Topic: Law and Civil Liberties

Pirates as Tax Collectors?

[Co-authored with Ilya Shapiro.]

As we suspected, with world attention focused on the just-concluded piracy standoff, it was only a matter of time before someone would write something like this: “the right way to think about this problem is that pirates are imposing a tax on shipping in their area. They are a bit like a pseudo-government.” Perhaps the Mafia too –- “pay, or we break your legs” –- is like a pseudo-government.

The difference between a tax and extortion is not subtle, even if it seems to have escaped the cited authorities, including Noam Chomsky. A tax, at least in principle, and most often in practice, is a charge for a service rendered –- not necessarily a wanted or an evenly distributed service, to be sure, but most relevant here, protection from third-party pirates and other lawless predators, domestic and foreign. By contrast, a pirate’s shakedown puts the victim to a choice between two of his entitlements –- his freedom and his property. That distinction –- again, hardly subtle –- is what prompted us to leave the state of nature. Those who would like to return to that state will find it waiting for them on the horn of Africa.

Iklé on Pirates

The are a number of statements to take issue with in Fred Iklé’s oped on piracy in today’s Washington Post. Let’s focus on one. He writes:

Terrorists are far more brutal than pirates and can easily force pirates – petty thieves in comparison – to share their ransom money. We already know that Somalia is an ideal fortress and headquarters for global terrorist activity.

Lots is possible, but the fact is that there is no connection between the Somalia pirates and terrorists, as I discussed here.

Terrorism “experts” have been heralding Somalia as the next big terrorist haven for years, and few, if any, have arrived. That is because the idea that violent political chaos is generally conducive to terrorism is wrong. Even in Afghanistan, Al Qaeda got comfortable only once there was a somewhat coherent government that allied with them, not amid total chaos. Civil wars are not, it turns out, ideal locales to hatch international terrorist plots.

While we’re here, it’s worth noting the current level of American concern about piracy is overblown. As Peter Van Doren pointed out to me the other day, the right way to think about this problem is that pirates are imposing a tax on shipping in their area. They are a bit like a pseudo-government, as Alexander the Great apparently learned. The tax amounts to $20-40 million a year, which is, as Ken Menkhaus put it in this Washington Post online forum, a “nuisance tax for global shipping.”

The reason ships are being hijacked along the Somali coast is because there are still ships sailing down the Somali coast. Piracy is evidently not a big enough problem to encourage many shippers to use alternative shipping routes. In addition, shippers apparently find it cheaper to pay ransom than to pay insurance for armed guards and deal with the added legal hassle in port. The provision of naval vessels to the region is an attempted subsidy to the shippers, and ultimately consumers of their goods, albeit one governments have traditionally paid. Whether or not that subsidy is cheaper than letting the market actors sort it out remains unclear to me.

These considerations are worth keeping in mind when we discuss the costs and benefits of particular counter-piracy proposals. Iklé suggests blockading Somalia ports, which would require a massive naval force. Condi Rice suggested a UN peacekeeping force on shore, a far more expensive and risky proposition.

Iklé does make one more promising suggestion, which is to create an international law against paying ransom to pirates. In practice this would require member states to enforce the law against payments, probably making it unenforceable, but it is an interesting idea.

Cuban Agents Beat Up Young Dissident (and Contributor)

A year and a half ago I had the opportunity to travel to Cuba and meet with a group of young dissidents. Despite their early age, these guys had already suffered enormously the rigors of their totalitarian government. One of them had been imprisoned four times for his political activism. Constant official harassment was their daily life. But they remain unrepentant about their desire for liberty.

I’m still in touch with one of the guys I met that day, a young independent journalist. Every week he sends me articles and newsletters reporting instances of human rights abuses, lack of opportunities for young people, and how life is in general in the Castro prison-island. We have published several of his articles on

Last Sunday, my friend was headed to a meeting of young dissidents when he was intercepted by government thugs. This is how Reporters Without Borders reported what happened next:

An attack by State Security agents on 5 April left Alvaro Yero Felipe, a young Havana-based dissident journalist, with a badly bruised face, a broken nose and a split lip. He was on his way with two friends to a meeting in support of prisoners of conscience when members of the political police intercepted him, took him to a nearby park and gave him a beating. “Yero’s experience is unfortunately representative of the mixture of harassment and brutality used by the authorities to crack down on dissent,” Reporters Without Borders said. “As the government has signed UN human rights conventions, it should logically punish officials who violate the international undertakings it has given.

This incident happened the same week that several U.S. Congressmen met with the Castro brothers in Havana and lavished praised on the eldest dictator, Fidel, to whom one of the congressmen described as the “ultimate survivor.” However, the ultimate survivors are the dissidents like my friend Álvaro Yero, who every day risk their life and limbs in pursuit of liberty. He’s my personal hero.

“If I Had ONLY a Gun”

ABC’s 20/20 did a hit piece on the Second Amendment and armed citizens on Friday night.  The show responded to the growing sentiment that “if I only had a gun,” maybe an armed citizen could make a difference in a spree shooting such as the incidents at Virginia Tech and Northern Illinois University.  In reality, it ought to be called “if I had ONLY a gun.”  Picking people without concealed carry permits to represent the armed citizen and rigging the scenario to ensure that they don’t defeat your narrative is propaganda, not journalism.

Several college students are selected to represent the “armed student” hypothetical, given some marksmanship training, and armed with training guns that shoot paint bullets. The firearms instructor who trained them plays spree shooter and storms the room.  All of the students are hit before they can effectively engage the mock spree shooter.

The show handicaps this scenario in favor of the attacker in several ways.  First, none of the students selected are actual concealed handgun permit holders who carry daily and practice regularly.  Those with more experience get it from shooting Airsoft guns or from a form of shooting that does not involve drawing from concealment.  The poor performance of the students in hitting the attacker is supposedly explained by the lack of law enforcement firearms training.

The simulation is too narrowly construed to show the full impact of an armed response.  First, the experiment is limited to one armed student in the first classroom that the spree shooter hits.  At Virginia Tech, the spree shooter entered several rooms, so a student in any room other than the first would be able to draw, find a position of cover and concealment, point the gun at the door, and wait for the assailant to enter.  Second, the experiment supposes that an intended victim pulling a gun and shooting back, even if not immediately effective, does nothing to stop the attack.

These results don’t reflect the reality of an armed citizen responding to a spree shooter.  Contrary to what the firearms instructor says, it is not “too much for a normal person” to deal with.  Often, the mere confrontation with an armed response takes them out of their revenge fantasy and derails the killing spree.

Some examples:

1997, Pearl, Mississippi: A 16-year old boy stabs his mother to death, then goes to the local high school to continue his rampage with a rifle.  An assistant principal hears the gunshots, retrieves a pistol from his truck, and confronts the assailant.  The boy surrenders.

1998, Edinboro, Pennsylvania: A 14-year old boy opens fire at a high school graduation dance being held at a local restaurant.  The restaurant owner confronts the boy with his shotgun, who surrenders.

2002, Appalachian Law School: Two law students with law enforcement and military backgrounds run to their cars, grab handguns, and stop an expelled law student on a rampage.

2005, Tyler, Texas: A distraught man ambushes his estranged wife and son as they are entering the courthouse for a child support hearing.  After killing his wife and wounding several deputies, armed citizen Mark Wilson intervenes with his handgun and shoots the spree shooter.  The shooter is wearing a flak jacket and kills Wilson with return fire.  Wilson’s actions broke up the attack and gave law enforcement officers time to organize a response that ended with the shooter’s death.  Wilson is later honored by the Texas legislature.

2005, Tacoma Mall: A spree shooter with a criminal record and five days’ worth of meth in his system opens fire at the Tacoma Mall.  Concealed carry permit holder Dan McKown intervenes, but gives a verbal warning instead of shooting.  McKown is shot and receives a spinal injury that leaves him paralyzed, but the shooter retreated into a store and took some hostages after being confronted.  After complaining about life’s travails to his hostages for several hours, he is taken into custody and sentenced to 163 years in prison.

2007, New Life Church, Colorado: Volunteer security guard Jeanne Assam shoots a spree shooter as he enters the foyer of a church.  The spree shooter’s blaze of glory is over, so he shoots and kills himself.

2008, Israel: A Palestinian man goes on a killing spree in the library of a seminary.  Police officers stop at the door and do not go in after him.  Student Yitzhak Dadon draws his gun and engages the shooter, wounding him.  Part-time student and Israeli Army officer David Shapira blows past the cops, demanding a hat to identify him as a police officer and not the assailant, before entering the building and killing the spree shooter.

2009, Houston, Texas: Distraught woman enters her father’s workplace and shoots one man with a bow and arrow.  She points a pellet gun at two employees, both concealed handgun permit holders, who shoot her.  Police show up and she points the pellet gun at them.  They shoot her again and take her into custody.

The scenario is also unrealistic in that the student is seated dead center in the front row, a bad move for someone trying to conceal a gun on their hip under a T-shirt; far better in the back of the room in a corner.  Plus, the spree shooter is expecting resistance and knows where the armed student will be, advantages that will not be replicated in the real world.  In one iteration of the scenario, a second assailant is placed a couple of seats away from the armed student.  When the armed student draws to shoot at the assailant, he is blindsided by the co-conspirator.  This isn’t a result of “tunnel vision,” as the program would tell you.  This is a rigging of the experiment.  A second assailant in placed practically next to the armed student, while our amateur is wearing a face mask that restricts vision?  No one, not even the firearms instructor playing spree shooter, would win in that situation.

There are no magical powers that accrue to a sworn officer, contrary to the anti-concealed carry propaganda this piece puts out.  A recent NYPD Firearms Discharge Report shows that hit percentages for a major metropolitan police department never rise above the 50% mark, even within two yards of the assailant.  Unsurprisingly, people who carry a gun and train with it consistently outperform those who do not.  The FBI’s report “Violent Encounters: A Study of Felonious Assaults on Our Nation’s Law Enforcement Officers” shows that criminals who beat cops in gunfights practiced regularly while their victims only averaged 14 hours of firearms training a year.

The only thing that stops a spree shooter is a bullet, either from their gun when they commit suicide or from someone else who intervenes to stop further loss of life.  Law enforcement responses that quarantine the shooter compound the problem, while aggressive “active shooter” protocols that push police officers into the scene in small teams or as individuals tend to reduce casualties.  The police response is moving toward being on the scene as fast as possible with a gun; we ought to follow their reasoning and allow people to have a fighting chance, not advise them to play dead and call the cops on their cell phone.  When seconds count, the police are only minutes away.

On the bright side, 60 minutes had a more balanced segment on the recent surge in firearm sales and prospects for a revival of gun control in Congress.

Speaking of Broken Promises …

… or at least implied promises, candidate Obama lamented the Bush administration’s overuse of the “state secrets” privilege.

But last week, the Obama Justice Department filed a motion that embraces Bush administration arguments and even seeks to extend them. Glenn Greenwald has the details of the Obama administration’s “new and worse” approach to “state secrets.”

U.N. Official: Portugal’s Policy ‘Appears to be Working’

Over at Drug War Rant, Peter Guither notes the strange reaction of a drug policy official to the new Cato report, Drug Decriminalization in Portugal:

Glenn Greenwald’s excellent report (on the successful decriminalization of all drugs in Portugal for personal use) was picked up by Scientific American: Portugal’s Drug Decriminalization Policy Shows Positive Results

What really caught my attention in this article was that they got the UNODC to agree that it seemed to work, but the response was Kafkaesque.

Walter Kemp, a spokesperson for the United Nations Office on Drugs and Crime, says decriminalization in Portugal “appears to be working.” He adds that his office is putting more emphasis on improving health outcomes, such as reducing needle-borne infections, but that it does not explicitly support decriminalization, “because it smacks of legalization.” Yes, decrim works, but we don’t support something that actually works because it sounds like something we’re afraid want to talk about. Right.

A spokesperson for the White House’s Office of National Drug Control Policy declined to comment, citing the pending Senate confirmation of the office’s new director, former Seattle Police Chief Gil Kerlikowske. The U.S. Drug Enforcement Administration (DEA) and the U.S. Department of State’s Bureau of International Narcotics and Law Enforcement Affairs also declined to comment on the report.Well, I guess no policy is better than what we’re used to.

Glenn Greenwald has more on the reaction to his report here.

Dance Like Thomas Jefferson’s Watching

As Thomas Jefferson’s birthday (April 13) approaches – and last night being the first night of Passover, which Jews celebrate to commemorate their deliverance from slavery – I thought I’d comment on a disturbing tale that reminds us again that “the price of liberty is eternal vigilance.”

In celebration of Thomas Jefferson’s (265th) birthday last year, about 20 D.C.-area libertarians gathered at the Jefferson Memorial just before midnight.  The plan was to have a music-through-headphones dance party for the father of the Declaration of Independence (i.e. each person would dance to the tune of his individual iPod). I was actually supposed to attend, but for some reason did not make it.

It was a short-lived party, however, with an ending that would almost certainly have made our nation’s third president frown in disapproval.

Shortly after the silent bopping started, U.S. Park Police officers began to disperse the partygoers. After shooing and pushing revelers (who were drunk only on liberty) off the memorial, one officer confronted the lone remaining dancer, Brooke Oberwetter, and told her to leave.  Oberwetter calmly asked what law or rules she was violating.  The officer provided no explanation but continued to insist that she leave.  Not satisfied with the officer’s response, Oberwetter stood her ground – until the officer pushed her against a stone pillar, handcuffed her, and led her away.

Now, nearly one year later – after the citation against her (for “interfering with an agency function,” whatever that means) was neither dropped nor pursued – Oberwetter filed suit in the U.S. District Court for the District of Columbia against the arresting officer, Kenneth Hilliard, and the Secretary of the Interior, Kenneth Salazar (whose office oversees the Park Police). Oberwetter argues that Hilliard and the Park Police violated her First Amendment rights by interrupting and preventing her expressive activity and freedom of assembly.  She also alleges that here Fourth Amendment rights were violated when she was arrested without probable cause and with excessive force.

The complaint, available here, is a model of legal writing.  Pithy, legally sound, and eminently readable, I cannot recommend it more highly to law students and young lawyers.  This is perhaps not surprising because Oberwetter’s counsel is none other than my friend Alan Gura, who last year successfully argued D.C. v. Heller before the Supreme Court.
Here’s a recent TV news story about the case and here’s Radley Balko’s (formerly of Cato, now at Reason) original post about the incident.

Full disclosure: While our tenures never crossed, Oberwetter is a former Cato employee – and a social acquaintance.  I wish Brooke and Alan the best in their fight against such arbitrary use of government power to oppress basic liberty.  (As Alan told me, a good rule of thumb for police: if you can’t think of any charges, even a few weeks later, it was probably a bad arrest.)  And I hope the incident gets Kevin Bacon thinking sequel.