October 28, 2019

"Tyranny Comes Home" Symposium: Miriam Cohen

Commentary by Miriam Cohen

Miriam Cohen

On August 30, 2018, the F. A. Hayek Program for Advanced Study in Philosophy, Politics, and Economics at the Mercatus Center at George Mason University hosted a PPE Workshop Book Panel on Tyranny Comes Home: The Domestic Fate of U.S. Militarism by Christopher J. Coyne and Abigail R. Hall. The following symposium is comprised of edited versions of the commentary by Christopher J. Coyne (Economics, George Mason University), Miriam Cohen (Law, Université de Montréal), and John Tirman (Political Science, Massachusetts Institute of Technology) from that book panel event.

Thanks for inviting me and giving me the book, which is highly interesting. I have a few comments about the book and a few questions that maybe Christopher J. Coyne can answer later on or that we can discuss.

Tyranny Comes Home is a thorough, serious account of the domestic impact of American interventions in foreign policy. It is very well-researched and discusses crucial, often overlooked, U.S. militarism and the human costs of intervention. To me, it’s truly an eye-opening account that should be read by every engaged citizen who cares about the future of the nation and global affairs. It’s also a breath of fresh air for me: I’m a legal scholar who often reads about intervention or use of force through the international law scholarship on these issues. And when we talk about use of force, we talk about its exception in international law — you have the two exceptions on when you can use force in international affairs — and so it goes on.

So, for me to read a book like this, that really makes the link between what foreign intervention brings back home and how it can bring about the loss of domestic liberties, was a breath of fresh air. It was quite enlightening to think of interventions in that way. And, it’s a pretty powerful argument when you want to try to convince different audiences, that are not legal scholars. When you try to say, “Well, this intervention was unlawful because it’s not self-defense, it wasn’t authorized by the United Nations,” you can lose a lot of people that say, “But who cares about that?” When you start thinking about it as, well, we’re intervening in these foreign wars but we’re also actually losing liberties as citizens in America, then I think you really resonate with a much greater audience.

I think they make a powerful argument about the boomerang effect and the loss of American rights and liberties. To me, this link between the way that the American army sometimes conduct, or often conducts, itself in interventions and wars and the values and international norms that exist was very evident. But, it wasn’t evident in the sense of “do American people realize that if you’re accepting the way that the military is conducting itself in other countries that means there is a disconnect between the way you view your values and your rights as American citizens?”

“The book is also a reminder that American foreign interventions are not like Vegas. What happens during American interventions does not stay in foreign lands, it comes back to U.S. soil and has detrimental effects on the American people.”

How can you think of having due process when you’re not granting due process when acting abroad? So, reading the book made me think about this famous poem by Martin Niemoller, “First They Came…” So, we think about interventions as “First they came for the Jews, but I wasn’t a Jew, so I wouldn’t speak up.” So, well, why am I going to speak up about this war that is far away from my country, victims that I don’t know the details of? But once you start thinking about it, these wars have a boomerang effect that’s coming back to America. Now, suddenly, I can lose rights that I always thought were very crucial to my daily life, and then I start thinking about the costs of these interventions.

The book is also a reminder that American foreign interventions are not like Vegas. What happens during American interventions does not stay in foreign lands, it comes back to U.S. soil and has detrimental effects on the American people. Making this link in such a clear, engaging, and well-written way, to me, is a very important contribution to the literature.

I also think the book is an important piece of scholarship in the sense that it’s not going to only call on economists or people in this area of research — but also just more generally, hopefully, the American public that will look at the book.

I remember reading it during the summer and my husband, who’s not a legal scholar, an economist, or political scientist was saying, “Oh, this is a very interesting book. When you finish, can I read the book?” And thought, “I think that’s the point, right?” You want the book to call the attention of the more general population as well, in the sense that it has an important message that often is overlooked. It happens out there. It’s not — they came for them and not for me, “Why should I care? Why should I speak up?” But when you start thinking about it as it’s happening there but it’s coming back to us and we’re losing our liberties here, then I think you get more engaged citizens.

To me, one of the greater evils and dangers to society is when citizens stop caring about loss of rights. “It’s okay that this person didn’t have due process because this person is a criminal, he’s a terrorist.” It just goes on as a snowball. And then, eventually, you might be the terrorist or you might be the criminal and you lose your liberty this way.

It makes me think about my first day in law school when my criminal law professor said, “Why do we need fair criminal laws? Why don’t we just put the age of criminal responsibility for 12, 11 year olds or why not 10 year olds because we have so many people that are young offenders that are just getting out easy?” And then he said, “Well, criminal laws are made for all of us. It could be you or I that eventually are subject to a criminal law so we have to have fair laws.” So here, it’s the same situation. We can think about foreign interventions in the sense of, it’s happening there, it’s great because we’re making sure that we’re a more secure society, but then it can come back and then eventually American citizens will be the ones subject to loss of liberty. And I think you make a very strong case when we talk about the surveillance state where anyone and everyone can be subject to this very important loss of privacy and other liberties.

I also have some general comments about certain parts of the book. I was reading the first part of the book, where Coyne and Hall make the case and explain the theory of the boomerang effect, and it made me wonder about the case studies of specific American interventions. I’ve read Coyne’s previous books and I know they’ve done a lot of research on humanitarian intervention or other kinds of interventions. I was thinking of the juxtaposition with specific examples of recent interventions or if there was any one particular example, or a few, that made them really think about this book and think about the case studies that they use in the second part of the book. Or if it was a more generalized theory as they do this historical account of American interventions.

I also wondered what made Coyne and Hall select the case studies that they did, in terms of the loss of liberties. Before I got to the part where I read the case studies, I was thinking about how this is a very interesting theory and might explain a lot of things that are happening in American society. And I thought of perhaps over criminalization and mass incarceration — does the theory also apply to that? Are we more susceptible to accept mass incarceration because of this boomerang effect that is imported back from foreign interventions? I’m also thinking about domestic policies against foreigners and other very specific recent policies. Have we created this state of affairs where these policies are being more accepted than they would have been if we didn’t have such an interventionist policy? Then one other point was the proliferation and obsession with weapons and even more technology related to weapons, with 3D weapons and so forth. These are just some questions and obviously in a book you can’t think of every single case study. I think my question is not why didn’t they do these case studies but what made them select the ones that they did?

“… imagine a world without international law, without the Convention against Torture, the Convention against Genocide and so forth.”

I was also wondering to what extent the analysis takes into account the change in the administration and whether the theory would predict the outcome of the recent presidential elections and if it can be used to explain the policies that are being adopted by the current administration. Would they change anything in your analysis or the main argument knowing what we know about domestic policies? Does it apply even more so in the current context? Because I realized the book is published in 2018 but the research probably started a few years ago.

One intriguing point for me was their analysis on international law and constraints starting on page 63. I think I have a bit more of an optimistic view of the international legal system and maybe that’s because that’s what I do day and night. I read about international law. And I have to think that international law is a ‘thing’ and it’s a ‘law’ and it’s not just international relations that exist; otherwise, I’d probably be out of a job! My point is that I don’t disagree that international constraints are weak, especially related to the United States, but it also connects to another theme that I wanted to touch on, which is institutional reform.

When we think about international law and its weaknesses, I often think about institutional reform and specifically looking at the United Nations. If the subject is use of force and wars, one way that you can use force is with United Nations’ authorization. With the system the way it is and the United States having a veto in the United Nations, we’re often at a deadlock. That explains a lot of why the system is the way it is and it’s not a perfect system in any way, but also imagine a world without international law, without the Convention against Torture, the Convention against Genocide and so forth. Yes, there’s still genocide and there’s still torture but there are strides that are being made. When thinking about the weak constraints of treaties not being forcible and so forth, I also think about looking at international law from an institutional redesign and reform point of view.

With more specific comments, Coyne and Hall mentioned on page 7 that the goal of foreign intervention is irrelevant for the analysis. At first, I reread it and I thought that’s an interesting point. I wonder if that’s always the case. And I get the argument as to why it’s irrelevant for the analysis because I agree that the methods implied in interventions are central to the analysis. But in a way, I was wondering, does it not matter if you’re intervening in a context of Iraq or in a context of what we’re seeing now in Yemen, for example? Would it not matter the kind of context that the U.S. military is intervening?

“If we lose the judiciary, then that’s a major concern in terms of loss of liberties.”

And then I think my second-to-last point is — which again is a very interesting point to me — that I really liked how, for example on page 45, that you mentioned that the judiciary does not always passively endorse the activities of the state and then you cite Boumediene and Bush as one of the cases. I wonder also if those cases are kind of a treasure of the past and if we will still have those types of cases. I look at recent developments in Supreme Court appointments and I wonder if Boumediene will ever come again. If we have a case like that again, will it become a much more worrisome decision than when we had the recognition of habeas corpus rights and so forth. When I talked about the danger of losing citizens’ hearts and minds, and what Coyne mentioned in the quotes at the end of his presentation, I think also another danger is the loss of the judiciary.

Again, I’m a believer in judges’ powers to be strong checks and balances on executive powers and what the military can do abroad. If we lose the judiciary, then that’s a major concern in terms of loss of liberties. And losing the judiciary in the sense that if citizens are accepting that the appointment of judges is okay because it’s not going to matter for my own liberties, then we’re really in trouble. I can go on and cite examples of situations in Canada and in Guantanamo Bay, which is an example that comes up often. There was the case of Khadr, Omar Khadr, who was a Canadian citizen in Guantanamo Bay, that connects to the point of the application of the Constitution abroad. The Supreme Court was called on to decide this case by the lawyers of Khadr who brought the case in the Supreme Court of Canada and they said, “Generally, the Charter of Rights and Freedoms, the Constitution wouldn’t apply extraterritorially in Guantanamo Bay. But he is a Canadian citizen and the agents of the government were participating in the system, collecting evidence, and handing over the evidence to the American citizens, to the American officials there, and that would be against our values, that wouldn’t be able to happen in Canada.” So in that sense there is an exception in that the Charter of Rights would still be applied in that situation. It was, in a way a victory, of the judiciary going back and saying, “Look, there’s this rule that generally the constitution wouldn’t apply extraterritorially but, in this situation, it would still protect the rights of this Canadian citizen because of the involvement of Canadian officials.”

My last point is on management of risks, and that connects to one of Coyne and Hall’s conclusions of the price of living in a free society. I think this is a brilliant conclusion. Citizens have to realize that there is a cost, there is a price to live in a free society in the sense that, yes, there will be risks of terrorism but the response to these risks are not, “Let’s just get rid of all rights and liberties so that we fight these risks.”

Management of risk, for me, is in the sense of how can we accept the risk of losing very fundamental rights and freedoms, due process, subjecting people to torture, and so forth because of a risk or a potential risk of being a victim of terrorism. When I read all the studies that they cited, the latter is a very minute risk. It’s a very miniscule risk — it’s not like I go outside now and I might be bombed by a terrorist on the George Mason University campus. It’s a bit like you’re afraid of flying but if you look at studies, you’re much more likely to have an accident going to work in your car than flying an airplane. We’re willing to spend a lot of money trying to recover from hurricanes but we’re not willing to spend money to put into effect the Paris agreement, so it’s this idea of, what risks are we willing to take and shifting a little bit this idea of risks?

I will stop here so that we have time for discussion. And I wanted to thank you again for the opportunity. It’s a very interesting book and I invite you all to have a copy and read it.

Read more of the symposium here:

· Tyranny Comes Home: An Overview by Christopher J. Coyne

· Tyranny Comes Home: Commentary by John Tirman

To learn more about the F. A. Hayek Program for Advanced Study in Philosophy, Politics, and Economics, visit hayek.mercatus.org.

About the Author

Miriam Cohen is assistant professor of law, at the Université de Montréal.