All Power is Dangerous

by Don Boudreaux on February 28, 2007

in Law

Richard Epstein is one of my heroes.

Here’s his letter published in today’s Wall Street Journal.

David B. Rivkin Jr. and Lee A. Casey paint with too broad a brush in seeking to discredit the litigation brought against the United States during the current war against terror (“Lawfare,” editorial page, Feb. 23) — in particular, their claim that habeas corpus is an improper form of “lawfare” that wrongly whitewashes legal claims that deserve serious judicial and public attention. Messrs. Rivkin and Casey are right that habeas corpus has never been available to ordinary prisoners of war captured overseas. But they are wrong to give all detainees at Guantanamo Bay the same brush off. Many have insisted that they are not enemy combatants at all, but persons turned over to American authorities for bounties or in family grudges, or, in the case of Ali Saleh Kahlah al- Marri, a lawful alien and citizen of a friendly nation, seized in the U.S. They need to be able to challenge their detention before neutral judges.

Messrs. Rivkin and Casey are also wrong to insist that detainee claims receive a fair hearing under Combatant Status Review Tribunals set up by the 2006 Military Commissions Act. The CSRTs neither do the work of habeas corpus nor satisfy the due process clause, because the MCA prevents detainees from presenting evidence and from having representation by counsel.  Opponents of these truncated procedures do not pretend to know of the guilt or innocence of the detainees. But we do insist that using traditional procedures is the only way to get at the truth.

Finally the authors incorrectly disparage the current protests against the administration as yet another left-wing “progressive” movement. Not so. The opponents to the administration’s policy include small-government libertarians like myself who believe Madisonian checks and balances are always needed to guard against government excess. Those of us who take the modern regulatory state to task for its disregard of the principle of checks and balances in economic affairs should not give a free pass to excessive government power when incarcerating innocents is, regrettably, a real possibility.

Conservatives who are leery of the state when it delivers mail and meddles in education fall into an unfathomable inconsistency when they cheer on that same state’s foreign military adventures and its exercise of war powers.

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Lowcountryjoe February 28, 2007 at 7:13 am

'Cheer on', huh? OK, since I find myself in the cheerleader camp, I have to ask: was Iraq's invasion of Kuwait (in 1991) an event the United States should have gotten involved in?

To be consistent, you'd have to say "No!" and I imagine that you would. But, the U.S. Did get involved and a series of cease-fire conditions were instituted and codified through the UN's Security Council. To argue that we shouldn't have meddled in Iraq this time — given that the cease-fire conditions that we demanded be followed since back in April '91, were not followed by the former Iraqi regime — is also inconsistent.

Alan February 28, 2007 at 9:07 am

Yep- Also a cheerleader here. I just think it's worth mentioning that these issues are not specific to the Iraq War. The more difficult it becomes to keep POWs, the more likely that our soldiers will be incentivized kill the enemy rather than capture him. This would only happen in the marginal cases, I suppose, but those are important sometimes . . .

William Newman February 28, 2007 at 10:13 am

Is that claim of inconsistency fair? I oppose Leviathan, but I don't think support for expansive and unaccountable military-related and security-related powers is unfathomable inconsistency (relative to opposition to the state in education and mail delivery).

Private education and mail delivery have worked well enough that unless you redefine the mission as delivering not knowledge and mail but indoctrination and togetherness, it's hard to find a relatively successful public alternative.

Conversely, history is full of examples of illiberal states, running all the way up to totalitarian states, prosecuting wars effectively.
Security is a perennial worry for thoughtful libertarians.

Thus, there's no natural inconsistency in being enthusiastic about the state doing what it seems to be relatively good at, while still opposing nationalized mail delivery and education and such.

That consistency doesn't mean Leviathan boosters are sensible, though. Besides "totalitarian societies can fight pretty well compared to their GDP," three other lessons of the twentieth century are "free societies can have very substantially greater GDP" and "GDP and technology increasingly trump conscript armies in war" and "the average loss of life from out-of-control governments killing their own subjects is on the order of 0.01% of world population per year." Slighting all those other considerations in favor of responses nominally to the overwhelming threat of unconventional warfare (which — surprise! — sometimes resemble earlier favored responses nominally to the overwhelming threats of drugs and money laundering and pornography and war crimes and immigration and whatnot) is not obviously justifiable.

Flash Gordon February 28, 2007 at 11:24 am

I understand this argument and I guess I am in luke warm agreement. But these same lawyers have their own unfathomable inconsistency when it comes to all sorts of other power grabs by government that affect the average American a lot more than the Military holding terrorists. And I think Military Tribunals do a pretty darn fine job of sorting things out and reaching a conclusion closer to the truth than most civilian courts do. It's not only the procedures that are followed, it is the quality of the individuals in charge of the process and Military officers are more honor-bound and less political than civilian judges.

anicolici March 1, 2007 at 2:21 pm

Professor Boudreaux, I am almost always in agreement with your economic views but I sometimes disagree with you on such things as foreign policy. I suppose you'd have to consider me one of these inconsistent conservatives, although I do not view myself as such. Rather, and with all due respect, I would consider your foreign policy viewpoints to be somewhat naive – war is a dirty and messy business and thorough justice toward combatants, sadly, is but a tiny concern when it comes to the human animal's feelings of self preservation. We, as humans, are more than willing to give government 'excessive' power in the areas of defense/war because that is government's primary reponsibility – to defend the society. When we are afraid, we rightly over-react to threats. That is completely natural and completely warranted because it is through over-reaction that threats are not only eliminated but also deterred. This is as much a part of our evolution as forgiveness and the want for justice.

There must always be a steep gradient between the treatment of aggressors and that of our own citizens if we are to signal to those aggressors that we take large scale aggression very seriously – the stakes are simply too high to do otherwise. That we try to apply some elements of basic justice to even the largest of conflicts is a testament to our humanity, not the other way around.

Somehow, I get the feeling that we would also disagree on such things as the firebombing of Dresden, Tokyo and the use of nuclear weapons on the civilian centers of Hiroshima and Nagasaki.

Alan March 2, 2007 at 12:04 am


The frustrating thing about talking about Hiroshima and Dresden is that we won that war in a conclusive manner. Folks who oppose those attacks always want to assume that we could have refrained from those attacks and the end result of the war would have been identical. That's impossible to tell one way or the other, but those folks neverconsider the possibility.

By the way, I wish the libertarian criticism of the war on terror got a little more coverage than the barking moonbat Halliburton conspiracy theory version.

Patrick March 2, 2007 at 6:00 am

Don: "Go USA, the only nation with the integrity to stand up to the tyrants of the world! Three cheers for America!"

How's that?

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