continue to be lost.

David Henderson agrees too, and reminds us today at EconLog of his excellent article last year about the growth of the surveillance state, “Life in the USSA“. David draws on Hayek’s arguments about the concentration of government power and the failure of economic central planning to argue that anti-terrorism central planning is also doomed to failure, for the same reasons … but politically powerful interests use fear-mongering arguments to instill a generalized perception that such centralized police and surveillance power are necessary protections. For that reason they also argue that decentralized adaptations, such as the hardening of cockpit doors and the widespread realization that we now have to pound the crap out of terrorists on planes rather than acquiescing to them, are insufficient. David’s entire argument is well worth reading, full of data and analysis.

This story of David’s is very telling, and should serve as another indication that we should, as Steve said, stand up and say Enough!

Three weeks after 9/11, I began a fall quarter class at the Naval Postgraduate School in which, on my first problem set, I stated Bush’s view that the terrorists were after us because of our freedom. This, I said in the question, is an hypothesis. How would you test Bush’s hypothesis, I asked. What data would you look for? Only about 2 people out of 50 refused to play, writing, essentially, that I was unpatriotic for questioning “the commander in chief.” The other 48 did play. I’ll never forget one of the answers. I wish I had photocopied it. The student, a U.S. military officer, wrote, “Congress and the President are busy, with the USA PATRIOT Act and intrusive security at airports, getting rid of our freedom. So if the President’s hypothesis is correct, there will be no more attacks.”

Civil liberties and economics: more than just free markets

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Lynne Kiesling

I wasn’t around KP a lot last week because I was spending a lot of time following the Patriot Act extension debacle and contacting my Congressional representatives to urge them to vote against it (of my so-called representatives, only Senator Durbin did so; I think this is the first time he and I have aligned on an issue).

The past couple of weeks have been brutal for our civil liberties in the US. Consider this incomplete list:

In the past two weeks the legal enforcement of our inalienable right to be free from unreasonable search seems to have almost disappeared.

You may ask why I’m paying so much attention to Patriot Act-related issues (including my frequently-articulated objections to the TSA, an outcome of the Patriot Act), and what is its relevance to our economic decisions and choices. The first and most obvious reason is the morality of the issue. Free people, in a country whose legal institutions are premised on protecting that freedom, have inalienable rights, and we have stipulated legal institutions for the protection of those rights (NOT for the granting and definition of those already-existing rights). In this case the Fourth Amendment of the Constitution is the legal institution being destroyed (and the First and Fifth (due process) are taking a beating too), with the evisceration of our civil liberties as the consequence.

The second reason is the more consequentialist, utilitarian one relating to economics. How can we thrive, be happy, be productive, invest, take on risks, when we are not secure in our life, liberty, and property? Our civil liberties are an essential foundation of those secure property rights on which our economic activity and economic growth are built. Without being secure in our life, liberty, and property, our economic selves wither.

Matt Zwolinski’s recent post at Bleeding Heart Libertarians articulates well why the erosion of civil liberties matters, both at a daily personal level and at an intellectual level, and implicitly at both a moral and economic level, and why we should emphasize both economic liberty and civil liberty in our policy arguments.

Economic freedom is not the only freedom over which governments currently run roughshod.  And, as I have suggested here before, it is probably not even the most important one. …

But libertarians, and especially bleeding heart libertarians, ought to give these issues much more attention than they currently do.  First, these issues matter for people’s lives, especially the lives of the poor and vulnerable who are much more likely to find themselves victimized by the growing police state, either directly or indirectly.  Second, precisely because they aren’t under dispute we can make compelling arguments on these issues without first trying to resolve all of the difficult and intractable problems that divide various schools of political and philosophical thought.

Economic liberties and civil liberties are complements, and the erosion of one erodes the other. These are some of the reasons why I am paying such close attention to the Patriot Act and the TSA, why I am acting to encourage change.

LearnLiberty.org: Unplanned order

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Lynne Kiesling

I’ve been enjoying the new videos available at LearnLiberty, all of which give clear, insightful discussions of fundamental concepts of classical liberalism (including economics). My highlight of the day is Tom Bell’s “Can order be unplanned?”

The answer is yes. Here Tom explores the rich intellectual history of the concept of spontaneous order, and how individuals pursuing their own ends can coordinate their decentralized actions in ways that lead to the emergence of unplanned order. His brief discussion explains the concepts, refers to its articulation by Adam Smith and F.A. Hayek, and shows how the answer to “who’s in charge here?” can be “no one” without society descending into chaos.