From this, some advocates conclude that the waterboarding of suspects at, say, the U.S. prison at Guantánamo Bay, Cuba, is not a necessary evil but a good. A May 6 syndicated column by Linda Chavez was headlined, “Reward, Don’t Punish CIA Interrogators.”

To the Chavezes in this debate, the Gitmo torturers are heroes, willing to dirty their hands with the “front line” work on which American lives depend.

Libertarians need to take a hard stand against torture.

A Simple Issue

Torture is often presented in complex or legalistic terms that cloud the issue. Consider a current example.

Pakistan is holding three of bin Laden’s wives and several of his children for interrogation.  That country’s government is notorious for torturing detainees, including women and children.

To the extent torture is discussed at all in connection with bin Laden’s family, the points raised would likely include:

At what age must a victim be before torture becomes acceptable?

Are family members of targeted people also fair game?

Will resulting information be useful or utterly unreliable?

But these questions are technicalities that should be addressed only after the fundamental issue is resolved: namely, is torture to elicit information ever proper?

Can Libertarians Ever Support Torture?

In fact, on occasion some libertarians have accepted torture as an acceptable method of gaining information. Reason commentator Radley Balko initially supported the torture of suspected terrorists. Balko later changed his mind on the grounds that “the government won’t use it competently…. [T]he government will abuse it, and … the government will find new, inappropriate contexts in which to use it.”

This is a rejection not of torture per se but rather of a refusal to cede that power to government. The anti-torture argument has to be stronger.

A useful starting point is to consider what conditions would have to be  present for torture to be compatible with libertarian theory.

Libertarianism declares that no moral or practical consideration outweighs the right of a peaceful individual to use his own body and property. When rights are breached, the accused is entitled to due process before remedies can be justly imposed, and those remedies must be proportional to the violation.

I can imagine only one scenario that even approaches the conditions necessary to justify torture: if a convicted kidnapper is known to have information that could save the life of his victim – perhaps the address of where the victim is starving to death. It is permissible to use lethal force against an attacker who directly and immediately threatens your life or that of an innocent third party. If the slow starvation of a kidnap victim can be is viewed as an ongoing immediate threat, then it is possible that using the lesser violence of torture to end the threat might also be justified.

But other conditions apply as well. Torture could only be used against the direct aggressor – not his family, friends, or associates. It could only occur after the accused had been judged criminally responsible in a fair manner; otherwise, he would remain innocent until proven guilty.

As a practical matter, however, the time required for due process would almost certainly result in the hypothetical victim starving to death. And so even in the most favorable scenario possible, the libertarian conditions for torture contradict each other and the justification breaks down.

The Current Reality of Torture

Thinking about the conditions for “justified torture” remain valuable, however, to highlight how unjustifiable torture is in the current context.

Consider the detainees at Gitmo. None of the conditions that might conceivably justify torture are present. They pose no imminent or direct threat to the lives of others. Indeed, the detainees have not even been charged with a lethal crime; nor have they received due process or been adjudicated as criminally guilty of anything. At most, some of them may possess information that could prove useful to one side of a political conflict. (Even this vague claim is highly doubtful as information extracted by torture is notoriously unreliable.)

However interesting it is to debate theoretical cases, no libertarian could possibly justify the current reality of torture without compromising libertarian principle. The torture of detainees is not an act of self-defense. It is the atavistic State and human nature at their worst.

Ultimately, however, I oppose torture not because I am libertarian, but  because I am a human being. Torture destroys everyone and everything decent it touches, including the torturer’s humanity.

people have apologized for the past crimes of the groups with which they identify: the U.S. for Japanese internment, the Church for Galileo, Swiss bankers for Nazi money laundering, even the Japanese (kind of) for their war crimes. I’d like to see psychiatrists do the same—to admit that unusual preferences are not ‘disease,’ affirm that it is wrong to treat people against their will, and turn their backs on the ‘greats’ of their profession who believed in and practiced coercive therapy.”

I am grateful to Caplan for calling attention to a problem most people prefer to ignore. His expectation will, however, not be fulfilled, and it is important to understand why. Claiming competence in astronomy and incarcerating heretics are not integral to the identity of the Catholic Church. In contrast, claiming competence in predicting “dangerousness” and incarcerating persons alleged to be so because of “mental illness” are integral to the psychiatric enterprise. Wikipedia defines civil commitment as “the practice of using legal means or forms as part of a mental health law to commit a person to a mental hospital, insane asylum or psychiatric ward against their will and/or over their protests. . . . A common reason given for involuntary commitment is to prevent danger to the individual or society.”

Psychiatrists alternately deny and delight in possessing special professional skill at detecting future “dangerousness” that entitles them to the special power to incarcerate individuals they so stigmatize in prisons that masquerade as hospitals. The American legal system makes heavy use of psychiatric determinations of dangerousness, as a result of which vast numbers of Americans are deprived of liberty and, at the same time, of opportunity to demonstrate the injustice of their detention. Examples abound.

Kafka in Court

In March 2004 Susan Lindauer was arrested in Maryland and charged with “acting as an unregistered agent of a foreign government.” She faced up to 25 years in prison. Instead of trying Lindauer, government psychiatrists declared her mentally incompetent to stand trial and incarcerated her at the Carswell Federal Medical Center in Texas, a facility described as providing “medical and mental health services to female offenders.” But Lindauer was not an offender. She was an innocent American.

After “hospitalizing” Lindauer for 18 months, her “medical” torturers concluded that, although she was still mentally ill and incompetent to stand trial, she no longer needed psychiatric “care.” Released from detention, she returned to Maryland where federal court services referred her to a private agency for counseling. According to a motion filed by her attorney, her counselor, Dr. Bruke Tadessah, said, “That evaluation showed a diagnosis of post traumatic stress disorder due to her experiences at Carswell.” Last January the federal government dropped its case against Lindauer as ”no longer in the interest of justice,” implying that her psychiatric persecution had been in the interest of justice.

Consider the contrast. Inmates of American mental-health facilities are stigmatized as “mental patients”; their torture is called “treatment”; and they are regarded as the beneficiaries of a caring government’s therapeutic services. The inmates at the Abu Ghraib prison in Iraq were not stigmatized as “mental patients”; their torture was not called “treatment”; and they were regarded as the victims of government-sponsored “detainee abuse.”

Indefinite Incarceration

When Donald Schmidt was 16, he molested and drowned a 3-year-old girl. Under California law juvenile offenders who commit serious crimes can be kept in the system only until they are 25. But Schmidt’s detention has been extended under the state code that allows “continued detention if a jury finds the inmate has a mental disorder, defect or abnormality that causes the person to have serious difficulty controlling his or her dangerous behavior.”

What is Schmidt expected to do to get a divorce from his “doctors” and regain his liberty? Every two years he can petition for release and hope that a judge will order a “trial,” letting jurors decide whether he remains a “danger to society.” Anticipating another such contingency, a Santa Cruz County district attorney Bob Lee declared, “We believe he’s a psychopath.” Richard A. Starrett, a clinical psychologist, agreed that Schmidt was still a danger, though “not a psychopath.” Barry Krisberg, president of the National Council on Crime and Delinquency in Oakland, California, called Schmidt’s situation “one in a million.”

The claim that Schmidt’s indefinite psychiatric sentence is unusual is typical of the deceit and depravity intrinsic to forensic psychiatry. John Hinckley, Jr., never convicted of a crime, is serving his 28th year of psychiatric imprisonment. Evidently the government’s greatest psychiatrists need more time to cure him of dangerousness.

Psychiatry is the political legitimation of the incarceration of innocent individuals under psychiatric auspices, a practice that appears to enjoy near-universal approval by people in modern societies. Recognition of the fact that noncoercive psychiatry is an oxymoron is obscured by the concurrent practice of seemingly consensual “therapy.” I say “seemingly” because the mental-health professional retains the privilege and obligation to deprive his patient of liberty if he “poses a danger to himself or others.” As a result, psychiatrists and the press regularly tout psychiatric “reforms,” while the “doctors” engage in ever-increasingly refined forms of psychiatric depravity, supported by the unquestioned and unquestionable premise that “dangerousness” justifies imprisonment called “hospitalization.”

In the published report of a 1981 workshop titled Behavioral Science and the Secret Service, sponsored by the prestigious Institute of Medicine, Robert Michels, University Professor of Medicine and of Psychiatry at Weill Cornell Medical College in New York, asserted that “most mental health professionals believe that there is no major ethical dilemma if it is in the patient’s interest to violate his confidentiality, and that it is generally in the patient’s (as well as society’s) interest to prevent a major violence.” The assertion that “most mental health professionals believe” that violating a defendant’s Sixth Amendment right to trial serves his interest is evidence of psychiatric depravity, not morality.

To make matters worse, a few pages later the workshop reporter informs us that “Some conferees, including psychiatrists Robert Michels and Loren Roth [a prominent forensic psychiatrist and professor at the University of Pittsburgh], questioned the utility of making dangerousness determinations at all, because such decisions at any one time are likely to be highly unreliable and invalid. . . . Mental health professionals in general have not been shown to be better than anyone else in making predictions about behavior which might occur in the distant future under changing conditions.”

None of this evidence impairs the professional standing of psychiatry as an ethical and scientific medical discipline. The psychiatric enterprise is so deeply rooted in social control and so strongly supported by pseudoscientific magic and prejudice that psychiatrists must either cling to and justify the coercive services they render or repudiate and abolish their profession as they and we know it.

Unfortunately, this is no longer a hypothetical question. Many Americans who claim to support individual freedom also favor permitting the government to torture suspected terrorists or other purported enemies of the United States.

This controversy is reminiscent of a disagreement between the famous economists F. A. Hayek and John Maynard Keynes. Hayek’s Road to Serfdom (1944) brilliantly restated the classical warnings on Leviathan, showing the similarities in trends between Nazi Germany and Western democracies. Keynes claimed that Hayek had gone too far in his criticism because “dangerous acts can be done safely in a community which thinks and feels rightly, which would be the way to hell if they were executed by those who think and feel wrongly.”

Many Americans have embraced Keynes’s assumption in the post-9/11 era. They have accepted that a democratic government should be permitted to unleash itself if the rulers promise to do good things. They have ignored or shrugged off the specific methods used because of their confidence that politicians “think and feel rightly.”

President George W. Bush exploited this confidence by invoking American values in response to his critics. Shortly after the Abu Ghraib prison photos were published, Bush brushed aside a question about his personal responsibility by assuring a French interviewer that “America is a great and generous and decent country.” After Amnesty International declared that the United States had become “a leading purveyor and practitioner” of torture, Bush sought to refute the charge by invoking American moral greatness: “The United States is a country that promotes freedom around the world.” Much of the American media continued praising Bush as a visionary idealist long after the evidence of grave abuses had surfaced.

Usurping Law

The Bush administration’s invocation of freedom to justify its interrogation policies is premised on the assumption that the U.S. government could never be a threat to Americans’ freedom. The Founding Fathers recognized that individual liberty depends on a “government of laws, not of men.” Unfortunately, the Bush administration decided after 9/11 that the law could not be permitted to impede its war against terrorism.

Justice Department lawyers busied themselves creating legal pretexts for the President to scorn the federal Anti-Torture Act and the Geneva Conventions. A secret 2002 memo written by Justice Department official John Yoo proclaimed that “the President enjoys complete discretion in the exercise of his Commander-in-Chief authority and in conducting operations against hostile forces. . . . [W]e will not read a criminal statute as infringing on the President’s ultimate authority in these areas.” White House counsel Alberto Gonzales publicly declared that Bush had a “commander-in-chief override.” Thus the statute book no longer applied to the nation’s Supreme Leader.

Bush and his defenders continually portray the torture scandal as problems caused by a “few bad apples” or simply the equivalent of college-fraternity hazing. In reality, the abuses ranged from the endless high-volume repetition of a “Meow Mix” cat-food commercial at Guantanamo to tearing out toenails in Afghanistan to compulsory enemas for recalcitrant prisoners to beating people to death in Iraq and kicking them to death outside Kabul to illegally sending detainees to foreign governments to be tortured by proxy and creating a system of “ghost prisoners” worthy of a banana republic. U.S. torture has been confirmed by FBI agents, former U.S. military interrogators, a Department of Defense Inspector General report, and court cases around the globe.

Presidential Supremacy

Yale law professor Jack Balkin wrote, “The President has created a new regime in which he is a law unto himself on issues of prisoner interrogations. He decides whether he has violated the laws, and he decides whether to prosecute the people he in turn urges to break the law.”

After 9/11 the CIA constructed an interrogation program by “consulting Egyptian and Saudi intelligence officials and copying Soviet interrogation methods,” the New York Times noted last year. The United States had long condemned Soviet, Egyptian, and Saudi torture. But interrogation systems designed to compel victims to sign false confessions provided the model for protecting America in the new millennium. Torture regimes crafted to perpetuate repressive systems suddenly became engines of freedom—at least in the eyes of some Bush supporters.

The Justice Department produced a secret legal opinion in 2005 permitting CIA interrogators to use “combined effects” on detainees, including head slapping, simulated drownings (“waterboarding”), frigid temperatures, manacling people for many hours in stress positions, and blasting them with loud music to ensure sleep deprivation. The New York Times, which published the leaked memo, labeled it an “expansive endorsement of the harshest interrogation techniques ever used by the Central Intelligence Agency.” The memo signaled that the Bush administration explicitly rejected the definition of torture that had been used by the U.S. government for the previous century.

From the time when the first Abu Ghraib photographs were published, President Bush emphatically denied that the U.S. government ever used or approved of torture. But this past April, ABC News revealed that Vice President Dick Cheney and other top Bush administration officials would sit around a table in the White House and specify the precise extreme interrogation methods that would be used on Muslim detainees. ABC noted: “The high-level discussions about these ‘enhanced interrogation techniques’ were so detailed . . . some of the interrogation sessions were almost choreographed—down to the number of times CIA agents could use a specific tactic.” Thus the number of times each prisoner could be whacked upside the head or almost drowned—or how many hours he could be shackled in a painful position—were decreed by the administration’s top officials. Attorney General John Ashcroft, who was among the loudest apologists for Bush power grabs, warned, “History will not judge this kindly.” Bush later confirmed that he was aware that his top officials were dictating exactly how brutal the interrogations would become.

The torture scandal has made clear how little protection American laws provide to U.S. victims. Lawyers for four British citizens who had been locked up at Guantanamo from 2002 to 2004 sued U.S. officials, seeking damages for the illegal detention and torture they suffered. In January 2008 federal Judge Karen Henderson rejected their lawsuit, declaring that “torture is a foreseeable consequence of the military’s detention of suspected enemy combatants.” A federal appeals court ruled: “It was foreseeable that conduct that would ordinarily be indisputably ‘seriously criminal’ would be implemented by military officials responsible for detaining and interrogating suspected enemy combatants.” The court ruled that the officials could not be sued because they were merely carrying out their official duties. The fact that they were following Bush’s orders gave them legal immunity in American courts—a tacit revocation of the Nuremberg doctrines established in the war-crimes trials after World War II. Eric Lewis, the detainees’ lawyer, lamented, “It is an awful day for the rule of law and common decency when a court finds that torture is all in a day’s work for the secretary of defense and senior generals.”

In recent years, the U.S. government has appropriated the title of the Supreme Defender of World Freedom, akin to the Catholic Church’s role as the defender of the true faith in earlier centuries. During the Inquisition, torture was justified to rid the world of heresy. Bush, who promised to “rid the world of evil,” perhaps feels justified in using torture to achieve his transcendent goal.

But this is where one of the problems arises. In the days after the 9/11 attacks, Bush talked about al Qaeda as the target of U.S. efforts. The target list soon expanded to include the Taliban, the Afghan rulers who had provided sanctuary to al Qaeda. Bush later added “radicals” and “extremists” to the list of enemies. Attorney General Gonzales declared in 2006 that it is “essential that we continue to develop the tools we need to investigate . . . and prosecute those who travel down the road of radicalization.” There is nothing to constrain a politician from labeling his opponents “radicals”—as has happened repeatedly in American history.

Total Discretion in Labeling Enemies

Some people support torture because they are confident that the government will only barbarize foreigners. This was how Bush’s power to designate enemy combatants was first sold to the public—as something that would only be applied to foreign perils. But after José Padilla was arrested in Chicago in 2002, his American citizenship did not save him from brutality while incarcerated in South Carolina and elsewhere in the United States. Once the government decrees that someone has no rights, it is a small step to declare that there will be no limits on how the government treats that person.

Some Americans support torture because of their distrust or hostility to Muslims, the usual target of contemporary extreme American interrogation methods. But the government claims the right to designate as enemy combatants (and thus eligible for torture) alleged members or supporters of any designated terrorist group. Irish Americans could be at risk of torture if the feds alleged they were linked to the Real Irish Republican Army, and Jews could face similar perils if the feds alleged their connection to the Sword of David or American Friends of the United Yeshiva Movement. Human Rights Watch warned in 2005 that the government’s terrorist-group designation process has been “challenged in the courts for being vague, overbroad, and for there being no transparent criteria for listing entities on the lists or removing entities from the lists.”

Torture supposedly saves lives by providing the surest way to get the evidence of a “ticking time bomb.” There are no good verified examples of that from American experience. However, it was torture that produced “evidence” that spurred the American public to support Bush’s rush to war against Iraq. The “smoking gun” linking al Qaeda to Saddam Hussein came from an al Qaeda operative captured in Afghanistan, Ibn al-Shaykh al-Libi. Secretary of State Colin Powell relied on al-Libi’s information for his February 2003 presentation to the United Nations Security Council. However, Powell did not know that al-Libi had been tortured in Egypt—where he was “renditioned” by U.S. agents.

Had it not been for the torture of al-Libi, thousands of American soldiers might still be alive, and hundreds of thousands of Iraqis would not have perished in the 2003 invasion and the subsequent civil war.

Torture is not a “bleeding heart” issue; instead, it is simply a question of whether a president will have absolute power. In reality, the Bush administration’s torture policies are simply the most vivid example of its belief that the president is now permitted to do as he pleases. Assistant Attorney General Steven Bradbury declared in 2006: “Under the law of war, the president is always right.” Bradbury also informed a closed congressional committee in 2006 that Bush has the authority on his own to order killings of suspected terrorists within the United States. Bradbury’s assertion stirred zero controversy—despite the administration’s long record of false accusations of terrorist connections. The vast majority of people charged in federal terrorist investigations have not been convicted on terrorism charges.

To Zealously Defend the Constitution

The genius of the Founding Fathers was to recognize that the existence of perils cannot justify absolute power. The Constitution was created by a generation of men who had fought a war against the most powerful government in the world. At the same time, it was also a civil war, thanks to the pervasive Tory sympathizers in many parts of the colonies. The Constitution was not made for sunny days and smooth sailing. Instead, it was crafted for hard times, with many provisions for dealing with deadly threats to the nation’s survival. For a contemporary president to effectively claim that he can no longer be bound by the Constitution is an insult to the Founding Fathers who survived far harsher tests in their time than America did on and after 9/11.

It is the second one that concerns me here. All human beings have to act in order to survive, and these acts involve choices between alternative courses of action. We choose according to the perceived balance between benefits and costs accruing to any action. This is what is meant by responding to incentives. The obvious corollary is that if the incentives change, then choices and subsequent behavior will change as well. The change may be actual or one of perception or a change in the subjective evaluation of the alternatives, but that is a secondary matter. The crucial point is that the pattern of incentives will tend to shape the way people choose and act.

Thus if you want to understand human behavior, the pattern of incentives must be established. If you can do this, then in many cases you will have found a way to explain what might otherwise seem incomprehensible. This is even, or perhaps particularly, true in the case of behavior that is apparently self-destructive or pointless. It also means that one way of changing human behavior is either to change the incentives directly or else to change the subjective evaluation of the payoffs and hence the choices made. This can help us to understand both the nature and origin of major social problems and what will or will not work in trying to resolve them—or indeed if they can be resolved by deliberate action at all.

A common response is to say that this is a narrow and impoverished view of human motivation that relates only to the realm of money and economic incentives in the narrow sense. However, understood properly, this principle has much wider application. Incentives clearly include financial or monetary costs and benefits, and it is foolish and naïve to underestimate how important these are. However, the term also includes all sorts of other benefits, which are often more powerful than money. The most significant is social status. When we think about incentives in this wider sense, it is possible to make sense of areas that at first sight have nothing to do with economics as it is generally understood.

One of the best examples of this is the criminal-justice system. Historically this was one of the first areas of human life to be analyzed using this insight, and the effects were profound. In eighteenth-century Europe the penal system, which had largely been created during the later Renaissance (roughly 1450 to 1650), was exceptionally harsh and brutal. Many crimes attracted the death penalty, which had a central place in the system. As time passed, the number of capital crimes grew steadily. In England there were about 100 capital crimes in 1700, but by 1815 this had risen to over 250. Execution was invariably in public and attended with all kinds of ritual and ceremonial. The commonest form was hanging, which often did not involve the “drop” so that the condemned felon would die a slow and agonizing death by strangulation. Even those who escaped the death penalty suffered punishment that was public and painful. Moreover in most of Europe (though not in England) torture was widely used to extract confessions.

However, this grim system was ineffective and became more so as it became harsher. All contemporaries believed that crime of all sorts was increasing, and so far as we can tell they were correct in this assumption. Moreover, looking at the records reveals several paradoxes, the most striking being that while the number of capital crimes increased, the proportion of criminals who actually were executed went down. In fact so many were acquitted or had their sentences commuted that it seems a minor miracle that anyone ever was executed. What you had was the worst of all worlds, a system both inhumane and ineffective.

This was to change largely as the result of one man and one short but brilliant book. The man was Cesare Beccaria, the Marquese de Bonesana (1738–94). He was a leading figure in the Milanese Enlightenment, and in 1764 he was persuaded by his friends Alessandro and Pietro Verri to write a book called Dei Delitti e delle Penne (On Crimes and Punishments). This was one of the first works to apply the principle that human beings respond to incentives to the brutal yet incompetent judicial systems of the time.

Beccaria argued that criminals were motivated by the balance between the possible benefits of crime and the likely costs, which were essentially those of being caught and punished. He also argued that future punishments and benefits both counted for less than those inflicted in the present or near future. (This is an early version of the economic concept of “time preference.”) The problem with the system, he argued, was that for the individual criminal the chance of being caught, and if caught convicted and punished, was too low. In response punishments were made even more severe so as to maintain the deterrent. However, after a time this did not work. One reason was the slowness and sheer incompetence of the system, which meant that punishment was still uncertain and often long delayed. More serious was the way that the sympathy of jurors and judges led them to acquit those charged or to manipulate the system to find them guilty only of a lesser charge because they saw the punishment as excessive and unreasonable compared to the actual crime.

Mild, Swift, and Predictable

Beccaria argued that punishment should be comparatively mild but also both swift, so it occurred soon after the offense, and certain and predictable rather than uncertain and arbitrary. This, he said, would produce a criminal-justice system that was more humane but also more effective because it would have a greater deterrent effect. He was particularly opposed to the death penalty and its widespread use. One separate argument he made was that it was both morally wrong and dangerous to give the state the power to kill people. His incentive-based argument was that the widespread use of execution not only did not deter but might even encourage certain crimes. The reason was, first, that for many people the prospect of their own death was hard to envisage and actually less terrible than the prospect of lifelong confinement, and second, that the public nature of the event actually cast a romantic glamour over the crime and its perpetrator, which might lead some individuals to seek it as a route to fame.

Beccaria’s little book was soon translated into most European languages and had a tremendous intellectual impact. Its effect on actual policy, however, was delayed, not least because of the conservatism of the legal profession. Eventually, his arguments were accepted, and the result was a radical reform of the criminal-justice system throughout Europe. The consequence was exactly as he had predicted—the system became both more humane and more effective, with a gradual decline in both actual and recorded criminality. (There were several other reasons, but the reforms inspired by Beccaria were a major part.) By 1900 recorded crime rates in almost every part of Europe and North America were at an all-time low.

According to Paul Greenberg, writing in the Washington Times in late January, the dreaded Antifederalists and their Articles of Confederation are making a comeback. In particular, these miscreants dare to question executive power. He writes with patriotic horror—a horror that assumes as self-evident a partisan reading of American history, a reading force-fed to most of us in public school. On that view, the Antifederalists’ return would be terrible indeed, since those gentlemen were a set of backward-looking rustics unwilling or unable to see the necessity of a strong central government to guarantee our “national” security. Their opposition to the Constitution under which we now allegedly live is all the proof needed.

In 1787 we had recently defeated the British Empire—without a strong central American government directing the struggle—but having succeeded, we are supposed to have been in greater peril than before. 

Here, as in many instances, the winners wrote the history of the conflict. The “founders” made their own propaganda for themselves as the ultimate “greatest generation.” A set of nationalist historians in New England carried this gospel into the early nineteenth century.

 The winning side even chose the parties’ labels: “Federalist” for centralizing nationalists, and the negative-sounding “Antifederalist” for defenders of genuine federalism. 

In 1983 historian Michael Lienesch noted that standard-issue historians invariably abuse the Antifederalists; fashions change, and the indictment with them, but there is always an indictment against the Antifederalists. They were “too local,” narrow of vision, afraid of the future, and unable to share the Federalists’ “continental vision.” They were “too democratic”; later, they were seen as “too undemocratic.” 

Thus Antifederalists were “men of little faith,” as historian Cecelia Kenyon put it in 1955. But now it is 2006 and the idea of having faith in this government at this time is all played out. Thomas Jefferson, out of power, would thunder about binding officeholders down with “the chains of the constitution”—and a good idea, if the Constitution were anything more than a “rope of sand.” 

Over the long haul, pretty much every dire prediction made by the Antifederalists has proven correct, although some took longer than others for their realization; and yet the Antifederalists get no credit. Among the predictions were ongoing centralization, creation of artificial monied aristocracies, long-run effacement of the states, and even a federal war made on a state or a group of states. 

The Federalists invented a structure they could dominate, pronouncing it republican, even “democratic,” since the people (one or thirteen?) were ultimately sovereign. Very comforting. 

Mr. Greenberg’s attack on the Antifederalists is a mere occasion for deploying the much-mooted Unitary Executive theory. The founders, he asserts, would be upset to learn that the president is forced to go to a quickie, drive-through court (FISA) before carrying on much-needed surveillance. What a shameful climb-down from the bold presidential assertion and usurpation “intended” by Article II. 

One need only look at the written work of recent Supreme Court nominees and the administration’s famous torture memorialists to see the grand (and central) project: sustaining the absurdist Unitary Executive theory. That doctrine credits the presidency with more unknown, “implied,” and “inherent” powers than a team of FDR, Truman, and Nixon could dream up on an especially ambitious day. And the torture memos provide an example of what all this alleged power is good for. 

Well-meaning constitutional traditionalists may argue of course that the Constitution, as written, debated, and ratified has little to do with such Bonapartist notions. When the “paper” of 1787 was under discussion, its advocates repeatedly told Americans that it secured their liberties and property through sundry interlocking protections. The president would only execute the laws passed by Congress. Congress’s acts would not be legally binding unless consistent with the Constitution. Powers were enumerated. 

These restrictions and safeguards withered away rather quickly. Congress and the Court did their part, and presidents began pretending to have found a vast treasury of power lurking, hitherto unmarked, in “The executive power”—in the phrase, that is, in the mere words that begin Article II, now revealed as mystic chords of construction, if not memory. 

In opposing the Constitution the Antifederalists were not mounting a positive defense of the Articles. The value of their critique lies precisely in the critique of the new model—advanced warnings of the many flaws in the Federalists’ product. Not the least of the flaws was the presidency itself. The office as such entails a quadrennial, circus-like disruption of American life, promotes centralization and social tinkering, and licenses irresponsible foreign policies. 

“Energy” certainly abounds in the executive, but we might have done better with a committee.

Founders as Neoconservatives 

Mr. Greenberg asks us to think of the founders as “neo-conservatives.” This is an insult that must not stand, however little one may respect the founders’ work. Mr. Greenberg is really expounding the “dare theory” of American law. He dares us to believe that, constitutionally, one man, more or less elected, can legally initiate war and do pretty much anything that pops into his head as an alleged means of defending the United States and repelling attack, even attacks that have not happened yet and probably would not ever happen until or unless a whole array of unlikely intermediate steps should fall into place. 

Thanks, but no thanks. We are not likely to believe such a proposition, in its fullness; nor need we affirm the goodness of such a system. If Greenberg persuades us that the original Constitution actually envisioned such unknowably large executive powers, we are free to conclude that it is something of a swindle and stands in need of serious retooling, revision, or replacement. 

Perhaps a convention exceeding its instructions, as in 1787, could do the trick. 

“Conservative” neo-monarchists have raised the stakes, and they may answer for any drastic conclusions drawn. Such conservatives concede the Antifederalist claim that the Constitution was already a dangerous consolidation of power. Of course we may read the Antifederalists as spelling out the tendencies that would necessarily arise under the new system, once their opponents exploited each and every constitutional ambiguity (as they ultimately did). 

Neo-federalists may say that the Constitution does not grant power to do X and Y; but once the federal government does them and the courts affirm the deed, present-day Madisonians have no argument. They may gripe about usurpations or mistakes, but since those are never reversed, what good is Mr. Madison’s creative tinkering now? The Antifederalists were far better prophets, even if they could be premature on the timing of outcomes they feared. 

The Federalists were the irrational optimists. The first Congress effectively refuted Madison’s famous argument in Federalist No. 10 about the “dilution of faction” in a larger political sphere. At this late date it is easy to resolve one’s love-hate relationship with the Federalist Papers decisively in favor of hate. As the Virginia jurist Abel P. Upshur wrote in 1840, “the Federalist is defective in some important particulars, and deficient in many more.” 

In denouncing rejection of the energetic, God-like presidency as “Antifederalism,” Greenberg has opened conceptual doors he might have left shut. Good. 

I wish there were genuine Antifederalists on the horizon today. If Democrats should really move in that direction—more power to them. If you see any Democrats embracing the Articles of Confederation, by all means welcome them aboard.

I recently read a book that should shock freedom-loving and civil-liberty-loving readers, even the libertarians, Objectivists, and Americans of other political persuasions who (thanks to Dr. Thomas Szasz) have come to be skeptical and even critical of psychiatry, particularly in the courtroom.

The Politics of Psychiatry in Revolutionary Cuba by Charles J. Brown and Armando M. Lago (Transaction, 1992) provides irrefutable evidence and graphically documents that the totalitarian government of Cuba has used (and continues to use) psychiatry for political purposes—in this case, political repression, the crushing of dissent, and the establishment of conformity within the political structure of the island prison of communist Cuba.

The authors have carefully investigated the stories of 27 Cuban dissidents charged with political crimes (nonviolent opposition to the regime), arrested, interrogated by the State Security apparatus, and then treated horribly as psychiatric cases. In Cuba, psychiatrists must cooperate with State Security or face reprisals, arrest, and punishment by the communist government; thus there is no opposition to speak of.

A clear pattern emerges from the cases. After arrest, the individuals were usually taken to Villa Marista State Security Headquarters for harsh interrogation, then to the Havana Psychiatric Hospital (also known by its old name, Mazorra) where they underwent unspeakable terror. They were not taken to the meticulously polished floors and corridors of the Paredes ward, where foreign dignitaries go to see the marvelous advances in psychiatry in the Cuban health-care system, but to the horrible Salas Carbó-Serviá and Castellanos wards, which are under the control of State Security.

In those dreadful wards it became obvious that the “patients” were not confined to be treated for “mental illness,” but rather to be terrorized. Some were placed days, weeks, or months among those judged criminally insane to coerce them to submit and conform to the dictates of State Security. Others were forced to ingest large amounts of psychotropic drugs (including Thorazine and other phenothiazines) or to undergo even more barbaric “treatment” with electroconvulsive therapy (ECT), usually without anesthesia or muscle relaxants, under the supervision of a sadistic orderly named Heriberto Mederos, who was actually a State Security agent nicknamed “El Enfermero.”

Every morning at 5 o’clock Mederos and his sadistic assistants, one of whom was nicknamed “El Capitán,” would select the unfortunate ones who would undergo ECT after being doused with cold water (for better electrical conduction!) and thrown on the hard cement floor where the procedure was performed. El Capitán would later sodomize young prisoners. Others would be brutally beaten. One of them was found hanged and incinerated with gasoline.

Psychiatrists were sometimes present. They would interview the prisoners, classify them, and sometimes approve of the “treatment.” Other times they would admit to the prisoners in private that they had not specifically ordered their medication, torture, or rehabilitation. After their detention and confinement patients would be suddenly “dismissed” and transferred to prisons with or without a diagnosis. They would be told they had been “tried in absentia” and sentenced to long terms in such notorious prisons as Combinado del Este, La Cabaña, El Príncipe Castle, El Morro Castle in Havana province; other prisons or mental hospitals such as the Gustavo Machín Psychiatric Hospital (the old Jagua) in Santiago de Cuba; or other facilities throughout the island.

Charges brought against the dissidents included anti-regime activity or trying to leave the country illegally. The case of Nicolás Guillén, the nephew of the former poet laureate of Cuba by the same name, is noteworthy. He was accused of “ideological deviationism” for making a short agricultural film, Arabian Coffee, which contained a scene of Fidel Castro climbing a mountain while the Beatles’ song “Fool on the Hill” played in the background. Guillén was picked up by State Security and taken to Villa Marista, held without trial, and interrogated for six months. Hehad at least eight sessions of ECT without anesthesia. Although he had fought in the Revolution, he was in and out of prisons and psychiatric hospitals for almost 20 years, from 1970 to 1989, until he was finally allowed to emigrate to Miami where he lives today as an artist.

Languishing in Prison

Most amazing of all is that, although these cases were verified by at least two sources, in some cases by civil rights organizations in the United States such as Freedom House, Of Human Rights, and Americas Watch, as well as international groups such as Amnesty International and the United Nations Human Rights Commission, these cases have not received the attention they deserve. They represent only a small number among the thousands of known Cuban political prisoners languishing in Cuban jails.

The evidence is overwhelming that Cuban psychiatry is totally subordinate to the nefarious purposes of Castro’s communist government. In the past, the World Psychiatric Association (WPA) has refused to investigate these charges because “complaints are examined in association with the WPA Member Society in the country in question. As the WPA has no Member Society in Cuba, we cannot examine the complaint appropriately.” Perhaps it is time for this information to become widely available to the American public so that a cry for justice will be made.

Phnom Penh, Cambodia—The white monument juts up 40 feet or so, dominating the surrounding fields and trees. From a distance it looks like it could commemorate most anything—a military victory, important statesman, or historical event. But this monument is different. It is filled with skulls.

On April 17, 1975, Phnom Penh fell to the Khmer Rouge. As in Vietnam, an American-backed regime—corrupt, undemocratic, leaderless—collapsed in the face of determined nationalistic communists. In Vietnam the result was repression and poverty. In Cambodia it was slaughter.

The Khmer Rouge, led by Brother Number One, or Pol Pot, summarily executed leaders of the old regime, emptied the cities, forced everyone into communes, and launched social engineering on a vast scale. Before being ousted by a Vietnamese invasion less than four years later, the Khmer Rouge had killed as many as two million people, an astonishing one-quarter of the population.

The number numbs. Hitler, Stalin, and Mao each murdered more people. But none managed to slaughter one-quarter of his nation’s population.

Pol Pot’s reign of terror filled the country. Some regions, particularly Ratanakiri province, the home base of the Khmer Rouge, suffered less than others. But four in ten residents of Phnom Penh are thought to have died.

Yet mass murder seems more a statistic than a tragedy. A thousand, a million. What do such numbers mean without individual victims?

Those victims are evident at Choeung Ek, known simply as the Killing Fields. Fifteen kilometers outside of Phnom Penh—down a country road, past shacks and homes, next to a school—are the grounds in which some 20,000 people were buried.

Only 86 of 129 mass graves have been excavated. The 86 have yielded 8,985 victims, whose skulls and bones are stored in the 17-level monument. Atop the large holes are signs listing the number of bodies—450 in one about 20 feet long by ten wide, for instance. “Many holes, same, same,” explained my guide.

But there’s more. Stub your toe on the path in between holes and you’re not likely to find stones. It is more likely the tip of a leg bone or a jaw poking through the dirt.

The Khmer Rouge didn’t just murder. They did so as painfully as possible, using axes, poles, hammers, and knives. Babies were simply swung against a tree. No one was immune from revolutionary “justice.”

However, Choeung Ek was the end, not the beginning. Most of those buried here started in Phnom Penh, at Tuol Sleng prison.

Tuol Sleng sits in an area scarcely bigger than a football field and began life as a high school. But in May 1976 the Khmer Rouge established Security Office 21, or S-21. Its purpose was to expose and exterminate enemies of the regime.

Photos of the Living

Choeung Ek brutally overwhelms through its pile of skulls. Tuol Sleng is even more powerful. It features photos of the living as well as of the dead.

The Khmer Rouge were nothing if not meticulous. They kept arrest and execution records and filed confessions; they also numbered and photographed incoming prisoners, often in profile as well as in front.

It is the images of the living that haunt. Men and women. Boys and girls. Babies. The photos line the walls. Four roomfuls. Faces of people. Once alive. Now dead.

A few look defiant, smoldering hatred evident in their eyes. Others look bewildered. Many radiate fear, eyes wide at the fate they knew to be before them. One seemed to be crying, almost begging for his life.

But most look dead. Their hearts beat, blood flowed, and nerves transmitted pain, but their eyes were lifeless. Empty. Their humanity had been wrung out of them and casually tossed aside.

One picture is particularly unnerving. A man sporting the number 162 sits with a vacant stare. He knows only too well that his life will soon be over.

Tuol Sleng was, first and foremost, an interrogation center. Khmer Rouge interrogation meant torture. And torture often meant death.

Tools on Display

The tools are all on display. The metal bed frames and wooden slab to which inmates were shackled, then beaten. The metal and wooden tubs in which people were drowned. The high bar from which inmates were dangled. The boxes that housed the scorpions that were set on prisoners. The electrical wires with which shocks were administered. And the clubs, axes, hammers, shovels, and knives used to punish and kill.

Although death was the ultimate end, the Khmer Rouge thoughtfully strung barbed wire around the cellblocks to prevent prisoners from committing suicide. You would die, but only when the party thought the time was right.

And that time was only after you confessed. As Martin Stuard-Fox and Bunheang Ung explain in their book, Murderous Revolution, enemies “were never simply arrested and shot: authorities had first to obtain confessions which would justify their arrest, and thus confirm the omniscience and justice of Angkar [the Communist Party] in arresting them.”

If there was any justice at Tuol Sleng, it was that Khmer Rouge cadre were among the victims. This revolution, like so many revolutions before it, consumed its own.

These memorials in Phnom Penh reflect only the small tip of a pervasive system of murder. Reports French scholar Henri Locard, “From 17th April, the entire country was to become in a way one big prison.”

There were three waves of imprisonments and murders. The first was directed against almost anyone associated with the fallen Lon Nol regime. In general, the victims were murdered outside of any formal prison.

The second bout of repression began in the latter part of 1975 and was directed against the same classes of people, including professionals and civil servants. Many of these victims had either been denounced by enemies or prisoners, or had revealed incriminating details of their pasts when writing their autobiographies for the new rulers. These arrests coincided with establishment of a national prison network.

The final round of brutality began in 1976 and, explains Locard, “swept through all classes of the new society,” including “the Khmer Rouge cadres and military personnel themselves. All categories of the revolutionary society were soon engulfed in the maelstrom of repression as the regime was getting more and more deranged and saw ‘enemies,’ khmang, everywhere.” Even at the information and foreign ministries in Phnom Penh.

But most of Cambodia’s dead, at Choeung Ek and elsewhere, were innocent—the victims of totalitarian egalitarianism, in which life means nothing and the collective means everything. Alas, the world is full of monuments to incredible evil cloaked with the rhetoric of humanity. Few are more moving than Cambodia’s Killing Fields.