Who Will Keep Our Freedoms Safe?

Judge Andrew P. Napolitano*

JUDGE NAPOLITANO

JUDGE NAPOLITANO

While the Western world was watching and grieving over the slaughter in Paris last week, and my colleagues in the media were fomenting a meaningless debate about whether President Obama should have gone to Paris to participate in a televised parade, the feds took advantage of that diversion to reveal even more incursions into our liberties than we had known about.

We already knew that the NSA, our 60,000 domestic spies, has captured and retained the contents of nearly all emails, text messages, telephone calls, bank statements, utility bills and credit card bills of all Americans since 2009. We already knew that Obama has used CIA drones to kill Americans overseas and claims that he somehow can do so legally and secretly notwithstanding the express prohibitions in the Constitution.

We already knew that President George W. Bush authorized the illegal torture of a hundred-plus people, about 20 percent by “mistake,” and now we know that because he refuses to prosecute the torturers, Obama is as culpable for the torture as Bush is.

Last week, however, the Department of Justice revealed that since the 1990s, the Drug Enforcement Administration, whose job is to interdict controlled dangerous substances before they enter our borders and to do so consistent with the Constitution, has been monitoring the phone calls of selected Americans. Prior to 2001, the DEA intimidated, coerced and bribed telecom providers into making their telephone lines available to its agents. Since 2001, it has no doubt taken advantage of the provisions of the so-called Patriot Act that permit federal agents to write their own search warrants to custodians of records, in direct contravention of the Constitution, which requires warrants from judges.

Last week, the Government Communications Headquarters, the British equivalent of the NSA, known as GCHQ, acknowledged that it has been reading the domestic emails of U.S. journalists since 2008. This can only be done (a) by stealth illegally, or (b) if the NSA has given this data illegally to the GCHQ, or (c) on the odd chance that an American domestic email or cellphone call has been routed through Canada or Britain. The GCHQ boasted of its ability to download 70,000 American emails in 10 minutes! Did you hear Obama condemn this?

As if all this were not enough to make one ask what is going on with our privacy, also last week, former federal agents revealed that more than 50 American law enforcement agencies, including the FBI and the U.S. Marshals Service, possess a new handheld radar device that sends sound waves through walls and receives back images on a screen of persons on the other side of the walls.

This permits cops on the street to view an image of you in the privacy of your home without your knowledge or consent and without a search warrant. For the past 13 years, the Supreme Court has refused to permit evidence from similar heat-seeking devices to be used in criminal prosecutions, and the cops have reacted by using a more high-tech version, ostensibly to see whether “anyone is home.”

None of these flagrant violations of privacy, dignity and basic American constitutional values was enacted by a majority vote of any representative body of lawmakers -- and yet none has been stopped by those lawmakers. Thats because we have a deep state system in American government, whereby certain law enforcement, military, intelligence and diplomatic personnel can do as they wish, no matter which party controls the legislative and executive branches and in hair-splitting defiance of the courts.

That hair-splitting defiance argues that the Fourth Amendment’s guarantee of privacy in the “persons, houses, papers and effects” of all in America only pertains to criminal prosecutions; thus, the government, this argument goes, can invade all the privacy it wants so long as it is for some other -- non-criminal -- purpose. Supreme Court decisions recognizing privacy as a personal natural right, as well as American constitutional history (the Fourth Amendment was written largely in reaction to British soldiers invading privacy by looking for items in the colonists’ homes to tax), profoundly reject that argument.

How does the government get away with this? If you peered into your neighbor’s bedroom with a high-tech device, you’d be prosecuted or sued. Yet when the government does this, most folks are supine enough to be grateful for the safety it produces. That’s what Big Brother wants you to believe. What safety? Who will keep us safe from the government? Who will keep our personal liberties safe? What representative government splits hairs in order to defy the Constitution, rather than complying with its oath to protect it?

In effect, the government argues that it cannot keep us safe unless it violates the rights of the known innocent. If you buy that argument and surrender your own privacy, good luck -- but don’t try to surrender anyone else’s. Freedom is natural and personal and cannot be surrendered by others. If you think the present federal government will keep you safe because you let it take your freedoms, what will protect you from a future federal government when all your freedoms have been surrendered?

*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.

Obamacare's Slow Death?

Richard Epstein*

RICHARD EPSTEIN

RICHARD EPSTEIN

Back in 2010, President Barack Obama and the Democratic Congress took the wrong fork in the road to health care reform. To be sure, the case for some reform was very strong, given that the mixed health care system in the United States provided inferior health care at premium prices for large portions of the population. But identifying a problem does not point the way to the necessary cure. What is needed is a clear theory of what has gone wrong and why.

In this regard, there were two diametrically opposed paths for reform. The first was to double down on failed regulatory and subsidy strategies. The second was to deregulate in an effort to unleash market forces to meet the strong and persistent demand for health care services. Unfortunately, in 2010, the road taken was the former: double down on combining government regulation with government subsidy.

The results are now clear. The Affordable Care Act has done nothing to unravel the past mistakes that in large measure were (and still are) attributable to excessive regulation and transfer payments. To give but one example, the voluntary coverage supplied by employer plans has dipped sharply from about 60 percent in 1980 to 50 percent in 2010, which on an employment base of 150 million workers translates into a 15 million increase in the number of uninsured persons in the United States.

It would be very difficult indeed to attribute this decline in health care coverage to some hidden form of market failure. What reason is there to think that employers have become more stingy, or employees more indifferent to their health care needs over the last 35 years?

In market settings the usual response to changes in technology and cost is to alter the coverage provisions, the price provisions, or both. Generally, so long as there are gains from trade, these incremental adjustments minimize the loss from adverse developments, and increase the gains from favorable ones. Given the massively improved technologies over the past two generations and an aging population, the proper prediction 30 years ago was that employers should have increased the level of health care coverage, not reduced it.

So we have to look elsewhere for the culprit, and that place is the regulatory state. One key feature of the Affordable Care Act was its ambition. The sign of a good health care plan, we were told, was one that covered all persons from the full range of adverse health events. The new deal was that the state mandates, of which there were hundreds, put to the employer this unhappy choice: either increase the benefit coverage of your plans or exit the markets. The implicit subtext is that employers would choose the former so that reformers could promise an ideal world in which coverage increased while costs remained about constant.

But the actual response proved otherwise. Employees will resist paying for plans that make them pay for a set of benefits that they don’t want to have, whether they be annual tests, annual physicals, or specialized coverage for alcoholism and psychological illnesses. In some cases, the increased costs will not result in coverage termination, but will only reduce the net gains that employers and employees can share from their previous policies. But as the mandates continue to pile on, the logic starts to shift. Now the extra coverage can be the straw that breaks the camel’s back, so that both sides now prefer less health care coverage and higher wages, which is what the market has given us for over 30 years.

Given this pattern, the correct approach in 2010 was to remove the obstacles to more effective market participation. It is very cheap to repeal legislation that does not make sense economically, including those pesky multiple mandates at the state level. By the same token, it is also cheap and easy to remove long-standing barriers to competitive markets, so as to relax licensing laws, such that physicians in good standing, say, in New York, can practice medicine without having to go through an onerous relicensing process in, say, Florida or California. The same can be said about barriers that prevent insurance companies headquartered in one state from selling their products in another, or removing the barriers to the corporate practice of medicine.

But such was not to be. Instead, the ACA introduced a bewildering set of mandates and taxes that have become increasingly difficult to undo over time. The most notorious of those is perhaps the special 2.3 percent excise tax on the sales of a wide array of medical devices used to help fund the program. Taxes like this should be dead-on-arrival, because the sound principles of political economy point to this enduring principle: the right balance between revenues and expenditures will never take place if special taxes on particular activities are deployed to fund programs that purport to provide widespread public benefits. The ability of powerful factions to force costs on to some small market segment allow them to externalize the costs of the programs, which in turn will lead to a systematic overfunding of unwise programs.

The point here should rise, I believe, to the level of a constitutional scrutiny, because there is no reason whatsoever to have to go through the same fundamental debate on an ad hoc basis. But weak judicial controls over taxation have blocked that sensible improvement. So it is back to the political process, where the repeal of this tax, for which there is substantial bipartisan support, should be high on the agenda of the new Congress.

The question of what to do, however, gets harder in other cases, which leads to the problem of the second-best that now faces Congress on the key question of how far employee coverage should extend under the ACA. Once again, it is easy in my view to identify the first best solution to this problem. Never have notches in the coverage system, such that people below a certain level are out while those above that level are in. The argument against notches does not in principle depend on where that discontinuity is placed. Instead it depends simply on the fact that we have one at all. The dangers of these discontinuities are two.

The first is that it is often hard to classify people on one side of the line or the other. The ACA right now says that the employer mandate does not apply to those workers who are employed for less than 30 hours per week. But many workers today work irregular schedules. So it is an open question of what should be done with workers who may do 42 hours in one week but only 20 in the next. This pattern is very common not only for low-income workers in, for example, the restaurant business, but also for seasonal workers who may have several different jobs, without a regular work week. A rule that required, for example, an employer to pay a fixed fee into a health care fund for each hour worked by an employee would be a lot easier to administer than one which has to negotiate these accounting uncertainties in a myriad of cases.

The second problem here has to do with the incentive effects of the notch. Employers now have a strong incentive to cut hours so as to avoid the mandate, especially in the various franchise industries where turnover is high and wages are low. The effect on many of these workers is to make them worse off by cutting them off from the market coverage that they had before the passage of the ACA, which, far from heeding the lessons with the state mandates, piles on a large set of minimum essential benefits. As John Goodman has recently written, the ACA mandates force these workers out of the mini-med plans that they prefer into high-cost, high deductible plans that they dislike.

It is clear that the Republicans are on strong ground when it comes to wanting to uproot the ACA for the many harms it inflicts on its intended beneficiaries. But it is here that the challenges of replacing the ACA with something better become difficult. At this point, one can take it as a given that the President will veto any effort to scrap his entire health care program, assuming that a repeal measure could get through a filibuster in the Senate, which it won’t. So the question then is whether to stand pat with the current system or to move, as the Republicans in the House have proposed, to scrap the mandate for workers who work fewer than forty hours a week. That change would have the long-term benefit of cutting a big hole into the ACA, and it would probably change the position of low-wage earners for the better by allowing employers to increase their hours without running afoul of the mandate.

Yet that case is far from solid. The House proposal has been attacked on the simple but powerful ground that an increase in the mandate will work mischief at a different margin. A huge number of workers are clustered at jobs that call for exactly 40 hours per week. Lift the mandate, and it is quite possible, as commentators like Jared Bernstein on the left and Yuval Levin and Michael Cannon on the right have insisted that this half-measure will make matters worse.

To be sure, there is a difference in emphasis on the two sides. For Bernstein, the objective is to stop a short-term contraction of a program that he likes. For Levin and Cannon, it is in part to block any partial repeal that could have the long-term effect of entrenching the ACA in ways that would make it harder to repeal in the future. But both sides think that one adverse effect of that law is to give employers an incentive to ratchet down coverage for workers who are at the 40-hour per week mark, throwing them into the pool that has to fend for itself in the market for individual coverage.

That argument has been sharply criticized in the Wall Street Journal as “confused” on the ground that it is highly unlikely that market forces will allow many employers to ditch a program that their middle-class workers have come to expect, especially since they can take advantage of the implicit tax subsidy for employer health plans—which introduces yet another second-best issue. The matter is wrapped in still greater obscurity with big questions on the legality of subsidies for a federally-administered health exchange, which the Supreme Court will consider in King v. Burwell, where there is at least an even chance that the federal government will not be able to supply subsidies to anyone who does not buy their health care insurance on a state exchange.

Unfortunately, everyone has a point, which is why second-best choices are so painful. That said, it is still worth asking why the data shows a huge cluster of employees precisely at the 40-hour mark. That bunching is surely not a response to market forces, but in all likelihood stems from the notch effect of the time-and-a-half overtime laws that kick in at 40 hours. The lesson is all too clear. The combination of two misguided laws with powerful notch effects makes reform even more difficult than it would have been if the overtime law did not bunch so many workers at the 40-hour per week cliff, thereby making it easier to drop one hour from each of these workers. The overall lesson from this clash of wills thus remains. When faced with a dangerous regulation, don’t compound the misery with further regulations or unsustainable subsidies, which is how this sorry tale is now playing out.

*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 Freedom of Speech?

Judge Andrew P. Napolitano*

JUDGE NAPOLITANO

JUDGE NAPOLITANO

The photos of 40 of the world’s government leaders marching arm-in-arm along a Paris boulevard on Sunday with the president of the United States not among them was a provocative image that has fomented much debate. The march was, of course, in direct response to the murderous attacks on workers at the French satirical magazine Charlie Hebdo by a pair of brothers named Kouachi, and on shoppers at a Paris kosher supermarket by one of the brothers’ comrades.

The debate has been about whether President Obama should have been at the march. The march was billed as a defense of freedom of speech in the West; yet it hardly could have been held in a less free speech-friendly Western environment, and the debate over Obama’s absence misses the point.

In the post-World War II era, French governments have adopted a policy advanced upon them nearly 100 years ago by Woodrow Wilson. He pioneered the modern idea that countries’ constitutions don’t limit governments; they unleash them. Thus, even though the French Constitution guarantees freedom of speech, French governments treat speech as a gift from the government, not as a natural right of all persons, as our Constitution does.

The French government has prohibited speech it considers to be hateful and even made it criminal. When the predecessor magazine to Charlie Hebdo once mocked the death of Charles de Gaulle, the French government shut it down -- permanently.

The theory of anti-hate speech laws is that hate speech often leads to violence, and violence demands police and thus the expenditure of public resources, and so the government can make it illegal to spout hatred in order to conserve its resources. This attitude presumes, as Wilson did when he prosecuted folks for publicly singing German songs during World War I, that the government is the origin of free speech and can lawfully limit the speech it hates and fears. It also presumes that all ideas are equal, and none is worthy of hatred.

When the massacres occurred last week in Paris, all three of the murderers knew that the police would be unarmed and so would be their victims. It was as if they were shooting fish in a barrel. Why is that? The answer lies in the same mentality that believes it can eradicate hate by regulating speech. That mentality demands that government have a monopoly on violence, even violence against evil.

So, to those who embrace this dreadful theory, the great loss in Paris last week was not human life, which is a gift from God; it was free speech, which is a gift from the state. Hence the French government, which seems not to care about innocent life, instead of addressing these massacres as crimes against innocent people, proclaimed the massacres crimes against the freedom of speech. Would the French government have reacted similarly if the murderers had killed workers at an ammunition factory, instead of at a satirical magazine?

And how hypocritical was it of the French government to claim it defends free speech! In France, you can go to jail if you publicly express hatred for a group whose members may be defined generally by characteristics of birth, such as gender, age, race, place of origin or religion.

You can also go to jail for using speech to defy the government. This past weekend, millions of folks in France wore buttons and headbands that proclaimed in French: “I am Charlie Hebdo.” Those whose buttons proclaimed “I am not Charlie Hebdo” were asked by the police to remove them. Those who wore buttons that proclaimed, either satirically or hatefully, “I am Kouachi” were arrested. Arrested for speech at a march in support of free speech? Yes.

What’s going on here? What’s going on in France, and what might be the future in America, is the government defending the speech with which it agrees and punishing the speech with which it disagrees. What’s going on is the assault by some in radical Islam not on speech, but on vulnerable innocents in their everyday lives in order to intimidate their governments. What’s going on is the deployment of 90,000 French troops to catch and kill three murderers because the government does not trust the local police to use guns to keep the streets safe or private persons to use guns to defend their own lives.

Why do some in radical Islam kill innocents in the West in order to affect the policies of Western governments? Might it be because the fruitless Western invasion of Iraq killed 650,000 persons, most of whom were innocent civilians? Might it be because that invasion brought al-Qaida to the region and spawned ISIS? Might it be because Obama has killed more innocent civilians in the Middle East with his drones than were killed by the planes in the U.S. on 9/11? Might it be because our spies are listening to us, rather than to those who pose real dangers?

What does all this have to do with freedom of speech? Nothing -- unless you believe the French 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.

Stopping Another Charlie Hebdo

Richard Epstein*

RICHARD EPSTEIN

RICHARD EPSTEIN

Last week’s senseless slaughters at Charlie Hebdo in Paris has had the welcome consequence of uniting in massive public demonstrations those who are all too often locked in conflict. But signs of solidarity, like that in Paris this past Sunday, will not achieve their intended purpose unless they spur everyone to reexamine the fundamental principles of social cooperation that are needed to combat an ever-widening cycle of death and destruction.

At this point, we must come to terms with today’s deep tension between skepticism and fundamentalism. A small group of Muslim terrorists insists that there is only one right answer to any question of practice or faith—their own. Armed with that false confidence, they leap to the conclusion that any use of force in the defense of their faith is legitimate. To Muslim fundamentalists, infidels in the West have to be treated like outlaws. Open critics of their position, from Salman Rushdie to Charlie Hebdo, are singled out for a cruel fate, and must be killed on sight. It is impossible to reason with these fundamentalists. Anyone raising doubts about the truth or soundness of the fundamentalist position only supplies conclusive evidence of their wanton disregard of the truth, and must perish for their sins.

No one should claim that Muslims are unique in their intolerance. Historically, such adamant certitude has also been part of the Western religious tradition. But over time, and only after much painful experience, Western extremism was tempered by moral skepticism. The skeptics began with the simple proposition that not all inconsistent religious and social belief systems can be true. The only certainty in life, therefore, is that one’s own religious and social beliefs could prove wrong in light of further reflection and experience. So chastened, the consistent skeptic must find a way out of his bind. How can he defend his bedrock beliefs when he has just announced in advance that no world-view is immune from criticism?

Answering this question requires an appeal to an abstract philosophical adherence to parity between rival fundamentalist camps. That parity in turn could be of two sorts. The first allows each side to kill each other as a matter of right so that the Hobbesian war of all against all becomes a war to the death among religious and political factions. Talk about social arrangements that make life “solitary, poor, nasty, brutish and short”! No one comes out a winner within the confines of this world-view.

Evidently, therefore, for the good of all humankind, the pendulum of equality has to swing sharply to the opposite pole. Each group has to tolerate the offense that they experience when other groups practice alien beliefs. No religious or political group is allowed to use force, or the threat of force, to subjugate or destroy those who do not bend to their will. Moral skepticism leads to an embrace of a global non-aggression pact. All sides are far better off with the mutual renunciation of force than they are with the unabated warfare that the Muslim extremists practice, seemingly at every opportunity.

One theoretical challenge to this position is whether, and if so how, this principle is reconcilable with John Stuart Mill’s great pronouncement from On Liberty: “That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” This clarion call to liberty unfortunately carries with it a potentially fatal internal ambiguity. As stated, the harm principle places no extrinsic limits on what counts as “harm” to others. With only a little ingenuity, the exception can swallow the rule, authorizing the creation of a large state and, in a pinch, the use of private violence.

One tempting definition of “harm to others” that has a utilitarian patina is that actions by one person count as harm to others when those other parties find themselves worse off by that conduct. In resisting that easy transition, the lawyers have been ahead of the philosophers. From ancient times, they have adhered, as much by instinct as by theory, to the proposition that important classes of harms are properly described as “damnum absque iniuria” or “harm without legal injury.” Pinpointing these classes of non-actionable or non-cognizable harms is critical for maintaining a sound social order. The key insight is that harm is limited to the application of force, threat of force, and the use of traps and other devices.

Under this definition three classes of harms receive strong social protection. The first of these is competitive harm, i.e. the loss of customers and profits that one individual suffers at the hands of a rival merchant who offers better products at lower prices. The second is any individual who builds on his or her property in ways that block the views of a neighbor who has already built. The third is any person who makes statements that others find deeply offensive to his moral and religious beliefs.

The logic behind this principle is as follows. Every interaction between two persons has profound effects, both positive and negative, on third persons. The private harms should only be cognizable in a court of law when the suit advances the overall systematic welfare. Stopping force has huge positive benefits. Stopping competition has huge detriments. Socially, a dollar’s loss by theft thus counts more than millions of dollars in competitive losses. So, too, the ability of all individuals to build on their land is far better than a rule that keeps all land in its natural state lest construction interfere with the views of a neighbor.

But for our purposes, the key category is the last: offense at the views taken by others, however deep and genuine, is never a reason to stop or punish, either by private or public force, the speech or action that causes those responses. People can criticize against these barbs, and can respond in kind. But so long as these general statements of opinion involve neither the use nor threat of force or fraud, they are absolutely protected. That principle has been adopted in key American decisions, most notably, the 1989 flag burning case of Texas v. Johnson, where the Court held that the offense that other individuals took at the burning of the flag did not justify criminal prosecution of that conduct, no matter how vulgar and disrespectful the conduct.

Taking the alternative position has this perverse incentive effect: the best way in which to limit the freedom of action of your rivals is to wax indignant about their expression of their own views. It therefore lies with each person to strengthen their entitlements against others by getting ever angrier with them. Work yourself into a white heat, and now you can take the law into your own hands, or better yet have the state do the ugly work of suppression for you.

The incentives work in exactly the opposite direction under the libertarian rule that treats simple offense as harm that receives no legal redress. In these cases, the only thing that the indignant person gets is a stomach ulcer. He cannot, however, parlay that indignation into a new set of rights. As the rate of return from anger is reduced, the willingness to work one’s self into a frenzy will necessarily be reduced as well. The key move is never to fan the fires of discontent by using them as reasons to use force against others.

Of course, individuals can seek to persuade others to align with them, but they will know that those on the other side of the issue can seek to mobilize public opinion against them too, as in Paris. Some fine points arise when individuals engage in defamation—i.e. false statements about the plaintiff that the defendant makes to third parties. But these cases are not an exception to the general rule, because defamation violates the libertarian prohibition against fraud and thus has been long regarded as actionable like other forms of deception.

The hard question then is what should be done with those who refuse to accept the universal truce not to use violence against those who dare to utter statements that they regard as blasphemous.

Here again the libertarian theory offers the first step towards a response. By their refusal, they become outlaws. Those who are prepared to use force should be subject to the full range of criminal and civil sanctions. Individuals and the state may use force to resist force, they may work hard to ferret out threats of the use of force before they materialize, and they may root out conspiracies of individuals for particular acts of violence. Similar hostility is the order of the day against the nations and groups that practice the use of unlawful force or harbor those that do. Once again, it is critical to note that the libertarian vision seeks to preserve a large domain for protest and dispute, but it is relentless against those do not play the game in accordance with those rules. Its basic principle is: you disarm, we disarm, but if you fight, we fight harder.

At this point, the practical program should be clear. It is no longer defensible to try to soft-pedal the enormity of the difficulty by announcing some supposed parity between murderers and the people they murder. Supposed social grievances against those who ridicule and deal in satire must fall on deaf ears. Moral equivocation worsens our ability to maintain an ordered liberty. Force must be met with force. France, the United States, and other nations must conduct massive manhunts against those who commit terrorist actions, properly labeled as such. They must go further and deprive these individuals of the sanctuaries from which these attacks can be brought, which means troops on the ground, as well as planes in the air.

It cannot do for a weak and indecisive President Barack Obama to allow a force like ISIS with 30,000 men under arms to hold territory indefinitely until local troops hopefully become strong enough to root them out. We need, as I have said before, a return to the Pax Americana. If the nations of the West and the rest of the free world do not insist on the universal adherence to the principles by which they bind themselves, an angry public through the political process should displace them with new leaders who are prepared to wage war against those who wage war against us. 

*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.

Lamenting Liberty Lost

Judge Andrew P. Napolitano*

JUDGE NAPOLITANO

JUDGE NAPOLITANO

A British author, residing in the United States for the past 30 years, created a small firestorm earlier this week with his candid observations that modern-day Americans have been duped by the government into accepting a European-style march toward socialism because we fail to appreciate the rich legacy of personal liberty that is everyone’s birthright and is expressly articulated in the Declaration of Independence and guaranteed by the U.S. Constitution.

Os Guinness, the author of more than a dozen books defending traditional Judeo-Christian values and Jeffersonian personal liberty, argued that we should embrace individual liberty and personal dignity and reject the “no givens, no rules, no limits” government we now have. He went on to opine that the government today is not the constitutionally restrained protector of personal freedoms the Framers left us, but rather has become the wealth-distributing protector of collective interests the Founding Fathers never could have imagined.

Yet the problem is a deep one. The Framers believed in the presumption of liberty, which declares that we are free to make personal choices, and the government cannot interfere with our liberties unless we violate the rights of others. Stated differently, the federal government cannot interfere with our personal choices by writing any law it wants; it can only regulate behavior or spend money when the Constitution authorizes it to do so.

But for the past 100 years, the federal government has rejected the Madisonian concept that it is limited to the 16 discrete powers the Constitution delegates to it, and has claimed its powers are unlimited, subject only to the express prohibitions in the Constitution. Even those prohibitions can be gotten around since government lawyers have persuaded federal courts to rule that Congress can spend tax dollars or borrowed money on any projects it wishes, whether authorized by the Constitution or not. The courts even have authorized Congress to use federal tax dollars to bribe the states into enacting laws that Congress is powerless to enact, and Congress has done so.

The Declaration of Independence defines our personal liberties as inalienable aspects of our humanity, and the Constitution prohibits the government from interfering with those liberties -- like thought, speech, press, association, worship, self-defense, travel, privacy, due process, use of money and private property, to name a few.

The teaching of these founding documents is that our liberties are natural -- their source is not the government -- and they are personal, not collective. We don’t need a government permission slip to exercise them; we don’t need to belong to a group to enjoy them; they cannot be taken away by a congressional vote or a presidential signature.

Even though everyone who works for the government takes an oath to uphold the Declaration and the Constitution, very few are consistent with what they have sworn to do. We know that because on the transcendental issues of our day -- life, liberty, war and debt -- the leadership of both political parties and the behavior of all modern presidents have revealed a steadfast willingness to write any law and regulate any behavior or permit any evil, whether authorized by the Constitution or not.

Take life. Abortion is the most deadly force in America today. Abortions lawfully kill a baby a minute -- that’s 1.1 million babies a year and 45,000,000 killed since the Supreme Court issued its Roe v. Wade decision in 1973. A simple one-line statute -- “The fetus in the womb is a legal person” -- could have been enacted by a simple majority vote in Congress and signed into law by any of our so-called pro-life presidents, thus stopping the slaughter. It never happened.

Take liberty. Both parties support the Patriot Act and the secret FISA apparatus, which together invade privacy, infringe upon free speech, permit federal agents to write their own search warrants and allow domestic spying on all of us all the time. This demonstrates that our political leaders do not believe that our rights are inalienable, but can be interfered with and regulated by them. They have written laws that literally permit federal agents to do the very acts the Constitution was written to prohibit.

Take the lethal combination of war and debt. Both parties support perpetual war and perpetual debt. The leadership of both parties has permitted every modern president to kill whomever he pleases in foreign countries without lawful declarations of war and to do so by going into a $17 trillion hole of debt, with no end in sight. Today, 20 cents of every tax dollar collected goes to interest on pre-existing government debt. Today’s taxpayers are still paying interest on the $30 billion Woodrow Wilson borrowed to finance World War I in 1917.

The British author is correct. Unless we have a radical change in the direction of government -- its size, cost, focus, intrusiveness and rejection of first principles -- and unless we elect people to the government who truly believe the Declaration and the Constitution mean what they say, we will continue our march toward the federal destruction of the presumption of liberty.

It is a slow march, but a steady one.

*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 Elusive Two-State Solution

Richard Epstein*

RICHARD EPSTEIN

RICHARD EPSTEIN

When I first started teaching law at the University of Southern California in 1968, I received a wise piece of advice from a notable trust and estate lawyer, Hermione K. Brown, who said pithily: “You can always tell a good deal because it leaves both sides happy. And you can always tell a good settlement, because it leaves both sides unhappy.” Those words came back to haunt me on my recent trip to Israel, where I had a chance to inquire about the difficult dynamics of the Israeli-Palestinian negotiations, which have soured even further in the ten days since I have returned home.

In principle, I share the common belief that a “two-state” solution offers the only way out of the impasse. Indeed, one of the more disturbing signs in Israel were the maps used by tour guides that showed a unified greater Israel, including Samaria and Judea, without any recognition of the strong Palestinian claims to those portions of what they term the occupied territories, aka, the West Bank. I can think of no more reckless course for the Israelis to take than a formal annexation of these territories, which would make the Palestinians second-class citizens in a state that they have grown to abhor. Israel would come to regret a decision that could lead to its ruination.

By the same token, a one-state solution with a joint Israeli-Palestinian government is a prelude to political strife and social calamity. The divided control will lead to one manufactured crisis after another manufactured crisis, which would be quickly followed by a coup or invasion that would once again leave the Israelis helpless against an implacable foe. Just contrast two events: Lebanon’s 1943 National Pact between the Muslims and Maronite Christians, which resulted in civil war by 1958, and the painful separation of India and Pakistan in 1947-1948, which has produced an enduring, if uneasy, peace.

A two-state solution seems to be the only way forward. The question then is what are its terms. In a recent column in the New York Times, Roger Cohen, who writes frequently about the Arab-Israeli conflict, spoke with the distinguished Israeli novelist and essayist, Amos Oz. Cohen echoed Oz’s demand for a “fair divorce” between the two sides. The op-ed’s provocative title, “A Time for Traitors,” reminded me of Brown’s general dictum: The only leaders who can work some kind of permanent peace are those who are prepared to make concessions that their own supporters will resent.

That’s the good news. The bad news about the Oz-Cohen position is that it does not offer decisive insight on the two questions that really matter. The first is what the “fair divorce” should look like, and the second is the path by which it can be reached in negotiations. Both tasks are indeed formidable.

The term “fair” as in “fair divorce” conceals the enormous difficulty in obtaining that lofty result through voluntary negotiations. “Fairness” has a storied career in all areas of legal theory and practice. In a competitive market with multiple buyers and sellers, the idea plays only a limited role in policing bargaining practices. A fair deal is one that is reached by parties of full capacity where neither uses force nor fraud against the other. So long as those procedural prerequisites are satisfied, no government official or private observer has any reason to develop an independent substantive theory of fairness to set an apartment’s rent, a worker’s wage, or a new computer’s purchase price. The job of the law is to enforce private agreements, not to revise them in accordance with some higher normative vision.

Political negotiations, alas, never take place under competitive circumstances. Oz’s reference to fairness in divorce is all too apt because in these settlements, each spouse has only one person with whom to negotiate: his or her opposite number. In the event of impasse, most divorces in the United States are resolved by litigation, in which the state breaks the hold-out advantage of both sides.

A similar difficulty arises in connection with modern American labor law, where it is considered an “unfair labor practice” for either an employer or a union to refuse to bargain in good faith with the opposite side. But here too, there is no independent definition of fairness, only a set of rules that require parties to bargain with an open mind, without forcing them to make concessions to the other side, so that strikes and lockouts, often with harmful consequences to innocent third parties (whether suppliers or consumers) are the order of the day.

This fairness problem is exceedingly acute in these political negotiations, and it is troubling that Cohen does not refer to any specific deal that he thinks can do the job. Nor does he suggest a path by which those results could be achieved, especially now that, politically, Hamas is very much in the picture. At this point, it is tempting to say that the definition of a fair settlement is one that splits the difference between the two sides.

The intuitive attractiveness of this position is, however, belied by the difficulty of figuring out where that elusive midpoint lies. In this game, the great risk is that either side, or both sides, will move the goal posts in order to shift the midpoint in the dispute in their direction. Unfortunately, in open political negotiations, there is no way to stop both parties from engaging in this behavior. Thus the Israelis can get tough with respect to the settlements that they place in the West Bank, raising fierce Palestinian objections that each new settlement amounts to a de facto annexation of territory.

Yet the risks in the opposite direction seem to be greater. In 2005, the Israelis did unilaterally withdraw from Gaza, forcibly removing the Jewish settlers in that region. My view is that this move was on balance a sensible, if difficult, strategic retreat even in light of the horrific consequences that have followed. First, it reduced the likelihood that the Israelis would become an occupying power over a class of second-class citizens. Second, it reduced the heavy costs of having to police an alien population. Third, it helped improve (at least for a short time) Israeli standing in the hostile capitals of Europe. Fourth, it left the Israeli government with the unhappy but important opportunity to reply with force in the event that Gaza became a staging ground for direct attacks on Israel. Recall that an unrepentant Hamas has used both rockets and tunnels to undermine Israeli security and has launched three wars—Operation Cast Lead in 2008, Operation Pillar of Defense in 2012, and this year's Operation Protective Edge—in the past ten years. And, last, the withdrawal offered a test case of what might happen if the Israelis were to remove themselves from the West Bank. As events have turned out, this is now even less likely to happen.

During my stay in Israel, several academics I spoke to thought that it was a worthwhile gamble to organize a staged withdrawal from the West Bank in an effort to phase in the control of that area by the Palestinian Authority (PA), which has formally broken with Hamas. I am uneasy with this situation because of the serious risk that the Fatah government could lose, or even fitfully cede, control to Hamas, at which point the entire peace of the region would be at stake. A revived and legitimated Hamas government would be able to launch direct attacks on Jerusalem and invite in other nations, e.g., Iran, to help in the fight against Israel.

But many writers thought that a slower staged withdrawal could guard against that risk by encouraging economic cooperation and allowing for a shared authority until the new Palestinian state had gained its moorings. Gaza, as it has been argued as recently as this past November, need not be used as a crutch for not making concessions on the West Bank.

Now alas, it may well be that the political risks are too great. The efforts for on the ground reconciliation seem to have foundered: witness the decision of the Israeli firm SodaStream International in October 2014 to withdraw its plants from the West Bank to the Negev in the aftermath of the last Gaza war. Fewer economic interactions are conducive to more explosive political interactions. Indeed, the danger now is that the Fatah group that heads the PA will form an active if uncertain alliance with Hamas, in an effort to achieve a political or military outcome that puts Israel at mortal risk for its welfare and survival.

The effort to force the United Nations to extend to the PA membership in the United Nations represents one recurring threat because it bypasses the entire process of voluntary negotiations between the two sides. The PA decision to apply for membership to the International Criminal Court to charge Israel with war crimes for the activities in Gaza marks a true low point that has already provoked the Israelis to freeze payments of tax revenues to the PA, and could easily lead the ever-reluctant Obama administration to cut its aid to the PA as well.

This immediate Israeli response has been to forgo the carrot and to rely heavily, if not exclusively, on the stick. It may well be that this choice is correct in light of the present alternatives, but it carries with it huge risks. It is uncertain whether this maneuver will help repair or further strain U.S.-Israeli relations given the long-standing public distaste that Barack Obama and Benjamin Netanyahu have for each other. It is also possible that by this maneuver the Israelis will lose what little support they have in the United Nations, the European Union, and the support of (if they still exist) moderate Arab groups who are willing to live with a two-state solution. It is therefore easy to conclude that short-term gains will guarantee long-term losses.

And yet, what is the alternative for Israel? From the end of the British Mandate in 1947 to the present day, Israel has lurched from one crisis and one war to another, gaining population, economic growth, and military strength along the way. Right now, as the political temperature rises, the military situation on the ground is perhaps better than it was before the last Gaza encounter. The blockade of Hamas is more effective now with Egyptian cooperation, and there is little prospect of direct engagement from Lebanon, Syria, or Jordan.

The real risk to Israel is political, and on this point I continue to be amazed that Hamas’s vile and criminal acts against both Israel and it own people have been painfully glossed over by the very people who do not accept the right to use force in self-defense when lesser means will not succeed. I have long argued in connection with Gaza that the notion of proportionality has no application when faced with deadly force by a determined ally. The Israelis, I fear, have to take first things first, which is to hang tough militarily in the short run, and hope that the PA will back off its flirtation with Hamas, and its efforts to circumvent direct negotiations by pursuing war crimes charges against its only negotiating partner. No one likes the extensive Israeli presence on the West Bank, but the recent actions of the PA make it likely that the chances of a permanent two-state solution are more remote now than ever.

*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.

Is Government Faithful to the Constitution?

Judge Andrew P. Napolitano*

JUDGE NAPOLITANO

JUDGE NAPOLITANO

When the government is waving at us with its right hand, so to speak, it is the government’s left hand that we should be watching. Just as a magician draws your attention to what he wants you to see so you will not observe how his trick is performed, last week presented a textbook example of public disputes masking hidden deceptions. Here is what happened.

Last week was dominated by two huge news stories. One was the revelation by the Senate Intelligence Committee of torture committed by CIA agents and contractors on 119 detainees in the post-9/11 era -- 26 of whom were tortured for months by mistake. In that revelation of anguish and error were the conclusions by CIA agents themselves that their torture had not produced helpful information. President Barack Obama acknowledged that the CIA had tortured, yet he directed the Department of Justice not to prosecute those who tortured and those who authorized it.

The other substantial news story was the compromise achieved by Congress and the White House to fund the government through the end of September 2015. That legislation, which is 2,000 pages in length, was not read by anyone who voted for it. It spends a few hundred billion dollars more than the government will collect in tax revenue. The compromise was achieved through bribery; members of Congress bought and sold votes by adding goodies (in the form of local expenditures of money borrowed by the federal government) to the bill that were never debated or independently voted upon and were added solely to achieve the votes needed for passage. This is how the federal government operates today. Both parties participate in it. They have turned the public treasury into a public trough.

Hidden in the law that authorized the government to spend more than it will collect was a part about funding for the 16 federal civilian intelligence agencies. And hidden in that was a clause, inserted by the same Senate Intelligence Committee that revealed the CIA torture, authorizing the National Security Agency to gather and retain nonpublic data for five years and to share it with law enforcement and with foreign governments. “Nonpublic data” is the government’s language referring to the content of the emails, text messages, telephone calls, bank statements, utility bills and credit card bills of nearly every innocent person in America -- including members of Congress, federal judges, public officials and law enforcement officials. I say “innocent” because the language of this legislation -- which purports to make lawful the NSA spying we now all know about -- makes clear that those who spy upon us needn’t have any articulable suspicion or probable cause for spying.

The need for articulable suspicion and probable cause has its origins in the Fourth Amendment to the Constitution, which was written to prohibit what Congress just authorized. That amendment was a reaction to the brutish British practice of rummaging through the homes of American colonists, looking for anything that might be illegal. It is also a codification of our natural right to privacy. It requires that if the government wants nonpublic data from our persons, houses, papers or effects, it must first present evidence of probable cause to a judge and then ask the judge for a search warrant.

Probable cause is a level of evidence that is sufficient to induce a judge into concluding that it is more likely than not that the place to be examined contains evidence of crimes. In order to seek probable cause, the government must first have an articulable suspicion about the person or place it has targeted. Were this not in the law, then nothing would stop the government from fishing expeditions in pursuit of anyone it wants to pursue. And fishing expeditions turn the presumption of liberty on its head. The presumption of liberty is based on the belief that our rights are natural to us and that we may exercise them without a permission slip from the government and without its surveillance.

Until last week, that is. Last week, Congress, by authorizing the massive NSA spying to continue and by authorizing the spies to share what they have seized with law enforcement, basically permitted the fishing expeditions that the Fourth Amendment was written to prevent.

How can the president and Congress defy the Constitution, you might ask? Hasn’t every member of the government taken an oath to uphold the Constitution? Doesn’t the Constitution create the presidency and the Congress? How can politicians purport to change it?

The answers to these questions are obvious, as is the belief of most of those in government that they can write any law and regulate any behavior and ignore the Constitution they have sworn to uphold whenever they want, so long as they can get away with it.

*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.

North Korea 1, Free Speech 0 - How to Even the Score

Thomas Warns*

If you were planning on seeing The Interview, you might be out of luck.

If you were planning on seeing The Interview, you might be out of luck.

For the past several weeks, Sony Pictures has been reeling from a hack attack which has seen the unauthorized release of several movies online, as well as the release of many unflattering (to say the least) emails. The hackers have total control over the Sony Pictures computer network, to the point that operations are carried out largely via fax and telephone calls. Sony Pictures also announced that it was stopping all active filming, due to issues with payments.

The hacking attack reached a new peak today when Sony Pictures decided to cancel the release of the movie The Interview. This was because of the hackers’ threats to commit “9/11 type” attacks on movie theaters that showed the film, which prompted many theaters to back out of showing it. Sony Pictures will eat the $42 million budget as a loss, but the damage to their reputation is far worse.

The FBI has been working with Sony Pictures to discover who was behind the attacks, and for weeks, the rumors were that the North Korean government was behind it. For its part, the North Korean government would not confirm or deny involvement, but did praise the hackers for their work, calling it a “righteous deed.” The rumors are rumors no more however – U.S. government officials have confirmed that the North Korean government ordered the attack.

Assuming they’re not mistaken, where does this leave us now? Sony’s decision is a disappointing capitulation to a series of terrorist threats, and makes one wonder what could happen in the future – for instance, can Putin order his cyber-hackers to blackmail a newspaper into dropping a negative story about him? Capitulation today creates incentives for groups to attempt this same destructive behavior in the future, and further limits our freedom of expression. That is not to say that Sony should be thrown under the bus – they have a business to run, and they likely made what they thought was the worst of a set of bad choices. But this already appears to be having ripple effects, which will limit the freedom of expression of American actors and producers. Are parodies of all dictators off limits?

This whole incident unquestionably requires a response from the U.S. government, but what kind? North Korea effectively declared cyber-war against us, and so far it looks to have won. They infiltrated a corporation operating in America, completely brought it to its knees, and then had them cave to their demands after threatening violence on the level of America’s worst ever terrorist attacks. This coordinated attack, following earlier threats, goes far beyond the normally bellicose rhetoric from Pyongyang. President Obama and Congress cannot stand idly by, nor are they likely to.

Is this man really going to decide which movies we can and can't see?

Is this man really going to decide which movies we can and can't see?

The President could retaliate with a cyber-counterattack, but that might risk a dangerous escalation, and further might play into Kim Jong-Un’s hands. The President could also openly denounce North Korea, and ask the international community to join him; unfortunately it is difficult to imagine how this would change anything in what is already the world’s most isolated country. The best response would likely be for Sony Pictures to release The Interview online for free, so that more people would see it than if it had been screened in movie theaters and sold on DVDs. At the very least, we can be thankful that the Kim Jong-Un can’t stop us from watching the 2004 classic Team America: World Police, which got its fair share of digs in against America as well as Kim Jong-Il (who is revealed to be a cockroach in a man’s body at the end). Hopefully other comedians and artists will take on Kim Jong-Un (we’re looking at you SNL), and prove that we will not be paralyzed with fear by a madman.

We can hope that at the very least, this embarrassing episode convinces both government and corporate officials to beef up cyber-security; one need not think long to imagine the consequences that could have flowed if the hackers’ goal was not merely to stop the release of a comedy film. But beefing up defenses for the next cyber-attack is only part of the battle. Americans must be willing to stand tall in the face of these threats, and not let the likely hollow threats of a two-bit, third World dictator keep us from making our movies. And the best way to fight back right now would be to laugh at him. So by all means, please watch this, or any number of Kim Jong-Un satire videos on the internet. And bask in the freedom that we hold dear, and ought to protect.

*Thomas Warns is a J.D. Candidate in the Class of 2015 at New York University, and the Editor-in-Chief for the N.Y.U. Journal of Law & Liberty.

Making Sense of The Torture Report

Richard Epstein*

RICHARD EPSTEIN

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*

JUDGE NAPOLITANO

JUDGE 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.