Saturday, March 05, 2005

A Critique of Social Science

After a couple of abortive attempts at producing a tightly written essay explaining why I do not believe that the social sciences are sciences by any stretch of the imagination I have decided to put forth an informal compiling of reasons. This approach has the advantageous characteristic of ease of writing thus assuring that I will finish it. Perhaps critical review will help me to shape it better. I was simply unable to work out a satisfactory framework that would put my criticisms into a logical order.

I will begin with the obvious criticism to which all of my other criticisms may be linked. The events examined by social scientists are infinitely complex and thus are not subject to the methods of the physical sciences. That is, an essential characteristic of a properly conducted scientific experiment is that all significant variables are cataloged and controlled and this is not possible when the system includes a human being. This is obvious, though I will explain briefly so that no one may doubt the truth of it.

First I refer to physics, as it is the most fundamental of the physical sciences and its very simple systems yield best to the methods used in the physical sciences. In physics the events described are always very simple. They involve a handful of uniform particles or some like thing, but in order to describe these exceptionally simple systems physicists must utilize mathematical equations that are virtually unrivaled in complexity among any of the other physical sciences. The human brain is, in terms of complexity, to these simple systems as a supernova to a flickering candle. And the relationship between the difficulties involved in explaining a system and the number of relevant variables is not linear, it's exponential. Thus if we need a super computer to describe the almost unthinkably simple systems explained by physics we would need a quantum computer the size of a city block to describe the human brain. But this over simplifies the task at hand.

~> Read More!

In reality even a perfectly efficient computing machine the size of the entire universe could not predict the behavior of a single human brain. First, one could never produce the input data necessary to prime the system. This is because perfect knowledge of the initial state would be essential for making sound predictions, while Heisenberg's uncertainty principle assures us that we can never achieve perfect knowledge of the initial state. Furthermore, even if we were to magically obtain the necessary data, our computations would immediately begin to run contrary to the actual behavior of the system due to quantum level effects. That is, on the quantum level the universe is not mechanistic but probabilistic. Thus future states could only be determined to be more or less probable (a weak reward for having turned the entire universe into a brain simulator). I leave contemplating how much more complicated the combined interactions of the polities of the human race may be as an exercise for the reader.

At this point hopefully you are thinking, of course we cannot predict the outcome of an individual decision making process with absolute certainty. This is not necessary; all we need is a decent approximation, one that will yield better results than our current approximations. This would be sufficient reward to justify our efforts. Unfortunately this too is impossible. In order to demonstrate this we need only think about the nature of a chaotic system.

The American Heritage Dictionary provides the following as the mathematical definition of chaotic: A dynamical system that has a sensitive dependence on its initial conditions. That is to say, in a chaotic system, seemingly insignificant alterations in the initial conditions will lead to profoundly significant differences in later states. The brain is a chaotic system. In a chaotic system small approximations will lead to colossal failures of prediction.

In physics mathematical approximation is justified. To understand the behavior of a gas in a balloon it is useful to consider the average velocity and mass of the particles constituting it. To understand the behavior of a parliament it is not at all useful to consider these properties with regard to the members that constitute it. When considering the expansion of the balloon the exact disposition of each particle is of no consequence, indeed, if it was, the science of thermodynamics could not exist (for the movement of an individual particle in a gas is highly chaotic and would far surpass our powers of calculation). When considering an action of the parliament any minutest detail of the disposition of its members may be of great significance and thus a mathematical science of politics is misguided.

In a highly complicated system virtually all variables are interdependent and their importance with regard to the desired output are also highly variable. Thus what appears for a period of time to be the most significant variable may, at a seemingly random time become far less important while some obscure and unconsidered variable may move, for a period, into prominence. Indeed, it is certain that the majority of variables in such a system are connected to one another in exceedingly complicated ways such that the particular convolutions of the system must remain mysterious. Thus a ten variable or twenty variable or one-hundred variable model will inevitably fail to encompass variables which are of primary importance in determining the outcomes of the system. The physical sciences use controlled experiments because any significant variable that is unaccounted for will ruin the value of the data; in the social sciences the very idea of a controlled experiment is ludicrous. Richard Feynman, in a speech attempting to explain why the social sciences fail[1] explains that it is the scientist's duty, if he wishes to achieve meaningful results, to carefully document all of the reasons why his conclusion may be unjustified. This he rightly notes is not common practice among social scientists. This seems understandable, for a scientist might exhaust his entire career trying to exorcise all of the potential sources of error in any social science experiment. But this is, of course, the point. If social scientists had been scrupulously honest with themselves from the beginning they would never have gotten past the first experiment for they would still be accounting for uncontrolled variables.

Another problem can be seen when one looks at what happens to the data available when social scientists try to subdue it with mathematics. This is that the data gets selected. This is not necessarily a bad thing. It depends upon the criteria you are using to select. For instance, a good criterion would be relevance. But this is not the criterion that mathematical computation forces upon social scientists. No, that criterion is numerability. Those data that can easily be quantified become weighted as exclusively important and those that do not yield to numeration are categorically excluded. But in the subjects of social science there are many non-numerical inputs that are of critical importance. This is always true of an epistemology, it filters the input data accepting only those bits that are amenable to it's methods; to a man with a hammer everything looks like a nail. The obvious truth though is that there are many factors that are of critical importance in a social science that must be ignored if one wishes to make the field amenable to calculation. Here I am reminded of one of my earlier attempts to broach the subject of the failures of the social sciences:

An Essay Motivated by a Reading of Psychology and Economics by Matthew Rabin
Matthew Rabin’s criticisms of Standard Economics, though neither new nor innovative, are perfectly apt and well considered. The assumption that men rationally strive toward the maximum fulfillment of stable and well-defined preferences is indeed absurd. This is not therefore the basis of any sound systems of economic reasoning. Rabin’s suggestion that models based upon this postulate should be revised to accommodate the inconsistencies that he observes is noted and rejected upon the basis that even such a revised model would be so seriously flawed as to be useless. The error in Rabin’s reasoning resides in the presumption that an accurate and useful model of human economic behavior is attainable. All reasonable and useful economic theories, such as that of Ludwig von Mises are composed, explicitly, without the inclusion of this erroneous belief.

The presumption that man acts always to maximize his rational self-interest is undoubtedly the single most frequently and most easily criticized tenet of any economic theory. Man acting in this way has long been referred to as Homo Economicus and one can get the flavor of this long-standing debate by reading the astonishingly pertinent Wikipedia entry regarding that term (this being the first item on the list when one googles Homo Economicus). Of course, it is quite likely that Rabin was fully aware of the history of his paper’s topic and went ahead with publication because he believed that it made a useful contribution to the aforementioned debate.

For our purposes it will suffice to understand why someone made this assumption, so idiotic, so obviously contrary to truths observable both internally and externally by all human beings, in the first place. The answer is, of course, that it is a simplification, the bread and butter of the modeling so essential to the epistemology of mathematical induction. That is, without such an assumption, economic calculation would not have been possible. It is certainly a stupid assumption, given that it removes the very essence of the phenomenon being described. But it is a very useful assumption inasmuch as it enables economists to construct predictive models. Unfortunately those models describe only the imaginary Homo Economicus and not his more substantial cousin Homo Sapiens.

It was Rabin’s intent to use recent findings in the field of psychology to illuminate some of the improvable flaws in theories generated using this assumption. He thought that, so long as this idea could not be discarded without giving up on all attempts to model human economic behavior (to his thinking, clearly, the only way to advance our knowledge of the subject), the least we could do was add back in some of the significant terms that had been eliminated by the original simplification. Prior to the discoveries that he highlights in his paper this was not possible. The irrationalities, failures to act in a properly self-interested fashion, and fleeting or uncertain preferences that had been excised in order to create Homo Economicus had been removed for a reason. They were not subject to numeration. The innumerable is the kryptonite of the mathematical modeler. Rabin’s insight was to recognize that psychological researchers had begun to shed some mathematical light upon a handful of previously indescribable phenomena. He suggested that perhaps some enterprising economists might set about reattaching these bits to Homo Economicus.

These bits, which might be reincorporated into Homo Economicus, are those irrationalities that happen to be easily quantifiable. As such they are useful to modeling economists. Unfortunately the rubbish bin is still full of the difference between Homos Economicus and Sapiens. These are the differences that aren’t so easy to quantify. These differences are still more than sufficient to sink any theory based upon Homo Economicus 2.0. “Wait” Rabin might exclaim, “ I understand that this model is still incomplete, but economics requires models that are not so rich as to retard the process of drawing out their economic implications. For a discipline such as economics that places a high premium on the logic and precision of arguments and the qualification of evidence, incorporating all facets of human nature is neither attainable nor desirable.” But, what Rabin would be failing to comprehend is that precise logical argumentation is an epistemology that requires all relevant information to be considered. He would be hoping to create algorithms that will solve brainteasers without all of the necessary clues. I am put in mind of some amusing words of Charles Babbage, “On two occasions I have been asked [by members of Parliament], 'Pray, Mr. Babbage, if you put into the machine wrong figures, will the right answers come out?' I am not able rightly to apprehend the kind of confusion of ideas that could provoke such a question.” Rabin is attempting to employ a methodology that he does not understand. The characteristic that determines whether a given datum would be included in the model is not relevance; it is calculability. Thus, rather than allowing his data to select his epistemology he makes his epistemology select his data. In paying undue reverence to a methodology he sacrifices the end to the means.

Homo Economicus is not an approximation in any scientific sense; he is a fiction. An approximation simplifies (or makes possible) calculation at the expense of an increased margin of error. Using models created with Homo Economicus it is impossible to calculate a margin of error. Economic modelers throw out the baby with the bathwater and the proof is in the pudding. If you wish to know the future state of the economy you may as well consult an astrologer as a modeling economist. Rabin’s observations do not constitute the vanguard of a coming influx of successful quantification techniques but merely the continuation of a constant stream that has flowed since the dawn of inductive mathematical Economics, an ongoing process of adding refinement upon refinement in the hope that superior results will be achieved. Superior results were not achieved, have not been achieved, nor will they ever be achieved so long as Economists persist in the application of inductive mathematical methods. The formula that those economists are looking for is infinitely complex and chaotic and if they were ever able to discern it its implications would be incalculable. Seemingly insignificant variables would form endlessly diverse combinations to trigger extremely significant events. Physicists use mind bogglingly complex formulas to explain systems which are almost unimaginably simple and, given that each additional factor increases the difficulty geometrically, one can safely assume that, in terms of complexity, the most complicated system understood by physics is to the state of human economy on earth as the fart of a mouse is to the big bang.
This excerpt reiterates some of the points that I have already made above and provides a concrete example of inappropriate data selectivity. The problem is that the epistemology that the social scientists adopt forces them to eliminate critical data from the field of their consideration. It is undoubtedly true that paternal love, sexual love, hatred, pride, fear or any number of other factors could each, at times, be the single overriding factor in determining an individual's actual behavior. But it is equally true that any quantization of these factors must be arbitrarily and subjectively assigned and thus could not appropriately be utilized in mathematical models. Thus mathematical models, the cornerstones of the physical sciences, are not useful in the social sciences.

One might yet claim that, although there are many uncontrollable factors in any social scientific experiment we may yet, by averaging, reduce the net influence of the uncontrolled factors to a level of insignificance. This too is false. Many factors will indeed vary randomly among the test population and for these factors the preceding assumption is largely true. But for many other factors, those which change slowly or discontinuously, this will not be true. Many things will be nearly constant among the study populations (exemplas g. they have seen a Coca-Cola advert, they have watched television, they are familiar with objective patterns of though, they have never hunted their own food with weapons of their own making, they have not lived outside of a fiat currency system), the effects of these factors will not be averaged out, nor will the experimenter have any sense as to which of them are significant. This is to say; the events of the experiment are neither controlled, nor repeatable. From such an experiment one may draw no logically appropriate correlations. The results will not be universally applicable, and the boundaries of their applicability must remain wholly unknown.

The sum of these arguments is that inductive experimental claims about the subjects of the social sciences are not entitled to any greater validity than subjective statements based upon historical or personal experience. For the argument against the validity of such subjective statements is that they don't account for the uncertain vicissitudes of the phenomena from observations of which the conclusion was drawn, and the same criticism applies equally well to experimental social science.

I will devote the remainder of these pages to answering, as best I can the following questions.

Why, if the methods utilized by the social sciences are invalid, have so many people subscribed to them for so long?

If the methods currently utilized by social scientists are misguided is there any method of reasoning that can result, with regard to social organization, in assertions the validity of which are greater than mere subjective assertions?

The origin of the social sciences is clearly rooted in a false analogy; the objects of the analogy being simple and complex natural phenomena.

The justification of the validity of the physical sciences was functionality. Prior to the rise of the modern scientific method many competing epistemologies strove to explain the cause of events in the material world. Some of these epistemologies justified more than one explanation, some countless explanations. The arrival of the objective inductive scientific method changed things. It changed things because it worked. It made predictions, and those predictions were verified by observation. Thus, in accord with the long-standing trend of cultural admission for notions that allowed individuals to successfully adapt their behavior to physical reality, the notion was admitted. The arrival of this epistemology radically transformed man's interactions with his environment. It allowed technological innovations, which previously had been enabled only by infrequent acts of subjective intuition and random chance, to be developed selectively and at will. Such a powerfully transformative notion necessarily rose to unrivaled transcendence. It is undoubtedly the core of our modern civilization.

The victory of objective inductive science also had negative consequences. It produced a willful blindness. Other epistemologies, useful within their own sphere, were cast into the dustbin, their failures exposed by the light of the new favorite. But the failures of these epistemologies were due, not to their inherent disutility but rather to their misapplication. This subtlety was lost upon the new science's enthusiasts. The new epistemology, rightly beloved by all right minded intellectuals, was unthinkingly raised to a dogmatic and unjustified supremacy. The same love-blinded enthusiasm that had induced the early philosophers to attempt to deduce the nature of the stars and of life itself led the epigones of the natural philosophers to attempt to induce the nature of man and of correct action. Thus the same sickness that befell the deductive reasoners, that of presuming the existence of a universally valid epistemology, befell their inductively reasoning descendants.

The thinkers of the nineteenth century wrongfully concluded that the epistemology that so successfully explained the simple natural phenomena so critical to proper development of useful technologies must prove equally apt when one sought to explain the more complicated phenomena that govern how and why technologies are used. After all, the two categories of phenomena differed only in scale and complexity. It seemed only natural that, just as objective science had moved from explaining very simple phenomena to progressively more involved systems, so it might proceed on through the most complex occurrences observable. Their intuition was wrong. They failed to grasp the full measure of those more complicated systems. As the complexity of systems increase the possibility of objective validation of hypotheses rapidly moves from being possible for man to being possible only for a hypothetical perfect intelligence. But the question remains: why, more than a century hence, do individuals persist in believing what is surely false?

Intellectual success led to a growing complacence; an eagerness to proceed as rapidly as possible toward more perfect understanding brought about a willingness to bypass the roots of knowledge. As the branches of knowledge grew more diverse and numerous it became generally accepted that it was sufficient for each researcher to be familiar with the growth of his own branch. But this required an implicit faith in the support and integrity of the confluent super branches, the trunk, and the roots. By the time the social sciences were conceived this tendency was in full bloom and the fathers of the new field began to work as if they were merely sprouting a new branch from the old trunk. What they failed to realize was that the newly grafted branch was an entirely different species. It derived no nourishment from the trunk and thus had no connection to roots. But they lived, and we still live, in an age in which it was (and is) almost unthinkable that one might question the epistemology of empirical science. It is the modern religion. Thus, one reason that the fallacious social sciences persist is that it is no longer routine to argue from the roots of knowledge, as was quite fashionable in the age of deductive reasoning. But once again a question arises: if the methods of the social sciences are bunk and they yield no real results why have people not forsaken them?

It is obvious that men are inclined to proceed unquestioningly in acquiescence to popularly established modes of thought. It is also clear from an examination of nineteenth century discourse that the concept of social science rapidly rose to widespread popularity. Thus one reason that the false science was propagated might have been the assumption among those rankled by uncertainty that, ranked among the countless multitudes of believers must be many individuals wiser than themselves who had seen to the roots of the matter and were certain of the validity of the social sciences. This avenue is all the more plausible when one pauses to examine modern academia where implicit faith in the validity of methods and results abounds. This may be linked to the common belief that the division and expansion of knowledge have made pursuit of the roots of ideas impractical but this is merely a lazy fallacy. Although a great tree may possess a massively intricate and diverse tangle of branches, and their combined length may encompass miles, the distance from the tip of the tallest branch to the roots is never very far. Yet again this explanation is incomplete, ideas rise to and fall from popularity with regularity, one may yet ask what has provided the social sciences with such longevity?

One source of longevity for the erroneous principles of social science is random positive reinforcement, such as gives rise to superstitions. During the twentieth century technological innovations brought about dramatic improvements in productivity and the standard of living of the average American improved. Just as B.F. Skinner was able to demonstrate superstition in pigeons by rewarding them at random (they associated whatever behavior they had been engaging in prior to the reward as bearing a causal relationship to it and repeated that behavior) rising prosperity provided a reward to social scientists that they were inclined to attribute to their work though there may in fact have been no correlation between the events.

A second source of longevity may have been the appearance of progress. From the earliest works relating to the modern social sciences there is an air of progressive excitement. It is always perceived that we are on the cusp of great discovery, that a revolution is at hand. The ultimate reward for the hard work of the social scientists is perpetually just over the horizon. The fallacy here is that because we have demonstrated flaws in the previous theory its replacement must be significantly closer to the truth. Although the new theory may be closer to the truth, if the truth is infinitely distant it is not significantly so. If the social scientists were not blinded by optimism and ignorance it would have seemed quite odd that while in every physical science fundamental principles abide, the fundamental principles of the social sciences are in perpetual revolution. While true sciences are additive these false sciences are only negative. The reason is obvious. As was previously demonstrated, no social scientific experiment can be properly controlled, thus no principle based upon such experiments may be considered fundamental. No progress is made as new flaws are necessarily substituted for old. It is only willful ignorance of the new flaws that perpetuates the illusion of progress.

There is one final source that I can see for the continuation in the application of the social scientific philosophy. This is its persuasive utility. So long as man has been able to record his ideas it is clear he has been eager to convince his fellow men that they should organize their lives in accordance with his propositions. Every epistemology known to man has been utilized in the advancement of such arguments and the epistemology of inductive science is no different. Indeed few modern social engineers attempt to pass off their speculations without a healthy dose of social scientific evidence. Thus one might suspect that these individuals who have flourished at all times in human history have largely taken up residence in social science departments around the world. Indeed the social sciences are an ideal tool for such thinkers, as the experiments of the social sciences prove nothing conclusively they may be endlessly manipulated and contrived to support virtually any hypothesis. Indeed, my partial explorations of social scientific work have yet to uncover a non-obvious social scientific principle that has garnered accord throughout any social science discipline. Yet this is not an unreasonable thing to ask. In the physical sciences nothing is considered to be a scientific fact unless it is indisputably verified, everything else is explicitly maintained as speculative hypotheses. In this sense the social sciences contain no scientific facts and are thus not sciences.

I now turn to the question of a possible replacement for the modern social sciences. We know that we may respond to the phenomena of our experience based upon the insights afforded by subjective judgment for this is the general mode of human understanding. Our ancestors bested the vicissitudes of their environment via the application of this method yet we are justified in longing for more. Subjective judgments are necessarily uncertain; they cannot yield scientific facts. Subjective judgments clearly led to a wide array of non-useful conclusions among our primitive ancestors. Thus the question is: if the methods of inductive objective science do not apply to complex phenomena then is it possible to arrive at verifiable conclusions with regard to such phenomena? The corresponding answer is: yes. We may use the epistemology of deduction.
To this point I have engaged in a mild subterfuge. In truth there is only one epistemology capable of generating verifiable conclusions and that is reason. I have divided this category by the use of induction or deductions and by the use of objective and subjective premises. This division was justified and was useful in the earlier stages of the discussion but here an understanding of the unity of these epistemological subcategories is of great utility.

It is common, nowadays, to think of only objective premises as being valid. This belief may only be held if one neglects the roots of knowledge. In truth all knowledge is founded upon subjective principles. The validity of the logical structure of the human mind must be considered a subjective fact. We are incapable of proving or disproving its validity, as we would be required to use the logical system in question in the act of proof. All truth statements depend upon this assumption. Further all objective premises are merely inputs into this subjective system. We use our powers of observation to generate subjective analogs to the objects of our observations. It is these subjective logical artifacts that we submit to our processes of reasoning. In the physical sciences this is less obvious but these sciences are inextricably integrated with mathematics and with regard to mathematics this is plain to see. Lines and circles do not exist in the world; they are merely objects useful to cognitions. Yet it is clear that the Pythagorean theorem, a scientific fact based upon deductive reasoning applied to subjective facts, is of objective utility. Indeed, all of mathematics consists entirely of deductions from subjective premises. I challenge the reader to discover a matrix in the world at large. Physical science itself is merely a series of deductions based upon subjective premises induced through objective observation. Thus, even within the physical sciences experimental methodology is merely a facet of the overall process, it merely justifies postulates; if Euclid had stopped at the postulation of lines and circles his geometry would be pitiful indeed.

Physical science then is only a subcategory of scientific knowledge but it has been blindly glorified to the exclusion of all other sources of knowledge. It is a premise generator. Its goal is to arrive at premises which no reasonable person can deny. But so is the human mind. That is, we are capable of asserting truths and those truths are sometimes indisputable. Any such truth is a fitting subject for the operation of logical processes. If I use correct logical operations and indisputable premises then any conclusion that I reach must be a scientific fact. You may dispute my premises, you may correct my logic but short of these you must accept the validity of my conclusions. It is certainly true that philosophers have used these methods to reach a wide variety of spurious conclusions but the method was not responsible. These philosophers, without fail, either admitted questionable premises or violated fundamental logical principles.

The procedure of the physical sciences is fundamentally identical to this process. The procedure of the social sciences, though superficially similar to that of the physical sciences, is fundamentally at variance with this procedure, as they do not establish indisputable premises. Indeed, I would qualify the error in modern thinking that has lead to the discarding of old deductive truths and the acceptance of new inductive falsehoods as a form of superficiality. We have romanticized the forms related to experimental investigation and demonized those associated with old-fashioned deduction. Although I outline above the technical errors in the thinking of the social scientists I think that for many of them their error is not technical. They do not have faith in objective induction, if that was truly their epistemology they would long ago have recognized their error, I think their epistemology is that truth proceeds from lab coated equation wielders. That is they don't even have a philosophical justification for their epistemology they merely have a justification based upon subjective judgment, to quote Richard Feynman:

"I think the educational and psychological studies I mentioned are examples of what I would like to call cargo cult science. In the South Seas there is a cargo cult of people. During the war they saw airplanes with lots of good materials, and they want the same thing to happen now. So they've arranged to make things like runways, to put fires along the sides of the runways, to make a wooden hut for a man to sit in, with two wooden pieces on his head for headphones and bars of bamboo sticking out like antennas--he's the controller--and they wait for the airplanes to land. They're doing everything right. The form is perfect. It looks exactly the way it looked before. But it doesn't work. No airplanes land. So I call these things cargo cult science, because they follow all the apparent precepts and forms of scientific investigation, but they're missing something essential, because the planes don't land."

So again, the short answer to my second question is: yes. I understand that my abstracted explanation of the possibility of arriving at objective truth through deductive subjective methods may yet seem a bit hazy but this is unavoidable. Such arguments are very involved and I could not easily include a convincing example within the confines of this paper. Although I hope that this paper itself is such an example (I would also recommend the Federalist Papers, and Human Action by Ludwig von Mises), as I have not used induction in my arguments and yet I seek to demonstrate a verifiable truth. Indeed, the explosion of the social sciences could not legitimately be accomplished through inductive objective methods for the very reasons that I have stated above (hence my deliberate avoidance of the obvious argument that the social sciences don't get results). This may provide another argument as to why the social sciences have persisted for so long: their failure results from actively rejecting the methods of reasoning by which alone they might recognize the cause of their failure.

Post-Script

It is undoubtedly true that many social scientific experiments imply interesting relationships. It is also very likely that many of the correlations they suggest bear significant relations to truth, but these relations have only subjective weight, they do not bear the force of logical certainty. Thus, they belong in the category of historical evidence. It was the great coup of the physical sciences that they were able to arrive at data that had greater than mere historical weight. The occurrence of the attack on the world trade center in 2001 is an historical fact. It undoubtedly happened, but its placement in the chain of universal causality is reserved to that assigned by subjective understanding. We cannot truthfully say that it was 69.9% responsible for G.W. Bushes re-election for instance. All historians may agree that it was a significant factor but they are not in a position to say with certainty whether or not it was the greatest factor, much less what its exact causal relationship to the subsequent event was. This is also the type of data that the social sciences generate. It is contrary to the reality of their studies for social scientists to spurn non-numerical evidence or theories based upon such evidence, for the numerical character of their evidence does not lend it any greater credibility. Yet this is precisely what they do. They feel that they may justly ignore theories that were formulated before it was considered necessary to include statistical evidence. They use a new statistic to claim that all theories formulated before the discovery of this new statistic cannot be valid. This is nonsense. One might remove all quantization from all social science experiments and the logical weight of their arguments would not change. Indeed, it is much more useful to carefully phrase conclusions with regard to social phenomena in Standard English, this makes the arguments much more amenable to careful logical analysis. The reason that mathematical equations are useful in physics is that they allow calculation. The phrase "objects in the universe are attracted to one another with a force that diminishes as they recede from one another in precisely the same way that the intensity of a light source diminishes as you move away from it, with the mass of the object being equivalent to the brightness of the light" contains all of the information contained in the equation Fg = k(M1*M2)/r^2 and is heuristically and logically far more informative, especially to those not fluent in mathematical language. Yet physicists use the equation, but this is not to exclude the common reader, it is to include the possibility of calculation. If I wish to know precisely what force a one million kilogram object will exert on a one kilogram object that is one meter distant from it the equation is more directly useful than the plain English statement. But in the social sciences such precision is impossible and thus equations in these fields do not add to understanding. They merely encrypt and obscure the observations of researchers. This is disingenuous and it has done great harm to our understanding of these fields of knowledge. The compilation of a bunch of somewhat useful observations into one mathematical model does nothing but annihilate the value of the original observations. Charles Munger, Warren Buffett's business partner, relates such an event, "Once Warren and I bought a company and the seller had a big study done by an investment banker, it was about this thick. We just turned it over as if it were a diseased carcass. He said, “We paid $2 million for that.” I said, “We don’t use them. Never look at them.”[2] How can Buffett and Munger afford to ignore the kind of detailed synthesizing predictive studies that are the bread and butter of the big investment banks and Wall Street firms? By recognizing that they can't afford to heed them. They outperform every single one of these firms virtually every year because they understand that the only useful tools for understanding business and economics are subjective understanding and subjective deduction. A single well considered observation can be assigned a subjective relevance and mentally cataloged. To accept the results of a grand synthesizing study would require a faith in the subjective judgments of every individual that contributed to it, and further, an absurd faith in the objective nature of its conclusions. Buffet and Munger are too smart to risk the wealth of their shareholder on such baseless speculation, while the leaders of the majority of U.S. corporations are not.


[1] http://www.physics.brocku.ca/etc/cargo_cult_science.html
[2] http://www.tilsonfunds.com/MungerUCSBspeech.pdf

Thursday, March 03, 2005

MGM v. Grokster

Slashdot has a discussion based on a number of amici for MGM v. Grokster. Having just done some writing on the topic, I think the case should focus on two issues.

That Grokster has substantial noninfringing uses (as per Sony, 464 U.S. 417 (1984)) will probably come into controversy, but I think should definitely be accepted. It should also be accepted that Grokster has no ability to regulate infringement on their system (they could close their doors and shut down every computer and it would have no effect). They cannot ban users or cancel downloads. These are the two tests Sony set up to qualify for protection from contributory infringement, and Grokster should pass them both.

So what comes into play is the 7th Circuit's Aimster, 334 F.3d 643 (7th Cir. 2003) holding that Aimster had willfully blinded itself to infringement and therefore it didn't matter that they were unable to regulate it. The 9th Circuit gave no real consideration to this issue in Grokster, 380 F.3d 1154 (9th Cir. 2004). I think Posner's willful blindness approach makes a lot of sense and is a necessary addition to/interpretation of Sony. Without it, Sony is easily gamed, and stands a strong possibility of being overturned. So the question here would be whether or not Grokster has valid reasons to be designed in the manner it is (as compared to Napster, which could exert control over individual users and transactions to regulate infringement), or if it's simply an effort to bypass Napster and get under Sony.

The other issue is whether Napster, 239 F.3d 1004, 1021 (9th Cir. 2001) (and to an extent Aimster as well), knowing what we know now, was wrongly decided. One of the arguments advanced by the CS professors in the amici mentioned on /. is that copyright screening is very difficult in these sorts of systems and is effectively crippling to them. Sony dictates that shutting down the service/manufacturer altogether is not an acceptable remedy if the service/item has substantial noninfringing uses. Thus the assumption that Napster could control infringement simply because they do have the ability to ban individual users may be mistaken. If it is only an illusion of control, then Napster should have been protected under Sony, and so should Aimster and Grokster and all the rest of them.

If the Court does take up the willful blindness test they'll probably have to remand, because as far as I can tell (I only had access to the 9th Circuit's decision, not the district court or any of the briefs), the issue of Grokster's design never came up in any meaningful way and will need to be argued. I think their chances on that issue are fair. There are benefits to be gained from the supernode structure: lower administrative costs (no need for massive servers and bandwidth), no single point of failure for the network, possible performance benefits. I don't know how strong these benefits really are nor where the bar is set to impute intent on willful blindness.

The technical argument is interesting. I think there can be no argument but that it's very difficult to screen for copyrighted material on a p2p system. But whether it is cost-prohibitive to the point of being impossible, I really can't say. It might be a function of how much money you have to throw at it, which only raises more complications. Would p2p be liable for contributory infringement if it's run by a commercial entity, but not if it's run on a non-profit basis? I'm not sure the Court will want to open this can of worms.

That, of course, gets to another point I think is very interesting in this case. To an extent it doesn't really matter that much. There are a fair number of open source p2p projects. Even if Grokster and every other commercially based p2p system gets creamed by contributory liability, it will probably not even put a dent in p2p usage. p2p is relatively easy to do. An individual programmer can slap a fairly sophisticated p2p system together (as Shawn Fanning and Bram Cohen can attest). And once they're up and running, they're very difficult to take down. As is mentioned in Grokster, there is nothing Grokster the company can do to shut down Grokster the p2p system at this point. It's beyond their control. Although both sides will make grand claims to contrary, ultimately, I don't think this case means much to p2p. Its relevance will be purely in terms of how Sony is interpreted from here on out.

Wednesday, March 02, 2005

Greenspan Barks at the Moon

Alan Greenspan appeared before the House Budget Committee today and declared that the current budget management was fiscally destabilizing, warning of economic stagnation and urging tax increases and spending cuts. Yeah right, Mr. Chairman. Dick Cheney says deficits don't matter. Who the hell do you think you are?

Tuesday, March 01, 2005

Consumers, Citizens, and Wal-Mart

Robert Reich has a good NYT op-ed on the anti-Wal-Mart movement examining the interplay our often self-conflicting interests and the role of government in sorting them out.

Thursday, February 24, 2005

The Ever-Diminishing Dollar

Sparked by the decision of South Korea's central bank to diversify its currency funds away from the dollar, the New York Times has both an editorial and an op-ed by Thomas Friedman worrying about the ultimate fate of the dollar. Nothing we haven't discussed here before, just another update in this continuing saga.

It Just Doesn't Stop With These Guys

The Bush administration has made a number of epic blunders in personnel selection, but their latest tops all others. Salon is reporting today that D. Reed Freeman, former "chief privacy officer" for the notorious malware company Gator has been appointed to Data Privacy and Integrity Advisory Committee of the Department of Homeland Security. Gator (aka GAIN) has truly been a trailblazer in the fields of ad-ware and spy-ware. Their exploits have been well documented and reported. They are just the sort of sleazy fucking scumbags I want watching over our nation's data privacy. The slashdrones are up in arms. If this goes through there will be riots of bespectacled, propeller-beanied geeks, flipping over cars and setting things on fire. It's almost worth it.

Wednesday, February 23, 2005

Look At the Numbers

Robert Samuelson has an excellent piece in the Washington Post analyzing both numbers and the press coverage of the Bush social security plan. He finds them both lacking, and draws parallels to coverage of the medicare drug plan and the subsequent shock at its high costs.

Tuesday, February 22, 2005

The FCC Can't Rule the World (or Take Your Broadcast Flag and Shove It)

As D-day for the odious broadcast flag approaches, the D.C. Circuit took oral arguments today in a challenge to the compatibility requirements by the EFF and other consumer groups. Although they expressed doubts about the challengers' standing, the judges left little doubt how they felt about the broadcast flag requirement. Said Judge Edwards: "Ancillary does not mean you get to rule the world. ... You've gone too far. ... Are washing machines next?" Added Judge Sentelle: "You can't regulate washing machines. You can't rule the world." Thank goodness for this bulwark of justice, the D.C. Circuit, bravely protecting our washing machines. Because we all know that regulating the washing machines is the first step to world domination. Anyway, so far so good. We'll have to see what happens with the standing issue though...

Friday, February 18, 2005

Realpolitik Hypocrisy?

In a Washington Post column, neocon Bob Kagan attacks liberals for hypocritically casting doubt on the newly elected Iraqi government. How, he asks, can liberals hold that the U.S. wrongly coddled politically convenient dictators during the Cold War, yet be critical of the democratically elected government that has replaced Saddam Hussein? Are liberals prejudiced against Shiites?

The response, I think, needs to address a number of points. First, is that criticism of the realpolitik approach that led the U.S. to overthrow democracies and train death squads comes with limits. Critics, as far as I know, never advocated that the U.S. should invade any country that doesn't meet Western democratic standards. The criticism was, and remains, that we should not allow short-term political convenience to overshadow our commitment to freedom and democracy. This is generally not a belligerent, hawkish group of people. They have advocated working within the international diplomatic and economic framework to advance our ideals and values.

The Bush administration stands as guilty as any Cold War administration in this regard. We invaded Afghanistan, not to promote democracy, but to take out Al Qaeda, and Iraq to secure Saddam's weapons of mass destruction. Meanwhile the U.S. has deepened its ties with numerous anti-democratic human rights violators all across the Middle East and Central, South, and South-East Asia. Bush's inaugural address notwithstanding, there has been no great commitment to democratic ideals by this administration.

Kagan's apparent response is that even if liberals would not have advocated invasion, shouldn't they celebrate the advances of democracy there? But, while the liberals we're talking about are critics of realpolitik, I think they are not critics of political realism. They don't advocate abandoning empirical analysis, but rather a shift in priorities and methods in pursuing American foreign policy objectives. As such they are rightly worried about the course of events in Iraq.

It requires no prejudice to be concerned about what will happen when the Shiite controlled government takes power. From my perspective, it is not any peculiar qualities of Shiites that worries me, but rather that they suffer from all of the usual weaknesses and frailties common to mankind. The Baathist purges of Shiites aside, the Sunni militants have consistently targeted Shiites in violent attacks since the occupation started (here are . a couple just from the past week). They have declined to retaliate largely due to the calls for restraint from the Ayatollah al Sistani, the same man who has driven the timetables both for the hand-over of sovereignty and the recent elections. Are we to think they harbor no animosity towards Sunnis, no desire for vengeance? Are these angels in the form of men? Or have they been playing hard-ball, waiting (and pushing the process foward) for their demographic advantage to inevitably deliver the power of government to them. What happens when they gain control of the machinery of state? How will a Shiite-controlled military respond to Sunni attacks against Shiite targets? Will the response be measured, moderate, and proportional? And when the Shiite-controlled military crosses the line, how will the Sunni population in the country respond? The threat of all-out civil war is very real and frightening. What then for democracy in the Middle East?

Neither does one have to view the Shiites as Iranian stooges to be concerned about Iraq's relationship with Iran, now more so than ever. While I don't share the loathing of Iran held by many in this country, the newly announced alliance between Iran and Syria, following shortly after the election of a pro-Iran government in Iraq could drastically change the balance of power in the Middle East. If the new Iraqi government throws in their lot with Iran and Syria, Iran will have taken a major step up as a regional power and the U.S. will be left scrambling to try and pick up the pieces. Again, rejecting realpolitik does not mean rejecting political reality. And the political reality here is that the occupation of Iraq seems to be producing many undesirable results. There is little cause for rejoicing here, for liberals or anyone else.

Rumsfeld update: Yep, He's Still An Asshole

This Post story on Rumsfeld's appearance before the House Armed Services Committee (full transcript) is one of the funnier things I've read lately. It's entertaining when the Bush administration sends Rumsfeld over to the hill to remind the congresspeople exactly where they stand. Aside from Rumsfeld's stubborn refusals and amusing one-liners, I found this question interesting in light of our recent discussions:

REYES: Thank you, Mr. Chairman.

And, Mr. Secretary and General, thank you for being here with us this morning.

I have a question for each one of you, but the first one, Mr. Secretary, deals with what I think fits under the category of where the system does not work. And it concerns the U.S. pilots that filed a lawsuit -- as this was reported in the L.A. Times on the 15th of this month, where they filed a lawsuit against Iraq for compensation.

REYES: They won their case, were awarded and now the administration is taking a position that this should be dismissed.

The irony -- there are a couple of ironies. One of them is that some of these pilots were tortured in the same Abu Ghraib prison where prisoners were abused by our troops.

And the article quotes that, Mr. Secretary, you're in favor of awarding compensation to Iraqi prisoners who were abused by U.S. military at this prison and at the same time our own pilots that have won a court case are now being denied the same kind of compensation.

I was wondering, do you have any comment on that?

RUMSFELD: Congressman, I don't. It's a matter that the Department of Justice handles for the United States government, not something the Department of Defense does.

Wednesday, February 16, 2005

Doesn't Anyone in the Pentagon Watch Movies?

The NYT has this article describing the U.S. Military's plan to convert its armed forces to robots, imposing an additional 20 percent on the military budget, excluding war. Some snipits:

Military planners say robot soldiers will think, see and react increasingly like humans. In the beginning, they will be remote-controlled, looking and acting like lethal toy trucks. As the technology develops, they may take many shapes. And as their intelligence grows, so will their autonomy.

Despite the obstacles, Congress ordered in 2000 that a third of the ground vehicles and a third of deep-strike aircraft in the military must become robotic within a decade. If that mandate is to be met, the United States will spend many billions of dollars on military robots by 2010.

"The lawyers tell me there are no prohibitions against robots making life-or-death decisions," said Mr. Johnson, who leads robotics efforts at the Joint Forces Command research center in Suffolk, Va. "I have been asked what happens if the robot destroys a school bus rather than a tank parked nearby. We will not entrust a robot with that decision until we are confident they can make it."

"As machines become more intelligent, people will let machines make more of their decisions for them," Mr. Joy wrote recently in Wired magazine. "Eventually a stage may be reached at which the decisions necessary to keep the system running will be so complex that human beings will be incapable of making them intelligently. At that stage, the machines will be in effective control."

Seriously, what could go wrong?

Wednesday, February 09, 2005

Stranger Than Fiction

All hell is breaking loose on liberal blogs today as details are being unearthed on a supposed reporter named Jeff Gannon. There are a gazillion threads and comments, and it's hard to piece it all together, but I gather that:

a) Gannon (likely an alias for Jim Guckert) has been acting as a reporter in the Washington press corp for the past 6 months or so, and as far as I can tell nobody had ever heard of him before that,
b) Gannon was a reporter in the employ of Talon News, a right-wing activist quasi-news organization and is essentially a political operative,
c) Gannon is well connected to the administration and gets preferential treatment at White House press conferences, which he uses to serve up cheesy softball questions (such as the 'how will you work with people who are divorced from reality' question at Bush's recent press conference),
d) Gannon was subpoenaed in connection with the Valerie Plame case, and the Kossacks believe that he was used by the White House as part of their misdirection damage control operations after Novak's famous column,
e) Gannon is somehow connected with a number of gay military escort sites (because this story just needed more absurdity).
f) as of today, Jeff Gannon has quit his job and will "return to the private life".

That's some wierd shit...

Torture Just Ain't What It Used To Be

Slate has this article entitled, "The Plain Meaning of Torture? Literary deconstruction and the Bush administration's legal reasoning." I recommend it (although I have to admit I have never heard the phrase, "PMR" before).

Partisanship at its Worst

The two hot topics these days, Social Security and the budget proposal, serve to illustrate the crippling partisanship gripping the federal government. There are real problems to be addressed, but both the Bush administration proposals and the Democratic responses are geared almost entirely towards partisan posturing with no apparent concern about results.

Social Security is not in a good state. There really should not be a great dispute about this. It is not an urgent crisis, but neither is everything fine and dandy. The real onset of problems is still years away, but this would be a great time where we could make relatively painless adjustments to get things back on a sound footing before things get too far out of whack. Unfortunately the Bush proposal for private accounts, while interesting, does not really appear to address the real problems. The issue of whether this system should be a pay as you go social welfare program or a government-supported private investment program is a good philosophical question. But for now the immediate problem is that future outlays exceed income. The basic issue is whether we will reduce benefits or increase revenues or some combination of the two. Meanwhile, Democrats, who until recently were willing to discuss and consider this issue, are now locked into deep denial that there is a problem at all. This is a silly tactic when there is, and for some time has been, a powerful public perception that there is a real Social Security problem. At this stage in the game, denial comes off as disingenuous and out of touch. And while both sides are brawling over this on the public stage, nobody is talking about the much larger problem that looms in Medicare.

Then comes the budget proposal which takes the shocking step of reducing 1% of a third of federal spending. We're running record deficits here, such a minor reduction in spending should not be a big deal. Unfortunately these cuts have been precision targeted to produce peak outrage among Democrats. I read somewhere that last year's budget proposed cutting 65 programs, only 5 which actually ended up being cut. Both sides understand how this game is played. The administration wants to come out and say they tried to cut spending, but were obstructed by congress. Congress wants to say that Bush tried to kill all their state's pet programs, but they valiantly save them from the axe.

The disheartening thing is that our long-term budget outlook (including the Social Security and Medicare impacts on the same) is a critical problem, one that I think should be the top priority for the federal government. It's sad to see so much effort spent by politicians, the press, and the public fighting over these issues when it all amounts to sound and fury, accomplishing nothing. And when everyone is exhausted from the fight, these issues will be returned, unresolved, to the back burner to simmer away until they explode into an all-out crisis that will threaten to crash the dollar and destroy the U.S. economy.

The Rummy Returns

Oh, silly Rumsfeld. This is straight from the DOD's official transcript:

Journalist
: The budget suggests that -- the budget shows that Army spending is going down by $300 million in fiscal --
Rumsfeld: Which, as you know, is not the case.
Journalist: Well, that's what I see.
Rumsfeld: Yeah, I should have mentioned that.... The only way you can look at this budget is to look at the supplementals with it, and it would be a misunderstanding of the situation to come to the conclusion that you pretended you had come to. But of course you did not, being as knowledgeable as you are.
Journalist: Well, are you hiding -- are you -- are they, in fact, hiding noncombat costs in the supplemental --
Rumsfeld: No, of course not.
Journalist: -- by accelerating here?
Rumsfeld: No, that would be wrong -- (laughter) -- and we wouldn't do that.

Monday, February 07, 2005

David Kay: Here We Go Again

In the Washington Post, former top weapons inspector in Iraq David Kay writes that the current posture towards Iran looks strikingly similar to the path we travelled to Iraq. Kay urges that we apply the lessons learned in Iraq, and gives a good accounting of a number of those lessons. Acknowledging mistakes and attempting to learn from them seems to be a rare and noteworthy act in the modern political environment...

Looking At the Long-Term

Fresh off his trip to Africa, Russ Feingold wrote a column for CS Monitor on America's failure to engage Muslim nations. He notes that many Muslim nations face a youth bulge in their demographics that presents both an opportunity and a threat. If we fail to engage them, our opponents will be all too happy to fill the void. Also on CS Monitor today is a column on the painfully slow, but still noteworthy progress of the African Union. The challenges face by the AU are many, and any progress is good news. The Western reaction to Darfur has certainly highlighted for Africans exactly how much they can depend on the West for help.

Wednesday, February 02, 2005

Re: What Next for Guantanamo

The Washington Post has an editorial that is a reasonable synthesis of Dahlia Lithwick's analysis from yesterday, and my remarks of Jan 21 on Judge Bork's WaPo column. The courts are not the best place to be figuring these things out, but as long as the administration fails to engage Congress on them, there's not much alternative.

Blogs and Journalism

There's an interesting case afoot that will bring to the fore the ongoing debate about the journalistic value of blogging. Apple has filed suit against a Mac fan blog for divulging trade secrets. The proprietor, Nick dePlume (likely an alias), is likely to claim First Amendment protections as a journalist. Some discussion on slashdot here and here, and a CS Monitor story here. It's an interesting question, and I would tend to think that the term "blog" ought not to have anything to do with the result. The variation in scope, purpose, audience, and impact among blogs is so great as to defy any sensible unified treatment. It's hard to argue that the top tier of bloggers (Powerline, Talking Points, etc) don't serve functions that would typically be equated with journalism. Bloggers who use their blog as a personal diary would likely not qualify for the same treatment.

Tuesday, February 01, 2005

What Next for Guantanamo?

Dahlia Lithwick on Slate contrasts yesterday's ruling with another district court ruling by Judge Richard Leon whose ruling ran almost completely contrary with Judge Green's In re Guantanamo Detainee Cases decision. What fun for the appellate courts...

Monday, January 31, 2005

For All You Pirates Out There -- Argh, Matey!

A post on Slashdot yesterday took notice of this well written article in Sunday's NYT about the growing number of television programs available for download, thanks in large part to technologies like BitTorrent. The story quotes several media execs who are aware of this trend and are trying to avoid, as the story puts it, "the disruptive fury that sideswiped the music industry."

I am happy to learn the television industry is taking this threat seriously and considering proposals that would make television-viewing more flexible:
Mr. Poltrack of CBS said that according to his network's research, a large number of viewers would welcome the chance to pay $1 to watch each television show, if they could do it on their own schedule and with the ability to skip commercials. With commercials, they'd be willing to pay 50 cents. And because the average viewer sees only half of a show's episodes, he said, this on-demand viewing won't hurt the regular showing.
In my view, the faster the media companies bring ideas like this to the market, the better. They could even take advantage of BitTorrent's filesharing principles and reduce the cost for providing online content. I hope they avoid the pitfalls that snagged the music industry, like placing too many restrictions on use and attempting subscriber fees.

Back to the Drawing Board

There's Big News in the courts today as district court judge Joyce Hens Green ruled that the special military trials being given to the Guantanamo prisoners are not good enough. Decision here. Washington Post coverage here. Probability of appeal: 1.

Feingold For President

Salvation for Democrats? Or just another opportunity for the Man to crush my hopes and dreams under his steel-toed boot? Russ Feingold is officially considering a run for the White House in 2008. I'm sure he'd be a long-shot, but he would be The Best President Ever.

We Are teh Bomb Yo!

A couple more site updates. We now have an RSS feed. You can get the link for it here or at the top of the page. Additionally I've added the capability to post summaries with a "read more" link (I made an example of one of the Iraq torture posts below). It's sort of a pain to use (you have to paste CSS code into your post), but I thought it might useful when one of us gets in the mood to write a long diatribe (I've been forewarned we may be getting a manifesto from Henry in the near future). If you want to know how to use it, you can check out the example or shoot me a message.

Update: another new feature: if you view the blog while logged in to blogger there should be a little pencil icon after the by-line of your posts which will allow you to instant edit it. All these cool things you find when poking around the blogger site..

Arab Press Growing Teeth

CS Monitor has a fine story about Al Jazeera and other Arab media outlets successfully shaming Arab governments into contributing aid to tsunami victims. I think it's a key point to note, particularly in light of analysis such as the Deptartment of Defense's Defense Science Board's report on Strategic Communication that I reported on in November. Credibility is currency in the cultural battle for hearts and minds, and stories like this demonstrate that the new independent Arab press has it in spades. The West needs to engage, rather than ridicule, organizations like Al Jazeera. They have what we need. Their opinions and positions ought to be taken seriously.

Saturday, January 29, 2005

Important Research

What do monkeys do with monkey currency? They buy monkey porn. Nice. (Credit to slashdot)

Site Update

Just wanted to note a few changes here. The site now allows comments from anyone, and the main page show how many comments there are for each post. Additionally there is now a hit counter so we can see if there's anyone actually reading this other than us (I sort of doubt it). You can see the statistics by clicking on that little square image in the bottom left part of the page.

Thursday, January 27, 2005

Close Encounters With the Bush Administration

Last night Ron Suskind (who is a UVA grad) came to Charlottesville and spoke at the Miller Center. There is a Real video of it on the Miller Center web site. It was a packed house (there are a couple of other rooms beside what you see on the film where we were watching on a closed circuit TV). Suskind put on a brilliant performance and detailed his whole experience with the administration, from the time he got an office in the White House for his Karen Hughes story, to his story on John DiIulio (the Mayberry Machiavellis story), to, of course, the book with Paul O'Neill. He is quite an orator and I highly recommend the video, and if you get a chance to see him, I'd highly encourage you to do so.

Wednesday, January 26, 2005

Liberals for Scalia?

Slate is running an interesting and fairly sensible column suggesting that Scalia replacing Rehnquist as chief justicemight not be a bad thing for liberals.

Tuesday, January 25, 2005

Re: When the US Government Backs Iraqi Torturers of American POW's

I've got another thought on this. :) Aside from all of the legal arguments raised by the extant cases, I think a normative case can be made on the separation of powers issue that these cases ought to be valid not withstanding whatever impacts they have on foreign relations. In the context of foreign relations these cases represent an effort to internalize costs that were previously externalized. It is unfair to force individuals to suffer grievous harm for the benefit of the nation at large. If the United States places a great value on fostering friendly relations with the nation in question which would be harmed by such judgments, the U.S. can pick up the tab and pay the damages. These costs should be viewed as an investment by government which will yield valuable foreign relations dividends. In doing so they will redistribute the harms from having an intense impact on an unfortunate few to a very small impact on all U.S. citizens. There is a problem with this argument in that, if I recall correctly, the enforcement measure passed by Congress gives teeth to collection on punitive damages, but not to compensatory damages, whereas were my argument valid it should be the other way around. Nonetheless, I like this argument on a generalized basis :).

Monday, January 24, 2005

Re: When the US Government Backs Iraqi Torturers of American POW's

I've got a couple of responses. I apologize for the Congressional record thing. I'm doing my research for this during study breaks (which is a sad comment in itself), and the discontinuity leaves me a bit confused at times as to what I'm actually looking at.

On the issue of official capacity: I had read that as plain English, not realizing it was a term of art. Having read up on the jargon, it still seems difficult to defend. I can't see how these 42 U.S.C. § 1983 distinctions could be sensibly applied to this situation. Are we now charging foreign officials for being unfaithful the U.S. Constitution? Surely the court does not literally intend to enforce § 1983 against foreign officials, but rather to apply the general distinction of official/personal capacity. The cases referenced in Ky v. Graham to illustrate the meaning of official capacity as opposed to personal capacity discuss the distinction in terms of abuse of official powers. The intention is to prevent immunity from applying when an official does not apply the powers of his office in good faith. The point of the Flatow Amendment is to create liability against agents of states whose official policy is terrorism. An official who promotes terrorism within the scope of his office in a state whose policy is the promotion of terrorism is not necessarily (or likely) abusing his office; it is the office itself which is abusive. To limit liability under such a statute to agents who were carrying out terrorist acts in a manner that abused their office would be, sorry to use this word, incoherent. It's a Catch 22. Either the state does not support terrorism, or the official is not abusing his powers, either way you're screwed.

And really there's no reason to read the statute this way. Rather than deciding first that Flatow does not offer a cause of action against foreign states, then reasoning backwards from there to reinterpret Flatow in a way that would neuter it almost entirely, why not read it in a plain-meaning fashion, and infer whether or not a cause of action is offered against foreign states? It seems necessary for Flatow to serve any purpose that it create a valid cause of action against a foreign officer who, acting in good faith with respect to his office, took some action to promote terrorism against American citizens. If this is true, then based on reasoning offered by the United States and accepted by the court in Cicipio that an action against an official acting in their official capacity is equivalent to an action against the entity, we can infer that there is a valid cause of action against a foreign state.

Additionally, I am not ready to dismiss the intent of Congress so quickly either. The issue is not that these cases occurred and Congress stood by and did nothing. Theses cases occurred, and Congress, recognizing that barriers still prevented the plaintiffs in them from recovering damages against the foreign state defendants, passed new legislation to facilitate that recovery. Get a look at this congressional research report detailing Congress' efforts through the Victims of Trafficking and Violence Protection Act of 2000 to force the United States to pay up on a number of cases against foreign governments (including Cicipio!) out of funds that the U.S. had frozen from those countries. Flatow provided the cause of action for all these cases (in fact, the document remarks of Flatow: "Later in 1996 Congress enacted a counterpart statute giving injured parties or their legal representatives a cause of action for suits against terrorist states"). In the face of this legislation, I don't see how you could possibly argue that Congress did not intend Flatow to provide a cause of action against state sponsors of terrorism.

So anyway, I am still rather of the opinion that Cicipio (and thereby Acree) was botched.

Re: When the US Government Backs Iraqi Torturers of American POWs

Here are some additional comments in response to your recent post. I will save for a later post an elaboration on the issue of whether state law claims could serve as the basis for liability.

The D.C. Circuit has already considered, in Acree, the Government's argument that the Emergency Wartime Supplemental Appropriations Act removes Iraq from the reach of FSIA's terrorism exception, and it concluded, "While it is a close question, we agree with appellees that 28 U.S.C. § 1605(a)(7) is not a provision of law that falls within the scope of" that Act. 370 F.3d at 48. I'm sure that will not be the last we hear of that argument, but at least it's resolved in the D.C. Circuit. As Professor Moore observes in his petition for certiorari (available on Westlaw), it is unlikely there will be much action on these issues in other circuits because the venue provision of the FSIA favors the District of Columbia. See 28 U.S.C. § 1391(f).

I agree there are parts of Cicippio with strained reasoning (and I submit the same goes for Acree), though I disagree the opinion is "incoherent." That is a pejorative I prefer to save for the most appalling opinions (like the remedial majority's Booker opinion). And although the text of 28 U.S.C. § 1606 resolves the matter for me, it is certainly not conclusive on the issue of congressional intent. For instance, one could make a strong argument that the familiar doctrine of expressio unius est exclusio alterius (the expression of one thing implies the exclusion of another) applies--it seems at least plausible from the fact that the Flatow Amendment made officials, employees, and agents of foreign states liable that the Congress purposefully omitted a foreign state from the list.

As for your resort to legislative history, I note that beside its inherently dubious value, the portion you quote suggests to me not that the Congress intended to create a cause of action against a foreign state, as you suggest, but that it wanted to be sure someone with a viable claim against a foreign state could bring that claim in federal court, notwithstanding foreign sovereign immunity. Now, I humbly admit my skills of research into legislative history are not well-honed, and please correct me if I am wrong, but it appears you are citing a report that has nothing to do with the Flatow Amendment. Rather, you cite a portion of a House Conference report addressing the Antiterrorism and Effective Death Penalty Act (AEDPA), Pub. L. 104-132 (1996). The section from which you quote, section 221, is entitled "jurisdiction for lawsuits against foreign states"; in that section the Congress added the exception to immunity now found at 28 U.S.C. § 1605(a)(7). See H.R. Conf. Rep. 104-518 (Apr. 15, 1996).

~> Read More!
The Congress enacted the Flatow Amendment in title V, section 589, as part of the omnibus appropriations bill for fiscal year 1997, Pub. L. 104-208 (1996). For what little it's worth, the Committee report to that bill may be found at H.R. Conf. Rep. 104-863 (Sept. 28, 1996). The only portion I found addressing the liability provision states as follows:
The conference agreement inserts language expanding the scope of monetary damage awards available to American victims of international terrorism. The conferees intend that this section shall apply to cases pending upon enactment of this Act.
Not very helpful, in my opinion.

You suggest that something can be gleaned from the fact that the Congress has failed to act despite that numerous cases have been successfully brought against foreign state defendants. I disagree. I hesitate to point out the obvious--the Congress fails to act more often than it actually does something, and in any event acquiescence of a later Congress is not a reliable indicator of the intent of an earlier one. Further, neither the D.C. Circuit nor any other circuit to my knowledge has affirmed an order holding a foreign state liable under the Flatow Amendment. And, contrary to popular opinion, district courts do not create precedent.

Finally, it is perfectly logical that the Congress intended to impose personal liability on an official, employee, or agent acting in his official capacity, for that is the same scheme the Congress established under 42 U.S.C. § 1983. That section makes an individual liable in his individual capacity for damages resulting from an action he takes under color of state law that deprives a citizen of a constitutional right. See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). Section 1983 suits for damages may be brought directly against a municipality, but not against a State unless it has waived its sovereign immunity. To be sure, bringing § 1983 into the picture actually supports the ultimate conclusion that the Flatow Amendment creates liability of foreign states, because the exceptions to the FSIA remove the barrier of sovereign immunity. I cite that statute, however, to illustrate that it is not unprecedented to hold an individual personally liable for an official act.

Saving the Party from Howard Dean

There's an entertaining article by Howard Fineman in Newsweek about the desperate, and so far unsuccessful, efforts of Democratic insiders to prevent Howard Dean from becoming the party chairman. I particularly like the part where they were worried that Dean would "ruin the Democratic brand in Red States." Heaven forbid that, you guys have been doing such a bang-up job there. Bill Clinton went so far as to try and reenlist Terry McAuliffe, a move which, I fear, has forever ruined Clinton's credibility as far as I'm concerned.

Re: When the US Government Backs Iraqi Torturers of American POWs

I am convinced by your arguments on the state/federal cause of action issue. There is a nice law review note that summarizes developments in FSIA terrorist claims through the last decade, and including Acree and Cicipio: Jeewon Kim, Making State Sponsors of Terrorism Pay: A Separation of Powers Discourse Under the Foreign Sovereign Immunities Act, 22 Berkeley J. Int'l L. 513 (2004). As noted there, more than 20 judgments have been handed down against state defendants since 1996, although few plaintiffs have been able to recover any of the damages awarded them. In 2000, Congress passed the Victims of Trafficking and Violence Protection Act, which was to allow some of these plaintiffs to be paid from frozen assets held by the United States. Congress also apparently passed legislation to allow plaintiffs in these cases to be able to attach the property of foreign states, but Clinton vetoed it. There is also some discussion of the additional complications that would arise in the suit should it be remanded with a go ahead for intervention by the Feds. They plan to argue that the Emergency Wartime Supplemental Appropriations Act officially removes Iraq from all the terrorist state sponsors lists and makes it no longer a valid target of an FSIA claim.

In any case, the Cicipio ruling seems fairly incoherent. The section you quote ("the foreign state shall be liable in the same manner and to the same extent...") provides ample opportunity for a textualist interpretation of the statute to allow for an action against a state. Moreover, the intent of Congress does not seem terribly difficult to ascertain. The Flatow Amendment was titled the Civil Liabilities for Acts of State Sponsored Terrorism Act, and the relevant Congressional committee report reads:

"This subtitle provides that nations designated as state sponsors of terrorism under section 6(j) of the Export Administration Act of 1979 will be amenable to suit in U.S. courts for terrorist acts. It permits U.S. federal courts to hear claims seeking money damages for personal injury or death against such nations".

104 H. Rpt. 518

Additionally, numerous cases have already occurred where foreign states have been sued under the act, and not only has Congress not acted to stop this from occurring, they have endeavored through legislation to help the plaintiffs recover from the foreign state defendants.

Finally, the court's interpretation that "the cause of action is limited to claims against those officials in their individual, as opposed to their official, capacities" is awfully difficult to reconcile with the language of the statute which states that an "official ... of a foreign state ... while acting within the scope of his or her office ... shall be liable".

I think it's interesting that they could make a separation of power issue out of this, but don't. Moreover, if they had just made the ruling to allow the Feds to intervene and remanded it, it probably would have become a separation of powers issue. It just seems odd that they fixated on this issue, which doesn't appear to have a lot of support.

I wonder if Dave has something to say on all this...?

Not a Prelude?

I had to laugh at the title of this CS Monitor column: Bush speech not a 'prelude to bellicose foreign policy', subtitled Bush Sr., others, say inaugural speech not start of 'new militarism'. Well, obviously it's not a prelude, we're already four years into the bellicose foreign policy. As an unnamed White House official states in the article "it's not a discontinuity ... but an acceleration."

Sunday, January 23, 2005

Re: When the US Government Backs Iraqi Torturers of American POWs

The causes of action you list are state law claims. That is, the source of law is the power of the State. A State may regulate an individual's conduct occurring within its boundaries, and to some extent it may regulate conduct occuring outside its boundaries so long as it can demonstrate the conduct directly affects its citizens. A State may not, however, regulate the conduct of foreign states because "power over external affairs is not shared by the States; it is vested in the national government exclusively." United States v. Pink, 315 U.S. 203, 233 (1942); see also U.S. Const. art. I, § 8, cl. 10 ("The Congress shall have Power ... To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations"); Zschernig v. Miller, 389 U.S. 429, 441 (1968) (discussing what has been dubbed the doctrine of "dormant foreign affairs preeemption.")

In Acree v. Republic of Iraq, 370 F.3d 41 (D.C. Cir. 2004), American plaintiffs brought an action against a foreign state, one of its agencies, and a foreign official in his official (rather than personal) capacity. The D.C. Circuit agreed with the district court that it had jurisdiction over the case, id. at 58, but disagreed that the plaintiffs stated a cause of action for which relief could be granted. The court ruled that the plaintiffs failed to identify a federal law the defendants allegedly broke. Id. at 59-60. Contrary to your suggestion, Joe, the source of law could not have been state common law because, as discussed above, the State does not have authority to regulate the conduct of foreign states. And "generic common law cannot be the source of a federal cause of action. ... Rather, as in any case, a plaintiff proceeding under the [Foreign Sovereign Immunities Act] must identify a particular cause of action arising out of a specific source of law." Id. at 59.

The district court ruled that the Flatow Amendment provided the cause of action. Codified as a note to 28 U.S.C. § 1605, the Flatow Amendment provides in relevant part:
An official, employee, or agent of a foreign state designated as a state sponsor of terrorism ... while acting within the scope of his or her office, employment, or agency shall be liable to a United States national ... for personal injury or death caused by acts of that official, employee, or agent.
In Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024, 1033 (2004), the D.C. Circuit ruled that "the Flatow Amendment only provides a private right of action against officials, employees, and agents of a foreign state, not against the state itself." Further, an action under the Flatow Amendment must be against an official, employee, or agent in his individual (or personal) capacity, because official-capacity suits are, in substance, "a claim against the government itself." Id. at 1034.

If there is a flaw in reasoning anywhere, it must be in the Cicippio-Puleo decision. It is entirely reasonable to believe the Congress intended to hold foreign states liable for acts of torture. Consider the following portion of 28 U.S.C. § 1606, a provision of the FSIA the court neglects to mention in Cicippio-Puleo:
As to any claim for relief with respect to which a foreign state is not entitled to immunity unde section 1605 or 1607 of this chapter, the foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances.
The other appellate courts and the Supreme Court may disagree with the D.C. Circuit's conclusion that the Flatow Amendment does not provide a cause of action against foreign states, but until that happens there appears to be no other basis under which a citizen plaintiff may sue a foreign state for acts of torture.

In sum, a plaintiff suing a foreign state must allege a federal claim because the authority of the State does not reach that far into foreign affairs. One might suggest that is a subject matter limitation, though I believe it would be more accurate to characterize the limitation as one of federalism. There is no "generic federal common law" as such, so a plaintiff must identify some particular act of Congress or a provision of the Constitution that prohibits the alleged conduct and that provides the plaintiff the right to recover in federal court. After Cicippio-Puleo, it seems unlikely that a plaintiff can use the Flatow Amendment as the basis for liability against a foreign state.

Hope that clarifies things. I look forward to reading your response.

Saturday, January 22, 2005

China News

Former Communist Party chief Zhao Ziyang passed away.

Re: When the US Government Backs Iraqi Torturers of American POW's

Well, the cause of action seems obvious enough; these people were heinously tortured and have claims for personal injury, battery, intentional infliction of emotional harm, etc. The question more seems to be against whom the claim is valid and whether sovereign immunity applies. The decision makes some reference to not having Federal Claims, which I don't really understand, but seems to imply that there must be a statutory claim. Is this a subject matter limitation? In the context of claim between a U.S. citizen and a foreign nation, the federal court should have jurisdiction regardless of the nature of the claim, I think. The statutes referenced in the case waive sovereign immunity for these sorts of claims against nations on some government list of terrorist sponsors, which I imagine Iraq was on. It's not clear to me, nor was it, I think, clear to Prof. Moore, what exactly the court's objection is. Moreover, Moore was rather incensed that the court killed his case on an issue, which not only didn't make a lot of sense, but had been not raised by any party in either the original trial or the appeal, and based on a ruling they had made in a case that occurred after his original trial and as such was never disputed in that trial. The court suggests that he should have noted this decision prior to appearing for oral arguments and been better prepared to rebut it, and perhaps he made a mistake there. However, I still can't see a whole lot of sense in their ruling. Maybe you can add some clarification?

re: METAL!!!!

Yeah, I saw the Jenna pic posted on a forum with the subtitle: "Hail Satan... er, I mean Dad!!"

Re: When the US Government Backs Iraqi Torturers of American POW's

I do not mean to suggest I agree or disagree with the decision to which Joe alludes (here is a link to the PDF), but I do take issue with Joe's characterization of the reason for the D.C. Circuit's dismissal as a technicality. The troops failed to identify a cause of action -- that is, they failed to explain what law Iraq allegedly broke and what law entitled the troops to recover. Regardless whether that decision was a correct evaluation of law, dismissal for failure to state a claim is not a technicality but goes the very heart of the case.

Re: METAL!!!!

Apparently it runs in the family.

A Small Step In the Right Direction

Iraqi Defense Minister Hazem Sha'alan announced on Al-Jazeera that Ahmed Chalabi will be arrested tomorrow and turned over to Jordan where he was convicted in absentia of bank fraud in 1992.

Friday, January 21, 2005

METAL!!!!

When the US Government Backs Iraqi Torturers of American POW's

I don't recall if I mentioned this previously, but I went to a lunch last fall with a UVA professor, John Moore, who is involved in a case to try and recover damages from Iraq for the torture of American POW's during the first Gulf War. The case was going along swimmingly until after Abu Ghraib, when the DoJ decided to try and torpedo the case. The district court had ruled in favor of the POW's, but the Justice Department appealed the decision to the D.C. Court of Appeals, where the case was dismissed on a technicality. The POW's are appealing this decision in turn, meanwhile Moore argues his case in a Slate column.

Leadership By Default

I was rather struck by this Washington Post column by Robert Bork and David Rivkin arguing that the court should stop managing the War on Terror. On the one hand, their arguments are entirely plausible. The Hamdi case serves as a perfect example. The court knew that something needed to be done, but they could hardly create a detailed policy directive as to how to treat enemy combatants. So they issued some vague requirements and left the government to figure out what the court was after through trial and error. It is hardly an ideal solution.

On the other hand, for the court to take a hands-off approach as Bork and Rivkin suggest would be even more absurd. The problem here is that Congress apparently doesn't give a crap about the War on Terror, and if the executive has an actual plan, they refuse to say a word as to what they are doing or why. The courts shouldn't be in a leadership position on this, but they have no choice. Nobody else will do it.

If the Administration would explain what exactly it is they're doing, their rationale, what sort of limits they place on themselves, and how they're enforcing those limits, then the courts would have a sound basis to grant them broad discretion. However, we have none of that, and instead have Abu Ghraib, a proposal for a jurisdiction-free-zone in Cuba, documents suggesting that the Geneva Conventions are quaint and torture is ok. How could the courts not intervene?

Bork and Rivkin attempt to write off these various indiscretions as abuses that "inevitably occur in war". I don't buy it. This morning I attended a presentation by reporter Donovan Webster, who recently wrote an article for Vanity Fair called "The Man In the Hood" (the article is not online, but there's a brief summary here, and an Aljazeera article about it here). Webster visited Iraq twice last fall and conducted 60 hours of interviews with former Iraqi detainees, visited detention sites, and spoke with the military personnel there. Webster contends (fairly convincingly) that the abuses famously exposed at Abu Ghraib were widespread, and continue to this day, and that no serious changes resulted from the initial round of publicity. This is an administration in desperate need of adult supervision, and it would be a horrific abdication for the courts to back down.

Re: Something to Blog

1. The liver.

2. It would be difficult to say how many times a person might be awoken (less than five events per hour is normal), but there are reported instances where a person suffered hundreds of sleep apnea events in one night. It seems the duration of the apnea is equally or more threatening than the frequency.

Thursday, January 20, 2005

The Boys Weekend Journal

1. What is the heaviest internal organ in the human body?

2. How many times a night might a person suffering from sleep apnea be forced awake to resume breathing?

Just feel like blogging something.

Wednesday, January 19, 2005

Monday, January 17, 2005

DOD Gets Defensive

Read this press statement put out by Pentagon spokesperson Larry DiRita. Seems like Hersh hit a sore spot.

Expanded Role of Military in Covert Operations, On To Iran

Seymour Hersh of the New Yorker has this story on Secretary Rumsfeld's effort to locate all covert operational authority within the DOD. It seems Secretary Rumsfeld has been lobbying for such a structural change for over two years, and it looks like the "accountability moment" (WP) of the 2004 presidential election will be used to further advance neocon policy. According to Hersh, Stephen Cambone and William G. Boykin, both prominent neocons within the administration, will be part of the chain of command for the new commando operations. Hersh reports that the administration has been conducting secret reconnaissance missions inside Iran since last summer, and the Pentagon is updating its military war plan against Iran, now that a full-scale invasion force could enter through Iraq. Hersh claims a former high-level intelligence official told him, "It’s not if we’re going to do anything against Iran. They’re doing it.” Apparently covert operations have also been authorized in Algeria, Sudan, Yemen, Syria, Malaysia, and Tunisia.

Of the New Yorker article written by the same journalist who broke the Abu Graib story, White House Communications Director Dan Bartlett said, "I think it's riddled with inaccuracies, and I don't believe that some of the conclusions he's drawing are based on fact."

Sunday, January 16, 2005

Reelection equals full approval on Iraq?

Around the same time that President Bush conceded poor judgment on some of his first term statements (see previous post), he has made a curiously liberal interpretation of his reelection. Below is part of an interview with the Washington Post:

The Post: In Iraq, there's been a steady stream of surprises. We weren't welcomed as liberators, as Vice President Cheney had talked about. We haven't found the weapons of mass destruction as predicted. The postwar process hasn't gone as well as some had hoped. Why hasn't anyone been held accountable, either through firings or demotions, for what some people see as mistakes or misjudgments?

THE PRESIDENT: Well, we had an accountability moment, and that's called the 2004 election. And the American people listened to different assessments made about what was taking place in Iraq, and they looked at the two candidates, and chose me, for which I'm grateful.

Somehow, Bush equates his reelection with a full approval of his Iraq policy and implies that no other accountability measures should be taken. Yet, in the most recent poll regarding his Iraq policy that I could find, the majority of Americans stated that the conflict was not worth fighting given its cost. This, and other findings from the poll, hardly give one the impression that Americans completely approve of the Iraq policy. I guess the President's concessions to reality only go so far...

Friday, January 14, 2005

Bush: 'Bring It On' Not the Best Idea

A year and a half later, after challenging Iraqi resistance fighters to "bring it on", George Bush has admitted that he didn't really think that one through. I have to wonder whether this admission was at all impacted by this recently released English-language propaganda video, at the end of which the narrator taunts, "You have asked us to ‘Bring it on’, and so have we. Like never expected. Have you another challenge?” The video (transcript here) is really an impressive bit of work, both technically and in message. The music is a bit overblown, and the footage is at times quite distracting from the narration, but the footage itself is impressive and it's edited together well. The script, clearly tailored to a Western audience, paints the resistance as secular, confident, magnanimous, and multilateral. The source and authenticity of the video are unknown, but it has been widely circulated and reported.

Tuesday, January 11, 2005

Bring On the Death Squads

Because nothing says Freedom's on the March like roving bands of pro-US assassins. These guys were really thinking ahead when they put John Negroponte in Iraq...

Thursday, January 06, 2005

Fare Thee Well, Crossfire

Well, howdy-do, turns out that new CNN President Jonathan Klein agrees with Jon Stewart and has decided to scrap Crossfire, saying "I think he made a good point about the noise level of these types of shows, which does nothing to illuminate the issues of the day". I wonder if we'll hear anything about this on the Daily Show... :)

Sunday, January 02, 2005

Delaying the Elections

Former President of the Iraqi Governing Council, Adnan Pachachi has a column in the Washington Post urging that the Iraqi elections be delayed. Pachachi acknowledges that such a delay would be a victory for the insurgents, but feels that it is better for the nation's long term stability to let the insurgents win round one than to put in power a government who most Iraqis will consider illegitimate. I agree with his reasoning on this point, but underlying the decision to delay is an assumption that if the election is held later on security (and thereby voter turnout) will be better. I see nothing to justify that assumption, and, in fact, the insurgents may be emboldened by their success at having forced a delay in the first case.