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The Unsung Virtues of Regulation, The Clear Foolishness of Libertarianism

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Friedrich von Hayek

Libertarianism opposes all economic regulations. Robert A. Levy, of the libertarian Koch brothers’ Cato Institute, has written that, “Libertarians are not opposed to reasonable safety regulations, sensible compromises of civil liberties to enhance national security, or even selective gun controls,” but whenever a ‘libertarian’ advocates that way, and (like there) fails to define what determines those adjectives “reasonable” and “sensible,” and “selective” (on what basis?), he or she is merely begging the issue (faking it), so as to avoid dealing with the reality of their own ridiculous philosophy.

Libertarianism has accurately and commonly been described as anarchism, the repudiation of government, which is actually at the very foundation of libertarian philosophy. The way that Grover Norquist most famously phrased it was “I don’t want to abolish government. I simply want to reduce it to the size where I can drag it into the bathroom and drown it in the bathtub.” But what “size” is that, and how is it to be empirically determined? And why that particular size and shape, and none other? They never say, because their philosophy is too ridiculous to address the real issues in a way that will make it attractive to intelligent people, and so it’s all a game to them, a game of deceit to themselves (for whatever psychological reason) and to others (for whatever reason they want to spread their faith). Libertarianism is a repudiation of government, but it pretends not to be anarchic. Essential to libertrianism is its repudiation of regulation.

Nobody credibly denies the fact that, in actual practice, libertarians are especially fighting against regulations of corporations. However, in the case of sellers in the gun-control debates, libertarians — who tend to be very much on the pro-gun side as a reflection of their repudiation of government — fight for gun-owners’ rights (the rights of the consumers, instead of the gun-makers), and against gun-sale regulations that reduce consumers’ rights to purchase guns.

But the vast majority of the anti-regulatory thrust of libertarianism, particularly as reflected by the mega-corporate funders of libertarianism and their most broadly influential fundees — people such as the funders Kochs, and such as the fundees Friedrich von Hayek and Milton Friedman — are for (as much as possible) unfettered corporations. Libertarians are for corporations’ rights, against governments’ rights, and against governments’ obligations to their citizens — those citizens being the real persons, instead of fictitious collective “artificial persons” that are no “persons” at all but instead collections of financial assets —- mere property, not real “owners” (except in the legalistic fiction). So: libertarianism is against regulations that restrict the rights of corporations (i.e., that restrict the rights of owners, most prominent of which are corporations). As between producers (including corporations) and consumers (including everybody), libertarians are especially concerned to protect the rights of producers.

However, economic regulation lowers, not just raises, prices; and it raises efficiency by introducing and enforcing standardization, so that consumers can reliably know what they’ll get for what they pay — for example, “500 mg” of x will then far likelier be 500 mg of x. Of course, if the government is corrupt, then the regulation and its enforcement will be, too, but that’s a corruption-problem, not a problem of regulations that shouldn’t exist at all (according to libertarian dogma); so, keeping one’s conceptual categories clear is important, when discussing regulation (or anything else).

Take, for example, drugs — all types, regardless of whether they’re now legal, or, to the exact contrary, are altogether prohibited. Any drug should be taken in the dose suitable for the intended purpose — neither more nor less — but if there is no reliably enforced legal penalty for dishonest labeling of potency, etc., then the consumer (again, regardless of whether the drug itself is legal or not) can be victimized by a dishonest or sloppy vendor, who can be careless or else shortchange that consumer on potency or even include toxic impurities, without that seller’s having any other concern than that perhaps the consumer will change vendors or perhaps die from what the vendor did and will thereby reduce the seller’s customer-count by one, but cannot be subjected to legal or regulatory penalties that would be disincentives above and beyond that of perhaps merely losing a customer.

Furthermore, in all types of consumer-rights cases, not just drug-related ones, only the existence of government enables the consumer to hold accountable a manufacturer or seller of dangerous and misrepresented products, such as of tobacco products, insecticides, or food-ingredients such as hydrogenated oils, if and when those products or services turn out to be vastly more dangerous than their consumers assume (and such as their news-media have been paid by the producers of these products and services to promote or to advertise).

For example, Janet Bufton, co-founder of the libertarian Institute for Liberal Studies, has written against regulations of tattooists, because:

I’m considering getting a tattoo of ama-gi, the earliest known writing of the word “freedom” and was trying to find out if the Ontario tattoo industry was regulated or not, since if it was I would go to Michigan, where the industry is unregulated.

[A friend challenged her preference to buy tattoos in a country where it’s an unregulated industry and asked her, “So, on principle you want to get hepatitis?”]

Finally, I had an epiphany. I texted her: “It’s important to me that where I go is being safe because they think it’s important to be safe, and not because they’re doing the absolute minimum the government says they have to do.”

And I think that’s at the heart of the libertarian argument against regulation.

Government regulations take away our vigilance for our own well-being and the rewards that should be enjoyed by people who are willing to go the extra mile with their business through a declaration that all businesses are acceptable in their eyes. It’s a terrible injustice; in fact the epiphany probably put me one step closer to a pro-tattoo decision.

Buffoon wanted “to get my freedom tattoo in an unregulated tattoo parlour” so as to be totally ‘responsible’ for the outcome (after all: in an anarchic world, it’s every person on his own and for herself, no laws restraining his or her ‘freedom’), so that if she’d become diseased from it, she would blame only herself, and not the corrupt system in which she functions and which she wants to love — craves to love the “state of nature” — and not to blame it for whatever bad might come to her from its being corrupt. Only the consumer is to blame, in that system (libertarianism). (Like she said: “Government regulations take away our vigilance for our own well-being and the rewards that should be enjoyed by people who are willing to go the extra mile.”)

Of course, aristocrats, who have enormous wealth, might reasonably self-identify with the supply side in all economic transactions, because they’re much more on that side (the side of the producer and seller) than on the side of the consumer (the purchaser and user), and so they reasonably might fund such operations as the Cato Institute or perhaps the Institute for Liberal Studies — in order to maximize the freedom of corporations.

But, for anyone else to welcome the increased danger to themselves that will result from such a corrupt system, is to self-identify with the corruption, and self-identify against anyone who would seek to change it so as to attach legal accountability to irresponsible or evil unconcern regarding suppliers’ meeting the most basic and legally enforced standards of safety in the provisioning of the given product or service.

Such buffoons — suckers of the corporate propaganda — are unfortunately assisting the corrupt to victimize the public. They’re thus dangers not only to themselves, but also to non-buffoons, who recognize the foolishness (if not evil) of libertarianism. They thus harm the entire body-politic, by their foolishness. To the extent that they influence government, they reduce everyone’s safety.

Investigative historian Eric Zuesse is the author, most recently, of They’re Not Even Close: The Democratic vs. Republican Economic Records, 1910-2010

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Biden’s Dilemma: Caught Between Israel and Iran

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Official White House Photo by Adam Schultz

By all indication, the latest sabotage at Iran’s uranium enrichment facility in Natanz aimed at more than just disabling thousands of Iran’s centrifuges and thus cause another setback for Iran’s nuclear program, it was also meant as an indirect diplomatic sabotage vis-a-vis the on-going nuclear talks in Vienna; the latter had shown real signs of progress before the April 10th incident at the Natanz facility, blamed on Israel by the Iranian officials, who have vowed to get revenge — an attack on an Israeli cargo ship off the coast of Oman as well as an attack on an Israeli post in Iraq’s Kurdistan may indeed be the acts of Iranian retaliation.

But, from Iran’s vantage, the biggest response was the decision to upgrade the enrichment level from 20% to 60% percent, thus bringing Iran closer to the weapons grade enrichment, bound to raise the ire of Tel Aviv, which is intent on dispossessing Iran of nuclear weapons capability.  Iran’s Supreme Leader, Ayatollah Khamenei, has followed suit by stating that Iran will not be dragged into a “protracted negotiation” with the US and that US’ removal of sanctions needs to be the first step in a future US return to the 2015 nuclear deal, known as the Joint Comprehensive Plan of Action (JCPOA).  In turn, this raises the question of how will the Biden administration respond, and adjust to, the latest developments?

On the one hand, the Iranian setback in Natanz, widely interpreted inside Iran as a major “embarrassment,” as it is the second time in 9 months that Israel has successfully inflicted serious damage on the facility, weakens Iran’s hand at the table in Vienna, no matter how the Iran negotiators seek to spin the issue.  With Iran’s vulnerability to “nuclear sabotage” irrefutably established, Tehran’s ability to utilize its nuclear chips in the bargaining with US has been diminished, perhaps for the duration of the current year, thus leading some conservative politicians to urge the government to withdraw from the Vienna talks. 

On the other hand, it is by no means clear that the Biden administration favors Israel’s spoiler role, which might lead to an escalation of tensions in the region to the detriment of Biden’s determination to re-embrace the JCPOA as part and parcel of an Iran “re-thinking” policy at odds with his predecessor’s maximum pressure strategy.  Chances are that, much like the Obama administration, the Biden administration will need to defy Israel’s will on Iran and push ahead for a new understanding with Tehran at a time Israel’s hawkish Prime Minister, Benjamin Netanyahu and, to a lesser extent the Saudi rulers, are wary of Biden’s resurrection of Obama’s (perceived) conciliatory approach toward Iran.  The big question is if President Biden is willing to act independently of Israel’s hawkish recipe for Iran and make meaningful concessions, above all in the area of post-2015 sanctions on Iran, in order to achieve its key demand of bringing Iran in compliance with its JCPOA obligations?  Lest we forget, Obama’s defiance of Israel on the JCPOA caused a major rift benefiting the Republican Party opponents of the deal, such as Donald Trump, and so far there is little evidence that Biden is unmindful of that prior experience.  In turn, this may explain the timing of US Defense Secretary Austin’s Israel visit coinciding with the Natanz sabotage, which may not have been coincidental as Israel most likely had informed Washington of the coming attack on Natanz beforehand.  

Naturally, Tehran is irritated at Austin’s presence in Israel at that particular time and his expression of “ironclad support” for Israel instead of raising any criticism of nuclear terrorism against Iran, just as China and Russia have done.  In fact, none of the Western governments, as well as the EU, partaking in the Vienna talks, have bothered to condemn the attack on Natanz, thus adding salt to Iran’s injury.  Instead, the German foreign minister, Heiko Maas, dispensed with any criticism of Israel and confined himself to questioning Iran’s post-attack decision to increase the enrichment level, which he called “irresponsible.”  But, is it really responsible for the US and European powers to refrain from condemning an act of sabotage with respect to a facility that, under the terms of JCPOA, is recognized to be the hub of Iran’s nuclear fuel cycle? Germany, France, and England, as well as the European Union, ought to act in unison denouncing the acts of nuclear sabotage in Iran, irrespective of Israel’s prerogative.  Their failure to do so simply adds another layer of distrust between Iran and these powers, to the detriment of any prospect for tangible progress in the Vienna talks.

As for Biden’s foreign team, which has reported of its “serious proposal” on the table, it must recognize that unless there is some pressure applied on Israel to stop its spoiler role, US’s national interests maybe harmed and even sacrificed by a hawkish Middle East ally that behaves according to its own calculation of risks to its interests.  In a word, an Obamaian rift with Israel may indeed be both inescapable and inevitable for the Biden administration.

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Roads and Rails for the U.S.

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For those who expect the newly announced $2 trillion Biden infrastructure program to be a goodbye to potholes and hello to smooth-as-glass expressways, a disappointment is in store.  The largest expenditure by far ($400 billion) is on home/community care, impacting the elderly or disabled.  The $115 billion apportioned to roads and bridges is #4 on the list. 

The American Society of Civil Engineers (ASCE) keeps tabs on our infrastructure and their latest report (2020) gave it an overall grade of C-.  Although bridges worsened, this is a modest improvement on the previous report (2017) when the overall grade was D+.  If $115 billion in spending sounds adequate, one has to remember it costs $27 billion annually for upkeep.

Astounding it might be the backlog in spending for roads and bridges runs at $12 billion annually.  Go back 20 years and we have a quarter trillion shortfall.  Add all the other areas of infrastructure and the ASCE comes up with a $5 trillion total.  It is the gap between what we have been spending and what we need to.  Also one has to bear in mind that neglect worsens condition and increases repair costs. 

One notable example of maintenance is the Forth rail bridge in Scotland.  A crisscross of beams forming three superstructures linked together, it was a sensation when opened in 1890 and now is a UN World Heritage Site.  Spanning 1.5 miles, its upkeep requires a regular coat of paint.  And that it gets.  Rumor has it that when the unobtrusive painters reach the end of their task, it is time to start painting again the end where they began — a permanent job to be sure though new paints might have diminished such prospects.

Biden also proposes $80 billion for railways.  Anyone who has travelled or lived in Europe knows the stark contrast between railroads there and in the U.S.  European high-speed rail networks are growing from the established TGV in France to the new Spanish trains.  Run by RENFE, the national railway, Alta Velocidad Española (AVE) trains run at speeds up to 310 km/h (193 mph)  — a speed that amounts to a convenient overnight trip between Los Angeles and Chicago.

The hugely expensive new tracks needed can be considered a long-term investment in our children’s future.  But it will take courage to contest the well-heeled lobbies of the airplane manufacturers, the airlines and big oil.

If Spain can have high-speed rail and if China already has some 24,000 miles of such track, surely the US too can opt for a system that is convenient for its lack of airport hassle and the hour wasted each way in the journey to or from the city center.  Rail travel not only avoids both but is significantly less polluting.  

Particularly bad, airplane pollution high above (26 to 43 thousand feet) results in greater ozone formation in the troposphere.  In fact airplanes are the principal human cause of ozone formation.

Imagine a comfortable train with space to walk around, a dining car serving freshly cooked food, a lounge car and other conveniences, including a bed for overnight travel; all for a significantly less environmental cost.  When we begin to ask why we in the US do not have the public services taken for granted in other developed countries, perhaps then the politicians might take note.

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Congress and the Biden administration should end FBI immunity overseas

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Image source: U.S. Embassy in Uzbekistan

The FBI notably has an extended international presence running 63 offices in select countries overseas. The offices are called “legats” and are situated at the US Embassy in the host country. One of the major reasons for FBI’s international presence is fighting international terrorism.

The FBI legat personnel at the US embassies are fully accredited diplomats enjoying full diplomatic immunity but that poses several questions that are worth asking, such as: how is it possible for law enforcement to be diplomats and is that a good idea, legally speaking?

Police work should not enjoy diplomatic immunity because that opens the door to abuse. Does the FBI’s immunity overseas mean that the FBI attaches can do no wrong in the host country? How do we tackle potential rights infringements and instances of abuse of power by the FBI towards locals in the host country? The DOJ Inspector General and the State Department Inspector General would not accept complaints by foreigners directed at the FBI, so what recourse then could a local citizen have vis-a-vis the FBI legat if local courts are not an option and the Inspector Generals would not look into those cases?

This presents a real legal lacuna and a glitch in US diplomatic immunity that should not exist and should be addressed by Congress and the new Biden administration.

While FBI offices overseas conduct some far from controversial activities, such as training and educational exchanges with local law enforcement, which generally no one would object to, the real question as usual is about surveillance: who calls the shots and who assumes responsibility for potentially abusive surveillance of locals that may infringe upon their rights. It’s an issue that most people in countries with FBI presence around the world are not aware of. The FBI could be running “counter-terrorism” surveillance on you in your own country instead of the local police. And that’s not nothing.

When we hear “cooperation in the area of counter-terrorism”, as recent decades show, there is a great likelihood that the US government is abusing powers and rights, without batting an eyelash. That exposes local citizens around the world to unlawful surveillance without legal recourse. Most people are not even aware that the FBI holds local offices. Why would the FBI be operating instead of the local law enforcement on another country’s territory? That’s not a good look on the whole for the US government.

The legal lacuna is by design. This brings us to the nuts and bolts of the FBI legats’ diplomatic immunity.

Diplomatic immunity is governed by the Vienna Convention on Diplomatic Relations of 1961, under Chapter III on privileges and immunities. The US is also a state party to the Convention, along with most states around the world. While there could be some variations and disagreements on bilateral basis (including on weather for example one state could be hosted and represented through the embassy of another state in a third state), on the whole there is a universal consensus that the Vienna Convention sets the rules establishing diplomatic immunities and privileges.

Under the Vienna Convention, only top diplomats are given the highest degree of immunity from the law. This means they cannot be handcuffed, arrested, detained, or prosecuted by law enforcement officials of the country in which they’re stationed. Diplomatic immunities and privileges also include things like diplomatic “bags” (with very peculiar cases of what that could entail) and notably, protection and diplomatic immunity for the family of diplomats.

It is a universal consensus that not everyone who works at an Embassy has or should have diplomatic immunity.  Immunity is saved for diplomats whose role has to be protected from the local jurisdiction of the country for a reason. Not all embassy staff should enjoy diplomatic immunity. Granting law enforcement such as the FBI full legal immunity for their actions is bad news.

Only the top officials at an embassy are diplomats with an actual full immunity — and that’s for a reason.

It makes sense why a diplomat negotiating an agreement should not be subjected to local courts’ jurisdiction. But the same doesn’t go for a law enforcement official who acts as a law enforcement official by, for example, requesting unlawful surveillance on a local citizen, in his law enforcement capacity, while thinking of himself as a diplomat and being recognized as such by the law.

Law enforcement personnel are not diplomats. Dealing with extraterritorial jurisdiction cases or international cases is not the same thing as the need for diplomatic immunity. If that was the case, everyone at the export division at the Department if Commerce would have diplomatic immunity for protection from foreign courts, just in case. Some inherent risk in dealing with international cases does not merit diplomatic immunity – otherwise, this would lead to absurdities such as any government official of any country being granted diplomatic immunity for anything internationally related.

The bar for diplomatic immunity is very high and that’s by design based on an international consensus resting upon international law. Simply dealing with international cases does not make a policeman at a foreign embassy a diplomat. If that was the case every policeman investigating an international case would have to become a diplomat, just in case, for protection from the jurisdiction of the involved country in order to avoid legal push-back. That’s clearly unnecessary and legally illogical. Being a staff member at an embassy in a foreign country does not in and of itself necessitate diplomatic immunity, as many embassy staff do not enjoy diplomatic protection. It is neither legally justified nor necessary for the FBI abroad to enjoy diplomatic immunity; this could only open up the function to potential abuse. The FBI’s arbitrary surveillance on locals can have a very real potential for violating the rights of local people.  This is a difference in comparison to actual diplomats. Diplomats do not investigate or run surveillance on locals; they can’t threaten or abuse the rights of local citizens directly, the way that law enforcement can. Lack of legal recourse is a really bad look for the Biden administration and for the US government.

The rationale for diplomatic immunity is that it should not be permitted to arrest top diplomats, who by definition have to be good at representing their own country’s interests in relation to the host state, for being too good at their job once the host state is unhappy with a push back, for example. The Ambassador should not be exposed to or threatened by the risk of an arrest and trial for being in contradiction with the interests of the host state under some local law on treason, for example, because Ambassadors could be running against the interests of the host state, by definition. And that’s contained within the rules of diplomatic relations. It’s contained in the nature of diplomatic work that such contradictions may arise, as each side represents their own country’s interests. Diplomats should not be punished for doing their job. The same doesn’t apply to the FBI legats. Issuing surveillance on local citizens is not the same as representing the US in negotiations. The FBI legats’ functions don’t merit diplomatic immunity and their actions have to be open to challenge in the host country’s jurisdiction.

The FBI immunity legal lacunae is in some ways reminiscent of similar historic parallels, such as the George W. Bush executive order  that US military contractors in Iraq would enjoy full legal immunity from Iraqi courts’ jurisdiction, when they shouldn’t have. At the time, Iraq was a war-torn country without a functioning government, legal system or police forces. But the same principle of unreasonable legal immunity that runs counter international laws is seen even today, across European Union countries hosting legally immune FBI attaches.

Congress and the Biden administration should end FBI immunity overseas. It can be argued that for any local rights infringements, it is the local law enforcement cooperating with the US Embassy that should be held accountable – but that would ignore that the actual request for unlawful surveillance on locals could be coming from the FBI at the Embassy. The crime has to be tackled at the source of request. 

When I reached out to the US Embassy in Bulgaria they did not respond to a request to clarify the justification for the FBI diplomatic immunity in EU countries.

To prevent abuse, Congress and the Biden Administration should remove the diplomatic immunity of the FBI serving overseas.

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