Sunday, August 20, 2006
The 1% solution and the marginalization of civil liberties
An article in today's New York Times by a British writer, Christopher Caldwell, is, I suspect, symptomatic of the declining support for civil liberties even among elites. The key part of his article comes toward the end: "Blair’s opponents equate today’s civil liberties protections with core British values." Caldwell appears to believe that they are best conceived only as "temporary adjustments that were useful under certain specific circumstances in part of Europe between World War II and the late 20th century.
This sounds extremely passive and defeatist. Younger civil libertarians will start "accepting the inevitable" when older civil libertarians start taking seriously such crap. First of all, this entire post reeks of the sort of false even-handedness that has been injected into our ethos by the far right. No, taking global warming seriously and taking measures to study and counteract it are *nothing like* erasing civil liberties under cover of trumped-up, cynical, selfish, political fear-mongering. Nothing. That is a very basic point, and absolutely no ground should be given on it. Why are these entirely dissimilar? The problem with the 1% doctrine is that the (important) people advancing it actually believe nothing of the sort. There is a "1%" chance of any goddamn bad thing you can possibly imagine happening, which is why such talk is so convenient. That is, if the result I want is greater control of the political sphere through a concentration of power in the Executive, guess how many different one-percenters do you think I'll come up with? That's right, an infinite number. Just as in the realm of the rights of the accused, once you accept the false premise that we're playing a zero-sum game, that more Repression translates directly into more Safety, the game is lost. I say, bullshit. The 1% doctrine is cynical manipulation, pure and simple.
Respectfully, I have concerns with Professor Levinson's post. Perhaps better to ask, "How can we properly keep civil liberties where they belong, in the forefront of the bundle of rights which makes our nation worthy of our loyalty and defense," rather than presupposing civil liberties are a lost cause. As I said in response to a post of Professor Balkin's, we must fight the coming of the so called national surveillance state.
But in addition to admonishing that we be wary of tacitly accepting that which we should stridently oppose, there is another matter missing in the 1% analysis of trading civil liberties for "security," that is: Who's liberties will be traded to make whom secure? What of the risk we each take, when forfieting our liberties and rights, that "security measures" come to be used not for our benefit but that of our internal adversaries who would pursue profits at our moral and spiritual expense? What of the risk to you and me that we will be persecuted for dissent? Civil liberties are not an expedient of a naive moment in history; they are the soul, blood and bones of this country's success. But those liberties, those rights; they come with complementary duties: to fight for them at every turn. This, in turn, means constant vigilence that we not swallow poisoned rhetorical pills such as Caldwell's, that we not let ourselves be conceptually penned into complicity with policies proved to work more evil than good throughout the 20th and 19th and all preceding centuries as much as today.
I found jeff faux's "global class warfare" a real eye opener in addressing issues of the general form "what is the cost-benefit trade for this proposed course of action". to summarize and trivialize his thesis, the super "haves" are operating with such different weights that their cost-benefit analyses have nothing to do with those of the rest of us. bush-cheney-gonzales et al know that whatever happens to the social fabric, the economy, US world reputation, foreign populations, etc, they'll do just fine, thank you. so the cost-benefit trade implicit in the 1% solution will always come out favoring an extreme action with any benefit because for them the cost will be vanishingly small.
for example, any washington denizen (especially one with financial interests in the defense industry) will realize a huge benefit from deterring successful "nuculer" attacks on US cities. some will actually benefit from limitations on civil rights (think secrecy in government). but the economic/political elite have few if any family or friends likely to be in combat. so, their benefits from dramatic measures to prevent terrorist attacks are substantial and the costs to them are negligible.
this applies loosely to the issue raised about young lawyers and their commitment to equal opportunity/civil liberties. they probably also assume they will prosper in the society no matter what (abundance may be all they've ever known). those of us who were young in the 40s and 50s often had direct (altho not necessarily personal) experience with some deprivation (in my case, minor - humble but comfortable origins in segregated texas, though white) and could easily empathize with the less fortunate even as affluence enveloped us; ie, visceral sensitivity to the "cost" of inaction in providing equal opportunity, and strong appreciation of the "benefit" of opportunities largely undeserved (after all, one doesn't "choose" to be smart enough to qualify for scholarships, and admissions then were much less competitive). having little contact with contemporary youth, I don't know what their cost-benefit weights might be, but I have experienced many seemingly young blog commenters who apparently feel that whatever your station in life, it's "deserved" in some sense (or in my view, nonsense) of distorted libertarianism.
If the ACLU doesn't want to be marginalized, I think the first step should be for it to stop marginalizing itself, by dropping the transparent rationalizations it has been resorting to, in order to avoid defending those civil liberties it happens to not like.
I can never look at the NRA's membership statistics, without reflecting that if the ACLU had made a different choice some years back, the NRA would still be a club for sportsmen, and the ACLU would be the several million member strong lobbying juggernaut, with a firm footing on both ends of the political spectrum.
Do we make arguments along the lines that we have to bear certain risks (including increasing the probability of serious terrorist incidents) in order to maintain a free society? Or do we say that respecting civil liberties does not in fact increase such risks?
I think that you cast the question too much as one of policy--what risk should we tolerate as a society. But right now, we face a number of situations wherein we are told that because we should tolerate less risk, it is permissible to discard certain constitutional protections--to trade liberty for security. Those trades may or may not be wise; under our constitutional regime, though, they are not permissible.
Christopher Caldwell, just to note, is an American, here in DC and a good friend. He is probably best described as a very nondoctrinaire conservative of the small l libertarian variety. He was roommates at Harvard with, as I recall, Jamin Raskin. Long before the terrorism stuff became an issue, Christopher made a career decision to do what few were doing and become expert on Western Europe. As the big papers were shrinking down their bureaus in Berlin and elsewhere in Western Europe, Christopher undertook very serious, long study of the culture and economics of the EU. He was one of the very few American journalists, even among those who supposedly covered Europe, who could speak with authority on internal politics in Germany, Italy, or Spain. Meanwhile, for most of the media, Western Europe became a sort of arts & culture beat - this is what it still is for the NYT. After 9-11, Christopher's was in great demand, in large part because he had been following the question of Muslim assimiliation in Europe in a way that even few European journalists were doing. His series of long articles on assimilations issues that appeared in the New York Times Magazine, the Weekly Standard, and elsewhere are superb - one senior French journalist friend told me that he regards Caldwell's stuff as among the best written and researched, in English or French. Kenneth Anderson
Ghirlandaio, there's precious little "principle" involved in the ACLU's decision not to defend the 2nd amendment, including it's persistant defense of an untenable "interpretation" of that amendment in order to rationalize the failure.
According to Ira Glasser, who spoke at a supper club I was part of back in the early 80's, the decision was motivated by the threat of some major donors to defund the ACLU if it dared to defend that amendment. I suspect he was in a position to know.
Principled? Not on your life!
On the substance of Sandy's final question re changes in generations ... well, my daughter is thirteen years old, a student at National Cathedral School in DC, where she is rather bravely one of the few girls in that bastion of sternly Epicopalian multiculturalist claptrap who will admit to being a conservative and a Republican. This causes my exceedingly lefty wife some level of embarrassment, if not heartburn.
I asked my kid once why she was a conservative, when she takes after her mother in so much else. She said, that's easy, it was sitting at the National Cathedral, the highest hill in DC, on September 11 and watching the Pentagon burn. 9-11 is her living political memory. I then asked what she didn't like about liberals. Again, her answer was immediate - I'm sure she had honed it in arguments at school, usually, I would venture, with her teachers rather than fellow students.
I don't like liberals, she said, because they want to run your life on the one hand, and tell you what to do about everything, but then, on the other hand, they'll put you at risk and let the terrorists blow you up.
My darling daughter probably wouldn't know how articulate this, but I suspect she suspects that the rational for the two things she instinctively dislikes in liberals - the nanny state that bosses you around while failing to protect you - is really the same thing - ideologies of civil liberties and civil liberties that have somehow, in the lifetimes of both Sandy and me, morphed. I have long conversations to point out to her that the police are not always the good guys, that 24's Jack Bauer is not a good person and only on TV do his calculations about the value of torture always pay off; mean old Dad made her read 1984 and Brave New World this summer to make sure she understood that the state is not always good, and Daddy is a conservative.
(It's probably no surprise that the two books Renee has read the most times are Pride and Prejudice and the libertarian Robert Heinlein's The Puppet Masters.) Meet the rising 9-11 generation. Ken Anderson
I have to agree with several of those above who find this post too accepting of Caldwell's thesis.
The idea that civil liberties are a modern fashion is, in the first place, ahistorical. The irony is that it is Caldwell, and not those he criticizes, who is blowing with the winds of fashion.
Geof Stone's brilliant history "Perilous Times" painstakingly documents how many times we have plowed the present ground--what is now said to be undiscovered country, unique, sui generis, the world of "everything-changed-after-9/11," is just old political exigency dressed up in new clothes.
The present crisis is always worse than and different from any prior crisis. So we are always told, in order to justify the truncating of basic freedoms. And always, always, always to our detriment.
Well, I'm 27, and I think I may be nuttier on civil liberties than you are. I don't claim to be representative, but I don't see any signs that I'm particularly unrepresentative...
I think you're misstating the "One Percent Doctrine." It's not: even if there's only a one percent chance of some awful thing happening, we have to work very, very very hard to prevent it because it's so awful. As stated by Suskind, it's: if there's only a one percent of some awful think happening, we have to treat it as a certainty. It's not the Learned Hand equation; it's saying that if the harm is bad enough you just don't bother caring about the probability.
Which is extremely stupid. More than stupid, it's impossible to apply, because there can be a one percent chance of two awful results that you must take contradictory actions to prevent. It may be that there's a 1% chance you stop a terrorist attack by torturing this guy AND a 1% chance that he's innocent and you so infuriate one of his relatives that they carry out a terrorist attack. A 1% chance that you prevent a nuclear attack by invading a country, and a 1% chance that you cause a WMD attack by invading a country.
In practice, you resolve this uncertainty by treating a one percent chance of disaster as a certainty when you feel like it, and ignoring a one percent chance of disaster when you feel like it.
This is nothing like the Hand formula, and nothing like Gore. Believe me, the chances of awful consequences in global warming are a lot higher than 1%.
Many thanks to all who have responded (so far). I offer a few observations:
1) I am glad to be corrected by my friend Ken Anderson as to Caldwell's nationality. (I hope that you don't link me with George Allen in reckless imputations of "unAmericanness"!)
2) I tried to make it (relatively) clear that I remain a strong advocate of civil liberties. But it seems to me that those of us who do view ourselves as ardent defenders must concede that they are not "costless," even as we should extremely wary of accepting the cost-benefit analyses of those who simply underestimate the costs of suppression. That leads to the next point:
3) Cass Sunstein, in his very interesting book on the precautionary principle, indeed emphasized that one problem with it is that people who say there's a 1% chance of X and therefore we must act to prevent it often fail to take into account the costs of the suggested action itself. This, I think it is fair to say, is amply demonstrated by Iraq itself. One can condemn Cheney for his ostensible principle per se, or one can condemn him for his indefensible reliance on "best case" thinking and failing to take into account the potential costs of his own policies. But that doesn't affect the point that if a potential gravity g is high enough, then it is indeed rational to engage in highly costly measures even with only a 1% likelihood of the event's taking place. Richard Posner in his book Catastrophe offers the example of learning that an asteroid might come close to earth. Surely we would not dismiss doing some fairly drastic things to forestall a potential crash even if they were quite costly indeed. Which then leads to
5) We must be more candid in our estimation of the gravity of possible events. One of the first things I learned in the best course I ever had, Marc Franklin's torts class at the Stanford Law School in 1970, was that we factor in what Guido Calebresi called the "costs of accidents" into our decisions to set speed limits higher than the might be, to build bridges, skyscrapers, and the like. X numbers of "statistical deaths" just aren't a sufficient cost to forego the activities in question. We expect people to buy insurance, etc. There is no such thing as zero defects and perfect security. John Kerry, for one brief shining moment, actually tried to initiate a conversation about accepting that the "war on terrorism" would never be won and, therefore, that there would always be a certain amount of scary stuff in the world--the kind that Ken Anderson's daughter alluded to--but,characteristically, he didn't have the gumption to stay with it.
Finally, I am not "giving up" on maintaining a robust form of civil liberties. But Caldwell is surely right that that form does not pre-date the New Deal and, really, post-World War II in the US. Louis Brandeis had no trouble, apparently, upholding sending Eugene Debs to jail for opposing WWI, and the Supreme Court did nothing to prevent the similar jailing of top Communist leaders in 1951. So we have to ask ourselves what are the conditions under which a "civil liberties consciousness" arose and what conditions are necessary to maintain it. I do believe that it wil not be maintained if people get the impression that defenders of strong civil liberties simply don't recognize the potential risks run in protecting some people we have very good reason to believe are quite bad indeed. We need to explain better than we seem to be doing right now why those risks are acceptable.
And by the way, nothing personal, and no disrespect intended. I am speaking bluntly because I think this is very important.
I seldom post on law blogs because I am not an attorney. And I am a particular admirer of Sandy Levinson. But I must take exception to one statement:
"The strong appeal of Al Gore's movie, which I was much impressed by, ultimately rests on a version of the "1% [solution]."
No. Vice President Gore's movie rests on as near a certainty as science has to offer. There is no serious disagreement in the scientific community (apart from those whose livelihood depends on being contrarian) that global warming is happening and will continue to happen... no disagreement at all. All practicing climate scientists who once objected to the concept have retracted their reservations. Only the politically and financially motivated remain. Think what you will of Gore; his thesis in An Inconvenient Truth is unimpeachable. Call it the 99.9 percent solution, not the 1 percent solution.
That said, I have no intention of compromising on civil liberties, however "quaint" they may become. My age has not diminished, and will not diminish, my commitment.
Maintaining your "robust form of civil liberties," whatever that means, is different from having any concern about civil liberties at all. Concern about civil liberties has been an issue since and before the nation's founding. To take 2 19th century examples, there were protests of the Sedition Act during the Adams administration and the suspension of habeas corpus during the Civil War.
Pointing out andecdotal examples of violations of civil liberties in the 1910s and 1950s is not evidence of a present or recent golden age of civil liberties. One can point out such violations in any decade since then (such as the black bag jobs done by the FBI against the Weatherman Underground in the 1970s). Caldwell's and Levinson's myopia prevent them from seeing that this tension between security and civil liberties has always been around, and will always be around.
What Steve Bates said about crediting Sunstein with having made a point. Gore's precautionary principle to address a 99% risk of constant planet-wide environmental trouble is to be contrasted, not likened, to Cheney's precautionary principle to address a 1% risk of isolated sporadic WMD trouble. Sunstein's climatology is as religio-politically derived as his biology. Read his take on the Kitzmiller decision.
I am not "giving up" on maintaining a robust form of civil liberties. But Caldwell is surely right that that form does not pre-date the New Deal and, really, post-World War II in the US.
The same could be said of racial integration of public schools. So what? The fundamental principle goes back to the founding documents of the nation, and before.
I agree that I made a mistake in analogizing global warming to a "1% solution." The evidence is far stronger than that. I do think that some environmentalists on some occasions engage in such rhetoric, but Al Gore and global warming is not one of them.
I also agree that there have always been committed civil libertarians throughout our history. Only in the relatively recent past, though, did they have enough social and political clout to capture the courts and mold general public sentiment.
Finally, the analogy to racial segregation is double-edged. Isn't it clear that the movement for genuinely moving toward integration, which, among other things, required busing and the consolidation of urban school districts, did not survive the 1970s, when the Supreme Court basically threw in the towel. I do not believe we are in any danger of returning to a formal regime of pre-Brown segregation--and one can point to much genuine progress that has been made in the past six decades since Harry Truman's courageous decision to desegregate the armed forces (at least as important, in my estimation, as Brown). But we obviously shouldn't be complacent about the state of race relations in the US today, and there is no particular reason to believe that the future wil be better.
I'm not sure why I'm being joined with Caldwell, except inasmuch as I believe that his column raises argument that civil libertarians must confront, not least because, as I argued, a "contributing editor" to the NYTimes Magazine (and a frequent contributor, I gather, to the Weekly Standard, an't be dismissed as an insignificant crank. I suspect I am willing for society to accept considerably more risks, re potential terrorist activity, than he is (and only in part becauses suppression of civil liberties, in addition to raising important questions per se, also may end up increasing risks because of the resentment in will create among people who might otherwise be friendly to us), but there does come a point when the risks could be too high. That, after all, is the premise behind accepting limits on the freedom of newspapers to publish upcoming troop movements and missions and the like. For the record, I think the Times was right to publish their various articles, but I take it that most of us would condemn--and possibly even support punishment of--the Times had it, for example, published an article naming a mole we had placed in al Qaeda. Am I off the mark in this last surmise?
What do we value?
"In today's Wall Street Journal, Judge Richard Posner laments the fact that the federal courts are available to adjudicate whether the President's methods of fighting the war on terror are consistent with the Constitution and laws of the United States."
If the so-called Cheney Doctrine is plausible, then Curtis LeMay was right. We should have launched a first strike against the Soviet Union. But then, Ike and JFK were so 20th Century.
The terrorism threat is vastly overblown, but it contributes (as it is designed to do) to the Bush administration's desire to militarize both international relations and domestic affairs. There was more terrorism in the United States in the 60's and 70's than there is now, thanks to the SDS, Weather Underground, and the SLA. It's more likely I'll die of influenza or be struck by lightning than be a victim of terrorism, but I don't anticipate any "war on nasty viruses" any time soon.
And, as for OBL's desire to "displace" the American government, he already has, as this discussion already demonstrates. I cannot believe how weak the United States is.
Having no problem with the basic formulation (gravity of event)*(probability of event)=(level of threat)[it is effectively the definition of the expected value of a random variable], the "1% solution" begs some serious questions:
Gravity: Conceptually, this makes sense and corresponds to a piece of an ostensible severity distribution estimated/utilized by actuaries. At base it quantifies a cost. As such, can we agree on what is to be included as the components of that cost? Can we agree on valuations of costs that are not readily numerical? Do we have a scale on which to plot the gravity(implicit-can we coherently compare gravities)? If so, is it bounded?
Probability: The probability of rolling snake eyes on a single role of a pair of fair dice is 2.8% while rolling all ones on three fair dice is about .5%. So a 1% probability is not that small. However, dice rolls are discrete in time. How about the probability of a terrorist attack? or the probability that this dictator will supply WMD's to some terrorist organization? What's missing in the previous questions? A whole lot of information, not least of which is the time frame under consideration. Should we apply the 'Cheney Doctrine' when the 1% is the probability of the event occuring from now until the end of time? Now until 2100? The next decade? Where is the vague gray area where we are undecided?
What vast list of information would be needed to reasonably estimate a probability for WMD transfer?
Although it is clear to me that the 1% solution is mostly political windbagging, my biggest objection to the 1% solution turns on 'state secrecy'--who checks your work!
I very much appreciate Steve Farrar's contribution. I think he asks exactly the right questions, including the all-important "who checks the homework" question at the end. One old-fashioned response, which, as I've argued in other postings, is now out-of-date, is Congress, at least when controlled by the President's own party. We've seen a complete and utter failure to do any checking. So we should try to figure out how to reconstruct a system of "fact checking" in the absence of sufficient congressional oversight. Rick Pildes and Daryl Levinson, in their recent Harvard article, have suggested that intelligence committees be controlled by the non-presidential party, in order to create an incentive to check the math. Or one could create special committees of the National Academy of Science or similar such bodies. But I completely agree tht there is no reason whatsoever to trust the calculations not only of this particular Administration, but of any administration that could have an incentive to overrate gravity or probability in order to serve its crass political objectives of being re-elected to office.
I must agree with commenter Gee who said "The idea that civil liberties are a modern fashion is, in the first place, ahistorical."
Prior to the founding of your country Ben Franklin said "Those who would sacrifice essential liberties for a little temporary safety deserve neither liberty nor safety."
Ben, you will have to agree, is a pre-20th century figure.
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