Saturday, July 03, 2004

Objectivism and Ayn Rand

One of my friends (who just started her own blog, The Cynic's Corner) has just suffered a relapse into Objectivism, the philosophy created by Ayn Rand that is characterized by a rejection of altruism.

Objectivism is flawed on several levels. First of all, its logocentric, though that applies to virtually any comprehensive philosophy. However, the hostility Objectivism has to external authority makes this an especially fatal flaw. Rand cannot simultanously claim that one must be free to live ones life as one choices while at the same time making prescriptive codes of conduct and/or feelings. I have the right to give to charity, and I have the right to feel guilty if I don't! At the point where I am forced to not to do either of these things, I'm merely a slave to a dogma Rand finds more preferable. Ayn Rand is at best the rich conservative's John Stuart Mill. Second, its unsustainable. While Objectivism purports to support unbridled capitalism (and has been lauded for it by numerous conservative/libertarian pundits), the philosophy actually doesn't support capitalism at all. Professor Mark Skousen of Columbia University Business School remarks that
Roark [the protagonist in "Fountainhead"] denies a basic tenet of sound economics--the principle of consumer sovereignty. When the dean of the architectural school tells Roark, "Your only purpose is to serve him [the client]," Roark objects. "I don't intend to build in order to serve or help anyone. I don't intend to build in order to have clients. I intend to have clients in order to build." (1994:14) This bizarre, almost anti-social, attitude sounds like a perverse rending of Say's Law, "supply creates its own demand," or the statement made in the film Field of Dreams, "If you build it, they will come." But supply only creates demand if the supply can be sold to customers; and people come to a new baseball field only if they want to play or watch. Supply must satisfy demand, or it becomes a wasted resource.

Most capitalist authors argue that the system requires social input because the freedom of contract necessarily requires the consent of all involved party's. Christian Michel of the Acton Institute writes "Once again, if a price is paid, it is not necessarily the one that the buyer or the seller had expected to obtain at the start of the negotiation; thus, as in any social relationship, the wishes and the interests of others must be acknowledged." However, Rand seems to view the social aspect of business affairs as a necessary evil that accomponies a "free" life. Her ideal man, Roark, lives in a distorted reality that doesn't hold up in the real world. Skousen continues "The fact that Howard Roark represents the ideal man in Ayn Rand's novel and the fact that she denigrates other characters in The Fountainhead who "compromise" with client's demands suggest that Ayn Rand is philosophically in denial when it comes to comprehending the nature of business. She denies the very raison d'etre of capitalism--consumer sovereignty."
Third, Objectivism only holds up under a very narrow, deontological view of freedom. Isiah Berlin points out that "Freedom is not simply freedom of action but also freedom from the consequences of the action's of others." Rand's major limit on one's freedom of action is that you can't use other humans as a means, only as an end of themselves. Thus, I can't for example rob someone because that's using him as a means to my enrichment. However, a comprehensive view of freedom has to take into account the inadvertant ways where our actions constrain others. The easiest example is Environmentalism. A Objectivist businessman would be acting perfectly morally in clearcutting giant tracts of rainforest that he owns to sell to the market. As long as he owns the land, he isn't, in a Objectivist sense, doing anything wrong. However, the environmental damage that such an action can take has harms that extend throughout the world. Furthermore, the people who are most vulnerable to environmental catastrophes are the poor and disadvantaged, as they can't afford the expensive protections and technologies the rich have to shield themselves from environmental damage. The likely consequences of such environmental degredation on the global poor is immense. The reduction of trees will lead to desertification, which in turn hurts substinence farmers. Air and water pollution will cause an increase in disease and a reduction in life expectancy. Global warming will raise sea levels, having catastrophic results on seaside and island nations (the Pacific Island state of Tuvalu is estimated to be underwater in 50 years). Environmental refugees will cause instability and increase overcrowding in cities. Herman E. Daly, Senior Economist in the Environment Department
"Increasing Northern incomes at the cost of Southern sustainability will lead to global insecurity. It will result in an increase in "environmental refugees" fleeing human made disasters, poisoned water, air, and soils, soil erosion, and desertification."

The list goes on in on. All of these have drastic and real impacts on people's life, liberty, and freedom. All are also entirely inconsequential in an Objectivist state. There is a fundamental myth behind Objectivist philosophy, and that is the false distinction between Public and Private. There are virtually no actions that one takes that are devoid of a public consequence. Thus when Rand argues that one shouldn't act for others or use them as an end, she makes an arbitrary judgment on which actions are sufficiently rooted in the other to qualify. The end result is that taking an extra minute to help an old lady cross the street is viewed as more invasive than precipitated massive species loss and environmental destruction through logging. Somehow, I'm not convinced.

Friday, July 02, 2004

Rules for Hamdi's Hearing?

I'm sure someone who is far more well-versed in Constitutional Law can clarify or correct me on this, but I'm confused on the process for the hearing regarding Hamdi's status as an 'enemy combatant.'

A lot as been made of Justice O'conner's declaration that the rules for such a rehearing don't have to be as stringent as those for a normal criminal trial, for example the presumption might shift to the government and there might be looser evidentiary standards (hearsay evidence for example). However, that view only commands the agreement of 4 members of the court (O'Conner, Rehnquist, Kennedy, and Breyer). Two members of the court (Stevens and Scalia) adapt a "try him or release him" tact, and of course Thomas agreed with the government that Hamdi shouldn't be able to have a hearing at all. The interesting opinion is Justice Souter's (joined by Ginsburg). They disagreed with O'Conner that there is enough justification to hold Hamdi in detention, however they concurred in judgment because "[s]ince this disposition does not command a majority of the Court, however, the need to give practical effect to the conclusions of eight members of the Court rejecting the Government's position calls for me to join with the plurality in ordering remand on terms closest to those I would impose." He caveats though, that "It should go without saying that in joining with the plurality to produce a judgment, I do not adopt the plurality's resolution of constitutional issues that I would not reach. It is not that I could disagree with the plurality's determinations (given the plurality's view of the Force Resolution) that someone in Hamdi's position is entitled at a minimum to notice of the Government's claimed factual basis for holding him, and to a fair chance to rebut it before a neutral decision maker...nor, of course, could I disagree with the plurality's affirmation of Hamdi's right to counsel...On the other hand, I do not mean to imply agreement that the Government could claim an evidentiary presumption casting the burden of rebuttal on Hamdi...or that an opportunity to litigate before a military tribunal might obviate or truncate enquiry by a court on habeas." (emphasis added).

Hence, while 6 justices agree that Hamdi needs the ability, at hearing, to claim his innocence of the charges against him, only 4 agree that the rules for such a trial should be changed to favor the government as the plurality opinion suggests. Another four (counting Stevens and Scalia) believe that any trial that does occur needs to obey normal rules of procedure. Since a majority couldn't be reached on the the second issue, will the trial court default to normal rules of procedure or take O'Conner's plurality viewpoint? At the very least, O'Conner's view does not create precedent, taking away one of the few areas of solace for conservatives worried about the implications of this ruling on the War on Terror.

Monday, June 28, 2004

Supreme Court Rules on Detention of 'Enemy Combatants'

The Supreme Court handed down three cases that struck at the core of our constitutional scheme of government and insured that, at least to some degree, the actions of the US in the War on Terror will be bound by rule of law rather than the whim of the executive. The cases are Hamdi v. Rumsfeld , Al Odah v. US and Rasul v. Bush (consolidated), and Padilla v. Rumsfeld. The latter was dismissed on a technicality and didn't decide much in the way of substantive issues. However, the Hamdi and Al Odah/Rasul cases are extremely important in dictated how our war on terror will proceed. All the cases can be found at The Legal Information Institute.

In Hamdi's case, the court ruled that, while the detention itself was authorized by the Authorization for the Use of Military Force (AUMF), Hamdi still has the right to challenge his detention and contest the facts against him. Quoting Foucha v. Louisiana "Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action." I think a quote by Herbert Packer, former Professor of Law at Stanford University, from his book "The Limits of Criminal Sanction" also is very pertinent:
"The combination of stigma and loss of viewed as being the heaviest deprivation that government can inflict on the individual. Furthermore, the processes that culminate in these highly afflictive sanctions are seen as in themselves coercive, restrictive, and demeaning. Power is always subject to abuse-sometimes subtle, and ugly. Precisely because of its potency in subjecting the individual to the coercive power of the state, the criminal process subjected to controls that prevent it from operating at maximal efficiency.

Though clearly the government has a compelling interest to protect the United States from aggressors and detain those who cause us harm, the court remarked that "as critical as the Government's interest may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat." The court, in my view, struck the proper balance, holding that the executive can detain enemy combatants but still has some obligation to prove in an adversarial setting that they fit within that category. This is especially important in Mr. Hamdi's case, as his father claims he was in Afghanistan for humanitarian aid purposes, and was not in Afghanistan for long enough to receive military training (we haven't heard from Mr. Hamdi himself because he is being held incommunicado by the government). Perhaps former Chief Justice Earl Warren put it best in US v. Robel, "It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties which makes the defense of the Nation worthwhile."

The second set of cases (referred to collectively as the Rasul case) deals with the jurisdiction of American courts to here challenges from Guantanamo Bay detainees of their detention. This case is in certain ways more important than Hamdi, as unlike in Hamdi the prior precedent seemed to lean against the detainees. In the 1950 Supreme Court case Johnson v. Eisentrager, the court dealt with a case brought by German citizens captured in China, convicted of War Crimes in Nanking, and incarcerated in occupied post-war Germany. The court ruled that as these areas all fell outside of US jurisdiction, there was no standing to sue in that case. In that case, the court remarked that:
We are here confronted with a decision whose basic premise is that these prisoners are entitled, as a constitutional right, to sue in some court of the United States for a writ of habeas corpus. To support that assumption we must hold that a prisoner of our military authorities is constitutionally entitled to the writ, even though he (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States
, and concluded that no right to habeas corpus existing in such a situation.

In Rasul, Justice Stevens distinguished from Eisentrager on several grounds:
Petitioners in these cases differ from the Eisentrager detainees in important respects: They are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against the United States; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control.

Furthermore, the court noted that Eisentrager had been modified significantly by following decisions. In Braden v. 30th Judicial Circuit Court of Kentucky, the court made a core revision to how it viewed Habeas Corpus claims. It now held that the writ acted on the person holding the prisoner, rather than the prisoner himself. Thus, since the people who were responsible for the detention of the prisoners in Guantanamo were within the jurisdiction of US courts, the prisoners now had standing to sue where such law did not exist at the time of the Eisentrager decision.

What's important to note in both of these cases is what they DON'T do. They don't prevent the president from detaining illegal combatants. They expressly cast aside the possibility of wars conducted under the threat of litigation. The courts holding in these cases is limited only to forcing the US to ascertain that those they imprison have committed a crime. In making these rulings, the courts put an important check on the President's power to bypass the court system and the bill of rights under the pretext of national security.