Tuesday, August 31, 2004

Rights and Reason: Public Agencies Take Turn Suing Microsoft

Antitrust settlements are a lot like shark chum—they attract predators instead of staving them off. Consider the case of Microsoft. Microsoft chose to settle an antitrust suit brought by the California class action bar to the tune of $1.1 billion dollars in software vouchers. The suit alleged Microsoft overcharged its customers for its products. Yet rather then placate its opponents, the settlement has led to an effort to loot Microsoft further.

When Microsoft Corp. agreed to fork over $1.1 billion in vouchers to settle a California consumer class action, public entities thought they were entitled to a piece of the pie.

But they soon found out they were excluded from the January 2003 settlement.

Now the public entities -- led by the city and county of San Francisco and the county of Santa Clara, Calif., -- have filed their own antitrust suit against Microsoft. And they say they won't be satisfied with vouchers to buy computer products.

"We've asked for damages," said Martin Dodd, Santa Clara's special assistant county counsel. "We're looking for money."

The suit, filed Friday in San Francisco Superior Court, does not specify damages but Dodd said he expects the amount to be "quite substantial." [Law.com]
I’m sure the damages will be; after all, Microsoft already has morally conceded that it defrauded its consumers and there’s a lot more money to be made in looting businessmen then in defending them.

Who is to blame? No surprise here: the businessmen themselves. Microsoft decided long ago that it would not challenge the fundamentals of antitrust; that is, it would not challenge the premise that a businessman controlling the makeup and price of his products is a coercive threat to others. It declared that defeating the antitrust bar was not important and allowed its opponents to define the terms of the debate.

What to do? It is earlier then we think. Antitrust will not be defeated absent a cadre of businessmen who reject as a matter of principle any attempt to place them in shackles. How do you achieve that? I thin k it takes more than communicating the evils of antitrust. You have to relentlessly communicate the positive case for freedom—the case for the individual, his mind and his rights; that is, the case for Objectivism. And to do that you have to reach businessmen as their ideas about their place in the world are being formed—before they surrender to their enemies. I am convinced that anything less will both fail to produce the abolition of antitrust and achieve the larger, positive goal—the creation of a society that values the human mind and its compelling need for freedom.

Monday, August 30, 2004

Rights and Reason: "Peaceful Protest"

Like me, you probably have been reading a lot about the "peaceful protests" in opposition to George W. Bush in New York over the weekend. The thing is, it wasn't all peaceful everywhere. Some anarchists jumped some anti-left protesters and shredded their signs. See the video here.

Update: More commentary here. Where's the mainstream media on this?

Sunday, August 22, 2004

The Election: The Legacy of Vietnam

I recently read John Kerry’s 1971 testimony before the United States Senate Committee on Foreign Relations. In his testimony, Kerry claims the conduct of US forces in Vietnam was wantonly criminal.

I would like to talk, representing all those veterans, and say that several months ago in Detroit, we had an investigation at which over 150 honorably discharged and many very highly decorated veterans testified to war crimes committed in Southeast Asia, not isolated incidents but crimes committed on a day-to-day basis with the full awareness of officers at all levels of command.

It is impossible to describe to you exactly what did happen in Detroit, the emotions in the room, the feelings of the men who were reliving their experiences in Vietnam, but they did. They relived the absolute horror of what this country, in a sense, made them do.

They told the stories at times they had personally raped, cut off ears, cut off heads, tape wires from portable telephones to human genitals and turned up the power, cut off limbs, blown up bodies, randomly shot at civilians, razed villages in fashion reminiscent of Genghis Khan, shot cattle and dogs for fun, poisoned food stocks, and generally ravaged the country side of South Vietnam in addition to the normal ravage of war, and the normal and very particular ravaging which is done by the applied bombing power of this country. [C-SPAN]
This is an amazing statement, yet to my knowledge, not a single individual was indicted for war crimes as a result of Kerry’s testimony. Nevertheless, the testimony persists to this day in cementing the myth that American forces in Vietnam were bloodthirsty brigands. Amazingly enough, none of the senators present at the hearing thought to challenge Kerry’s claims. They were simply taken as self-evident truths. Add Kerry’s testimony to the myth of the drunk, drug-addled and homeless Vietnam veteran and it is clear that an entire generation of servicemen have been unjustly smeared. If Lt. William Calley's court-martial for the My Lai massacre was a case where the guilty received light punishment for horrific crimes, the case of the rest of the American Vietnam veterans is a one where the honorable received nothing but false accusations and undeserved contempt.

It’s no surprise then that John Kerry’s fellow Vietnam vets take issue with Kerry highlighting his military service. Kerry may run on his medals, but the most significant aspect of his military service is his testimony before the US Senate. Kerry deserves to have the question put to him: Is it true American solders were bloodthirsty murders in Vietnam? Is it true that there was wholesale killing and destruction outside of that needed for legitimate prosecution of the war? Does Kerry stand behind his statement that Americans conducted themselves in a fashion reminiscent of Genghis Khan? If so, why, as an officer, did he fail to bring charges against anyone who conducted themselves shamefully?

Update: for confirmation of the drunk Vietnam vet stereotype, see this.

Saturday, August 21, 2004

The Culture: The World Trade Center II Design

Count me among the many who think that “Freedom Tower,” the proposed substitute for the destroyed World Trade Center complex is wanting in almost every respect. Ostensibly reaching 1,776 feet in height, a third of Freedom Tower is unoccupied. The productive spaces of the original structures are not restored. Instead of serving as a replacement for the World Trade Center, Freedom Tower is little more than a ghost of a building.

Unfortunately, I have not seen an alternative proposal that I found to be compelling. Every design I have reviewed seemed like a compromise to fear. Almost all evoked the feeling of a tomb, not a productive space.

That is, until now. The World Trade Center II Design by Kenneth Gardner and Herbert Belton restores the New York skyline with a new interpretation of Yamasaki Twin Towers design, with several enhancements and modifications over the originals. The effect of resorting the original shape and purpose of the twin towers is striking; it says we will have what we had before and we will have it better.

I think the effort by Gardner and Belton is laudable and I wish them every success. It will require significant political support to compel a change in plans for the World Trade Center site. I think it is a worthwhile goal though.

Anything less than what the World Trade Center site was before September 11th is a moral surrender to militant Islam. The new structure should be a defiant re-affirmation of who we are as a people and what the Trade Center was to New York. It’s time to write some letters to our elected officials.

Update: Here are some key adresses:

Mayor Michael R. Bloomberg
City Hall
New York, NY 10007
Phone: 311 (or 212-NEW-YORK outside NYC)
Fax: (212) 788-2460
E-Mail: http://nyc.gov/html/mail/html/mayor.html

Governor George E. Pataki
State Capitol
Albany, NY 12224
Phone: 518-474-8390

Lower Manhattan Development Corporation
One Liberty Plaza, 20th Floor
New York, NY 10006
Phone: (212) 962-2300
TTY Phone: (212) 962-0045
Fax: (212) 962-2431/33
WWW: http://www.renewnyc.org

Friday, August 20, 2004

The War: The Party of Unapologetic Pacifism

Dr. Michael Hurd, PhD, slams the Libertarian Party at the Daily Does of Reason:

The Libertarian Party is the party of unapologetic pacifism. They make John Kerry blush. Their 2004 presidential candidate proposes, for example, that all U.S. troops everywhere be sent home immediately. Why? Because, apparently, all government is bad. Anything the government does to intervene in the rest of the world--even if those interventions are to protect the United States at home--is bad.

Even worse, statements on the official Libertarian Party website imply that the United States is to blame for terrorism: For example: "How long can politicians pretend to be surprised when terrorist threats turn into bloody reality? How many more innocent Americans have to lose their lives before U.S. policy makers come to their senses and stop interfering in other nations' affairs?"

The implication of this statement is clear. If the United States did not have a military presence in the Middle East, and elsewhere, terrorists would leave us alone. America is to blame, not the terrorists.

This is as profound an evasion as I could ever imagine. It is the single worst example of blaming the victim that I have ever encountered in this age of blaming the victim (i.e., the United States).
Amen. But just in case you think even a broken clock is right twice a day, Hurd ends with this:

I don’t care what other points the Libertarian Party might make on the subject of taxes or limited government with which I might agree, in an out-of-context fashion. Evasions and errors of the magnitude just described come from a place I do not want to enter or go near. This viewpoint is unforgivable and inexcusable. Total surrender of the Middle East and our objective national interests to the likes of Osama bin Laden and the mullahs in Iran--not to mention other terrorist dictators throughout the world--wipes out any value from reducing the role of government in the economy. How can a capitalistic America flourish under the threat of a nuclear cloud, biological warfare or worse? If you think America is in danger with a troop presence in the Middle East and elsewhere, just imagine if we gave up the fight altogether.
Again, amen.

Wasn't there once this guy who said, "We're all libertarians now." Kinda makes you wonder just what in blazes this guy was thinking.

The War: Senior Officer Violated Regulations

As most RoR readers know, the so-called war on terror is actually a war between a free, secular republic and the practitioners of militant Islam. The fundamental distinction between the combatants is that our side values this life and the individual’s right to live it, while the other side values the afterlife and the right to kill for it. That is, of course, when Christian fundamentalists don’t muck it all up.

A Pentagon investigation has concluded that a senior military intelligence officer violated regulations by failing to make clear he was not speaking in an official capacity when he made church speeches casting the war on terrorism in religious terms, a senior defense official said Thursday.

In most instances the officer, Lt. Gen. William G. Boykin, was wearing his Army uniform.

The probe by the Defense Department's deputy inspector general also found that Boykin, the deputy undersecretary of defense for intelligence, violated Pentagon rules by failing to obtain advance clearance for his remarks, which gained wide publicity last fall.

In one appearance, Boykin told a religious group in Oregon that Islamic extremists hate the United States "because we're a Christian nation, because our foundation and our roots are Judeo-Christians. ... And the enemy is a guy named Satan," according to news reports last fall.

Discussing a U.S. Army battle against a Muslim warlord in Somalia in 1993, Boykin told one audience, "I knew my God was bigger than his. I knew that my God was a real God and his was an idol." [AP]
I love this plain-talking Christianity. “Who gives you these ideas that individual rights come from a philosophic understanding of man’s nature and his requirements for survival? Is it a guy named Satan?”

As punishment for his breach, General Boykin should be ordered to research and teach a seminar on the history of secularism and freedom in the United States. If our generals don’t understand the lines in this war, how can we ever hope to win it?

Thursday, August 19, 2004

The Movement: The Evolution of Diana Hsieh

Diana Hsieh has gone through a tremendous transformation. Once a supporter of David Kelly’s Objectivist Center, she became disenchanted by what she viewed as the group’s lack of scholarship and intellectual consistency. This compelled her to revisit the writings that led to Kelly’s ostracism from Objectivism; from there, she concluded that her original positive assessment of Kelly’s arguments was wrong.

At that point, Hsieh decided that she wanted no further relationship with Kelly’s organization and its lieutenants and she said so publicly. Many of people Hsieh was distancing herself from were long-time friends; her decision was no doubt difficult and painful. To make it was a heroic act of honesty—a virtue that makes the truth the cornerstone of one’s being. I admire both her (and her husband, it should be said) for making it.

In the months since, Hsieh has chronicled the thinking that led her to this realization at her weblog. It has been an earnest and thoughtful effort, explaining some of the off-putting things ARI supporters did (it seems the notorious Objectivist charm brigade struck her with full force) as well as the evolution of her thinking over the past ten or so years. Judging from the comments section or her weblog, her writing has piqued tremendous interest from both sides of the debate, including that of the owner of a website she used to manage—none other than defrocked Objectivist Nathanial Branden.

Hsieh has revisited Branden’s writings as well and decided that he too is an opponent to what she stands for and cut off ties to him accordingly. She asked him not to contact her or post on her website—a request evidence now indicates he is unwilling to respect. Apparently, he got his girlfriend to post to Hsieh’s comments section in an attempt to goad Hsieh into debate and then began make posts himself in his girlfriend’s name. Branden’s act is appalling—it shows no respect for Hsieh’s request for distance and privacy from a person that she no longer agrees with.

As I said before, everything I’ve seen in Hsieh’s writing has struck me at thoughtful and honestly introspective, if not painfully so. She says she is working on a complete statement of her transformation and the reasons behind it. Philosophy is a powerful tool, but its malpractice can lead to devastating effects. Because of her past, Hsieh feels compelled to answer the questions posed by the Branden/Kelly alliance. I look forward to these writings. I think they will do much to bring light to the mistakes people make about Objectivism from a person who understands them all too well. I think her analyses will carry a lot of weight and serve as a useful guide for others as they grapple with the questions that being an Objectivist poses. In the face of the attacks we all know she will face as she works on this project, I wish her the best.

Justice Denied: The Venezuela Referendum

I know Thor Halvorssen from my college days at George Washington University; then he was the program director of the Intercollegiate Studies Institute’s Collegiate Network which had given a grant to the undergraduate student newspaper I edited at the time. I remember Halvorssen as quietly intense, almost having the face one would find on the hero of an Ayn Rand novel. I remember talking to one of the other CN staffers about Halvorssen and them saying to me that he and his family were Venezuelan and had been though a lot of hell in their lives. In an article Halvorssen writes for today’s Wall Street Journal, it’s gotten worse.

Within one hour of the gathering, just over 100 of Lt. Col. Chávez's supporters, many of them brandishing his trademark army parachutist beret, began moving down the main avenue towards the crowd in the square. Encouraged by their leader's victory, this bully-boy group had been marching through opposition neighborhoods all day. They were led by men on motorcycles with two-way radios. From afar they began to taunt the crowd in the square, chanting, "We own this country now," and ordering the people in the opposition crowd to return to their homes. All of this was transmitted live by the local news station. The Chávez group threw bottles and rocks at the crowd. Moments later a young woman in the square screamed for the crowd to get down as three of the men with walkie-talkies, wearing red T-shirts with the insignia of the government-funded "Bolivarian Circle," revealed their firearms. They began shooting indiscriminately into the multitude.

A 61-year-old grandmother was shot in the back as she ran for cover. The bullet ripped through her aorta, kidney and stomach. She later bled to death in the emergency room. An opposition congressman was shot in the shoulder and remains in critical care. Eight others suffered severe gunshot wounds. Hilda Mendoza Denham, a British subject visiting Caracas for her mother's 80th birthday, was shot at close range with hollow-point bullets from a high-caliber pistol. She now lies sedated in a hospital bed after a long and complicated operation. She is my mother.

I spoke with her minutes before the doctors cut open her wounds. She looked at me, frightened and traumatized, and sobbed: "I was sure they were going to kill me, they just kept shooting at me."
This is horrific—an unmitigated nightmare of vicious brutality. Yet Chavez’s iron fist is nothing new; his thugs did the exact same thing in 2001. That time, no one was punished—no justice was delivered. I expect the same with this atrocity as well. This is what you get from a leader who admires Castro.

Yet perhaps most shocking is the sanction given by former president Jimmy Carter to a fraudulent election. Carter was part of a team of foreign observers sent to monitor the Venezuelan referendum. His oversight was essential to insure its integrity. Rather than investigate the many claims of massive fraud, reports indicate that Carter simply took the Chavez government’s word that the vote tallies were honest and left the country. The evil of Carter’s failure to act in Venezuela ranks up there with his failure to act against the Iranian Ayatollahs in 1979.

It is axiomatic that there will be fraud in an election of a Marxist to power. Dishonesty, and brutality are the essential characteristics of the proletariat revolution. It is appalling that Cater turned a blind eye to it—that he turned a blind eye to Thor Halvorssen’s mother as she lay bleeding in the streets from the hand of a ruthless tyrant.

My thoughts are with Halvorssen and his family. I wish them safety—and justice.

Monday, August 16, 2004

Rights and Reason: Housecleaning

I've decided to cut the Volokh Conspiracy from the blogroll due to the addition of GMU law professor Todd Zywicki to the list of conspirators. Zywicki just returned from a stint at the Federal Trade Commission, an organization he praised in a post he wrote this Saturday:

Debbie Majoras takes over as Acting Chair of the FTC, along with Jon Leibowitz. Both are very able lawyers and people of great character, smarts, and integrity. Which will be needed, of course, to help the Commission recover from the "Zywicki interregnum." Seriously, Majoras and Leibowitz are excellent choices to continue the amazing successes of the FTC over the past few years, under the leadership first of my new colleague Bob Pitofsky and then my old colleague Tim Muris.
Amazing successes? Majoras was a key figure on the government side in the Microsoft antitrust case settlement—the final act in a case that should never have been argued in the first place. Both Majoras and Muris have been instrumental in denying the rights of physicians to negotiate as a group with HMO’s. And Pitofsky, in testimony before Congress, posed this precious gem of a hypothetical:

All of the doctors in Elgin, Illinois, get together over lunch and say, "We are not making enough money, our kids are going to expensive colleges, and we are not driving the luxury car that we prefer. Let's go to this one HMO that is committed to cost containment, and we will say we are going on strike. Unless you pay us twice as much money, we are going on strike. We are not going to take care of people in your organization."
So wanting to send one’s children to "expensive" colleges and drive the luxury car of one’s preference is an indictment of the free market? Working toward the good life is a sign of avarice? From this, doctors lose the right to communicate with other doctors as they negotiate their fees?

These people Zywicki goads over are not just bad—they are appalling, ideologically committed opponents to individual rights and economic freedom. Zywicki’s praise for them symbolizes precisely what is wrong today with the intellectual leadership on the right. If the leadership of the FTC can be praised as good, anyone can do anything and somehow still be a proponent of freedom. Given Zywicki’s intellectual credentials, he ought to know better.

Blogs come in all strips and the inclusion of one on our blogroll is not an endorsement; the blogs CAC links to indicate our interests, not our agreement. Still, CAC does not link to enemies. One of the greatest threats today in the realm of ideas are the proverbial wolves in sheep’s clothing—those who say they support freedom and then act against it. There is nothing good to say about the FTC or its leadership. The laws that animate it are morally bankrupt and should be held to be unconstitutional. We don’t pretend otherwise and play chummy with "colleagues" who act with impunity against businessmen. Neither should anyone else.

The War: A True Statement

Cox and Forkum get it right again here, here and here.

Friday, August 13, 2004

The Culture: Productivity and Sacrifice

Note: I wrote this essay this summer for an English composition course I had to take at George Mason. I received an "A" for the assignment and an "A" for the course. Now that I'm finished for the summer, I thought I'd post it here.

A businessman or woman is a creator. They take the abstract theories of scientists and engineers and turn them into practical reality. They marshal the material, money and productive talent necessary to create a bounty unknown to any other period of history. Prior to the era of the businessman, people either lived a hand and mouth existence, or they looted the wealth of their neighbors. Businessmen and women make our world possible, yet few groups more marginalized.

Every form of disparagement is heaped upon businessmen, They are derided as robber-barons. They are smeared as soulless money-grubbers. They are shackled with corporate taxes and subject to endless regulations. If you need a villain or a hapless fool for a movie or novel, make him a businessman—a Scrooge, Babbitt or a Loman to highlight the evils of capitalism.

The more accomplished a businessman becomes, the more likely he is to be a target for the envious. Aided by the antitrust laws, laws whose premise is that the person who creates is a coercive threat to the person who does not, the unsuccessful are able to demand a tribute they could never earn by their own effort in the free market. One example: In the years since Bill Gates established Microsoft as the software standard for PC operating systems, Microsoft has been under relentless attack for attempting to improve its products by adding new features. These innovations have lead not to increased profits, but to billions of dollars in payouts to settle antitrust lawsuits filed against Microsoft by Microsoft's competitors and trial lawyers representing the class action bar.

The antitrust attack against Microsoft is driven by the idea that Microsoft is unfairly levering is success in operating systems against other companies and consumers. Yet a private company has no power to force consumers to do anything. Microsoft has no police force or army that compels people to use its software. The only "leverage" Microsoft has is the leverage it has earned by producing products that people want to buy.

The motive for this and other attacks against businessmen is simple: a businessman desires profit. He creates for his own sake and he seeks a return on his investments. He is selfish. He does not give the unearned any more then he would take it. He is a producer and trader.

Yet it is exactly for his virtues that a businessman is vilified. He is told that the pursuit of his own ends leaves him morally wanting and that his primary mission is not to become more productive, but to live up to his “social responsibility.” A good businessman, it is said, "gives back" to the society that enriched him.

"Social responsibility," or "giving back" implies an ethical duty to others; the argument goes that because one lives in society, one must genuflect before it. Mother Teresa, the angel of the gutters of Calcutta, would be a prime example of this view. Teresa dedicated her life to the poor of India; her dedication was so great she received the Nobel Peace Prize in honor of her work, and in death she is on her way to becoming canonized a saint—the Catholic church’s means of highlighting its view of human perfection on Earth.

Yet Teresa produced nothing. She grew no food, commissioned no factory, nor claimed any patent. Throughout her life, Teresa preached utter self-sacrifice; the nuns of her order were instructed to avoid any labor-saving device, not because it was unavailable to them, but because Teresa held that suffering, denial, and brutal work were pleasing to God. Personal bonds of friendship were forbidden to the nuns of Teresa’s order on the grounds that if the nuns befriended the recipients of their charity, they may act out of love, and love is anything but selfless. While speaking at the National Prayer Breakfast during one of her visits to the US, Teresa was quite succinct about her position: "Are we willing to give until it hurts…or do we put our own interests first?"

It is no surprise then that profit motive repulsed Teresa as an insult against giving until it hurts and that she saw the people of the United States—a people dedicate to profit—as “morally impoverished.” According to Teresa's moral code, the best and the brightest—the very human dynamos that make life and happiness possible—are the earth's most wretched. Why? Because most of them are unwilling to renounce their lives and serve the slums as she did. Teresa's standard wasn't individualism but egalitarianism; a brutal, hard equality that makes even the most efficacious renounce themselves for the sake of others.

Yet at her own moral best, all Teresa did was distribute the wealth given to her by others—it was the people who grew the food and who built and worked in the factories, office buildings and stores that made the material values she redistributed possible. If the relief of human suffering is a moral ideal, and life is nothing more than a perpetual hospital, who's work did more to achieve this ideal: Teresa's, or that her donors?

Yet human life is not a hospital. We are capable of answering the questions of existence—of reshaping nature to successfully provide for ourselves. If Teresa really wanted to relive human suffering, she could have said, “become capitalists—be productive.” Rather then preach renunciation, she could have said, "Be productive enough to care for yourself, because life requires productivity. Be productive enough to care for the ones you love, because you value your relationships selfishly. Be productive enough to provide for the children you bring into this world, because they have no means to provide for themselves until you teach them. Demand the freedom to produce and the right to keep the benefits of your work. Be businessmen and women."

But Teresa never held and respect for business; she never could. Teresa's altruism and love of poverty got in the way of her ever recognizing the abundance of capitalism and the morality of its ethical base. "Life, liberty and the pursuit of happiness" are incompatible with a life earnestly dedicated to selfless sacrifice. "Social responsibility" is just another code word for self-immolation. All values are selfish. There is nothing gained from human sacrifice.

In an era where corporate scandals make frequent news and corruption treated as the norm, perhaps the real scandal is the utter lack of perspective—a perspective that demonizes businessmen and deifies Mother Teresa.

Capitalism and the Law: Forestry or Agriculture?

Such dilemmas the regulatory state faces. Christmas tree farms do not have to pay their workers overtime because they are involved in agriculture, not forestry according to the Fourth Circuit Court of Appeals in a ruling earlier this month. According to the AP:

A three-judge panel of the 4th U.S. Circuit Court of Appeals reversed a decision by U.S. District Judge Richard L. Voorhees, who declared that Christmas tree growers in North Carolina were not exempt from the overtime requirements of the 1938 Fair Labor Standards Act.

The federal wage-and-hour law exempts farming but not forestry.

The growers paid their workers overtime until 1995, when they began hiring legal aliens to harvest their trees. The Labor Department declared that federal immigration law required the growers to provide additional benefits, including free housing, meals and transportation.

According to the Labor Department, the work was defined as agriculture for purposes of the immigration law but forestry for purposes of the labor law. The growers insisted the government couldn't have it both ways, and they ceased paying overtime until the Labor Department filed an enforcement action in 1998.
How typical of our government today—wanting to cut the cake both ways.

Still, it is amusing to think of Christmas tree farms as agriculture. The Oxford Dictionary (2nd Ed.) defines it as “science and art of cultivating the soil; including the allied pursuits of gathering the crops and rearing livestock; tillage, husbandry, farming (in the widest sense).” One thinks of a process ultimately dedicated to producing food. Of course, there is the legal definition:

"Agriculture" includes farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities (including commodities defined as agricultural commodities in section 1141j(g) of Title 12), the raising of livestock,bees, fur-bearing animals, or poultry, and any practices (including any forestry or lumbering operations) performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market. [Emphasis added] 29 U.S.C.A. § 203(f) (West 1998).
Ultimately, the court held that the Christmas tree farms fall within the meaning of horticulture and that the government’s regulatory classification in this case “provide[d] no analysis” and was “arbitrary.” Bravo.

Thursday, August 05, 2004

The War: Revisiting the Japanese Internment

According to its publisher, conservative columnist Michelle Malkin’s controversial new book In Defense of Internment: The Case for Racial Profiling in World War II and the War on Terror in defense of the WWII incarceration of Americans of Japanese descent argues that decrypted Japanese message traffic indicated fifth column activities on the west coast in late 1941 and 1942 and justified the interment of these Americans on practical grounds.

After some research, I’ve come to disagree with the premise. From my reading of the intercepted message traffic Malkin references, I’ve seen little evidence of a conspiracy by American citizens to support a Japanese invasion. The traffic I’ve seen only speaks to vague generalities. At best, these intercepts indicate areas of caution and the need for further investigation—actions that ought to be standard during wartime. They do not justify the suspension of the writ of habeas corpus and forced relocation of a thousand people, let alone a hundred thousand. The government committed a massive error of judgment when it chose its policy of mass incarceration.

Worse, the legal safeguards that should have protected the rights of these citizens failed as well. In 1944, rather then question the government’s premise, the US Supreme Court chose to defer to the judgment of military commanders in upholding the incarceration through its decision in Korematsu v. United States. This deference was undeserved. I found this damning statement from General John DeWitt, the Army official in charge of defending the west coast and the key proponent behind the incarceration: "The Japanese race is an enemy race and while many second and third generation Japanese born on United States soil, possessed of United States citizenship, have become 'Americanized,' the racial strains are undiluted."

DeWitt’s words are shocking and explain much. I do not believe that they were poorly chosen; I believe they reflect a mentality that does not respect the existence of free will among the races.

There is a difference between sharing a common race with an enemy and sharing a common ideology. The first may make one a legitimate object of suspicion for the latter, but when it comes to the application of government force against its own people, suspicion is not a proxy for proof. The Americans of Japanese descent interned by the government were guilty of sharing the same race as the enemy and they should never have been incarcerated on that basis alone. The thinking that led to the internments should not be praised; it should be studied so that the same mistakes are never made again.

Additionally, Malkin misses a key strategic point. The Japanese were not defeated through the interment of American citizens—they were defeated through the destruction of the Japanese state. The war was not won on our shores—it was won on the shores of Midway, Guadalcanal and Iwo Jima. Malkin, wittingly or not, has fallen into the trap of becoming an apologist for the policy of homeland defense, a strategy of permanent siege instead of forward offense and victory.

I will need to read her entire book before I make my final judgment, but at this stage, Malkin has failed in her goal to justify the mass interment of American citizens. If her case for fighting the enemy today rests on her argument for the past, I don’t expect much.

Update: Guest blogger Eric Muler has a lot to say on this at the Volokh Conspiracy.