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July 15, 2005

Was It Torture?

Andrew Sullivan details some of the findings of an inquiry into conduct at Guantanamo Bay which found degrading and abusive treatment but no torture. Sullivan, disagreeing, cites some of the conduct highlighted in the report (presumably among the worst):

* interrogators "brought a military working dog into the interrogation room and directed it to growl, bark and show teeth"
* some prisoners were restrained with "hand restraints connected directly to an eyebolt in the floor"
* one interrogator "tied a leash to hand chains, led [the detainee] around the room through a series of dog tricks."
* a prisoner was pinned down while a female interrogator straddled him
* a prisoner was told he was gay and forced to dance with another male
* one prisoner had his entire head duct-taped because he refused to stop "chanting passages from the Koran;" one had his Koran removed; another had an interrogator squat over his Koran on a table, while interrogating him.
Sullivan then condemns any attempt to determine whether such conduct constituted 'torture' as linguistic 'Clintonism': "that all depends on what the meaning of torture is." But isn't that exactly right?

It took me a while to organize my thoughts in the wake of the Abu Ghraib revelations, but when I did, I wrote this. As I've admitted previously, I got a few things wrong - most particularly the systemic nature of what I called 'abuse' (as opposed to what I called 'maltreatment'). But the fundamentals, I think, remain:
1) Not all harsh treatment is abuse - Since the revelation of prisoner abuse two weeks ago, media outlets have repeated the claims of human rights groups which allege widespread abuses of prisoners by American forces in Iraq, Afghanistan and Guantanamo Bay, Cuba. These allegations depend on the grouping of actual abuse - such as the arbitrary humiliation and dehumanization captured in the Abu Ghraib pictures - with practices such as sleep-deprivation which the Army uses to extract information from prisoners. Forcing a prisoner to stand for hours, or preventing him from sleeping by blasting music into his cell, is undoubtedly harsh. It is of a different order, however, from the abuse at Abu Ghraib, which appears to have been motivated only by wanton cruelty.

2) Interrogation is nasty business - The abuse at Abu Ghraib would not be excused, of course, simply because the soldiers sought to retrieve information from their captives. We must understand, however, that harsh measures of interrogation will be necessary if we are to win victory in Iraq - and in the wider war on terror. In determining the scope of abuse at Abu Ghraib, we must distinguish acceptable interrogation procedures from unacceptable abuse. For instance, the New Yorker magazine recently published a photo showing a naked Iraqi man cowering before two leashed dogs. This scene is undoubtedly disturbing, but it is disturbing by design: psychological pressure allows interrogators to extract information without applying force. The magazine's reporter alleges, however, that he has a later photo showing the man bleeding from the leg - ostensibly as a result of a bite from one of the dogs. The threat of violence is a useful tool in obtaining the cooperation of otherwise-hostile prisoners. The realization of that threat is rightly abhorrent to us. In investigating Abu Ghraib we must distinguish between the threat and its realization....

Sullivan would seem to dismiss my distinction as Clintonian, but I think it provides a useful rubric by which to assess the Gitmo procedures. So let's do just that.
  • Interrogators "brought a military working dog into the interrogation room and directed it to growl, bark and show teeth": This is a scenario I explicitly addressed in my May 2004 post, and I stand by what I said then: "The threat of violence is a useful tool in obtaining the cooperation of otherwise-hostile prisoners. The realization of that threat is rightly abhorrent to us." Exposing a prisoner to a barking dog is not torture. Allowing the dog to bite the prisoner is.

  • Some prisoners were restrained with "hand restraints connected directly to an eyebolt in the floor": This may well constitute torture, althugh hopefully even the harshest critics would concede that some level of coercion is necessary in the process of incarcerating enemy combattants. The question, then, is whether bolting prisoners to the floor was a necessary restraining procedure. My guess is that it was not, and that it therefore qualifies as torture. The fact that the classic cartoon notion of torture involves being bolted to the wall may well inform my attitude on this point.

  • One interrogator "tied a leash to hand chains, led [the detainee] around the room through a series of dog tricks": This is interesting. I don't see how you can coerce someone to perform dog tricks - through the direct application of force, the type of which would qualify as torture under my analysis. The question, then, is what happened or what would happen to the prisoner who refused to be led around by a leash. Doubtless prisoners were told that they would be beaten in some manner if they refused. Doubtless prisoners believed it. The standard of analysis must be objective, however - would a beating actually have occurred? - rather than subjective - did the detainee believe that a beating would occur? The point, of course, was to convince the detainee that a beating would occur. But if the threat of violence was objectively real, rather than simply subjectively real, then we're looking at torture.

  • A prisoner was pinned down while a female interrogator straddled him: I'm still thinking long and hard about this one. It can only qualify as coercive force if we accept a spiritual notion of modesty which is being violated. There may be something to the fact that an undesired and unnecessary physical touching is occuring (the sort that would constitute a battery at common law), but because the only damage suffered is spiritual and psychological rather than physical, labelling such conduct 'torture' seems excessive.

  • A prisoner was told he was gay and forced to dance with another male: As with the dog tricks, this one depends on how the prisoner was 'forced'. If shots were fired at the ground beneath his feet in order to make him dance, well, that's torture. If he was coerced through the use of threats that were objectively rather than subjectively real, that's torture too. If he was coerced psychologically based on threats that were never objectively real, then no torture. (And incidentally, doesn't the acceptance of this as torture require a recognition of a spiritual or psychological aversion to homosexuality? In other words, why is dancing with another man torture?)

  • One prisoner had his entire head duct-taped because he refused to stop "chanting passages from the Koran;" one had his Koran removed; another had an interrogator squat over his Koran on a table, while interrogating him: Yes, no, no. Duct-taping somebody's head is clearly torture. Having one's government-provided Koran removed from one's possession is clearly not. Having an interrogator squat over a Koran while conducting an interrogation may be disturbing (and not just to Muslims - imagine an individual squatting over a Torah scroll or urinating on a cross) - but it's not torture.
So was it torture? Well, yes and no. Some of what went on must be found to fall on the wrong side of the distinction between acceptable coercive interrogation technique and outright torture. The fact that no wood-chippers was involved does not matter when the principle is, at the margin, the same. But it appears that the practices that constituted torture under this analysis were much more marginal than those which constituted acceptable 'harsh treatment.'

Critics like Sullivan will doubtless argue that allowing 'harsh treatment' creates an environment that makes actual torture much more likely, if not inevitable. I'd suggest that blurring the distinction between the two makes it much more difficult for those who conduct the former to understand when they're progressing into the latter. And yet critics seem to be almost entirely uninterested in making any distinction. That's too bad.

Posted by David Mader at 12:40 AM | (1) | Back to Main

July 13, 2005

Islam and Islamism

In comments to my post below, Jameel writes:

I must ask you to respectfully refrain from using the term "Islamist" when describing the terrorists who carried out those attacks last week. Those who killed Prime Minister Rabin were not called Jewists, they were called extremists or radicals, and for good reason. Not every Jew is opposed to peace and reconcilition; those EXTREMISTS do not represent the views of Judaism. I do not wish for the vision of Islam to be illustrated to the world by the interpretation of a couple of teenagers. Sure, many of us have anti-Western sentiments, but very few of us have the urge to kill innocent civilians. They are but a handful, and I do not appreciate you implying that they represent the vision of Islam.
I understand and respect Jameel's argument. I use the term 'Islamist' to refer to those who subscribe to a particular - and hopefully corrupt - interpretation of Islam. I use the term specifically to differentiate it from Islam, for it seems to me that the proper term for one who acts in the name of Islam would be 'Islamic' (or 'Muslim'). As such, I think it would be entirely appropriate for those who act in the name of a corrupted, violent interpretation of Judaism to be labelled 'Jewists,' precisely to distinguish them from those who act in the name of normative Judaism. (Whether Yigal Amir was acting in the name of some extremist brand of Judaism - as opposed to simple extreme politics - is debatable).

One quibble, though: I think it's a mistake - and a serious mistake, at that - to portray Islamism - being the radical, violent and expansionist interpretation of Islam that motivates groups like al Qaida - as "the interpretation of a couple of teenagers" or "but a handful" of individuals. It may well be true that Islamism is a distinct minority among both the global and western Muslim communities - I certainly hope and pray that it is, and reactions like Jameel's suggest that it may well be. But it is most certainly true that the ideology enjoys significant support, both within Muslim communities around the world and from the governments of many Arab-Muslim nations. It is not a fringe movement. As more Muslims like Jameel speak out against Islamism it may well become a trivial phenomenon - but until it is isolated, treating it as anything less than a severe threat to all - Muslim and non-Muslim alike - is a serious mistake and a considerable danger.

UPDATE (00:33 CST 7/14/05): Incidentally, I wonder how an individual of Jameel's sensitivity would react to the statement that "sure, many of us have anti-Muslim sentiments, but very few of us have the urge to kill innocent civilians." Anti-westernism need not turn violent, of course - but all things considered, I think no anti-westernism is a better option. A stable level of non-violent anti-westernism does not seem like a long-term solution to me. If Islamism is not a reflection of mainstream Islam, there's no reason why normative Islam couldn't be at the very least neutral, and better yet favorable, to the west - right?

Posted by David Mader at 09:29 PM | (0) | Back to Main

Go Read Lileks

Today's is a classic. A taste:

But there is something poignant about the sight of a four-year old kid hugging a ten-year old dog – a moment that meant everything to everyone, and will be remembered by neither in the end. But if “the end” is what counts above all, why bother with anything. What counts, of course, is the simple present you’re granted anew as the day rolls on, the moment when you see the dog on the floor staring up at the crumbs from her Pop Tart, knowing he cannot eat them because I am watching. I can leave the room, and he won’t eat them. He awaits permission. As noted on this page long ago, the relationship between man and dog is a dim reflection of the relationship between man and God, inasmuch as we don’t know what we don’t know, but intuit there is a Rule, an Order that hovers above us. The difference is that God never leans over from the kitchen table and grants permission to eat the Pop-Tart. In so many words, anyway.
Read the whole thing.

Posted by David Mader at 09:27 PM | (1) | Back to Main

July 12, 2005

They Were British

From the AP:

New evidence suggests four suicide bombers, including at least three Britons of Pakistani descent, carried out the terror attacks in London, officials said Tuesday.
Lots of people will focus on the Pakistani descent, and of course that's not unimportant. More important, to my mind, is the fact that these terrorists were Britons. Not refugees. Not immigrants. Not EU-niks in on passports. Britons.

That has a lot of ramifications. An interesting chat with my dear brother tonight helped to flesh some of those out. But it's late, and I'm tired, so I'll just focus on one: whether or not these terrorists are found to have had connections to terrorist cells and organizers in other countries, the fact that Islamist Britons are now willing to kill themselves in acts of terror against their neighbors represents an entirely new dynamic in the war against terror. It is something between rebellion and civil war - closer to the former because, thankfully, the Islamist numbers are still relatively small; closer to the latter because the target is not the government, but the neighbors.

And make no mistake: when four British Islamists demonstrate a willingness to kill themselves in the course of attacking their neighbors, there will undoubtedly be more. This was not an aberration; this was the start of a new phase of the war against terror. Last Thursday's attacks, though tragic, were mercifully not nearly as bad as they might have been. But if another attack takes place next month, and then two months after that, and on, and on - the toll rises quickly. And I'd anticipate that if the attacks continue, they will cease to be coordinated - instead, solo bombers will attack single buses or tube lines, as the opportunity arises. They were British. There's no West Bank to wall off here, no Afghanistan to bomb. This is something between rebellion and civil war. It is now up to the government to coordinate an effective counter-attack - because if they fail to act, I have no doubt that countless ordinary Britons will. And at that point, civil war will be the only appropriate term.

Posted by David Mader at 11:19 PM | (1) | Back to Main

July 08, 2005

Somebody's Laffing

Instapundit points to this story:

Rising tax payments and a growing economy may push the U.S. federal deficit down to $325 billion or lower, a 24 percent decline from the previous estimate, the Congressional Budget Office said....

In its monthly report, the nonpartisan Congressional Budget Office said federal tax collections from people and corporations are up about 15 percent from the same period a year ago, and spending is up about 7 percent.

Funny, I don't remember tax rates increasing 15% over last year... in fact, didn't a tax cut kick in during that time?

Just asking.

Posted by David Mader at 05:44 PM | (0) | Back to Main

July 07, 2005

They'll Be British

Just remembered something I'd heard on the radio this morning: apparently the language in the statement admitting responsibility for the attacks is more 'modern' that the classical or archaic language historically used by al Qaida. This will mean different things to different people; to me it suggests that those responsible for the attacks will eventually be discovered to be westernized Muslims, citizens of Britain (or possibly other EU countries) - and not immigrants, but native-born (or, if immigrant, then long-settled). They will be savvy, intelligent, educated and relatively affluent. That's my bet.

Posted by David Mader at 10:53 PM | (0) | Back to Main


Well, so much for that.

I don't generally have time to check the news in the morning, and today was no different. Got into my car; hit the radio - and the deejay was talking about things that a deejay doesn't usually talk about. And all of a sudden that feeling I first had four years ago came flooding back. Interesting drive to work, listening to the BBC World Service.

I have lots of thoughts, some of them perhaps original. First, of course, I'm thinking of those killed today, and of their families. People die unexpectedly all the time - but this will undoubtedly feel more unexpected than usual. There's long been a threat of direct terrorist activity against the citizens of London, and the transportation network has been a widely recognized target. Still, getting on a bus or on the tube in London, you didn't really consider the possibility that you wouldn't get off. Until today.

It's funny that we almost get used to sights like this, and yet a sight like this just seems incomprehensibly wrong. Will we get used to the latter, too? Or will it remind us that the former ought to be just as incomprehensible?

Note that the explosion which caused the former of the two exhibits above resulted in twenty deaths; the explosion causing the latter killed two. The confirmed toll is thirty-seven altogether. Tragic, but miraculous. Four bombs in commuter-traffic London, including three on the underground, and fewer than forty people dead? It might have been so much terribly worse.

Andrew Sullivan makes much of British stoicism (start there, scroll up and down), suggesting that whereas Americans would respond to such an attack by closing up shop, Britons respond by simply going about their business. The refusal to be cowed is certainly admirable. I wonder, though, if it doesn't presage a fundamental difference in attitude towards terrorist attacks. Much was made of the fact that the Metropolitan Police have cordoned off the blast sites and are treating them as crime scenes. A talking head on the BBC this morning noted that the bobbies have had great success tracking down terrorists after the fact using forensic law-enforcement techniques. Certainly law-enforcement techniques are an important component of combatting terror, but the immediate American response would be to characterize the attacks as acts of war, not as crimes. ("The war on terror goes on," President Bush said soon after the attacks).

This has ramifications, I think. Any attempt to combat terror will result in friction between the demands of security and the demands of liberty. When the effort to combat terror is considered a criminal matter, and the resultant policies are civil rather than military, the restriction in the protection of liberties will be endogenous rather than exogenous. By endogenous, I mean that authorities will respond by restricting the scale of protections available to all; by contrast, and notwithstanding the Patriot Act, the American 'military' response has been exogenous: the scope, and not the scale, of liberties has been restricted. Under a civil scheme, more are entitled to fewer liberties; under a military scheme, fewer are entitled to more liberties. I'm not prepared to say which is better; I think it's interesting to note the distinction, and to keep an eye on whether the distinction becomes deeper in the coming months. (UPDATE - [19:10 CST]: Here's more on the different approaches to terrorism).

Did the Jews know? Here's the report. On its face it seems entirely innocuous - but then I'm not an anti-Semite.

British police told the Israeli Embassy in London minutes before Thursday's explosions that they had received warnings of possible terror attacks in the city, a senior Israeli official said...

Just before the blasts, Scotland Yard called the security officer at the Israeli Embassy to say they had received warnings of possible attacks, the official said. He did not say whether British police made any link to the economic conference.

Even if the source is legit and the story is true, what does it tell us? Scotland Yard received intelligence indicating an increased likelihood of attack. Good. I should hope they did. Although most people are blissfully and shamefully unaware of the fact, this happens all of the time. Nor is it unusual that, upon receiving such intelligence, the security services should warn likely targets. It is a badge of honor for the Israelis to be widely recognized as targets of Islamist terror; it is a mark of shame for anyone not on that list. Note, finally, that the alleged warning - which came from British authorities to Israeli officials - arrived "minutes before" the explosions. Just what sort of nefarious motives or activities can be imputed to 'the Jews'?

Finally, cell-phone photos and blogged responses - both featured prominently at the Beeb. This is the new media - not competitive, not quite collaborative - just there, working together without design, to create a universe of information.

Posted by David Mader at 06:27 PM | (1) | Back to Main

July 06, 2005

The Court, the Times and the Law Firm

Over at SCOTUSblog, Lyle Denniston has a pretty devastating analysis suggesting that the Supreme Court may have refused to take the Judith Miller 'reporter privilege' case simply because the lawyers took too long to petition the court. Denniston writes:

Judge Hogan had found the two reporters in contempt in October 2004. The attorneys could have filed an appeal to the Supreme Court right then, asking it to take on the case before it went to the Court of Appeals. That no doubt would have been a long shot, but it is an entirely acceptable way to alert the Court to the significance of a controversy; it can begin to get the Justices' attention.

Instead, the lawyers took the case to the Court of Appeals. There, of course, they could not speed the case along faster than that Court wanted to process it. But when the Court of Appeals announced its decision on February 15, the attorneys could have gone promptly on to the Supreme Court. Instead, after a five-week wait, on March 22, they asked the Court of Appeals to reconsider. They no doubt had their reasons, but that was not procedurally necessary. And, in fact, it took the Court of Appeals until April 19 to turn down the rehearing request.

It would be three weeks before the attorneys would file their appeals in the Supreme Court. Even then, however, the Justices still had six or seven weeks left in their Term. The prosecutor in the case had his response in by May 27, and still there was a month left in the Term. The reporters’ attorneys, however, did not waive their right to file a reply to the prosecutor, so that the case could have gone to the Court by the end of May. Their reply came in on June 6. The Court’s clerk put the case down for the Justices’ consideration on the first private session remaining available – June 23. It may well have been too late.

Although Denniston is far too classy to identify the firm, uh, I'm not - it was Skadden. It's hard to believe that a shop that strong would make a mistake of this sort; nonetheless, Denniston's theory - without more - seems pretty strong.

UPDATE (23:19 CST): For what its worth, of the six attorneys listed on Miller's reply brief - both from Skadden and from Cahill, Gordon & Reindel, only one includes 'appellate' among his practice areas in his public law firm profile, with another listing 'first amendment litigation' - probably largely due to this suit. Now, I'm not suggesting that a dedicated appellate shop would have been more successful; I'm just sayin'.

Posted by David Mader at 11:09 PM | (0) | Back to Main

Beginning of the Beginning

Matt asks whether the re-emergence of anti-globalization protests marks the end of the 'post-9/11' era.

I don't think so. Rather, I think the G8 protests put the current western political climate into contrast. Although there was, in the immediate-post-9/11 periodn a sense of general consensus on the import of the attacks and the necessity for a new global outlook, the truth was always that such consensus was largely superficial. There were, even on that terrible day, those who rejected the notion that the terrorists represented a larger ideological movement dedicated to the destruction of the western ideal of liberal democracy. Over time, many who did initially subscribe to a notion of a fundamental ideological clash came to restrict or reject the idea, often as a result of political disenchantment following the invasion of Iraq. And, paradoxically (although entirely foreseeably), successes in combatting terrorism and the enemy ideology have made the urgency of the conflict seem much more remote.

What we're seeing is not, therefore, the end of an era or the beginning of something new. Rather, I think we're seeing an attempt by many to return to what was before. I think it's fair to surmise that the 'Battle of Seattle' crowd overwhelmingly a) opposed Bush in the 2000 and 2004 elections and b) opposed the war in Iraq and - please take issue if you disagree - c) opposed the war in Afghanistan as an unnecessary imperialist American action. That same crowd, I'd suggest, redirected its efforts in the aftermath of 9/11. Its diminished numbers opposed the Afghani campaign; its growing numbers opposed the Iraqi campaign; it's still-growing numbers opposed the President's re-election.

But now something interesting has happened: now the Iraqi campaign is a fait accompli, as is the President's re-election - and the prospect of cutting and running from Iraq is essentially gone. Moreover, the assault on civil liberties anticipated among that crowd has failed to materialize, at least to the extent necessary to sustain a protest movement. Most importantly, the combination of repetition and slow but gradual success in Iraq has caused the media's attention to shift - anywhere else.

As a result, the same old crowd has found itself returned to familiar ground. We're not seeing anything new, and we're not seeing the end of anything old. We're just seeing the next stage. These folks don't want to believe that we're in an era-long struggle against a violent enemy ideology; the media sees nothing sexy in reporting such a struggle, at least for the moment; and American successes in the war, both the modest successes in Iraq and the much more substantial successes elsewhere, keep any sexy stories from occurring. The temptation to play 1999, already strong in this group, is now coinciding with a general popular-culture willingness to play along.

That doesn't mean it's 1999 again, though, and it doesn't mean that 2005 is the new 1999. Instead, it means that, in years to come, we will look back on 2005 and wonder how we could be so silly as to believe we could ever go back.

Posted by David Mader at 10:34 PM | (0) | Back to Main

Stop the Aid

You absolutely must read this interview with Kenyan economist James Shikwati in Der Spiegel. Shikwati absolutely schools the interviewer, taking on western shibboleths regarding aid to Africa in a way we just don't see - from anyone, let alone from Kenyan and other African voices. Of course, simply being a Kenyan may not give Shikwati any greater legitimacy than Western voices opposing his, and there are certainly contrary opinions within Kenya and Africa more broadly; still, this is a very important (and, to my mind, spot-on) argument, and hearing it from a Kenyan cannot but make it more powerful.

Posted by David Mader at 07:35 PM | (0) | Back to Main

July 04, 2005

Doonesbury Was Witty Once, Right?

Volokh's Jim Lindgren notes Gary Trudeau's swipe at bloggers in the Sunday strip, with radio-host character Michael asking: "If the market really valued what you have to say, wouldn't someone pay you for it?"

Presumably this is why the mainstream media is doing such a rip-roaring business.

Sigh. So easy, so hardly worth it.

Posted by David Mader at 06:35 PM | (0) | Back to Main


Nestruck points out this great interview with President Bush, which airs tonight on British television. Tough questions, solid answers - good stuff.

Posted by David Mader at 02:16 PM | (1) | Back to Main

The Star Spangled Banner

O say, can you see, by the dawn's early light,
What so proudly we hail'd at the twilight's last gleaming?
Whose broad stripes and bright stars, thro' the perilous fight,
O'er the ramparts we watch'd, were so gallantly streaming?
And the rockets' red glare, the bombs bursting in air,
Gave proof thro' the night that our flag was still there.
O say, does that star-spangled banner yet wave
O'er the land of the free and the home of the brave?

On the shore dimly seen thro' the mists of the deep,
Where the foe's haughty host in dread silence reposes,
What is that which the breeze, o'er the towering steep,
As it fitfully blows, half conceals, half discloses?
Now it catches the gleam of the morning's first beam,
In full glory reflected, now shines on the stream:
'Tis the star-spangled banner: O, long may it wave
O'er the land of the free and the home of the brave!

And where is that band who so vauntingly swore
That the havoc of war and the battle's confusion,
A home and a country should leave us no more?
Their blood has wash'd out their foul footsteps' pollution.
No refuge could save the hireling and slave
From the terror of flight or the gloom of the grave:
And the star-spangled banner in triumph doth wave
O'er the land of the free and the home of the brave.

O thus be it ever when free-men shall stand
Between their lov'd home and the war's desolation;
Blest with vict'ry and peace, may the heav'n-rescued land
Praise the Pow'r that hath made and preserv'd us a nation!
Then conquer we must, when our cause it is just,
And this be our motto: “In God is our trust!”
And the star-spangled banner in triumph shall wave
O'er the land of the free and the home of the brave!

Posted by David Mader at 01:56 PM | (0) | Back to Main

In CONGRESS, July 4, 1776

The unanimous Declaration of the thirteen united States of America,

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. —Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government.

The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.

He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil power.

He has combined with others to subject us to a jurisdiction foreign to our constitution and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For Quartering large bodies of armed troops among us:

For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing Taxes on us without our Consent:

For depriving us, in many cases, of the benefits of Trial by Jury:

For transporting us beyond Seas to be tried for pretended offences:

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:

For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated Government here, by declaring us out of his Protection and waging War against us.

He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty and perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by the Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

Posted by David Mader at 01:53 PM | (0) | Back to Main

July 03, 2005

Kelo and the Problem of 'Just Compensation'

Interesting though Kelo and the reactions thereto are (see below), they do not touch on what I see as the greatest problem with the 'Takings Clause': the absurdity of 'Just Compensation.'

The Takings Clause reads: "nor shall private property be taken for public use, without just compensation." In the wake of Kelo, many critics emphasised that the takings power was justified in certain circumstances, just not those at issue in the case.

But is it really justified at all? The Volokh Conspiracy's Tod Zywicki discusses the economics behind takings:

The basic economic problem of eminent domain is the trade-off between strategic holdouts on one hand and sincere subjective value on the other. The nature of a "property" right is that it gives a holdout power to anyone who holds it--I don't have to sell you my car or my autographed picture of Franco Harris's Immaculate Reception. And you can't have the government take them, even if you promise to pay compensation, but can acquire them only if I consent to what you give me in exchange. In so doing, we protect my subjective value in the good--i.e., the value that I put on Franco (especially because my wife gave me the picture as a Tenth Anniversay gift) is much higher than the market value of my Franco picture. So, in order to protect my subjective value, I am given a property right which permits to refuse to sell it--even for "fair market value." I have a holdout power, but it is not a problem, because we assume that the reason I refuse to sell is because I place a higher value on Franco than the market price.

This "holdout" power potentially becomes a problem in a case such as Kelo, where the buyer needs to assemble several pieces of land to build a building. Any individual may decide to hold out to try to extract a larger share of the surplus associated with the higher economic value from the transaction.

Missing from any discussion of Kelo - or takings - that I've yet seen is any explanation of why such 'holdout' activity is a problem, as opposed to a normal market activity.

Consider a classic 'takings' situation: the town of Oceana wants to build a new circle road in order to ease traffic through the downtown core. The path for the proposed freeway passes through a valley that was the location of one of the earliest Oceanan communities. Among the long-standing homeowners in the area is Old Man Mader, a cranky old Oceanan. Mader gets wind of the town's freeway plans, and watches as his neigbors negotiate to sell their land to the township. But when the good townsfolk knock on his door, offering to buy his property at the same rate they've offered his neighbors, he flatly refuses.

Critics would call this 'holdout activity'. It's nothing of the sort. Oceana is all demand: they want Mader's property, and they want it bad. Mader is all supply: he holds the keystone, the piece of property that will allow the construction of a multi-million dollar freeway. When the townsfolk came knocking on Mader's door, his property wasn't worth the amount they offered him, the amount they'd offered to his neighbors. His property was worth almost infinitely more.

Almost - but not quite. In fact, the precise value to the township of the property - the amount they should be willing to pay - is equaly to a penny less than the amount it would cost to reroute the entire freeway. As long as buying Mader out is less expensive than rerouting the freeway, the township will bargain to do it. The moment it becomes cheaper to go around Mader, the township will do that instead. Mader acts entirely rationally as long as he asks for that penny-less price.

The oft-invoked 'problem' of a sentimental hold-out never arises. If Mader is willing to sell at a price just below the cost of re-direction, then the market has worked and the transaction is made. If he is not - if he refuses to accept a price equivalent to or even greater than the cost of redirection - then the city will redirect, and again the market will have worked.

Consider, then, what the Takings Clause achieves. Mader rationally demands a price equivalent to the cost of redirection. The city refuses; instead, it condemns his land and offers him in return 'just compensation' in the amount the city had paid to his neighbors, or something similar. But as we've seen, Mader's property is worth much more than that. The city has benefitted to the extent of the difference between the offered 'compensation' price and the cost of redirection; Mader has lost to the same extent. One might even say that the city has 'stolen' that difference - because under normal market conditions, that difference would have been in Mader's pocket, and not the city's.

Some will argue that this is in fact just: Mader, they will say, should not benefit at the expense of the 'community.' But the inverse is also true, and moreso: the 'community' should not benefit by taking Mader's property by force. And at the end of the day, the Takings power is precisely that: the forcible removal of individuals from their property in order to benefit the community.

There is no such thing as a 'just compensation.' It can never exist. The Takings Clause is, at root, an ugly sore on the face of an otherwise handsome Constitution. It is a fundamentally illiberal principle hidden in the midst of the greatest expression of liberal ideas ever penned. I dearly hope that the decision in Kelo will help to reveal the mistake that is the Takings Clause, so that it may someday be removed, for the betterment of the Constitution and of all Americans.

Posted by David Mader at 06:48 PM | (0) | Back to Main


It's taken me a while to get my thoughts straight on the Supreme Court's Kelo decision affirming a township's use of the Constitution's 'takings' clause to appropriate private land in order to facilitate the construction of private developments rather than public works. By this point most of what I might add to the discussion has already been said. But I'd like to highlight a couple of areas of particular interest.

The decision in Kelo has provoked as much popular reaction as any Supreme Court decision in recent memory, with the exception of Bush v. Gore. Many, many folks who are not court watchers, who did not closely follow the case and who are not politically aligned (on top of the many who are) almost immediately condemned the decision of a court that was quickly seen as out of step with popular attitudes on the subject of takings. At the same time, the decision created unusual alliances of supporters and opponents on both sides of the political aisle. As a result, although a 'received wisdom' condemning the Court's definition of 'public use' has arisen, that conventional wisdom was immediately challenged by academic criticism arguing that the decision was not as important, or as bad, as many believe.

Let's have a closer look at two conservative arguments that support some aspect of Kelo.

  • Federalism: The day after the decision, a fellow summer associate at my firm here in Houston suggested to me that the Supreme Court had unwittingly furthered the principle of federalism by localising Constitutional takings. By placing the power to decide 'public use' at the most immediately local level, he argued, the Court was decentralizing the exercise of constitutional power.

    The problem with this argument is that a true conservative critique would find no such power to be exercised, whether nationally or locally. Admittedly, the notion that there is no enumerated power to take private property for private use depends on the acceptance of the Kelo dissent's argument, but that should be a sine qua non of conservative criticism, I should think. It may be true that Kelo could have been worse - but that's no argument that it's correct as it stands.

  • Privitization: Eugene Volokh highlights the irony that the liberal Kelo majority would make privitization - a conservative principle - easier, while the conservative dissent would make it harder. This may well be true; and yet it succeeds as a condemnation of the conservative dissent (not that it was meant to be such) only if privitization is understood to be the highest conservative principle. In this case, it certainly is not: far more important is the principle of limited government. The Constitution, for better or for worse, suggests an enumerated power to take for public use. It does not make any suggestion at a power to take for private use, desirable though that might be argued to be. A dedication to the notion of a government of limited powers requires a disregard for the consequences of the alleged power on other policy aims.

Posted by David Mader at 06:29 PM | (0) | Back to Main

July 01, 2005


When Sandra Day O'Connor was nominated to the Supreme Court by President Reagan in 1981, Jerry Falwell raised concerns over her stance on abortion and similar issues, remarking that 'every good Christian' should be concerned about her possible appointment. Fellow Arizonan - and conservative hero - Barry Goldwater came to O'Connor's defense, saying: "I think every good Christian ought to kick Falwell right in the ass."

Ok, ok, that's neither here nor there - but it's a great story. Well, there was buzz, but we all still thought Rehnquist would be first. There'll be pressure to replace O'Connor with a woman (although if Bush plans to raise a current associate to the chief justice's position when Rehnquist retires, the pressure might not be so great - but he'd have to more or less say as much). That means that Janice Rogers Brown and Priscilla Owen, both very recently confirmed to seats on the DC and Fifth Circuit Courts, respectively, will immediately become favorites for the Big Nomination. It will be interesting to see how hard Democrats will campaign against Brown once her picture starts appearing on evening newscasts and Americans begin to realize that this arch-uber-conservative is also a black woman. I have a feeling that they'll respond to any attempt to catch them in race-hypocricy by screaming 'racism' at high volume. In any case, they've become so committed to the notion that Brown is the second coming of Atilla the Hun that they won't be able to back off of it.

But that'll make it that much harder for them to torpedo someone like Owen, who's probably more conservative than O'Connor but is probably less conservative than Brown. Senate Democrats may have gotten used to opposing every single Bush nominee, but with media scrutiny it will become hard for them to frustrate a second-choice judge.

Anyway, we'll soon see. As I'm not quite as excitable as Sullivan, I'll simply say: the game begins.

Posted by David Mader at 10:12 AM | (0) | Back to Main

Happy Dominion Day

... to all my Canadian readers. Here's to the Canada that once was, and never again shall be:

In Days of yore,
From Britain's shore
Wolfe the dauntless hero came
And planted firm Britannia's flag
On Canada's fair domain.
Here may it wave,
Our boast, our pride
And joined in love together,
The thistle, shamrock, rose entwined,
The Maple Leaf Forever.

The Maple Leaf
Our Emblem Dear,
The Maple Leaf Forever.
God save our Queen and heaven bless,
The Maple Leaf Forever.

Posted by David Mader at 10:03 AM | (0) | Back to Main