For Libertarians, Candidates Offer Little Choice

Like most "small L" libertarians, I'd like to see a constitutionally limited government, a humble but formidable foreign policy, unfettered free markets, and a premium on personal freedom.

Which is why I tend to get despondent around Election Day, and am again this year stuck with the classic "lesser of two evils" dilemma. The problem is that it's getting more and more difficult to discern which "evil" is lesser.

Let's look first at the incumbent.

From a libertarian perspective, the case against re-electing President Bush is extensive. The Cliff's Notes version:

President Bush has grown government more than any administration in four decades, even when you subtract for defense and homeland security spending. He and the Republican Congress have given us massive, pork-laden energy, farm subsidy, highway, and corporate tax bills.

Despite his reputed stern resolve, President Bush shown no political backbone on domestic issues, save for some modest tax cuts. He gave ground on free trade, capitulated on campaign finance reform, expanded the regulatory state and passed the largest new federal entitlement since the Great Society.


Resolve has also been missing from his handling of judicial nominations. A resolute president would have confronted his opponents in the Senate by making recess appointments, or by instructing his party's leaders to push a vote, thereby forcing Democrats to explain why a given nominee's defeat is worth putting the nation's business on hold. Instead, President Bush allowed his more controversial appointments to whither in judiciary committee limbo — in some cases for years.

The claim that President Bush made us safer in the War on Terror is also misguided. He diverted precious military intelligence, manpower, and resources away from apprehending the people who perpetrated Sept. 11 (Al Qaeda) and those who harbored them (the Taliban) to wage war with Iraq, a country that posed little if any immediate threat to our national security. Even conceding that the war made sense given the intelligence available at the time (it didn't), it's now clear that the Bush administration was woefully unprepared for post-war security. We're now enveloped in an expensive, dangerous, stagnant occupation.

Our presence in Iraq is breeding new anti-American terrorists, in Iraq and across the Muslim world. The Brookings Institution estimates that the overwhelming majority of insurgent attacks in Iraq against U.S. forces are coming from newly minted, native Iraqi terrorists, not from existing Islamic extremists from other countries. Terrorist attacks across the globe have gone up, not down, since September 11.

At home, President Bush responded to criticisms that Sept. 11 happened in part because of excess intelligence bureaucracy by creating the Department of Homeland Security, the largest bureaucracy in the history of the country. He also created the Transportation Safety Administration, which put the same government that can't reliably deliver the mail in charge of securing our airports. He continues to employ a Secretary of Transportation who believes we should give the same scrutiny to little old ladies clutching rosaries that we give to young men coming in from countries that sponsor terrorism.

As a consequence, U.S. travelers are subject to harassment and inconvenience with no discernible improvement in safety. U.S. airports still regularly fail covert security checks, an occurrence TSA apparently believes is worth celebrating.

While our ports still aren't secure and Al Qaeda cells operate within our borders, the Bush Justice Department is busy raiding convalescent centers and hospices that use medical marijuana, prosecuting patients who need pain medication and the doctors who prescribe it, and pursuing campaigns against pornography, steroids, and online gambling.

I could go on. But I'll stop there.

John Kerry wouldn't be any better.

Kerry's plan for Iraq — like his plans for most domestic issues — is to throw more money and resources at the problem. It's naïve to think Kerry would pull us out of Iraq. What better way to show the good government can do than to build an entire society from scratch?

And though the claim that Kerry would submit U.S. foreign policy to a United Nations veto is exaggerated, there's no question that he would lead us into a variety of foreign treaties and agreements at odds with American sovereignty (the International Criminal Court and the Kyoto Protocol are two particularly bad ideas).

Upon getting his party's nomination, Sen. Kerry looked at an administration that grew government in nearly all areas at a rate unseen in nearly a half-century and decided to run to the left of it. He insists that the looming Social Security and Medicare crises are exaggerated, meaning that eight years of a Kerry administration would almost certainly mean younger workers can look forward to a massive hike in payroll taxes.

Kerry also wants to further socialize health care. He's a little better on medicinal marijuana, but is otherwise every bit the drug warrior President Bush is.

And while Democrats demand that we "count every vote," the Kerry campaign is doing everything it can to keep Ralph Nader off the ballot, effectively telling the anti-war left that its vote isn't worth a thing.

Some libertarians suggest that despite Kerry's woeful positions, he's worth a strategic vote. The theory posits that:

— Politicians must be held accountable when they fail us. That means voting President Bush out of office.

— Government grows at a slower rate divided than it does when one party controls both the White House and the Congress.

— Republicans seem to rediscover their limited-government principles when a Democrat in the White House.

These are all valid points, but there's one gaping hole in the strategy: Congress has delegated so much power to the executive branch that a Kerry presidency could do tons of damage without the controls of Congress.

So what to do? I'm not sure. If I were to make an endorsement, I'd recommend leaving the top line of your ballot blank.

What I'd like to issue is a wake-up call. It's been awe-inspiring to watch otherwise smart people sing the praises of a guy they really don't like that much for no other reason than that they dislike the other guy more. But while Americans passionately, sometimes angrily, divide themselves into "red" and "blue" — bitterly aligning themselves behind two candidates who really aren't all that different from each other — the two major parties will continue to use campaign finance reform, the presidential debates, regulation of the airwaves, national conventions, and taxpayer funding to secure their stranglehold duopoly on American politics.

Which means that instead of an exercise in freedom, Election Day is fast becoming an exercise in choosing which of two largely identical groups of politicians gets to control our lives for the next four years.

Radley Balko maintains a Weblog at: www.TheAgitator.com.

Respond to the Writer

How U.S. Rewrote Its Laws On Terrorism

In early November 2001, with Americans still staggered by the Sept. 11 attacks, a small group of White House officials worked in great secrecy to devise a new system of justice for the new war they had declared on terrorism.
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Determined to deal aggressively with the terrorists they expected to capture, the officials bypassed the federal courts and their constitutional guarantees, giving the military the authority to detain foreign suspects indefinitely and prosecute them in tribunals not used since World War II.
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The plan was considered so sensitive that senior White House officials kept its final details hidden from the president's national security adviser, Condoleezza Rice, and Secretary of State Colin Powell, officials said. It was so urgent, some of those involved said, that they hardly thought of consulting Congress.
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White House officials said their use of extraordinary powers would allow the Pentagon to collect crucial intelligence and mete out swift, unmerciful justice.
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"We think it guarantees that we'll have the kind of treatment of these individuals that we believe they deserve," Vice President Dick Cheney, who was a driving force behind the policy, told a meeting of the U.S. Chamber of Commerce on Nov. 15, 2001.
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But three years later, not a single terrorist has been prosecuted.
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Of the roughly 560 men being held at the U.S. naval base at Guantánamo Bay, Cuba, only four have been formally charged. Preliminary hearings for those suspects brought such a barrage of procedural challenges and public criticism that verdicts could still be months away. Since a Supreme Court decision in June that gave the detainees the right to challenge their imprisonment in federal court, the Pentagon has stepped up efforts to send home hundreds of men whom it once branded as dangerous terrorists.
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"We've cleared whole forests of paper developing procedures for these tribunals, and no one has been tried yet," said Richard Shiffrin, who worked on the issue as the Pentagon's deputy general counsel for intelligence matters. "They just ended up in this Kafkaesque sort of purgatory."
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The story of how Guantánamo and the new military justice system became an intractable legacy of Sept. 11 has been largely hidden from public view.
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But extensive interviews with important officials and a review of confidential and classified documents reveal that the legal strategy for dealing with terrorism took shape as the ambition of a small core of conservative administration officials whose political influence and bureaucratic skill gave them remarkable power in the aftermath of Sept. 11.
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Almost immediately, the strategy became a source of sharp conflict, pitting the highest-profile cabinet secretaries - including Rice and Defense Secretary Donald Rumsfeld - and other officials against one another over issues of due process, intelligence-gathering and international law.
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In fact, many officials contend, some of the most serious problems with the military justice system are rooted in the secretive and contentious process from which it emerged.
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Military lawyers were largely excluded from that process in the days after Sept. 11. They have since waged a long struggle to ensure terrorist prosecutions meet what they say are basic standards of fairness. Uniformed lawyers now assigned to defend Guantánamo detainees have become among the most forceful critics of the Pentagon's own system.
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Foreign policy officials voiced concerns about the legal and diplomatic ramifications but had little influence. Increasingly, the administration's plan has come under criticism even from close allies, complicating efforts to transfer Guantánamo prisoners to their home governments.
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To the policy's architects, the attacks on the World Trade Center and the Pentagon represented a stinging challenge to U.S. power and an imperative to consider measures that might have been unimaginable in less threatening times. Yet some officials said the strategy was also shaped by longstanding political agendas that had relatively little to do with fighting terrorism.
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The administration's claim of authority to set up military commissions, as the tribunals are formally known, was guided by a desire to strengthen executive power, current and former officials said.
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Its legal strategy, including the decision not to apply the Geneva Conventions, reflected the determination of some influential officials to halt what they viewed as the United States' reflexive submission to international law.
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In designing the new military justice system, many of the officials said they had Osama bin Laden and other leaders of Al Qaeda in mind.
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But in picking through the hundreds of detainees at Guantánamo Bay, military prosecutors have struggled to find more than a dozen they can tie directly to significant terrorist acts. Although important Qaeda figures have been captured and held by the CIA, administration officials said they were reluctant to bring those prisoners before tribunals they still consider unreliable.
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Some administration officials involved in the policy declined to be interviewed, or would do so only on the condition they not be named.
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Others defended it strongly, saying the administration had a responsibility to consider extraordinary measures to protect the country from a terrifying enemy.
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"Everybody who was involved in this process had, in my mind, a white hat on," Timothy Flanigan, the former deputy White House counsel, said in an interview. "They were not out to be cowboys or create a radical new legal regime. What they wanted to do was to use existing legal models to assist in the process of saving lives, to get information. And the war on terror is all about information."
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The administration's legal approach to terrorism began to emerge in the first turbulent days after Sept. 11, as the officials in charge of key agencies exhorted their aides to confront Al Qaeda's threat with bold imagination.
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"Legally, the watchword became 'forward-leaning,"' said a former associate White House counsel, Bradford Berenson, "by which everybody meant: 'We want to be aggressive. We want to take risks."'
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As generals prepared for war in Afghanistan, lawyers scrambled to understand how the new campaign against terrorism could be waged within the confines of old laws.
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Flanigan, then deputy White House counsel, was at the center of the administration's legal counteroffensive. He had arrived at the White House after distinguishing himself as an agile legal thinker and a Republican stalwart. In 2000, he played an important role on the Bush campaign's legal team in the Florida recount.
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In the days after the Sept. 11 attacks, Flanigan sought advice from the Justice Department's Office of Legal Counsel on "the legality of the use of military force to prevent or deter terrorist activity inside the United States," according to a previously undisclosed department memorandum that was reviewed by The New York Times.
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The 20-page response came from John Yoo, a 34-year-old Bush appointee with a glittering résumé and a reputation as perhaps the most intellectually aggressive among a small group of conservative legal scholars who had challenged what they saw as the United States' excessive deference to international law.
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On Sept. 21, 2001, Yoo wrote that the question was how the Constitution's Fourth Amendment rights against unreasonable search and seizure might apply if the military used "deadly force in a manner that endangered the lives of United States citizens."
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Yoo noted that in the face of devastating terrorist attacks, "the government may be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties."
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If the president decided that the threat justified deploying the military inside the country, he wrote, then "we think that the Fourth Amendment should be no more relevant than it would be in cases of invasion or insurrection."
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For half a century, since the end of World War II, most major national-security initiatives had been forged through interagency debate.
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But some senior Bush administration officials felt that process placed undue power in the hands of cautious, slow-moving foreign policy bureaucrats. The sense of urgency after Sept. 11 brought that attitude to the surface.
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Little more than a week after the attacks, current and former officials said, the White House counsel, Alberto Gonzales, set up an interagency group to draw up options for prosecuting terrorists.
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But by late October 2001, the White House lawyers had grown impatient with what they saw as the dithering of the group and what one former official called the "cold feet" of some of its members. Flanigan said he thought the government needed to move urgently in case a major terrorist linked to the attacks was apprehended.
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He gathered up the research that the group had completed on military commissions and took charge of the matter himself. Suddenly, the other options were off the table.
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With the White House in charge, current and former officials said, the planning for military tribunals moved forward more quickly, and more secretly. Whole agencies were left out of the discussion. So were most of the government's experts in military and international law.
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The legal basis for the administration's approach was laid out on Nov. 6, 2001, in a confidential 35-page memorandum sent to Gonzales from Patrick Philbin, a deputy in the Justice Department's legal counsel's office. (Attorney General John Ashcroft has refused recent congressional requests for the document, but a copy was reviewed by The Times.)
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The memo's plain legalese belied its bold assertions.
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It said the president, as commander in chief, had "inherent authority" to establish military commissions without congressional authorization. It concluded that the Sept. 11 attacks were "plainly sufficient" to warrant applying the laws of war.
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Opening a debate that would later divide the administration, the memo also suggested that the White House could apply international law selectively.
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It stated specifically that trying terrorists under the laws of war "does not mean that terrorists will receive the protections of the Geneva Conventions or the rights that laws of war accord to lawful combatants."
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The central legal precedent cited in the memo was a 1942 case in which the Supreme Court upheld President Franklin D. Roosevelt's use of a military commission to try eight Nazi saboteurs who had sneaked into the United States aboard submarines. Since that ruling, revolutions had taken place in both international and military law, with the adoption of the Geneva Conventions in 1949 and the Uniform Code of Military Justice in 1951.
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Even so, the Justice memo said the 1942 ruling had "set a clear constitutional analysis" under which due process rights do not apply to military commissions.
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Roosevelt, too, created his military commission without new and explicit congressional approval and authorized the military to fashion its own procedural rules. He also established himself, rather than any military judge, as the "final reviewing authority" for the case.
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David Addington, counsel in Cheney's office, seized on the Roosevelt precedent as a model, two people involved in the process said, despite vast differences. Roosevelt acted against enemy agents in a traditional war among nations. Bush would be asserting the same power to take on a shadowy network of adversaries with no geographic boundaries, in a conflict with no foreseeable end.
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Bush played only a modest role in the policy debate, senior administration officials said. In an initial discussion, he agreed that military commissions should be an option, the officials said.
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Later, Cheney discussed a draft of the order with Bush over lunch, one former official said. The president signed the three-page order on Nov. 13.
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No ceremony accompanied the signing, and the order was released to the public that day without so much as a media briefing. But its historic significance was unmistakable.
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The military could detain and prosecute any foreigner the president or his representative determined to have "engaged in, aided or abetted, or conspired to commit" terrorism. Echoing the Roosevelt order, the Bush document promised "free and fair" tribunals but offered few guarantees: There was no promise of public trials, no right to remain silent, no presumption of innocence. As in 1942, guilt did not necessarily have to be proved beyond a reasonable doubt, and a death sentence could be imposed even with a divided verdict. Despite the similarities of the policy to the Roosevelt order, some military and international lawyers were struck by the differences.
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Some of the officials who helped devise the new system of justice would later explain the influence they exercised in the chaotic days after Sept. 11 as a response to a crisis. But a more enduring shift of power within the administration was taking place - one that had significant consequences on how terror suspects would be detained and interrogated.
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.Tim Golden The New York Times Monday, October 25, 2004
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Jack Begg contributed research for this article.
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