The Boston Globe has an interesting article on a conference on secession co-sponsored by southern far-right secessionists (the League of the South) and far left secessionists from New England (the Middlebury Institute in Vermont, headed by longtime left-wing activist Kirkpatrick Sale).

I am not opposed to secession on principle. It can, in some circumstances, be a useful check on excessive central government power in a federal system. However, secession movements must be evaluated on the basis of the types of new governments they intend to establish. And, to put it mildly, I'm not a big fan of either of the ones on offer here.

The article also mentions a controversy over whether the neo-Confederate League of the South is racist. Based on this extensive report from the Southern Poverty Law Center (a watchdog organization that tracks racist groups), I'd have to say that they are.

To be clear, I don't think there is anything intrinsically racist about the idea of secession per se. But there are and have been people who support secession for racist reasons, and the League of the South falls in that category.

Critics of private military contractors sometimes claim that hiring "mercenaries" increases the risk of a military coup against the government. Perhaps private contractors don't have the same degree of loyalty to the state as the uniformed military does.

It is indeed true that mercenaries have sometimes launched coups against the governments that hire them (though most of the cases date back to Renaissance Italy or even earlier). However, the argument is another example of the fallacy I noted in my previous post: failing to apply the same standards to both private and governmental forces. Critics who claim that private contractors pose a special threat in regards to coups usually ignore the long and extensive history of military coups launched by government forces. Many of these coups are far more recent than any similar action by mercenaries. Virtually every country in Latin America and Africa has had at least one coup launched by government military forces since World War II. And they are far from unknown in many other parts of the world.

Moreover, there is some reason to fear that government military forces are actually more likely to launch a successful coup than private ones. Government forces usually have greater perceived legitimacy with the public than mercenaries and can more easily portray themselves as representing the "true" will of the nation against a supposedly corrupt civilian political establishment. That is in fact the usual propaganda line of military coup leaders in Latin American states. It is much harder for mercenaries to make similar claims in a believable way.

In the United States, I think there is very little danger of a coup by either private or government forces. Thus, this issue should not play a significant role in our debate. In some other countries, however, the issue is more significant. And it is important to properly weight the risks on each side.

Recent revelations that private military contractors employed by Blackwater may have committed atrocities and other abuses in Iraq have led many to call for an end to the use of private military contractors and their replacement with government personnel. Unfortunately, many of the anti-Blackwater/anti-privatization arguments are beset with typical fallacies that bedevil the debate over the role of government in society. To be clear, I don't know whether the use of private contractors should be abolished or not. I lack the expertise to say. Perhaps Blackwater should be fired; perhaps all private military contractors should be. Blackwater and its rivals do not actually represent full privatization (complete replacement of the government by the private sector). They represent a form of contracting out - the government hiring private contractors to do work it mandates. Nonetheless, several of the standard arguments against the use of private contractors contain major fallacies that often recur in debates over the role of government.

I. Failure to Apply the Same Standards to Both Alternatives.

Let's assume that private military contractors really do commit atrocities (I certainly don't doubt that it happens). That is not enough to prove that privatization is undesirable. After all, government military forces - including, sad to say, American ones - also commit atrocities. Yet, when US military personnel engage in such misconduct, no one seriously claims that that fact "proves" that they should all be replaced with private contractors.

Whenever we wage a large-scale war, especially one fought in a setting where it is sometimes difficult to tell civilians from enemy combatants, it's inevitable that some atrocities will be committed by our forces. The key question is: what institutional arrangements will minimize their occurrence? Privatization critics must do more than prove that Blackwater or other firms commit atrocities or engage in coverups. They must show that they are systematically more likely to do so than government employees would be in their place. Unfortunately, this comparative aspect of the question is usually neglected. Too often, privatization critics implicitly compare hypothetical perfect government employees with real-world, imperfect private contractors.

II. Double Standards in Assessing Motives.

Similar double standards apply to the way that privatization critics analyze motives. For example, private military contractors are often attacked as "mercenaries" interested only in profit. The problem here is that government personnel may also be motivated solely or primarily by self-interest. There is a reason why the Pentagon offers a wide variety of material incentives (e.g. - free college tuition, health and welfare benefits, etc.) for volunteers to enlist in the army and for key personnel to stay in. This is not to say that government military personnel are motivated solely by personal gain. Far from it. In reality, they surely have a wide range of motivations, including in many cases a sense of patriotic duty.

But the same is true of private military contractors. After all, most of the security personnel employed by Blackwater and its competitors are in fact former government soldiers, often ex-special forces. It would be surprising if such individuals were completely selfless patriots during their days in the military and then suddenly became self-seekers motivated solely by money once they sign on with Blackwater. In reality, they are probably more or less the same kinds of people in both phases of their careers. Just as military personnel may be motivated by a combination of patriotism and self-interest, so too may private contractors. Putting on a government uniform doesn't make selfishness disappear, and taking it off doesn't make it magically come back.

A closely related fallacy is the implicit assumption that warriors motivated by personal gain will necessarily commit more atrocities and abuses than those motivated by patriotism or other selfless considerations. This is far from obvious. Self-interested "mercenaries" may choose to refrain from atrocities precisely because they hurt the bottom line: by generating negative publicity for the firm and giving the local population incentives to target its personnel. Selfless motives, by contrast may in some cases increase the risk of atrocities (e.g. - if soldiers feel that atrocities will help them win, or if a strong sense of solidarity amongst themselves leads them to "dehumanize" the enemy). Whether self-interested soldiers will commit more abuses than selfless ones is an empirical question, not one that can be settled by a priori assumptions.

Thus, we have two unsupported assumptions about motives and privatization: assuming that the private sector is necessarily driven by self-interest alone, while government officials care only about the public interest; and assuming that selfless motives necessarily lead to better results. Either or both claims may actually be true in a particular instance. But they need to proven, not just asserted.

III. Ignoring the Potential Benefits of Competition.

If Blackwater or some other private contractor performs badly, it can be fired and replaced with one of its competitors. This is an important incentive for contractors to do a good job. By contrast, it is extremely difficult to abolish a failing government bureaucracy or - in many cases - even to reduce its funding.

The advantages of competition are important benefits of contracting out that have mostly been ignored in the Blackwater debate. They don't necessarily outweigh all other considerations, but they should certainly be a much bigger part of the discussion.

IV. Appeals to Mythical Tradition.

Finally, some privatization critics claim that the use of "mercenaries" violates a supposedly longstanding American tradition of hostility to military privatization, one that allegedly goes back to the Founding Fathers. They conveniently ignore the fact that the Continental Army in the Revolutionary War relied heavily on European mercenary officers, many of whom were motivated by profit more than principle. Without them, we might not have won our independence. For example, the German mercenary Baron von Steuben was the officer in charge of training the Continental Army, and credited by George Washington with playing a decisive role in the war. The United States also relied heavily on privateers to raid British seaborne commerce in both the Revolution and the War of 1812

The fact that the Founders made extensive use of mercenaries and privateers doesn't prove that we should permit military privatization today. Maybe the Founders were wrong, or maybe the utility of privatization has declined since the 1780s. It does, however, show that military privatization doesn't go against tradition in the way critics allege.

UPDATE: There is a common myth that military contractors in Iraq are exempt from liability for crimes they commit. This fallacy is refuted in this post by Laura Dickinson at Balkinization (a blog that, to understate the point, is not especially sympathetic to either privatization and Blackwater or the Bush Administration). In any event, exemption from liability is surely not an inherent attribute of contracting out. Congress can adopt laws imposing whatever liability rules it wants on military contractors. Alternatively, the government can insist on including liability standards in the terms of the contracts themselves.

According to this Houston Chronicle article, several members of the House Judiciary Committee have expressed interest in potentially opening up an investigation into the possiblity of impeaching U.S. District Judge Samuel B. Kent, who has a long history of dubious conduct, culminating in a recent sexual harrassment charge, that led to an extremely rare reprimand from the the US Court of Appeals for the Fifth Circuit Judicial Council.

Impeachment would certainly be justified if the accuser's lawyer (quoted in the article) is right to claim that Kent's alleged harrassment (the details of which are not publicly known) amounted a criminal offense.

Alexy II, Patriarch of the Russian Orthodox Church recently made a speech before the Parliamentary Assembly of the Council of Europe denouncing homosexuality as "an illness" and a "distortion of the human personality, like kleptomania." He also claimed that homosexuality is part of "a new generation of rights that contradict morality, and [an example of] how human rights are used to justify immoral behavior."

Such homophobia is hardly unique to Alexy and his Church. However, they are in a particularly poor position to lecture the Europeans on human rights in light of the fact that the Russian Orthodox Church is hand in glove with Vladimir Putin's repressive regime, endorsing that government's authoritarian policies and even using the power of the state to harrass other religious groups and suppress art they disapprove of.

Unfortunately, the ROC's current policies are an extension of its long and disreputable history of collaboration with both czarist and Soviet tyranny in Russia. Although there were certainly individual priests and lay activists who became dissidents under Soviet rule, the ROC leadership generally supported the communists once the latter consolidated their grip on power and removed those priests and bishops most opposed to their rule. As the Library of Congress puts it, "the church espoused and propagated Soviet foreign policy and furthered the [forcible] Russification of non-Russian believers, such as Orthodox Ukrainians and Belorussians."

There is, perhaps, a limit to the amount of condemnation the ROC deserves for its record in the Soviet era. Open resistance to the communists would have landed anyone engaged in it in a Gulag or worse; that degree of heroism is too much to expect as a matter of course. However, the fact remains that the ROC collaborated with the communists to a much greater extent than most of the Soviet Union's other religious groups (many of which engaged in active or at least passive resistance) and its record also pales in comparison with that of the Catholic Church in Eastern Europe, which played a leading role in organizing resistance to communist rule. The ROC's conduct under communism may deserve only limited censure, but it certainly does not justify placing any confidence in the Church's moral judgment.

And today, the ROC should reexamine and repudiate its past and present collaboration with tyranny before its leader presumes to lecture the Europeans on "morality" and human rights.

UPDATE: To avoid possible misinterpration of my point, I am not arguing that Alexy's position on homosexuality is wrong merely because he and the ROC have been egregiously wrong on other issues. That would be a logical fallacy. However, Alexy's critique of homosexuality is based not on logical reasoning but on an appeal to the moral authority of his Church and his "brothers in faith;" and, presumably, he was invited to address the Council of Europe because of his position in the ROC religious hierarchy, not because he has any independent standing as a deep thinker on morality and human rights. The ROC's overall record on morality and human rights is therefore relevant to our assessment of his speech. And that record is far from admirable.

UPDATE #2: I was going to write a brief response to some of the points made in the comments. But nearly all the things I wanted to say have already been said by other commenters. So, I will note just two points. First, I am struck by how so many more people are interested in the pros and cons of using the term "homophobia" (a tangential issue in the post) than in the ROC's longstanding record of collaboration with tyranny (the main focus of the post). Second, it is true as some have pointed out that many of the ROC's pre-1917 leaders were repressed and replaced by the communists. I noted that in the original post. This, however, is not enough to get the ROC fully off the hook for its record under communism. Other Soviet and East European churches were subjected to comparable or even greater repression under communism, and yet most did not end up collaborating with the communists to anything like the same degree. And, of course, the ROC has collaborated with Putin's tyranny, notwithstanding the fact that the risks of refusing to do so are much less than in the communist era.

UPDATE #3: It is perhaps worth noting that there is considerable continuity between the ideology and personnel of the Soviet-era ROC and those of today. For example, Alexy II was himself a high-ranking archbishop and Metropolitan under the Soviets - a position he could not have reached had he been opposed to the ROC's close relationship with the Communist regime. Thus, the Church's actions under communist rule are not mere ancient history, and remain relevant to any evaluation of its moral authority today.

The National Organization For Women is asking Congress to investigate the possibility of impeaching U.S. District Judge Samuel B. Kent, who has been accused of sexual harrassment and numerous other violations of judicial ethics.

I don't often agree with NOW, but they're certainly right on this issue. However, NOW President Kim Gandy is wrong to criticize the US Court of Appeals for the Fifth Circuit for not giving Kent a more severe punishment:

“The idea that any employee who has been found to engage in sufficient misconduct to justify a reprimand and a suspension from employment would then continue to draw a full salary from the taxpayers during that suspension is a shocking idea,” Gandy said. “It’s an outrage. He could go travel the world for four months. That’s not a punishment, that’s a reward.”

Article III of the Constitution prevents the Fifth Circuit from docking Kent's pay or permanently removing him from hearing cases. The only way to achieve that result is impeachment by the House of Representatives followed by a conviction in the Senate.

The publication of Clarence Thomas' memoir will focus new attention on the controversy over who was telling the truth about Anita Hill's charge that he sexually harrassed her. To my mind, the most interesting aspect of this debate is the way in which nearly all conservatives seem to believe Thomas, while nearly all liberals believe Hill. The few exceptions are striking precisely because they are so unusual.

Since only Thomas and Hill themselves really know what happened with any certainty, this degree of polarization is striking. Nothing in conservative ideology precludes the possibility that individual conservatives might engage in boorish and morally reprehensible private behavior of the sort Thomas is accused of; similarly, liberal ideology does not deny the possibility that a person in Hill's position might lie for political gain. Given the murkiness of the underlying facts, unbiased observers would not split so sharply along ideological lines on this issue. You would expect to see at least some significant number of liberals who believe Thomas, some conservatives who believe Hill, and many in both camps who aren't sure who to believe.

Some of the polarization was probably just a matter of political posturing. Conservatives did not want to lose a valuable Supreme Court seat (as they might have, if Thomas' nomination had been defeated and President George H.W. Bush were forced to nominate a centrist or liberal replacement comparable to Souter or Anthony Kennedy). Liberals, of course, sought Thomas' defeat for similar reasons.

However, most of the polarization over Thomas-Hill probably wasn't feigned. It was instead a consequence of the all-too-common assumption that our ideological adversaries are not only wrong but also evil - or at least far more likely to be so than those who agree with us. If you believe that liberals are, on average, likely to be morally corrupt, then it would be rational for you to assume that a liberal is more likely to be lying than a conservative and thus to automatically believe Thomas over Hill even in the absence of clear proof. And vice versa if you hold the reverse view.

I have previously criticized the unthinking equation of political ideology with moral virtue here, in the context of explaining why many people are excessively hostile to the idea of dating someone with a different political ideology. The two situations are very different, but the same phenomenon may be at work in each case. Both blanket condemnation of cross-ideological dating and the Thomas-Hill polarization are in large part the result of our unhealthy tendency to equate ideological disagreement with moral depravity.

UPDATE: Various commenters point out that the Thomas-Hill polarization can be explained by the possibility that conservatives are, for ideological reasons, generally less inclined to believe accusations of sexual harrassment than liberals are. There is some truth to this. But it fails to account for the fact that, just a few years later, most conservatives tended to believe and most liberals denied Paula Jones' sexual harrassment accusations against Bill Clinton. In such politically charged cases, the ideology of the accuser and accused seems to determine ideologues' reactions far more than their general perceptions of sexual harrassment.

ESPN sports columnist Bill Simmons' has updated his famous column on "Levels of Losing," which categorizes defeats by the level of pain that they inflict on the losing team's fans. His categories make a lot of sense, though he's wrong to claim that Game 6 of the 1986 World Series was the most horrendous Red Sox defeat ever (that dishonor belongs to Game 7 of the 2003 American League Championship Series, which was much worse because 1) it was far more easily preventable, 2) it was against the hated Yankees, and 3) I lived through both and the pain of '86 was far less than that of 2003)).

I wonder if Simmons' categories could be applied to political and legal defeats. For example, when my side lost the Kelo case, it was a Level XVI Princeton Principle loss (everyone expected us to lose much worse and the resulting publicity benefited us more than our opponents). The Democrats' defeat in the 2004 presidential election was probably a Level XV Achilles'Heel (they had a good chance to win, but flaws in the party and its candidate undermined them). And the Republican defeat in the 2006 election was a Level IX "Full-Fledged Butt-Kicking," as everything that could possibly go wrong for the GOP did, thanks to a combination of bad luck and the Party's own numerous disastrous errors.

Houston Chronicle columnist Rick Casey has a good article on the Fifth Circuit investigation into the sexual harrassment claims against Judge Samuel B. Kent.

Casey makes two important points. First, federal law requires the US Court of Appeals for the Fifth Circuit to keep secret the evidence obtained in its investigation. For this reason, it is wrong to infer that the Fifth Circuit judges are keeping the information secret in order to somehow help Kent cover up his misconduct. If you want to study the details of relevant statute for yourself, it is 28 U.S.C. 360.

Second, there actually isn't very much that the Fifth Circuit can do to punish Kent. Article III of the Constitution prevents them from removing him from his position or docking his pay. It is unlikely that the Circuit could impose a sanction much more severe than the (unusual) public reprimand and compelled temporary leave that they have already administered. The only way to forcibly remove Kent from the bench is by means of impeachment by Congress. That is why I suggested in my last post that the House of Representatives should investigate the charges against Kent in detail, and make a determination on whether to proceed with an impeachment vote (which would be followed by a trial in the Senate, if it passes).

Casey also argues that the evidence collected by investigations of judicial misconduct should be made public. There is some merit to his view. However, I would be reluctant to establish a blanket rule in favor of disclosure; some judicial employees or other witnesses might be unwilling to assist investigators if they knew their statements would automatically be made public. The public interest in disclosure has to be balanced against the need to guarantee confidentiality to some witnesses in cases where essential evidence might be impossible to obtain without it. I don't have the expertise needed to determine exactly where the line should be drawn. But perhaps there should be a presumption in favor of disclosure that nevertheless gives investigators the option of guaranteeing confidentiality in some cases.

I would like to comment briefly on the controversy surrounding Judge Samuel B. Kent, the Galveston, Texas federal district judge who was recently disciplined by the Fifth Circuit Court of Appeals for sexual harrassment. Since I clerked for Judge Jerry E. Smith of the Fifth Circuit in 2001-2002, it is important to emphasize that this post is based solely on publicly available information and not on any privileged information that I may have had access to during my clerkship. All factual claims in the post are based on published sources that I have linked to. Also, I should note that the post reflects only my own opinions and not those of Judge Smith or other Fifth Circuit judges.

That said, interested readers should know that this is far from the first time that serious issues have been raised regarding Judge Kent's judicial ethics. Indeed, it is no secret that Kent is a notorious figure in the Texas legal community and perhaps even nationally.

Here are a few relevant aspects of Judge Kent's record:

In 2001, the Chief Judge of Southern District of Texas reassigned 85 cases away from Judge Kent, because the cases were being handled by Kent's best friend Richard Melancon and there were allegations that Kent was engaging in favoritism on his friend's behalf. In a 2002 decision, a Fifth Circuit panel removed Judge Kent from a case because he had demonstrated open bias against and "hostility" towards one of the parties. Although it is not terribly unusual for litigants to assert that a judge is biased against them, it is relatively rare for appellate courts to accept such claims and remove the judge from the case.

In this 2001 Green Bag article, Northwestern University Law Professor Steven Lubet documented Kent's notorious courtroom "bullying," which he condemns as not only obnoxious but unethical.

I'm not sure whether Judge Kent's abuses have reached a point where Congress should impeach him. Much depends on how serious the underlying facts of the sexual harrassment incident are. So far, both the Fifth Circuit (whose personnel are bound by confidentiality rules) and the accuser have maintained a public silence about the details of the case. For obvious separation of powers reasons, the impeachment power should be used only in extreme cases. However, I do think that matters have reached a point where Congress should investigate the issue and give the possibility of impeachment serious consideration.

UPDATE: A few commenters claim that I should reveal any confidential information I might know about the Kent case even in spite of the court rules that forbid such revelations. I don't agree. Many ex-employees from both government agencies and private firms are restricted from speaking about some aspects of their work by confidentiality rules. Such rules can be overriden by a subpoena from a court or (sometimes) a congressional investigative committee. In this case, both congressional investigators and prosecutors who might wish to look into Judge Kent's conduct are likely have a fairly good understanding of how the judiciary works, and therefore could identify court employees whose testimony might be useful.

But it would be both illegal and unjustifiable for the ex-employees to violate confidentiality rules merely because they personally believe that revealing the information in question is desirable. That would undermine the public interest purposes served by the rules and would allow individual ex-officials to take the law into their own hands. If you think (as I, to some extent, do) that law clerk confidentiality rules should be less strict than they are, the proper solution is to get Congress or the Judicial Conference of the United States to change them.

As for suggestions that I am somehow covering up for Kent, if I wanted to do that, I would not have written a post likely to attract additional public attention to his misconduct.