“Silly” Arguments Against Hate Crime Laws?

Responding to what I take to include my criticisms of laws defining “hate crimes” against the homeless, Ordinary Gentleman Will writes:

Obviously, intent matters. If someone is attacking people of a particular religious, ethnic or sexual orientation in an effort to harass, provoke or intimidate members of said group, it may be a good idea to assess additional punishment, particularly if a history of animosity and violence is involved. There may be practical reasons not to take this approach – federalizing enforcement is frequently ineffective; racial and religious animosity has subsided in recent decades – but it seems to me that special conditions can justify special enforcement strategies.

Remember that motivation isn’t the issue here – intent is. Attacking a black person to coerce or intimidate other black people is materially worse than randomly assaulting some unfortunate passerby. The later is aimed at only one person; the former targets a (potentially vulnerable) community.

I’m not sure that I can explain myself without getting rather deep into the philosophical weeds, but this seems importantly mistaken. In short, the reason that doing violence or otherwise committing crimes “in an effort to harass, provoke or intimidate” is certainly more serious, and possibly deserving of more serious punishment, than doing the same violence or committing the same crimes without such ends in mind, is that the former behaviors constitute different actions than the latter, in much the same way that waterboarding a CIA agent as a part of SERE training isn’t an act of torture while doing the very same thing to an unwilling al Qaeda member clearly can be. True, attacking someone as a means to coerce or intimidate or – perhaps – harass or provoke is reasonably regarded as a more serious crime than “mere” random assault, and it doesn’t seem inappropriate to include within the law a category that defines it as such; we do just this sort of thing, after all, in differentiating murder from manslaughter. But obviously it shouldn’t matter at all whether such a behavior was gone in for as a consequence of hatred for some vulnerable group rather than, say, some other sociopathic tendency or perhaps the desire to draw attention to some political cause.

Hate crime laws have got, in other words, everything to do with “motivation” rather than “intent”: just as it’s possible to intimidate or attempt to sow severe unrest on the grounds of something other than hate, so someone who attacks a homeless person because he hates or resents his homelessness clearly need not have in mind any of the wider goals that Will alludes to. And it’s those goals, rather than the particular sorts of subjective affections that motivate them, that are relevant to the determination of the seriousness of a crime.

Filed under: government/law, morality, philosophy

Torture and Bad Faith, ctd.

A lengthy e-mail exchange with a reader who took issue with the tone of this post and some others made it clear to me that I ought to state my position on the relevant issues a bit more clearly (and calmly). In no particular order, then:

(1) I do think it’s possible for people of good faith to have reasonable disagreements over whether the legal advice provided in the OLC memos could have been offered in good faith, and indeed over whether it was as shoddy as many have claimed.

(2) I also think it’s similarly possible for such people to have such disagreements over whether the specific tactics approved in those memos, carried out as the memos stipulated, constituted torture. The same does not go, though, for the question of whether the tactics constituted cruel, inhumane, or degrading treatment, at least in the moral sense – it may be, though I would be surprised to find out, that these latter terms have a much narrower definition under the relevant national and international laws.

(3) I find it much harder, though, to think that there can be reasonable and good-faith disagreements over whether the sorts of tactics that the OLC memos approved were ones that would have a tendency to encourage torture and otherwise abusive and illegal behaviors down the line. There perhaps can, however, be some such disagreements over whether the right response to this tendency would be an outright banning of the tactics in question (which is my position), as opposed to the imposition of careful oversight of and clear legal consequences for those who were employing them.

(4) I absolutely don’t think it’s possible for people of good faith to have reasonable disagreements over whether what was in fact done by agents of the US government to significant numbers of detainees amounted to torture. It was really this point that I was driving at in the post in question, where I was trying to argue for the disjunction: either you have looked at the accounts of what we did and concluded it wasn’t torture, in which case you’re arguing in bad faith; or you’ve ignored the accounts, in which case your ignorance is culpable. Or, of course, you may have looked at the accounts and concluded that we did torture, in which case nothing short of head-splitting outrage is appropriate. And it’s only against the background of such outrage, I was further suggesting, that debates about the niceties of (1)-(3) above and (4)-(6) below can seriously be carried out, as opposed to functioning – as I think they often do – as attempts to keep people distracted from the underlying moral horrors.

(5) Granting (4), and granting the systematic and widespread nature of the abuses that have been revealed, I find it very hard to see how people of good faith can reasonably believe that responsibility for those abuses lies only with low-level agents and officers; it seems clear that a broader policy of torture was coordinated, even if – as seems unlikely to me, but see (1) and (2) above – the OLC memos weren’t intended to provide legal cover for it.

(6) Granting (5), I find it similarly hard to see how there can be reasonable and good-faith disagreements over whether there should be an investigation aimed at uncovering the relevant sources of authority and then punishing them as the law permits. And just as the Nuremburg Defense does not exempt the torturers themselves for responsibility from what they did, so appeals to legal cover or the circumstances they face does not exempt those who gave or ordered the giving of the orders.

(7) I do, however, think it is possible for there to be such disagreements over exactly what form such an investigation should take: whether a special prosecutor, or a truth commission, or a congressional committee, etc. The truth needs to be uncovered and the responsible parties prosecuted, but not without unnecessarily destroying innocent reputations or careers along the way.

Finally: It’s worth emphasizing that, as Mark Thompson has movingly written, all of this is about love for this country, and not – as so many have absurdly suggested – any sort of “hatred” for it. While I wouldn’t style myself an exceptionalist in the vein that Mark describes, it remains that I’m an American, and have as such a great love for this country. And it is precisely this love that leaves me so sickened by what we have done, and so committed to bringing to justice those who have committed such evil in our name. Sometimes it’s only by really, truly hating the sin that one can really, truly love the sinner.

* Edited to insert the new point (3) above – JS.

Filed under: government/law, morality, patriotism, torture

Condi Rice on Torture

First, from her infamous remarks at Stanford last (?) week:

… by definition, if it was authorized by the president, it did not violate our obligations under the Convention Against Torture.

Next up, from a Q-and-A with some elementary schoolers over the weekend:

… the president was only willing to authorize policies that were legal in order to protect the country.

I’m trying to think of a philosopher’s stock example that shares this structure, but so far I’m stumped. Any takers?

Filed under: government/law, torture

Fairness Claims vs. Justice Claims vs. Immigration Policy

by JL Wall

Last week, a Northwestern University Police Department officer pulled over a man on suspicion of drunk driving; in the process of trying to identify him, it came out that he was in the United States illegally. So they turned him over to the proper federal authorities for a deportation hearing. This has become a minor deal here, what with letters-to-the-editor and a march planned for tomorrow. This, of course, to be expected; immigration policy is hardly something every agrees with. In fact, the Evanston City Council disagrees with it so much that they’ve directed the Evanston Police Department not to engage in or cooperate with investigations into immigrant-status.

This resolution, of course, has been brought up. But since the City Council’s authority does not cover NUPD (which, apparently, is a real police force more than a campus-wide security-guard staff), it has to be a more “spirit of the law” kind of argument. And NUPD violated this spirit by failing to act “on a humane and just basis” by reporting an immigration violation – the phrase has become both an argument and a refrain. It’s not entirely the fault of certain students that they’re using that phrasing; it’s from the title of the City Council resolution.

Nevertheless, because of it, the entire outcry has been based in large part on a conflation of justice claims with fairness claims. Though the means of enforcing an immigration policy could theoretically be unjust, the fact of its enforcement is not. (And in this case, the means of enforcement appear pretty clearly not to have been “unjust.”) So long as we are presuming that a nation has the right to an immigration policy – that is, to control its own borders – then it follows that it has a right to enforce that policy. Those now claiming that justice was violated are attributing it not to any quota system, or border policy, or mass rounding up of illegal immigrants (this is the isolated case of a man initially booked for drunk driving) but that the law calls for its own enforcement – that there be some punishment (deportation) for violating it.

This is not unjust. You can make a case that this is unfair: “He came here for a better life,” etc., and I’m not without sympathy for that line of thought; my grandfather’s first language was Yiddish, after all. So it’s unfair: “He came here for a better life,” and, “He wasn’t harming anyone by being here,” (we’re ignoring the DUI for the moment). The fact that he was in violation of the law by being in this country was not disputed: unless it has become a violation of justice to enforce a law that is not inherently unjust, this is a fairness claim. It’s not fair that immigration restrictions should make it so difficult to immigrate to America, it’s not fair that those who come in search of a better life should have to live in fear of deportation even if they are present in violation of the law: but so long as a government has the right to control its borders and the right to enforce its own policies, it is not “unjust” to deport someone present in violation of the law. One may enter a country illegally and attempt to live a life there, though if caught, one may not complain that being punished for it is inherently unjust – it’s part of the bargain, as with any refusal to obey a law with which you don’t agree.

So some people think justice should always be fair and what’s fair should always be just. Big deal. But conflating the two terms leads to a confusion of what we’re talking about, and a degredation of the debate. If that which is unfair is unjust, then anyone who disagrees with your fairness claim is actively promoting injustice. Which is why words like “bigot” and “racist” and “profiling” have been flung around on campus in the past week, and why the group organizing that march I mentioned a little while back has decided to advertise with a Youtube video that comes dangerously close to making the claim that enforcing an immigration policy quickly leads to mass murder and genocide.

Finally, I just want to say: shouldn’t calls for those charged with upholding the laws to pick and choose which laws they feel like enforcing make us all pause and think pretty hard at this point in our history?

(A closing note: yes, there are certainly situations in which upholding and enforcing a law is unjust. But immigration policy and, say, the Fugitive Slave Act are not the same thing: only one of them treated certain members of humanity as no more than chattel.)

Filed under: government/law, immigration, morality

Arts Czars, Ctd.

by JL Wall

H.C. Johns at The Other Right details the complicated concern that would be the suggested “Arts Czar.”  I suppose that in the end the matter depends a good deal on what, exactly, this post would aim to do: merely more centrally coordinate present federal programs (not so unreasonable, when you think about it), or to be the Department of Agriculture of the “arts industry” (and yes, I shiver when I type that in a way I imagine is related to how Wendell Berry shivers when writing “agribusiness”).

In fact, that concern is probably of greater importance than whether we’d be running the risk of a Cabinet-level meltdown over whether we should be teaching Huckleberry Finn and The Catcher in the Rye (those arguments, at least, would have the virtue of amusing me — and it’s not like they don’t already happen elsewhere).  In short:

The second issue is the balance between things gained by a department level post, i.e. greater representation and organizational coherrence, and things lost, i.e. local autonomy, the risk of bureaucratic incompetence, monied interests coming to dominance, etc. To someone who follows the really atrocious behavior of the Department of Agriculture, those concerns must be the central question, particularly given the scale of the art market these days. (How many billion, exactly?) Though there is no art-world equivalent of Monsanto, its not out of the question that an art Czar could become a puppet organization for some concerns over others.

That is to say, I look at the risk of doing to the artistic aspect of culture what we’ve already done, more or less, to that aspect defined by place, and want to run away screaming.  Maybe I’m being less than rational in that, but nature abhors a monoculture, after all.

But if we’re looking purely at the arts, innovation and oftentimes what we’d define as “genius” are tied to the subversion of the established.  (Not that every great artist has been subversive, or the first to use a form, but this is the tension that keeps things alive.)  Such subversion  is, by nature, hard to do — and it should be.  But the arts, without such innovation and requisite subversion grow still.  And art, I’d propose, can’t stay still and stay alive.  If the model for such a post is anything like our cabinet-level Department of Agriculture, I think we’d likely see more power given to the established than there ought to be: more weapons, that is, with which to keep the arts standing more still than usual.  Not enough to kill art, of course, but possibly enough to harm it.

Setting all of those worries aside, I think the proposal (and even what I just wrote, then) very likely misses the forest for the trees.  Quincy Jones is worried because American schoolchildren don’t know much about their artistic and cultural history — that’s a valid concern.  But my school did all it could for me, and I’m still musically illiterate: two to three “music” classes a week from second through eighth grades, and all I learned was how to look like I could play the recorder and how to pass our notation quizzes without ever learning to read music.  I didn’t learn anything about music because I didn’t want to learn anything about music, and I can’t be the only one.  (In my defense, I’m furious at myself today for failing to learn anything back then.)  What I learned about art and music history first came in high school history, by the simple luck of having the same fantastic teacher freshman and senior years.  I pick things up from my friends (I have musically talented and literate friends who make me feel inferior by accident), and by reading.  But my school didn’t fail me; I failed to take advantage of what was presented.  And I was the nerdy one who actually sat still!

I imagine that not every school/school system even presents that much in the way of music, but the point is: even if you force the kids to sit through classes on music and music history from the time they’re able to read, that doesn’t mean that they’re going to listen.  I share with Mr. Jones a general overriding concern about cultural illiteracy, but I don’t think this proposal is in any way an actual solution to it.  Something more than just resources is needed, and it’s not a cabinet post or an Arts Czar.  I don’t have any solutions to offer, short of expelling every trace of vocationalism from education.  And that ain’t gonna happen anytime soon.

If we’re truly becoming more culturally illiterate, then that, in its way, has become part of our present-day culture and very much related to why it is such a difficult problem to do anything more than diagnose.  Culture — even just the arts — is too big to be wrestled into line by a government program.

Filed under: government/law, media/culture

Torture and Secrecy

Reflecting on Ross’s debut from his new perch at – yes, them again – First Things, my friend and former colleague James Poulos is at his best:

The issue is not whether torture is capable of producing results, or even the quality of those results. A million monkeys at a million waterboards will eventually produce a confessional masterpiece. Under existential threat, the argument about torture poses the question of whether to start, not when to finish. And the justification of the decision to start has been that this decision had been kept secret. For Cheney to defend his record, he must not only, like a Soloflex salesman, harp on ‘results’; he must defend the secrecy of the methods that obtained them. Secrecy was essential to results.

This reveals an uncomfortable but important truth about how our argument against our torture differs from ‘the’ argument ‘against torture’ — the ethical or theoretical argument. That latter argument can be resolved in reference to the suffering of the victim or the corruption of the perpetrator. Ours, on the other hand, is not. Even someone who justifies the suffering of our victims or the corruption of our perpetrators cannot yet be finished. They must defend the secrecy; in so doing, they must defend trusting the government of a free and equal people to violate the terms of that people’s law, custom, and mores on terms which only the government is to set and know.

Filed under: civil liberties, government/law, torture

Above the Government’s Pay-Grade

by JL Wall

“Secretary” or “Minister of Culture,” or “Arts Czar” (or Tsar, for good measure) — whatever you want to call it, this strikes me as an immensely bad idea. But it’s a complicated matter: the Sistine Chapel, after all, was Vatican-sponsored; Mozart a court composer; and Vergil’s patron none other than Augustus. (Aha! I hear you say, But the Medici family merely paid people to produce artwork for them, not to coordinate a nation’s attitude toward art itself!)

I will muse my way through this later, once I regain the ability to construct coherent paragraphs and worthwhile prose (worst, longest bout of writer’s block yet in my still-young life these past few weeks). Unless someone’s already beat me to it by then, that is. Until then, read the piece if it so interests you, but remember: Quincy Jones may be promoting a bad proposal, but his work with Sinatra earns him forgiveness for most (if not all) political sins.

Filed under: government/law, media/culture

Defining Torture Down

So surely Jonah Goldberg must be joking, right?

I would put it to [Jim Manzi] that if there is a burden of proof for defenders of these practices to define “what works” there is also a burden on those complaining of torture to define torture. Otherwise, “torture” becomes an abracadabra word that magically renders any method unacceptable or close to it. Many of the methods, though not all, that have been alleged fall far short of torture in my book.

Well, here’s one definition of torture. Here’s another. Here’s yet another. And here’s a Wikipedia roundup. These and similar definitions clearly have authority under U.S. law and have been employed by the U.S. in prosecuting war crimes in the past, and it was exactly these sorts of definitions that led the International Committee on the Red Cross (pdf) to conclude that “in many cases, the ill-treatment to which [detainees] were subjected while held in the CIA program, either singly or in combination, constituted torture”. The definitions employed by those “complaining of torture” are easily available to anyone with access to a search engine, and if Goldberg has been carrying around a special book according to whose contents things somehow turn out otherwise, it would certainly be helpful to all of us if he revealed what it says. Because it looks an awful lot like “torture” has become an abracadabra word that magically renders any method employed by the U.S. acceptable or close to it.

Update: And please see my friend Alex Massie, who makes a helpful comparison that I’d had in mind, as well.

Filed under: government/law, torture

Decentralisms of Convenience

Noting the various left-liberal criticisms of the recent push for states’ rights and even utterances of the s-word from the likes of Texas Gov. Rick Perry, Radley Balko recalls the days when the tables were turned:

For all the heat he’s taking, Texas Gov. Rick Perry might want to consult with MSNBC analyst and former West Wing writer and producer Lawrence O’Donnell, for example, who favorably used the word secede on the McLaughlin Group back in November of ‘04. O’Donnell helpfully pointed out that secession needn’t necessarily be violent, explaining that, “You can secede without firing a shot.”

Lefty pubs like Salon, the Nation, and the Stranger ran think pieces that called for (sometimes begrudgingly) a new debate over the benefits of more parochial control. A couple of lefty-penned op-eds in the New York Times also argued for decentralized control and weakening the federal government’s ability to influence local policy.

Alas, it was all rather short-lived. Nothing invigorates interest in federalism like losing a national election. And nothing smothers that interest like winning one.

Indeed, and it’s precisely for this reason that I haven’t had much to say about the various federalist, separatist, and generally Tenth Amendment-related stuff that readers have brought to my attention over the past few months. As Thomas Naylor put it when I interviewed him for my piece on separatist movements, the biggest threat to the push for secession in Vermont was the presidential campaign of Barack Obama: and on this point he was clearly right. By the same token, to the extent that much of this right-wing chatter about federalism and secession is ultimately in the service of electing the likes of Sarah Palin, it’s not at all clear to me why I should find it especially interesting or worthy of my support. A Great Untying sounds terrific to me; just give me a call when there’s someone who, you know, actually wants to do it.

Earlier: Secession linkage; Bill Kauffman secession linkage; Norman Mailer on federal authority.

Filed under: government/law, politics

“The President is focused on looking forward, that’s why.”

Hilzoy, FTW:

You know what? I’m focused on looking forward too. And as I gaze into my crystal ball, I see a world in which members of the executive branch take it for granted that they can do whatever they want with impunity. Why not break the law? Why not eavesdrop on Americans? Why not torture people? Why not detain citizens indefinitely without charges? Heck, why not impose martial law and make yourself dictator for life? There is nothing to stop the people who make these decisions. They have nothing to fear. Because once they’ve made them, their actions are back there, in the past that no one ever wants to look at.

I also see a world in which everyone takes it for granted that there are two kinds of people, as far as the law is concerned. If most people tried to make the case that prosecuting their criminal acts was just “looking backwards”, or a sign that the prosecutor was motivated by a desire for retribution, they’d be laughed out of court. Imagine the likely reaction if your average crack dealer were to urge the judge not to dwell on the past, or if someone who used accounting fraud to flip houses told offered a prosecutor the chance to be “very Mandelalike in the sense [of] saying let the past be the past and let us move into the future”, or if I were pulled over for speeding and, when asked if I knew how fast I was going, replied that “Some things in life need to be mysterious … Sometimes you need to just keep walking.” I don’t think any of us would get very far.

[…]

I do not want a world in which members of my government can break the law with impunity. I do not want a world in which some people are above the law. In a perfect world, we would not need to prosecute people to achieve these results. But the past eight years have shown us that we don’t live in that world.

UPDATE: From the Times:

… in response to questions from reporters in the Oval Office, [Obama] said, “if and when there needs to be a further accounting,” he hoped that Congress would examine ways to obtain one “in a bipartisan fashion,” from people who are independent and therefore can build credibility with the public.

Mr. Obama said once again that he does not favor prosecuting C.I.A. operatives who used interrogation techniques that he has since banned. But as for lawyers or others who drew up the former policies allowing such techniques, he said it would be up to his attorney general to decide what to do, adding, “I don’t want to prejudge that.”

On Monday, aides to Mr. Obama said they were not ruling out legal sanctions against the Bush lawyers who developed the legal basis for the use of the techniques.

But why just the lawyers, and not Bush, Cheney, Addington, et al themselves?

Filed under: government/law, torture