FBI Trying to Infiltrate Keene, New Hampshire

The Keene Activity Center (KAC) is a place where (mostly) young libertarians and anarchists in Keene, New Hampshire congregate to talk philosophy, plan activism (including civil disobedience), and generally relax and socialize. Apparently the Federal Bureau of Investigation has been trying very, very hard to infiltrate the KAC, judging from this account of the arrest of one of the club’s members, Rich Paul, on marijuana charges.

Paul is going on trial for petty marijuana distribution offenses pursuant to testimony by an undercover FBI informant. It looks as if the trial is on state charges, but what’s interesting and disturbing is the interest the federal government has taken in the case. FBI agent Phillip Christiana apparently tried to pressure Paul into wearing a wire into the KAC and luring people into pot transactions, offering him immunity from prosecution in exchange. Follow the link to read more about how the FBI agent tried to coerce and trick Paul into waiving his right to counsel.

Here are some questions the FBI ought to answer, that is, if they were in any way accountable to those of us who are paying their salaries under duress:

1. Why is the FBI taking such a keen interest in these small-scale marijuana offenses?
2. Is the FBI targeting Keene libertarians, anarchists, and “voluntaryists” for their political views?
3. Does the FBI countenance or authorize the deceptive and coercive interrogation tactics reportedly used by this agent?

I’m hoping Paul finds himself a good lawyer and negotiates a good plea bargain. His trial starts April 16th, though, so time is short. The local activists seem to be aiming for jury nullification. They shouldn’t bet the house on that. The prosecutor will paint Paul as a big-time drug dealer and scary anarchist.

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Now, where was I when we were so rudely interrupted?

Last time I was here, I had a lot of fun teasing American libertarian readers, at least until the earthquake brought my guest blogging to an abrupt halt.

Support for liberty is a lot like support for GMO-free food. If you survey people, they’ll tell you how much they love it. They might even tell you it’s the most important thing in the world for them. But make them pay $0.50 extra to have it and they’ll choose the next product on the shelf. A few pay extra for the GMO-free tags, but if you’d probably be disappointed if you launched a GMO-free brand based on a survey of how much people claimed to hate genetically modified foods.

Jason Sorens and William Ruger have done great work in showing the substantial differences in experienced freedom across the 50 US States. A lot of libertarians live in New York; New York tends to come last in these surveys. Moving someplace that doesn’t keep trying to ban large sodas would mean giving up easy access to Broadway shows. It’s fine to be a pluralist and to weigh Broadway shows against personal liberties in some great personal utilitarian calculus, but it’s not exactly consistent with ‘Live Free or Die’ rhetoric.*

Absolute differences across American states are perhaps not large enough to make it worth moving. But if that’s the case, what are we to make of libertarian activism in the less-free states? It’s exceptionally unlikely that even the most effective activist in New York could move the state more than a point or two in the ordinal rankings, but that same person could take an oil job in North Dakota and move from worst to first while working there to help make North Dakota even better.

I’ve also argued, and often, that American libertarians should consider moving to New Zealand, which ranks first in the worldwide index weighing civil and economic freedoms. Why not choose to live free, or as free as is possible in the current world?

The Honours thesis I’m supervising this year will examine the price of liberty. The international ranking above gives a nice cross-sectional snapshot of differences in liberty across countries. Some of the measures can be extended backward in time. My student, Chris Read, is going to add these measures to international migration data to estimate the elasticity of migration flows to measured liberty and compare that elasticity to things like expected income differences across countries. Most people are messy pluralists; I’m really curious to see how things here pan out. Hopefully by the end of it, we’ll be able to say “A unit increase in civil liberties, all else equal, has about the same effect on inbound migration as a $X increase in median income.” That X will be close to a revealed preference measure of the price of freedom.

Later this week, I’ll post reassessing some of my Kiwi-enthusiasm in light of the post-earthquake policy experience. I’ve been pretty disappointed with how things here have panned out. We are not as far outside of the asylum as I had thought.

* I count myself as a messy pluralist of this sort too; I’m not trying to disparage it! Freedom matters, other stuff matters too.

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Freedom in the 50 States Teaser #3: Weighting the Variables

The new, book-length edition of Freedom in the 50 States: Index of Personal and Economic Freedom will be released on March 28 by the Mercatus Center at George Mason University. In the days leading up to release, I will be “teasing” a few of the novel findings and methods from the study. Here at Pileus, I’ve already posted a couple of teasers over the past few months, linked here:

• “A Thought Experiment on Freedom“
• “The ‘New Hampshire Advantage’: Nearly Killed Off in 2009-10“

This post will explain the logic and method behind the weighting scheme in the new edition. Every index of freedom has to use some way of weighting its variables to come up with an aggregate measure of freedom. The Heritage Foundation’s “Index of Economic Freedom” and Fraser Institute’s “Economic Freedom of the World” and “Economic Freedom of North America” essentially weight each variable equally, either within categories that are themselves weighted equally in the overall index (Fraser) or across the index as a whole (Heritage). The most commonly used international indices of democracy, Polity IV and Freedom House, and the first two editions of Freedom in the 50 States use “arbitrary” weights, that is, the researchers weight the categories according to their own judgment using general criteria.

We were unsatisfied with all of these approaches, as well as with inductive statistical alternatives known as “principal component analysis” and “factor analysis.” Here is how we put the case in the book:

Because we want to score states on composite indices of freedom, we need some way of “weighting” and aggregating individual policies. One popular method for aggregating policies is “factor” or “principal component” analysis, which weights variables according to how much they contribute to the common variance—that is, how well they correlate with other variables.

Factor analysis is equivalent to letting politicians weight the variables, because correlations among variables across states will reflect the ways that lawmakers systematically prioritize certain policies. Of course, partisan politics is not always consistent with freedom (e.g., states strong on gun rights tend to be weak on gay rights). The index resulting from factor analysis would be an index of “policy ideology,” not freedom.

Another approach, employed in the Fraser Institute’s “Economic Freedom of North America,” is to weight each category equally, and then to weight variables within each category equally. Of course, this approach assumes that the variance observed within each category and each variable is equally important. In the large dataset used for the freedom index, such an assumption would be wildly implausible. We feel confident that, for instance, tax burden should be weighted more heavily than court decisions mandating that private malls or universities allow political speech.

Previous versions of this index used a subjective weighting system, based on a rough assessment of the importance of each policy in terms of the number of people affected and the value they were likely to place on their infringed freedom. We were dissatisfied with the imprecise and subjective manner in which we constructed those weights, and for this edition we have tried to use a much more objective and independent measure of the “value” of each freedom.

The new, “objective” method of weighting variables is what we call the “freedom value” approach. Here is how we describe it:

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Asymmetrical Information

Access to information is an important topic. Citizen access to information is critical if norms of democratic accountability are to have any meaning. At the same time, the Bill of Rights and a long series of court decisions limit the capacity of the state to collect information on its citizens without first obtaining a probable cause warrant.

There is a fascinating piece on Politico today by Jim Vandehei and Mike Allen entitled “Obama, the puppet master.” The article focuses on the ways in which the White House has dramatically limited press access to President Obama: “The president has shut down interviews with many of the White House reporters who know the most and ask the toughest questions. Instead, he spends way more time talking directly to voters via friendly shows and media personalities. Why bother with The New York Times beat reporter when Obama can go on ‘The View’?”

Then, of course, there is the creative use of social media and staged events to create the illusion of access:

Obama boasted Thursday during a Google+ Hangout from the White House: “This is the most transparent administration in history.” The people who cover him day to day see it very differently.

… something is different with this White House. Obama’s aides are better at using technology and exploiting the president’s “brand.” They are more disciplined about cracking down on staff that leak, or reporters who write things they don’t like. And they are obsessed with taking advantage of Twitter, Facebook, YouTube and every other social media forums, not just for campaigns, but governing.

What should we conclude? Transparency is maximized when those in power tightly control information and use technology to create an alternate universe that reinforces the president’s priorities and excludes any media outlet that may ask uncomfortable questions or challenge the performance record.

While there are efforts to limit the availability of the information necessary to enforce genuine norms of transparency and accountability, there are simultaneously efforts to develop a greater capacity to collect information on citizens via domestic drones, as revealed in several recent articles.

By way of background, the National Defense Authorization Act for FY 2012  (section 1074) directed the Secretary of Defense, in consultation with the Federal Aviation Administration (FAA), to submit a report describing and assessing “the rate of progress in integrating unmanned aircraft systems into the national airspace system.” It also (section 1097) directed the FAA to “establish a program to integrate unmanned aircraft systems into the national airspace system at six test ranges.”

Brian Bennett and Joel Rubin (LA Times) report that the Federal Aviation Administration has already issued 1,428 permits to domestic drone operators. Robert Johnson (Business Insider) reports FAA projections that there could be 30,000 drones in US skies by the end of the decade, making the domestic drone market worth hundreds of millions of dollars.

Bennett and Rubin describe some concerns that all of this raises for civil libertarians:

 “The technology is evolving faster than the law. Congress and courts haven’t determined whether drone surveillance would violate privacy laws more than manned planes or helicopters, or whether drone operators may be held liable for criminal trespassing, stalking or harassment.”

To get a sense of the state and local debates, see Josh Harkinson, “Can Police Be Trusted with Drones?”  (Mother Jones)  As the surveillance state expands, there is some evidence that state governments are formulating a response. See Allie Bohm (ACLU) “Status of Domestic Drone Legislation in the States” for a list of states legislating on this issue. Whether this amounts to more than an uneven patchwork remains to be seen.

A chief concern is that the federal government will push forward with domestic drone deployment without careful reflection on the implications for civil liberties. Given the first story and the recent White Paper on administration policy,  perhaps the best we can hope for are  some vague assurances (issued via Twitter or in a Google+ Hangout) that we can trust well intentioned officials to consider the implications.

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Rand Paul and Domestic Drones

Some Republicans (including former VP Dick Cheney) applaud the Obama administration’s use of drones for targeted killing of US citizens abroad. Senator Rand Paul (R-KY), in contrast, is threatening to filibuster John’s Brennan’s confirmation to head the CIA, based on his failure to answer a simple question during last week’s hearings (transcript here, see pages 56-57).

Senator Ron Wyden (D-OR):

I’ve asked you how much evidence the President needs to decide that a particular American can be lawfully killed, and whether the administration believes that the President can use this authority inside the United States. In my judgment, both the Congress and the public needs to understand the answers to these kinds of fundamental questions. What do you think needs to be done to ensure that Members of the public understand more about when the government thinks it’s allowed to kill them, particularly with respect to those two issues — the question of evidence, and the authority to use this power within the United States?

The Response:

I have been a strong proponent of trying to be as open as possible with these programs as far as our explaining what we’re doing. What we need to do is optimize transparency on these issues, but at the same time, optimize secrecy and the protection of our national security. I don’t think that it’s one or the other; it’s trying to optimize both of them. And so, what we need to do is make sure we explain to the American people: what are the thresholds for action; what are the procedures, the practices, the processes, the approvals, the reviews.

The Office of Legal Counsel advice establishes the legal boundaries within which we can operate. It doesn’t mean that we operate at those outer boundaries. And, in fact, I think the American people would be quite pleased to know that we’ve been very disciplined and very judicious, and we only use these authorities and these capabilities as a last resort.

Senator Wyden, unfortunately, failed to force John Brennan to respond to the core question about the domestic use of drones.  Much turns on whether one interprets Brennan’s “response” as a conscious effort to sidestep the issue or simply a failure for no particular reason to answer both parts of the question.

Senator Paul’s interpretation, as reported in the Hill, is clear:

What I want to hear from John Brennan before I let his nomination go forward is that no, a CIA or the Department of Defense cannot kill someone in America without any kind of judicial proceeding. By Brennan not saying no, that he won’t strike Americans in America, he is essentially saying yes, and that is very scary and worrisome to me.

One could argue that Senator Paul’s fears are overblown.  At the same time, if we could turn the clock back to September 10, 2001, my guess is that most would not believe that there would be a time in the near future when we would condone “enhanced interrogation techniques,” indefinite detainment at GITMO, extraordinary rendition, the expansive powers granted in the PATRIOT Act, the use of drones for domestic surveillance or the use of drones for the targeted killing of US citizens abroad.

I don’t believe that anything Mr. Brennan would have said in his hearings would be binding on the federal government going foreword. But this seems like a reasonable question that deserves a response (regardless of whether it would somehow compromise the preferred balance between transparency and national security).

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The White Paper

The Justice Department White Paper on the targeted killing of US citizens is out, and worth a read. There are no surprises here, for anyone who has followed this sordid affair. Much of the same policy was articulated by AG Holder last year in his speech at Northwestern Law. Holder basically assured his audience that these were not assassinations because assassinations are illegal and we should trust that the deliberations internal to the executive provided more than enough due process (you can read excerpts in this post).

For those who go to the White Paper, the discussion of what constitutes an “imminent” threat (p. 7) seems like something issued by the Ministry of Peace:

“the condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.”

Note, the OED provides the following definition:

“Of an event, etc. (almost always of evil or danger): Impending threateningly, hanging over one’s head; ready to befall or overtake one; close at hand in its incidence; coming on shortly.”

Apparently, the definition can now be presented in a more concise fashion:

“Of an event, etc. (almost always of evil or danger): Impending threateningly, hanging over one’s head; ready to befall or overtake one; close at hand in its incidence; coming on shortly.”

In the present case, if someone has been involved in the past “in activities posing an imminent threat …and there is no evidence suggesting that he has renounced or abandoned such activities,” this fact would “support the conclusion that the member poses an imminent threat.” One wonders what happens if we insert the administration’s definition of imminent threat into this statement of policy.

I could go on, but you can read the paper for yourself. Jacob Sullum has written a decent review of the White Paper at Reason that is also worth a quick read. The final paragraph is a gem:

“The problem is that to accept this position [the argument in the White Paper], you have to put complete trust in the competence, wisdom, and ethics of the president, his underlings, and their successors. You have to believe they are properly defining and inerrantly identifying people who pose an imminent (or quasi-imminent) threat to national security and eliminating that threat through the only feasible means, which involves blowing people up from a distance. If mere mortals deserved that kind of faith, we would not need a Fifth Amendment, or the rest of the Constitution.”

One might also quote James Madison (Federalist 51) who made what would now appear to be an inconvenient point:

“ If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

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In which I overstay my welcome

One of the regular Pileus bloggers asked me to elaborate on a claim I made briefly in my earlier discussion of BHL. I had said “there is an intra-libertarian debate [that it is useful to have about philosophical justification: is a system of individual rights ultimately justified because it accrues the best results for the poor, or is it justified for some other reason(s), and has the beneficial characteristic of accruing the best results for the poor?” and suggested I thought it was the latter. The idea that the social order can only be justified if it brings about the best results for the worst off, which is a prominent feature of Rawlsian welfare-state liberalism, has been employed as a rationale for classical-liberal non-redistributionist policies. I certanily like the irony that the chief heuristic of redistributionist theory undermines redistributionist institutions. And, as I said in the orginal post, I appreciate the positive outreach effects of noting that free market policies help everyone prosper, especially the poor. But I am hesitant to agree that the Rawslian principle is why we should have free markets. For one thing, I think we should have free markets for the same reason I think we should be free generally. I do not differentiate “civil liberty” and “economic liberty.” The latter is simply the manifestation-in-transactions of the former. Without the freedom to transact, my “freedom to choose” is pretty superficial. Rawls himself argues that we must have a system of equal freedom to choose and believe and think and speak – rights that cannot be trumped by social utility. It is only trading and acquiring rights that he says can be interfered with. But as Nozick demonstrated, you cannot interfere with transactional freedom without simultaneously interfering with freedom of choice. There are not two kinds of liberty, civil and economic, there’s just liberty (although there are of course different contexts in which we talk about liberty). And I think liberty is a necessary component of human flourishing. Humans cannot achieve virtue and happiness by coercion. “Rights” should be understood as a way to secure the possibility of self-directed activity in the social setting. The social order is thus justified if it is one which protects individual rights, and unjustified otherwise. That is the why of classical liberalism. The fact that classical liberalism and free markets help the poor better than redistributive statism is a great thing, both intrinsically and in terms of explaining its virtues to others. But the justification must be something else, something universal. Put it another way: if everyone were wealthy, would individual rights no longer be important? Of course not.

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President Obama and the 2nd Amendment – Just Be Honest, We Can Handle It

Doesn’t it figure that President Obama shoots left-handed?!

I’m really just kidding as I also shoot rifles and shotguns lefty (though pistols right-handed) and few serious people would accuse me of being a man of the left.  Moreover, I think the traditional left-right scale is fairly unhelpful (see here).

But I do find the release of this photo by the White House to be pure propaganda and thus offensive to the democratic spirit.

First, does anyone really expect us to believe that this Harvard-trained, elite, Chicago libgressive is a big shooting enthusiast?  Of course, someone with that profile could be.  However, it is very unlikely.  I can count the number of northern academics and elites who regularly shoot guns on my fingers (hello Marc!).  And none of them are Democrats.  Of course, there is the big Vermont anomaly - but I don’t think Barry would agree with the Green Mountain State’s gun control regime (which is basically this: aim well and point your gun downrange- for now).  More importantly, there is little support for any claim that Obama is a shooter.  That is why this Onion piece works as humor.  Heck, the guy couldn’t even pretend to be a decent bowler!

And this is fine. Just because I like to do something and have the right to do it does not mean that others have to agree with my preferences.  Indeed, I’d be perfectly ok with a President who said, “I don’t care for guns and have little interest in using them for any reason.  Indeed, I think owning a gun is a poor use of one’s freedom.  However, I do think that the Constitution secures the individual right to bear arms, and since I have pledged to support and uphold the Constitution, I will work to protect that right even as I disagree with its exercise.”  This is how I think about many rights that individuals enjoy and often (unfortunately) exercise.  Yet, I don’t believe the President really cares what the Constitution says nor that he should let it get in the way of his policy preferences.

Second, it is probably not chance that Obama is shooting a shotgun in the information operations/propaganda photo since this is how the Dems are trying to triangulate the gun control issue – “We don’t want to stop sportsmen from owning and shooting guns.  But true sportsmen don’t need ’assault weapons.’”  I’d be more convinced of Obama’s credibility on the 2nd Amendment if the WH showed him firing my handgun of choice: the Smith and Wesson M&P 9mm.  But that would hurt the narrative even though the Administration claims it isn’t going after handguns (despite the fact that Marc pointed out earlier that these are the real weapons of choice for those killing others).

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In which everyone decides I’m heartless and insensitive

Several of my progressive Facebook friends posted about Gabrielle Giffords’ testimony before Congress about gun legislation, editorializing that we/they should pay close attention because of her personal experience as a victim of violence. Now, I understand why some criminal courts allow victim-impact statements: before deciding what sort of punishment should be meted out, it’s relevant to see how the crime has had an impact on the victim. But Congress isn’t in the business of punishing particular offenders – its function is to create legislation for the good of the country. (Yes, I’m rolling my eyes too, but let’s stipulate this arguendo.) So the relevance of victim-impact statements in this context is…what? This strikes me as legislating the ad misericordiam fallacy, using raw emotion as a substitute for rational analysis. But what’s especially irritating is that the last big example of this was when the other party was in power, and the party in power always has a predictably selective memory. After 9/11, emotions were pretty raw. A lot more pain and suffering that day than after any of the recent mass shootings. What was the result? A decade-long war in Afghanistan. Rampant abuse of executive power. Indefinite detention without trial. Lost privacy rights. The TSA. Kill lists. Mass shootings are to the left what terrorist attacks are to the right: emotional outcry by the public leading to grandstanding by whichever party is in power, and increased erosion of liberty. This is what happens when you legislate based on raw emotions, and disregard both the Constitution and the very idea of rational analysis. Let’s not keep making the same mistake.

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The Lesson of Newtown

As a resident of Connecticut, I have followed the events surrounding the Newtown shooting with great interest and sadness. By way of full disclosure, I am a hunter. When I was a child in Wisconsin, my father took his sons to gun safety classes taught in the basement of the local police department. Both of my sons went through hunter training courses before they joined me hunting pheasants (neither really liked hunting, but at least I knew that they understood to respect firearms, use them safely, and lock them up when not in use). I have never hunted with a semiautomatic weapon. I find it unsportsmanlike.

I am sympathetic to the claim that some may want firearms for home protection (although as a friend of mine—a Marine sharpshooter and Connecticut state trooper—notes, the best weapon for home defense is a shotgun, not a semiautomatic pistol or an assault rife. Unless one is trained for combat, one loses fine motor skills under stress and is likely incapable of using these weapons effectively or accurately).

With these disclosures in mind, what to make of Newtown?

John Kingdon’s classic work Agendas, Alternatives, and Public Policies made the case quite persuasively that in the world of public policy, there are many solutions waiting for a problem to happen.  Crises can open a window of opportunity for policy change. In Kingdon’s words:

“When a window opens, advocates of proposals sense their opportunity and rush to take advantage of it.”

Often, this occurs immediately. Policy advocates know that windows of opportunity open, but they can close rather quickly.

The tragic shooting in Newtown most certainly created a window of opportunity for policy change. One could have anticipated the political response ex ante, although there were a few surprises along the way.  On Sunday’s Meet the Press, for example, one commentator noted that the shooting should give anyone pause who wants to cut Medicare and Medicaid entitlements, given the funding they provide for mental health issues (the fact that the shooter was 20 from an affluent family seemed immaterial).

It is difficult to discern what lessons one should draw from the Newtown shooting. Those who want to use the shooting to make the case for more demanding gun regulations face the problem that Connecticut already has some of the most stringent gun controls in the country and the guns were purchased legally. Those who want to restrict interstate sales and the loopholes for gun shows face similar difficulties given that neither would have prevented the tragedy. Those who want to make the argument for greater public funding for mental health treatment face the problem that the shooter was from an affluent family; the lack of public funding was not an issue.

Advocates of an assault weapon ban (similar to that created under the Public Safety and Recreational Firearms Use Protection Act of 1994) may stand on firmer ground, given that the shooter used an assault rifle (a Bushmaster .223).  But the 1994 law did not ban semiautomatic rifles (automatic rifles are already illegal for all intents and purposes) nor did it ban the .223 Remington cartridge. It did ban the manufacturing of magazines that were capable of holding 10 or more rounds of ammunition (by comparison, semiautomatic big game rifles—unaffected by the assault rife ban—have clips that hold 5 cartridges). One wonders how great a barrier such a restriction would have posed, given that the shooter was armed with two semiautomatic pistols (legal under the assault rifle ban) and smaller clips could be ejected and replaced in a matter of seconds.

In my mind, the chief lesson of Newtown is a difficult one: even when you have strict gun laws (as Connecticut clearly has) and citizens abide by those laws (the owner of the guns reportedly purchased all guns legally), tragedies can nonetheless occur.

There is little question that gun violence is a problem in the US. Although violent crime has been in long-term decline in the US, the FBI reports there were 68,720 murders between 2007-2011. Of that number, 46,313  (67.4 percent) were committed with a firearm. But of this number, 1,874 murders were committed with rifles (in contrast, 2,945 were committed with blunt objects like clubs or hammers). Handguns were the weapons of choice. With respect to handguns, most were likely acquired illegally (my guess. I am not certain that the FBI publishes that data).

Some readers of Pileus may want to make the argument that any regulation of firearms is an infringement of our Second Amendment rights. Let the comments fly. When I used to take my sons hunting, I took some comfort in knowing that anyone we encountered in the field had undergone some training on the safe use of a firearm.

If President Obama and the Congress turn to gun control in the wake of the Newtown tragedy, one can only hope that they ground policy in a broader understanding of gun violence rather than searching the events of last week for lessons that may not exist.

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Team Obama’s Chilling Defense of Killing Abdulrahman al-Awlaki

Conor Friedersdorf offers up some justifiably tough words in response to Obama senior adviser Robert Gibbs’ glib defense of the drone assassination of 16-year-old, Denver-born American citizen, Abdulrahman al-Awlaki (essentially: “he should have chosen a different father”):

Again, note that this kid wasn’t killed in the same drone strike as his father. He was hit by a drone strike elsewhere, and by the time he was killed, his father had already been dead for two weeks. Gibbs nevertheless defends the strike, not by arguing that the kid was a threat, or that killing him was an accident, but by saying that his late father irresponsibly joined al Qaeda terrorists. Killing an American citizen without due process on that logic ought to be grounds for impeachment. Is that the real answer? Or would the Obama Administration like to clarify its reasoning? Any Congress that respected its oversight responsibilities would get to the bottom of this.

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A Thought Experiment on Freedom

Imagine two countries, each the size of the U.S. In one of them, the average tax rate is 1% (of income) lower than the other, but unlike the other it randomly selects ten innocent individuals for execution each year (perhaps ritual human sacrifice!). Assuming personal income of $12 trillion like the United States, the lower tax rate in this country allows for more freedom worth $120 billion a year, by our method. If the statistical value of a life is $7 million, however, the execution policy only costs $70 million a year in freedom. Thus, not only is the human-sacrifice state with a slightly lower tax rate “freer” by this crude metric, but it is not even close.

Which is truly the freer country, assuming they are exactly alike in all other respects? And by how much?

The first paragraph above comes from the forthcoming third edition of Freedom in the 50 States: Index of Personal and Economic Freedom.

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Drones, Drones, and More Drones

The Obama administration’s growing reliance on drones in the war on terror has attracted a great deal of attention, as of late.

Things became interesting two weeks ago when the NYT published an article emphasizing the President’s role in approving the secret kill list. As the piece noted, the administration

“in effect counts all military-age males in a strike zone as combatants, according to several administration officials, unless there is explicit intelligence posthumously proving them innocent.”

This is a convenient means of undercounting the number of civilian deaths, of course. But the underlying assumption—guilty and condemned to death unless proven innocent—should give us pause. However, the greater concern of Congress was whether the story was based on  leaks to the press that could threaten national security.

Other news regarding the use of drones in counter-terrorism:

• Bruce Stokes (Der Spiegel) attributes the declining support for Obama and the US to the extensive use of drones.
• Ibrahim Mothana (NYT) claims that A.Q.A.P. is gaining strength in Yemen in response to the use of drones and the civilian casualties. “Certainly, there may be short-term military gains from killing militant leaders in these strikes, but they are minuscule compared with the long-term damage the drone program is causing. A new generation of leaders is spontaneously emerging in furious retaliation to attacks on their territories and tribes.”

On the domestic front, drones have popped up in a number of stories, some humorous (e.g., the confusion created by one drone in Washington DC, which was spectators thought was a UFO) others…not.

According to Lorenzo Franceschi-Bicchieral (Wired): “There are 64 drone bases on American soil. That includes 12 locations housing Predator and Reaper unmanned aerial vehicles, which can be armed.” The story includes a link to a map (from  Public Intelligence) of current and future drone bases.

This week, Rand Paul (the Hill) has “introduced the Preserving Freedom from Unwarranted Surveillance Act, which would require the government to get a warrant before using aerial drones to surveil U.S. citizens.” According to Paul:

 ”Like other tools used to collect information in law enforcement, in order to use drones a warrant needs to be issued. Americans going about their everyday lives should not be treated like criminals or terrorists and have their rights infringed upon by military tactics.”

Paul’s concerns are shared by the ACLU, which has a number of interesting pieces on its drone blog. One can only hope that Paul’s commitment to basic civil liberties will not place him in the minority of Senators. Alas, I don’t hold out much hope on this one.  As we have seen in the past, crisis (real or perceived) drive the expansion of state power, and there appears to be a one-way ratchet.

Note: For those interested in the vast variety of drones and robotic devices currently being developed for military and security applications, there was a fascinating piece in the Economist’s Technology Quarterly that I highly recommend.

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The Paycheck Fairness Act vs the Market

As you likely know, the Paycheck Fairness Act died in the Senate earlier this week, with strong GOP opposition. (see coverage here). The key provisions of the bill are nicely summarized in the Christian Science Monitor:

The legislation…would require employers to prove that differences in pay are based on qualifications, education and other “bona fides” not related to gender. It also would prohibit employers from retaliating against employees who ask about, discuss or disclose wages in response to a complaint or investigation. And it would make employers who violate sex discrimination laws liable for compensatory or punitive damages. Under the bill, the federal government would be exempt from punitive damages.

Of course, introducing the bill that stood no chance of passage was largely a symbolic act designed to document the Republican “war on women.”

There are the obvious debates about the empirical record (e.g., if women make 77 cents on the dollar for the same employment, does this reflect genuine gender discrimination or some other factors such as time taken out for child rearing?). One might also question whether adding a new set of regulations makes sense in the current economic climate. But there is another debate about whether such legislation can be justified. For many libertarians, the answer is obvious.

The Economist blog, Democracy in America, takes up this issue and uses it to  excoriate Rand Paul for his rejection of the Paycheck Fairness Act. The critique hinges on Paul’s efforts to draw some parallel between the aspirations of the law and central planning:

“Three hundred million people get to vote everyday on what you should be paid or what the price of goods are,” Paul told reporters on Capitol Hill. “In the Soviet Union, the Politburo decided the price of bread, and they either had no bread or too much bread. So setting prices or wages by the government is always a bad idea.”

The Economist notes that wages are set by the employer, not a central planner. The only question is whether the employer has violated the provisions of Title VII of the Civil Rights Act of 1964 (prohibiting discrimination in employment) and the Equal Pay Act of 1963 (which prohibits sex-based wage discrimination), and this is a decision that should be left to the courts.

The piece moves on, then, to a thought experiment:

But should it be illegal to offer different pay for the same work based on an employee’s sex? Maybe not. Mr Paul’s argument here implies he thinks it should be okay. So, let’s try a thought experiment. How would you react to seeing a job advertisement that read: “Associate lawyer in patent firm, 3 years’ experience required, salary $100k for man, $77k for woman”? Is that okay? If not, why not? How about this: “Associate lawyer in patent firm, 3 years’ experience required, salary $100k for Christian, $70k for Jew”? How about “Salary $100k for white, $65k for negro”?

I don’t think there is evidence that Rand Paul thinks discrimination is “okay,” rather, I am assuming he believes—as most libertarians—that market forces are sufficient to limit the extent of discrimination.  But let’s take the thought experiment seriously. How would you react to the above job ads?

My first response is simple: I would not do business with firms that adopted these policies.  I assume that many others—perhaps even a majority—would have a similar response. Businesses might freely adopt any employment practices they wish, but it they could face a significant backlash from consumers. One might also assume that these employment practices would limit the effective labor market for these firms, further reducing their competitiveness and potentially driving them out of business.

So if we believe if freedom of association and the right of individuals to engage in voluntary economic transactions, we might be content to allow markets to sort things out without the intervention of the state.

But is this sufficient?

If the forms of discrimination noted above are universalized—e.g., every firm chooses to pay women less than men—the market would not impose much in the way of discipline.  Moreover, even if the market would impose discipline, none of this would provide much satisfaction for those who were discriminated against in the first place. Those of us who believe in a higher power have faith that God will ultimately judge the quick and the dead. But we nonetheless also seek justice in the temporal realm.

One response to this last point is evident. An individual has no entitlement to a particular job, and so the denial of employment (or the offer of employment at a particular wage) does not fall into the realm of justice. For those who wish to see a more elegant development of this argument, see our own James Otteson’s fine book, Actual Ethics.

The question of whether the state has exceeded its bounds by moving beyond the protection of life, liberty and property seems to me to be a separate issue (even though it is of great interest to many of us). Discrimination in employment and wages is already illegal. Given the laws currently on the books, is there great harm in facilitating access to information and reducing the legal transaction costs faced by those who have legitimate claims?

Someone make the argument.

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Don’t Drone Me, Bro!

This is awesome. As we all know, the Obama Administration claims that it has the right to kill anyone it considers a terrorist, so long as it has some internal process for deciding whom to kill. Now someone has set up a petition on whitehouse.gov:

Considering that the government already has a “Do Not Call” list and a “No Fly” list, we hereby request that the White House create a “Do Not Kill” list in which American citizens can sign up to avoid being put on the president’s “kill list” and therefore avoid being executed without indictment, judge, jury, trial or due process of law.

Not that it will really accomplish anything. But humiliating the turncoat in the Oval Office would nevertheless warm the cockles of my jaded heart.

HT: Glenn Greenwald

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Will on Forfeiture Abuse

George Will has a good column today on civil asset forfeiture abuse. He highlights an ongoing case in Tewksbury, Mass., where the DOJ and local police department are colluding to seize a motel from the owners because some drug dealers have stayed there in the past. The government is not claiming that the owners knew or even should have known about criminal activity at the motel; they can seize the property anyway, accusing an inanimate object of committing a crime. The Institute for Justice, who put out the recent Policing for Profit report blowing the whistle on ongoing forfeiture abuse around the country, is representing the owners and challenging the forfeiture on both Eighth and 10th Amendment grounds.

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Why “Vote GOP for the Court” Cuts No Ice with Me

I’ve never voted for a Democrat or Republican for president at a general election. I’ve always voted for a Libertarian (in 2008 I voted for George Phillies, who was on the ballot as a Libertarian in New Hampshire in addition to the official candidate, Bob Barr), and I’ve never had reason to regret my vote. Throughout my adult life (I first voted in 1996), every U.S. president has been worse than the one before, and the major-party candidates they defeated would almost certainly have been just as bad.

One common argument I hear from Republicans is that libertarians should vote for Republican presidential candidates because of the Supreme Court. And indeed, libertarians generally share conservatives’ enthusiasm for the prospect of the Supreme Court’s overturning at least part of the PPACA. However, the recent 5-4 Supreme Court decision authorizing invasive strip searches of all arrestees shows us the other side of the coin: the Supreme Court’s conservatives are disturbingly willing to defer to the executive branch on issues of non-economic personal liberties. Most of the politically controversial cases with which the federal judiciary deals have to do with civil liberties and civil rights. Major Commerce Clause cases come around only once every few years — and even there, Scalia and Kennedy are unreliable.

How will the current Court

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Total Information Awareness 2.0, the Hope and Change Edition

As we know, crisis is the mother of state expansion.  Once the authority of the state is expanded under the cover of crisis, it never returns to the previous levels post crisis.  A few weeks ago, I posted on Attorney General Holder’s defense of targeted killings of US citizens abroad.

Today’s installment: the administration is seeking to limit restrictions on the use of retention of data collected about US citizens even when collected for non-security purposes. AG Holder signed new guidelines for the National Counterterroism Center. As Charlie Savage (NYT) explains:

The guidelines will lengthen to five years — from 180 days — the amount of time the center can retain private information about Americans when there is no suspicion that they are tied to terrorism, intelligence officials said. The guidelines are also expected to result in the center making more copies of entire databases and “data mining them” using complex algorithms to search for patterns that could indicate a threat.

What data are we speaking of? This is an important question, particularly given the efforts of the government in recent years to leverage private data sources.

The new rules are silent about the use of commercial data — like credit card and travel records — that may have been acquired by other agencies. In 2009, Wired Magazine obtained a list of databases acquired by the Federal Bureau of Investigation, one of the agencies that shares information with the center. It included nearly 200 million records transferred from private data brokers like ChoicePoint, 55,000 entries on customers of Wyndham hotels, and numerous other travel and commercial records.

Even though the administration failed to make draft guidelines available in advance, it nonetheless eased concerns of potential critics by noting (1) that it could already get this data, albeit in a more cumbersome fashion; and (2) there will be safeguards against abuse, including internal audits.

Feeling assured?

This reminds one of the Holder defense of the targeted killing of US citizens abroad. Ah yes, we could arrest and try US citizens and guarantee due process, but how cumbersome (particularly when the targets are in foreign countries that might not be fully cooperative). And in any event, Holder told us, there were internal safeguards that amounted to due process, even if it did not include the courts.

If all of this reminds you of the Bush-era Total Information Awareness program that was under development by John Poindexter, it should (for a refresher on this program in historical conext, see the Gene Healy  2003 piece at Cato, and the Savage article cited above).

At the time, the Bush administration made the same basic case for Total Information Awareness as the Obama administration is making now. Poindexter  assured critics that the TIA program would “break down the stovepipes” that separate various data bases, both public and private. There were also assurances that the program would respect the constitutional expectations of citizens.

No one bought the argument in 2003, particularly the press that seemed intent on shining light on the Bush administration’s efforts to infringe on civil liberties.

One wonders: will the press will play a comparable role today?

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The Use of Drones, Past and Future

A new Washington Post-ABC New Poll asks an important question regarding the use of drones by the Obama administration.

The question: do you approve of “the use of unmanned ‘drone’ aircraft against terrorist suspects overseas?”  83 percent approve, 11 percent disapprove, 6 percent have no opinion.

The truly depressing part comes in the follow-up question: “What if those suspected terrorists are American citizens living in other countries?” 65 percent approve, 26 percent disapprove, 9 percent have no opinion.

Kevin Drum (Mother Jones) finds these results depressing as well (particularly since there is majority support even among self-proclaimed Democrats and liberals). He asks:

How many people approve of these attacks on American citizens if they understand that there’s no court judgment involved, no finding of guilt, no warrant, no nothing? Just the executive branch unilaterally deciding they need to be killed.

The domestic use of drones will likely become far more common in the next few years–a fact that may force some changes in public opinion. The FAA reauthorization bill passed by the Senate on Tuesday and currently awaiting the President’s signature (see WaPo coverage) requires the FAA:

to provide military, commercial and privately-owned drones with expanded access to U.S. airspace currently reserved for manned aircraft by Sept. 30, 2015. That means permitting unmanned drones controlled by remote operators on the ground to fly in the same airspace as airliners, cargo planes, business jets and private aircraft.

It is not hard to imagine a point in the not-so-distant future when drones will become a routine instrument of surveillance in law enforcement? For coverage on this aspect of the FAA reauthorization, see Shaun Waterman (Washington Times) and an earlier piece by Harley Geiger (Center for Democracy & Technology) that develops some of the civil libertarian concerns and argues that the FAA must develop “basic privacy and transparency rules for domestic use of drones” before issuing permits.

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Obama “Devastating” for Civil Liberties

It’s not just Glenn Greenwald any more; other civil libertarians from the left are beginning to speak out. Jonathan Turley on NPR about his September 2011 LA Times op-ed:

They just have a very difficult time opposing a man who’s an icon and has made history – the first black president, but also the guy that replaced George Bush. And the result is something akin to the Stockholm syndrome, where you’ve got this identification with your captor. I mean, the Democratic Party is split, civil libertarians are split, and the Democratic Party itself is now viewed by most civil libertarians as very hostile toward civil liberties.

More here.

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.Gov versus the Spontaneous Order

Today a number of websites are either going dark (see Wikipedia) or blackening out some part of their logo (see Google) in protest to SOPA(Stop Online Piracy Act) in the House and the PROTECT IP Act in the Senate. This is an interesting issue. Advocates of the bills claim that they will provide new tools for shutting down rogue websites that are used to download material that is protected by copyright.

The protection of property rights should one of the fundamental functions of government. However, opponents argue rather convincingly that the government already has adequate tools to battle online piracy by forcing the removal of materials covered by a copyright (e.g., the Digital Millennium Copyright Act).

This legislation is different insofar as it targets the platform. These bills would allow the government to shut a website down, prevent it from appearing in search engine results, and freeze payments and ad revenue. In short, it vastly expands the power of the state.  It may also produce a good deal of collateral damage (e.g., small startups might find the costs of monitoring content to be prohibitive, enhanced oversight by platforms might have a chilling effect on speech as they become de facto censors working in the shadow of the state).

For additional coverage, see the New York Times and The Hill.

For some libertarian critiques,  there is quite a bit at the  Electronic Frontier Foundation and Cato (Julian Sanchez and Jim Harper).

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More Disappointment from Huntsman

Hit & Run is reporting that Jon Huntsman (audio link) is saying that he would have signed the NDAA, the recent bill authorizing indefinite detention. Couple that with his comments on Iran, and he’s looking more and more like just another Bush Republican.

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ACLU’s Civil Liberties Candidate Report Card

The ACLU has just released a candidate report card on certain civil liberties issues. It includes all Republican candidates, Barack Obama, and Gary Johnson. It doesn’t provide an aggregate score, but it scores all candidates on the issue areas of “humane immigration policy,” “closing Guantanamo Bay and indefinite detention,” “gays and lesbians serving openly in the military,” “ending torture,” “ending a surveillance state,” “freedom to marry for gay couples,” and “reproductive choice.”

I have some issues with the scoring on some of these. For instance, opposing torture, including waterboarding, is apparently not enough to get you full marks on torture. More importantly, I would differ from their scoring of “reproductive choice.” My views are similar to Gary Johnson’s: Roe v. Wade was wrongly decided law and should be overturned, states should be able to make their own laws on abortion, but generally I favor legal abortion before viability and a strict ban with the only exception for the life of the mother after viability, as well as a ban on taxpayer funding for abortions.

Nevertheless, it may be a useful tool for Pileus readers in making judgments about whom to support in the primaries and beyond. In general, the only candidates the ACLU gives reasonably good marks on civil liberties are Johnson and Paul, with Huntsman and Obama clocking in at mediocre. The other Republicans are truly abysmal.

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