Wednesday, February 13, 2013

Gene responds

[UPDATE: FYI - for whatever reason (intentional or technical), not all of my comments have been loaded up to Gene's site. Now I wish I had waited to advertise it here until they had gone up... needless to say it looks like I don't have a response to his major points when I discussed them ]extensively. This is why I usually respond to people on my own blog. Oh well. Just keep that in mind.] Looks taken care of

I am loathe to link to someone who not only calls me "deliberately obtuse" but then - after reading a full elaboration of the point, reaffirms the assessment. But Gene is a good guy, so here is his response.

In my opinion, the response misses the mark badly, and since I agree with half of it it's not even clear he has a good sense of what my claim is. I have about four comments in moderation now that lay my response out.

A couple thoughts:

- If you think I make views based on politics, you're really barking up the wrong tree. I have no attachment at all to the Democratic party, and none to Obama except that I think he's a pretty good president - but that assessment comes from my pre-existing sense of what "a pretty good president" consists of. I had a post the other day that made the president-invariance of my views pretty clear.

-  People are imperfect. That has at least three implications: First, design institutions with the knowledge that they are imperfect. Second, if they behave imperfectly that is not evidence that your institutional arrangements are the wrong ones (see premise: people are imperfect). Third, assume symmetry: if you don't think a president can be relied upon to make a decision because of human failings you better not be counting on a judge or any other member of the public to do better. They are humans too.

I don't think Gene is being deliberately obtuse here, but I do think he is unconvincing.


  1. If you think I make views based on politics, you're really barking up the wrong tree. I have no attachment at all to the Democratic party, and none to Obama except that I think he's a pretty good president

    Have you considered that if you were basing your views here on your politics you wouldn't realize it?

    1. Sure, and if Gene were wrong he wouldn't realize it (presumably as a result of your attention to these possibilities you are informing him of this now in his comment section - I'm just repeating the point for the benefit of commenters here).

      It seems to me it's best that we lay out our arguments for all to see and see what stands up. The case that I am doing this because I like Obama is weak. If that is really a significant factor for me, it's odd that I've been so critical of Obama on fiscal policy, right? Or the mandate? It's a little odd and awkward that I held the same views on war on terror stuff during the Bush administration, isn't it? It's a weak case.

      So yes, let's entertain these possibilities. You raise the point here and on Gene's blog - go ahead.

      But then let's get down to examining whether it actually makes sense.

  2. Sure, and if Gene were wrong he wouldn't realize it

    Presumably if someone realized they were wrong they would change my mind. The question of what is motivating one's views is slightly different (one could be right and still be motivated by one's politics).

    The tendency to subconsciously shape ones conclusions based on political motivations is pretty widespread. I'm sure I do it (though of course I don't realize when I'm doing it, or I would stop). I have no idea how this tendency does or doesn't apply in your case. But when I hear someone express certainty that they couldn't be doing this, it kind of sets off a red flag.

    1. Right, but so is the tendency to align one's politics to one's understanding of the world!

      And again, this is a very odd accusation indeed when there's no evidence at all that my view was different before and after 2008. It's a lazy comment. Of course I consider it "possible". It's always "possible". But a lot of things are possible.

      As far as I know Gene always thought what he thinks now and I've always thought what I think now so even invoking the idea is a little odd. It's not clear why one would reach for that of all explanations.

    2. There's also a track record to this.

      Are either Gene or I really known for following the party line - any party's line? Not really.

  3. Judges are imperfect, but their selection process, training, work experience and the institutional framework in which they operate is vastly different from that of the President. Most importantly, the work of judges is done in the open, the quality of their judgments is subject to criticism from peers, superiors and the public, not to mention actual review by peers (as they often sit in panels) and superiors (appellate review). The standard they are held to is one of being impartial arbiters of consistent rules and their selection process reflects that fact to some extent.

    This is completely different from the President who secretly approves or denies an assassination based upon unreviewable facts and a secret standard. (The administration has yet to say anything about the burden of proof they consider they must overcome. For all we know, it could be nothing more than "I have a hunch".) If one presents a logic inconsistency in the reasoning of the President, there is no reason to expect he would change his mind. If the President wants to only hear on half of the story, that is well within his prerogative.

    That's why I for one trust judge way more than President. The winner of a popularity contest is hardly someone you can trust to be anything, except popular.

    1. I doubt this work would be done in the open, unless on top of bringing judges into military decisions we are also going to be advocating opening up intelligence files.

      re: "That's why I for one trust judge way more than President. The winner of a popularity contest is hardly someone you can trust to be anything, except popular."

      To a certain extent of course this is true. But if winners of elections can't be trusted to make public decisions (but somehow unelected legal elite are... we'll leave that one be), then a lot more starts to go out the window besides military decesion-making

    2. I'm also curious what kind of limits you see to this argument.

      Should the president submit missile targets to the courts too? What about troop movements? If our troops come across an al Qaeda encampment without any warning and have the element of surprise, do we need to wake up a judge before they go after them?

      Exactly what is it about this one use of lethal force that you think we need to assign the courts with an entirely novel extra-constitutional role? I don't get it.

    3. I don't think judges can be trusted in an absolute sense to make those decisions. I think judges can be trusted much more than the president.

      From that point, it's a case of balancing a whole host of different considerations and then drawing lines which make it easy to know on what side of the line you are and what is allowed on what side of the line.

      I also don't see any principled difference between drones, missiles, special forces raids, etc... So if sending a drone after somebody is not allowed, neither is shooting a missile or a gun. Though in practice, there are differences that inevitably arise.

      But to answer your question, I do not think the United States is at war with AQ. (As we've discussed before) I think that if troops come across a terrorist training camp, they can attempt to apprehend the terrorists without waking up a judge first. They have probable cause. If the terrorists resist, the soldiers can defend themselves with deadly force if that is necessary. They can even shoot a fleeing terrorist if they have probable cause that the fleeing terrorist is a danger to others. (He probably is)

      What they cannot do, is start hosing down the people there with live munition without giving them a chance to surrender. (though they of course could attempt to disable vehicles, cut off access to ammunition and weapons stockpiles etc) I'm not saying they have to send in a guy with a white flag and a letter with 24 hours to make a decision. I'm saying they have to shout in a bullhorn identifying themselves and demanding a peaceful surrender (as well as waiting a couple seconds so people can drop their weapons) before they can start killing people.

      If the United States was at war with AQ, things would be different. In such a case, I think firing without any prior warning would be acceptable.

  4. The government places its high value targets on its most wanted lists. Anyone that doesn't believe they belong there could presumably surrender themselves at an embassy and demand a trial, cameras rolling. Those nearest them could take the threat seriously and avoid them. This would not eliminate all collateral damage but at least we needn't listen to protestations of false innocence and grievous errors.


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