Discretion and the Law

The Washington Post questions yesterday's Supreme Court decision upholding the ability of a police officer to stop cars he considers suspicious. Although the Post agrees that the search in question should be legal, they're concerned that the Court's guidance on when a stop should be considered legal or illegal is too vague and may lead to many illegal stops. Yet there isn't really much else the Court can do. The officer stopped the car based on a combination of factors: driving right at the Border Patrol's shift change time, driving a vehicle known to be popular among drug smugglers (i.e., profiling), children waving to him in what he considered an odd manner, etc. How can the Court quantify something like that? If there are five suspicious factors, you can stop the car, four or less means the stop's illegal? Vehicle profiling is legal, but ethnic profiling is not? There are literally hundreds of possible factors that a police officer must consider when deciding whether or not to make a stop, and there's no way to put together a list of acceptable factors to cover every eventuality.

There is a role for discretion in law enforcement, both for the police and for judges. And that discretion will be abused from time to time. Police officers will conduct illegal stops and searches. Judges will let felons off with warnings. It's incredibly frustrating to watch. But the alternative is worse. Mandatory sentencing laws give us prisons overcrowded with thousands of criminals who pose little risk to anyone. Gun shy cops choose not to stop anyone, rather than risk becoming the subject of a criminal probe for picking up someone of the favored color or gender.

There are no easy answers for this. The best we can do is do what we can to ensure we select police and judges with some concern for their ability to make these sorts of decisions well. None of them will get every question right, but a screening and training process that addresses the question of how to make the decisions is the best means we have to ensure the majority of those discretionary decisions are made correctly.

Battle of Mogadishu Revisited

Perry de Havilland of the estimable Libertarian Samizdata questions my assessment of the battle as a tactical victory. He says that Aideed's forces were successful in demonstrating the United States could not project power into areas controlled by Habr Gidr, Aideed's clan. But, in fact, despite the terrific losses inflicted by the Somalis, the American forces were successful in achieving their tactical objective: seizing two of Aideed's lieutenants. It seems odd to call a battle a success on any level, given the debacle it turned into, but when addressing the battle only at the tactical level, the American forces were successful. The question of the price they paid for their success, and the aftermath of the battle, are operational and strategic questions and were both American losses.

The Battle of Mogadishu bears more than a passing resemblance to another famous American battle--the Tet Offensive. Tactically, American forces were overwhelmingly successful during Tet, damaging the Viet Cong forces so badly they were effectively destroyed as a combat force. All the fighting in Vietnam after Tet was carried on the back of the NVA. But Tet was a huge strategic loss for the United States, creating the impression among many civilians the United States was losing the war and severely increasing the pressure to get the United States out of Vietnam. Mogadishu did the same thing. Tactically, American forces wreaked havoc on the Somalis; the Somalis themselves thought they'd lost the battle and were prepared to return to the negotiating table following the battle. But once we demonstrated we weren't willing to take further casualties, the battle was effectively a Somali victory at the level that really matters: strategic.

Deficits and Details

The front page of my local paper has a number of statistics gleaned from the latest census report, the Statistical Abstract of the United States. These include such tidbits as the amount of red meat and poultry Americans consumed in the 1990s and our per capita consumption of sweeteners. Leaving me with one question: why are we spending our tax dollars to find this stuff out?

The Constitution requires the government to conduct a census every ten years, to count how many people there are in the United States. We spent $6.5 billion on the 2000 census. Granted, a drop in the bucket when compared to the overall budget, but as a Congressman famously observed, a million here, a million there, pretty soon you're talking about real money. And the $6.5 billion doesn't count the losses in productivity caused by people having to take the time to fill out the forms. So why are we making this situation worse than it has to be by collecting information that, however interesting some may find it, has nothing to do with the Census Bureau's Constitutional mission? I'm willing to sacrifice my knowledge of the average monthly cell phone bill to save a few million tax dollars on the census, and I'll wager most people would be. The Census Bureau should return to its original mission and worry only about an actual enumeration of the peoples of the United States. Leave the trivia to private enterprise.

Tolkien and the Literati

Richard Jenkyns of The New Republic takes The Lord of the Rings to task for its myriad flaws, as he sees them. My personal opinion is he just doesn't like LotR because it's popular, and critics assume anything popular must be bad. But Megan McArdle at Live from the WTC tears through the article with an effectiveness I can't match, so go check out what she had to say.

The 'Should Have' Trap

Mickey Kaus asks if the Battle of Mogadishu was really such an American triumph. The real question addresses at which level you address the battle. Tactically, despite numerous blunders on the part of the raid's commanders, the battle was a clear victory for the United States forces. They took their objective, albeit with far more casualties than they anticipated. Operationally the battle ended up as a loss, because we didn't follow up our tactical success. Strategically, the battle was a clear win for Aidid, as the American forces were quickly removed, leaving Somalia to its own devices.

But Kaus takes issue with Black Hawk Down author Mark Bowden's contention we should have finished the job after the battle. According to Kaus, we demonstrated our ability to severely punish those who fight against us. "Shouldn't that—if publicized—have been enough for deterrence?"

Kaus is a smart guy, but apparently he has a blind spot here. It's quite clear our activities in Somalia deterred no one, and in fact encouraged Osama bin Laden in his belief the U.S. would retreat from anything if we took a few casualties. Bin Laden even bragged about having trained the Somali fighters, although why you'd want to brag about a force that took 30-plus casualties for every one it managed to inflict I don't know. Bowden is exactly right in his analysis. Whether or not it was a good idea to go after Aidid, once we declared we were doing so, we had to follow through. We didn't, and the results were predictable. The United States was shown, in many eyes, to be weak. In that same vein, now that we've started this war on terror, failure to follow through will lead other nations to think they can outlast us, the perception of the U.S. as weak will grow, and there will more attacks.

No Kidding Award

A Transportation official claims U.S. airline security has some flaws. I'm not sure whether to laugh or cry at that. The rest of the country seems to have figured out that little secret some time ago, yet it's just now come to the attention of the government? On the other hand, I suppose it's good to know someone in the government has gotten wise as well. Now the question remains, what are they planning to do about it?

Taxes and Economic Growth

The Cato Institute explains why government spending is far less efficient than spending in the private sector, deflating the hopes of Ted Kennedy, who wants to tax his way out of the recession. Of course, I'm not so sure the good senator doesn't understand this. Maybe Ted is smarter than he's given credit for. If he is successful in rolling back the Bush tax cuts, we're more likely to remain in this recession. The longer the recession goes on, the more leverage the Democrats will get from it. Politically, it is in the Democrats's best interests to prolong the recession until 2004. Doing so would almost assure them of taking the White House in 2004, and with a significant coattails effect as well. Could Ted really be that smart?

The Vultures Circle

Tort lawyers are beginning to look into the possibility of class action lawsuits against fast food chains and candy companies in response to the Surgeon General's war on obesity. A John Banzhaf, who bills himself as a public interest lawyer, claims lawsuits would be a suitable way to force the costs of overeating onto the companies and the obese. After all, he laments, "Why should I be forced to subsidize other people's bad habits?" An excellent question, and one on which he and I agree. But lawsuits are not the only way to deal with such a problem (sacrilege to a tort lawyer, no doubt). Perhaps a better question would be, why is it the government can force us all to subsidize other people's bad habits?

The U.S. Constitution is a pretty simple document. Only a few pages in length, it details what powers the federal government is supposed to have and puts certain limitations on the powers of state governments. And the Tenth Amendment states that all powers not specifically designated to the federal government or denied to the states are reserved to the states or the people. And nowhere in the Constitution does it talk about the federal government providing medical assistance to the people. Indeed, the powers reserved for the Congress are surprisingly limited. Yet over the course of some two hundred and fourteen years, Congress has slowly extended its powers, with the tacit consent of the Supreme Court. Yet the Constitution still stands as the supreme law of the land, the basis for all laws in the United States. I would argue Mr. Banzhaf would do far more in the public interest by pointing out just how much of what Congress does these days is illegal according to the Constitution. If Congress were not permitted to so thoroughly exceed its constitutional authority, Mr. Banzhaf wouldn't have to worry about the federal government taxing him to pay for other people's indulgences.

Granted, the states might then be able to take up some of the slack. But it is unlikely all states would address an issue like medical care for their citizens in the same way. With up to fifty different systems in place, from socialized medicine to no care at all, citizens could then make an informed choice about where to live. Over time, states with more successful plans would find their tax base growing through immigration, while states with poorly devised systems would lose population. Granted, this solution takes far longer to implement than some sweeping federal program, but it would also end up with a far more efficient system.

Regrettably, I don't believe the Supreme Court is ever likely to knock down even the slightest on Congress's unconstitutional laws. Congress has had these powers too long, and many people now expect so much of the federal government they wouldn't accept having to work through their state system. But a real debate on what the Constitution actually says Congress is supposed to do might help to at least put the brakes on the growth of the federal government for a time, a goal well worth the effort.

The Right way to Address Economic Hardship

As the recession and a strong dollar make it difficult for American manufacturers to sell their products overseas, U.S. companies have chosen two different routes to solve their problems.

On the one hand, the American steel industry wants the government to take over its pension and health insurance obligations to the tune of some $12 billion, and they'd also like the president to jack up tariffs on imported steel, so they can sell here at home. This approach will take billions more out of every American's pocket, as the cost of building anything using steel will jump. Other U.S. manufacturers will be harmed when other countries ratchet up their own tariffs on some of our goods in retaliation for our steel protectionism. All to benefit the few thousands who work in the American steel industry.

Companies that don't have the benefit of strong government protection, however, are reacting to the strong dollar in ways that will benefit all Americans. They're learning how to be more efficient. They're honing their sales and marketing skills. They're forming partnerships with foreign firms. All these adaptations will not be enough to keep them all in business. But those that remain will be far stronger and better able to take advantage of a strong market when the economy recovers. Those will be the companies that will drive the American economy upward, while steel companies wallow along behind protectionist walls and government intervention.

The Bush Administration has wisely steered clear of trying to weaken the dollar, and just as wisely did not bail Enron out of its mismanagement. President Bush should stand strong on allowing American steel companies to succeed or fail without government help.

Back to the Future

Lawrence Kaplan raps the Democrats' knuckles for their refusal to seriously address foreign policy. For a number of reasons, the Democratic Party, with a few holdouts, is adamantly opposed to any action against Iraq. I had hoped the deaths of more than 3,000 people on September 11 might have awakened the Democrats to the idea some people just don't like us, and will do whatever they can to kill us. But apparently the Democrats assume that now that we've had our little war in Afghanistan, everything will be fine and dandy. Granted, we have taught the world a lesson, but it's just as clear people like Saddam haven't gotten the message yet. And there's only one way to deliver that message that will ensure our enemies understand where we're coming from--we have to remove people like Saddam from power, as cleanly as possible. President Bush has rightly cautioned America and the world that Afghanistan is only the beginning of our war on terror. Once we've finished our business there, he must follow through on that belief. Iraq isn't the only way to do that, of course. But the Democrats seem to be more interested in getting September 11 and terrorism behind them, rather than offering alternatives of their own.

Public Intellectuals and Blogging

Rick Perlstein bemoans the collapse of magazines like Lingua Franca and Feedmag.com as the loss of the 'farm teams' for public intellectuals. He notes books by Russell Jacoby and Richard Posner that ask why there are no more public intellectuals, no more people who write intelligently on topics the public wishes to hear about. And Perlstein rightly notes that while it may be harder to locate such people, due to cutbacks of tradition starting points for these intellectuals, they're still writing.

Certainly they are, for while I'd not call myself an intellectual by any stretch of the imagination, there are certainly plenty who do blog. Some I have listed to the left, but that's by no means an exhaustive list. There are an amazing number of people writing on topics of public interest throughout the world, and now the Internet allows us to read them. Perlstein does not mention blogs, of course; apparently we're not yet as influential and well known as we'd like to believe. But reading his piece, you realize you've seen such voices all around; you just didn't identify them as such.

Nuclear Testing

Michael O'Hanlon, last seen explaining what a great job President Clinton did with the military, now calls for the United States to ratify the Comprehensive Test Ban Treaty. His argument is that keeping other nations from developing nuclear weapons is more important than ensuring our own are modernized and tested. He's probably right, but he fails to demonstrate how the CTBT will actually accomplish that. O'Hanlon suggests that having the treaty in force would allow us to enforce economic sanctions against nations violating the treaty, and even could use it to justify military action.

But here's a news flash for Mr. O'Hanlon: economic sanctions don't seem to work too well, and if we know someone is developing a nuclear weapon, we don't need a treaty to justify taking them out. The CTBT is just another piece of paper that will be ignored by those it attempts to stop. The only nations that will abide by this kind of treaty are those that wouldn't be developing or testing nuclear weapons anyhow. And ten years of sanctions against Iraq, opposed even by many of our erstwhile allies, should tell us all we need to know about how much sanctions can accomplish. The CTBT is a panacea we don't need. President Bush is right not to try and have the Senate ratify it.

Executive Privilege

Thomas Oliphant finally comes out against the Clinton Administration's stonewalling on the records of its health care task force, but only so he can attack President Bush for concealing the records of the energy task force run by the Vice President. Needless to say, Oliphant has nothing but praise for Representative Henry Waxman (D-CA), who saw nothing wrong with anything the Clinton administration did for eight years but who has suddenly decided that acts that were just fine for Clinton look very bad indeed if performed by Republicans.

But they're both right. There's absolutely no good reason for the Bush Administration to try and conceal what happened on its energy task force. If something underhanded did occur, then they screwed up and they need to come clean, eliminate those who broke the law, and move on. If, as is more likely, nothing illegal occurred, all they're doing is damaging the integrity of the office to no good purpose. Worse, they're allowing something insignificant to take away from the war on terrorism, which should be the administration's primary reason for being.

The President needs to take this issue away from the Democrats as quickly and cleanly as possible. That means releasing all the records at once and addressing any real issues with them right away. The sooner that's done, the sooner the issue will fade away, allowing him to return the focus to what's really important.

Krugman Speaks

Paul Krugman has released a self-important defense, of sorts, of his connection to Enron and his receipt of $50,000 from them to serve on an advisory board. He defends his payment as simply a reasonable sum given to someone of such ability as himself. I don't know enough about speakers' fees and advisory boards to speak intelligently about that, and in any case I have never cared overmuch about how much money he got or if it was a reasonable amount. My question remains unanswered by Krugman: why is it he wrote so glowingly about Enron when they were paying him, only to turn on them over the past year? Until he addresses that question, I don't believe his judgement on any issues is to be trusted, as it is certainly reasonable to wonder if his sharp tongue can be directed at targets of choice with only the application of $50,000.

Thanks to Instapundit for the link.

Lynch Lay

Bruce over at Flit and Tony Adragna call for Kenneth Lay's lynching as punishment for the damage Enron's executives did to their employees through their accounting shell games. This simply points up the magnitude of the problem we're facing with Enron's collapse. Despite President Bush's suggestion, the system did not work with Enron. The company executives were able to cash out much of their stock by talking the company up even though they knew they were in trouble. It seems to me that these actions merit a measure of punishment, as our system depends on good information to work properly. Companies that can talk up their stock with lies are bad enough, but executives who talk up stock to their own benefit and to the detriment of their employees pose a true danger to the capitalist system.

Conservatives and libertarians traditionally, and rightly, extol the virtues of capitalism. But capitalism has to rest on a sturdy foundation if it is to succeed, and that means there is a role for government in it. Not to try to guide the system, nor to reapportion the rewards of it, but to maintain the framework of laws that are necessary to ensure the system isn't improperly manipulated. No economic system can work if some are permitted to manipulate the system to their own ends, and for this reason it is incumbent on the Bush Administration to punish (short of lynching) all those at Enron who abused the system to their personal advantage.

That doesn't mean creating a host of new laws, however. There's no need to deny companies the ability to match their employees's 401k contributions with company stock, or to force employees to diversify their portfolios. There is still plenty of room in the world for people to take responsibility for their own actions. What needs be done is simply to make an example of Enron, that lying about your company's earnings or standing will be severely punished, both with jail time and massive fines, enough to eliminate the gains they made and more.

This won't prevent this from happening again necessarily. There are always those who believe they won't be caught, and so repeat the mistakes of the past. But we need to enforce our laws strictly and fairly on those who violate them. Ken Lay and his staff should face harsh criminal penalties for their misdeeds, and the Bush Admistration should lead the charge.

Presidential Greatness

A Zogby poll has President Bush ranked third among the last twelve Presidents, with 63% of respondents ranking him as great or near-great. Of course, 71% rank Kennedy as great or near-great, demonstrating the marginal value of such polls. Still, human nature loves to rank things, and so I'm going to jump in with my own assessment of our last twelve presidents, further delineating the rankings by breaking them down into great, good, average, below average and poor.

Great
Franklin D. Roosevelt
Ronald Reagan
Good
Harry S Truman
Dwight D. Eisenhower
Average
Lyndon B. Johnson
George W. Bush
George Bush
Bill Clinton
Below Average
John F. Kennedy
Gerald Ford
Poor
Jimmy Carter
Richard Nixon

Number one is a tough call. But Roosevelt, despite his appalling expansion of the government, did guide us successfully through the Second World War, an accomplishment too great to ignore. Reagan's successful completion of the Cold War doesn't match up, although it was certainly important as well. Truman and Eisenhower both did well enough to rate as above average. Johnson, both Bushes, and Clinton were average, with a blend of pluses and minuses. Bush ranks above Clinton because, although people do vote their pocketbook, the president's ability to drive the economy is far smaller than they're given credit (or blame) for. Kennedy could easily drop to poor for his horrendous foreign policy, dropping the ball on the Bay of Pigs and making our first tentative steps into Vietnam, but his launch of the space program and success with the Cuban Missile Crisis keep him out of the cellar. Ford is below average as much for the short time he was in office as for his programs as president. And Carter and Nixon both rank as poor, for reasons that shouldn't require explanation.

I won't suggest these are worth much, but they make for an interesting start to a discussion, perhaps. We'll see if anyone else chooses to take up the question.

Thanks to Joanne Jacobs for the link.

Krugman Revisited

Paul Halsall writes again to point out that the article Krugman wrote praising Enron was found on Krugman's own site, he must not have anything to hide. Not necessarily the case, as I'm willing to bet Krugman doesn't maintain his own site in the first place. But I don't think Krugman is necessarily hiding anything. Nor do I think his connection to Enron is sufficient to warrant removing him from the Times' op-ed pages, although I think he's a poor columnist and should be removed on those grounds. I do think he should address his reversal of positions, however. Why is it he considered Enron a model company when he was getting money from them, but consider them bad now? That's the real question, and one I think he needs to answer. There may well be a good reason behind it. Conversely, he may be going after Enron now simply because he'll take any angle he can to attack President Bush. In any case, the questions raised by the contradictory positions Krugman has advocated deserve to be answered, but Krugman shows no signs of even acknowledging them.