What should Gary Johnson say on the Daily Show?

Gary Johnson is appearing on the Daily Show this Tuesday night!

I admit I am excited. It has been over a year since I first emailed the Daily Show to let them know what a great guest GJ will be. I have sent several emails since; so, I am sure, have countless others of his supporters. And it seems they finally listened!

I am also nervous. It is important that Gary does a good job. The Daily Show is key to reaching a huge portion of his largest potential support-bloc: the young.

So, Gary, here are some thoughts from a young supporter — one who has watched most of your interviews over the last year.

1. Be careful about some topics. For starters, there is the fair tax. You like to mention this in every interview. However, remember that the fair-tax is a drastic overhaul of the tax system, and to the uninitated, it can come across as wonkish, gimicky, or worse, make them deeply sceptical of your motives. The Daily Show audience is not a natural one to sell the fair tax to, and it might be best to avoid mentioning it. However if you must, here is how you should phrase it: “The current tax system is inefficient, overly complex, unfair and ends up hurting the middle class and small businesses, while the rich and big corporations end up taking advantage of its many loopholes. A much better system would be to tax consumption, rather than income, via a national sales tax. However, a pure sales tax is not progressive and will hurt the poor. So I couple with a prebate  so that each family unit can consume tax free at or beyond the poverty level, with the overall effect of making the FairTax progressive in application.” It is important (especially for a left-leaning audience as the Daily Show’s) to emphasize that the fair tax actually acts like a negative income tax for the poor, and thus couples as a welfare scheme for them. Another topic to be careful about is the abolition of certain departments, such as the Department of Education. This will not go down well unless you are careful about how you phrase it. Emphasize that this department has only existed since 1980, and education hasn’t improved since then. Emphasize that you think education is very important, but that the any useful public investment in schools and education is basically done by the states, and this particular federal department hinders far more than it helps.
2. Know your audience. The Daily Show audience is young and left leaning. Emphasize issues like (ending) the war on drugs, upholding civil liberties, keeping the internet free of censorship or surveillance, and fighting against the military-industrial complex. Tell them that you believe in a woman’s right to choose, and that the government has no business interfering with goes inside the bedroom. Avoid talking too much about spending cuts or tax cuts. However, economic issues will come up, and your selling point is your sterling performance as governor of New Mexico. Remind the audience that the US is only a few years away from reaching Greek level of debt crisis, and your aim is to fix government, not to break it.
3. Distinguish yourself. For starters, emphasize Obama’s betrayals. Obama promised to end raids of medical marijuana in states where they are legal. Instead these raids have gone up. He promised to protect whistleblowers who expose government wrongdoing. Instead, he has gone after them with a vengeance, going so far as to target journalists. He has hugely expanded the drone attacks and resorted to sophistry (a militant is defined to be any military age male in the vicinity of an area targeted by a drone) to minimize official civilian casualties. He has shown he cannot be trusted. You can. Obama did not have the guts to veto the indefinite detention act (NDAA) despite initially saying he would, but if such a law had come on your desk, you would have vetoed it. Remember that most people who watch the Daily Show voted for Obama — tell them they should vote for you because you are far better than Obama on many issues they care about. Tell them that Obama has betrayed their trust. And lastly, do not start off your interview by talking about Ron Paul — as you did in the Dan Carlin interview. (By the way, I think you did well in the Colbert Report).
4. Be substantial. I thought some parts of your interview with Carlin came across as vague or unspecific. Here are some criticisms on Dan’s forum by his listeners – go through them ( http://www.dancarlin.com/phpbb3/viewtopic.php?f=1&t=32905)  Be reasonable, but firm, clear and substantial. Talk of definite liberties that Obama has taken away (war on drugs, going after medical marijuana dispensaries, killing civilians abroad with drones and then killing the mourners all without due process, signing indefinite detention and renewing the Patriot act, targeting free speech as in the case of NY Times journalist Risen and ex-NSA Thomas Drake). Talk about your approval ratings in New Mexico and how you turned a debt ridden state into one with a surplus.
5. Know your host. Jon Stewart is smart and he has interviewed libertarians before. Here are the 19 excellent questions he asked Andrew Napolitano (see http://texaslynn.wordpress.com/2012/04/30/john-stewarts-19-questions-for-libertarians-answered-by-a-constitutional-conservative/ look at the questions, not the answers). Think about them. A good place to start answering them would be tell Jon Stewart: “I want government to be effective , protective of our rights and respectful of our freedoms. I believe freedom is intrinsically valuable. But I am not a doctrinaire libertarian. As president, my main job will be to solve our problems and I am open to any ideas that will get us there.” Also be ready for questions that might put you on the spot (your support for private prisons (if this comes up, talk about strong safeguards to prevent abuse), your support for relaxing labor regulations that might potentially lead to child labor (tell them unambiguously that you do not intend to scrap all labor or underage work regulations, merely to improve them and cut the ones that go too far).

Helmets, freedom and externalities

Every libertarian has a pet peeve, and mine is paternalism. Yes, I am deeply disturbed by the wars, police militarization, Obama’s pursuit of whistleblowers, regulations which make it illegal to do math without a license, and many other freedom-snuffing things. But the kind of stuff that gets me most riled up are laws to protect people from themselves.

It is impossible to have a discussion of these laws without referring to the following passage from John Stuart Mill’s influential work On liberty. The sentence in bold from the excerpt below is usually called the harm principle and is a cornerstone of libertarianism.

The object of this Essay is to assert one very simple principle … That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right… The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.

I suspect that many liberal-progressive types agree with the harm principle on some level. So they often tend to justify paternalistic laws not on paternalistic grounds but on the grounds of limiting negative externalities. For instance, in their support for motorcycle helmet laws, their argument might echo that of the Massachusetts high court, which in 1972 (when it affirmed that a motorcycle helmet law was rationally related to the public welfare) declared:

From the moment of injury, society picks the person up off the highway; delivers him to a municipal hospital and municipal doctors; provides him with unemployment compensation if, after recovery, he cannot replace his lost job; and, if the injury causes disability, may assume the responsibility for his and his family’s continued subsistence. We do not understand a state of mind that permits plaintiff to think that only he himself is concerned.

In other words, your decision to ride un-helmeted harms other people, and so society can rightfully coerce you to wear a helmet.

The word “harm”, of course, needs to be interpreted narrowly in order that the harm principle be meaningful. A harsh word hurts. Breakups hurt. Abandoning your wife and going off with someone else may cause intense emotional harm. Everytime I buy something from X and not from his competitor Y, I am harming Y and favoring X. All these activities are legal, and should be.  Only kinds of harm that directly violate others’ rights (by causing violence upon them, or depriving them of their life, liberty, or property) should enter into the calculus.

Still, it is clear that if society is forced to pay extra because of someone’s recklessness, it is indeed a harm inflicted by the reckless individual upon the other members of society; who then might be justified in their intervention. This is what the high court affirmed in its ruling. In doing so, however, the court committed an elementary (but common) mistake; the failure to consider the alternative. The pertinent questions — when considering whether there should be a helmet mandate — are the following:

• Does a person who rides unhelmeted cause a negative externality greater than one who wears a helmet?
• Can any such negative externality be removed (i.e. internalized) without resorting to a helmet mandate?

Let us tackle the first question first. It is almost an article of faith among many that the unsafe and the unhealthy incur higher health costs. However, a recent study by Dutch researchers found that smokers and the obese typically cost less to society than the average person, the reason being that they die younger. It is likely that similar conclusions hold for several other activities that the safety brigade frowns upon. There is no doubt that a typical mountaineer or a base jumper spends much less over his lifetime on health and hospital costs than your average grandpa. So even if one lives in a jurisdiction where health costs are socialized, the argument that these people cost more to society, and hence their unhealthy/unsafe activites should be restricted, is specious.

The data on motorcycle helmets is more ambiguous. Some studies have found that riding unhelmeted reduces health costs per person (for the same reason as above, namely untimely death). Others have found a slight increase. For instance a 1996 NHTSA study showed average inpatient hospital charges for unhelmeted motorcyclists in crashes were 8 percent higher than for helmeted riders ($15,578 compared with $14,377). Now, that’s a small difference, and it is worth noting that the study only considered motorcyclists who were actually admitted to a hospital. When those who die on the spot are included, it is quite possible that riding unhelmeted actually reduces costs to society. There is also evidence that helmet mandates make little difference to  insurance premiums. Currently there are 30 American states where there is no universal helmet law for motorcyclists. There are 20 states where such a law does exist. The health insurance premiums across these states show almost no correlation with helmet laws. None of this is to say that it is good to be reckless or unhealthy, merely that the claim that by doing so you cost extra to society is often not true.

For the sake of argument, however, let us assume that there is indeed a significant negative externality associated with the act of not wearing a helmet. I would argue that this does not justify a mandate. What it does justify are steps to internalize this externality. How can this be done? By making sure that those who ride helmetless pay for the consequences. Here’s a proposal: Every motorcyclist who does not wear a helmet should be forced to either a) carry adequate insurance, or b) have proof of sufficient personal funds, or c) pay a certain amount of money annually into a common pool that would pay for any accident related costs not covered by their insurance; the amount would be empirically adjusted to ensure that unhelmeted motorcyclists, as a group, are cost-neutral for the taxpayer with relation to their helmeted counterparts, or d) sign a waiver that no part of their health or other costs reasonably attributable to their decision to not wear a helmet can be charged to the taxpayer. Furthermore, insurance companies, if they wish, should be allowed to charge an extra premium on helmetless riders.

People often go bonkers saying that they do not care to pay for risky decisions taken by others. Well, they don’t need to! Switzerland, the country I currently live in, has the right attitude about some of these things. The Swiss mountains are beautiful but many of the activities people love to do here (hiking, skiing, mountaineering, sledging, climbing, paragliding, base-jumping and so on) carry inherent risks. They do not ban any of these things here or mandate protective gear (a recent straw poll on a Verbier ski-slope found almost everyone, including the helmeted, opposed to compulsory ski-helmets) or even skimp on the protections. In fact, every time someone is in trouble and calls for help so that he can be airlifted out, a helicopter comes in swiftly for the rescue. What they do later, however, is to make an airlifted person pay the bill. Unless, of course, the person is already a patron of REGA, which one can do by paying a measly sum of 30 francs. Most avid adventurers choose to do so, and this small fee (which is basically an insurance premium) covers any heli-rescues they may need to avail of. So if you happen to need an airlift, and you aren’t a REGA patron, you pay for your rescue to the last cent. If you are a patron, you don’t pay anything. Externality internalized.

The proposal on internalizing public costs due to helmetlessness that I briefly sketched above is similar in spirit. I really don’t see how anyone committed to the harm principle can reject such a proposal and continue to defend helmet mandates. Yet, I know from experience that many will. I think the reason is that many of those arguing for mandates on grounds of externalities haven’t really thought carefully about externalities, nor do they really care. As evidenced above, the externalities related to motorcycle helmets, whether positive or negative, are most certainly negligible as a fraction of total costs; no one will notice any real difference in taxes or insurance premiums whatever the helmet law. There are all kinds of legal activities that people regularly do that create far, far, larger externalities, or involve much bigger risks. Then there’s the fact that the people who call loudly for helmet laws (whether it be motorcycling, cycling or skiing) only do so when someone tragically dies, but they barely notice it if someone is injured and requires expensive long-term care. Yet it is the former that actually saves the taxpayer money. When these same people resort to the specious “externality” argument while debating their helmet laws, I want to scream at them: “Stop arguing in bad faith.”

In fact, the act of riding a motorcycle itself is highly risky; whether or not one wears a helmet makes a difference in only a small number of cases (if a motorcyclist gets into a serious crash, a helmet will rarely save him). Yet very few people would support actually banning motorcycles. If one only cared about externalities and costs to the taxpayer, one should support regulations and counteracting measures roughly in proportion to the size of the externalities. In reality, the regulations reflect the size of the moral disapproval. It is stupid to ride without a helmet. It is such a completely unnecessary risk. Riding helmetless or not wearing a seatbelt is incredibly foolish. There should be a federal law stopping all these. Period.

The true reason behind paternalism (whatever the purported reason) is the desire of people to impose their values on others. Quite simply, paternalists ignore that different people have different values. Like all nannies, they think they know best. They decide what risks are acceptable and what risks are unnecessary. They fail to see that maximizing health is not the same as maximizing happiness. To some people, the joy of riding down a hill, unencumbered by a helmet, unweighed by laws, feeling the wind in your face and hair, is indeed worth the risk of severe injury or death. Besides, there is an inherent value to freedom. As Jacob Sullum put it, when it comes to how people feel about their lives, they may well prefer to make their own bad choices rather than have better ones imposed on them.

Most people has a deep seated urge to control others and bring them to the “right” path. It is important to be able to recognize this urge as the greatest evil. Libertarians oppose laws that mandate helmets or seatbelts, and those that prohibit drug use, prostitution, raw milk sales and the infinitely many other things the unwashed masses are supposed to keep away from. Yes, we personally may not indulge in or encourage most of these behaviors. But we recognize our decision to do so for what it is, an exercise of our own values and cost-benefit analyses, which may not match those of others.

***

The group was driving south on Route 11 in Lafayette around 1:30 p.m., headed toward Lake Como, just south of the Finger Lakes. It was a nice day, but they were there to make a point.

In the group was Philip Contos, from Parish, NY, and he was 55 years old. They were participating in a helmet protest ride initiated by ABATE, an organisation that opposes mandatory helmet laws. A beautiful day it was, but Philip’s bootlaces got stuck in a chain. The biker looked down to inspect the problem, looked up and saw traffic slowing and slammed on the brakes. The bike fishtailed, and he was ejected. He hit the ground with a crunch and he died on the spot.

He died on the spot. What did he die for? Was it to preserve his freedom to be an idiot, a rebel, a reckless individual? Perhaps he would have survived if he was wearing a helmet. But then again, if there was no law in New York that mandated helmets, he would not be out protesting that day, that beautiful day, and maybe his shoelaces would have not stuck in the chain…. His brother, Richard Contos, said Philip would do it again, if he could. “He would have wanted it that way. … He protested everything.” So, who was this man who protested everything?

I never met Philip Contos, but I feel joined to him. 

He died defending the freedom to be himself, to be free of moral busybodies telling him how to lead his life. I would probably wear a helmet if I did ride a motorcycle, but if I were in New York that makes it illegal to ride without one, I’d probably be joining Contos in his protest.

Helmets make one safer. But safety is just one thing among many. We do not have to live life in a way that maximizes safety. We have the right to make whatever trade-offs we wish in our personal decisions. He died defending this sacred right.

The Untouchables and my growing up

Last night, I re-watched The Untouchables, the 1987 action/crime drama about Eliot Ness and his handpicked police team who brought down Al Capone and his bootlegger gang. It’s a well-made and fast-paced movie, with good performances by Sean Connery, Kevin Costner and Robert de Niro. I had watched it in college a good 7 years back and remember liking it quite a bit.

But last night, I couldn’t get myself to enjoy it much.

To enjoy a movie like this, you have to root for the good guys, in this case the cops. But the cops are enforcing the prohibition law. It is impossible for me to forget that.

A case can be made, and indeed is made in the movie, that the cops are just doing their duty. They are not responsible for the framing of laws, good or bad. Yet we rightly condemn not just Hitler and the other top Nazis, but also those smaller agents who actually implemented the acts of incredible evil conceived or masterminded by the former. (At what point does moral culpability extend from the planners to the executors? When, despite the fact that you are just doing your sworn duty, can you no longer escape responsibility? These are interesting moral questions I have no comprehensive answers to.)

The prohibition law was not just a bad law. It was an evil law. It criminalized an acitivity that violates no one’s rights and gives a lot of people pleasure. It inevitably led to a vast underground trade in illicit liquor. The result was violence and death. When people were not dying at the hands of the cops or the liquor gangs, they were dying as a result of poisoning. To prevent bootleggers from using industrial ethyl alcohol to produce illegal beverages, the government ordered the poisoning of industrial alcohols. In response, bootleggers hired chemists who successfully renatured the alcohol to make it drinkable. The government ordered th poisoning of alcohol through more deadly means. As many as 10,000 people died from drinking denatured alcohol before Prohibition ended.

I see the raids by Ness on liquor manufacturers and I see an oppressive state violating the rights of its citizens. I see the deaths in the movie and I do not blame Capone; I blame the government. The government is the aggressor here, the initiator of the cycle of violence; Capone is merely giving people what they want. I see Ness killing a bad guy and avenging the murder of his dead partner, and I do not feel satisfaction; I cringe at this instance of abuse of power. And through it all, I think of modern times, where there are about a hundred raids every day as part of the war on drugs, a foolish, evil, violent policy that accounts for more lives lost or destroyed every year than abuse of drugs can ever achieve.

And I cannot forget it all just because it is a movie. Even though Ness and his crew are portrayed as hardworking honest cops, I cannot in my heart ignore that the law they are upholding is a terrible one. I guess that’s the main difference between the person I was then and am now. I know more and I cannot shut it off as easily.

Man arrested for writing book on pedophilia

Another day, another outrageous attack on free speech. Colorado resident Phillip Greaves was arrested a week ago by Florida cops on obscenity charges. His crime? Writing a book on pedophilia called: The Pedophile’s Guide to Love and Pleasure: A Child-Lover’s Code of Conduct. The cops, posing as buyers on the internet, got him to mail a copy of the book to them and then flew to Colorado to arrest him.

I haven’t read the book, but it is apparently not — despite the title — a book on how to abuse children, but instead on how pedophiles can conduct themeselves around children in a manner that conforms to the law.

Eugene Volokh wrote a nice post explaining why Philip Greaves has not violated the obscenity statute nor any child pornography laws. Also read this post at Sexhysteria.

I am pretty sure that the charges against him will be eventually dismissed. Even if the jury convict him, he can appeal and will be virtually certain to win. The operative word though is “eventually”. Till then, he sits in jail. It appears that he lacks the money to hire a good lawyer or set himself free on bail (set at $15,000).

For a related case, read this old post of mine.

How to deal with police : Four videos

Flex your rights has four videos up on Youtube. You should definitely watch these if you live or have plans to live in America.

The intro and the music at the beginning is a bit jarring, and the acting could have been more professional, but overall these videos are well-made. They are an excellent primer on your rights when dealing with police and strategies for asserting these rights effectively but sensibly.

Binayak Sen sentenced to imprisonment for life

Outrages against liberty by various arms of the Indian state are neither rare nor mild, yet, even by those standards, the sentencing of Binayak sen is a shocking event. When a good doctor and an internationally acclaimed humanitarian is convicted by a court in a democratic(!) country and sentenced to life imprisonment: for violating arcane laws which should probably not be there, and which he anyway appears not to have violated, it is time for grief and rage.

I am not an expert on the various aspects of this case, but this much seems clear to me: Binayak Sen was not responsible for an act of violence. It doesn’t matter to me whether he is a Maoist sympathizer or not — if he is, that’s an exercise of his right to thought. It doesn’t matter to me if he spoke in favour of the Maoist movement — if he did, that was an exercise of his right to speech. It doesn’t matter if he possessed banned books — as far as I am concerned, possession of a book, whatever it is, should never be a crime. It doesn’t matter if he gave significant medical aid to an injured Maoist leader — if he did, he was doing exactly what every good doctor would have done in his situation. It doesn’t matter that he visited said Maoist leader in the jail or elsewhere — even disregarding the fact that such contact would have been normal in view of the doctor-patient relationship, noone, should ever, in any circumstance, be penalized merely for being in contact with another human being.

If Binayak Sen actively played a role in planning or executing violent deadly attacks, he should serve the time. But as far as I can tell, there is no evidence whatsoever he did so. Whatever evidence there is, point in a very different direction.  The notion — non actionable, even if true — that he was some sort of a believer in a Maoist ideology seems to be supremely wrong-headed. By all accounts — and I am relying here on accounts of those who know him — Sen’s beliefs were of a far more mild variety: he believed in inclusive growth, aid to underprivileged communities, an opposition to a system that created “two kinds of people” (the haves and have-nots), and so on. He is on record saying he abhors violence, including the Maoist variety. The evidence also points to him selflessly serving these underprivileged communities through his work as doctor. From the linked Tehelka article:

Drive 150 kilometres away from Raipur into the unforgiving dustiness of the forest around Bagrumala and Sahelberia in district Dhamtari, where Binayak ran his Tuesday clinic, and the heroic dimension of his work overwhelms you. There is nothing that could have brought a retired colonel’s elite, accomplished son here but extraordinary compassion. Scratchy little hamlets, some no more than 25-houses strong. Peopled by Kamars and other tribals, the most neglected of the Indian human chain, destituted further by the Gangrail dam on the Mahanadi river. No schools. No drinking water. No electricity. No access to public health. And increasingly, no access to traditional forest resources. Here, stories of Binayak Sen proliferate. How he saved young Lagni lying bleeding after a miscarriage, how he rescued the villagers of Piprahi Bharhi jailed en masse for encroaching on the forest, how he helped Jaheli Bai and Dev Singh, how he helped create grain banks. “Do something. Save the doctor,” says an old man in Kamar basti. “We have no one to go to now.”

In short, the evidence points to him being a man who above all believed in doing good. As a doctor, and a humanitarian with certain beliefs, he did good to everyone, from the powerless poor to some who the state considers its enemy. He spoke out against things he considered unjust and criticized the state whenever he felt it did wrong. Some of his acts made him, in the eyes of the powerful, a dangerous man who needed to be put down.

This ruling is certain to be challenged, but it still means that the forces of evil have won this round. For India and for liberty, this day is a black one.

****

When I last wrote about Sen, a reader (Chetan) asked some interesting questions.

If this issue were to be discussed on the basis of principle alone, I would like to know your views about how you would view an arrest of a person who is actively involved in aiding and abetting a violent political movement.

For instance, were it to be proved that a person provided not just intellectual but also material and tactical support to a violent movement, do you think the State has no right to imprison him? (The implicit assumption here is that the person didn’t involve himself with the violence. Let’s just say he provided funding and helped perpetrators of violence hide from the cops knowing what they had done)

While I cannot cover every scenario here, a few things I believe are:

Helping a violent movement  in a way that is directly linked to the execution of violent criminal acts (giving them money knowing it would be used to buy guns, helping them plan an operation, carrying letters detailing this plan from one person to another) should be a crime.

“Helping” a violent movement in any other way (moral or intellectual support, giving legal advice or medical help, carrying a letter that merely contains seditious propaganda) should not be a crime. Nor should giving money be a crime if it is the case that this money will only be used for legitimate purposes and not for violent acts (or, by mens rea, even if the financier believes incorrectly such to be the case).

From the libertarian viewpoint, the most important issue when pondering the legality of a certain sort of indirect support is whether its nature is intrinsically rights-violating (NAP violating). A good rule of thumb to resolve this is to ask the following question: would it, in your mind, be legal to offer the same sort of support to another group that had till then not committed any crime? If the answer to this question is yes, then the support should probably be legal even when offered to a violent lawless group.

Granted, a few cases are somewhat on the line, but in Sen’s case, it doesn’t even seem close.

Changing priors

One question that  is pertinent to politics as well as psychology is the nature of moral progress. When I say moral progress, I mean the process by which individuals end up updating or modifying their basic moral beliefs (or priors). This process usually is a slow one, and at the micro level involves one’s reaction to evidences or thought processes.

This typically happens when Person A comes across some data/evidence that is in tension with his moral system. For example, A may value a certain principle and then realize one day that some regular action of his violates this principle. Or maybe A values several principles, and new data (or just new reasoning) seems to suggest that in at least some instance these principles are in conflict.

To give a couple of examples:

Time: 1790. Place: America. A values both individual liberty and a harmonious, prosperous society. The issue at hand is slave ownership. A reluctantly accepts slave ownership for the time being because he believes that Blacks are intellectually inferior and would not be able to live in the same land as the Whites. Perhaps A supports emancipation in principle but thinks an actual implementation would result in tremendous disorder, huge decrease in prosperity and would also require eventual deportation of all the Blacks back to Africa in a painful, costly and disrupting process. But one day his scientist friend shows him evidence that seems to strongly suggest that the inferiority of Blacks is a myth, and given proper education they would be as likely as Whites to succeed in intellectual endeavors.

Or to give a second example, A is a young European, living currently, who has a strong moral opposition to hunting for pleasure. He thinks it is wrong and rights-violating. Yet he eats meat. He justifies this by saying that killing for food or to achieve some other basic necessity is ok, but killing for pleasure is morally wrong. But one day, after a conversation with a friend he starts to wonder if his position is morally sound. He realizes  that he can get by  without eating animals (gaining the needed protein from other sources, such as lentils, milk and soy, as many Asians do) so the main reason behind eating meat is the pleasure he gains from it. So how is eating meat different form hunting then?

And so on…

The interesting question to me, is what A does in such a situation.  He has several choices:

1. Simple minded denial: He can just deny that the evidence exists. For instance the 18th century American could refuse to believe his scientist friend. He could claim that the facts and the research are false and move on. We seem to see something similar with some (not all) global warming sceptics today.

2. Tweaking:  He can decide that despite the new evidence/argument, he can resolve the tension with minor tweaks. For instance, he comes up with other evidence or arguments to counter the tension. Or he  makes minor changes to his priors that make this tension go away or at least become less pronounced. There are many ways to tweak one’s beliefs, some simple, some highly complex; some honest, some not, some based on reason, some based on emotion.

3. Biting the bullet: He can decide that his values are truly in conflict and modify them significantly. The 18th century American could either give up his belief  in liberty, or abandon his support for slave-ownership. The 2oth century European could decide that animals don’t have rights (and end his moral opposition to hunting) or decide to become a vegetarian. Any of these outcomes are what I’d call significant moral progress. At the individual level, they can be life-changing.

It seems to me that personality plays a complex role in deciding which of the above outcomes occur. As a rule, people have a strong emotional resistance to any sort of change in their moral priors. For that would mean acknowledging to themselves, and perhaps to others, that they have engaged in beliefs/actions that are false/evil. Some make a conscious attempt to avoid letting emotions take precedence over reason in deciding how one deals with such conflicts, while others go with the flow.

Age probably plays an important role in all this; younger people are more likely to change their belief systems. As Fitzgerald once wrote, “At eighteen our convictions are hills from which we look; at forty-five they are caves in which we hide.”

In any case, I don’t have any deep insights to offer, but I think these are interesting questions, and being able to deal with moral dilemmas in an efficient, unbiased and rational manner would certainly improve political outcomes.

Glenn Greenwald, one man army

Here is his latest article, illustrating how NY Times and other papers routinely divulge information — and rightly so! — that is far more secret and consequential than Wikileaks is accused of doing.

I have admired some of Greenwald’s writings in the past. But on Wikileaks and related First Amendment issues, he has been nothing short of breathtaking, a one man army. He has made every point worth making. He has repeatedly pointed out the dangers to free speech from an Assange prosecution, and the legal equivalence between Wikileaks and traditional newspapers. He was the first to reveal to a broad audience the inhuman conditions in which Manning is being held. He has been passionate in his appeals, razor-sharp in his arguments and accurate in his facts. With every article, he has exposed the hypocrisy/evilness of the US administration on this issue and has furthered the cause for liberty and free speech.

***

I donated some money to Greenwald today via Paypal. It was not so much to help him financially — I am sure he earns a good salary from his Salon column and other gigs — but more to express my support and admiration. This is what I wrote in my message: I am a libertarian. Likely we don’t agree on a lot. But for everything you have written about Wikileaks, you are my hero.

Ron Paul’s passionate defence of Wikileaks

I forgot to post this earlier. Ron Paul on the floor of the US Congress:

The co-conspirator angle

I noted yesterday that the apparent government strategy to indict Assange as co-conspirator rather than disseminator of the leaked cables would be still be highly problematic, and the danger to the First Amendment no less grave. Since then, there have appeared articles by several well known writers and legal experts who have come to the same conclusion.

Here’s Jack Goldsmith:

I’m not so sure this path avoids awkward questions.  Charging Assange as a conspirator to Manning’s leak might distinguish the Times in the wikileaks case.  But it would not distinguish the Times and scores of other media outlets in the many cases in which reporters successfully solicit and arrange to receive classified information and documents directly from government officials.  Prosecution of Assange on this theory would therefore raise awkward questions about why DOJ does not bring charges against the American media for soliciting classified information on a regular basis.  It would be a fateful step for traditional press freedoms in the United States.  Indeed, unless I am missing something, it seems that a successful prosecution of Assange for conspiracy to leak would have broader and more corrosive implications for press freedoms than a successful prosecution under the ambiguity-riddled Espionage Act.

Josh Gerstein:

Reporters seek classified information all the time in telephone conversations, in private meetings and other contexts. Just Wednesday, the New York Times carried a front page story from Elizabeth Bumiller describing two classified National Intelligence Estimates on Pakistan and Afghanistan. Does anyone think she was entirely passive in this leak? That the reports, or some summary of them, simply arrived on her desk or in her inbox and she did nothing either to solicit them or to seek more details about them after receiving them? Frankly, if she didn’t at least do the latter, she wouldn’t be doing her job.

It seems to me if the Justice Department takes the approach the Times describes, the issue of classification might fall away altogether. But that could potentially make the First Amendment questions even more profound. A reporter who asks a county clerk for a document that is traditionally sealed might be committing a crime. And with virtually all information stored on computers these days, almost anyone who asks a government employee a question the employee might not need to know the answer to might be conspiring in an unauthorized intrusion into a government information system.

Jack Balkin:

Journalists are not merely passive recipients of information they receive from their sources. It make take weeks of negotiations (and rounds of drinks at the Mayflower Hotel) to get a source to agree to provide sensitive information, and work out the details of the disclosure. Agreements not to reveal a source who provides sensitive information are just that, agreements. If prosecutors wanted to, they would argue that such agreements were part of a conspiracy to leak classified information under the Espionage Act or related statutes.

Journalists should be very worried about the conspiracy theory that the Justice Department is considering. It puts them (and their jobs) in serious danger.

Glenn Greenwald:

Very rarely do investigative journalists merely act as passive recipients of classified information; secret government programs aren’t typically reported because leaks just suddenly show up one day in the email box of a passive reporter.  Journalists virtually always take affirmative steps to encourage its dissemination.  They try to cajole leakers to turn over documents to verify their claims and consent to their publication.  They call other sources to obtain confirmation and elaboration in the form of further leaks and documents.  Jim Risen and Eric Lichtblau described how they granted anonymity to “nearly a dozen current and former officials” to induce them to reveal information about Bush’s NSA eavesdropping program.  Dana Priest contacted numerous “U.S. and foreign officials” to reveal the details of the CIA’s “black site” program.  Both stories won Pulitzer Prizes and entailed numerous, active steps to cajole sources to reveal classified information for publication.

Good, evil and conspiracy

The New York Times reports:

Federal prosecutors, seeking to build a case against the WikiLeaks leader Julian Assange for his role in a huge dissemination of classified government documents, are looking for evidence of any collusion in his early contacts with an Army intelligence analyst suspected of leaking the information.

[…]If Mr. Assange encouraged or even helped the analyst, Pfc. Bradley Manning, to extract classified military and State Department files from a government computer system., they believe they could charge him as a conspirator in the leak, not just as a passive recipient of the documents who then published them.

And what’s the evidence the government has? Apparently Manning, in a chat with another ex-hacker who ultimately turned him in, said the following:

1) He had contacted Wikileaks/Julian Assange and sent him a test leak to make sure Assange was genuine.

2) After being convinced of Assange’s authenticity, he sent him more files, during which he was in direct online contact with Assange who had set up a special server for him to upload these files.

3) Much later, he also physically gave a Wikileaks agent/intermediary a CD containing the files because the slow internet connection made it difficult for Manning to upload these files directly.

The government thinks that if it charges Assange as a co-conspirator based on these facts it can avoid constitutional issues.

There is just one problem. There is nothing in these facts that make Wikileaks a co-conspirator, or distinguishes the Assange — Manning relationship in any way from traditional reporter — source relationships.

Direct online contact? Meeting with Wikileaks intermediary? Every reporter who has unearthed a major story has been in direct contact with his source. Bob Woodward contacted Deep throat innumerable times as he investigated the Watergate scandal. From Wikipedia:

Woodward claimed that he would signal “Deep Throat” that he desired a meeting by placing a flowerpot with a red flag on the balcony of his apartment. When Deep Throat wanted a meeting he would make special marks on page twenty of Woodward’s copy of The New York Times; he would circle the page number and draw clock hands to indicate the hour. They often met “on the bottom level of an underground garage just over the Key Bridge in Rosslyn,” at 2:00 a.m. The garage is located at 1401 Wilson Boulevard.

Or consider the Pentagon papers case, the closest parallel to Wikileaks. Daniel Ellsberg, the leaker, met Neil Sheehan, the NY Times reporter and gave him 43 volumes of the papers.

So if  Assange is charged as a co-conspirator rather than a publisher based on these facts Manning told Lamo, it would be a travesty of justice and the danger to the future of the First Amendment will be no less grave. Every future reporter-source relationship will be in jeopardy; nothing will stop future prosecution of reporters as conspirators.

Who is a co-conspirator? The standard dictionary definition is one who engages with an agreement with another to break the law at some time in the future, and, usually, with at least one overt act in furtherance of that agreement. In this case, by all accounts, Manning obtained the files himself. He contacted Wikileaks because he wanted them published. How on earth does that make Wikileaks a member of a conspiracy?

But the government is no fool. They surely know all this, and the difficulty they will have in convincing an honest judge that Assange is a co-conspirator because he was in early contact with Manning. Why then — apart from the obvious legal and political advantage of going after conspirators rather than media organizations — are they pursuing this angle?

I wondered for a while about this. And I think I now know the answer. The answer lies in Glenn Greenwald’s heartbreaking piece from yesterday, about the inhuman conditions in which Bradley Manning, the supposed leaker, is being held.

From the beginning of his detention, Manning has been held in intensive solitary confinement.  For 23 out of 24 hours every day — for seven straight months and counting — he sits completely alone in his cell.  Even inside his cell, his activities are heavily restricted; he’s barred even from exercising and is under constant surveillance to enforce those restrictions.  For reasons that appear completely punitive, he’s being denied many of the most basic attributes of civilized imprisonment, including even a pillow or sheets for his bed (he is not and never has been on suicide watch).

[…]The brig’s medical personnel now administer regular doses of anti-depressants to Manning to prevent his brain from snapping from the effects of this isolation.

Just by itself, the type of prolonged solitary confinement to which Manning has been subjected for many months is widely viewed around the world as highly injurious, inhumane, punitive, and arguably even a form of torture.  In his widely praised March, 2009 New Yorker article — entitled “Is Long-Term Solitary Confinement Torture?” — the surgeon and journalist Atul Gawande assembled expert opinion and personal anecdotes to demonstrate that, as he put it, “all human beings experience isolation as torture.”  By itself, prolonged solitary confinement routinely destroys a person’s mind and drives them into insanity.  A March, 2010 article in The Journal of the American Academy of Psychiatry and the Law explains that “solitary confinement is recognized as difficult to withstand; indeed, psychological stressors such as isolation can be as clinically distressing as physical torture.”

Gawande documents that “EEG studies going back to the nineteen-sixties have shown diffuse slowing of brain waves in prisoners after a week or more of solitary confinement.”  Medical tests conducted in 1992 on Yugoslavian prisoners subjected to an average of six months of isolation — roughly the amount to which Manning has now been subjected — “revealed brain abnormalities months afterward; the most severe were found in prisoners who had endured either head trauma sufficient to render them unconscious or, yes, solitary confinement.  Without sustained social interaction, the human brain may become as impaired as one that has incurred a traumatic injury.”

And so far, Manning hasn’t been even presented in court, let alone convicted. So why is he been held in such terrible conditions, and for so long?

Here is my theory why. The authorities hope that by destroying Manning mentally and spiritually, by breaking him completely from within, they will be able to make him testify against Assange . The government intends to read him a script and force him to follow it.

The New York Times hints at the same thing:

Prosecutors could overcome that hurdle if they obtain other evidence about any early contacts — especially if they could persuade Private Manning to testify against Mr. Assange.

So far they are not succeeding. Manning has refused to cooperate with the authorities.

Manning, as Greenwald writes, is a “whistleblower in the purest and most noble form:  discovering government secrets of criminal and corrupt acts and then publicizing them to the world not for profit, not to give other nations an edge, but to trigger worldwide discussion, debates, and reforms.” Indeed, from the transcript of Manning’s chat with Lamo:

Manning: i mean what if i were someone more malicious- i could’ve sold to russia or china, and made bank?

Lamo: why didn’t you?

Manning: because it’s public data

Lamo: i mean, the cables

Manning: it belongs in the public domain -information should be free – it belongs in the public domain – because another state would just take advantage of the information… try and get some edge – if its out in the open… it should be a public good.

As Dan Ellsberg, the hero behind the Pentagon papers said, Manning and Assange are his heroes today. And if they are the heroes, who are the villains? It is not hard to see the answer to that.

Wikileaks and the First Amendment

I am a great fan of Wikileaks. I think they are playing an extremely valuable role in “promoting the climate of transparency and accountability necessary for an authentically liberal democracy” *. As Clay Shirky puts it,

Citizens of a functioning democracy must be able to know what the state is saying and doing in our name, to engage in what Pierre Rosanvallon calls “counter-democracy”*, the democracy of citizens distrusting rather than legitimizing the actions of the state. Wikileaks plainly improves those abilities.

Still, I see the concerns of those who are worried that ongoing leaks from the US embassy cables will affect diplomacy adversely, push things further under the carpet, hurt the interests of the US and other nations, maybe even increase the chance of war. These concerns are legitimate and I will not try to go into a detailed explanation here as to why I think they are overwrought. Suffice it to say that I believe that the status quo is so much to the side of government secrecy these days that that, not too much transparency, is by far the greater danger.

So this post will not defend the thesis that Wikileaks is good and Julian Assange is a hero. That is a thesis both true and worth defending, but not what I wish to write about today. This post will be much more personal. It will be about darkness and disillusionment. It will be about the reaction to Wikileaks, and what it forebodes for freedom in the US.

***

Consider for a moment, what has been the reaction to Wikileaks from prominent US politicians and much of the mainstream American media.

(*) That Assange should be treated as a “traitor” and murdered with no due process has been strongly suggested by Marc Thiessen, Seth Lipsky (with Jeffrey Goldberg posting Lipsky’s column and also illiterately accusing Assange of “treason”), Jonah Goldberg, Rep. Pete King, and The Wall Street Journal.

Not all of the bullies were content with merely making statements. Joe Lieberman, chairman of the Senate’s committee on homeland security, contacted Amazon and pressured the company into cutting off Wikileaks from hosting its files on its cloud server. He did the same with Tableau, a small software company that was merely hosting some charts summarizing the material released by WikiLeaks , such as the charts counting the documents which originated from each country, the number of documents by year, etc. none of which is classified.

There is also strong evidence that the US government has itself been involved in compelling private companies, such as Paypal and Visa, to cut off Wikileaks’ fund sources. Moreover there has been absurd and sad attempts at censorship of American college students. A State Department official warned students at Columbia University’s School of International and Public Affairs that anyone who will be applying for jobs in the federal government could jeopardize their prospects by posting links to WikiLeaks online, or even by discussing the leaked documents on social networking sites (!)

And while I think it is irresponsible to make any definite conclusions about the legitimacy of the rape charges for which Assange is wanted in Sweden, going by the fact that the handling of the case has been highly irregular, I will not be too surprised if it turns out that the charges are essentially bogus and the prosecution is acting under pressure from the US so that they can hold on to him till the US formally submits an extradition request.

Note that neither Assange nor Wikileaks has ever been held directly or indirectly responsible for even a single death by their disclosures, and Robert Gates, the US defence secretary himself admitted that while some of the cable leaks were embarrassing or awkward, the consequences for US foreign policy would be “fairly modest”. All of this makes the extra-legal pursuits by the authorities, the dictating of terms to private companies and the equating of an information disseminator like Assange with actual violent terrorists extremely shocking. I think Shirky is right on the money here:

When authorities can’t get what they want by working within the law, the right answer is not to work outside the law. The right answer is that they can’t get what they want.

The Unites States is — or should be — subject to the rule of law, which makes the extra-judicial pursuit of Wikileaks especially nauseating. (Calls for Julian’s assassination are even more nauseating.)

***

But yet, strangely enough, it is not the extra-legal methods and the skirting of due process that disturb me the most about the whole affair. It is the fact that if the American authorities ever manage to get Assange extradited and then succesfully prosecute him (neither will be easy) for these disclosures, it will mean the end of the First Amendment as we know it.

Reports suggest that such action is being considered at the highest level. Eric Holder confirmed a couple of weeks ago that there is “an active, ongoing, criminal investigation” about Wikileaks. More recently, there have been reports that the Obama DOJ has convened a Grand Jury to consider bringing charges against WikiLeaks and Julian Assange. If this is correct, it would be a greater assault on press freedom than anything attempted by the much reviled Bush, indeed perhaps the greatest assault on press freedom in the last fifty years.

At this point, it is necessary to clear a few things.

1. For the purpose of American law, Wikileaks most definitely qualifies as a member of the press. Note that Wikileaks does not solicit newsleaks directly and they do not contact potential leakers. If the leaks come to them voluntarily, they simply take steps to protect the identity of the source, and eventually, if deemed newsworthy, the leaks are published on their site, along with commentary and explanations. If Wikileaks did not exist, the leakers would go to traditional newspapers, such as the New York Times. As far as this case is concerned, there is no intellectually coherent way to distinguish between Wikileaks and other members of the press that have also published the same leaked cables (NY Times, Guardian, Der Spiegel…), often before Wikileaks has.

2. Some have suggested that Wikileaks could be prosecuted for possession and distribution of stolen property. It seems ridiculous to have to point out something so elementary, but information isn’t and has never been “property”. A property exists in physical form and has a unique copy. In this case, the computer files were not stolen, but copied. If someone takes a book and makes unauthorised copies of it, he is not charged with violating property laws. He is charged with violating copyright laws, a very different beast. And there are no copyright issues involved in distributing embassy cables, because according to American law, any work “prepared by an officer or employee of the U.S. Government as part of that person’s official duties” is not entitled to  copyright protection. Yes, the person who actually leaked the cables can still be charged with high-level breach of contract, but Assange is not the leaker, and there is no evidence he or anyone at Wikileaks helped the leaker with the unauthorized copying.

3. Some have suggested that all these laws and protections don’t apply to Assange because he is not an American citizen. Apart from the gross immorality of such a stance and the terrible consequences it would lead to if actually implemented across the board, it is also factually untrue: once the US takes jurisdiction of someone, any prosecution must be in accordance to the law and the defendant, whether US citizen or not, typically enjoys all the constitutional protections (with a few exceptions that are not relevant in this context).

4. Some have suggested invoking privacy laws to go after Wikileaks. But privacy laws are very specific; they apply only to sensitive personal details (medical records, private letters) of private individuals and not to public figures in their official government correspondence.

But there is one law that Assange on a literal reading seems to have broken, and that is the Espionage Act of 1917, passed during the First World War. The language of the Act is breathtakingly broad: it makes it a felony for any person “having unauthorized access to…any document…relating to the national defense…which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully…[to] cause to be communicated delivered, or transmitted [any document]…to any person not entitled to receive it.” So on a literal reading, this Act would apply to the actual leaker as well as Wikileaks and the various newspapers that republished it, and even your next door neighbour who puts a link to Wikileaks on his Facebook profile. As American University law professor Stephen Vladeck told ABC News , “one of the flaws of the Espionage Act is that it draws no distinction between the leaker or the spy and the recipient of the information, no matter how far downstream the recipient is.”

There is just one problem. The Espionage Act has never been successfully used to prosecute a media organization. It is generally believed that such a prosecution would fail because of the First Amendment, which protects freedom of speech.

There is little doubt that the First Amendment applies in this case. Wikileaks is certainly a member of the press; besides, as the Supreme Court once noted, “Freedom of the press is a ‘fundamental personal right’ which is not confined to newspapers and periodicals.” Indeed, the freedom belongs to everyone from “the lonely pamphleteer who uses carbon paper or a mimeograph . . . [to] the large metropolitan publisher.”

Let me repeat that for emphasis. Wikileaks and its leaked cables is exactly the sort of thing that the First Amendment protects. Free speech gives Wikileaks, and other members of the press, the right to disseminate any information provided by a source, regardless of whether the said source obtained this information legally or illegally, so long as the material is not libelous (and even this would only invite a civil penalty) or incite imminent lawless action (which is a very high standard to meet and is certainly not the case here).

The closest parallel to Wikileaks was the Pentagon Papers case. There, the federal government took the New York Times to court under the Espionage Act because it was about to publish classified documents relating to the Vietnam war. The government lost that case. The New York Times went ahead and published the truth about the Vietnam war in what was a watershed moment in American history.

Dan Ellsberg, the whistleblower behind the NY Times Pentagon Papers leaks, is a fan of WikiLeaks in particular and whistleblowers in general. He argues that WikiLeaks founder Julian Assange “is serving our democracy and serving our rule of law… I’ve sort of been waiting for somebody to do this for forty years.”

Based on the Pentagon Papers precedent, it may seem obvious that Wikileaks is in no real danger of prosecution. But there is a small problem. In the Pentagon papers case, the government wanted the Supreme Court to issue a prior restraint injunction barring the publishing of the documents by the NY Times and other newspapers. The Supreme Court declined to do so on First Amendment grounds. But what if the government had gone to court again after the fact and sought to punish the newspapers for breaking the law? How would the judges have ruled then? It is unclear.

What is clear is this. In the unlikely event that the government succeeds in convicting Assange under the Espionage Act, it will set a tremendous precedent. It will mean that the Court will for the first time have ruled that when applied to the press, secrecy and national defence interests protected by the Espionage Act trump the First Amendment when the two are in clash. Previously only actual spies and leakers were under the ambit of this Act. Now everyone, in particular all journalists, bloggers and  whistleblowers, will be. Since there is no limit to what governments can classify, it will have a breathtaking effect on the future of investigative and political journalism. As I have already made clear, there is no intellectually coherent way to distinguish between Wikileaks and traditional newspapers. They will all be at risk from future prosecution. During the Bush administration, there were in fact several explicit threats to prosecute members of the press for reporting things the government wanted kept secret. The Bush administration never went ahead and did so because they thought such a prosecution could not succeed. If the Obama administration succeeds in this case, nothing will stop them, or future governments,  from using their new found power to censor free speech whenever they want to. Without the First Amendment as an effective bulwark against government overreach, it will be easy for the government, especially in times of war or fear thereof, to haul up dissenters and silence journalists. In fact the Espionage Act, as written, does not even require that information need be classified for its disclosure to be actionable.

Even the newspapers, previously detached or pro-prosecution, have started realising the grave danger. The Washington Times‘ reporter Eli Lake wrote:  “I oppose the application of the espionage statute to Assange because the same kind of prosecution would make me a criminal too.” The New York Times‘ Eric Lichtblau and The Washington Post‘s Dana Priest warned that prosecuting WikiLeaks would endanger investigative journalism generally. The Washington Post Editorial Page came out in opposition to prosecuting WikiLeaks on Sunday, recognizing that “the government has no business indicting someone who is not a spy and who is not legally bound to keep its secrets” and that “doing so would criminalize the exchange of information and put at risk responsible media organizations.”

***

But I have not yet really explained why I am so bothered by all this. I am not an American citizen; nothing binds me to that land. And if one takes the universal moral standpoint — why, yes it is immoral and rights-violating to persecute Wikileaks for its exercise of free speech — but there are far worse violations of rights happening around the world on most days. It may seem almost silly that I find the Wikileaks episode so disturbing and am less affected by the various attacks on individual liberty by the government of my home country, India.

Now, I despise collectivism. I am an Indian citizen who has lived in the US, but I owe allegiance to no country, and never will. But here’s the thing; as a principled libertarian, I don’t get to see our cherished principles in action very much. Even the US is not really particularly libertarian, it is better than most, but worse than many, especially on social  issues. And the US foreign policy over the last sixty years has been as unlibertarian and violative of rights as one can possibly get.

But on the single issue of freedom of the press, the US has for the most part, been outstanding. And there is really one reason for that. It is the First Amendment.

Laws  — and the rights granted therein — are the engines that sustain modern liberal democracies. And of all laws, there is none as special as the First Amendment. Of the innumerable fundamental rights enshrined in the constitutions of various countries, the First Amendment is the most amazing, the most successful, the most astonishing. It is, to me, the jewel of the entire legal compendium.

The greatness of the First Amendment lies in its absoluteness. Other countries that had incorporated weaker versions of free speech protection, — i.e. with caveats — were ultimately left with no real free speech at all. As I have often pointed out, it is only speech that offends that requires government protection. Recent events in Canada and Europe have amply displayed the chilling effects of hate-crimes legislation.

In the US one can insult entire groups and not be charged with hate speech. One can write books on how to commit suicide or pamphlets about how to be an effective anarchist and generally have no fear that the government will ban them. One can criticize the government or make parodies of well-known figures without fear of legal trouble. One can burn the American Flag if one chooses, even though most people think it should be illegal to do so, and not worry about ending up in jail.

Yes the First Amendment, or rather the version as currently applied after numerous interpretations by the courts — is not perfect. For instance, courts have ruled that obscene material — usually extreme pornography — that have no other social value do not enjoy First Amendment protection and can be banned. I think that is a huge blemish on the First Amendment. The First also, sadly, does not fully protect certain sorts of commercial speech. But we do not live in a libertopia, and these are some of the few rare blemishes. Overall, the free speech rights in the US exceed that of any country I know of and comes pretty close to being perfect. There are some other restrictions on free speech that the First Amendment does not protect, such as libel, or words that lead to imminent lawless action, but I think those restrictions are more or less justified.

Ah, free speech. It’s such a radical concept, if you think about it historically. And the fact that the founders of the US put in this clause in the constitution, without caveats or modifiers, over 200 years ago, is nothing short of astounding. There have been many proposed US laws that have been — rightly — ruled unconstitutional because they violated the First. It is almost a miracle to see a  sentence make so much difference, often working against heavy popular opinion.

As a NY Times commenter once put it, the point of freedom of speech isn’t to protect the content that everyone agrees is acceptable or even desirable–there’d be no purpose to an amendment that protected what everyone agreed was worth protecting. The point of freedom is speech is to protect the content that exists at the margins of society; the things that many people find to be objectionable or even reprehensible. Without such protections, core values of our civil society are at risk.

It is the rigorous application of the First Amendment that has, more than anything else, preserved these core values in America. And of all the forms of speech, none is as valuable as political speech, and by extension political reporting. It is this form of speech that governments and tyrants will seek to clamp upon, often in the guise of the national interest. It is important to be extremely vigilant against any attempt at doing so. Ben Franklin once wrote “Where liberty dwells, there is my country.” If the First gets distorted beyond recognition, as a successful Wikileaks prosecution will undoubtedly do, that country will not be the US.

On Wikileaks

Here are some recent articles on Wikileaks that are worth reading.

Glenn Greenwald:

The WikiLeaks disclosure has revealed not only numerous government secrets, but also the driving mentality of major factions in our political and media class.  Simply put, there are few countries in the world with citizenries and especially media outlets more devoted to serving, protecting and venerating government authorities than the U.S.  Indeed, I don’t quite recall any entity producing as much bipartisan contempt across the American political spectrum as WikiLeaks has:  as usual, for authoritarian minds, those who expose secrets are far more hated than those in power who commit heinous acts using secrecy as their principal weapon.

[…]

Before setting forth why these WikiLeaks disclosures produce vastly more good than harm, I’ll state several caveats as clearly as I can.  Unlike the prior leaks of war documents, there are reasonable concerns about this latest leak (most particularly that impeding diplomacy makes war more likely).  Like all organizations, WikiLeaks has made mistakes in the past, including its failure to exercise enough care in redacting the names of Afghan informers.  Moreover, some documents are legitimately classified, probably including some among the documents that were just disclosed.

Nonetheless, our government and political culture is so far toward the extreme pole of excessive, improper secrecy that that is clearly the far more significant threat.  And few organizations besides WikiLeaks are doing anything to subvert that regime of secrecy, and none is close to its efficacy.  It’s staggering to watch anyone walk around acting as though the real threat is from excessive disclosures when the impenetrable, always-growing Wall of Secrecy is what has enabled virtually every abuse and transgression of the U.S. government over the last two decades at least.

Democracy in America:

I think we all understand that the work of even the most decent governments is made more difficult when they cannot be sure their communications will be read by those for whom they were not intended. That said, there is no reason to assume that the United States government is always up to good. To get at the value of WikiLeaks, I think it’s important to distinguish between the government—the temporary, elected authors of national policy—and the state—the permanent bureaucratic and military apparatus superficially but not fully controlled by the reigning government. The careerists scattered about the world in America’s intelligence agencies, military, and consular offices largely operate behind a veil of secrecy executing policy which is itself largely secret. American citizens mostly have no idea what they are doing, or whether what they are doing is working out well. The actually-existing structure and strategy of the American empire remains a near-total mystery to those who foot the bill and whose children fight its wars. And that is the way the elite of America’s unelected permanent state, perhaps the most powerful class of people on Earth, like it.

If secrecy is necessary for national security and effective diplomacy, it is also inevitable that the prerogative of secrecy will be used to hide the misdeeds of the permanent state and its privileged agents. I suspect that there is no scheme of government oversight that will not eventually come under the indirect control of the generals, spies, and foreign-service officers it is meant to oversee. Organisations such as WikiLeaks, which are philosophically opposed to state secrecy and which operate as much as is possible outside the global nation-state system, may be the best we can hope for in the way of promoting the climate of transparency and accountability necessary for authentically liberal democracy. Some folks ask, “Who elected Julian Assange?” The answer is nobody did, which is, ironically, why WikiLeaks is able to improve the quality of our democracy. Of course, those jealously protective of the privileges of unaccountable state power will tell us that people will die if we can read their email, but so what? Different people, maybe more people, will die if we can’t.

Jack Shafer:

International scandals—such as the one precipitated by this week’s WikiLeaks cable dump—serve us by illustrating how our governments work. Better than any civics textbook, revisionist history, political speech, bumper sticker, or five-part investigative series, an international scandal unmasks presidents and kings, military commanders and buck privates, cabinet secretaries and diplomats, corporate leaders and bankers, and arms-makers and arms-merchants as the bunglers, liars, and double-dealers they are.

We shouldn’t be surprised by the recurrence of scandals, but, of course, we always are. Why is that? Is it because when scandal rips up the turf, revealing the vile creepy-crawlies thrashing and scurrying about, we’re glad when authority intervenes to quickly tamp the grass back down and re-establish our pastoral innocence with bland assurances that the grubby malfeasants are mere outliers and one-offs who will be punished? Is it because our schooling has left us hopelessly naïve about how the world works? Or do we just fail to pay attention?

Information conduits like Julian Assange shock us out of that complacency. Oh, sure, he’s a pompous egomaniac sporting a series of bad haircuts and grandiose tendencies. And he often acts without completely thinking through every repercussion of his actions. But if you want to dismiss him just because he’s a seething jerk, there are about 2,000 journalists I’d like you to meet.

The idea of WikiLeaks is scarier than anything the organization has leaked or anything Assange has done because it restores our distrust in the institutions that control our lives. It reminds people that at any given time, a criminal dossier worth exposing is squirreled away in a database someplace in the Pentagon or at Foggy Bottom.

Baruch Weiss:

Attorney General Eric Holder says his Justice Department is going after WikiLeaks’ Julian Assange. At first glance, it seems like a straightforward case. Almost half of the 250,000 internal State Department cables Assange has published are classified, either at the confidential or the secret level (no top-secret documents are included), and rarely does the target of a criminal investigation commit his alleged crime so publicly. Holder knows it will not be easy, however. He realizes that as much as we may condemn Assange’s actions, they were not obviously criminal.

[…] The U.S. government has never successfully prosecuted a media entity for a leak. It is typically much easier to bring such cases against the government officials who do the leaking, because they sign nondisclosure agreements surrendering many of the legal protections they otherwise would enjoy.

[…] What law did Assange violate? It will surprise many that there is no statute making it illegal to reveal classified information. There are statutes that criminalize the disclosure of very specific types of classified information, such as the identity of a covert operative (think Valerie Plame) or “codes, ciphers or cryptographic systems.” But there is no catch-all law that simply says, “Thou shalt not disclose classified information.”

Indeed, when Congress tried to enact such a statute, President Bill Clinton sensibly vetoed it. His reason: The government suffers from such an overclassification problem – some intelligence agencies classify even newspaper articles – that a law of this sort would end up criminalizing the disclosure of innocuous information. And even that vetoed statute would have applied only to government officials, not to private individuals or journalists.

[…] The fact that classified information is involved does not preclude First Amendment safeguards. In the AIPAC case, Judge Ellis rejected the prosecutors’ categorical – and dangerous – argument that when classified information is at issue, the First Amendment affords no protection. Of course, the First Amendment is no license to disclose the recipe for the plutonium bomb to Osama bin Laden. But the Justice Department would have to prove that Assange’s disclosures were so dangerous to national security as to override the First Amendment. In the words of Justice Oliver Wendell Holmes Jr., the prosecution would have to demonstrate that what the defendant did was as immediate and as dangerous as “falsely shouting fire in a theater.” That is a heavy burden to meet.

[…]In 1971, Solicitor General Erwin Griswold asked the Supreme Court to bar publication of the Pentagon Papers because it would cause a “grave and immediate danger to the security of the United States.” Twenty-eight years later, he reversed his position in an op-ed piece in this paper. “I have never seen any trace of a threat to the national security from the publication” of the Pentagon Papers, Griswold wrote. Moreover, he expressed the view that “there is very rarely any real risk to current national security from the publication of facts relating to transactions in the past, even the fairly recent past.” 

What took 28 years to happen with the Pentagon Papers is already happening with the WikiLeaks cables. Although the State Department is of the opinion that Assange’s leaks have done serious damage to our national security – Secretary of State Hillary Rodham Clinton has called them “an attack on America” responsible for “endangering innocent people” and “sabotaging the peaceful relations between nations” – Defense Secretary Robert M. Gates, a savvy Washington veteran, has expressed a different view.

“I’ve heard the impact of these releases on our foreign policy described as a meltdown, as a game-changer and so on,” Gates told reporters at the Pentagon last week. “I think those descriptions are fairly significantly overwrought. . . . Is this embarrassing? Yes. Is it awkward? Yes. Consequences for U.S. foreign policy? I think fairly modest.”

If Assange is ultimately charged with disclosing information that is potentially damaging to national security, Eric Holder now knows who Assange will call as his first witness: the secretary of defense.

****

I do not have much to add beyond the articles quoted above. Suffice it to say that I believe that Wikileaks is playing an invaluable role in improving the world. Anything that acts as a counter-force against State secrecy is a good thing.

There are not many heroes in our era. Julian Assange is one of those rare few.

If you think similarly, or feel strongly about issues like censorship and free speech and government openness, I think it is imperative that you support Wikileaks by donating to them. Here’s the link.

Gary Johnson

I often write about politicians running for office but I am rarely really excited about any of them. (When I say really excited, I mean excited enough to donate serious money, and passionately hope, and perhaps volunteer, and do everything else I can to help them win.)

A little clarification here: I am talking of serious politicians here, not someone who is eloquent and thoughtful but with no political skills or chance of winning.

With that prologue, let me talk of Gary Johnson.

He is a serious politician. He was twice elected governor of New Mexico where he, by all accounts, did an excellent job and still enjoys remarkable popularity in that state. He is a republican in the Ron Paul libertarian mould, only much better, for unlike Paul, he is also pro-immigration and pro-choice. He is as libertarian as a mainstream American politician can get.

According to insiders, he is  running for President in 2012.

Now, I am a guy who knows both probabilities and American politics very well — I won about $500 over the last few months betting on various outcomes of the midterm elections on the futures market site Intrade — and Gary Johnson, plainly speaking, is very very unlikely to win. But yet his win, while very very unlikely, is not so unlikely as to not excite me. And besides, the thought of him winning even one primary, and possibly being on a nationally televised debate with the rest of the lot excites me. I mean really, really excites me.

Here’s a very nice profile of Gary Johnson at the New Republic.

An excerpt from the article linked above:

Ask about church, and he says he doesn’t go. “Do you believe in Jesus?” I ask. “I believe he lived,” he replies with a smile. Ask about shifts in position, and he owns up to one. “I changed my mind on the death penalty,” he tells me. “Naïvely, I really didn’t think the government made mistakes.” Ask about his voting history, and he volunteers (without regrets) that he cast his first presidential ballot for George McGovern (“because of the war”). Ask about his longstanding support for marijuana legalization, and he recalls the joy of his pot-smoking days. “I never exhaled,” he says. (An avid athlete, Johnson forswore marijuana and alcohol decades ago when he realized they were hurting his ski times and rock-climbing ability.)

Marco Rubio: The Obama of the right?

Whatever you think about Obama — and he is not very popular these days — the fact remains that he is one of the most talented politicians of our age. At his best, he gives a heck of a speech, he is undoubtedly intelligent and thoughtful, and while I disagree with most of his policies, he did inspire a lot of hope and passion during his amazing  — and succesful — campaign for the Presidency two years ago.

When I see Marco Rubio, I see the same qualities that Obama has — charisma, charm, a great personal story, and an excellent speaker. He is the star of this mid-term election. He will be a senator in 5 days. And I believe he will become President within the next ten years. Mark my words.