Real Homeland Security

What is it that we Americans stand for? What is it about our nation that makes us most proud? What is it that makes other nations of the world respect and admire and emulate us? It is our unparalleled commitment to personal freedom and to the dignity of the individual. It is captured in our guarantee of freedom of speech, freedom of religion, due process of law, equal protection of the law, and freedom from unreasonable searches and seizures and cruel and unusual punishments. We are the beacon to the world because we aspire to be good and fair and just to one another. That is who we are and who we want to be.

We do not always live up to our aspirations. At times, we have embarrassed ourselves and tarnished our image. We have brutally persecuted dissenters, interned innocent persons, suspended habeas corpus, intrusively investigated innocent individuals and recklessly invaded reasonable expectations of privacy, we have even tortured our fellow human beings. We are a well-meaning but imperfect nation. We strive to be good, but we are only as good as our people, our leaders, and our institutions enable us to be.

Presidents have a wide range of official advisors, each with a designated portfolio. There is a Secretary of Defense, a Secretary of Labor, a Secretary of Energy, a National Security Advisor, and a Domestic Policy Advisor, to name just a few. The next president should create a brand new position, which should become a permanent part of the Executive Branch in the future: a Civil Liberties Advisor.

Certainly, matters of defense, national security, transportation, energy, labor, domestic policy, interior, agriculture, commerce, education, veterans’ affairs, the environment, and management and budget are important presidential concerns. But so too is the preservation of our civil liberties. It is past time for the Executive Branch forthrightly to acknowledge this responsibility by ensuring that every administration shall henceforth have within its highest councils a respected public official whose charge it is to ardently and credibly defend our civil liberties against all comers.

Many presidential administrations have included high-level officials who have been strong advocates for civil liberties, even though this was not their explicit job description. Throughout our history, such officials have made a real difference. During World War I, for example, the administration of Woodrow Wilson launched a devastating campaign to squelch dissent. Although the Department of Justice vigorously supported this campaign – prosecuting some two thousand individuals for criticizing Wilson’s war policies, several key figures in the Department – most notably John Lord O’Brian and Alfred Bettman – effectively moderated the government’s campaign of repression.

Some years later, Francis Biddle, who served as Franklin Roosevelt’s Attorney General, eloquently championed respect for individual liberties from within the White House. At the outset of World War II, Biddle declared that “every man . . . who cares about freedom must fight” to protect it “for the other man” as well for himself, and pledged that the nation would “not again fall into the disgraceful series of witch hunts which were such a dark chapter in our record of the last war.” Biddle vigorously opposed the prosecution of dissenters, the mass detention of enemy aliens, J. Edgar Hoover’s effort to authorize unbridled loyalty investigations of American citizens, and the internment of Japanese-Americans. Biddle did not always prevail – he failed most notably on the issue of internment – but he made a critical difference in our nation’s policies.

A quarter-century later, in the wake of the demonstrations at the 1968 Chicago Democratic Convention, great pressure was brought to bear on President Lyndon Johnson’s Attorney General, Ramsey Clark, to prosecute the leaders of the demonstration. Clark refused, concluding that they had done nothing unlawful. A year later, after Richard Nixon appointed John Mitchell as Clark’s successor, the government filed conspiracy charges against those who had allegedly planned the protests. Reflecting the change in leadership, Will Wilson, Mitchell’s assistant attorney general, observed that the “trouble” with Ramsey Clark was that he was “concerned with the rights of the individual.”

There are many other examples. In 1947, President Harry Truman caved to public pressure and political self-interest when he promulgated the federal loyalty program. Three years later, after his inner circle began to include voices more sympathetic to civil liberties, he vetoed the McCarran Internal Security Act of 1950, explaining that the legislation was the product of public hysteria and would lead to “Gestapo witch hunts.” (The act was passed over his veto). Thereafter, he boldly confronted Senator Joseph McCarthy, warning that all Americans were in peril “when even one American – who had done nothing wrong – is forced by fear to shut his mind and close his mouth.”

Too often in our history, presidents have excluded voices supporting civil liberties from their highest councils. In some sense, this is predictable. The preservation of civil liberties usually involves protecting the rights of dissenters, minorities, and outsiders. It is generally politically expedient to look the other way when the liberties of such persons are denied. But as Francis Biddle astutely observed, “every man . . . who cares about freedom must fight” to protect it “for the other man” as well for himself. This is true even of presidents, or at least the good ones.

Administrations that marginalize or silence such voices are bound to err, often grievously. It is a common phenomenon that when like-minded people deliberate among themselves, they are likely to gravitate toward extreme positions. This has been clearly – and quite painfully – demonstrated by the Bush administration, which did its best to exclude any trace of support for civil liberties in its march to its secret NSA surveillance program, denying habeas corpus to those detained at Guantanamo, secretly authorizing torture and the use of secret prisons, and the abuses of the Patriot Act. Would all this have happened if some respected senior official within the White House could credibly have said, “No. This is not right. This is not what we Americans do.”?

Some may object to the idea of an official Civil Liberties Advisor (or a Council of Civil Liberties Advisors analogous to the Council of Economic Advisors) on the ground that we already have an Attorney General, a Legal Counselor to the President, an Office of Legal Counsel, and a host of other lawyers in the Executive Branch. Moreover, the president himself is often a lawyer, and as with Woodrow Wilson and perhaps Barack Obama, sometimes even an expert in constitutional law. But all of these officials, presidents included, have mixed and often conflicting agendas and responsibilities. None is assigned the specific responsibility of articulating and advancing the cause of civil liberties. As history teaches, this state of affairs has too often failed our nation.

Of course, Civil Liberties Advisors may often lose the debate, or even be shunted aside. But sometimes they will win, and sometimes they will raise consciousness and help frame the discussion. Moreover, an administration without such a voice is much more likely to short-change civil liberties than one with such an advocate. The stakes for our nation are simply too high for us to continue to muddle along without someone in this critical position. Indeed, this idea this might well give rise to a whole new meaning to the notion of Homeland Security.

An abbreviated version on this post appeared as an op-ed in the June 30, 2008 New York Times under the title “How to Put Civil Liberties in the White House.”

Comments

[LAK]

I'm not Kimball, I assure you. I have no delusions, like so many at my law school, that the outcomes a "free" market produces are any more efficient or optimal that the outcome of more regulated systems. In fact, I'm quite sure they are less optimal than outcomes in which there are rules to the game. Game theory was, in the end, the most useful class I took in thinking about complex systems and games. It taught me that having rules often lead to far more optimal outcomes than games in which it is every man for himself.

[Uzair Kayani]

Hi LAK,

Did you mean game theory and the law with Professor Baird? Also, did the class track the book? I'm thinking of taking it if it is offered next year.

[Kimball Corson]

The core problem with capitalism as we understand it, or our market economy as some view it, is not so much the externalities problem as it is the interference in various markets by various levels of government at the aegis of lobbyists seeking special interest legislation or regulation that is not in the national interest, but is designed to aid the income and wealth of a few at the expense of many. Alternatively, those lobbyists also act to block contrary legislation and regulation that serves the national interest, but not those paying them. All very constitutional, right?

Where were the Fed, Congress and all the financial regulators during the housing bubble up when huge fees were being raked in by too many as they did their sales or packaging dance in passing, making damn sure that real risk was shoved along and did not stay with them? Out of the office on paid vacations or more seriously, simply out to lunch?

But now that we have the economic consequences, does it surprise us to see the Fed and Treasury rushing in to protect in effect stockholders' interests in regard to Fannie Mae, Freddie Mac and IndyMac, the SEC precluding shorts on the stock of major brokerage houses with dirty hands, and the U.S. government working on a plan to bail out the shareholders of regional banks. I mean we could use a chapter 10 bankruptcy reorganization model of killing the shareholders, giving haircuts to the debt holders and protecting the creditors. Why is it we have it backward? Are special interests now considered to be in the national interest? As I said, it is all about privatizing gains and socializing losses, all by way of redistributing income and wealth, of course, in favor of those that got and now have, all with governmental assistance coming and going.

[Kimball Corson]

Is the "older" and "newer" comments formating designed to keep, here, Geof's post closer at hand in the off chance we will stay more on topic. Fat chance, me thinks.

[LAK]

Uzair,

It was with Doug Baird. He's a fine professor and an even finer man. As far as tracking the book, this was 7 years ago so I don't remember that well, but I do believe it was.

[Kimball Corson]

We have a huge financial crisis at hand in our country, with tremendous economic, institutional and legal implications and yet this Chicago website is all but silent on the matter here, unlike almost every other media existant. Why? Do we have a hole in the faculty roster of the Law School and/or the Econ Department? Where is Chicago's Paul Krugman? Again and more generally, why?

[Kimball Corson]

The Fed could have acted earlier as it has now, or even more so now and then both. Alan Greenspan and the Fed knew housing was seriously bubbling up but took no action for reasons I suggest. Here is what the Fed did recently that Greenspan and the Fed could have done earlier.

Recently, the Federal Reserve Board voted unanimously to bar lenders from making higher-priced mortgages without regard to a consumers' ability to repay. As to larger loans, the Fed's new rules also prohibit lenders from relying on income or assets that it does not verify to determine repayment ability, imposing prepayment penalties if the payment can change during the initial four years, and from making a loan without establishing an escrow account for property taxes and homeowners' insurance for first-lien loans. Feeble as it is, this is a start. The Fed has the authority to do much.

This Fed could have done even more then and now, but it didn't. The Fed's earlier history of inaction is certainly not due to ignorance. These men knew very well what was going on, but elected not to stop it.

Why is a question everyone should consider.

I do think now I am too far off topic, so I'll stop here, but some Chicago faculty member(s) should be posting on these issues here. They are important, timely and involve serious legal, moral and economic issues as well. These topics should be Chicago's bailiwick, but we are met with silence.

[Kimball Corson]

LAK and other commentators on this website seem to have the view that by and large markets don't work. I hear the same view expressed elsewhere too. The issue then is do markets work?

I believe so, most of the time. They work as long as those participating in them do not cheat, behave unfairly or get government to interfere in those markets on their behalf by special legislation or regulations that tamper with the market's results. Unfortunately, there is much to much cheating, unfairness and interference in too many markets in America today.

Before people hastily decide markets don't work, they need to identify the markets they are thinking about and then check to see whether those markets and those closely collateral to them that effect them have been devoid of rules which prevent cheating or unfair competition and/or have been seriously compromised by one or more special interests operating through governmental interference in such market(s). Every market I am aware of that doesn't work well has been so tampered with.

If that is so, little can remedy the result, given the powers that be, except for more and better interference. But understand that is not a failure of the market mechanism itself. The market then becomes the subject of a political struggle, such as health care in America. Everyone seems to want a rigged result and is willing to cheat and be unfair to get it, but they simply cannot agree upon which result is best. Doctors want one thing. Insurance companies, another. And patients something else altogether. None can agree and all cheat and interfere in that market(s) in the ensuing political struggle.The market all but ceases to function as such. We should not in those circumstances blame the market mechanism. Hobbled horses don't run fast.

[Kimball Corson]

Not only are civil liberties being compromised but income is being seriously redistributed to the rich and this housing mess is not going to be repaired anywhere near as quickly as most hope. We are in trouble in too many quarters. So how badly has income become maldistributed and how long will this housing bust last? We have some suggestive answers.

The housing slump will last for a good while. A study of post-World War II housing busts by the International Monetary Fund found that they typically lasted four years on average and involved a average loss totaling 8% of a year's national output. I suggest the present bust is much worse that others in that time period. Maybe we will have a loss of 14% of a year's output and take five to six years to recover. Indeed, it could be more and last longer.

Emmanuel Saez, an economist at Berkeley, has developed some interesting data on income redistribution in recent times. During the 1990s, the incomes of the richest 1% went up 10% a year in real terms, while those of the other 99% grew at an average annual rate of 2.4%. Then between 2002 and 2006, the richest 1% saw an 11% annual average growth in their real income while everyone else saw his or her real income grow at less than 1%. A truly Republican result. Three-quarters of the gains from the period from 2000 to 2007 went to the top 1% of income recipients. They now receive a larger share of overall income than at any time since the 1920s and it is getting worse.

How about another tax cut for the rich? Were you suckered in and distracted by family values, no marriage for gays, no abortions and a range of other marginalia and foolishness? Hey, many of you voted for Bush. As Obama has succinctly explained it, a vote for McCain for president is essentially a vote for a third term of Bush.

The truth is a whole lot of politicians need to be shown the door and quickly. We cannot afford them. It is not just a question of civil liberties being trampled. Other shenanigans are afoot, too. Congresses approval rate is down to 10% for its inablility to act effectively and timely, making Bush at 29% look like a real sharp performer. Where do we get these guys? How can we do better? These are serious and important questions. So come on folks, Wake up. Chicago seems asleep at the wheel and this is or should be its bailwick.