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Source link: http://archive.mises.org/15304/cato-official-stop-demonizing-doj-prosecutors/

Cato Official: Stop Demonizing DOJ Prosecutors!

January 12, 2011 by

Jim Harper, the director of information policy studies at the Cato Institute, says that it’s wrong to cast “aspersions on the entire security bureaucracy” when it comes to “privacy” (and I suppose other issues), and that it’s downright wrong for anyone to suggest there’s a moral aspect to government decision-making:

I believe the motivations of the vast majority of DoJ officials are good. They feel a real sense of honor from doing their self-chosen task of protecting the country from various threats. On average, they’ll likely weigh security and safety more heavily than the average privacy advocate or civil libertarian. Because they don’t think about privacy as much, they may not understand as well what privacy is and how to protect it consistent with pursuing justice. These are all good faith reasons why DoJ officials may undervalue and, in their work, undercut privacy. It is not necessary to believe they a dastardly enemy sits on Constitution Avenue mocking the document that street is named after.

The theory of the evil DoJ official says more about the theoretician than the DoJ. Experience in Washington has shown me that incompetence is almost always the better explanation than malice. (That’s not very nice, talking about “incompetence,” but there are some DoJ officials who lack competence in the privacy area.) Some people apparently need a dramatic story line to motivate themselves.

I’m sure it feels good to cast oneself as a white hat facing down a team of secretive, nefarious, government-sponsored black hats. But this mind-set gives away strategic leverage in the fight for privacy. The story is no longer how to protect privacy; it’s who is bad and who is good.

I strongly disagree with this. Anyone who has read anything that I’ve written on this website over the past seven years knows I am the first guy to cast aspersions on the evil intentions of DOJ and other government officials. And I do so proudly without any reservations. The fact this displeases folks like Mr. Harper doesn’t give me the slightest pause. He values his relationships with government officials over doing right by the innocent people injured by government aggression. That’s his call, and I won’t waste an ounce of energy trying to convince him otherwise.

Here is my only reply to the argument cited above: Incompetence and evil are not mutually exclusive. A person can demonstrate both simultaneously. More to the point, I think when you invoke “incompetence” as a blanket defense against government aggression, what you are really saying is government officers are never morally culpable for the consequences of their actions. Furthermore, painting anyone who points out the moral failings of government officers as some sort of out-of-touch lunatic only provides aid and comfort to those who commit aggression.

Mr. Harper also paints with a broad brush when he asserts that there are “good faith” excuses for DOJ officials to violate privacy in the name of “justice.” What justice would that be? I have hundreds of antitrust case files where DOJ officials violated all sorts of rights — and constitutional limits — to pursue persons accused of “price fixing,” a non-crime. Even Cato has called for the repeal of all antitrust laws. If you conclude that antitrust statutes are unjust and unconstitutional on their face, then no DOJ action taken to enforce such statutes can be in “good faith.” They are acts of aggression.

Now if you retort, “They’re just enforcing the laws as they exist today,” then we’re back to my basic disagreement with Mr. Harper. Unless the DOJ is drafting lawyers and forcing them to prosecute at gunpoint, then every single individual is morally culpable for his or her own actions. I judge an individual on his or her actions, and I don’t employ a sliding scale to give some people the benefit of the doubt because they have a DOJ title. That would be the worst sort of moral relativism.

Indeed, Mr. Harper concludes his own post with a call to abandon ethical and moral analysis in favor of utilitarian lobbying: “those who…insist on good-vs.-evil framing in order to cast themselves as heroic—they are closing the ears of DoJ officials they might reach and giving away opportunities to actually improve protections for privacy in the country.” In other words, negotiate with people who have demonstrated a history of violent aggression and little capacity to grasp the moral consequences of their actions. You’ll forgive me if I don’t ask to see any brochures for that brand of crazy.


Simon Grey January 12, 2011 at 3:49 pm

“I believe the motivations of the vast majority of DoJ officials are good.”

First, your beliefs do not determine the reality of their motivations. Second, their motivations are irrelevant, as it is the consequences of their actions that matter, intended or otherwise. Third, if they do have such great intentions, why don’t they apply themselves to doing something that actually improves security instead of harassing innocent citizens?

Capt Mike January 12, 2011 at 4:18 pm

I wonder what Mrs. Harper does for a living. And who’s her boss?

Michael A. Clem January 12, 2011 at 4:27 pm

I’ll give anyone the benefit of a doubt, at least initially. But when they repeatedly engage in the same evil actions, even when it’s pointed out to them how evil it is, then you have to go with evil intentions. Perhaps it’s just the corruption of power, and not really a desire to do evil, but is that any less evil?

Jim January 12, 2011 at 4:36 pm

I’m also sure that most DOJ employees mean to do well. I’m sure they care about their children and are kind to animals. I’m sure that freedom is important to them. They would love to support the constitution. But that doesn’t change the fact that they’re part of a system that will not allow them to do so. Humans are reasonable. Systems are not. To some extent I even agree that the employees are indeed incompetent and not intentionally evil; they are incompetent to change the system that they work in, no matter how nice or well meaning they are individually. It is somewhat disingenuous for Mr. Harper to use that old crutch that the inmates really are in charge of the asylum. But then, Mr. Harper is just part of a part of a machine too at Cato.

nate-m January 12, 2011 at 7:31 pm

Incompetence is a accurate description of most government fck-ups. The TSA scanners, for example. That’s because of incompetence.

I really don’t see much to disagree with Cato/Harper on this one.

Just keep in mind that even if they are not malicious, generally, is does not mean that they are trustworthy. It does not mean that you can trust what they say or do.

Just keep this mental image every time you see congress:

Think of a room of 8 year olds. Imagine a bunch of kids all hyped up on sugar and are tired of being made to sit around all day. They are sad, angry, spoiled, bored and restless. No end in this reality in sight for these guys. It’s a small room and they are unsupervised. They are used to getting what they want and they generally want everything.

That is government.

Now imagine somebody dropping off a crate of candy flavored alcohol and lighters and a couple of loaded handguns.

That is government power.

Your the toys they are playing with.

They don’t mean to destroy your life or the economy. They just can’t help it. It’s in their nature.

Now there are a few malicious and very focused individuals here and there. Don’t get me wrong. There are s few and most of them know exactly what is going on.. but that’s mostly a exception.

Tim January 12, 2011 at 7:12 pm

Thanks Jim for telling us what we already knew, namely that Cato “libertarians” are nothing but milquetoast neocons.

The_Orlonater January 12, 2011 at 7:18 pm

That’s hyperbolic. I don’t always agree with Cato, but they have published some good research that I have learned much from. Don’t just dismiss the entire institute and everything they’ve done(which is big and even has some self-described Austrians in it).

Jim January 12, 2011 at 8:40 pm

I wouldn’t call them fully fledged neocons. But they do compromise when they should stand firm, making them maybe tacit neocons. Cato is frustrating when they look the other way when prominent libertarian opinion is needed the most. I don’t mean to stick up for DOJ in any way. I meant that it’s impossible for employees at DOJ to do anything but run their machine, and the machine produces bads instead of goods.

And two words in favor of Cato: James Bovard.

The_Orlonater January 14, 2011 at 11:51 am

I find that Michael Cannon, Michael Tanner, Randal O’Toole, Daniel Griswold, Daniel Ikenson, and Mark Calabria are some great scholars on the areas they specialize in.

Ohhh Henry January 12, 2011 at 9:38 pm

The theory of the evil DoJ official says more about the theoretician than the DoJ. Experience in Washington has shown me that incompetence is almost always the better explanation than malice.

Anyone who understands human action knows that humans act in their own self-interest. If they have power over other people then they use that power for their own benefit and not for the benefit of the other people. They do so because they are ignorant of other people’s desires and they are not programmed by nature to care very much about other people’s welfare, especially when the other people are complete strangers.

But when humans have no power over other people then they can only act in their own self-interest either by leaving other people alone, or else by peacefully cooperating with other people who of course are acting in their own self-interest.

Malice, good will and the individual’s intelligence and morality have nothing to do with it. People who wield power will harm their subjects in proportion to the amount of power they wield, regardless of either their character or their level of competence.

It does not take a theoretician to understand this simple lesson, that power corrupts.

If the word “malice” means anything, it should be reserved for someone who wishes any human being to possess power over any other people.

Tharms January 13, 2011 at 3:11 am

Cato seems to be just hell bent on redefining itself as a neocon organization these days.

J. Murray January 13, 2011 at 6:56 am

The people I’m worried most about are the ones at the top of the DOJ making the decisions and giving the orders. Positions of authority can and do make people do things they otherwise wouldn’t.

HL January 13, 2011 at 12:57 pm

I have dealt directly with DOJ lifers. They are typical bureaucrats in every way. At the highest level you sometimes draw a guy with genuine ability and a touch of sincere concern for transcendent values (right or wrong), but don’t count on it. I’ll take a slick-haired PI attorney in gucci shoes over the Lands End suit wearing troll.

Enjoy Every Sandwich January 13, 2011 at 1:59 pm

It’s always amazing to me to hear someone defend a government official with the argument “not evil, just incompetent” and then see them lean back, smiling in triumph. Gee, I guess it’s okay to have them running my life, because they’re “only” idiots.

pussum207 January 14, 2011 at 2:03 pm

Excellent post Skip, as usual, and extremely well-written.

When can we expect a book?

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