Saturday, April 20, 2013

The Volokh Conspiracy is not truly a "libertarian" blog [UPDATED!]

One of the first blogs I've ever started reading was the "Volokh Conspiracy."  It had, and probably still has, a reputation as a libertarian-oriented site whose authors are libertarian oriented lawyers and legal scholars.  It was my introduction to thoughtful libertarianism.  Indirectly, it was through VC that I stumbled upon the belated "Positive Liberty" blog, when Jon Rowe made a comment and I clicked on his url link.  From PL, it was only a few steps to the League of Ordinary Gentlemen.  The League is perhaps not a libertarian blog properly speaking, and some of the libertarian commenters have left (to the detriment of the comment-culture there), but I respectfully submit it's still a solid blog.

In other words, VC introduced me to libertarianism and blogging culture.  And so I kind of have a soft spot in my heart for it.

But its libertarian bona fides have never been absolute, and they're are now still less "bona" than before.  I offer two examples, one old, one recent.

The old example is Paul Cassell.  He has been an author there, albeit an infrequent one, for as long as I've been reading it and probably longer.  That intrepid defender of liberty devotes much of his legal scholarship to overturning Miranda rights and to support for the death penalty.  Maybe there are arguments to be made in the favor for both propositions, although I disagree with those arguments.  But I find it hard to call those propositions "libertarian" by most stretches of the imagination.

About the only "libertarian" line consistent with those propositions is that in order for a happy and free citizenry to enjoy the blessings of economic and civil liberty, that citizenry needs to have confidence that fraudsters and violent criminals shall be dealt with quickly and fairly.  And in fairness to Cassell, part of his argument against Miranda is that it can have poor consequences for the accused.  So, I'll give the law-and-order libertarian his due and just admit that I'm not sympathetic to his argument and confess I lack a j.d. degree.

The new example is Eugene Kontorovich.  He is a recent addition, and maybe he's been there for about a year.  One occasional topic is Israeli policy in the Palestinian territories.  This is such a fraught, emotional issue, that although I'm inclined to criticize his position, which strikes me as too dismissive of Palestinians' claims, I am also nevertheless inclined to admit that I don't follow the situation closely enough to know even most of the basic facts.  And I should admit the following as well.  That's a rough area of the world..  Israel is a liberal democracy, and it exists in an international situation of perpetual war or quasi-war, with some neighboring states observing official policies of eliminating Israel.  And the governing faction in part of the territories is also officially dedicated to eliminating Israel.  In light of those facts and the numerous difficulties, it's not so easy for me to determine whether the putative libertarian commentator is truly Scottish.

However, Mr. Kontorovich has just published a post about the recent tragedy in Boston that, unless he was being satirical or ironic, suggests a dangerous dismissiveness of the individual rights libertarians hold dear and a dangerous allocation of collective responsibility that ought to disturb anyone, liberal, conservative, or libertarian.  After discussing the citywide lockdown the police instituted to capture the suspect and after complaining (plausibly) that the lockdown has dangers of its own for civil liberties, he writes the following:
Yet such freakouts are nothing compared to what is in store if the the Marathon bombing means that Chechen jihadis has come to U.S. shores. The Chechens mounted one of the most vicious terror campaigns ever against Russia in the 1990s, blowing up apartment buildings, and launching massive attacks on theaters and even schools. They are known as among the most violent and dedicated terrorists in the world. They can be found fighting in Libya, Syria and every other major jihadi campaign. Though usually they have to sneak into the target countries, rather than coming on a visa as the Boston bombers apparently did.)

Russia only succeeded in suprresing the Chechen Islamists with extremely brutal tactics that would never find support in the U.S – essentially leveling the Chechen capital. Yet dealing with such a threat would also be impossible with a politically correct approach to counter-terror that, for example, turns away from talking frankly about the terrorists profiles and motives.

You see, if someone is Chechen, they are automatically suspect, perhaps especially because they are Islamists.  And even if most of us don't know anything about Chechnya, we all know "Islamists" are bad and dangerous.

What is the "politically correct approach to counter-terror"?  I suspect it requires such leftist approaches as assuming that people are innocent until proven guilty and that people haven't committed a crime until they have taken at least one overt act in furtherance of a crime.  On the other hand, Korematsu v. U.S. is still technically a valid legal opinion,* and recent innovations in dealing with people whom the president has named an "enemy combatant"--along with extra-judicial, extra-battlefield killings of U.S. citizens--has demonstrated that the "politically correct approach to counter-terror" doesn't have a lot of practical weight to it.

Perhaps Mr. Kontorovich will protest that when he mentions "terrorists['] profiles and motives" and the "talking frankly" about them, what he means is that law enforcement, in order to prevent crimes, has to develop schemas--"profiles"--of who is likely to be a criminal.  To a certain degree, I think that's reasonable.  If someone is acting suspiciously and if someone is part of a group [see update below] that is dedicated to violence or violent overthrow, then perhaps that is a sign that law enforcement can take proactive steps to prevent a future crime.  The issue is indeed messier than the snarkiness of my preceding paragraph might suggest.  And sometimes there are real tradeoffs between "security" and "liberty," and if one really values the latter, one needs to surrender a certain measure of security.

That's all easy for me to say.  I don't live in Boston, and neither I nor (to my knowledge) anyone I know has been the victim of a terrorist attack.  I have never even been the victim of so much as a mugging.  Who knows what position I might take if I had good reason to believe my security were threatened?  To be honest, I'm not positive I'd take the side of "more liberty."  For example, although I understand the concerns about TSA and "security theater," I don't personally find it onerous and I'm glad they're there, even though the concerns are more plausible than not.

But whatever the hypocrisies or resort to the idol of fear I might indulge in, I do suggest this:  these are not positions that a libertarian, qua libertarian, ought to permit.  They might be positions that a libertarian, qua imperfect human being, might be forgiven for assuming while afraid for her or his safety, but they are not consistent with what I understand libertarianism to be.  And a blog whose authors, even if they are in a minority, endorse these positions is not a truly libertarian blog.

UPDATE [4-21-13]:  By "group," I mean "organization" and not, for example, "ethnic group."  Even when used to mean "organization," special scrutiny for some "groups" raises legitimate first-amendment and freedom of assembly concerns.

UPDATE #2 [4-22-13]:  Here is the link to Mr. Kontorovich's blog post.

*A few years after the Iraq war, probably sometime in 2005, I was at a bar one evening hanging out with some friends.  We got to talking with one of the other bar patrons, who was a fairly robust supporter of the war and of other incidents to that war and the Afghanistan war.  The conversation eventually turned to Guantanamo and why he believed there was nothing wrong with the indefinite detentions.  His justifications (I paraphrase):  "We did the same thing to the Japanese during World War II."  It's hard to argue with that logic.

No comments: