An old saying goes “Truth is the first casualty in war.” I’m not so sure. I think I’ve got a contender for the first casualty that’s either ahead of truth or tied with truth: rule of law.
A basic rule of law principle is that governments don’t violate the rights of innocent people. But various governments around the world, including the U.S. government, seem to be relishing the chance to go after people in Russia who are thought to support Putin, even if they have violated no law.
In his State of the Union address on Tuesday night, President Biden said:
Tonight, I say to the Russian oligarchs and the corrupt leaders who bilked billions of dollars off this violent regime: no more.
The United States Department of Justice is assembling a dedicated task force to go after the crimes of the Russian oligarchs.
We’re joining with European allies to find and seize their yachts, their luxury apartments, their private jets. We are coming for your ill-begotten gains.
Hold on. If you’re going after crimes, you should show that there is a crime before you take what you claim are the proceeds of the crime. Make your charges, take them to court, and then make your case. Until then, hands off their gains.
Note 1: It looks as if the feds are going to use civil asset forfeiture to go after the assets. That’s just as contrary to rule of law, properly understood, for foreigners as it is for the fed’s many domestic victims. I give money to the Institute for Justice due, in part, to the fact that they fight back against asset forfeiture.
Note 2: Calling them “oligarchs” proves nothing.
The picture above is of a yacht owned by a company linked to Igor Sechin and seized by the French government.
Postscript:
I see that Tyler Cowen agrees with me. Good for him.
READER COMMENTS
Airman Spry Shark
Mar 3 2022 at 11:15pm
Soviet Union?
David Henderson
Mar 4 2022 at 12:00am
Corrected. Thanks.
Rebes
Mar 3 2022 at 11:29pm
Revealing that you call Russia the Soviet Union.
I disagree with the substance of your post, though. The most important short-term goal right now is to stop the senseless violence and slaughter in the Ukraine. Putin has worked hard to gain international recognition for Russia, see the Winter Olympics and the Soccer World Cup, and one psychological weapon is to illustrate to him that Russia will be a pariah in the world if the slaughter doesn’t stop. Stepping on the toes of a few of Putin’s billionaire friends is a minor digression compared to the death of thousands of innocent Ukrainians.
Lliam Munro
Mar 4 2022 at 3:10am
It’s not the offence caused to the Russian billionaires that David is objecting to, nor their welfare he is seeking to protect. Rather it is the damage to our own institutions he is objecting to and the well-being of citizens in the west he seeks to protect.
Jon Murphy
Mar 4 2022 at 7:05am
I’d be careful with this line of thought. Law exists to protect us; it is a shield, not a sword. If one is willing to toss away Law to accomplish some other goal, no matter how noble that goal may be, then one will have nothing to protect themselves once the prosecution turns for them.
I am reminded of one of my favorite scenes from one of my favorite movies, A Man for All Seasons:
Jose Pablo
Mar 7 2022 at 11:40pm
The “reverence” for the Law cannot be (and should not be) “content independent”. If a law is enacted allowing (or even forcing) individuals to kill people of a certain religion or forcing individuals to have only one child, the “moral individual” is not only “allowed” to not comply with this law; he is morally obliged to actively promoting the noncompliance of others.
The fact that a behavior is proscribed (or forced) in a law does not prevent the debate about the morality or the utilitarian value (whatever the criteria we choose for a positive discussion on the topic) of the aforementioned behavior.
From a moral or utilitarian perspective there is not any difference between a Ukrainian civilian killed in the outskirts of Kyiv and an American civilian killed in the outskirts of New York.
Would we still be discussing the “terrible breach of the rule of law” consisting in seizing these assets, if the Russian army were killing New Yorkers in Brooklyn? … I very much doubt it.
So, all this tearing of one’s clothes about the breaching of the rule of law is, I have come to believe, equivalent to say that the life of a Ukrainian in Kyiv is less valuable than the rule of law.
Since, very likely, the same “cloth tearers” would be keeping their cloths intact in the case of the Russian army killing New Yorkers in Brooklyn, they believe, I have to logically conclude, that the live of a New Yorker killed in Brooklyn is, somehow, more valuable than the life of a Ukrainian killed in Kyiv.
I found this proposition very difficult to defend from both a moral and a utilitarian perspective.
Capt. J Parker
Mar 8 2022 at 10:59am
The closest analogy that I can think of to “if the Russian army were killing New Yorkers in Brooklyn” is when the Japanese Navy had killed Americans in Hawaii. One action our government took was to confine US citizens of Japanese descent who had committed no crime to concentration camps, forcing them to abandon their property, businesses and livelihoods. In retrospect I think we can say with confidence that this action had no effect on the number of lives lost in WWII. A great many people, myself included, believe that whole incident was a terrible mistake. If we were to learn anything from that mistake it would be that we must be very careful about abandoning the rule of law, especially when tempted to do so when facing the emergencies created by war.
Jose Pablo
Mar 8 2022 at 5:50pm
That’s, as a matter of fact, a very useful example to explain the point that compliance with the “rule of law” should not be “content independent” and the end of the debate: utilitarian or moral judgement is unavoidable.
I agree with you believing that this episode was a mistake. But not because it was a breach of the “rule of law” but because there was, very likely, enough information “ex-ante” to conclude that the Japanese citizens living in the US were not a threat to American security.
But let’s imagine the counterfactual: that Japanese born citizens living in the US were, in fact, a very real threat to the American security and to American ability to wage the Second World War and to win it. Then, imprisoning this Japanese citizens during the war, would have been the right course of action.
If this would have been the case, the lives saved (not only American but from all over countries) would have been way more valuable than the damage caused to the people imprisoned during the war (still terrible). And, even more relevant, the damage cause was always subject to possible economic reparations by the American Government. While the lives lost by letting them free during the war (always in the “alternative scenario”) could not have been repaired by any means.
The episode was, very likely, a mistake. But because the “calculation” of risks was a mistake not because the government breached the rule of law.
In the alternative scenario the breach of the rule of law would have been more than justified, from a moral and from a utilitarian perspective.
Capt. J Parker
Mar 9 2022 at 5:47pm
@ Jose Pablo,
Thank you for your thoughtful response.
You said:
I’m afraid that I come to the exact opposite conclusion. Strict adherence to the rule of law By FDR in 1942 ought to have prevented the unjust internment of US citizens based only their Japanese ancestry. No less a set of laws than the 14th and 5th amendments to the Constitution should have prohibited it. It was FDR who decided that the “rule of law should not be content independent” when he issued executive order 9066. Then, regrettably, he was joined in his “content dependent” interpretation of the law by a majority of the supreme court (Korematsu v US) that said “the need to protect against espionage by Japan outweighed the rights of Americans of Japanese descent.”
You also said:
I believe that imagining that Americans of Japanese descent were in fact a very real threat to American security begs the question: How would one have come to that conclusion? The only correct way to reach that conclusion, according to the law, would be to determine someone is a threat because of that individual’s actions; not their physical features, not their ancestry, not their race. Should we make this part of the law content dependent too? I say no and I fear what would become of any of our freedoms if they are all subject to some government officials calculations of the “risks” of letting us keep them or someone else’s utilitarian or moral judgement about the exigencies of the day.
I’m happy to see that Jon Murphy posted a quote from Robert Bolt’s play A Man for All Seasons above. That particular quote is an all time favorite of mine as well. My trouble with your position about adherence to the law not being “content independent” is that I fear that philosophy would cut a great road through the law in order to get after the Devil. Once the laws were all down, and the Devil turned round on us, none of us would be able to stand upright in the winds that would blow then.
Jose Pablo
Mar 10 2022 at 9:22am
Thank you for your thoughtful and not without merit answer, Capt. Parker.
I think we now are at a serious risk of repeating ourselves, but there are a couple of remarks that might be interesting making:
a) You seem to assume that our laws are made by “angels” and that the ones breaking them are “devils”. Actually both, the laws and the breakings of the laws we are discussing here, are made by the “same” government.
Certainly an utilitarian positive discussion is subject to arbitrariness (that’s the reason why I am not an utilitarian myself) but your position is also “arbitrary” since you seem to assume that the government is “always” right when making a law and so we all have the moral duty to obey it independently of its content but is “always” wrong when deciding that a law should be temporarily broken. If you rule out “specific content analysis” your position seems arbitrary.
b) In fact, your position seems “normative” to me: when “anything” has been enacted as a law, everybody is obliged to follow without any space for a “positive” debate on the merits of that law.
Certainly, you have the right to hold any normative position of your liking. But then everything is reduced to having the ability to enhance new regulation. I don’t see any reason why being in the position of passing new laws should make you always “right”.
In the case of the episode you mention, following your “law about all” proposition, it would have been enough to pass new legislation saying that it was “illegal being an American citizen of Japanese ascendant during episodes of war with Japan and that people making this crime should been incarcerated”. The Supreme Court would have found, it seems, that this law was Constitutional and, since the government would have been following the new law, the whole episode would have been totally acceptable following your “law above all” reasoning.
In my position this new law been passed, makes no difference: the “right thing to do” should still be subjected to a positive discussion independently of the arbitrary fact of whether it has been passed as a new law or not.
It seems to me that you are applying here your own “personal moral judgment” on the content of the law: it was unfair incarcerating these citizens even if the Supreme Court (who are the ones “legally” entitled to say so) found it “legal” to do so.
You certainly have the right to have this position, but that’s a normative not a positive position. As it is Bolt’s one in a Man for All Seasons
Capt. J Parker
Mar 10 2022 at 3:55pm
@ Jose Pablo
In the case of confiscating Russian Oligarchs yachts. I’m applying my own judgement, moral and otherwise to be sure. You are doing the same. I come out opposed. You come out in favor. Which one of us is right? A positive or utilitarian calculus won’t settle the matter because our own utility functions will differ. We are also unlikely to agree which utility function or which positivist calculus is applicable to society as a whole. I calculate that a spontaneous abrogation of property rights is very harmful and I further calculate that the expected value of the reduction of Ukranian and Russian lives lost is negative because the effect will be to prolong the war in Ukraine not end it. I might be wrong but who gets to decide if I am? The correct course of action seems to me to rely on the existing system of laws and means to amend them imperfect though that system may be.
This is not to say I believe there is no room for civil disobedience. But, as you point out, we are currently debating two instances of government apparently violating its own laws. So, the debate is about government disobedience instead of civil disobedience. Since a main function of government is to uphold the law it would seem ill advised for government to signal that adherence to the law is optional based on one’s individual normative or positive reasoning.
You might be right that if FDR had not been able to issue order 9066 and if congress enacted a law equivalent to FDR’s order 9066 and if the supreme court would have upheld that law, Japanese Americans would have been imprisoned in a manner completely in accordance with my preferred system of the law. On the other hand, that’s a lot of ifs. Just maybe there may have been enough congressmen and senators that saw a problem with such a law. Would Americans of German or Italian descent in congress have thought that they might be next? Would congressional debate have given the supreme court justices pause?
Alan Goldhammer
Mar 4 2022 at 8:28am
David raises an important issue and one that is complicated IMO. Those that enriched themselves following the collapse of the Soviet Union did so in a manner that was highly questionable from a legal perspective. They were privy to sweetheart deals and then moved to transfer large sums of money out of what became Russia and into western banks, real estate, and lots of other investments including the aforementioned yachts (Roman Abramovich bought Chelsea Football Club and two Boeing passenger airliners outfitted for his personal use).
David may not like the term ‘oligarchs’ and perhaps it has little meaning. However, I would hope that there is general agreement that Russia in its early days following the break up was a true Kleptrocracy (perhaps best skewered in Gary Steyngart’s fine novel, “Absurdistan”). A number of these individuals who have appeared on various sanction lists are still ‘Friends of Putin.’ In an “economic war” is it not fair to go after these individuals? Arguments can be made for or against. I would be more persuaded if they simply renounced the war and their Russian citizenship but that is not happening.
J. Scott Frampton
Mar 4 2022 at 11:01am
Prof Henderson,
As you know, I always enjoy your articles, thoughts, and positions.
The four levers of national power are DIME: Diplomacy, Information/Intelligence, Military, and Economics. I think two of these have been used to some extent for this scuffle: Diplomacy and Information (and to no positive conclusion). This leaves Military and Economics. Military is somewhat useful in this problem with arms support, and we shall see if it helps, but will likely not conclude things either unless overwhelming force in employed and the NATO-situation leaves this as unlikely. So, we have Economics left, and in the circumstance of an existential threat, then ALL is indeed fair in love and war. I like your thoughts on laws and their importance, but if nothing is left and a lawless authority is in place…well, you get the idea.
Jim Mulcah6
Mar 5 2022 at 7:48am
I am glad to see that I am not the only one who recognizes this. On Facebook I was accused of being a “cold-hearted sod” for disagreeing with forfeiture actions. Hatred of Putin and envy of the rich has caused people to not think past stage one. If every time there is a bad guy that evades one’s clutches the knee-jerk reaction is to screw his friends we will have descended into McCarthyism: guilt by association. This is rule by strong-man, not rule of law.
Jose Pablo
Mar 6 2022 at 10:01pm
I find terrible (to say the least) that the first example of the “rule of law as a victim of war” that you are able to come up with, is the seizure of Sechin’s yacht by the French government.
What about the innocent family (father, mother and kid) killed in the outskirts of Kyiv while trying to escape from the city. What were they guilty of? Do you really find the seizure of Sechin’s yacht a bigger or more relevant breach of the rule of law that this killing? … or the thousand killings like this one in Ukrainian soil?
What are the people that have seen their house destroyed guilty of?
Sure, you are right, and the “rule of law” could claim his position as the first victim in a war. But I do find your choice of the most relevant example of this idea something to be ashamed of.
Sechin will have an opportunity to defend his case in front of a French court. The innocent people killed in the streets of Kyiv would not.
David Henderson
Mar 6 2022 at 11:02pm
You wrote:
Good point. My bad.
David Henderson
Mar 7 2022 at 9:40am
I should explain the sense in which I think you’re right and I erred. The word “first” doesn’t mean “most important.” It means “earliest in time.”
Obviously, the deaths of a lot of innocent people are far more important than the loss of some property due to a breach in the rule of law.
Because those deaths preceded the seizing of yachts, those deaths were first.
Jose Pablo
Mar 7 2022 at 11:03pm
The word “first” means both: “coming before all others in time or order; earliest; 1st.” and also “foremost in position, rank, or importance“.
And, in any case, the seizing of Sechin’s yacht (and even less POTUS’s threat of possible future seizing) are not a “breach of the rule of law” by any means.
The “rule of law” does not prevent the government from committing (if it was the case) illegal actions (or even pass “illegal legislation”). The “rule of law” means that the government will be held accountable for these illegal actions by an independent branch of the same government (or that “illegal legislation” will be overturn). There is nothing that make us believe this is not going to be the case in both France and USA (after all, they are not Russia).
On the other hand, I am pretty sure that the killing of civilians in Ukraine would be unpunished if, as it is likely, Russia wins the war. That’s THE breach of the rule of law: the first (in the first meaning), the first (in the second meaning) and, actually, the only one.
steve
Mar 6 2022 at 10:11pm
I think there is the legal aspect and then the principle at stake. On the legal side my legal guy says that we are doing is legal under IEEPA (50 U.S.C. § 1702). This applies specifically under the conditions of state conflict.
As to the matter of principle first it is pretty difficult to define who is an innocent in Russia. Assuming they pay taxes or have at some point they support the war effort. That issue aside if we avoid everything that might have a negative effect on an innocent we have no recourse other than to tell the Ukrainians they need to kill the Russians attacking them and accepting all of their deaths that will entail since other than provide them weapons and some kind of financial support we cant do anything. Almost all sanctions could be seen as having an adverse effect on some innocent person. I could be missing something as some people claim there is other stuff we could do, but then they never offer any other options.
Steve
Jose Pablo
Mar 6 2022 at 10:12pm
And, in any case, the first casualty in a war is, always, a human being. Usually a soldier, closely followed by a totally “innocent” civilian.
That’s the most relevant aspect of war. The rest are “philosophical games” useful to entertaining people in a college cocktail party but totally useless to save the next innocent live (very likely more relevant than “innocent yachts”) that is going to be taken in Ukraine, most likely without any kind of the “due process” you seem to be so worried about when it comes to seizing yachts.
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