Randy Barnett: Pro War Libertarian?
Suppose Paul Ehrlich was to renounce his views on overpopulation. Or a leading Marxist was to accept the legitimacy of capitalism. Or a rabbi was to claim that eating pork is compatible with the Talmud. Or Dick Cheney was to advocate an immediate US withdrawal from Iraq. There would be great wailing and gnashing of teeth in the environmental, Marxist, Jewish and neoconservative communities, respectively. Charges of "turncoat," and "traitor," would fill the air. Members of each of these groups would reason that while it would almost be acceptable for members of the great unwashed to articulate sentiments of these sorts, it would leave them horror stricken that a prominent member of their own movements could be guilty of so great a defection.
Something of this sort has recently occurred in the libertarian movement. Randy E. Barnett has recently published an article in the Wall Street Journal entitled "Libertarians and the War: Ron Paul doesn’t speak for all of us." While Professor Barnett could not fairly be characterized as a leader of this movement, he certainly is (or at least was) one of its more high-profile practitioners. Even did libertarianism not have so few advocates, each one would still be very precious, given that this perspective is the last best hope for justice, economic prosperity and indeed, the survival of the human race. That this episode occurs while we are still relatively weak, but on an upward trajectory (thanks most recently to the magnificent efforts of Ron Paul), makes it even more shameful.
Barnett attacks libertarianism on its most basic postulate; the nonaggression axiom (NAP). This is the lynchpin of the entire enterprise. It is a litmus test for libertarians to oppose the initiation (or threat) of violence against those who have themselves not been guilty of such an evil act. In rejecting the NAP, nay, perverting it, this legal scholar can no longer be considered a libertarian. It is my utmost hope, however, that he will reconsider his rash remarks and once again join the libertarian movement. The world cries out for liberty, and Barnett in the past has been a stalwart contributor to this cause. He can be, once again. This response is an attempt to promote just that result.
This author starts out on a strange note: Thanks to Ron Paul, "…many Americans might resist the libertarian label, because they now identify it with strident opposition to the war in Iraq…" Strident? Ron Paul? A more soft-spoken, thoughtful and judicious politician would be hard to imagine.
In Barnett’s view, the exchange between Paul and Giuliani redounded to the latter’s benefit: "It was an electrifying moment that allowed one to imagine Mr. Giuliani as a forceful, articulate president." "Forceful?" Yes. But "articulate?" Give us a break. He, rather, exposed himself as a demagogue who simply had not done his homework. Indeed, Dr. Paul later held a press conference offering the New York City Mayor a reading list for his edification. As for Giuliani’s out of turn interjection, one wonders just who was in charge of the loudspeaker microphone system that allowed this outburst.
Mr. Barnett characterizes Ron Paul as "until then … a rather marginal member of the 10-man Republican field." True, if you count polls of people who had never heard of this candidate. But our former libertarian forgets all about electronic results; there, Dr. Paul has been anything but "rather marginal." He also finds "striking" Paul’s linkage of "almost every question put to him — even friendly questions about taxes, spending and personal liberty — to the war." First of all, there were no "friendly questions" put to Paul. The moderator was visibly biased against this libertarian candidate (and so was the wielder of the sound system). Second, any libertarian worth his salt would see a connection, a strong one, between this execrable war and precisely those issues. But Barnett evidently sees no connection between war expenses and taxes, which seems very "striking" to me. Barnett evidently sees no connection between the liberty-sapping Patriot Act and loss of habeas corpus and this war either, which also appears rather "striking." These issues are irrelevant to his libertarian credentials, but his view of them certainly places his understanding of economics and current events in a poor light.
We now arrive at the core of my disagreement with this author. He states, "Does being a libertarian commit one to a particular stance toward the Iraq war? The simple answer is u2018no.’" In my view, in contrast, the simple answer, the no-brainer answer, is a clear and resounding "yes." What is Barnett’s reasoning? Let us take this bit by bit.
First, he says: "But like all libertarians, even Mr. Paul believes in the fundamental, individual right of self-defense, which is why libertarians like him overwhelmingly support the right to keep and bear arms. And most also believe that when the territory of the U.S. is attacked militarily, the government — which claims a monopoly on providing for national defense and extracts billions of tax dollars for this purpose — is justified in using the military in self-defense. For this reason, many libertarians (though not all) who now oppose the war in Iraq supported U.S. military actions against the Taliban regime in Afghanistan, which had aided and harbored the al Qaeda network that organized the 9/11 attack."
There are several problems here. Why is it that even Mr. Paul believes in self-defense? This implies that there is some dispute amongst libertarians as to pacifism, and that Ron Paul only reluctantly eschews this viewpoint. Not so, not so, not at all so.
Then, the point must be made that it is one thing if, entirely out of the blue, an enemy attacks the U.S. Then, yes, the libertarian would have no objection to a strong defense, compatible with just war theory, and, indeed, retaliation. Our revolutionary war is one case in point. However, suppose there were a series of entirely unprovoked "abuses and usurpations" on the part of invasive country A against victimized country B. Finally, B has had enough, and retaliates against A. In street vernacular, A "started up" but B only "got even." A is entirely in the wrong, not B. Then, is it justified on libertarian grounds for A to escalate matters further, and further attack B? Barnett to the contrary notwithstanding, it is not. This is a far more accurate rendition of the 9/11 attack and the aftermath than that furnished by Barnett. The U.S. had been for decades making unwarranted and unprovoked attacks in the near east. It had stationed soldiers in the foreign lands of countries that had never even come close to threatening or actually invading us. Any support of U.S. military action "against the Taliban regime in Afghanistan" thus cannot be justified on libertarian grounds. (Some might say that there were those in these countries, such as Saudi Arabia, who had invited American armed forces to occupy their lands. True enough. But it is hardly a libertarian notion to acquiesce in such "invitations.") Al Qaeda was certainly unjustified in killing some 3,000 innocent people in New York City. However, anyone with even the slightest passion for justice must never forget that prior to that horrendous event the U.S. had murdered vastly more innocents in Arab and Muslim countries.
Mr. Barnett’s ire at "Afghanistan, which had aided and harbored the al Qaeda network that organized the 9/11 attack" is surely misdirected. Remember, we started up first. However unjustified, they were attempting to even up the score. As well, fifteen of the nineteen terrorists responsible for the World Trade Center massacre came from Saudi Arabia, not Afghanistan, even less so from Iraq, which had nothing whatever to do with this horrid blood letting. (Not that the U.S. would have been justified in attacking the Saudis on this ground. After all, another mass murderer, Tim McVeigh, was from New York State, but only he, not all inhabitants of the Empire State, was responsible for his nefarious deeds.)
Randy Barnett next steps into the batter’s box with this: "But here is the rub. While all libertarians accept the principle of self-defense, and most accept the role of the U.S. government in defending U.S. territory, libertarian first principles of individual rights and the rule of law tell us little about what constitutes appropriate and effective self-defense after an attack. Devising a military defense strategy is a matter of judgment or prudence about which reasonable libertarians may differ greatly."
I regard this as an evasion. It cannot be denied that "a military defense strategy is a matter of judgment or prudence about which reasonable libertarians may differ greatly." But the point is we have yet to establish that what the US government was doing was defense. If it is true that America started first, then what we were doing after 9/11 was not defense. It was, rather, a further escalation of a conflagration we had started. Barnett does not offer any reason to believe that post-9/11 military action of the U.S. was defense. Indeed, he shows no awareness that his case depends entirely on that being true.
This brings us, finally, to Iraq. On this matter, Barnett states the following:
"Many libertarians, and perhaps most libertarian intellectuals, opposed the war in Iraq even before its inception. They believed Saddam’s regime neither directly threatened the U.S. nor harbored or supported the terrorist network responsible for Sept. 11. They also feared the risk of harmful, unintended consequences. Some may also have believed that since the U.S. was not attacked by the government of Iraq, any such war was aggressive rather than defensive in nature.
"Other libertarians, however, supported the war in Iraq because they viewed it as part of a larger war of self-defense against Islamic jihadists who were organizationally independent of any government. They viewed radical Islamic fundamentalism as resulting in part from the corrupt dictatorial regimes that inhabit the Middle East, which have effectively repressed indigenous democratic reformers. Although opposed to nation building generally, these libertarians believed that a strategy of fomenting democratic regimes in the Middle East, as was done in Germany and Japan after World War II, might well be the best way to take the fight to the enemy rather than solely trying to ward off the next attack."
I am entirely in accord with this first paragraph. This is a reasonably accurate assessment of the libertarian position on the matter, the only libertarian position on the matter. The second paragraph, however, is a logical howler. There is no "other libertarian" who could believe any such thing. To the extent he did adopt this perspective, he could not be a libertarian.
Let us consider in some detail the supposedly libertarian claim we should "take the fight to the enemy rather than solely trying to ward off the next attack." What next attack? The horrific events of 9/11 were in response to prior western attacks on Arab territory. Had we not first started up with them, they would not be retaliating against us. These people (yes, they are people) are not attacking us because of our freedoms, because of the fact that we allow mini skirts and rock and roll music. There are numerous countries where such activities are practiced, and have not been attacked. No, as Ron Paul has been at great pains to explain to Barnett’s hero, Rudy Giuliani, this is blowback.
Surprisingly, Barnett himself acknowledges no less: "To a libertarian, any effort at u2018nation building’ seems to be just another form of central planning which, however well-motivated, is fraught with unintended consequences and the danger of blowback (emphasis added)."
How, then, can Barnett coherently talk of "tak(ing) the fight to the enemy rather than solely trying to ward off the next attack." It surpasseth all understanding. The "next attack" will emanate from our continued aggression against them, as did the previous one. If we cease and desist, apologize, and pay compensation due to them, they will in one fell swoop stop attacking us.
To construe our invasion of Iraq as "defensive" is to so totally misconstrue what "defense" is as to violate not only libertarian principle, but even common sense. Iraq, as opposed to the perpetrators of the unjustified bloodbath of 9/11, not only never attacked us, they never even threatened to do so. For us to initiate an invasion of their country was thus not defense; it was offense.
Preemptive war of the sort advocated by ex-libertarian Barnett is the foreign analog of domestic preventive detention. I note that males between the ages of 15 and 25 commit a disproportionately high number of crimes. Why wait to "ward off the next attack" by this age sex cohort? Why not "take the fight to (this domestic) enemy? Can I as a libertarian advocate that we lock up every male in the country at age 15, regardless of whether they have committed a crime, and set them free at age 25? I cannot, and still remain a libertarian. Well, then, neither can Barnett, qua libertarian, support a policy of "tak(ing) the fight to the enemy (who never attacked us) rather than solely trying to ward off the next attack."
Barnett next delivers himself of this opinion:
"Moreover, the pro-war libertarians believed there was u2018legal’ cause to take military action against Saddam’s regime — from its manifold violations of the ceasefire to firing on American planes legally patrolling the u2018no-fly’ zone and its persistent refusals to cooperate with weapons inspections. Saddam’s regime was left in power after its unprovoked invasion of Kuwait on these and other conditions that it repeatedly had violated, thereby legally justifying its removal by force if necessary. Better to be rid of Saddam and establish an ally in the war against Islamic jihadists in the heart of the Middle East, the argument goes, and then withdraw American troops."
There are several objections here. First, "Pro-war libertarians" is a contradiction in terms. There can logically be no such thing in the present context.
Second, Barnett, himself, has in the past been active among libertarians in distinguishing that which is legal or illegal from that which is compatible with libertarianism, or not. For example, smoking pot is now illegal in the U.S. But, certainly, so doing is consistent with the NAP of libertarianism. Barnett, when he was a prosecuting attorney in Chicago, and a libertarian, was not very happy with the prospect of incarcerating a person for breaking this law. But now, shockingly, he is relying upon what is legal, not that which is compatible with the libertarian law code. He has become a legal positivist it would appear, supporting the notion that what is legal is therefore for that reason proper. But, can the legislature, or the courts, never make a mistake? This would appear to be the implication of Mr. Libertarian Barnett.
I will not debate with Barnett whether or not the "no fly" zone was legal. I concede this to him. But it by no means follows that the "legal" no-fly zone is compatible with libertarianism. Barnett claims to still be a libertarian. Yet, he argues not that the no fly zone was compatible with libertarianism, merely that it was "legal," according to U.S. law (which he when he was a libertarian rejected when it comes to addictive drugs, prostitution, and other such victimless crimes).
Third, according to Barnett, all we need do is set up "no fly" zones anywhere we want; say, in China or Chile, in Venezuela or Venus for that matter. Then, if the Chinese, Chileans, Venezuelans or Venusians disobey us and take to the air over their own territory, they are committing aggression against us, and we may bomb them as a defensive matter. This seems highly problematic, to say the least. Suppose that the Chinese, Chileans, Venezuelans or Venusians set up "no fly" zones in the U.S. When we disobeyed them, as a violation of our sovereignty, according to Barnett’s "logic," then these countries, or worlds, as in the case of Venus, would be justified in bombing us, and could claim they were only defending themselves. One is at a loss to know what to say of this, from an eminent legal theorist.
Fourth, Barnett bases his entire justification of the U.S. invasion of Iraq on the basis of our defending ourselves. How in bloody blue blazes can this be squared with his objection to "Saddam’s regime’s … unprovoked invasion of Kuwait." Stipulate, arguendo, that Saddam was unjustified in attacking Kuwait. Forget about the fact that he was for many years, "our" man, certainly during the Iraqi-Iranian War. Please explain how this somehow constitutes a threat or an actual attack on the U.S., Barnett’s justification for our invasion of Iraq.
Another problem with the Barnett piece is that he strongly implies that Abraham Lincoln, who "… promptly replace(d his) military commanders … when it became clear that … (their) … tactics were not working" was virtuous, or acted in a manner compatible with libertarianism. Yet, as Tom DiLorenzo and others have shown, this is exactly the opposite of the truth. On this ground alone Barnett’s libertarian credentials become highly suspect.
Let me say a word about the fact that Barnett’s article implies things, but does not clearly state them. For example, he never quite comes out and claims to be a pro Iraq war libertarian; on the other hand, this is clearly his intention. I find this rather evasive.
In his conclusion, Randy Barnett says: "These (pro-invasion) libertarians are still rooting for success in Iraq because it would make Americans more safe, while defeat would greatly undermine the fight against those who declared war on the U.S. They are concerned that Americans may get the misleading impression that all libertarians oppose the Iraq war — as Ron Paul does — and even that libertarianism itself dictates opposition to this war. It would be a shame if this misinterpretation inhibited a wider acceptance of the libertarian principles that would promote the general welfare of the American people."
There are grave problems here, as there were all throughout.
First, what is this business of "mak(ing) Americans more safe"? Supposedly, the entire justification for this war, at least on libertarian grounds, was that it was an instance of self-defense. There are ways to make the citizens of this country safer that have nothing to do with that goal. For example, if we outright murdered every single solitary inhabitant of the entire earth, apart from Americans of course, we would probably be "more safe." Let us stipulate that this is so. According the Barnett’s conclusion, this would now be justified. And, mirabile dictu, on libertarian grounds! No, libertarianism justifies defense and only defense, not necessarily becoming "more safe." Let me put this in other words: the best way to ensure our safety is to follow the dictums of two of our founding fathers:
Thomas Jefferson: “Peace, commerce, and honest friendship with all nations, entangling alliances with none.” John Quincy Adams: “America . . . goes not abroad seeking monsters to destroy.” "We favor the freedom of all nations, but will fight, only, to protect our own."
Second, no one "declared war on the U.S." Nor, to be clear, has the U.S. recently "declared war" on anyone else. If this is to be done in a manner consistent with the law that Barnett elsewhere supports, then a declaration of war must be passed by congress, at least according to the U.S. constitution. Ron Paul has many times called for a vote on this matter, but to no avail. One might be excused for expecting Barnett to support Paul in this regard, but if so one would be disappointed.
I certainly agree with Barnett’s contention that "a wider acceptance of the libertarian principles … would promote the general welfare of the American people." But I cannot bring myself to believe that all libertarians do not oppose this war. Those who support this undeclared, invasive, offensive, imperialist war simply are not libertarians.
But wait. Perhaps I am being too harsh. After all, if libertarianism applies to, say, 500 issues, and a person consistently and fully applies the NAP to, say, 495 of them, can he not be considered a libertarian, despite these few deviations? After all, there are disputes between fully credentialed libertarians on issues such as abortion, immigration, incitement and voluntary slave contracts. In general, I would answer in the affirmative on this matter. I am nothing if not a "big tent" libertarian.
But a perversion of the very meaning of "defense," and hence, the NAP itself, is another matter. Entirely a different matter. It is as if a man rejects the Holy Trinity, and claims to be a Catholic; rejects 2+2=4, and claims to be a mathematician; rejects the Pythagorean theorem, and claims to be a geometrician. These things are simply too close to the core beliefs of the several philosophies to admit of any demurrers from those who claim to be adherents.
Who am I to read anyone out of the libertarian movement? Who appointed me boss? No one. I can only speak for myself. I can only give my own views on this or indeed any other matter. My claims stand or fall not on the basis of who I am, but rather stem from what I say, and the reasons I put forth in support of them.
The Randy Barnett I knew for at least four decades would not be capable of penning anything like that disgraceful Wall Street Journal article. I can only hope that he wrote it in a fit of pique, or that some other explanation of this sort is the correct one. It is my fervent hope he will next write a refutation of it. We need him back in the libertarian movement.