The Revolution (12 page)
Mises believed in free trade, toleration, and peace—exactly the opposite of the nationalistic, autarkic philosophy of the National Socialists, or Nazis, whose ugly creed grew more and more influential as the 1930s wore on. In 1934 Mises accepted a position as a professor of international economic relations at the University of Geneva’s Graduate Institute of International Studies. Four years later, the Nazis destroyed his papers and library back in Vienna. By 1940, with Switzerland surrounded by countries under the control of the Axis powers, Mises fled to the United States. When he arrived he had no teaching position waiting for him and no resources, and he spoke no English. He was 60.
By that point he had produced some of his most enduring work: in addition to writing two major treatises,
The Theory of Money and Credit
and
Socialism
, he had published a vast array of influential articles and mentored countless young students who went on to be the finest economic thinkers of their day. And yet, against all odds, still more was to come after his sixtieth year, when his personal and professional situation seemed so dire. In the 1940s he released
Omnipotent Government
, his study of the Nazi phenomenon;
Bureaucracy
; and his magnum opus,
Human Action
, a 900-page work he wrote in English, a language of which he had not known one word in 1940. The 1950s saw the release of the fourth of his great treatises,
Theory and History
.
Mises continued to swim against the tide until his death in 1973, teaching and theorizing about freedom at a time when Keynesian and other kinds of central planners dominated academic economics. While most of those names are now forgotten, Mises and his legacy live on, as his work influences new generations of intellectuals who see through the lies of planners and other tyrants, and understand the value of liberty.
In 1982 I was honored to play a small role in founding the Ludwig von Mises Institute, the world’s foremost center for the study and promotion of free market economics in the tradition of the Austrian School. Through its programs and publications the Institute has played a critical role in spreading the ideas of a free society, sound money, and peace. Its Web site, Mises.org, contains so many resources—lectures, courses, articles, and even whole books—that you could spend a lifetime learning from it.
I sometimes hear people say that they find economics boring. That almost always means they’ve never read the Austrians, whose work brims with intellectual excitement. (Again, see my reading list at the end of this book for suggestions.)
Some people falsely believe that advocates of the free market must be opponents of the environment. We care only about economic efficiency, the argument goes, and have no regard for the consequences of pollution and other examples of environmental degradation. But a true supporter of private property and personal responsibility cannot be indifferent to environmental damage, and should view it as a form of unjustified aggression that must be punished or enjoined, or dealt with in some other way that is mutually satisfactory to all parties. Private business should not have the right to socialize its costs by burdening other people with the by-products of its operations.
Economist Martin Anderson puts it this way. Dumping garbage on your neighbor’s lawn is wrong. But pollution is really just another form of garbage. For that reason, proposals to charge pollution fees, which get higher the greater the pollution, neglect the demands of justice. Anderson compares it to taxing thieves as a way of giving them an economic incentive not to burglarize your home. If the practice is wrong, the law should treat it as such. “If a firm creates pollution without first entering into an agreement, or if the parties cannot come to an agreement fixing the cost and degree of pollution, then the court system could be used to assess damages,” say economists Walter Block and Robert W. McGee.
In fact, that’s how American law used to treat pollution. But a series of nineteenth-century nuisance cases changed that: the courts suddenly decided that a certain level of pollution could be allowed for the sake of the greater good. The implication was that if, for example, a few farmers had their property destroyed by passing trains, that was just the price of progress. (Easy for them to say!) These cases allowed private industry to invade the property rights of others and deprived those others of legal recourse. I do not see this as a free-market outcome.
*
Imagine if the previous legal approach to pollution had not been overturned, and polluters continued to be legally liable for any such invasive practices. Block and McGee suggest that we would long ago have “begun enjoying a non-pollution-intensive technology where there were no open-ended smokestacks. Instead, these pipes would have led back to chemical cisterns, the latter to capture otherwise errant soot particles.” This approach would also have encouraged the growth of an environmental forensics industry that would allow us to identify those responsible for pollution by determining its exact source, just as DNA evidence now permits us to identify rapists and murderers.
Campaign finance reform was the subject of fierce debate in America not long ago. Yet the debate missed the point. As long as we have a government that can exploit peaceful, hardworking Americans on behalf of special interests, as long as it can make or break any American business with (for example) tax policy, politically motivated antitrust prosecutions, and ill-considered regulation, and in general as long as economic winners and losers can be determined in Washington, people will want to assure their share of the loot by influencing the political process through money. Campaign finance reform focuses on the symptom rather than the cause.
This is one reason I was so skeptical when friends urged me to run for president. There are far more interest groups lobbying in Washington for special benefits and privileges than most Americans can imagine. I do not oppose just this one or that one. I oppose the whole apparatus, the whole immoral system by which we use government to exploit our fellow citizens on behalf of our own interests. For someone like me to win, there would have to be enough Americans who believed in freedom to be able to offset the combined power of interest groups that have grown accustomed to treating the people as a resource to be drained for private gain. Were there really enough people for that task?
What moves me the most when I think about my supporters in my presidential campaign are the staggering efforts and creative energies—extraordinary and unprecedented, as far as I can see—that they expended on behalf of a message that promised them no special benefits, no loot taken from their fellow men. The message promises only freedom, and no special privileges for anyone. No one is surprised that people donate to a political campaign in the hopes of receiving some special favor if the candidate wins. I was quite surprised, on the other hand, at how many would donate, volunteer, and vote in pursuit of nothing other than freedom, and the prosperity it naturally brings.
Civil Liberties and Personal Freedom
F
reedom means not only that our economic activity ought to be free and voluntary, but that government should stay out of our personal affairs as well. In fact, freedom means that we understand liberty as an indivisible whole. Economic freedom and personal liberty are not divisible. How do you plan to exercise your right to free speech if you’re not allowed the economic freedom to acquire the supplies necessary to disseminate your views? Likewise, how can we expect to enjoy privacy rights if our property rights are insecure?
Government should respect our right to privacy, rather than invading it on phony pretenses. It should observe traditional legal norms when dealing with criminal suspects. And instead of trying to correct our bad habits at the point of a gun, it should defer to families and the normal channels of civil society to instruct people in moral conduct.
The war on terror has awakened more Americans than ever to the way government exploits fear, and even its own failures, to justify eroding our civil liberties. Examples are all too plentiful. For instance, only well after the fact did Americans discover that their government had been defying the law by carrying out warrantless surveillance of Americans’ international telephone conversations. After sitting on the story for a year, the
New York Times
went public with the program in December 2005.
That in itself should give us pause: why, in a free society with a supposedly independent media, did arguably the most influential newspaper in the United States keep Americans in the dark about a program like this? The answer we were given involved unspecified national security concerns that the
Times
supposedly did not want to jeopardize. But that explanation does not hold water at all. We may safely assume that terrorists are clever enough to realize that our government is listening in on their conversations, even without the
Times
telling them so. The very name of the Foreign Intelligence Surveillance Act (FISA) of 1978 is a dead giveaway.
As far as we have been told, the only way that this program, administered by the U.S. National Security Agency (NSA), diverged from previous intelligence efforts is that this one operated without FISA warrants—warrants issued in secret by special courts, in conformity with the 1978 Act. Awareness of this aspect of the program would have done nothing to aid terrorists. FISA warrants are issued in secret anyway, so neither under FISA nor under the NSA program would a terrorist know for sure that the government was eavesdropping on his conversations.
It looks very much like the old story: the government says “national security” and the natural and normal skepticism that our Founding Fathers taught us to have toward the government is promptly abandoned. The simple and straightforward reason the executive branch wanted the program kept secret, its consistent obfuscation notwithstanding, seems to be that it violated the law.
The reasons we were given for why the program was necessary were at least as unconvincing as the
Times
’s defense of concealing it. On the one hand, we were told that the only targets of the program were people with links to terrorist organizations like al Qaeda. At the same time, we were told that the sheer number of targets made FISA warrant applications impracticable.
I believe that constitutional lawyer Glenn Greenwald has identified a fatal contradiction in these claims. If it is true that the executive branch knew the locations of so many people with al Qaeda links, why were they seeking merely to eavesdrop on their conversations? Why were they not arresting them instead? This, after all, is an administration that has detained people indefinitely, without charges, on the basis of sometimes shaky evidence of an al Qaeda connection. This time, we are supposed to believe that the administration had knowledge of countless al Qaeda figures and decided to let them remain free? Not plausible, and that is why it seems likely that the targets of this surveillance included many Americans who had no ties to al Qaeda or terrorism at all.
Then we were told that the program wasn’t lawless after all—the president had been given this authority by Congress in the 2001 Authorization to Use Military Force (AUMF) that authorized military action in Afghanistan. It seems dubious that anyone in Congress at the time interpreted the AUMF as giving the president the power to engage in warrantless wiretapping in contravention of established law. According to Bruce Fein, deputy attorney general under President Reagan, that interpretation of AUMF would mean that it was also intended to authorize the president to “break and enter homes, open mail, torture detainees, or even open internment camps for American citizens in violation of federal statutes in order to gather foreign intelligence.” It is not plausible to suggest that Congress would have intended to authorize such extreme measures by silence or remote implication. If this interpretation of AUMF were correct, moreover, parts of the Patriot Act would have been unnecessary. Finally, given that FISA, the existing law, deals explicitly and specifically with intelligence gathering, while AUMF says nothing at all about foreign intelligence, FISA would automatically trump AUMP as a matter of legal principle, even if the administration’s interpretation were correct.
The administration itself didn’t seem to take this argument seriously. When asked why, if the administration considered FISA inadequate to its purposes, it had not sought to amend it, Attorney General Alberto Gonzales frankly testified that they didn’t think they would be able to win congressional approval for amendments to FISA. So they proceeded with the program anyway. That’s problematic enough, but it also contradicts administration claims that AUMF gave them all the authority they needed. Why did they consider amending FISA in order to give themselves a power they supposedly already had?
Then, in yet another twist, we were told that NSA was carrying out what is known as “data mining,” which amounts to combing through the communications of all Americans, and FISA could not accommodate this. Well, no, I should think not.
Finally, there is the argument that the president needs to be able to act with dispatch in order to pursue the targets he seeks. This argument also fails to persuade—existing law was extremely accommodating on this score, allowing for warrantless surveillance for days at a time in emergency situations.
What was the real reason for the program, then? Who was targeted and why? No answers to these questions have been forthcoming. Bland assurances that our leaders are trustworthy and good, and would never abuse powers they have secretly exercised in defiance of the law, can hardly be taken seriously by those who believe in a free society. Remember Jefferson’s cautionary words about confidence in men: we should be on our guard against our government officials, binding them down from mischief by the chains of the Constitution. Government surveillance of individuals
has
been abused in the past, and it
has
targeted political opponents and the politically unpopular. That’s why the safeguards that were flaunted here were established in the first place. Frank Church, who served as a U.S. senator from Idaho for a quarter of a century and who investigated and led the charge for reform of the surveillance powers of American intelligence agencies, was observing as early as 1975 that the NSA, if it fell into the wrong hands, could enable the government “to impose a total tyranny, and there would be no way to fight back.”
This particular program was known as the Terrorist Surveillance Program, and it received a great deal of attention after its existence became public. What was frequently overlooked amid the ensuing controversy was that the executive branch apparently carried out even more invasive activities, but we never got any answers about those. When asked whether they had engaged in domestic wiretapping or carried out warrantless searches of people’s homes or correspondence, officials have responded with carefully worded assurances that these things were not done
under the program then under discussion
—i.e., the Terrorist Surveillance Program. But were these things being done pursuant to some other program? No answer.
When then Attorney General Alberto Gonzales testified before the Senate Judiciary Committee in February 2006, for example, he dealt with questions about whether the administration had engaged in warrantless wiretapping of purely domestic calls. “Not under the program in which I’m testifying,” came the reply. Such activity, the attorney general said, was “beyond the bound of the program which I’m testifying about today.”
We do know that for some period of time between September 11, 2001, and March 2004, the executive branch was engaged in a kind of surveillance that was so at odds with American law that then Attorney General John Ashcroft, FBI Director Robert Mueller, and Deputy Attorney General James Comey threatened to resign if it continued. What exactly was the executive branch up to that caused so much dissent even among its own loyalists? Who was victimized during this time? Why are we not hearing the answers—or even the questions?
The misnamed Patriot Act, presented to the public as an antiterrorism measure, actually focuses on American citizens rather than foreign terrorists. The definition of “terrorism” for federal criminal purposes is greatly expanded, such that legitimate protest against the government could someday place an American under federal surveillance. Similarly, your Internet use can be monitored without your knowledge, and your Internet provider can be forced to hand over user information to law enforcement without a warrant or subpoena.
The biggest problem with these new law enforcement powers is that they bear little relationship to fighting terrorism. Surveillance powers are greatly expanded, and checks and balances on government are greatly reduced. “Sneak and peek” and blanket searches are becoming more frequent every day. Most of the provisions have been sought by domestic law enforcement agencies for years, not to fight terrorism but rather to increase their police power over the American people. The federal government has not shown us that it failed to detect or prevent the September 11 attacks because it lacked the powers over our lives that it was granted under the Patriot Act.
We now know that plenty of red flags that should have alerted officials to the hijackers’ plot were ignored. That was a matter of government ineptness, not a lack of surveillance power.
Our officials had the evidence
. They simply failed to act on it. And they then turned around and exploited their own failure as an excuse to crack down on the American people, demanding new powers that would have done nothing to prevent 9/11. Only government could get away with such a transparent sham.
The Patriot Act violates the Constitution by allowing searches and seizures of American citizens and their property without a warrant issued by an independent court upon a finding of probable cause. Foreign Intelligence Surveillance Courts, whose standards do not meet the constitutional requirements of the Fourth Amendment, may issue warrants for individual records, including medical and library records. It can do so secretly, and the person who turns over the records is muzzled and cannot ever speak of the search. The attorney general is given the power, with no judicial oversight, to write “national security letters” ordering holders of any of your personal records to hand them over for the government to examine—a power that has already been abused. You would have no way of knowing that this had been done.
Requiring a showing of probable cause before a warrant may be issued would in no way hamper terrorist investigations. For one thing, federal authorities still have plenty of tools available to investigate and monitor the activities of noncitizens suspected of terrorism. Second, restoring Fourth Amendment protections would not interfere with those provisions of the Patriot Act that remove the firewalls that once prevented the government’s law enforcement and intelligence agencies from sharing information.
The probable cause requirements will likewise not delay a terrorist investigation. Preparations can be made for the issuance of a warrant in the event of an emergency, and allowances can be made for cases in which law enforcement does not have time to obtain a warrant. In fact, a requirement that law enforcement demonstrate probable cause may help law enforcement officials focus their efforts on true threats, thereby avoiding the problem of information overload that is handicapping the government’s efforts to identify sources of terrorist financing.
History demonstrates that the powers we give the federal government today will remain in place indefinitely. How sure are we that future presidents won’t abuse those powers? Politically motivated IRS audits and FBI investigations have been used by past administrations to destroy political enemies. Past abuses of executive surveillance are the reason FISA was passed in the first place.
Even some of the most ardent supporters of the current wave of federal privacy violations and assaults on civil liberties once held—when Bill Clinton was calling for them, at least—that these powers were too dangerous to entrust to government. John Ashcroft, attorney general for several years during the Bush administration and a strong supporter of the Patriot Act, was not always so cavalier about civil liberties. While a U.S. senator during the Clinton years, Ashcroft warned about proposed invasions of privacy:
The Clinton administration would like the federal government to have the capability to read any international or domestic computer communications. The FBI wants access to decode, digest, and discuss financial transactions, personal e-mail, and proprietary information sent abroad—all in the name of national security.
The administration’s interest in all e-mail is a wholly unhealthy precedent, especially given this administration’s track record on FBI files and IRS snooping. Every medium by which people communicate can be subject to exploitation by those with illegal intentions. Nevertheless, this is no reason to hand Big Brother the keys to unlock our e-mail diaries, open our ATM records, read our medical records, or translate our international communications. . . . The implications here are far-reaching, with impacts that touch individual users, companies, libraries, universities, teachers, and students.