Category Archives: Public Policy and Governance

      How should Americans talk about really divisive issues? It is hard enough to draw a line between passionate advocacy and discourse that is over the line. The problem becomes infinitely harder when the stakes are higher.

      With the benefit of hindsight, we fault the “good Germans” who were temperate after Kristalnacht. But every excess is not Kristalnacht. So how do we decide when a contemporary policy is so dangerous, so wrong, that moral people simply cannot smile nicely, pour tea and politely disagree with it? Ironically, this dilemma is one of the most troubling consequences of engaging routinely in intemperate political language; as I said in a recent column, when every tax increase is met with hysteria about creeping socialism, and every over-reaction by a police officer is evidence of fascism, what language is left for serious threats? It’s the boy who cried wolf syndrome.

      I’ll be the first to admit that I lost it when Congress passed the so-called “detainee” act a few weeks ago. When this bill passed, I thought—and I still think—that words like “totalitarian” were factually descriptive, rather than rhetorically excessive. But if it is okay for me to cry “fascist” about this bill, what about the people who believe abortion is genocide, or that progressive taxation is theft? When we use such terminology, we are not communicating with anyone, or changing anyone’s mind.

      Let me specify my problems with the detainee bill, and why I see it as a dangerous break with time-honored American legal and policy traditions. I wasn’t the only one, by the way—diplomats and military officials sent statements strongly objecting to this legislation, and warning that it would actually encourage terrorism while making our soldiers less safe. This measure:

·        Suspends Habeas Corpus, a protection we’ve enjoyed for 700 years.

·        Allows use of illegally-obtained evidence against suspects—in violation of the 4^th Amendment.

·        Protects torture: first, by giving the President the right to define what torture is and isn’t, and second by shielding those who have tortured during the past several years from prosecution.

·        Allows the administration to designate someone as an enemy combatant—and gives the individual so designated absolutely no way to challenge that designation. Think about it: the President can say that you are someone who has “purposefully and materially supported hostilities against the United States.” To begin with, that’s a pretty subjective standard. But what’s worse, let’s say you are a citizen, or someone else who shouldn’t even be subject to this law—there is no way for you to appeal, no way to show that you are entitled to a trial, no way to demonstrate that you are the wrong person.

·        As Senator Feingold testified, “this legislation would permit an individual to be convicted on the basis of coerced testimony and hearsay, would not allow full judicial review of the conviction, and yet would allow someone convicted under these rules to be put to death.”

·        What is truly perverse, once the government actually has enough evidence to charge a detainee with a crime, then and only then do the few due process protections left under the act apply. Before that, they don’t—and prisoners can simply be indefinitely detained. No trial, no hearing, no nothing. The result, as Senator Obama has noted, is that the less evidence the government has, the fewer rights the detainee has. When you realize that out of the 700 people held at Guantanamo, only ten had been charged with any crime as of a couple of months ago, the enormity of that really hits you.

So–how do we talk about this? How do we impress on our fellow citizens the magnitude of what this law does? how do you say “such measures are beneath us, inconsistent with what it means to be an American?”

      Just yesterday, a student sent me a partial answer to that question, a link to You Tube with a speech made by Senator Barack Obama during the floor fight in the Senate. Obama was fighting for an amendment to curtail some of the most extreme features of this legislation. He began by acknowledging that the threat posed by terrorism was real, and that it needed to be dealt with. He also said “if we are properly agressive in addressing the threat, it is inevitable that mistakes will be made, that we will occasionally cast too broad a net. There is nothing necessarily wrong with that—so long as we retain the means to correct those mistakes.” He went on to list the troublesome elements in the bill, to offer very specific evidence of the harms done by each, and to suggest with a good deal of precision what corrective language or policy he would propose. And he concluded with a statement that went to the heart of his objections: “We don’t have to imprison innocent people to win the war on terror.”

      Obama was polite, but not weak. He respected his opponents without conceding to their arguments. That’s terribly difficult—especially if you tend to be a bit emotional, like me—but I don’t see any feasible alternative. At some point, we all have to trust in the good-will and good sense of other Americans. We have to trust that in the marketplace of ideas, truth will ultimately prevail. That doesn’t mean we should work less diligently or passionately to get American values back; it means we have to offer arguments and evidence that will persuade our fellow citizens, we have to object to the use of dishonest arguments, and we have to safeguard the mechanisms of constitutional government to ensure that all arguments will be heard and all relevant evidence considered.

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    It is difficult—if not impossible—to discuss important disagreements when language no longer has meaning. When every tax is socialism, and every abuse of police power is fascism, we’ve lost the tools to adequately describe genuine threats to our political system. We can no longer discriminate between the merely troublesome and the genuinely threatening.

    This isn’t a new phenomenon. During the Peloponnesian War, Thucydides wrote that “to think of the future and wait was merely another way of saying one was a coward; any idea of moderation was just an attempt to disguise one’s unmanly character; ability to understand a question from all sides meant one was totally unfitted for action.” Many years later, George Orwell would portray corruption of language as an essential tool of the authoritarian state.

   

So what can we say about the recent Military Commissions Act, passed at the end of September? In seemingly innocuous language, the United States Senate gave the President unchecked authority to use “interrogation techniques” on “detainees.” The Act doesn’t say “unbridled discretion to torture prisoners;” indeed, it says torture remains illegal. It just lets the President define what torture is—and isn’t—and lets him keep the definition secret.

   

The “detainees” (almost sounds like guests, really) are people who have been designated “unlawful combatants.” And if the Pentagon—using whatever criteria it chooses—says you are an unlawful combatant, then you are. Period. Of course, once you’ve been labeled an “unlawful combatant” you can no longer use habeas corpus to protest your innocence, or to show that there has been some mistake, like with that German businessman the CIA picked up and tortured, who turned out to have the same name as the guy we were really looking for.

    Oops.

    In the world of Orwellian language, this legislation protects our rights. In the real world, however, where there is no remedy, there is no right. When there is absolutely nothing you can do once you are wrongly accused—when a law permits summary arrest and indefinite detention on the say-so of those in power, with no hope of appeal, talk of “rights” is surreal. When there is no punishment provided for violating a rule, it isn’t a rule—it’s a suggestion. 

   

In the real world, members of the United States Senate spent barely two days discussing a bill to gut time-honored constitutional guarantees that generations of American soldiers have fought and died for. Senators didn’t agonize over this drastic change. They didn’t listen to the decorated military officers who argued that its passage would endanger our troops.

    In a recent column, Garrison Keillor said it best: no one who voted for this bill has any right to speak in public about the rule of law anymore, or to wax poetic about the American Idea. If the government can round up someone and never be required to explain why, then it’s no longer the United States of America. 

   

And we no longer have the words to describe what we are becoming.

 

 

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     I used to shrug off as cynical the recurring accusations about the influence of money in politics. Now I don’t.

     I am not referring to the corrupting influence of campaign contributions, of which the recent (and growing) Abramoff scandal is the most recent example. I’m talking about more subtle forms of dishonesty, prompted by lawmakers’ desire to be re-elected and enabled by voters’ belief that we can—and should—get something for nothing.

     Recently, the Indianapolis City-County Council authorized borrowing up to $35 million dollars against anticipated County Option Income Tax (COIT) revenues to help “fill the gap” in the 2007 city budget. The funds are presumably to be repaid in 2008 from reserves that the state has withheld. (The state says the withholding is intended to guard against “swings” in COIT collections; local officials say the real reason is so that the state will get the interest earned on those funds in the interim.) 

     Indianapolis isn’t the only municipality borrowing to meet current obligations. Cook County recently borrowed $200 million dollars to meet operating expenses. The 18-month line of credit carries an above-market interest rate of 10%. 

     Evidently, lawmakers would rather pay millions in interest later than face the need to cut services or raise taxes now.

     Government borrowing is not the problem—the problem is government borrowing to meet current operating expenses. Well-managed businesses will often borrow in order to invest in capital improvements—to amortize the costs of new facilities or to upgrade manufacturing equipment. Borrowing to make payroll, or to pay the rent, is a far dicier proposition.

     You can reasonably argue that government should borrow in appropriate circumstances. The question is: what circumstances are appropriate? 

    Unfortunately, political game-playing frequently trumps good public policy. Much has been written about Governor Daniel’s seventy-five year lease of the Indiana Toll Road. Whatever the merits of that decision, it was clearly prompted by the unwillingness of members of the Indiana General Assembly to raise tolls. After all, the State could have issued bonds to be repaid from future tolls, retained control of the asset, and realized more money than a lessee—who needs to make a profit—could pay. But then it would be obvious who raised the tolls, and some lawmakers might suffer at the polls. The Governor and General Assembly essentially “outsourced” authority to levy taxes (which is what tolls are), hoping they would thereby escape responsibility. 

    We see this privatization of taxing authority in other contexts. Homeowners’ associations are given responsibility for local streets, garbage collection and other services that were once public responsibility. The homeowner pays for those services through fees collected by the association, allowing the local government to claim it didn’t “raise taxes.”

    Ultimately, We the People are responsible for all these evasions of responsibility. Until we are willing to pay for the services we receive, until we stop thinking we can get something for nothing, we are just electing people to lie to us. And we are paying extra for the delusions.

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Senate confirmation hearings on General Michael Hayden raised a number of questions about the NSA surveillance program. While the devil is always in the details, let me risk oversimplifying the arguments pro and con: one side says such programs make us safer without unacceptably invading our liberties; the other side says—to plagiarize New Hampshire’s motto—live free or die.

 That’s the wrong debate.

Leave aside the troubling issue of government honesty and accountability. For the sake of argument, let’s assume the Administration played by the rules. Let’s further assume that intrusions on our liberties are, as proponents assert, minimal. What are the risks and rewards of this data mining operation? Is it making us safer—or is it actually compromising our safety?

Whatever its effectiveness in protecting us from terrorists—a hotly debated proposition within the FBI and CIA—this program and the “War on Terror” create significant non-terrorism-related security risks. As one scholar warns, the executive’s power to do whatever he deems necessary to “conduct war” will “displace the area previously assumed to fall within the criminal justice system.” In other words, the President will increasingly have a choice whether to categorize threats as matters of national security or matters of crime and criminal justice. We are already creating a “parallel law enforcement structure” not subject to constitutional restrictions. It will be increasingly tempting to argue that the criminal justice system is too inflexible and outmoded to use during the war on terror.  

If that is too abstract a concern, consider the very immediate, practical dangers posed by the existence of such a database. To begin with, it vastly increases opportunities for identity theft. Even if (as the Administration insists) conversations aren’t being monitored, numbers are. How many times have you used your telephone’s keypad to punch in bank codes or credit card numbers? All it would take to give thieves access to that information is one breach in computer security, or one  NSA employee with financial problems or dubious ethics.

How about blackmail?  What if government had evidence that an annoying activist or legislator was calling a phone sex line? Do you think that information might be used to get votes changed, investigations dropped, or public criticisms muted? It happened to Martin Luther King—and that was before we got so technologically sophisticated. The government has already used NSA information to identify who is leaking information to the press. If whistleblowers know their calls can be tracked, how long before we stop getting any inside information about government wrongdoing?

American privacy is vanishing. Our telephone companies willingly sold the records on each of us to the government. For money. Other businesses—Amazon, Google, your doctor, your insurance company—amass huge amounts of data on us all. We trade this information for convenience, and like many people, I have considered that trade mutually beneficial. If I knew the information might be turned over to government, I would have second thoughts, and I imagine many other people would as well.

For most Americans, Big Brother poses a much greater threat than Osama Bin Ladin.

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This is the time of year when I envy colleagues who teach math and science—courses where final examinations are filled with questions to which there are clear right and wrong answers. Students are comfortable with the certainties of such subjects; they have far more difficulty dealing with questions that are often answered—at least in part—with “it depends.”   

 

When undergraduates are told that the “right” answer consists of identifying and analyzing the issue—and not just choosing the correct outcome—they can find it positively disorienting. They tend to want clarity and bright lines–rules that can be memorized and regurgitated. That works when the question is two plus two; it’s dicier for most areas of real life.   

 

Despite all the rhetoric that gets thrown around these days about the differences between conservatives and liberals (whatever meaning those abused terms currently retain), I think it is this discomfort with the ambiguities of reality that best defines the contemporary political divide. Conservatives and liberals may be guided by different philosophies of government and different views of virtue, but most recognize the inherent messiness of life and acknowledge the dangers of too-rigid, too-doctrinaire approaches to our common civic life.

 

There are people of all political persuasions, however, who find the absence of moral certainty unbearable. We all know folks who began their civic life as passionate believers in one “ism” or another, and who reacted to disillusionment by embracing an opposing, equally extreme philosophy. Talk radio and shout television programs are filled with ex-communists who have fervently embraced right-wing dogma. Bookstore shelves display manifestos by former right-wing activists now devoted to unmasking the agendas of their erstwhile culture-war colleagues.

 

These are people who find the inevitable ambiguities of real life not just distasteful, but terrifying. Much like those ex-cons who can’t cope with life outside the predictability of prison structure and who purposely re-offend in order to be sent back, they need the psychic comfort that comes with imposed discipline—no matter how confining.

 

For better or worse, however, political and civic life requires compromise. Thoughtful conservatives, libertarians and liberals can generally find some common ground that makes governing possible. They understand that no one gets his own way all the time, and that an acceptable middle-ground is no small achievement in a society as diverse as ours. Zealots, however, find compromise not just distasteful, but evil. They don’t acknowledge the ambiguities; they not only don’t see shades of gray or moral complexity, they believe that people who do are the “real” enemy.

 

This dynamic plays out on both sides of the political spectrum, but in Indiana it has been most notable in the Republican primaries of recent years, where moderately conservative lawmakers have been defeated by people campaigning on the proposition that moderation itself is evil. Larry Borst and Bob Garton were not defeated by opponents debating the nuances of policy. They were victims of holy wars.

 

And even undergraduates understand that holy wars will ultimately victimize us all.   

 

 

 

 

 

 

 

 

 

 

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