The reflexive call for fewer liberties

[Guest guest]

http://www.salon.com/news/opinion/glenn_greenwald/2011/01/12/galston/index.html

Wednesday, Jan 12, 2011 16:13 ET

The reflexive call for fewer liberties

(updated below)

Galston -- former Clinton adviser and current

Brookings Institution Senior Fellow -- has a column in The New Republic about the

le Giffords shooting that illustrates the mentality

endlessly eroding basic American liberty: namely, the belief

that every tragedy must lead to new government powers and new

restrictions on core liberties. The lesson of the Arizona

tragedy, he argues, is that it's too difficult to force

citizens into mental institutions against their will. This,

he says, is the fault of "civil libertarians," who began

working in the 1970s on legal reforms to require a higher

burden of proof for involuntary commitment (generally: it must

be proven that the person is a danger to himself or to

others). As a result, Galston wants strict new laws imposing

a litany of legal obligations on the mentally ill, their

friends and family, and even acquaintances, as well as

dramatically expanded powers to lock away those with mental

illness (with broader definitions of what that means).

Continue reading

Listen to what he proposes: "first, those who acquire

credible evidence of an individual’s mental disturbance should

be required to report it to both law enforcement

authorities and the courts, and the legal jeopardy

for failing to do so should be tough enough to ensure

compliance"; those reporting obligations should apply not only

to family and friends, but extend to "school authorities and

other involved parties." And "second, the law should no

longer require, as a condition of involuntary incarceration,

that seriously disturbed individuals constitute a danger to

themselves or others"; instead, involuntary commitment should

be imposed whenever there is "delusional loss of

contact with reality." He concludes on this

melodramatic note: 'How many more mass murders and

assassinations do we need before we understand that the

rights-based hyper-individualism of our laws governing mental

illness is endangering the security of our community and the

functioning of our democracy?"

There's so much warped reasoning embedded in this argument

that it's hard to know where to begin. Galston seems to be

unaware of this, but what motivated the reforms in this area

were the decades of severe, horrifying abuses which those with

mental illnesses -- and even those who had none -- suffered as

a result of permissive involuntary commitment standards and

prolonged forced incarceration. Those who suffered mental

illnesses were locked away for years and sometimes decades

despite having done nothing wrong and despite not being a

threat to anyone, while countless people who simply exhibited

strange or out-of-the-ordinary behavior were deemed mentally

ill and similarly consigned. The psychitaric social worker Curtis

provided just one example: "There is also a large

history of the forced treatment of homosexuality as mental

'illness'." Indeed, involuntarily committing people in mental

hospitals is a time-honored way for stifling any individuality

and dissent; see this 2010 New York Times article

on how China uses that repressive tactic.

Then there are the factually incoherent claims Galston

makes. He harkens back to some sort of Golden Age of the

1960s when thousands of people were incarcerated against their

will who did nothing wrong -- as though that era were

relatively free of political assassinations because all the

"crazies" were where locked up where they belonged. Of

course, the opposite is true: there were far more violent

attacks on political figures back then (MLK, JFK, RFK,

Wallace, Malcolm X, etc.) than there have been during the

relatively peaceful time beginning in the 1980s when

involuntary commitment became much more difficult.

Worse, Galston assumes, without offering any evidence, that

there is a significant correlation between mental illness and

violence, but the reality is the opposite: the vast, vast

majority of people with mental illnesses never hurt anyone.

Writing two days ago in Slate, Vaughn

Bell decried "the fact that mental illness is so often used to

explain violent acts despite the evidence to the

contrary," and documented:

Of course, like the rest of the population, some people

with mental illness do become violent, and some may be

riskier when they're experiencing delusions and

hallucinations. But these infrequent cases do not make

"schizophrenia" or "bipolar" a helpful general-purpose

explanation for criminal behavior. . . . your chance of

being murdered by a stranger with schizophrenia is so

vanishingly small that a recent study of four Western

countries put the figure at one in 14.3 million. To

put it in perspective, statistics show you are about three

times more likely to be killed by a lightning strike.

Yet Galston, pointing to Arizona, wants to lock all of them

away. The harm that would come from forcibly consigning

thousands and thousands of people have done nothing wrong is

so much greater than the harm from the once-every-20-years

attack on a political official that the excessiveness of his

solution is self-evident.

But that's the key point. What Galston is doing here is what

the American political class reflexively does in the wake of

every tragedy: it immediately seeks to exploit the resulting

trauma and emotion to justify all-new restrictions on basic

liberties (such as the right not to be locked away against

one's will in the absence of a crime or a serious threat to

others) and all-new government powers. Every traumatic event

-- in the immediate, emotionally consuming aftermath -- leads

to these sorts of knee-jerk responses. The 9/11 attack

immediately gave rise to the Patriot Act, warrantless

eavesdropping, a torture regime, due-process-free

imprisonment, and ultimately an attack on Iraq. High-profile,

brutal criminal acts have led to repressive measures such as

three-strikes-and-out laws and minimum sentencing guidelines,

causing the U.S. to maintain the largest Prison State in the

world.

And when the so-called Underwear Bomber unsuccessfully

attempted to detonate a bomb in an airplane over Detroit at

the end of 2009, there were immediate calls -- including from

the DOJ -- for loosening Miranda requirements and

the right to be brought before a judge, and even a bipartisan bill to deny legal rights

even to U.S. citizens arrested on U.S. soil and accused of

Terrorism: all because of that one episode. In response to

that reaction, I wrote:

"Even now, every new attempted attack causes the Government

to devise a new proposal for increasing its own powers still

further and reducing rights even more, while the media cheer

it on. It never goes in the other direction. . . . every

new incident becomes a pretext for a fresh wave of

fear-mongering and still new ways to erode core

Constitutional protections even further. . . . We

never reach the point where we decide that we have already

retracted enough rights." It's Naomi Klein's Shock

Doctrine applied to non-economic matters.

What lies at the core of this mindset is desperate pursuit of

a total illusion: Absolute Safety. People like

Galston believe that every time there is a violent or tragic

act, it means that the Government should have done something

-- or should have had more powers -- in order to stop it. But

that is the reasoning process of a child. Even if we were to

create an absolute Police State -- the most extreme Police

State we could conjure -- acts like the Arizona shooting would

still happen. There are more than 300 million people in

the U.S. and, inevitably, some of them are going to do very

bad and very violent things. Thus has it always been and

always will be. The mere existence of bad events is not

evidence that the Government needs to be more empowered and

liberties further restricted. Just as there are serious costs

to things like the Arizona shootings, there are serious costs

to enacting the kinds of repressive systems Galston envisions,

yet people like him never weigh those costs.

Having people do bad things is the price we pay for freedom.

There is a cost to all liberty. Having to hear upsetting or

toxic views is the price we pay for free speech; having

propaganada spewed by large media outlets is the price we pay

for a free press; and having some horrible, dangerous

criminals go free is the price we pay for banning the Police

from searching our homes without a warrant (the

Fourth Amendment) and mandating due process before people can

be imprisoned (the Fifth Amendment). The whole American

political system is predicated on the idea that we are

unwilling to accept large-scale abridgments of freedom in the

name of safety, and that Absolute Safety is a dangerous

illusion. There is a new report today that a police officer

in Tuscon stopped Loughner's car for speeding shortly

before his rampage, but was unable to search his car because

he lacked probable cause to do so. Obviously, that's

regrettable -- if you're a family member of one of his

victims, it's horrifying -- but the alternative (allowing

Police the power to search whomever they want without cause)

is worse: that's the judgment we made in the Bill of Rights.

It may very well be that it's too difficult in some states to

have a person involuntarily committed even when they're a

threat to themselves or others. That's a fair debate to

have. But that's not the case Galston is making. Instead,

he's just drowning in his own TV-generated emotions -- or

trying to exploit those who are -- to usher in an amazingly

oppressive scheme whereby citizens are required to inform on

one another if they suspect someone is a bit mentally off, and

the Government is empowered to put them away for a long time

even in the absence of any threat they pose. That's neither

rational nor sober; it's hysterical fear-mongering of the kind

we see after every incident like this. It's why American

liberties have inexorably eroded. At the very least, there

ought to be a voluntary moratorium on calling for new

government powers in the wake of tragedies like this until the

emotional intensity dies down and rational discourse can

prevail.

UPDATE: Several people made the

point in comments that even had the police been able to search

Loughner's car, that would likely not have changed anything,

since the firearm he was carrying was legal.

[Guest guest]

http://www.salon.com/news/opinion/glenn_greenwald/2011/01/12/galston/index.html

Wednesday, Jan 12, 2011 16:13 ET

The reflexive call for fewer liberties

(updated below)

Galston -- former Clinton adviser and current

Brookings Institution Senior Fellow -- has a column in The New Republic about the

le Giffords shooting that illustrates the mentality

endlessly eroding basic American liberty: namely, the belief

that every tragedy must lead to new government powers and new

restrictions on core liberties. The lesson of the Arizona

tragedy, he argues, is that it's too difficult to force

citizens into mental institutions against their will. This,

he says, is the fault of "civil libertarians," who began

working in the 1970s on legal reforms to require a higher

burden of proof for involuntary commitment (generally: it must

be proven that the person is a danger to himself or to

others). As a result, Galston wants strict new laws imposing

a litany of legal obligations on the mentally ill, their

friends and family, and even acquaintances, as well as

dramatically expanded powers to lock away those with mental

illness (with broader definitions of what that means).

Continue reading

Listen to what he proposes: "first, those who acquire

credible evidence of an individual’s mental disturbance should

be required to report it to both law enforcement

authorities and the courts, and the legal jeopardy

for failing to do so should be tough enough to ensure

compliance"; those reporting obligations should apply not only

to family and friends, but extend to "school authorities and

other involved parties." And "second, the law should no

longer require, as a condition of involuntary incarceration,

that seriously disturbed individuals constitute a danger to

themselves or others"; instead, involuntary commitment should

be imposed whenever there is "delusional loss of

contact with reality." He concludes on this

melodramatic note: 'How many more mass murders and

assassinations do we need before we understand that the

rights-based hyper-individualism of our laws governing mental

illness is endangering the security of our community and the

functioning of our democracy?"

There's so much warped reasoning embedded in this argument

that it's hard to know where to begin. Galston seems to be

unaware of this, but what motivated the reforms in this area

were the decades of severe, horrifying abuses which those with

mental illnesses -- and even those who had none -- suffered as

a result of permissive involuntary commitment standards and

prolonged forced incarceration. Those who suffered mental

illnesses were locked away for years and sometimes decades

despite having done nothing wrong and despite not being a

threat to anyone, while countless people who simply exhibited

strange or out-of-the-ordinary behavior were deemed mentally

ill and similarly consigned. The psychitaric social worker Curtis

provided just one example: "There is also a large

history of the forced treatment of homosexuality as mental

'illness'." Indeed, involuntarily committing people in mental

hospitals is a time-honored way for stifling any individuality

and dissent; see this 2010 New York Times article

on how China uses that repressive tactic.

Then there are the factually incoherent claims Galston

makes. He harkens back to some sort of Golden Age of the

1960s when thousands of people were incarcerated against their

will who did nothing wrong -- as though that era were

relatively free of political assassinations because all the

"crazies" were where locked up where they belonged. Of

course, the opposite is true: there were far more violent

attacks on political figures back then (MLK, JFK, RFK,

Wallace, Malcolm X, etc.) than there have been during the

relatively peaceful time beginning in the 1980s when

involuntary commitment became much more difficult.

Worse, Galston assumes, without offering any evidence, that

there is a significant correlation between mental illness and

violence, but the reality is the opposite: the vast, vast

majority of people with mental illnesses never hurt anyone.

Writing two days ago in Slate, Vaughn

Bell decried "the fact that mental illness is so often used to

explain violent acts despite the evidence to the

contrary," and documented:

Of course, like the rest of the population, some people

with mental illness do become violent, and some may be

riskier when they're experiencing delusions and

hallucinations. But these infrequent cases do not make

"schizophrenia" or "bipolar" a helpful general-purpose

explanation for criminal behavior. . . . your chance of

being murdered by a stranger with schizophrenia is so

vanishingly small that a recent study of four Western

countries put the figure at one in 14.3 million. To

put it in perspective, statistics show you are about three

times more likely to be killed by a lightning strike.

Yet Galston, pointing to Arizona, wants to lock all of them

away. The harm that would come from forcibly consigning

thousands and thousands of people have done nothing wrong is

so much greater than the harm from the once-every-20-years

attack on a political official that the excessiveness of his

solution is self-evident.

But that's the key point. What Galston is doing here is what

the American political class reflexively does in the wake of

every tragedy: it immediately seeks to exploit the resulting

trauma and emotion to justify all-new restrictions on basic

liberties (such as the right not to be locked away against

one's will in the absence of a crime or a serious threat to

others) and all-new government powers. Every traumatic event

-- in the immediate, emotionally consuming aftermath -- leads

to these sorts of knee-jerk responses. The 9/11 attack

immediately gave rise to the Patriot Act, warrantless

eavesdropping, a torture regime, due-process-free

imprisonment, and ultimately an attack on Iraq. High-profile,

brutal criminal acts have led to repressive measures such as

three-strikes-and-out laws and minimum sentencing guidelines,

causing the U.S. to maintain the largest Prison State in the

world.

And when the so-called Underwear Bomber unsuccessfully

attempted to detonate a bomb in an airplane over Detroit at

the end of 2009, there were immediate calls -- including from

the DOJ -- for loosening Miranda requirements and

the right to be brought before a judge, and even a bipartisan bill to deny legal rights

even to U.S. citizens arrested on U.S. soil and accused of

Terrorism: all because of that one episode. In response to

that reaction, I wrote:

"Even now, every new attempted attack causes the Government

to devise a new proposal for increasing its own powers still

further and reducing rights even more, while the media cheer

it on. It never goes in the other direction. . . . every

new incident becomes a pretext for a fresh wave of

fear-mongering and still new ways to erode core

Constitutional protections even further. . . . We

never reach the point where we decide that we have already

retracted enough rights." It's Naomi Klein's Shock

Doctrine applied to non-economic matters.

What lies at the core of this mindset is desperate pursuit of

a total illusion: Absolute Safety. People like

Galston believe that every time there is a violent or tragic

act, it means that the Government should have done something

-- or should have had more powers -- in order to stop it. But

that is the reasoning process of a child. Even if we were to

create an absolute Police State -- the most extreme Police

State we could conjure -- acts like the Arizona shooting would

still happen. There are more than 300 million people in

the U.S. and, inevitably, some of them are going to do very

bad and very violent things. Thus has it always been and

always will be. The mere existence of bad events is not

evidence that the Government needs to be more empowered and

liberties further restricted. Just as there are serious costs

to things like the Arizona shootings, there are serious costs

to enacting the kinds of repressive systems Galston envisions,

yet people like him never weigh those costs.

Having people do bad things is the price we pay for freedom.

There is a cost to all liberty. Having to hear upsetting or

toxic views is the price we pay for free speech; having

propaganada spewed by large media outlets is the price we pay

for a free press; and having some horrible, dangerous

criminals go free is the price we pay for banning the Police

from searching our homes without a warrant (the

Fourth Amendment) and mandating due process before people can

be imprisoned (the Fifth Amendment). The whole American

political system is predicated on the idea that we are

unwilling to accept large-scale abridgments of freedom in the

name of safety, and that Absolute Safety is a dangerous

illusion. There is a new report today that a police officer

in Tuscon stopped Loughner's car for speeding shortly

before his rampage, but was unable to search his car because

he lacked probable cause to do so. Obviously, that's

regrettable -- if you're a family member of one of his

victims, it's horrifying -- but the alternative (allowing

Police the power to search whomever they want without cause)

is worse: that's the judgment we made in the Bill of Rights.

It may very well be that it's too difficult in some states to

have a person involuntarily committed even when they're a

threat to themselves or others. That's a fair debate to

have. But that's not the case Galston is making. Instead,

he's just drowning in his own TV-generated emotions -- or

trying to exploit those who are -- to usher in an amazingly

oppressive scheme whereby citizens are required to inform on

one another if they suspect someone is a bit mentally off, and

the Government is empowered to put them away for a long time

even in the absence of any threat they pose. That's neither

rational nor sober; it's hysterical fear-mongering of the kind

we see after every incident like this. It's why American

liberties have inexorably eroded. At the very least, there

ought to be a voluntary moratorium on calling for new

government powers in the wake of tragedies like this until the

emotional intensity dies down and rational discourse can

prevail.

UPDATE: Several people made the

point in comments that even had the police been able to search

Loughner's car, that would likely not have changed anything,

since the firearm he was carrying was legal.

[Guest guest]

http://www.salon.com/news/opinion/glenn_greenwald/2011/01/12/galston/index.html

Wednesday, Jan 12, 2011 16:13 ET

The reflexive call for fewer liberties

(updated below)

Galston -- former Clinton adviser and current

Brookings Institution Senior Fellow -- has a column in The New Republic about the

le Giffords shooting that illustrates the mentality

endlessly eroding basic American liberty: namely, the belief

that every tragedy must lead to new government powers and new

restrictions on core liberties. The lesson of the Arizona

tragedy, he argues, is that it's too difficult to force

citizens into mental institutions against their will. This,

he says, is the fault of "civil libertarians," who began

working in the 1970s on legal reforms to require a higher

burden of proof for involuntary commitment (generally: it must

be proven that the person is a danger to himself or to

others). As a result, Galston wants strict new laws imposing

a litany of legal obligations on the mentally ill, their

friends and family, and even acquaintances, as well as

dramatically expanded powers to lock away those with mental

illness (with broader definitions of what that means).

Continue reading

Listen to what he proposes: "first, those who acquire

credible evidence of an individual’s mental disturbance should

be required to report it to both law enforcement

authorities and the courts, and the legal jeopardy

for failing to do so should be tough enough to ensure

compliance"; those reporting obligations should apply not only

to family and friends, but extend to "school authorities and

other involved parties." And "second, the law should no

longer require, as a condition of involuntary incarceration,

that seriously disturbed individuals constitute a danger to

themselves or others"; instead, involuntary commitment should

be imposed whenever there is "delusional loss of

contact with reality." He concludes on this

melodramatic note: 'How many more mass murders and

assassinations do we need before we understand that the

rights-based hyper-individualism of our laws governing mental

illness is endangering the security of our community and the

functioning of our democracy?"

There's so much warped reasoning embedded in this argument

that it's hard to know where to begin. Galston seems to be

unaware of this, but what motivated the reforms in this area

were the decades of severe, horrifying abuses which those with

mental illnesses -- and even those who had none -- suffered as

a result of permissive involuntary commitment standards and

prolonged forced incarceration. Those who suffered mental

illnesses were locked away for years and sometimes decades

despite having done nothing wrong and despite not being a

threat to anyone, while countless people who simply exhibited

strange or out-of-the-ordinary behavior were deemed mentally

ill and similarly consigned. The psychitaric social worker Curtis

provided just one example: "There is also a large

history of the forced treatment of homosexuality as mental

'illness'." Indeed, involuntarily committing people in mental

hospitals is a time-honored way for stifling any individuality

and dissent; see this 2010 New York Times article

on how China uses that repressive tactic.

Then there are the factually incoherent claims Galston

makes. He harkens back to some sort of Golden Age of the

1960s when thousands of people were incarcerated against their

will who did nothing wrong -- as though that era were

relatively free of political assassinations because all the

"crazies" were where locked up where they belonged. Of

course, the opposite is true: there were far more violent

attacks on political figures back then (MLK, JFK, RFK,

Wallace, Malcolm X, etc.) than there have been during the

relatively peaceful time beginning in the 1980s when

involuntary commitment became much more difficult.

Worse, Galston assumes, without offering any evidence, that

there is a significant correlation between mental illness and

violence, but the reality is the opposite: the vast, vast

majority of people with mental illnesses never hurt anyone.

Writing two days ago in Slate, Vaughn

Bell decried "the fact that mental illness is so often used to

explain violent acts despite the evidence to the

contrary," and documented:

Of course, like the rest of the population, some people

with mental illness do become violent, and some may be

riskier when they're experiencing delusions and

hallucinations. But these infrequent cases do not make

"schizophrenia" or "bipolar" a helpful general-purpose

explanation for criminal behavior. . . . your chance of

being murdered by a stranger with schizophrenia is so

vanishingly small that a recent study of four Western

countries put the figure at one in 14.3 million. To

put it in perspective, statistics show you are about three

times more likely to be killed by a lightning strike.

Yet Galston, pointing to Arizona, wants to lock all of them

away. The harm that would come from forcibly consigning

thousands and thousands of people have done nothing wrong is

so much greater than the harm from the once-every-20-years

attack on a political official that the excessiveness of his

solution is self-evident.

But that's the key point. What Galston is doing here is what

the American political class reflexively does in the wake of

every tragedy: it immediately seeks to exploit the resulting

trauma and emotion to justify all-new restrictions on basic

liberties (such as the right not to be locked away against

one's will in the absence of a crime or a serious threat to

others) and all-new government powers. Every traumatic event

-- in the immediate, emotionally consuming aftermath -- leads

to these sorts of knee-jerk responses. The 9/11 attack

immediately gave rise to the Patriot Act, warrantless

eavesdropping, a torture regime, due-process-free

imprisonment, and ultimately an attack on Iraq. High-profile,

brutal criminal acts have led to repressive measures such as

three-strikes-and-out laws and minimum sentencing guidelines,

causing the U.S. to maintain the largest Prison State in the

world.

And when the so-called Underwear Bomber unsuccessfully

attempted to detonate a bomb in an airplane over Detroit at

the end of 2009, there were immediate calls -- including from

the DOJ -- for loosening Miranda requirements and

the right to be brought before a judge, and even a bipartisan bill to deny legal rights

even to U.S. citizens arrested on U.S. soil and accused of

Terrorism: all because of that one episode. In response to

that reaction, I wrote:

"Even now, every new attempted attack causes the Government

to devise a new proposal for increasing its own powers still

further and reducing rights even more, while the media cheer

it on. It never goes in the other direction. . . . every

new incident becomes a pretext for a fresh wave of

fear-mongering and still new ways to erode core

Constitutional protections even further. . . . We

never reach the point where we decide that we have already

retracted enough rights." It's Naomi Klein's Shock

Doctrine applied to non-economic matters.

What lies at the core of this mindset is desperate pursuit of

a total illusion: Absolute Safety. People like

Galston believe that every time there is a violent or tragic

act, it means that the Government should have done something

-- or should have had more powers -- in order to stop it. But

that is the reasoning process of a child. Even if we were to

create an absolute Police State -- the most extreme Police

State we could conjure -- acts like the Arizona shooting would

still happen. There are more than 300 million people in

the U.S. and, inevitably, some of them are going to do very

bad and very violent things. Thus has it always been and

always will be. The mere existence of bad events is not

evidence that the Government needs to be more empowered and

liberties further restricted. Just as there are serious costs

to things like the Arizona shootings, there are serious costs

to enacting the kinds of repressive systems Galston envisions,

yet people like him never weigh those costs.

Having people do bad things is the price we pay for freedom.

There is a cost to all liberty. Having to hear upsetting or

toxic views is the price we pay for free speech; having

propaganada spewed by large media outlets is the price we pay

for a free press; and having some horrible, dangerous

criminals go free is the price we pay for banning the Police

from searching our homes without a warrant (the

Fourth Amendment) and mandating due process before people can

be imprisoned (the Fifth Amendment). The whole American

political system is predicated on the idea that we are

unwilling to accept large-scale abridgments of freedom in the

name of safety, and that Absolute Safety is a dangerous

illusion. There is a new report today that a police officer

in Tuscon stopped Loughner's car for speeding shortly

before his rampage, but was unable to search his car because

he lacked probable cause to do so. Obviously, that's

regrettable -- if you're a family member of one of his

victims, it's horrifying -- but the alternative (allowing

Police the power to search whomever they want without cause)

is worse: that's the judgment we made in the Bill of Rights.

It may very well be that it's too difficult in some states to

have a person involuntarily committed even when they're a

threat to themselves or others. That's a fair debate to

have. But that's not the case Galston is making. Instead,

he's just drowning in his own TV-generated emotions -- or

trying to exploit those who are -- to usher in an amazingly

oppressive scheme whereby citizens are required to inform on

one another if they suspect someone is a bit mentally off, and

the Government is empowered to put them away for a long time

even in the absence of any threat they pose. That's neither

rational nor sober; it's hysterical fear-mongering of the kind

we see after every incident like this. It's why American

liberties have inexorably eroded. At the very least, there

ought to be a voluntary moratorium on calling for new

government powers in the wake of tragedies like this until the

emotional intensity dies down and rational discourse can

prevail.

UPDATE: Several people made the

point in comments that even had the police been able to search

Loughner's car, that would likely not have changed anything,

since the firearm he was carrying was legal.

[Guest guest]

http://www.salon.com/news/opinion/glenn_greenwald/2011/01/12/galston/index.html

Wednesday, Jan 12, 2011 16:13 ET

The reflexive call for fewer liberties

(updated below)

Galston -- former Clinton adviser and current

Brookings Institution Senior Fellow -- has a column in The New Republic about the

le Giffords shooting that illustrates the mentality

endlessly eroding basic American liberty: namely, the belief

that every tragedy must lead to new government powers and new

restrictions on core liberties. The lesson of the Arizona

tragedy, he argues, is that it's too difficult to force

citizens into mental institutions against their will. This,

he says, is the fault of "civil libertarians," who began

working in the 1970s on legal reforms to require a higher

burden of proof for involuntary commitment (generally: it must

be proven that the person is a danger to himself or to

others). As a result, Galston wants strict new laws imposing

a litany of legal obligations on the mentally ill, their

friends and family, and even acquaintances, as well as

dramatically expanded powers to lock away those with mental

illness (with broader definitions of what that means).

Continue reading

Listen to what he proposes: "first, those who acquire

credible evidence of an individual’s mental disturbance should

be required to report it to both law enforcement

authorities and the courts, and the legal jeopardy

for failing to do so should be tough enough to ensure

compliance"; those reporting obligations should apply not only

to family and friends, but extend to "school authorities and

other involved parties." And "second, the law should no

longer require, as a condition of involuntary incarceration,

that seriously disturbed individuals constitute a danger to

themselves or others"; instead, involuntary commitment should

be imposed whenever there is "delusional loss of

contact with reality." He concludes on this

melodramatic note: 'How many more mass murders and

assassinations do we need before we understand that the

rights-based hyper-individualism of our laws governing mental

illness is endangering the security of our community and the

functioning of our democracy?"

There's so much warped reasoning embedded in this argument

that it's hard to know where to begin. Galston seems to be

unaware of this, but what motivated the reforms in this area

were the decades of severe, horrifying abuses which those with

mental illnesses -- and even those who had none -- suffered as

a result of permissive involuntary commitment standards and

prolonged forced incarceration. Those who suffered mental

illnesses were locked away for years and sometimes decades

despite having done nothing wrong and despite not being a

threat to anyone, while countless people who simply exhibited

strange or out-of-the-ordinary behavior were deemed mentally

ill and similarly consigned. The psychitaric social worker Curtis

provided just one example: "There is also a large

history of the forced treatment of homosexuality as mental

'illness'." Indeed, involuntarily committing people in mental

hospitals is a time-honored way for stifling any individuality

and dissent; see this 2010 New York Times article

on how China uses that repressive tactic.

Then there are the factually incoherent claims Galston

makes. He harkens back to some sort of Golden Age of the

1960s when thousands of people were incarcerated against their

will who did nothing wrong -- as though that era were

relatively free of political assassinations because all the

"crazies" were where locked up where they belonged. Of

course, the opposite is true: there were far more violent

attacks on political figures back then (MLK, JFK, RFK,

Wallace, Malcolm X, etc.) than there have been during the

relatively peaceful time beginning in the 1980s when

involuntary commitment became much more difficult.

Worse, Galston assumes, without offering any evidence, that

there is a significant correlation between mental illness and

violence, but the reality is the opposite: the vast, vast

majority of people with mental illnesses never hurt anyone.

Writing two days ago in Slate, Vaughn

Bell decried "the fact that mental illness is so often used to

explain violent acts despite the evidence to the

contrary," and documented:

Of course, like the rest of the population, some people

with mental illness do become violent, and some may be

riskier when they're experiencing delusions and

hallucinations. But these infrequent cases do not make

"schizophrenia" or "bipolar" a helpful general-purpose

explanation for criminal behavior. . . . your chance of

being murdered by a stranger with schizophrenia is so

vanishingly small that a recent study of four Western

countries put the figure at one in 14.3 million. To

put it in perspective, statistics show you are about three

times more likely to be killed by a lightning strike.

Yet Galston, pointing to Arizona, wants to lock all of them

away. The harm that would come from forcibly consigning

thousands and thousands of people have done nothing wrong is

so much greater than the harm from the once-every-20-years

attack on a political official that the excessiveness of his

solution is self-evident.

But that's the key point. What Galston is doing here is what

the American political class reflexively does in the wake of

every tragedy: it immediately seeks to exploit the resulting

trauma and emotion to justify all-new restrictions on basic

liberties (such as the right not to be locked away against

one's will in the absence of a crime or a serious threat to

others) and all-new government powers. Every traumatic event

-- in the immediate, emotionally consuming aftermath -- leads

to these sorts of knee-jerk responses. The 9/11 attack

immediately gave rise to the Patriot Act, warrantless

eavesdropping, a torture regime, due-process-free

imprisonment, and ultimately an attack on Iraq. High-profile,

brutal criminal acts have led to repressive measures such as

three-strikes-and-out laws and minimum sentencing guidelines,

causing the U.S. to maintain the largest Prison State in the

world.

And when the so-called Underwear Bomber unsuccessfully

attempted to detonate a bomb in an airplane over Detroit at

the end of 2009, there were immediate calls -- including from

the DOJ -- for loosening Miranda requirements and

the right to be brought before a judge, and even a bipartisan bill to deny legal rights

even to U.S. citizens arrested on U.S. soil and accused of

Terrorism: all because of that one episode. In response to

that reaction, I wrote:

"Even now, every new attempted attack causes the Government

to devise a new proposal for increasing its own powers still

further and reducing rights even more, while the media cheer

it on. It never goes in the other direction. . . . every

new incident becomes a pretext for a fresh wave of

fear-mongering and still new ways to erode core

Constitutional protections even further. . . . We

never reach the point where we decide that we have already

retracted enough rights." It's Naomi Klein's Shock

Doctrine applied to non-economic matters.

What lies at the core of this mindset is desperate pursuit of

a total illusion: Absolute Safety. People like

Galston believe that every time there is a violent or tragic

act, it means that the Government should have done something

-- or should have had more powers -- in order to stop it. But

that is the reasoning process of a child. Even if we were to

create an absolute Police State -- the most extreme Police

State we could conjure -- acts like the Arizona shooting would

still happen. There are more than 300 million people in

the U.S. and, inevitably, some of them are going to do very

bad and very violent things. Thus has it always been and

always will be. The mere existence of bad events is not

evidence that the Government needs to be more empowered and

liberties further restricted. Just as there are serious costs

to things like the Arizona shootings, there are serious costs

to enacting the kinds of repressive systems Galston envisions,

yet people like him never weigh those costs.

Having people do bad things is the price we pay for freedom.

There is a cost to all liberty. Having to hear upsetting or

toxic views is the price we pay for free speech; having

propaganada spewed by large media outlets is the price we pay

for a free press; and having some horrible, dangerous

criminals go free is the price we pay for banning the Police

from searching our homes without a warrant (the

Fourth Amendment) and mandating due process before people can

be imprisoned (the Fifth Amendment). The whole American

political system is predicated on the idea that we are

unwilling to accept large-scale abridgments of freedom in the

name of safety, and that Absolute Safety is a dangerous

illusion. There is a new report today that a police officer

in Tuscon stopped Loughner's car for speeding shortly

before his rampage, but was unable to search his car because

he lacked probable cause to do so. Obviously, that's

regrettable -- if you're a family member of one of his

victims, it's horrifying -- but the alternative (allowing

Police the power to search whomever they want without cause)

is worse: that's the judgment we made in the Bill of Rights.

It may very well be that it's too difficult in some states to

have a person involuntarily committed even when they're a

threat to themselves or others. That's a fair debate to

have. But that's not the case Galston is making. Instead,

he's just drowning in his own TV-generated emotions -- or

trying to exploit those who are -- to usher in an amazingly

oppressive scheme whereby citizens are required to inform on

one another if they suspect someone is a bit mentally off, and

the Government is empowered to put them away for a long time

even in the absence of any threat they pose. That's neither

rational nor sober; it's hysterical fear-mongering of the kind

we see after every incident like this. It's why American

liberties have inexorably eroded. At the very least, there

ought to be a voluntary moratorium on calling for new

government powers in the wake of tragedies like this until the

emotional intensity dies down and rational discourse can

prevail.

UPDATE: Several people made the

point in comments that even had the police been able to search

Loughner's car, that would likely not have changed anything,

since the firearm he was carrying was legal.