The Deliberative Process

There is a saying that goes ‘Want it bad, get it bad.’ An early version of the same sentiment is ‘Haste makes Waste.’

When the Founding Fathers drafted our Constitution they deliberately split the real powers of government (the legislature) into two separate houses: the Senate and the House of Representatives. Neither has the authority, except in a few narrow issues, to act alone. This was done so that laws could not be passed in haste. A law must first go through committees in each house, be debated on the floor in each, then passed, and then must be reconciled in joint committee between each house, and then once a law is passed, money must actually be set aside and the executive branch authorized to spend it on the issue at hand.

The idea was that every proposed law would be thoroughly debated before it became law.

Furthermore, the process for changing the Constitution, and the various state constitutions, was deliberately made slow and cumbersome so that no one would in haste change something that had been carefully thought out and debated many years earlier.

Now we see two examples of people trying to act quickly, when there is no demonstrable value to the citizenry for precipitous action. The issue is healthcare. We are told that our healthcare is in crisis, yet 85% of our population is insured, and 100% has access to emergency care. All our poor are covered by Medicaid, and there are scores of medical centers around the country that provide comprehensive care for free to those who cannot afford it. While note ideal, it works.

But Washington says something needs to be passed right now, we cannot debate it any longer, we need to act.

Why can’t we debate it any longer? Why can’t we expect our Senators and Congressmen to actually read the legislation before them and engage in a detailed debate that actually addresses all the major issues? That is what the Constitution directs. That is what they were elected to do? Why don’t they want to do that?

And meanwhile in Massachusetts, the Governor has apparently decided that, because of this legislative crisis in Washington, a purely partisan response since there are more than enough Senators to engage in and vote on any legislation, but not the 60 needed for one party to steamroll the other and end deliberation, he – the Governor – will act to circumvent the Massachusetts Constitution and appoint someone to fill the seat of the late Senator Kennedy.

Senator Kerry, the now senior Senator from Massachusetts said: “This is what Ted Kennedy wanted, what Governor Patrick and I wanted, and I firmly believe it’s what people in Massachusetts want, because big votes on everything from health care to climate change are being taken now, not in five months.’’

In other words, ‘we must make haste.’

I read yesterday that the Environmental Protection Agency’s new blueprint of industrial regulation is 18,000 pages long; 18,000 pages of regulation created by a bureaucracy without any Legislative oversight (that is, no elected officials had a hand in it) and this because we have – in haste – given the EPA authorities without adequate debate, without due deliberation.

Due deliberation, in-depth public debate, was placed in the Constitution to prevent tyranny, to prevent the Legislature from acting so fast that it made grave mistakes that deprived people of their liberties, either willfully or negligently. We should all be very concerned. We should all consider writing our Congressmen and Senators and insisting simply that they thoroughly debate each of these issues.

Ships, Planes and Viagra

The other day I heard a joke about Americans spending more on Viagra and breast implants then on Alzheimer’s disease research. You can imagine the punch line. But, it led me to do some digging on the how much we, as a nation, spend on various things. Below is a small chart that details how much money was spent in the US on the times listed:

Ship Procurement (the US Navy)        $9.8 Billion 2006

Aircraft Procurement (All services)    $26.5 Billion 2006

Dog and Cat food                                   $16.9 Billion 2006

Viagra/Cialis/Levitra                            $3 Billion 2006

Barbecue Sauce                                      $15 Billion 2006

Note: all the DOD numbers are from the DOD Budget for 2006

(http://www.defenselink.mil/comptroller/defbudget/fy2006/fy2006_summary_tables_part1.pdf)

What does this mean? Obviously, it means we, as a nation, are incredibly rich. And, while these numbers are from several years ago, and we are now in the middle of a severe recession, we remain very rich.

But, there is more here than that. Some would argue that it suggests misplaced emphasis. One could argue that the people miss-spend their money and are ‘to blame.’ Frankly, I think that under estimates the wisdom of most of the people. I think most people are quite capable of making the right choices, even when they are hard choices. That is the essence of democracy, isn’t it? That people are wise enough to make the right choices for themselves. But, democracy requires not simply the consent of the majority, it requires informed consent. And in the case of the military services, it requires the chiefs of the services, the admirals and generals, to stand up and tell the American people why they – the citizens, NOT the admirals and generals - need to spend a certain amount of money for ships or planes or tanks.

But, it is more than simply saying ‘We need more tanks (ships, airplanes, etc.)’ The generals and admirals have been given a substantial portion of the treasure of this nation, and more importantly, have been given the trust of this nation, in the form of the sons and daughters of America; our security and our future has been placed in the hands of the military. To a degree nearly unheard of with respect to any other profession or niche of society, the American people trust the uniformed leadership of the services.

Yet, time and again over the past several years (and more) we have read of this or that admiral or general talking about two issues: 1) we don’t have enough ships (planes, tanks, etc.), and 2) we need new strategies for the future.

I submit the two are not simply linked; they are opposite sides of the same coin.

Let us go back to the figures mentioned above. Are we as a nation spending too much on our pets? The real beauty of a free market is that it allows us to spend just exactly as much as we want on each item. So, $16 billion or so on food for our pets (as of 2006) is exactly right. But, the same cannot be said of our ship and aircraft and tank procurement (and other things) because, simply put, the American people are kept in the dark because the military service chiefs do not know how to communicate with the people about what this nation needs. They do communicate with Congress, which, interestingly, is one of the least trusted organizations in the country. And Congress appropriates money as often as not based on parochial reasons rather than for any other.

The argument might be advanced that the American people spend money on Viagra and dog food and breast implants but not ships and aircraft because they are selfish, that they don’t care about the nation as a whole, or that they spend out of a sense of entitlement. To a certain extent, and perhaps to an extent greater now then any time in our past, that is true. But it is not true of the majority of Americans. Most Americans are hard working and believe that the only thing they are entitled to is a hard working government that provides them the basic services expected; the principal one being security.

Further, this sense of ‘entitlement’ is in fact correct when it comes to national security: the American people HAVE committed huge assets to the Department of Defense, they HAVE trusted their security to the admirals and generals of the E-Ring, they HAVE placed their sons and daughters lives in the hands of those same admirals and generals.

Nevertheless, the generals and admirals continue to argue as to not only how many of a certain weapon they need, but what they need them for. This is not to say that these questions are simple; there are some real complexities involved. But, to give just one example, the inability for the Chief of Naval Operations to articulate a strategy for the Navy.* Now, what the CNO is trying to describe is both the specific purpose of the Navy – its assigned tasks; how it will accomplish those tasks; and what assets (people, ships, weapons, etc.) it needs to accomplish those tasks. For those who have not read Title 10 (that section of US law that governs all things having to do with the Armed Forces), the mission of the Navy (and the other services – each has a section) is spelled out for all to see.**

Of course, prompt and sustained combat operations at sea doesn’t tell you against whom, or how or a number of other things. That’s why, ostensibly, we have professionals in naval operations and intelligence who work together to answer these issues. And there are, in fact, some simple rules in this regard. First, plan for worst case. Second, plan for a long war. Third, leave room for errors (like someone else doing something asymmetric forcing you into the reaction role).

While this discussion continues in Washington, the American people are left outside of the conversation, not because they cannot and do not understand, but because the folks in Washington, in and out of uniform, are apparently unable to articulate to the American people what Army, Navy, Air Force and Marine Corps we the nation need, and why. Perhaps the admirals and generals don’t know what the nation needs. If this isn’t so, how else do we explain that in the past three years we have had two service chiefs in a row for one of the services unable to articulate a service strategy and continually asking for help in formulating one?

I would submit that the services are, indeed, under-funded in regards the procurement of major weapon systems, but the fault lies not with the citizens of this country and their unwillingness to support the services. The fault lies with the leadership of the services and their inability to either understand their real mission, and their inability to explain that mission to the citizenry. The American people are not stupid. My experience has been, in fact, that the average citizen on the streets of middle America has more sense then the average bureaucrat in Washington – uniformed or civilian.

When someone stands up and says “We need to spend $10 billion on ships,” but can’t articulate a strategy, that is, can’t articulate a reason why, then it is going to be a hard sell to the American people. Conversely, if the admirals and generals could explain why, if they had a strategy, the American people would, and could support spending substantially more than the amount we are now spending on these weapons. The fault lies not with the people or the economy, nor with Congress, the fault lies with the admirals and generals.

Next: Some Thoughts on Force Structure

* The term strategy is misapplied, but it is miss-used regularly in Washington and so we repeat the linguistic abuse.

** TITLE 10 > Subtitle C > PART I > CHAPTER 507 > § 5062 (a) The Navy, within the Department of the Navy, includes, in general, naval combat and service forces and such aviation as may be organic therein. The Navy shall be organized, trained, and equipped primarily for prompt and sustained combat incident to operations at sea. It is responsible for the preparation of naval forces necessary for the effective prosecution of war except as otherwise assigned and, in accordance with integrated joint mobilization plans, for the expansion of the peacetime components of the Navy to meet the needs of war.

Protecting Everyone's Grandmother

The President has spoken to the nation several times on health care and he has insisted on a great many things. Most recently he assured us – we the people – that his health care plan won’t increase costs, it won’t threaten senior citizens, will not result in rationing of services, and will not include anything for those in the US illegally. Since we will all one day be senior citizens, let’s discuss the issue of senior care; specifically, the idea of denying care to a senior.

The fear that has been voiced is that once the government has control of all health care – either directly or through regulatory oversight – the bureaucrats will try to control the flow of dollars, and in order to control costs, would eventually begin to deny expensive healthcare to the very old. This led to the term ‘death panels’ being bandied about in the press and the President responding that there is simply no thought of such a thing and that he was trying to make things better, and he then invoked his own grandmother, asking the rhetorical question to the effect ‘do you think that I would let such a thing to my own grandmother?’

President Obama, I am quite certain, would not let such a thing happen to his grandmother if she were alive and facing such a situation. But it is an important point, because an accurate understanding of the issue can only come after we pull apart how government bureaucracies work.

First, there will be a bureaucracy. No amount of promises by either the President or the Congress can prevent this from developing into a large bureaucracy, larger than the current Department of Health and Human Services, which is huge. Why is that? Once the Legislature passes a healthcare bill, the bill has to be funded and then given over to the Executive branch to ‘execute.’ The Executive branch will then execute the bill through the Department of Health and Human Services (HHS). This new bill will, of necessity levy new tasks on HHS, without eliminating any of their current tasks. That means they will need to grow.

Second, no matter how extensive any bill is (and the one that has received the most press is some 1,300 pages long) it cannot address anything even close to all the possible issues that will emerge each year as the department distributes, or oversees the spending of, hundreds of billions of dollars to various hospitals, doctors and the like. The process for doing so will be left to – literally – tens of thousands of government service employees – bureaucrats. Most of these people will have no healthcare experience. They will be trained in everything under the sun, but few will be trained in any field of medicine, because that is not their job: their job is managing a government program and overseeing the distribution of money.

Third, as soon as they start distributing this money, issues – small and large – will arise. Decisions will be made and they will become policy. The policies will eventually be collected and become the rules and regulations of the department and then the policy of the administration. These become the guidance under which a doctor will receive money to provide healthcare, and thus, obviously, the guidance under which the doctor will NOT receive money to provide healthcare. These rules will fill thousands and thousands of pages. I would encourage anyone who thinks that this will be straightforward to go to the Health and Human Services homepage and surf through the relatively few of their regulations they have on line.

Fourth, once a set of regulations have been in effect, and are operating normally, they develop the force of law. The department has been given the authority to execute the legislation (law) passed by Congress and thus the regulations and policies of the department have that same force behind them. If a citizen wants to challenge a policy of the department they can. There will be review boards, and if they fail to satisfy the citizen complainant, then the citizen can appeal to their Congressman or take the department to court. These types of actions take place routinely in regard to a wide range of government services. Of course, the difference is that we are now talking about healthcare, where time can be of great importance.

Finally, despite what anyone may say during a press conference or a prepared speech, the whole point of this effort is to change the healthcare system in the US. It certainly isn’t being done to leave it the same. And the government, in the office of HHS, has only one real method to affect change: control how money is spent. This will be done through two principal methods: regulations, and actual payments. Both will focus on when certain types of care will and won’t be provided, and when provided, how much the government will pay the provider for that service. So, HHS will decide, directly or indirectly, how much money the doctor will get for providing you healthcare; and it will decide what level of care the hospital will provide you.

And so we are back to someone’s grandmother, if not President Obama’s. While the President’s grandmother is dead, may she rest in peace, I think it is safe to say that, if she were alive, with a grandson who is President she would probably receive some special care. In fact, she probably would receive special care just from having a grandson and a granddaughter-in-law who are both very successful, very prominent lawyers, and I applaud their success and all that that success brings with it.

But will everyone’s grandmother receive the same level of attention? Remember, the issue isn’t healthcare, the issue is a bureaucracy that happens to be a) huge and b) controlling your healthcare. We can speculate about this bureaucracy somehow acting differently from all the other bureaucracies, as if somehow we have poured some secret sauce over it and it has come out different. But is that likely? Isn’t it more likely that this new healthcare bureaucracy will be much like the other bureaucracies when it comes to service, response time, or concern about individual problems? Think of any arguments you may have had with the following: the Post Office, the Department of Motor Vehicles, of if you were ever in the military, the Pay Office.

Take the case of Randy Stroup, of Dexter, Oregon. In 2008 Mr. Stroup, suffering from prostate cancer, was denied service by the Oregon Health Plan. The state plan does not provide life prolonging care unless there is a better than 5% chance that the patient will survive more than 5 years. But the state did offer assisted suicide.

The fact is that the President – any President – can say what he likes about how one of the bureaucracies in the government is going to function, but his real ability to control the development and promulgation of rules, regulations and policies is very limited, and, of course, ends when he leaves office. No one in Congress or the White House ever designed the bureaucracies that now oversee Social Security, Medicaid/Medicare, Housing and Urban Development, or Agriculture. But they all did develop into large, complex and normally unresponsive bureaucracies. And the more money they manage, the larger and more complex and unresponsive has been the bureaucracy that developed after it. An expanded government healthcare program will be no different, and it will have by far the largest budget of any department in the US government, quickly approaching twice the size of the Defense Department. And unless your grandson happens to be President, you probably shouldn’t assume the system would be responsive to your concerns.

The Labor of Democracy

It is perhaps appropriate on Labor Day to reflect on the amount of work necessary to maintain our democracy. Democracy IS participatory government. As Lincoln said: “…Government of the people, by the people, for the people…” The most important part of that phrase is ‘by the people.’ We are the government.

Max Blumenthal had an interesting editorial the other day in the New York Times that discussed a letter from President Eisenhower to a veteran who was seeking relief from the ‘mental stress and burden’ of democracy. Eisenhower replied that such relief wasn’t safe in a democracy, that only dictatorships relieve the people of the burden of engaging in governance. Eisenhower made the point that ‘in a democracy debate is the breath of life.’

There is a way out of this. Eisenhower was right: let the government decide. Give the power away. In many cases in history, and certainly over the last century, the surrendering of power has always gone hand in hand with governments that promised to make things easier: let ‘us’ handle that for you, you shouldn’t need to worry about X, Y or Z. ‘We’ have experts who have excellent answers.

And so the clamor by some to get the bureaucracy to do something and do it now. But that isn’t how democracy is supposed to work. The Constitution is an interesting (and brilliant) document. The drafters consciously established a government in which the real powers – derived from people – rested in the Legislature. The Legislature was then split in two: the Senate and the House of Representatives. This was done to force slow and deliberate action. Laws were not and are not supposed to be drawn up quickly and passed quickly. The are to be debated, they are to be pushed back and forth, the people’s representatives are supposed to dissect the proposed legislation and have time to reflect on the ramifications of each and every issue.

And, even after a bill is passed, the process to fund the bill is a separate one that again requires both the Senate and the House to act. Passing laws and changing laws is supposed to be slow and difficult. And the people are supposed to be involved. Democracy is painful and the process isn’t neat and clean and easy.

The people have the right, and if you read the writings of the founders – the duty, to petition, to demand that the Congressmen and Senators explain themselves. Further, the very thought that a law would be passed that would not be subject to serious review, as with the many entitlements that now exist, would be viewed as dangerous by the drafters. Such actions are a ceding of power, the surrendering of something that must be constantly guarded.

Certainly, there is an ‘easy way.’ That way will eliminate the ‘stress.’ It has become fashionable on talk shows to talk about what the ‘government’ – which in this case means the bureaucracy should do for us. That because we were mysteriously blessed to have been born here that some people in Washington ought to take care of this or that for us. To give up the burden of the stress of self-rule is to give up power. This is the real road to loss of freedom. In many cases those who eventually become the dictators believe it themselves: they are here to ease your burden. They can make it neat and clean. There is a word for neat and clean government: dictatorships.

But neat and clean is not democracy. Democracy can never be easy because democracy requires that the people participate. And if they participate then every issue is open to debate. Nothing is closed, nothing is forever. Everything can be revisited by the people.

The Star Spangled Banner is the perfect national anthem for a true democracy: it is difficult to sing and requires a great deal of effort to get close to perfect. There couldn’t be a better example for all of us as we participate, as we LABOR in running our country.

The first three words of the Constitution weren’t put there simply to look good. WE THE PEOPLE really means WE THE PEOPLE. We are the government. The people in Washington, and the people in all the state capitals and the county seats and town halls, they are the hired help. They run things while we go about our daily business. But they aren’t in charge. We are. And with the role of being in charge comes the responsibility of being in charge.

The company with a board of directors that sits and lets the CEO do what he wishes is soon a company that goes ‘off the rails.’

We are the board. And there is no proxy allowed. You either vote or not. You either write letters and send e-mails to your Selectmen and Congressmen and Senators or not. You either go to town hall meetings and voice your opinion (on health care, the new bridge, the expansion to the elementary school) or you let someone else decide for you how your taxes will be spent, how your children will be educated, how your neighborhood will be zoned.

This is your country – you NEED to participate. Celebrate the LABOR of democracy.

Government Efforts That Work

I read an editorial yesterday that defended government controlled health care on the grounds that “throughout the civilized world, there are a handful of areas where governments fill needs better than free markets: fire protection, police work, education, health care.”

That is, as a friend of mine would say ‘a mighty big statement.’ Taking each in turn:

Firefighting. It is true that privately run firefighting prior to the 18th century was a questionable affair, providing support to those who paid, and letting others deal with the fires themselves. Firefighting has developed wonderfully over the past two and a half centuries. But, several points need to be considered before we draw an analogy between the benefits of government controlled fire fighting and government controlled health care.

No firefighter would suggest that we abandon preventative measures such as types of materials used in construction, installation of sprinkler and fire suppression systems, building codes for adequate exits from buildings, and other protection and safety features for remote buildings. While local and state governments do set standards for some of these applications, these governments do not own or mandate the prices of any of these activities. The free market does, in fact, set the price on building materials, construction costs with or without various types of fire suppression capabilities, and the various safety features found in public, commercial and some residential buildings. Furthermore, the Federal government does not provide or directly oversee fire fighting – except on military facilities and in some federal complexes.

So, while ‘government’ does provide fire protection, it is very much a local affair, and it is very much a process that is heavily dependent on both individual and commercial involvement.

Police work. As with firefighting, until the last two hundred years police forces world-wide had at best a mixed reputation for providing real security to the general population. Police work and public security is also an excellent example of just how difficult it is to actually expect government to provide a comprehensive solution.

The courts have routinely held that the police are not individually and specifically responsible for your safety. In short, there does not need to be a police car outside your building. And if you are mugged or attacked, the police did not fail to do their jobs. In short, there is a spectrum of security and depending on where you look on that spectrum you will find different people responsible for security. On one end is your own security. The courts have routinely found that you are responsible to look after yourself. The very large security industry (Brinks, ADT, etc.) attests to the fact that a large number of private and commercial interests recognize that the police cannot and will not provide security ‘before the event.’ That is your – the owners of the store – responsibility and you must accept it. If you have any doubt, walk into Tiffany’s and look at the security.

It is also easy to imagine the tangle of laws that would result if some of the authorities of the police were transferred to commercial operations. While there might be efficiencies in having some police activities handled by commercial enterprises, the law, and associated legal complexities weigh against it.

At the other end of the spectrum – national security – is strictly the purview of the Federal government and the Department of Defense (DOD). And while the DOD performs admirable service, it is neither cheap, nor is it always efficient. It is also fair to say that no one has found another way to provide national security without a national level force.

In the middle of the spectrum there are a host of agencies that provide a wide range of services. Most of them are at the state level and below: state police departments, sheriff offices, etc., while a few are at the Federal level: FBI, DEA, etc.

To compare this very complex structure, which is not without its problems, and is very costly and often inefficient, with a federally controlled health care program is, in fact, an interesting idea. Imagine if you will, a federally controlled, centralized security organization responsible for every aspect of our security, from DOD down to the local police all inside the same department. Imagine a department that spends well in excess of a trillion dollars per year, with offices in every town in the country, as well as larger offices in every county seat and state capital, trying to centrally manage not only national defense but also local security, procurement of aircrafts and ships as well as the allocation of assets for ongoing criminal investigations, patrolling, acquisition of new vehicles and gear, training, administration and the like. Further, it would allow various Federal organizations to have access to all local information, facilitating investigation. Does all that sound like a good idea?

Education. Education is clearly a place where there are both highs and lows in the history of government provided services. Certainly within the US public education was responsible for a substantial improvement in literacy among the poor and the growing middle class in the 19th and early 20th centuries. But public education in this country has overwhelmingly been a local affair, with quite vigorous protests among parents (rightly so) when state governments have interfered, never mind the federal government. Education is one arena in the public domain that is very much a concern that the citizenry wants to be able to impact directly – not through representatives or bureaucrats.

Education has also benefited from aggressive competition from private schools, which has forced public schools to improve their curriculum, as well as providing parents with options other than the public schools, even when their taxes must still be paid.

It is also worth noting that until just a few decades ago there was no federal agency that oversaw public education and since the creation of the Department of Education there has not been a dramatic improvement in the quality of education in this country.

VA Hospitals. As for the editorial’s claim that the VA hospitals provide truly superb service, that is a statement that must be qualified. As a veteran myself, with many friends and relatives who are also veterans, I read that report when it first came out and, with my friends, asked: what VA system are they talking about? VA support can be very good, but like military medicine, it is contingent upon several things, the most important of which is simply this: the system works very well if you really need help. Major problems receive major care. Minor care and preventive care is usually another situation entirely. The other key item with the VA is that there is usually an understanding that cost isn’t an issue (at least at most VA hospitals) once you have been seen by a Doctor or Nurse. Would a federally funded, universal health care plan be a generally unconcerned about costs as the VA is?

A second issue is simply this: anyone who has seen the VA hospital system when it fails to respond well would want to know what would happen if that system, which currently services several million Americans, were expanded in size by a factor of 100? How may bureaucratic processes remain efficient when expanded?

The rise of truly representative democracy is in large part responsible for making fire protection, police work and public security, and public education more responsive to the needs of the general populace. But it has not been easy and has demonstrated that governments have limits. It is noteworthy that these three government efforts – police, firefighting, and education - have three key elements in common:

1) All involve government actions at the local level where there is a real ability to force the government to respond with immediate action, not delay it until another budget cycle.

2) All involve immediate personal concern to the citizenry; no one defers police protection or fire protection, and few people debate the need for adequate education; one of the issues with health care is the tendency for healthy young and middle-aged people to defer health care coverage, and preventive care.

3) All have involved commercial complements or, in the case of education, private alternatives. Again, because the government activity is at the local level, the feedback and response cycle is real and immediate, which results in real response and improvement in the government operations.

Further, they have not enjoyed unalloyed successes. One of the key reasons they have succeeded is that there has been continual local involvement that has forced these various activities to improve.

It is easy to point at certain ‘government functions’ and paint them with a broad brush and claim that, by analogy, they prove Federal government health care would work. The facts are a bit diferent.

Compassionate Release and a Deal with Libya

It now seems that the release of the Libyan terrorist may have been part of a multi-billion dollar deal between the British government and the Libyan government, part of a deal to allow British companies to gain access to Libyan oil fields.  In fact, it is not exactly clear what role the British government played, or precisely what agreement was made with the Libyan government.  And, while there are counter accusations, as well as denials from each corner of the UK political arena, this does present an interesting question: if there was some influence pedaling on the part of the Foreign Office and other ministries – which certainly is, strictly speaking, legal – was it worth it?

First, to clarify something I mentioned in an earlier comment on this release: if this release was part of the British government engaging in international politics, that doesn’t change the fact that the judge who released Abdel Baset al-Megrahi for what was listed as a ‘compassionate release’ due to his prostate cancer exceeded the proper authorities of the courts.  No judge should be free to exercise ‘compassion’ or any other passion on his own.  Such an action is not the role of a judge.  You may well object that the law in Scotland allows for ‘compassionate release’ and has for more than 70 years.  However, it is worth noting as well that, per the statement from the government of Scotland, “the Act does not specify what the grounds for compassionate release are.”  In short, we are left with a legislature, in this case Scotland’s, abdicating responsibility to a judge.  It is the responsibility of the legislature – in every democracy – to define the law; and it the court’s responsibility to apply the law as laid out in the discussions the legislature used when drafting the law.

Nevertheless, returning to the case at hand, it is certainly within the purview of any government to make ‘deals’ with other governments, even when they are unpleasant and will likely lead to anger and frustration on the part of citizens, friends or allies.  In fact, it is the responsibility of governments to make unpleasant deals when the results are in the national interest.  Gilbert and Sullivan’s Pirate King said it most eloquently when he noted that

“Many a King on a first class throne
If he wants to call his crown his own
Must manage somehow to get through
More dirty work then ever I do.”

Running a country, particularly a large one, one that has a role on the international scene, such as the UK, is not a task for weak stomached people.  Situations will routinely present themselves that offer choices between several different, but equally unpleasant realities.  If, in fact, the government of Prime Minister Gordon Brown did apply quiet, and indirect pressure (or support) to the Scottish courts to expedite the release of al-Megrahi, it is understandable, whether we agree with it or not.  Unemployment in the UK stands at 7.8% and their economy has shrunk 5.5% in the last 12 months.  There are other economic indicators that are also down.  Suffice it to say, the UK economy is not doing well, and the government is looking to strengthen it.

Under those circumstances it would be understandable if, in the hopes of securing some sort of multi-billion dollar deal with Libya, the UK government tried to ‘sweeten’ the deal by adding al-Megrahi.  This would be interpreted as ‘realpolitik.’

The question is whether it is ‘smart politik?’

There is certainly something to be gained by signing a multi-billion dollar deal (if such was the case), and that is fairly simple: more tax revenue for the government, perhaps a bit more stability in energy prices in the UK, perhaps several thousand jobs in the oil and gas industry and perhaps a similar number in related services industries.

Is that worth it?  What is lost when such deals are made?  Does striking a ‘deal’ with Libya (or any government) over access to oil offset the cost to the society of not simply releasing a terrorist and murderer, but of sending the ‘signal’ to the world that the UK government is willing to negotiate, that such issues are simply matters of ‘the right price?’  I am reminded of the old vaudeville punch line to the effect that ‘we know what you are, now we are just negotiating the price.’

If there were clearly no relationship between the oil industry and the government (whether in London or Washington), this would never have taken place.  As governments become closer to controlling partners in relationships with businesses, the lines will blur and recognizing the boundaries between the interests of the nation and the interests of several companies will become ever more difficult.

In the end the Libyans would find someone to work the oil fields and the oil and gas would flow.  There might not be direct benefit to the UK government in the form of tax revenue, or to a few UK companies, but the oil and gas would move.  And, while many will be quick to castigate the oil companies as ‘money hungry’ at any expense, it is worth noting that this was something carried out by the UK government.  Oil companies are supposed to be interested in profits; that is not simply understandable, they have fiduciary responsibilities to their stockholders to work to produce profits.  But the government is responsible for seeking to protect the national interest.

So, what is in the national interest?  Clearly, it is the responsibility of the government to ensure the survival of the nation and promote the general welfare.  This is true of any legitimate government.  Beyond that, identifying the national interest requires clarity as to national goals.  But, survival of the nation is inextricably interwoven with the survival of the ethos and character of the nation.  We were recently reminded of this in the debate on torture in the US, and Prime Minister Churchill’s refusal to allow torture against captured Germans because, as Churchill noted, certain behavior ‘can erode the character of a nation.’  To debate the use of torture when there was a real fear as to the very survival of the nation is worthy of a great people and warrants a place in the national debate; to appease a government that supports terrorists for several billion in tax revenue is not and does not.