Making Sense of The Torture Report

Richard Epstein*



Last week, Senator Dianne Feinstein, head of the Senate Select Committee on Intelligence, released to great fanfare, an exhaustive report, prepared solely by the Democratic members of her Committee, on the Central Intelligence Agency’s Detention and Interrogation Program, adopted in the aftermath of the 9/11 attacks on the United States. It is easy to criticize this report, as Republican Senators Mitch McConnell and Saxby Chambliss have done, on procedural grounds. It is even easier, perhaps, to denounce the report on substantive grounds, as was done recently by former Vice President Dick Cheney, who on Meet the Press offered a full-throated defense of CIA practices, saying “I would do it again in a minute.”

Unfortunately, when asked to give his defense of torture, he coolly changed the subject by referring only to the attack on 9/11 by al-Qaeda groups in ways that suggest that he had never read the report at all. Cheney totally failed to meet head on the damning charges in the report about the CIA program’s operation. Its core finding is that the various “enhanced interrogation techniques”—a polite euphemism for waterboarding, sleep deprivation, and various forms of beatings—contributed little useful, let alone unique, intelligence to the fight against al-Qaeda. The CIA interrogation efforts also probably had little or nothing to do with the eventual killing of Osama bin Laden.

There is a dispute as to just how much knowledge of these activities was, during the Bush years, passed on to members of the White House, the State Department, the Department of Justice, Congress, the media, and even the CIA’s own inspector general. Nothing in somewhat lame CIA Response can sugarcoat the major finding that during the critical years between 2002 and 2006, the CIA actively and improperly shielded its programs from outside scrutiny, in large measure because the field operatives knew that their interrogation tactics had not been authorized by any of the political branches nor by the CIA itself.

In making these observations, I should state that for some years I served as a member of the Constitution Project’s task force on Detainee Treatment. Some 20 months earlier, in April of 2013, we published an exhaustive report that came to essentially the same conclusion as the Senate report. The Detention Project was organized by Virginia Sloan, President of the Constitution Project, and the report itself was prepared by a large team of investigators, led by the energetic, capable, and extraordinarily thorough Neil A. Lewis.

In preparing that report, Lewis and his team did not have access to any classified information, but did engage in a massive amount of independent investigation, which included many interviews of key people involved in formulating and executing this policy. Its detailed recounting of the evidence left no doubt in my mind that the United States government did commit systematic acts of torture, which were contrary to this nation’s value structure, laws, and international treaty obligations. In my opinion, this is not a close case on which reasonable minds can differ.

Although our report has not had anything like the influence of the Senate report, it is free of the objections lodged against that report. Unlike the Senate report, our task force was balanced politically, and included a large number of people who did not have any axe to grind on the issue. Chaired by James Jones, a former U.S. Ambassador to Mexico, it included Asa Hutchinson, the newly elected governor of Arkansas, David Irvine, a retired brigadier general, Claudia Kennedy, a retired major general, Thomas Pickering, a former UN ambassador, William Sessions, a former head of the FBI, as well as academics David Gushee, Azizah al-Hibri, and Gerald Thomson.

In dealing with the combined impact of the two reports, it is important to stress that opposition to torture by American officials does not necessarily imply that the United States should take a passive stance in dealing with Al-Qaeda and its offshoot organizations. The Constitution Project’s Detainee Report bracketed any discussion whatsoever of other facets of the larger question of how best to deal with terrorist threats from any source. In dealing with those issues, I think that there is no contradiction between taking a strong stance against torture and maintaining a vigorous system of surveillance to detect and root out terrorist threats to the United States and its allies.

The real question here is on the effectiveness of the various techniques. From the outset, it should have been clear that the payoff from interrogation of high-value captives could only yield limited information of value, no matter how effectively conducted. It did not take much imagination for high-level al-Qaeda operatives to figure out which of their numbers were in the custody of the United States. The organization could therefore alter its various practices and protocols so as to depreciate the value of the information that these operatives possessed. The passage of time also degrades the value of any information that the detainees had about al-Qaeda plans or the whereabouts of its key operatives.

Indeed, the severe interrogation of these suspects therefore always carries the serious risk that even high-level targets do not possess any information of value. But it is all too easy to refuse to take these statements at face value and to continue the interrogation until the suspects make up stories that can actually mislead American intelligence officials. The constant cycle of ever more severe interrogation carries with it the seeds of its own destruction. It may well be wise to detain these subjects indefinitely so that they cannot rejoin the fray. But not to torture them.

The situation with electronic surveillance is exactly the opposite. We no longer need intelligence operatives to use horrific techniques to gain information of at most modest value. Surveillance involves, to be sure, some invasion of privacy, but those personal invasions are widespread and trivial in comparison to the focused harm from torture. In dealing with surveillance, moreover, it is necessary to face two sorts of issues. The first is whether the President has some “inherent” powers to order various kinds of electronic surveillance, without complying with the various legislative requirements, most notably the Foreign Intelligence Surveillance Act of 1978.

My view, well expressed in an open letter published in 2006 in the New York Review of Books, was and is, that the President does not have such authority, such that he should have sought Congressional approval before expanding his operations, which he could have gotten, at least in some form, in the aftermath of the 9/11 attacks. On this issue at least, there is some overlap between classical liberals and civil libertarians, in order to preserve our basic system of separation of powers.

The two groups may part company on the separate question of whether the Congress should give the President that authority. On this issue, I break with many civil libertarians, and have written in defense of the NSA. In my view, Congress should extend such powers to the President. Information from current intelligence sources is subject to none of the obvious objections that can be raised to intelligence obtained through torture. The information is current and subject to corroboration. Personal intrusions are small, and these can be contained by a policy that requires the NSA to store the information until it is needed, subject thereafter to a warrant requirement except in the few cases of bona fide necessity.

The balance between individual autonomy and national security is thus totally different in the two cases. The sensible government invests in areas that offer high return at low risk, and not in those that offer low return at high risk. In these cases, it is critical to stress, yet again, that the libertarian prohibition against force and fraud necessarily requires the government to take steps to deal with threats of force, as well as its actual use, when a response may well come too late.

That same attitude should influence how one thinks about engaging our enemies on the battlefield. Here too there is both an institutional and substantive issue. On the former, Congress has taken far too long to decide whether, and if so, how, to reauthorize the use of military force in light of the menace posed by ISIS. Yet by the same token, my own view is that the threats are so diffuse that a broader authorization is better than a weaker one, a position with which many disagree. But again, there is nothing inconsistent with taking the view that the United States should take strong positions in combat to avoid the uncertainties of drawn out engagements and a refusal to countenance the use of torture.

It is important to stake out this ground, moreover, because it affords an answer to many of those who have defended the CIA on the ground that it is easy to forget the anxiety and turmoil that came hard on the heels of 9/11.  Even putting aside former Vice President Cheney, the more moderate defenses of the CIA fall short. A recent op-ed in the Wall Street Journal by Louis Freeh takes just that line in accusing Senate Democrats of “9/11 amnesia.” Freeh begins by comparing 9/11 to Pearl Harbor, by noting that the Congressional Authorization of the Use of Military Force put the nation on a war footing.

But the comparison is surely wildly overdrawn, for Freeh neglects to mention that the scope of military operations in World War II was orders of magnitude larger than in the aftermath of 9/11. To be sure, it may ease some of the burden on the CIA to remind us that some, but by no means all, of its actions were approved by the President and the Justice Department. It is, indeed, an open question whether the public should be more discomfited by a rogue operation in the CIA or by one that received a qualified blessing from the President, Congress, and the Department of Justice. Both scenarios are bad, albeit in different ways.

In his larger effort to discredit the Democrats, Freeh’s effort fails. Times of crisis call for calm nerves and good judgment, not counterproductive activities. The bad news is that the initial detention program was a horrible mistake, and should be have been understood as such at the time. The good news is that the political forces for self-correction of that mistake long antedated the publication of both the Constitution Project and Senate reports, as the program was wound down in the last two years of the Bush administration (at the same time as the surge), and was formally put to rest in the early days of the Obama Administration. It will be hard to repair the past damage. But at least there is hope that this nation and its political leaders will learn from their past mistakes. 

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

The CIA and Its Torturers

Andrew P. Napolitano*



When the head of the CIA’s torture unit decided to destroy videotapes of his team’s horrific work, he unwittingly set in motion a series of events that led to the release this week of the most massive, detailed documentation of unlawful behavior by high-ranking government officials and intentional infliction of pain on noncombatants by the United States government since the Civil War era. Here is the backstory.

One of the reasons repeatedly stated by President George W. Bush for the American invasion of Iraq in 2003 was the maintenance of “torture rooms” by Saddam Hussein. While making this very argument, Bush was secretly authorizing CIA agents to engage in similar unlawful behavior for similar purposes: intelligence and deterrence. Bush sounded credible when he claimed that his administration adhered to federal and international legal standards.

He knew he could make that claim because the torturers were sworn to secrecy, as were their congressional regulators. The CIA charter permits Congress to regulate the CIA in secret. Congress has established two secret congressional committees, one from the Senate and one from the House, to serve as monitors and regulators of CIA activities. The stated reason for the secrecy is to keep our enemies from knowing what the CIA is doing. The effect of the secrecy has been a muzzled Congress, lied to by law-breaking and rogue CIA officials.

Until now.

When the Senate Intelligence Committee staff learned of the destroyed videotapes (a federal crime the Justice Department declined to prosecute) and reported that destruction to Sen. Dianne Feinstein, D-Calif., the committee chair, she ordered an investigation to determine whether the CIA officials who had briefed her committee had told the truth. If they had been truthful, she reasoned, why destroy the tapes? In order to conduct that investigation, Feinstein ordered the CIA to make available to her committee’s investigators whatever documents and digital data the investigators sought.

During the course of the investigation, Senate investigators suspected their computers had been hacked. When they brought those suspicions to Feinstein, she ordered another investigation, this one aimed at identifying the hackers. That investigation revealed that the CIA itself was spying on its own Senate investigators. When she approached CIA Director John Brennan about this, he denied it. When she went to the floor of the Senate -- where her vow of secrecy may lawfully be disregarded -- to reveal that the CIA had spied on her and her fellow Senators and their investigators, the CIA denied it. When she released incontrovertible evidence of CIA domestic spying, Brennan admitted that his agents had spied on their regulators (another federal crime the feds declined to prosecute), but claimed it was needed because the regulators had exceeded their authority in examining CIA documents.

All this put the original investigation of why the tapes of the torture had been destroyed and whether the CIA had been truthful to the White House and its congressional regulators into high gear. When the investigators’ final report -- all 6,000 pages of it, much in lurid detail -- was completed, it was sent to the White House, which decided to release it. The CIA begged for redactions of agents’ names and other identifiers, and a long process of negotiation ensued between the White House, the State Department, the CIA and the Senate. This week, Feinstein had had enough and decided to release the report with the then-agreed-upon redactions.

The report is damning in the extreme to the Bush administration and to the CIA leadership. It offers proof that the CIA engaged in physical and psychological torture, some of which was authorized -- unlawfully, yet authorized -- most of which was not. The report also demonstrates that CIA officials repeatedly lied to the White House and to Senate regulators about what they were doing, and they lied about the effectiveness of their torture.

If the allegations in the report are true, we have war criminals, perjurers, computer hackers and thugs on the government payroll. We also have dupes. The most politically successful argument the torture lobby has made is that we are all safer because of these dirty deeds. This Senate report refutes that argument by demonstrating that no serious actionable intelligence came from the torture.

All torture is criminal under all circumstances -- under treaties to which the U.S. is a party, under the Constitution that governs the government wherever it goes, and under federal law. Torture degrades the victim and the perpetrator. It undermines the moral authority of a country whose government condones it. It destroys the rule of law. It exposes our own folks to the awful retaliatory beheadings we have all seen. It is slow, inefficient, morbid and ineffective. It is a recruiting tool for those who have come to cause us harm. All human beings possess basic inalienable rights derived from the natural law and protected by the Constitution the CIA has sworn to uphold. Torture violates all of those rights.

What should we make of this report on government torture? In a free society in which the government works for us, we have a right to know what it is doing in our names, and we have a reasonable expectation that the laws the government enforces against us it will enforce against itself. But don’t hold your breath waiting for that to happen.

*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution.

The Way Forward On Police Reform

Richard Epstein*



For the past two years, I have taught a course in criminal procedure at the University of Chicago Law School. A key component of that course dealt with police behavior leading up to an arrest. In the class, I pointed out that relations between the police and the public have improved from the bad old days, and that much of the credit should go to the increased professionalization of police departments in controlling police abuse. 

The reason for this change is that it is never possible to effectively control the operation of thousands of individual police officers by ex-post interventions through the criminal justice system. What was needed was a strong police management team that sought out hotspots before they erupted, in order to create a culture in which police self-discipline would eliminate many of these problems before they occurred.

In retrospect, my explanation seems hopelessly naïve. In the eyes of most people, recent events in Ferguson and New York City have torn that picture to shreds. The common spark in both cases was the refusal of a grand jury, after extensive hearings, to indict police officers who were involved in the killing of unarmed black men—Michael Brown, age 18, in Ferguson and Eric Garner, age 43, in New York City. 

As I have indicated, on balance I thought that the case against Wilson did not warrant any kind of indictment. In the Garner case, the pictures of several officers on top of a helpless man, with officer Daniel Pantaleo applying what surely looks like a chokehold, suggests a different story. But here, too, the full show of pictures makes the account somewhat less clear than the final images suggest, given how quickly the use of force to overcome resisting arrest could lead to the use of force in self-defense. 

But even after making those allowances, the sight of several men piling onto one person who is calling out “I can’t breathe” is damning enough to support, certainly at the level of probable cause, a claim of excessive force, for which an indictment for manslaughter seems appropriate, even if the probability of a conviction is far from certain once the full defense is offered. It is also highly likely that he will be subject to a civil suit for wrongful death by Garner’s family, which will raise many of the same issues.

The harder question by far is what kind of institutional response is appropriate to deal with situations like these, where the level of public distrust and outrage threatens to preclude rational discourse. Ironically, the place to start is by recognizing that the somewhat rosy account I defended in class is still true. As Radley Balko wrote in the Washington Post: “Most criminologists believe that today’s police departments are more professional than ever before,” which is not to say that more cannot be done to make them better. 

The first step is to figure out what can be done now. One powerful suggestion is to make sure that police officers are equipped with cameras that allow for the recording of all confrontations with ordinary individuals. The usual protocol is for the cameras to transmit a constant stream of images to a central base, which are retained for a minute or less unless the officer activates the device, at which point the recording is preserved, including for some period prior to activation. 

A reform of this sort should reduce the level of uncertainty in evaluating unfortunate confrontations, which in turn makes it easy to conduct investigations on police conduct after the fact. Of greater importance, however, is that the prospect of camera recordings could introduce a virtuous circle in police and civilian interactions. Once a police officer knows that his or her conduct is now being recorded, there is a strong, quiet, and insistent incentive for police officers to behave in lawful ways. Once suspects know that their conduct is also being recorded, they are less likely to provoke discord. Certainly knowing these videos can be reviewed after the fact will lead to better conduct at the start of the interaction. As best as I can tell, there is no reasoned opposition to this procedure, now that the cost of its implementation has dropped sharply. 

Nor do we have to stop there. Tying cameras to guns and other police weapons could improve the quality of evidence still further. Probably, in the few altercations that do occur, it will turn out that the police have behaved properly. Recall that right now, in the vast number of cases, police conduct is beyond reproach even in the shooting of suspects, many of whom posed a clear and present threat to the officer or to others in the community.

Indeed there is no reason to restrict cameras to police officers. The use of security devices more generally also has a huge positive return in preventing or investigating terrorist attacks and other types of crime. The privacy concerns related to such cameras require that effective steps be taken to make sure that access is restricted to cases in which they are needed, for which some showing of their relevance to some ongoing investigation should be required. But these privacy concerns, although real, are on balance second-order considerations that can be handled by developing rules, including in some instances requiring court orders in order to access the material in question.

Yet at the same time, even the tapes are subject to differences in interpretation. After all, the Staten Island grand jury saw the same tapes as everyone else, and came out the other way. If the tapes were as obvious as we think, why then was the grand jury presented with a huge amount of additional evidence to put them in context? In dealing with this issue, one constant refrain is that the police should never be able to blame the victim no matter how egregious the conduct that led up to the harm. But whenever self-defense, provocation, or resisting arrest are on the table, there is no way to avoid tracing these rapid and confused interactions to make a judgment about the police behavior. 

The legal system has all sorts of bright-line rules, of the sort that I have long championed under the banner of Simple Rules for a Complex World. It is critical to note, however, that the purpose of the many bright-line rules is to keep people from crashing into each other. These rules work in the huge majority of cases, but in the few cases where one party steps out of line, there is no simple rule that tells the other party how best to respond to the unanticipated threat. 

The legal system invokes the standard of “reasonable and in good faith” because that turns out to be the only feasible way to impose some constraint on the behavior of parties who have been put at risk by the conduct of others. The criminal law involving the use of force is not exempt from this inescapable problem. Sadly, this basic insight helps explain why it is so difficult to generate institutional reforms that will bleed all hard cases out of the system. Zero failure rates are the stuff of fiction, not reality.

Right now there are, for example, about 35,000 police officers in New York City, and they are drawn from diverse populations that mirror in substantial part the population that they serve. One strong functional justification for this diversity is that it increases the probability that the police will gain legitimacy in the eyes of the population at large. That signal achievement really matters, because good relations can reduce both the likelihood of dangerous interactions and their severity. One reason why the intense overreaction, consciously hearkening back to the civil rights protests of the 1960s, to the killings of Eric Garner could backfire is that it could undermine that level of intangible trust that is needed to make New York City work. 

In the midst of all the endless turmoil over the Garner killing, it is easy to overlook the simple fact that the crime rate in New York City is down. The number of murders in New York City is on schedule to fall to a 50-year low, a 15 percent decline from 140 to 120, which means 20 lives saved. Much of this improvement is attributable to more rapid medical response times, an institutional reform that everyone can favor. The unnecessary loss of any one life is tragic. But by the same token, a saving of dozens of unidentified lives through successful policing efforts should be regarded as a great institutional achievement—one which has gone unnoticed in the current discussions. 

The good news does not stop here. The decline in crime has not been confined to murder. For example,week-to-date figures for November 17 to November 23 show only 4 murders in 2014 as against 7 murders in 2013. There has also been an overall crime rate decline of 17 percent for major offenses. It is also good news that the number of police deaths in the line of duty is down to a record low of 27, so far this year.

All of these institutional gains can be put at risk by an effort to treat one questionable decision by one grand jury as evidence of total institutional breakdown. Yet that risk is now with us, for it is clear that the protests against the decisions in Ferguson and New York have not stopped with peaceful demonstrations but have all too often resulted in arson and violence in the very communities that have been hardest hit. 

It is unclear whether Mayor Bill de Blasio helped matters when he speculated out loud that he and his wife Chirlane have had to warn their son, Dante, “to take special care in any encounter he has with the police officers who are there to protect him.” And further: “There are so many families in this city who feel that each and every night. Is my child safe? And not just from some of the painful realities—crime and violence in some of our neighborhoods—but is safe from the very people they want to have faith in as their protectors.”

In one sense, his candor is admirable in a time of racial stress. But in another sense, his remarks can be read to carry with them the implication that the dangers from crime violence and from the police are equally great, which they are not. Now that the Mayor has announced the details of his police retraining program, his outspoken condemnation of the grand jury verdict has provoked a pitched confrontation with Patrolmen’s Benevolent Association President Patrick Lynch, who has pointedly accused the Mayor of throwing a man whom Lynch called a “model” police officer “under the bus” during his recent press conference. 

This public bickering threatens to kill the “buy in” from rank-and-file officers whose cooperation is needed to make any reform work. Any changes imposed from above can be stymied by systematic resistance from below if the police think that they are being used as scapegoats for some larger set of social ills. It is not enough for a long list of public officials to say that the police officers have done their work honorably and well, when they lambast the decision in the Garner case as evidence of deep societal rot. What is needed now is for the temperature to come down so that a serious process of collective deliberation can improve, and perhaps redefine, the relationship between citizens and their police.

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.



Andrew P. Napolitano*



The city of Ferguson, Mo., is now burned into our consciousness in a way that few other places are. In my youth, the race riots in Newark, Detroit and Los Angeles marked turning points in my own and in the public’s awareness of the problems of a black underclass that perceives itself as being so unfairly governed by a white power structure that it resorted to violence.

Those disturbances also revealed the difficulties of hardworking black families trying to make decent lives for themselves by endeavoring to leave the inner cities and, as basketball player-turned-philosopher Charles Barkley stated, the opportunities of inner city “scumbags” willing to steal and pillage and incite for some temporary material or political gain.

We saw this again in Los Angeles during the Rodney King affair, in which a jury in a state prosecution acquitted two white cops of savagely beating an unarmed black man, and the mobs rioted. Thereafter, the same cops were charged with federal crimes based on the same facts and were convicted by a federal court.

As bad as it was for those cops to have beaten King, it was worse for the government to violate the prohibition on double jeopardy by using the legal fiction of federal jurisdiction and federal prosecution as being so distinct from what the State of California had tried and failed to do that the second trial did not constitute a constitutionally prohibited repeated attempt to convict. It did.

Fast-forward to Ferguson, and we see the toxic mixture of a black underclass and a white power structure and the corrupt advantages that people on the make and people on the take can exploit from it.

In Ferguson, the law enforcement case is far more straightforward than the racial complexities. A white cop put 10 bullets into the body of an unarmed black youth with whom he was wrestling for control of his gun. The cop succeeded in wresting the gun from the youth and then proceeded to kill him. Once the cop had control of the gun and the youth had been immobilized, all additional gun firing is criminal. That the youth was the aggressor does not diminish the cop’s obvious criminal overuse of deadly force.

The grand jury -- whose job is merely to certify that the state has enough evidence to justify the charges it seeks to present against a given defendant -- was subjected to the type of evidence that only trial juries hear, including a soliloquy from the cop himself and all the exculpatory evidence the prosecutor could find.

Prosecutors often loathe and sometimes even hide exculpatory evidence, but this county prosecutor must have been afraid to seek an indictment, and so he shrewdly manipulated this grand jury out of its role of determining whether the state had probable cause to try the cop and into the role of a trial jury, which is to judge whether the state has proved guilt beyond a reasonable doubt.

If the feds now come along and indict the cop on federal charges, they would be correcting the error and perversion of the grand jury. This would not be double jeopardy as in the King case, because the cop in Ferguson has never been charged on the basis of the facts in this case.

Would we even know of this case if both the cop and the youth had been of the same race? Probably not.

The long and unhappy history of race relations in America now has another fiery chapter with more tragedy. The tragedy is the result of the governmental use of race as a basis for decision-making. When cops are hired because they are white, when police suspect criminal behavior on the part of youth because the youth is black and then act on those suspicions, when a predominantly black populace feels -- however accurately or inaccurately -- that it is being treated unfairly by the government and the government fails to address this perception, when hucksters and scumbags who are drawn to these conflagrations use racial vulnerability to rob and pillage and arouse and destroy, and when the sides are arrayed along racial lines, the government has failed to protect the liberty and property of the people it was hired to protect.

The failure in Ferguson is across the board. From a city government whose police force makes its minority populace feel vulnerable and defends an unnecessary public killing by one of its cops, to a county prosecutor afraid to take responsibility for a proper public prosecution, to a governor missing in action, to a president who sounds like he wants to federalize police, we have an out-of-control stewpot boiling over into a wave of destruction.

The police need to be strong enough to protect life, liberty and property, and vulnerable enough to tolerate all political opinions, even those filled with ignorance and hate. The militarization of local police -- perfected during the past two presidential administrations, which have given local cops military surplus intended to be used on enemy armies in foreign lands -- if uncorrected, will lead to a police state. A police state is one in which the government’s paramount concern is for its own safety, and not for the lives, liberties and properties of those it has sworn to protect.

Are the police our servants or our masters? Can the mobs in the streets express political opinions without harming innocents? Can the government be dedicated to preserving the personal liberty -- the right to be oneself -- of even the most vulnerable among us? Can we use the tragedy of Ferguson to achieve a freedom-generated nonracial consensus on all this? If we fail to address this maturely, I fear that more Fergusons will soon be upon us.

*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution. 

Ferguson and the Rule of Law

Richard Epstein*



As most people by now know, on August 9 of this year, 18 year-old Michael Brown, a black man, was shot and killed by Darren Wilson, a 28 year-old white police officer in Ferguson, Missouri. On November 19, the Ferguson Grand Jury decided not to indict Wilson. Few events this year have attracted more attention than the fatal interaction between Brown and Wilson and the grand jury decision to not to prosecute Wilson for any criminal offense from manslaughter to murder.

The chorus of criticism in response to these events in Ferguson has been harsh, widespread, and unrelenting. To many activists and social critics, Ferguson reveals that racism remains unabated in the United States 50 years after the passage of the 1964 Civil Rights Act. Eric Holder, our Attorney General, has announced that the federal government will investigate the Ferguson police department for racial discrimination in its overall operations. Nicholas Kristof in his latest column, “When Whites Just Don't Get It, Part V” has called for “A Truth and Reconciliation Commission” patterned on the one in South Africa after the end of apartheid in 1994.

Given how emotional the issue is, I think we need to establish some distance and skepticism by reviewing the arc of events from the killing of Brown to Wilson’s recent, but fully expected, resignation from the Ferguson police force, which was motivated in part out of fear for his own safety. Wilson will receive noseverance package from Ferguson.

Let’s start with some simple legal fundamentals. The law that governs police behavior fully recognizes the risks that officers face in the ordinary course of their duty. In one of its most revealing decisions, Terry v. Ohio (1968), the Supreme Court held that an officer could stop and frisk a subject for weapons when there was reasonable suspicion of the commission of a crime.

Chief Justice Earl Warren, a former California Attorney General, who wrote the Court’s decision at the peak of the civil rights movement, agonized over a rule that gave extensive protection to a white officer confronting a black suspect. But he refused to back off.

Justice John Marshall Harlan, among the wisest Supreme Court justices, wrote: “There is no reason why an officer, rightfully but forcibly confronting a person suspected of a serious crime, should have to ask one question and take the risk that the answer might be a bullet.”

Brown’s death did not arise from a simple stop and frisk, but out of a far more dangerous forcible encounter that erupted when Wilson asked him to stop walking in the middle of the road. That request came when Wilson was on a routine mission unrelated to Brown, but after he had received notice of a theft at Ferguson Market, which Brown had in fact committed. By Wilson’s account, Brown responded with a shower of epithets and walked away. Wilson then backed up his car, and Brown reached in through the window, after which there was a struggle between the two men in which Brown sought to wrest Wilson’s gun away. Wilson is 6 foot four inches tall, and weighs about 210 pounds. Brown was the same height but weighed 292 pounds.

Brown then started to flee, at which point Wilson fired after him.  Shortly thereafter, Brown suddenly turned back and ran toward Wilson, who fired several shots in Brown’s direction. At this point, there is a huge dispute as to what happened next.  Wilson then fired several shots that hit Brown, and he claims that he ordered Brown to lie down, which Brown did not do.  By Wilson’s account Brown kept charging and he shot him again, this time fatally.

But a serious factual dispute about this final sequence remains unresolved.  Did Brown raise his hands in surrender while coming toward Wilson? Or was he prepared to attack? He was unarmed at the time of the confrontation, but it is not clear that Wilson knew this, given that Wilson reports that Brown had his hand inside his waist while charging him. Wilson then shot Brown several more times, killing him.

What are we to make of this rapid and unclear chain of events? All persons, including police officers, are entitled to act in self-defense. Police officers have still greater latitude in the use of force to prevent the commission of other crimes. In my view, the prior physical altercation in the car between Brown and Wilson cannot be ignored in judging Wilson’s fatal decision to shoot moments later. Perhaps Brown did not intend to attack Wilson, but it is Wilson’s subjective perception of danger that matters, which in the heat of the moment was shaped by the previous attack. It is hard to condemn his choice as unreasonable, especially if Wilson is entitled to the benefit of the doubt.

To gain a conviction on this conflicting evidence would be highly unlikely. Neither the physical nor testimonial evidence is squarely in favor of the prosecution, which has to prove its case beyond a reasonable doubt. On this record, I think that the grand jury was right not to indict.

To be sure, there are ways to attack this conclusion. One line of attack is that Wilson’s story makes no sense, because no rational person would take the foolhardy course of conduct that Wilson attributed to Brown. The opposite line of attack is that Wilson, a trained police officer, should have anticipated the potentially irrational actions of an 18-year-old teenager and avoided the confrontation, which he did not do. But the ultimate question is not whether Wilson took all the right steps. The question is whether his errors, if any, were of sufficient magnitude to support a conviction of murder or manslaughter, which does not seem to be the case. Hence, the want of probable cause needed for the grand jury to indict.

Of course, one could also insist that the unconventional proceeding before the Ferguson grand jury was something of a farce. In the usual grand jury case, the prosecution presents the evidence that it thinks warrants the indictment, which the grand jury duly returns after quick deliberations. Indeed, one common objection to grand jury proceedings is that they rubber stamp the prosecutor’s decision and thus offer the accused, whether white or black, no protection from prosecutorial abuse. Prosecutor Robert P. McCulloch certainly did not fall into this camp. Instead, he allowed an open-ended session to take place over weeks, and was roundly criticized for doing everything that he could to aid in Wilson’s defense and nothing to advance the case for prosecution.

My best guess is that McCulloch chose this flaccid course of action because he did not think that there was sufficient evidence on this record to convene the grand jury at all. Normally, a prosecutor who does not want to press charges before the grand jury just folds his hand and goes home. No one to my knowledge has ever claimed that prosecutors must forge ahead in any individual case when they think that their evidence is too weak. Those decisions not to prosecute are, moreover, virtually nonreviewable.

Once McCulloch made his decision to hold back, Missouri Governor Jay Nixon could have forced him out in favor of a special prosecutor, but he did not, which was wise. The decision to replace McCulloch would have had major drawbacks of its own. First, who should be appointed as special prosecutor, and why? The experiment with special prosecutors, operating outside of the usual constraints on the prosecutor’s office, proved itself to be a massive failure at the federal level. The U.S. Office of the Independent Counsel, created with fanfare in 1978, was shut down without regret in 1999, when its functions were taken over by an Office of Special Counsel that was consciously located inside the Department of Justice. If McCulloch had stepped aside, the pressure would have been unbearable on Nixon to appoint a zealous special prosecutor who would have moved heaven and earth to secure an indictment, whether or not supported by the evidence. Indeed if McCulloch had to step aside, better to hand the case over to the number two in his department.

But I doubt that he should have stepped aside solely because his father was a police officer killed in the line of duty by a black assailant. In the absence of some reason to think that this fact influenced this decision, he should have stayed put, as he did, for otherwise the same charge of unconscious prejudice would have been raised against him in the prosecution of any black person for murder. By accepted legal standards, there is no showing of impermissible bias.

No one is of course happy about the ad hoc procedures that were used in a grand jury proceeding that, on balance, should not have been brought at all. What is more troublesome, however, are the lessons that people are purporting to draw from this incident. Whatever the situation is in the United States on the matter of race, it bears scarce resemblance to the institutional racism under apartheid that prompted the Mandela Truth and Reconciliation Commission, which did much to put South Africa on a better course after its own tragic past.

But the Ferguson incident was not an organized plot by the FBI, the city of Missouri, or the Ferguson police to selectively attack young black men. The event does not herald a return to the bad old days of Jim Crow and lawless lynchings. It was a chance and tragic encounter that resulted in an unnecessary death.

There are of course many shooting deaths by police officers in the United States, often of young black men. Sometimes these are tragic mistakes and overreactions. Sometimes they are justified under the circumstances of the case. Occasionally, they involve the deliberate use of excessive force, as in the senseless killing of Eric Garner by the New York City police. Better policing practices may help solve these problems. But it would be a mistake to think that in a nation the size and complexity of this one that individual tragedies like Garner’s will not happen. Unfortunately, the law of large numbers means that some terrible incidents will happen no matter what anyone says or does.

In this situation, we do not need to court trouble by starting from the premise that this nation suffers from deep-seated institutional racism. Public officials, activists, and commentators should not work overtime to tear down the institutional fabric of the nation, but should instead celebrate the continued willingness of most major institutional players to correct problems of racism as they arise. It does no good whatsoever for Eric Holder to continue to investigate Wilson, in search of racist motives, since it does not square with the record developed in the case. Similarly, his institutional investigation of the Ferguson police force is not credibly triggered by that single tragic event.

What is now needed is less attention paid to the Ferguson police force, and more attention given to the violence in Ferguson that has led to, among other things, black churches being burned down. On that score, we desperately need more leadership from President Barack Obama, whose tepid condemnations of the violence shows yet again his own tin ear on matters of race relations. Obama and other activists forget how easy it is to tear down the institutions that maintain order and the rule of law, and how hard it is to shore them up so that our nation can continue to prosper.

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

What To Be Thankful For?

Judge Andrew P. Napolitano*



What if the government is designed to perpetuate itself? What if the real levers of governmental power are pulled by agents and diplomats and bureaucrats behind the scenes? What if they stay in power no matter who is elected president or which major political party controls Congress?

What if the frequent public displays of adversity between the Republicans and the Democrats are just a facade and a charade? What if both major political parties agree on the transcendental issues of our day?

What if they both believe that our rights are not natural to our humanity but instead are gifts from the government? What if they both believe that the government that gives gifts to its people can take those gifts back?

What if the leadership of both parties give only lip service to Thomas Jefferson’s words in the Declaration of Independence that each of us is “endowed by (our) Creator with certain inalienable rights, (and) among these is life, liberty, and the pursuit of happiness,” and that the purpose of government is to protect these rights? What if the leadership of both major political parties dismiss these ideas as just Jefferson’s outdated musings? What if Jefferson’s arguments have been enacted into the federal laws that all in government have sworn to uphold?

What if the leadership of the two major political parties believe that due process permits mothers to kill the babies in their wombs out of fear or convenience? What if the leaders of both major political parties believe that the president should be able to kill whomever he wants out of fear, because due process is an inconvenience? What if President Obama killed Americans and claimed that he did so legally, relying on the convenient arguments of his attorney general, who falsely told him he could kill? What if the Constitution requires due process whenever the government wants someone’s life, liberty or property, whether convenient or not?

What if the congressional leadership and most of the membership from both political parties believe in perpetual war and perpetual debt? What if the history of America in the past 100 years is proof of that nearly universal belief among the political classes?

What if the political classes in America believe that war is the health of the state? What if the leadership of those classes want war so as to induce the loyalty of the voters, the largesse of the taxpayers and the compliance of the people? What if the political classes use war to enrich their benefactors? What if the government has been paying for war by increasing its debt?

What if the political classes have been paying for prosperity by increasing the government’s debt? What if those classes have controlled the cash-creating computers at the Federal Reserve and the free cash the Fed creates is to bankers and traders what heroin is to addicts? What if the $17.5 trillion current federal government debt has largely been caused by borrowing to pay for war and false prosperity?

What if the silent damage that the artificial creation of cash causes has not been manifested in price inflation but in equity and savings deflation? What if the manifestation of equity deflation is that too much of everything we own secures too much debt? What if the folks at the Fed who create the cash have kept interest rates so low that there is little incentive to save?

What if we all own a smaller percentage of what we think we own because the value of what we own has decreased as the debt on what we own has increased? What if the banks have borrowed the money that they lend? What if the stock market is soaring on borrowed money? What if mansions and shopping malls are popping up, but they secure more debt than they are worth? What happens when the plug is pulled on this temporary artifice as those debts come due?

What if the government demands transparency from all of us but declines to be transparent to us? What if the government fosters the make-believe that it exists to serve us? What if it has access to all of our communications, bank accounts, health and legal records, and monthly bills? What if the government knows more about us than we know about it?

What if the government stays in power by bribery? What if it bribes the rich with bailouts, the middle class with tax cuts and the poor with welfare? What if the courts approved this bribery?

What if, on Thanksgiving, our gratitude is not to the government that assails our freedoms, but to the God who created us? What if our gratitude on Thanksgiving is for life, liberty and the pursuit of happiness? What if that for which we are truly grateful are the aspects of our humanity that are in God’s image and likeness? What if those aspects have nothing to do with the government?

*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution. 

Water, Water Everywhere (Including 60 Minutes)

Max Raskin*

If wars in the 21st century will be fought over water, as this 60 Minutes segment begins, then Justice Mahlon Pitney is the Sun Tzu of the upcoming conflict. In his 1909 opinion in Meeker v. East Orange, New Jersey Chancellor Pitney (who later served on the United States Supreme Court) presaged the arms race that 60 Minutes presents between desperate farmers drilling progressively deeper wells amidst severe drought conditions in California. Drawing on these underground aquifers risks a stark case of water depletion in the state, from which it may not recover.



An official from the U.S. Geological Survey gave an accurate recapitulation of California water law when she said that California law puts no limit on drilling and pumping, provided the water is put to a “beneficial use.” California defines agriculture as a per se beneficial use, which incentivizes farmers to plant “thirsty crops”, such as pistachios and raspberries, which need water all year. These incentives gives rise to an arms race where drillers are incentivized to drill ever deeper and pump more, knowing their neighbors are sure to do the same. Business is good for well-drillers like Steve Arthur, who recognized the irony of helping one farmer take water from his neighbor – knowing that he was also scheduled to drill that neighbor’s well.

With no courts to enforce water rights and a lax permitting scheme, California has a de facto groundwater regime that follows the English capture rule as laid out in Acton v. Blundell. This rule essentially says that whoever can capture the water first is the legal owner, such that any incidental burden to others is damnum absque injuria– loss without a legally cognizable claim. This doctrine is contrasted with the American reasonable use regime that finds its clearest articulation by Pitney in his Meeker decision. American reasonable use recognizes that the right to pump water “must be correlative and subject to the operation the maxim sic utere, etc., so that each landowner is restricted to a reasonable exercise of his own rights and a reasonable use of his own property, in view of the similar rights of others.” Abstractly, the maxim sic utere means only that one person should not use his property to harm another. But it takes on concrete meaning when it is used to stop an arms race that might only make sense when the total demands on drilling are so low it is not worthwhile to put in a legal regime to control the conflict.

Under the reasonable use regime, in adjudicating the amount of water a farmer can pump, his needs are weighed against the needs of all others. Adopting this rule would help solve California’s problem because courts would be able to immediately limit over-drilling and set a common level for farmers’ drilling that would allow for sustainable aquifer use by all, without incentivizing overconsumption.



It is worth mentioning that the simpler Acton rule is not without its benefits. A clear rule allows farmers and well-drillers to operate without the uncertainty that comes from an evolving jurisprudence. Furthermore, the maligned arms race might lead to new technologies of extraction including a method of “tagging” water so that its owners would be able it to exclude others, turning the fugacious property into a resource that more akin to land. These technical developments could lead to a private calculus of conservation. Ironically, however valuable Meeker is in static technology, it does nothing to incentivize the creation of these new technologies that could make property rights more definite. The current statutory scheme, however, incorporates not the pure Acton rule, but only its worst aspect, overconsumption, without facilitating absolute property rights in water.

On balance therefore, the Meeker rule seems to be the next best thing. One compelling justification for this American reasonable use regime is that because the government has claimed for itself fundamental ownership of all groundwater, and has not allowed for private ownership of the state’s 515 alluvial groundwater basins, the state ought to behave as a trustee of the public when determining who gets the limited use rights in water. Just as the Takings Clause of the Fifth Amendment requires that private property should not be taken without just compensation, the public trust doctrine essentially stipulates that public property should not be given to private parties without just compensation paid to the populace.

A public office is a public trust and on the above account, California has failed to discharge its responsibilities. Sensing its failure as a trustee, the California Legislature and Governor Jerry Brown have just enacted a set of remedial legislation that sets up another regulatory layer, with local water boards drawing up sustainability plans. The analysis of this legislation and the sustainability plans which are not required until the 2020s, is beyond the scope of this op-ed. But it is worth pointing out that this legislative scheme has foreclosed a powerful tool individuals have used to protect their rights – the courts. While many critique political conservatives and libertarians for being anti-environmental, here is an instructive example of how regulatory control leads to overconsumption and conservation is best promoted through private parties litigating in the courts to preserve private rights. Not every problem necessitates a legislative solution and by preempting the judicial decision-making, California has foreclosed a powerful remedy to groundwater depletion. 

*Max Raskin is a J.D. Candidate in the Class of 2016 at New York University and a Staff Editor for the Journal of Law & Liberty.

Playing with Constitutional Fire

Judge Andrew P. Napolitano*



Earlier this week, President Obama made it clear that he will soon offer some form of limited amnesty to about five million foreign nationals who are currently living illegally in the United States. He will do so by issuing an executive order to federal officials who oversee immigration directing them to undertake a course of action that, if complied with individually by all persons whom he designates as eligible, will cause the federal government to remove the threat of deportation from those who meet the standards he will lay down.

Can he legally do that?

To address that question, we need to start with the principle that a presidential action may be lawful at the same time that it is unconstitutional. The president has the legal power to defer deportations. The power is called prosecutorial discretion. This is a power traditionally recognized as inherent in the presidency that enables him to defer or modify all federal law enforcement.

The theory is that the president needs the ability to allocate resources as the changing times, emergent events and public needs may require. Thus, he can, for example, defer prosecuting bank robbers and aggressively pursue drug dealers. That wouldn’t mean that all bank robbers would go free; it would mean that either state prosecutors would pursue them, or they’d wait for trials until the drug kingpins were caught and convicted. But he could set some free if he wished.

The check on the exercise of prosecutorial discretion is gross abuse, which is typically demonstrated by either improper executive motive or effective nullification of law. I don’t know what the president’s motive is. If it is political, I suspect his efforts will backfire. He cannot grant citizenship or the right to vote.

If his motive is humanitarian or moral, I understand him. Under the natural law, people have the right to travel and live wherever they wish. The existence of our natural rights is not conditioned upon the place where our mothers were at the times of our births. And from a free market and historical perspective, immigrants have enhanced the economy as they move up the demographic ladder.

But the president’s behavior has serious constitutional dimensions that go far beyond the motives in his heart, and his oath is to the Constitution, not to his heart.

If the president nullifies deportations on such a grand scale that the effect is the nullification of federal laws, then he has violated his oath “faithfully” to execute his presidential obligations. The Framers required that every president swear to do his job “faithfully” to serve as a reminder to him that his job requires fidelity to the enforcement of laws with which he may disagree. The American people, Congress and the courts need to know we have a president who will enforce the laws, whether he agrees with them in his heart or not. Without presidential fidelity to the rule of law, we have a king, not a president.

By conferring temporary legal status upon foreign nationals who have not achieved it under the law, providing they meet criteria that he will establish, the president affects huge numbers of persons and produces a result that is the opposite of what the law requires. Can the president’s exercise of his prosecutorial discretion constitutionally nullify a federal statute? No. Can the president’s exercise of his prosecutorial discretion effectively rewrite a federal statute? No.

It is unconstitutional for the president to nullify federal law. It is unconstitutional for him to refuse to enforce laws that affect millions of persons and billions of dollars. It is unconstitutional for him to refuse to enforce laws merely because he disagrees with them -- particularly laws that pre-existed his presidential oaths. And it is unconstitutional for him to rewrite laws, even if he is doing so to make them more just.

Every president since Dwight D. Eisenhower has deferred some deportations. President Reagan deferred deportations for about 100,000 families of foreign nationals in 1987 under his reading of the congressionally authorized 1986 amnesty law, and President George H.W. Bush did so in 1990 for about 350,000 foreign nationals under his reading of the same law. Each of these was based on a principled public presidential reading of the words and purposes of a federal statute. Obama does not purport to read and interpret the current immigration law; rather, he effectively rewrites it.

What can Congress do? Congress can pass legislation to invalidate Obama’s executive actions. Yet even if it did so and overrode his certain veto, it has no assurances that Obama would be bound by the new legislation. He refuses to enforce the plain language of well-established and never judicially altered federal statutes. What assurances does Congress have that he would follow any new statutes that he has vetoed and that regulate his behavior?

Is the blanket refusal to enforce federal laws that profoundly affect five million persons -- and in the process severely straining the social services of all 50 states -- an impeachable offense? The president is playing with constitutional fire, and impeachment is the only constitutional remedy available, short of 25 months of a constitutional conflagration that he has ignited.

*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution. 

Hands Off the Web

Richard Epstein*



This past week, we witnessed the occurrence of two events with the capacity to reshape the Internet for the worst. First, the White House offered a full-throated endorsement “for the strongest possible rules” in support of “net neutrality,” which would prevent telecommunications suppliers from offering their customers priority services in exchange for higher rates.

The second was the response of AT&T CEO Randall Stephenson that his company was going to step back from investing billions of dollars in building out its own GiGaPower fiber network until it received greater clarity from the FCC as to what the rules of the game will be going forward. Stephenson clearly fears that the President’s call to the FCC will result in heavy new regulations that will reduce the profit potential of the company. AT&T is holding back to see just how badly the new rules will damage its investment prospects.

The company’s concerns are, unfortunately, right on the money. Right now, the President is importuning the FCC to reclassify broadband services from lightly regulated “information services” to heavily regulated “telecommunications services.” Unless it takes that dramatic step, the District of Columbia Court of Appeals recent decision in Verizon v. FCC will prevent the FCC from imposing any version of net neutrality, including any anti-discrimination rules which would prevent broadband carriers from charging higher rates for superior classes of services. The President defends this supposed pillar of the Internet policy by insisting that “an entrepreneur's fledgling company should have the same chance to succeed as established corporations, and that access to a high school student's blog shouldn't be unfairly slowed down to make way for advertisers with more money.”

But why should this be the case when paid prioritization is the norm in virtually all highly competitive markets? A quick trip to the Federal Express website, for example, reveals a wide range of “fast and full of options” like “FedEx Priority Overnight and FedEx Standard Overnight.” There is also two- or three-day shipping and Saturday service for those who want it. The different tiers of services are offered, not surprisingly, at different rates. These differential services are available to all customers. It is simply wrong for the President to assume that any system of paid prioritization entrenches established companies at the expense of new entrants, or greedy advertisers at the expense of high-school bloggers.

It is not preordained that only rich or established companies will take advantage of premium services. Perhaps the new entrant will eagerly take advantage of the higher cost broadband service in order to facilitate its dramatic market entrance. Alternatively, if the mass mailings to particular advertisers are not time sensitive, he may send them out in bulk with slow delivery at low prices. All users of broadband services will try to maximize their expected returns by using the right mix of multiple tiers of service.

That same logic will apply to more aggressive policies whereby a given internet  service provider decides that it will block certain content that is available on other networks. Wholly apart from the threat of government intervention, that strategy will provoke a high level of consumer resentment that could lead to customers going elsewhere in droves. So before imposing tough new restrictions, it is better to wait to see how the industry shakes out. The more innovative the market, the less likely these nightmare scenarios are likely to occur.

Unfortunately, the President assumes that the rejection of net neutrality is an insidious form of industrial policy. Thus, he asserts: “We cannot allow Internet service providers (ISPs) to restrict the best access or to pick winners and losers in the online marketplace for services and ideas.”

His statement is bizarre. On the first point, an ISP must make tough business choices whenever it introduces different tiers of services. Considered abstractly, higher rates could drive away some customers, just as inferior services could drive away others. But considered concretely, that is not likely to be the case. Premium services at the top end of the market could easily attract potential purchasers who think that the superior services are well worth the additional price.

At the same time, the lower cost services could lure into the market new customers who are unwilling to pay a high but uniform blended rate. Price discrimination therefore offers serious efficiency gains, which is why AT&T will be willing to make more extensive investments if allowed the price flexibility now given to Federal Express.

It is equally wrong to denounce price tiers as a form of industrial policy. It is of course highly unwise for any government to subsidize any industry players on the conceit that it knows which technologies or firms are likely to pan out best. That is the rap on the Obama administration’s egregious policies on ethanol, wind, and solar subsidies.

But rejecting net neutrality does not let ISPs pick winners and losers by offering different tiers of service. Any customer can buy what he or she wants. Indeed, it is highly unlikely that firms will choose only one class of service for all of their broadband needs. No firm sends all of its Federal Express packages by priority overnight because slower services often make more sense. The ISP only sets tariffs, and then lets private parties choose. Different tiers of service offer advantages that redound to ISP and customer alike.

To be sure, in some cases, large customers may enjoy the cost advantages from volume purchases. But that practice is perfectly proper on the Internet, just as it is with Federal Express. We want firms in competitive markets to offer lower prices to customers whom they can service at a lower cost. Any government decision blocking these options is an illicit form of economic protectionism that harms consumer interests, both here and in other market settings.

To put the point more generally, recall the economic justification for imposing rate regulation on common carriers and public utilities in the first place. The great concern was to prevent firms from exercising monopoly power that would allow them to restrict output in order to charge supra-competitive prices. Monopoly pricing did not just transfer wealth from customers to the firm and its shareholders. Instead, the price increases resulted in a net social loss, by cutting out any customers willing to purchase those services below the monopoly price, but at or above the competitive price.

Historically, rate regulation let the government set rates high enough for the regulated firm to garner a competitive rate of return, but low enough to prevent it from gathering monopoly profits. Historically, this system worked tolerably well for electrical and power companies, operated in defined territorial limits, at least at times when there were relatively low levels of technical innovation. Indeed the Supreme Court in the early part of the last century did a reasonably good job of curbing monopoly rates without creating wasteful cross-subsidies between regulated firms.

However, even at its best, this system of regulation is fraught with difficulties, for it often induced firms to increase their cost base unnecessarily in order to increase their rate base. Shielded from competition of new entrants, the old telephone companies were slow to innovate lest the rate agency punish them with lower rates.

Andy Kessler, writing in the Wall Street Journal, recently pointed out how AT&T delayed the deployment of transistors because it had to work off its ten-year supply of vacuum tubes. Make no mistake about it: The call for rate regulation under the banner of net neutrality offers no safe harbor from these strong anti-competitive initiatives. Indeed, the system amounts to major folly in an age of rapid technological innovation, which will harm net entrants capable of upending the established players.

At this point, even the defenders of net neutrality have no idea how their system will work in practice. The President gives away much of the game when he notes that his commitment to net neutrality is not absolute, by allows for “clear, monitored exceptions for reasonable network management and for specialized services such as dedicated, mission-critical networks serving a hospital.” But will this exception apply to other medical services? Will it extend also to financial services where rapid trading delays of a second or more can confer a huge advantage over one’s rival? The President makes the unsubstantiated claim that the Internet’s growth depends on a ban of paid prioritization, and insists further that “if carefully designed, these rules should not create any undue burden for ISPs.” But “carefully designed” is a very big “if” on an issue with major stakes.

More fundamentally, thinking that any major form of regulation could do the job ignores the simple point that innovation has to take place in at least two different theaters simultaneously. First, providers must make the best use of any future available bandwidth. Second, they must ensure that this bandwidth will be built out in the first place.

The AT&T decision to hold back on its investment is the canary down the coal mine. Preemptive rate regulation will not do anything other than retard the huge expansion of the Internet that has taken place under current legal regimes. Government regulation of the Internet can, and should, wait until some specific abuse materializes down the road, as might well be the case. Right now, the President and the FCC could do the public great service by sitting quietly on the sidelines. 

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

Tenth Annual Friedrich A. von Hayek Lecture

The Tenth Annual Friedrich A. von Hayek Lecture was held on October 16th. The event featured Thomas W. Merrill, Charles Evans Hughes Professor of Law at Columbia Law School on “Possession as a Natural Right.” Trevor Morrison, Dean and Eric M. and Laurie B. Roth Professor of Law, NYU Law, Richard Epstein, Laurence A. Tisch Professor of Law, NYU Law, and Mario Rizzo, Associate Professor of Economics, NYU, delivered introductory remarks. To view a recording of the lecture, watch below or visit