Saturday, August 20, 2005

The Menezes Tragedy And The Professor

by Tom Bozzo

Ann Althouse made herself a lightning rod for mostly left-blogosphere scorn over an old post of hers on the shooting death of Jean Charles de Menezes. Not uncharacteristically, she complains that linking articles on (mostly) left-leaning blogs with titles like "Wingnut Authoritarian Law Professors On The March" are "vicious," "really foolish," and "hotheaded." (*)

Were the hot-headed commentators really so foolish? No. At the risk of piling on, let's look at what she originally argued.
...But should we worry that the shoot-to-kill policy will result in more deaths?

Really, it should be quite unlikely for the same sort of thing to happen again, just as it's very unlikely that anyone will ever again hijack an airplane with a small knife... Similarly, everyone -- at least in London -- now knows not to run from the police, especially not onto a train and while wearing bulky clothing.
Ann's argument has two main infirmities. First, she neglects entirely to consider the government's possible responses to the incident. If re-examination of the policy leads only to acceptance of the need to break a few eggs to make an omelette, then you'd have to conclude that the probability of another tragedy, conditional on similar circumstances arising, is in fact undiminished. Indeed, a more recent Althouse post noting that the shoot-to-kill policy remains in effect suggests this may actually be the case, depending on the nature of some "small changes" reportedly implemented. (**)

Considering the apparent role of similar logic in U.S. policies that have led to the grievous abuse and even death of innocent, or at least not provably guilty, detainees, the use of "extraordinary rendition," the indefinite detention of citizens without trial, and so on, this is a Crime and Punishment's-worth of subtext to serve as a flash point (apologies for the metaphor mixing). And I'll admit that one of the things that pisses me off most about the right blogosphere's quasi-centrists is all the torture-excusing (Ann, for the record, expressed "anger at the American soldiers" participating in torture a couple months ago.)

Second, she inappropriately assumes that law-abiding people will, or even can, rationally respond to the tragedy by avoiding "suspicious" behavior. I leave it to the game theorists as to whether the strategy combination of "government threatens to shoot you for 'suspicious' behavior" and "non-terrorists do not exhibit suspicious behavior" is a Nash equilibrium under reasonable payoffs. Outside of a rational choice utopia, it just isn't a realistic outcome. Consider, for one thing, the scores of thousands of contraband items confiscated at airport security checkpoints. Even I wonder how those people — thousands, all carrying objects the DHS officially considers to weaponizable if not actual weapons — have managed not to have heard of the events of Sept. 11, 2001. Somehow, though, society has not crumbled from the authorities failing to shoot dead even the gun-toters among them.

Then there's the question of whether a balance of terror between the government and the populace is actually desirable. Indications point to no. As Scott Lemieux notes, some elements of the behavior Ann suggests might be suppressed, and for which de Menezes was supposedly shot, is not abnormal at all. All the more so, of course, as the actual details of the incident have emerged. Sprinting for trains? (***) Doing so while wearing bulky clothes (heard of winter)?! This obviously could be solved by using private transport, though insofar as walking can at times be Central London's fastest mode of surface transportation, it's not a great idea for a large fraction of the Underground's ridership to so choose.

The and-pigs-could-fly quality of the previous argument just makes Ann's look on the bright side conclusion look clueless:
Is it not true that yesterday's sad mistake has already solved the problem it represents? In fact, a further good has been created: as ordinary persons change their behavior and drop the bulky clothing and unnecessary running, the real terrorists will stand out more. Indeed, if anyone ever behaves like Jean Charles de Menezes again, the presumption that he is a terrorist will be so overwhelmingly strong that the police really must kill him.
So the system is self-correcting and the tragic f*ck-up has a massive external benefit. From the above discussion, neither conclusion is warranted. Nor does the preceding argument particularly support her assertion that the terrorists will just stand out more if subway riders behave in various ways unlike time-pressed urbanites. If there's one group you'd expect to fully adapt to the revelation of the shoot-to-kill policy, it would seem to be the actual terrorists. If their incentive is to try to blend in, then it's back to square one with the problem of extracting the tiny signal of actual terrorists from the cacaphony of every weird person riding mass transit. And thus it can't be presumed that the prospect that shoot-to-kill will only kill terrorists is high enough to justify a policy that, as Daniel Davies notes in his One Minute MBA series, so upends the usual legal arrangements.

So Ann's argument was very poor. The dumbest thing I've seen in a blog? Not even close, as long as there's a Donald Luskin. But the best way not to be called a wingnut authoritarian is to avoid the appearance of arguing for the transformative power of the state's misapplication of deadly force. Or just listen to Jeremy.

Update: Reinforcing that last point, Ann's original post earns her the runner-up slot for the Golden Winger from The Editors at The Poor Man Institute.


(*) She should know well enough that the blogiverse is a tough place — and that incivility is not just a left-blogiverse phenomenon.

(**) You'd suppose the changes would be geared towards error-mitigation. But there's still the problem of Ann suggesting in the more recent post that this will be net-tougher on the terrorists than everyone else. So far, the score is still innocent bystanders 1, terrorists in the midst of attack 0.

(***) Heck, on July 7, I sprinted a few steps to catch a Yellow Line train at the L'Enfant Plaza Metro station, with a bulky-looking briefcase over my shoulder and a roller-bag in tow right in front of an armed transit cop. If the cop had told to me to slow down and I didn't notice over the train and crowd noise, would I have had what was coming to me?
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