War Crimes Pardons: A Terrible Memorial Day Idea

On May 16, 2008, near the town of Baiji in Iraq, 1st Lieutenant Michael Behenna, US Army, murdered a prisoner.  That was the verdict of the jury in his 2009 court martial, anyway. He was sentenced to 25 years in prison, but paroled in less than five. On May 6, 2019, US president Donald Trump pardoned Behenna.

As I write this, news reports indicate that Trump intends to celebrate Memorial Day by pardoning several other Americans convicted of (or accused of and not yet tried for) war crimes in Iraq and Afghanistan. That’s a horrible idea for several reasons.

One reason is that it’s morally repugnant to excuse the commission of crimes, especially violent crimes, for no other reason than that the criminal is a government employee.

A second reason is that it is detrimental to the good order and and discipline of the US armed forces to excuse violations of law by American soldiers, sailors, airmen, and Marines.

That phrasing is not random: “[D]isorders and neglects to the prejudice of good order and discipline in the armed forces” are themselves crimes under Article 134 of the Uniform Code of Military Justice. Yes, Trump has absolute power to pardon under the US Constitution, but this would be an abuse of that power that conflicts with his duties as commander in chief.

A third reason is that pardons of this type essentially beg other governments to take matters into their own hands where allegations of war crimes by US military personnel arise.

Among the US government’s excuses for refusing to join the International Criminal Court, and for forcing agreements by other governments to exempt American troops from prosecution under their own laws, is that the United States cleans up after itself and holds its troops to at least as high a standard as would those other governments. These pardons would give lie to that claim and expose US troops to greater risk of future arrest and prosecution abroad.

Don’t just take my word for these claims. Here’s General Charles Krulak, former Commandant of the US Marine Corps:

“If President Trump issues indiscriminate pardons of individuals accused — or convicted by their fellow servicemembers — of war crimes, he relinquishes the United States’ moral high ground and undermines the good order and discipline critical to winning on the battlefield.”

And here’s General Martin Dempsey, former Chairman of the Joint Chiefs of Staff:

“Absent evidence of innocence or injustice the wholesale pardon of US servicemembers accused of war crimes signals our troops and allies that we don’t take the Law of Armed Conflict seriously. Bad message. Bad precedent. Abdication of moral responsibility. Risk to us.”

After World War Two, the US and other governments which participated in victorious alliance versus the Third Reich and the Empire of Japan tried and punished — up to and including execution — German and Japanese soldiers accused of war crimes and the political leaders who ordered, encouraged, or excused those crimes.

If the US doesn’t hold itself to at least as high a standard, eventually someone else will.

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Governing Least‘s Immigration Oversight

Dan Moller’s Governing Least barely mentions immigration.  But it should have, because of its strong implications for this hugely important issue.  Applying Moller’s approach, there is not only a moral presumption in favor of open borders, but a host of residual obligations that accompany even justified restrictions on immigration.

Recall that Moller’s libertarianism highlights the effrontery of extra-libertarian moral demands:

Imagine calling a town hall meeting and delivering the following speech:

My dear assembled citizens: I know most of us are strangers, but of late I have fallen on hard times through no fault of my own, by sheer bad luck. My savings are low, and I don’t have friends or family to help. Now as you know, I’ve previously asked for help from you as private citizens, as a matter of charity. But unfortunately that hasn’t been sufficient. Thus, I’m here now to insist that you (yes you, Emma, and you, John) owe me assistance as a matter of justice. It is a deep violation if you don’t work additional hours, take fewer vacations if need be, live in a smaller house, or send your kids to a worse school, in order to help me. Failing to do so is no less an injustice than failing to pay your debts.

Moreover, calling this an injustice means that it’s not enough that you comply with your obligations by working on my behalf. No, I insist that you help me to force your fellow citizens to assist me. It doesn’t matter if these others say to you that they need the money for their own purposes, that they prefer worthier causes, or if they’re just hard-hearted and don’t care. To the extent you care about justice, you must help me to force these others to assist me whether they wish to or not, since that is what is owed me in light of my recent bad luck.

Could you bring yourself to make this speech?

But Governing Least also gives this imaginary speech a libertarian foil:

Compare, then, a similar speech advancing a different substantive claim:

My dear assembled citizens: of late, some of you have been stealing my money. I’m here now to insist that you (yes you, Emma, and you, John) give it back. This means that you owe me thousands of dollars which you stole. It’s a deep violation if you don’t work additional hours, take fewer vacations if need be, live in a smaller house, or send your kids to a worse school, in order to pay me back what you stole. Failing to do so is no less an injustice than failing to pay your debts. Moreover, calling this an injustice means that it’s not enough that you comply with your obligations by working on my behalf to repay me what you’ve stolen. No, I insist that you help me to force the thieves among you to pay restitution. It doesn’t matter if these thieves say to you that they need the money for their own purposes, that they prefer worthier causes, or that they’re just hard- hearted and don’t care. To the extent you care about justice, you must help me to force these others to repay me what they stole.

No one is likely to be embarrassed by this variant. Even if we are shy and uncomfortable about confronting others in public speeches, there is nothing strange about the idea of giving such a speech, or about someone giving it. To the extent there is a problem with the first speech it lies not in its manner but its substance.

When a foreigner demands his right to work for a willing domestic employer or rent from a willing domestic landlord, it closely parallels the second speech.  The only out is to appeal to the very “emergent moral powers of the state” that Moller decisively rejects:

Essentially, the issue is whether there are emergent moral powers of the state — permissions that the state enjoys that mere individuals do not. It is an important assumption in some of my arguments that we can compare the actions of the state to the actions of individuals, and that objections to what individuals or groups of individuals do to us by way of infringing our rights can be objections to what the state does, assuming the circumstances and grounds of infringement are similar. I will assume, that is, that it makes sense to ask such questions as, “Could I and my friends break down your door and compel you to give us your money for reason X under circumstances Y?” and to draw conclusions about what the state may do. We can call this the non- emergence assumption.

Since it would be normally be morally wrong for my friends and I to exile someone for being born in a different country, it is also normally wrong for governments to do so.  In other words, Moller’s work implies an open borders presumption.  Furthermore, even if the consequences of immigration were sufficient to surmount this presumption, regulators must mind Moller’s residual obligations:

I propose the following non-exhaustive list of residual obligations for cases like Emergency:

Restitution: although I didn’t do wrong, I must repay the $1,000 if possible, perhaps in reasonable installments.

Compensation: to the extent you are otherwise harmed by my actions, I should attempt to compensate you. For instance, if I smashed your windows getting in or forced you to incur some loss because you had to come home at short notice, I must compensate you at some reasonable rate.

Sympathy: it is incumbent on me to convey, if not an apology for my (permissible) actions, at least sympathy for the harm I have caused you. (“I’m very sorry I had to do that” would be the natural if slightly misleading phrase.) I cannot offer a Gallic shrug at your distress and announce, “I did nothing wrong— it’s your problem” as you survey the wreckage of your home. To do so would exhibit a serious character flaw.

Responsibility: my obligations are not just backward looking, but forward looking. If I can reasonably foresee that some action of mine will put me in the position of facing an emergency that will then render it permissible to harm you, I must take responsibility to avoid such actions if possible. I should not think that I have less reason to take responsibility because I can avoid harms by transferring them to you instead. And failing to take responsibility weakens my claim to impose costs on others when the time comes.

So even when immigration regulations are morally justified responses to dire consequences, governments cannot legitimately restrict immigration unless they also:

a. Pay restitution/compensation to innocents denied admission.

b. Earnestly apologize to innocents denied admission.

c. Scrupulously eschew policies that give immigration dire consequences.  For example, governments cannot rightfully refuse immigration on the grounds that, “Our welfare state is so generous that you would be a big net fiscal burden.”  Even if this is true, Moller’s framework places the blame on the governments that create dangerously generous welfare states in the first place.  Once a government adopts these irresponsible policies, they have no right to “avoid harms by transferring them” to immigrants.

To repeat, I’m the one using Moller’s approach to morally assess immigration.  He focuses almost entirely on the welfare state, mentioning immigration only in passing.  To my mind, this is doubly unfortunate because…

First, the harm of the welfare state, though serious, is minor compared to the harm of immigration restriction.  Denying billions of desperately poor people the right to move to opportunity is far worse than forcing hundreds of millions of fortunate people to “donate” a quarter of their income.

Second, it reinforces the false stereotype that libertarianism disregards the rights of the poor.  When the U.S. government jails families for the “crime” of seeking asylum, an exclusive focus on the evils of programs like TANF and SNAP really does reveal a major moral blind spot.  Since Moller reads abundant empirical research, moreover, he can’t easily plead ignorance of the facts.

Fortunately, Moller can remedy this situation… by writing a follow-up article on the ethics of immigration.  He totally should.

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Dan Moller’s Governing Least

Michael Huemer’s The Problem of Political Authority is definitely my favorite work of libertarian political philosophy.  Dan Moller’s new Governing Least, however, is definitely now my second-favorite work of libertarian political philosophy.  The two books have much in common: Both use common-sense ethics to argue for libertarian politics.  Both are calm, logical, and ever-mindful of potential criticisms.  Both strive to persuade reasonable people who don’t already agree with them.  Both are packed with broader insights.  And despite these parallels, both are deeply original.

So what’s most original about Moller’s position?  Instead of focusing on the rights of the victims of coercion, Moller emphasizes the effrontery of the advocates of coercion:

[I]n my account libertarianism emerges from everyday moral beliefs we have about when we are permitted to shift our burdens onto others. In fact, my account intentionally downplays the role of rights, and is motivated by doubts about what we may demand of others, rather than outrage about what others demand of us.

The effrontery is most blatant when you speak in the first person:

Imagine calling a town hall meeting and delivering the following speech:

My dear assembled citizens: I know most of us are strangers, but of late I have fallen on hard times through no fault of my own, by sheer bad luck. My savings are low, and I don’t have friends or family to help. Now as you know, I’ve previously asked for help from you as private citizens, as a matter of charity. But unfortunately that hasn’t been sufficient. Thus, I’m here now to insist that you (yes you, Emma, and you, John) owe me assistance as a matter of justice. It is a deep violation if you don’t work additional hours, take fewer vacations if need be, live in a smaller house, or send your kids to a worse school, in order to help me. Failing to do so is no less an injustice than failing to pay your debts.

Moreover, calling this an injustice means that it’s not enough that you comply with your obligations by working on my behalf. No, I insist that you help me to force your fellow citizens to assist me. It doesn’t matter if these others say to you that they need the money for their own purposes, that they prefer worthier causes, or if they’re just hard-hearted and don’t care. To the extent you care about justice, you must help me to force these others to assist me whether they wish to or not, since that is what is owed me in light of my recent bad luck.

Could you bring yourself to make this speech?

The fundamental objection to Moller’s position, he thinks, is to claim that governments have “emergent moral powers.”  But Moller firmly denies this.  Governments are just groups of people, so they are morally obliged to follow the same moral principles as everyone else.  While this may seem like libertarian question-begging, there’s nothing uniquely libertarian about it:

It is notable that many who wish to block rights-based objections to state action are nevertheless eager to enter their own moral objections to what the state does. Many of those unsympathetic to attacks on taxation rooted in individual rights also portray the absence of welfare provisions or various immigration policies as “unconscionable.” There is nothing inconsistent about this; the one set of moral claims may be right and the other confused. But the objection then cannot be based on the emergent moral powers of the state. We cannot both reject appeals to individuals rights on the general grounds that morality has nothing to tell us about what may emerge from government institutions, and then do just that, substituting our own preferred brand of interpersonal morality. Once we notice this, support for emergence should shrink drastically, since it will only come from those who think there are no policies of the state that can be rejected on fundamental
moral grounds. The non- emergence assumption per se has no particular ideological leanings.

But doesn’t common-sense morality admit that rights to person and property are not absolute?  Of course; exceptions abound.  Moller sternly emphasizes, however, that these exceptions come with supplemental moral burdens attached.  In his “Emergency” hypothetical, for example, you steal $1000 under duress.  What then?

I propose the following non-exhaustive list of residual obligations for cases like Emergency:

Restitution: although I didn’t do wrong, I must repay the $1,000 if possible, perhaps in reasonable installments.

Compensation: to the extent you are otherwise harmed by my actions, I should attempt to compensate you. For instance, if I smashed your windows getting in or forced you to incur some loss because you had to come home at short notice, I must compensate you at some reasonable rate.

Sympathy: it is incumbent on me to convey, if not an apology for my (permissible) actions, at least sympathy for the harm I have caused you. (“I’m very sorry I had to do that” would be the natural if slightly misleading phrase.) I cannot offer a Gallic shrug at your distress and announce, “I did nothing wrong— it’s your problem” as you survey the wreckage of your home. To do so would exhibit a serious character flaw.

Responsibility: my obligations are not just backward looking, but forward looking. If I can reasonably foresee that some action of mine will put me in the position of facing an emergency that will then render it permissible to harm you, I must take responsibility to avoid such actions if possible. I should not think that I have less reason to take responsibility because I can avoid harms by transferring them to you instead. And failing to take responsibility weakens my claim to impose costs on others when the time comes.

A related principle is worth mentioning as well:

Need: my warrant for harming you depends on how bad my situation is. I cannot harm you if I am doing fine already merely in order to improve my position still further. I may be permitted to take your $1,000 to avert a physical threat, but not in order to make a lucrative investment in order to get even richer.

The political implications are expansive, starting with:

A welfare state justified in virtue of overriding reasons to promote the good of the beneficiaries incurs these residual obligations. Flouting them amounts to unfair burden- shifting. What would it look like actually to satisfy them? For starters, if I were the beneficiary of some emergency medical procedure that a third party compelled others to contribute to— say a state agency— I would be obligated to
repay those charged for my benefit, possibly with some compensatory surcharge. If unable to pay, I would be required to pay in installments, with the agency keeping track of my income and tax records to ensure that my repayment were in line with my means…

Moreover, in repaying, my attitude toward my fellow citizens ought to be one of gratitude for coming to my assistance, as opposed to viewing these services as entitlements due to me as a matter of citizenship. This may seem curious: by hypothesis, the services I received made it past the threshold, meaning that the wealth transfers involved were permissible, and since I am repaying, they won’t
even be net transfers in the long run, barring misfortune. Depending on how badly I needed aid, aiding may even have been obligatory on a third party. Why should I express gratitude for others fulfilling their duties? Consider the Gallic shrug— that supreme expression of indifference at someone else’s misfortunes, while disclaiming all responsibility for rectifying them, frequently encountered
in Parisian cafés. Why shouldn’t I shrug my Gallic shrug at the rich complaining about their tax bill, and point out I merely got what I was entitled to, as would they in a similar situation?

This complaint would be apt if appropriate moral responses were a function solely of whether our acts are required or permissible. But there are all kinds of inappropriate moral responses even when what we have done is permissible or when what the other has done was required. If we are to meet for lunch and an urgent business affair obtrudes itself, I may be permitted to skip our lunch, but
I shouldn’t treat putting you out lightly. What makes a Gallic shrug a vice here is that beneath the outer layer of permissibility there remains an inner structure whereby you have been harmed for my sake, which ought to be a source of concern, leading to some appropriate expression of regret if I am a decent person.  And the same is true in the case of welfare services. This is easy to ignore because
of the opaque veils of state bureaucracy. But behind the faceless agency lie people who are harmed for the sake of benefiting me.

Governing Least manages to be at once readable and dense.  And though you can’t tell from the passages I just quoted, Moller also repeatedly appeals to and grapples with cutting-edge social science.  What, for example, should philosophers think about Greg Clark’s work on the long-run heritability of social status?  Moller’s take will surprise many of you.

Last question: Why do I still prefer Huemer to Moller?  Intellectually, because Huemer’s appeal to individual rights is just more clear-cut than Moller’s objection to “burden-shifting.”  Furthermore, Huemer focuses on the broader case for libertarianism, while Moller self-consciously focuses on opposition to the welfare state.*  And while Moller’s book is beautifully written and well-organized, Huemer’s is stellar on both counts.

Thus, if you’re only going to read one book of libertarian political philosophy, I still say you should read The Problem of Political Authority.  If you’re willing to read two such books, however, read Governing Least.  I loved it.

* Moller: “I also ignore the many noneconomic causes that libertarians have sometimes taken up, like free speech, gay marriage, and drug legalization. This is the fun part of libertarianism and requires little heroism to defend. Many disagree with such policies, but few think their sponsors cruel or ungenerous, while resistance to the welfare state and programs intended to foster economic equality evoke precisely that response.”

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Poverty and Success

Perhaps the most unpopular opinion I hold is that—in spite of the myriad obstacles to success instigated by the state—success is still achievable by a significant percentage of the population (>95%) and poverty is a result of one’s own choices in a similar percentage of cases.

I am not suggesting that everyone’s idea of success necessarily requires financial wealth or that poverty (a lack of financial wealth) is always an undesirable state of existence. Some people do indeed choose to prioritize other goals above wealth, and that is certainly their right. I also acknowledge that there are some people (<5%) in any population who, due to severe disability or state maleficence (typically through the so-called “criminal justice system“), have limited or no ability to achieve financial success.

Caveats aside, my basic thesis is that greater than 95 percent of people are capable of and have the opportunity to achieve financial success, but that many (and even a majority) do not take advantage of their opportunities. There are numerous decisions, reasons, and alternative priorities that explain this phenomenon and the following are far from an exhaustive list.

  1. Not taking advantage of educational opportunities. In the U.S. and most developed countries, basic education is available to all at no charge and higher education is available inexpensively or even at no charge to those who can demonstrate financial hardship. In addition, the information age has led to an unprecedented increase in the quantity and quality of educational materials available at little or even no charge. Nearly anyone can learn to do anything if they are willing to put in the effort. Those who choose to live their lives in ignorance have almost always chosen that path.
  2. Having children (they cannot afford) too young. This is another huge predictor of one’s likelihood of achieving financial success. Having children represents nearly a quarter-million dollars’ worth of expenses taken on which will have to be paid in a span of fewer than two decades. Why do people make this foolish choice? If your finances would not support the purchase of a Lamborghini Huracán, they also don’t support you having a child. Wait or abstain!
  3. An unwillingness to relocate. Here we see another significant problem that plagues the perpetually poor. Sometimes opportunity doesn’t knock on your door. Sometimes you have to go hunt for it. Cost of living is also a major factor here. The Apartment List National Rent Report found that the median rent for a two-bedroom apartment in New York City was $2,523. It was even higher at $2,621 in San Jose, CA. Compare that to Phoenix, AZ or Houston, TX where the averages were $1,061 and $1,024 respectively.

It is not just rent either; today, the average cost for a gallon of gas in San Jose, CA, is $3.27 while in Houston, TX, it’s $1.93. Play with a Cost Of Living Calculator and observe the difference. Right now, the cost of living is 44.33% lower in Houston than in the San Francisco area and 56.82% lower than in the Manhattan area. Why do poor people stay in expensive cities?

What about finding a job? The lowest unemployment in the country right now is in the Ames, IA Metropolitan Statistical Area (MSA) at just 1.4 percent. That’s less than half the 3.6 percent unemployment rate in the New York MSA, and yet the cost of living in Ames, IA, is 59.19% lower than in Manhattan. If you are working full time earning $20 an hour (well above the minimum wage) in New York, you could move to Ames, IA, and take a job making $8.50 an hour and you would be better off ($8.17/hr. is the breakeven point.) Oh, and gas at Sam’s Club in Ames is going for $1.86 a gallon today.

So what is my point with all this information? My point is that if people would make smarter decisions—particularly about their education, when they have children, and where they live—they would have a far greater chance of achieving financial success. I’m not suggesting that it is always easy or that there are not obstacles to overcome, but I am suggesting that it is not nearly as difficult as some people claim. Poverty is not the fault of billionaires or of “greedy capitalists” or of some systemic injustice that keeps “po’ folks” down. Poverty is the natural and predictable result of ongoing poor choices, and until people realize this and start taking responsibility for their own culpability in their financial situations, we will continue to hear the growing chorus of complainers demanding political intervention to redistribute money from those who earned it to those who did not.

With few exceptions, it is fair to say that poor people make poor choices.

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A Conservative Confession

Few psychological results are as well-grounded as hedonic adaptation.  Human beings often have strong short-run reactions to even mild stimuli.  An ice cream cone can put a huge grin on our faces.  Missing a red light can make us scream with rage.  In the long-run, however, human beings’ emotional reactions to even extreme stimuli soften to a shocking degree.  If you won millions in the lottery, the thrill would soon fade.  If your girlfriend dumped you, the pain of that would soon fade, too.  Hedonic adaptation isn’t perfect, but it is a mighty psychological force.

I’m weird in many ways, but as far as I can tell, my hedonic adaptation is quite normal.  Indeed, my only visible abnormality is self-awareness.  I know that I’m going to hedonically adapt to most good and bad life events, so I place little stock in life events.  And I get impatient with people who refuse to do the same.

So what?  Well, all this leads to an uncomfortable epiphany.  Intellectually, I’m convinced that even liberal, democratic societies are deeply unjust.  Logically, for example, the analogy between Jim Crow and immigration restrictions seems apt.  But psychologically speaking, I can still get used to this injustice.  Indeed, I’ve long since done so.

So what politically aggravates me?  Change in the wrong direction.  Though I do my best to regulate my own emotions, I fall short of perfect Stoicism.

The upshot: Even though my political views are deeply unconservative, the honest truth is that if existing justices and injustices were locked in place for ever, I would personally be happier.  When the world stops changing, it’s easy to accept the world as it is.

What does this justify?  Nothing, of course.  But don’t say that I only feel this way because my life is fine.  Plenty of people with far more than me are filled with rage.  Plenty of people with vastly less than me live relaxed, care-free lives.  Why?  Epicurus elegantly explained it millennia ago: What inspires positive and negative emotion is not so much our situation, as the gap between our situation and our expectations.  The lower your standards, the better you’ll feel.

And that is my conservative confession.

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Open Borders as Global Justice: Sowell Edition

Immigration laws don’t merely allow discrimination; they require it.  As the result, such laws are deeply anti-meritocratic.  Employers may be allowed to hire the best citizen for the job, but not the best person.

Even more strikingly, the injustice ripples down through the generations.  When you trap a foreign-born father in a Third World country, you don’t just stunt his prospects; you stunt his children’s prospects as well.  Indeed, this physical and mental stunting is often plain as day.

These truisms came firmly to my mind when I recently re-read the title essay of Thomas Sowell’s Compassion Versus Guilt:

Many years ago, in a Third World country, I noticed by the side of the road a ragged and forlorn little boy, who bore an uncanny resemblance to my son.  It was a momentary but penetrating shock – followed by a sober realization that that was what my son might be like, if we had been born there instead of in the United States.

The essay continues:

Even the most ardent believer in individual merit must recognize that where you happen to have been born, how you were raised, or where you happen to have been located when opportunity or disaster came along, can make all the difference in the world.

Sowell then wisely warns that we should not let pity drive us to rash, counter-productive remedies:

People are different, and these differences have consequences… Many of our attempts to share our good fortune with others, at home and abroad, have undermined the very efforts, standards and values that make that good fortune possible.  Trying to ease our own guilt feelings is very different from trying to advance those less fortunate.

Many of Sowell’s fans will take this as a thinly-veiled critique of open borders.  Nowadays, Sowell himself might do the same.  But that’s an unreasonable reading of what he meant at the time.  No, Sowell’s top two worries were: (a) labor market regulations will disemploy the poor, and (b) redistribution will lead the poor to make bad long-run decisions.  Neither remotely applies to simply deregulating labor markets so the global poor are free to accept job offers in the First World.

Notice, moreover, that Sowell is pushing the classic libertarian/conservative argument that government intervention is ultimately bad for the poor themselves.  But when pressed, even the angriest critics of immigration usually admit that deregulation makes the immigrants themselves better off.  They just care a lot more about relatively poor natives than absolutely poor foreigners – and want government to enforce this perverse priority on our whole society.

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