Weekend Reading

Can Liberals Take Their Own Side in an Argument? (PDF) Robert Talisse takes on Robert Frost and Mozert v. Hawkins.

Epistemic dependence is unavoidable because every individual has limited
cognitive resources. However, this dependence in itself is not a bad
thing; great stores of knowledge and information that could not be produced
by a single person are available to us precisely because of the division
of epistemic labor that epistemic dependence necessitates. Nonetheless,

Epistemic dependence is unavoidable because every individual has limited cognitive resources. However, this dependence in itself is not a bad thing; great stores of knowledge and information that could not be produced by a single person are available to us precisely because of the division of epistemic labor that epistemic dependence necessitates. Nonetheless, epistemic dependence is risky, because one may defer to the wrong persons to the wrong extent and so become vulnerable to developing beliefs and epistemic habits that engender and sustain falsehood. The risks associated with having false beliefs are both prudential and moral: They are prudential insofar as false beliefs frustrate one’s deliberations about means; they are moral insofar as they can lead one to adopt immoral ends.

In light of the risks associated with unavoidable epistemic dependence and our strong interest in getting moral matters right and avoiding moral error, we should agree that those social institutions are best which tend to minimize the risks of dependence while maximizing the benefits of the epistemic division of labor.

Arthur Koestler and his Century: Louis Menand reviews Koestler: The Literary and Political Odyssey of a Twentieth-Century Skeptic by Michael Scammell.

In 1976, he published “The Thirteenth Tribe,” a book purporting to prove that Ashkenazi Jews are descendants of eighth-century converts, the Khazars, who immigrated to Europe from the Caucasus. The book was a best-seller in the United States. Koestler, who was Jewish, claimed that his argument refuted anti-Semitism by showing that European Jews were not related to the Jews whom some anti-Semites blame for the killing of Christ. But the book was popular with Arabs, since it implied that European Jews settling in Israel were returning to the wrong homeland, and with neo-Nazis, since it suggested that Diaspora Jews constituted a pseudo nation constructed on a racial myth, and that Jews should either immigrate to Israel or assimilate—which is, in fact, what Koestler himself believed.

Breakdown in the Academy: Peter Berkowitz reviews The Marketplace of Ideas: Reform and Resistance in the American University by Louis Menand.

As Menand sees it, one big problem, or one big cause of problems, in America’s vast empire of advanced education…  is that faculty are too conservative. He does not mean that professors are conservative in the partisan political sense — he cites data that demonstrate that a substantial majority of today’s professors are left of center — but rather in the professional sense that they seek to preserve their discipline’s established ways and in the vulgar sense that they selfishly seek to protect their entrenched privilege. While eager to impose dramatic reforms on the rest of society, professors, he argues, demonstrate a decided preference for maintaining the status quo inside the university.

Climate Rules Set from the Top Are Not Enough: Spiegel Online interviews Elinor Ostrom.

Ostrom: Successful communities often have a few common design principles — monitoring and sanctioning of the participants, for example. They also have conflict resolution mechanisms in place and the people have some authority to make their own rules. Under those circumstances humans can develop some trust in each other — faith that if they take a costly action that benefits everybody in the long run, others will also invest.

SPIEGEL ONLINE: Why is it less effective if governments establish strict rules from the top down?

Ostrom: Because people will not identify with it. My research has shown that forests managed by local communities are in a far better state than state-run parks, where locals feel left out and officials can be bribed. Let us imagine, we live in a village and have all agreed that none of us is going to be in the forest on Saturday or Sunday, so that we can give the forest time to recreate. If I then see you in the forest when you’re not supposed to be, I will probably yell at you. If only the state is in charge, I will just walk on past.

SPIEGEL ONLINE: In other words, an anti-corruption task force — like the one that exists in Indonesia — might be the best environmental protection agency?

Ostrom: Absolutely! If you look at the role corruption plays in giving away forests to big corporations and in looking away if forest protection rules are broken, you will see that bribery is one of the main contributors to environmental destruction.

If Only Tiger Were a Socialist:

Tiger Woods is the reason Americans cannot get universal health care. Allegorically speaking.

Getting Prison Reform Right

There’s a great little article about prison growth and reform over at Slate. Fordham Law Professor John Pfaff notes that prison populations in the United States have grown unsustainably large, and suggests that this recession is a good time to reconsider our illusions about the causes of that growth. He then goes on to debunk five myths of prison reformers:

1. Long sentences drive prison population growth.

The median time served is and has remained 2 years for several decades. People don’t go to prison for longer, rather, we’re putting more people in prison, such that victims of those absurd three-strikes rules or of mandated sentences are balanced by the number of people serving short stints. Surprise: prison growth is driven by prison admissions! That said, Pfaff doesn’t really address the prison/jail distinction in this statistic: how many people would have served smaller sentences in county jails but are now being sent to state prisons because of sentence enhancements, felony inflation, and ‘predatory felon’ rules that target those with prior convictions?

2. Low-level drug offenders drive prison population growth.

Only 20% of the inmate population is made up of drug offenders, “compared with 50 percent for violent crimes and 20 percent for property offenses; most of the drug offenders are in prison for distribution, not possession.” That said, drug crimes do play a role in increasing sentencing down the road, when a person convicted of a minor drug offence receives a sentence enhancement for future crimes. Even still, 300,000 people in prison for drugs alone is a lot. 

3. Technical parole and probation violations drive prison population growth

Some people argue that increased drug testing and location monitoring of parolees leads to increased re-incarceration, but apparently there’s no statistical evidence of this. It may not be contributing to prison overcrowding, but it remains a highly intrusive form of state surveillance. In some instances (house arrest with a GPS locator, regular drug tests, and a job requirement) it’s not clear why we should exclude parolees from the overall population of the imprisoned.

4. In the past three decades, we’ve newly diverged from the rest of the world on punishment.

Pfaff’s argument here is very strange: I almost devoted my entire post to it. He shows that we’ve always been much more punitive than our European cousins, which is no news to anyone who’s ever read Tocqueville: our nation’s commitment to individuality has a heavy social conformity componennt that underwrites a political competition over harshness towards criminality. Ok, fine.

Then Pfaff goes on to make the following argument, for no discernable “debunking” reason. Many statistics on prisons date from the 60s and 70s, and in these we have a tended to chart a steady increase in prison populations. However, over a longer time span the prison + mental institution incarceration rates have been flat compared to population growth, and thus it makes the most sense to see the statistics focusing just on prison populations from the 60s and 70s as a historical aberration. We had just gone through a massive de-incarceration of non-voluntary admissions to mental hospitals in the 60s and 70s, and since then the modern prison has been taking up the slack left by the insane asylum since the 1950s.

Foucaultians take note: the shift in institionalization from the mental hospital to the prison is apparently a matter of managing the unemployed, the aberrant, and the transgressive, just as the shift from the work house to the mental hospital was. 

5. The incarceration boom has had no effect on crime levels.

Pfaff notes the difficulties in finding correlations between crime and incarceration, but then cites Stephen Levitt’s (of Freakonomics fame) statistics suggesting that increased incarcertation reduced crime in the 90s by 30%. The argument assumes that criminals are a fairly stable subset of the population that will be either acting out their criminal tendencies or waiting in prison to be released. Catching and incarcerating that subset of the population is the best form of law enforcement. This is the same study that attributes 25-30% of the decline in crime rates to the legalization of abortion, because eliminating unwanted children, who often become future criminals is even better than catching and incarcerating them.

Yet Levitt also found that 10-25% of the 90s’ decline in crime was due to burgeoning police forces. I like reading Freakonomics, but I’m not sure he’s got the cross-polination of causes right, yet. Doesn’t increased policing lead to increased incarceration?

More controversially, perhaps employing police officers and incarcerating potential criminals work on the same vector. Both law breaking and employment in law enforcement offer opportunities for respect on the basis of the threat and effectuation of violence: might they not draw from the same class of potential criminals? That’s a pretty offensive speculation, but it’s the kind of thing that Levitt’s drive to uncanny explanatory economics really encourages. I’m waiting for confirmation on the initial statistic that incarceration reduces crime from someone with less self-promotional goals.


Pfaff thinks we need to start shifting resources from prisons to policing, which is a version of the famous argument that a certain punishment is better than a harsh one. At the same time, he thinks we need to stop meting out any punishments at all for minor infractions, whether or not they’re drug related. When it comes to drug policy, he thinks we need to switch our focus away from decriminalization and towards eliminating mandatory minimums, three-strikes rules, and ‘predatory felon’ enhancements. All fair advice from an expert in his field, yet there’s a lurking fallacy:  Pfaff ignores the symbiotic relationship between police and prisons in his assessment. How can increased policing be effective if they’re not catching and convicting criminals? Something’s got to give: an unenforced drug law is no drug law at all, so why not decriminalze the problem? The alternative is to eliminate prison sentencing for minor violent and property crimes, which doesn’t make much sense.

Here’s the real lesson to draw from these (partly) debunked myths. Prisons are growing because we’re sending more people to prison.  We’re sending more people to prison because our larger police forces are enforcing laws against drug possession and traficking, as well as catching and convicting more violent criminals and property criminals than they used to. At the same time, the costs of recidivism are rising just as the rates of recidivism increase. We’re incarcerating people with prior convictions for longer, and imposing greater burdens to privacy, dignity, and human flourishing on paroled and released convicts.

As if that weren’t bad enough, we’ve got a structural problem:  at any one time, 1% of our population is in jail or prison, and that’s exactly the same ratio that we incarcerated in the halcyon 1950s, only we’ve replaced the treatment model with the retribution model. Our national culture will accept any excuse to incarcerate, whether it be madness, addiction, or violence. We justify this through explicit appeals to revenge and an implicit claim about safety and prevention that has little basis in fact. We trade prevention for retribution, and we get 60% recidivism rates. We want “safe streets,” but we get them at the cost of dangerous prisons. We want good guys, bad guys, and clear moral lines between them, but instead we make perpetrators into victims of a larger injustice.

I’ve long championed reinstating Pell Grants for prisoners so that they can leave prison with a leg up on higher education. The liberal arts are the techniques of freedom, and we ought to be giving prisoners access to both those techniques and the credentials of achievement. No one wants to devote educational resources to prisoners when they could be going to the ‘deserving poor,’ but studies show that the savings on the incarceration costs of recidivism are more than double expenditures for books and teachers. Prison guards cost more than literature professors, you know? This isn’t about dividing the pie amongst more worthy and less worthy causes: this is a move that will grow the pie.

Pre-9/11 FISA Violations and Retroactive Telecom Immunity

I’ve not seen much mention of one of the most important complaints about the FISA reauthorization: the claim made by Joseph P. Nacchio and Qwest Communication International that the Bush administration sought the power to engage in warrantless wiretapping in February of 2001, seven months before the events of Semptember 11th and the Authorization for Use of Military Force against Terrorists of September 18th. Of import to Barack Obama’s supporters (Mccain having skipped the vote) are Cass Sunstein’s deliberations on the matter, because he was reputedly a key sounding board for Obama as he decided how to vote. Sunstein, and eventually Obama, too, assumed that the FISA violations occurred after the the sweepingly broad legislation was passed authorizing President Bush to use military force, and presumably military intelligence,

to deter and prevent acts of international terrorism against the United States.

Thus, the legal question facing telecoms as they decided whether to help the administation spy on Americans was believed by many, including key legislators, to be a question of resolving a potential conflict between an old statute, the Foreign Intelligence Surveillance Act, and a new and remarkably urgent statute authorizing war-in-practice-but-not-in-name, i.e. military force.

In that case, there would have been a genuine question for the telcos about what the right thing to do was: the right legal thing to do, and, despite the outrage, the right moral thing to do, since it’s implicitly immoral to retreat to legal abstractions when your countrymen are being attacked. If the question is merely post-9/11 and post-AUMF violations of FISA, it’s not clearcut, and the grant of immunity largely appears to respect the deeply ambiguous moral and legal choice the telcos made, and, moreover, were forced to make without vetting the question publicly or bringing in external legal counsel due to the supposed ‘security’ concerns.

However, if the claims made by Nacchio and Qwest are true, then the Bush administration was building an extrajudicial wiretapping program almost from the moment it got into office, and with no specific legislation that even suggested the possibility of overriding FISA. That would be a case of more serious malfeasance, and it’s one that we might want to investigate further. Yet it’s hard to see how telecom immunity will assist that investigative goal. It’s one thing to say that we ought not to scapegoat the telecoms through civil liability for the executive’s crimes, but it would be nice to see the results of discovery in all those civil suits, which would presumably involve letters, memoranda of understanding, and minutes from meetings in which administration officials applied pressure to the telecoms to persuade them to break the law, without a terror attack on the horizon or any instigation but the 2000 election’s heavily contested change of regime.

What does it take for the massive federal bureaucracy to shift from a shaky mandate to the theory of the unified executive in so little time? What does it take to get massively cautious and litigation-shy telecommunication companies to sign on? What deals were struck? Who participated? Undoubtedly, these questions will loom larger when President Bush steps down and becomes the proper study of historians rather than journalists and bloggers. I’m sure American democracy will survive our brief flirtation with the Feurher principle. But as many people have pointed out, Congress declined to challenge the executive branch’s role in wiretapping with the new bill. In the process, they opening up major new loopholes for warrantless surveillance. Here’s the breakdown of changes, from Ketchup and Caviar:

  1. It Eliminates the requirement that there be probable cause that a foreign target is a suspect of any kind — terrorist, criminal, ore “foreign agent.” They merely need be your French grandmother, as long as they are outside the United States and not a U.S. person, and if the government says wiretapping them is for the purpose of collecting “foreign intelligence information” (e.g., her Pommes Frites recipe)
  2. It requires the cooperation of telecoms in these efforts
  3. It eliminates of the need to specify a particular email address or phone number to be wiretapped
  4. 1-3 together imply that certifications of wiretapping on individuals is not the issue. The point is to use telecom cooperation to target large collections of data on communications between U.S. Persons and foreigners. This implies data mining — where, for instance, because a foreign target has communications passing through a given domestic switch, any communications (domestic or international) passing through that switch are subject to collection, analysis, and storage.  There are “minimization requirements” meant to ameliorate this, but it is unclear if they really help.
  5. The compromise of domestic communications in (4) is exacerbated by the fact that targets need only be “reasonably believed” to be outside the U.S.
  6. It includes only minimal court oversight — who it is that is subject to warrantless wiretapping will not be know to the FISA court; the government can wiretap before it court order is sought and continue to do so even if it is denied — during a lengthy appeal process.

The effects of withdrawal and Iranian covert operations

Two recent “Intelligence Briefs” from PINR caught my eye: “Iran’s Covert Operations in Iraq,” and “The Implications of Strategic Withdrawal from Iraq.” As some readers know, I’m a big fan of PINR for supplying ‘open source intelligence,’ which is to say, generalized insights into foreign policy and educated guesses based on publicly available information. In these two pieces, they advance the argument that Iran is quite likely involved in supporting pro-Iranian groups and in trying to prevent the spread of violence eastward. Their goal in Iraq is simply to avoid a repeat of the 1980-1988 Iran-Iraq war, which was expensive, destructive, and deadly. This means they are pursuing the eventual victory of a pro-Iranian, anti-Saudi Arabian regime in Baghdad.

PINR is only willing to say that Iran is playing a role in the country, not to accuse them of supplying particular groups or particular weapons. Those are beyond their ‘open-source’ capacities. The point is that:

“Iran is likely supporting the various friendly Shi’a groups in Iraq. Most Iraqi Shi’a factions — such as S.C.I.R.I. and Moqtada al-Sadr’s group — are probably accepting assistance from Iran since, even if they wish to remain independent of Tehran, they are willing to accept assistance at least until they gain power. Other Shi’a groups — such as S.C.I.R.I., which runs the Badr Corps/Brigade — spent years in exile in Iran when Saddam Hussein’s Ba’athist establishment was in power. Iran’s goal is to have one of these actors take and maintain power in Iraq, so that it can eliminate what has traditionally been a hostile Sunni Arab state.”

The second report is the truly interesting one. In the US, we’ve gotten so bogged down in questions of cowardice and bravery that we’ve stopped evaluating the goals of the continued occupation. Given the increasing likelihood of a strategic withdrawal, those interested in foreign policy must begin to evaluate the opportunities the region will supply without such a strong American presence. It’s not the WWII model, with complete capitulation and a long occupation: victory and defeat are rarely as absolute as we’ve begun to think of them. Instead, we’ll continue to attempt to balance Iranian influence in the region while furthering American interests in the oil available there. We can continue to do that from the safety of Saudi Arabia or Kuwait.

“The bottom line is that withdrawing the majority of U.S. forces from Iraq will not necessarily be a disaster for U.S. interests. The failure to achieve the original mission in Iraq has already occurred, and the United States has already suffered a significant loss of its interests. Withdrawing troops from the country may not make matters much worse. Instead, upon withdrawal the United States can begin to pursue operations more in line with its capabilities, using technology to eliminate potential Islamist threats and using its overt and covert elements to work toward a stable government in Baghdad.”

So long as we remain the occupying power, it will be impossible to differentiate freedom fighters from terrorists. When we leave, the only militants remaining will be sectarians and the hard-core jihadists. Nor will this spell an immediate victory for Iran… in truth, we may benefit Iranian interests more by remaining than by leaving, since we are distracted and bleeding capital, while they can sit back and manipulate events from relative safety.

The question PINR resolutely resists asking and answering is whether its ethical to leave Iraq now that we’ve destroyed the regime. I don’t relish the kind of ethnic cleansing and we may see; on the other hand, we don’t seem able to stop it and it continues even today, with almost 150,000 American troops caught up in the conflict. I hold out a little hope of a partition-type solution, but until there’s a Commander-in-Chief in office who’s willing to consider that possibility, the options are stay and perpetuate the violence or go and observe it from afar. In such a situation, it’s clear our responsibility is to reduce the solidarity that militants are currently experiencing against the invading Western power. It’s always possible they’ll settle on a political solution themselves.

Jurisprudence and Governmentality

So the 1936 case, US v. Curtiss-Wright Corp, contains some real gems of fascist legal philosophy sewn amongst highly turgid references to other decisions and statutes. It helps to understand the current battle over the unified executive doctrine, however, so we’re stuck wading through Sutherland’s poorly-reasoned and poorly-written prose.

“Rulers come and go; governments end and forms of government change; but sovereignty survives. A political society cannot endure without a supreme will somewhere. Sovereignty is never held in suspense. When, therefore, the external sovereignty of Great Britain in respect of the colonies ceased, it immediately passed to the Union.”

This is the problem of governmentality in a nutshell. As much as we would like sovereignty to inhere in the people, or to credit the dissolution of social contracts, there are those like Carl Schmitt or Justice Sutherland who ascribe sovereignty with the immortal metaphysical baggage of the Catholic soul. Yet this is also absurd: the Declaration’s authors had no authority to sever their allegiance to King George except what they gained from their power to represent the people. Moreover, that popular representation only gained validity after the conclusion of the Revolutionary War: had we lost to the Red Coats, we would say that the Declaration of Independence had no more validity than the imperial proclamations of Emperor Norton.

At one point, Sutherland cites the Preamble’s “…in order to form a more perfect union…” as proof that the unified states were merely perfecting the Articles of Confederation, which merely elaborated on the Declaration. By this argument, the states were never several or self-sufficient, and never had any hope of going it alone, legally. Yet he skips over the crucial first words: “We, the People of the United States, in order to form….” I can’t imagine a more spurious line of argument, mixing bad textualism with bad political theology.

Of course, this part of Curtiss-Wright may well be taken for dicta… not the Justice speaking as arbiter of the law regarding the substantial holding, but simply describing some personal opinions which have no bearing on the case. Perhaps this is true. But he follows it up with a paragraph that still counts as good law:

“Congressional legislation… must often accord to the President a degree of discretion and freedom from statutory restriction [in foreign matters] which would not be admissible were domestic affairs alone involved. Moreover, he, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries, and especially is this true in time of war. He has his confidential sources of information. He has his agents in the form of diplomatic, consular and other officials. Secrecy in respect of information gathered by them may be highly necessary, and the premature disclosure of it productive of harmful results.”

This is what is going trip up Feingold’s resolution, I suspect. This is not a legal question, his bipartisan opponents will argue, but a practical one. Only the Executive has the necessary knowledge of matters of national security, and, echoing Schmitt: “The sovereign is he who decides on the exception.” In this way, the President’s supporters seek to sidestep the legal question. He cannot give up the power to torture, or to surveil the nation’s enemies, both foreign and domestic, since this would be to abrogate his duties as Commander-in Chief. Overzealously? Perhaps… but not censure-worthy.

Yet by acting against the explicit will of the legislator, as he does on matters of torture and domestic surveillance, the executive finds “his power is at its lowest ebb.” This was the pronouncement of Justice Jackson in Youngstown Co. V. Sawyer. He goes on to argue that powers delegated to the President as C-in-C ought notto be universally “advanced as support for any presidential action, internal or external, involving use of force, the idea being that it vests power to do anything, anywhere, that can be done with an army or navy.”

Jackson goes on to say:

“No doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation’s armed forces to some foreign venture.”

Thank you! What better expression of the problem of an executive whose decisions could potentially arrogate infinite sovereignty to himself and his deputies? This is the problem par excellence. Sadly, it comes as a concurring opinion in a long line of concurrences… as easily ignored as Sutherland’s zany ramblings about George III and the monarchy of FDR.

As others have pointed out, it would be difficult to bring a lawsuit against the Executive anyhow. With the NSA wiretapping, no one could be shown to have suffered an injury, and with torture… well, those people don’t generally get out alive. This is the problem of indefinite detention decided for the government in Hamdi v. Rumsfeld:

“If the Government does not consider this unconventional war won for two generations, and if it maintains during that time that Hamdi might, if released, rejoin forces fighting against the United States, then the position it has taken throughout the litigation of this case suggests that Hamdi’s detention could last for the rest of his life.”

We’re left with shaky checks on the madness of our own Kings, George or otherwise.