Topic: Law and Civil Liberties

Peace? The Promise of Peace? Eh, Close Enough

Worse choices have been made than Barack Obama for the Nobel Peace Prize.

There was Woodrow Wilson in 1919, an award that rates as one of history’s more grotesque international jokes. Wilson promised to keep us out of war and promptly got us into it, meanwhile laying the ideological and geopolitical foundations for 90 years of war-nationalism, war-liberalism, and war-socialism. To say nothing of saddling us with the terrible idea of world government. Among those who weren’t Nazis or communists, Wilson may have done more than any other individual to promote human suffering in the last hundred years.

So yes, there have been worse choices. (Next to Wilson, I’d have to give Al Gore and Yasser Arafat both honorable mentions. We could go on, of course.) But still, Barack Obama? Seriously? I doubt the committee has any idea how badly their choice will be mocked in the United States.

Over here, the prize will be a disappointment to the anti-war left, the anti-war right, and, of course, the pro-war right. The only contingent I can see taking pride in it over here is the establishment left, which hasn’t had much time lately for substantive work on peace, but which is always happy to make speeches and receive awards. Sometimes, the American image abroad is just that important.

Rather than piling on in what is sure to be a bipartisan laugh-fest, let’s think about what Barack Obama actually could have done for world peace. And weep.

Like Wilson, Obama ran a campaign promising peace and the international rule of law. Politically, peace is a winning message, and the advocates of peace would do well to remember this. Decade after decade, American voters are willing to give peace a chance.

Obama promised to withdraw from Iraq and to close the illegal Guantanamo Bay prison camp. He promised to end the Bush-era detention and rendition policies that have tarnished America’s reputation abroad and weakened trust among nations.

Americans embraced those promises, which are fully consistent with the ideals of the Nobel Peace Prize. The prize, recall, is awarded “to the person who shall have done the most or the best work for fraternity between nations, for the abolition or reduction of standing armies and for the holding and promotion of peace congresses.” Ending wars, treating prisoners of war humanely, and ensuring international criminal suspects’ due process of law are exactly the sorts of things that the peace prize was designed for. They’re just what you’d expect a laureate to do.

But once in office, Obama didn’t deliver. The promises disappeared, replaced by vigorous defenses of virtually every presidential power that the Bush administration invented for itself, including not only those that subvert domestic civil liberties, but also those that threaten the international rule of law.

And the withdrawal from Iraq? Delayed and partial. The latest word — received just as the peace prize was announced — is that it’s “complicated.” Sort of like a bad Facebook relationship.

Our other war, in Afghanistan, continues to escalate, even as its strategic goals seem further and further removed. As Cato author Glenn Greenwald notes, U.S. airstrikes in Afghanistan continue to kill and maim the innocent, with very little to show in the way of stabilizing the country or defeating international terrorism. Withdrawal from Afghanistan is both possible and desirable, as my colleagues Malou Innocent and Ted Galen Carpenter argue. Yet our latest Nobel laureate doesn’t see peace as an option here either.

How sad. Not to sound bitter or anything, but when does the Cato Institute get a peace prize?

House Approves Hate Crimes Measure

Last night, the House of Representatives approved a defense spending measure that included a totally unrelated bill that would ban so-called “hate crimes.” 

I’ve testified twice against federal hate crimes proposals.  Here’s the case against the law (in brief):

First, the federal hate crime law is unconstitutional because it is beyond the powers of Congress. 

Second, the law will not prevent violent crime.  Anyone already inclined to kill or beat up another human being is not going to reverse course because Congress passes a new law against violence motivated by bias. 

Third, the law does take the state too close to the realm of thought crimes.  In order for a prosecutor to prove the “hate” aspect, detectives have to dig into a person’s life, thoughts, writings, conversations, etc., to gather the “evidence.”  There’s no good reason to go there because — let’s remember — violent acts are already against the law!

Eyewitness to Government’s Robbery of Chrysler Creditors

Further to Ilya Shapiro’s post this morning, let me also point you to a concise chronology of events culminating in the government’s robbery of Chrysler creditors.

The story is that of Richard Mourdock, Treasurer of the State of Indiana and the man responsible for stewardship of the state’s pension funds, some of which were victimized by the Obama administration’s pre-packaged and then forced-fed bankruptcy deal for Chrysler. I strongly urge you to read Mr. Mourdock’s testimony, which is at once revealing, sobering, compelling and, regrettably, a frightening sign of the times.

Mourdock will be speaking on this very topic at Cato, along with bankruptcy law expert David Skeel, on Thursday, October 15 at noon. Reserve your seat now.

The Government Robbed Chrysler Creditors

In January 2009, Chrysler stood on the brink of insolvency.  Purporting to act under the Emergency Economic Stabilization Act, the Treasury extended Chrysler a $4 billion loan using funds from the Troubled Asset Relief Program (TARP).  Still in a bad financial situation, Chrysler initially proposed an out-of-court reorganization plan that would fully repay all of Chrysler’s secured debt.  The Treasury rejected this proposal and instead insisted on a plan that would completely eradicate Chrysler’s secured debt, hinging billions of dollars in additional TARP funding on Chrysler’s acquiescence. 

When Chrysler’s first lien lenders refused to waive their secured rights without full payment, the Treasury devised a scheme by which Chrysler, instead of reorganizing under a chapter 11 plan, would sell its assets free of all secured interests to a shell company, the New Chrysler.  Chrysler was thus able to avoid the “absolute priority rule,” which provides that a court should not approve a bankruptcy plan unless it is “fair and equitable” to all classes of creditors. 

Cato joined the Washington Legal Foundation, Allied Educational Foundation, and George Mason law professor Todd Zywicki on a brief supporting the creditors’ petition asking the Supreme Court to review the transaction’s validity.  We argue that the forced reorganization amounted to the Treasury redistributing value from senior, secured creditors to debtors and junior, unsecured creditors. 

The government should not be allowed, through its own self-dealing, to hand-pick certain creditors for favorable treatment at the expense of others who would otherwise enjoy first lien priority.  Further, a lack of predictability and consistency with regard to creditors’ expectations in bankruptcy will result in a destabilization of existing and future credit markets. 

The Court will be deciding whether to hear the case later this fall.  Thanks very much to Cato legal associate Travis Cushman for his help with the brief.

Free Speech, Hate Speech, and Canada’s Section 13

NewMajority.com has a great series of videos showing the testimony of Mark Steyn and Ezra Levant against Section 13 of the Canadian Human Rights Act.

That section empowers the Canadian Human Rights Commission to punish telecommunications that are “likely to expose a person or persons to hatred or contempt” owing to their protected minority status. It is, in short, a hate speech law.

Penalties are harsh, and can include large fines as well as a lifetime publication ban. For a supposedly liberal country like Canada, Section 13 is an extraordinarily illiberal law.

Section 13 has also lined the pockets of one Richard Warman, a former employee of the Commission who has been responsible for the overwhelming majority of prosecutions in the last decade. Steyn and Levant show in their testimony how Section 13 has prompted computer hacking, the planting of false hate speech, and other underhanded techniques from Warman and the rest of its enforcers. Levant suggests that Warman, a privileged white male lawyer, has been the single greatest beneficiary of the law.

Business regulation boards commonly get taken over by the friends of big business. This is a huge problem in the study of law and economics, one with its very own name – regulatory capture.

Censorship agencies are a bit different. They don’t usually get taken over by the friends of publishers, who might be lenient. Instead, they attract the most aggressive would-be censors, the ones who would most enjoy the powers that a censorship board can offer. Once these arrive, few others will have the stomach to continue serving. Agencies like the Canadian Human Rights Commission suffer from regulatory capture, not by the businesses they regulate, but by the most censorious people around. That’s one reason why it’s a huge problem to have a censorship board in the first place.

In early September, Section 13 was ruled unconstitutional by the Canadian Human Rights Tribunal. (Confusingly for this Yankee, the tribunal conceded that it could not actually strike down Section 13 but could only decline to apply it in the case at hand.) An appeal is in the works, and Parliament is now considering whether to modify or even scrap the law.

Canadian newspapers across the political spectrum have lined up to support repeal or at least reform. Meanwhile, it appears that Canada’s Conservative government doesn’t want to be seen as “too conservative” – and thus it has been reluctant to act. Politically, it’s easy to pose as the defender of an outraged minority. It’s much, much harder to be the reluctant-but-principled defender of the right of neo-Nazis to spew hatred.

Much like the Megan Meier Cyberbullying Prevention Act, Section 13 is clearly well-intentioned. No one likes people who say cruel or hurtful things, whether on the Internet or anywhere else. Neo-Nazis are disgusting, and it pains even me to have to defend their rights. But a free society is different from an unfree one precisely in that free societies allow distressing speech to take place. The other option, in which the litigious have undue power over all of us, is more distressing still.

Supreme Court Mulls Gladiators and the “Human Sacrifice Channel”

Following up on David’s post about the Stevens “depictions of animal cruelty” case, my takeaway from this morning’s argument is that there’s not a single vote to uphold the law.  The closest the government came to sympathy for its position came when Chief Justice Roberts wondered whether, if a narrower statute proscribing the “crush videos” that were the ostensible target of this legislation, the Court might uphold this broad statute on its face but also welcome many as-applied challenges in instances of prosecutorial overreach.  (For a pithy discussion of facial versus as-applied challenges, noting that the Court generally favors facial attacks in First Amendment cases, see Roger Pilon’s foreword to this year’s Cato Supreme Court Review.)

A less technical line of questioning involved the constitutionality of a statute banning a hypothetical “human sacrifice channel” or the broadcast of fight-to-the-death gladiatorial battles – from a foreign country where that sort of thing is legal.  (Justice Scalia quipped that the rule cannot be that you satisfy the broad legislation’s “historical value” exception if you dress up as an ancient Roman.)

Much of the analysis about these types of extreme scenarios turns on whether the broadcast/depiction creates a market for such activities – which is the rationale for banning child pornography (i.e., fewer children are subject to sexual abuse if there is not a legal market for pictures and videos of children being sexually abused).  Thus, a narrow statute banning the aforementioned crush videos would be kosher, as it were, but not the broad legislation at issue – which could potentially sweep in, to take one example, promotional videos put out by the Spanish board of tourism that include bullfighting clips.

For a more detailed report, see Lyle Denniston on SCOTUSblog (whom you can also see all week on C-SPAN’s excellent Supreme Court documentary mini-series).  And again, to read Cato’s view, see our amicus curiae brief.