Law – Page 35 – a sibilant intake of breath

Natural selection and species self-destruction

Late in The Greatest Show on Earth, Richard Dawkins reiterates a key point from his earlier book The Selfish Gene: namely, that there is nothing in natural selection to prevent a species from engaging in behaviour that is profoundly self-destructive in the long run. As he evocatively puts it:

“But, the planning enthusiast will protest, when all the lions are behaving selfishly and over-hunting the prey species to the point of extinction, everybody is worse off, even the individual lions that are the most successful hunters. Ultimately, if all the prey go extinct, the entire lion population will too. Surely, the planner insists, natural selection will step in and stop that happening? Once again alas, and once again no. The problem is that natural selection doesn’t ‘step in,’ natural selection doesn’t look into the future, and natural selection doesn’t choose between rival groups. If it did, there would be some chance that prudent predation could be favoured. Natural selection, as Darwin realized much more clearly than many of his successors, chooses between rival individuals within a population. Even if the entire population is diving to extinction, driven down by individual competition, natural selection will still favour the most competitive individuals, right up to the moment when the last one dies. Natural selection can drive a population to extinction, while constantly favouring, to the bitter end, the competitive genes that are destined to be the last to go extinct.” (p.389 hardcover)

The natural response to reading such a passage is to consider how it applies to human beings. A superficial reading is a dangerous one, as Dawkins describes at length in The Selfish Gene. It is possible for human beings to plan and to avoid the kind of deadly spiral he describes; it simply isn’t an inevitable product of evolution that we will do so. Probably without realizing it, Dawkins uses a terrible example to try to illustrate this human capability. He cites the “quotas and restrictions,” limitations on gear, and “gunboats patrol[ling] the seas” as reasons for which humans are “prudent predators” of fish. Of course, we are anything but and are presently engaged in a global industrialized effort to smash all marine ecosystems to dust. Nevertheless, the general capability he is alluding to could be said to exist.

In many key places, we need to accomplish what Dawkins wrongly implies we have achieved with fishing: create systems of self-restraint that constrain selfish behaviour on the basis of artificial, societal sanctions. Relying upon the probabilistic force of natural selection simply won’t help us, when it comes to problems like climate change. So far, our efforts to craft such sanctions (which would probably include ‘positive’ elements such as education) have been distinctly unsuccessful.

Perhaps if people could grasp the fact that there is nothing in nature – and certainly nothing supernatural – to protect humanity from self-destruction, they will finally take responsibility for the task themselves. The blithe assumption that a force beyond us will emerge to check the excesses of our behaviour is dangerously wrong. Now, if only people could show some vision and resolve and set about in rectifying the most self-destructive traits of our species, from indifference about the unsustainable use of resources to lack of concern about the destructive accumulation of wastes. In this task, we actually have an advantage in the existence of states that exist largely to constrain individual behaviour. The kind of behaviours that produce the self-destructive spiral in Dawkins’ lions can potentially averted by putting their human equivalents into the shackles of law.

US climate legislation and the Copenhagen talks

Some news sources are reporting that Obama’s top energy advisor is saying there will be no new climate legislation in the US this year. If true, that would mean that the US will be going to the UNFCCC negotiations in Copenhagen with disappointingly little to offer as evidence of progress, reducing the chances that the talk will succeed.

That being said, Joseph Romm is decrying such stories as misleading and old news. He claims that: “for many, many months now the only issue for those who follow DC climate politics has been whether the Senate would pass a climate bill before Copenhagen, not whether a final bill would get onto Obama’s desk before Copenhagen.”

Romm has been playing the role of arch-optimist when it comes to the Waxman-Markey bill and the upcoming Copenhagen talks. Hopefully, his perspective will prove justified in light of future events.

BioBricks and synthetic biology

The basic impulse behind synthetic biology is one that human beings have been acting on for thousands of years: the desire to make living things serve our needs and desires better. We’ve domesticated animals, seriously altering their genomes and behaviours in the process, and turned wild crops into agricultural staples. Now, people aspire to use living things for all kinds of purposes: from synthesizing drugs and fuels to performing computations.

One of the most important developments of the Industrial Revolution was standardized parts. Originally used in firearms, having devices comprised of interchangeable components made maintenance and repair far simpler. Instead of having to make a custom widget designed to fit a particular machine, any standard widget of the right sort would do. To some extent, BioBricks are trying to do the same thing for engineered biological systems. Each consists of a DNA sequence held in a circular plasmid, with standard headers and footers. They include sites for enzymes, which allow the bricks to be chained together. Individual BioBrick ‘parts’ contain information such as how to code a particular protein. They are assembled into ‘devices’ that perform basic functions, and ‘systems’ that accomplish higher level tasks. MIT maintains a ‘catalog of parts and devices.’ There is even an iPhone application that allows the “review, annotatation, design, and implemention of standard biological parts.” An assembly kit adequate for 50 reactions can be purchased online for US$235.

One application of synthetic biology has been to make Amorphadiene, a chemical precursor to the ant-malarial drug artemisinin (mentioned here before). Producing the drug from the shrub in which it was discovered is expensive and tricky. As a result, annual demand far exceeds available supply. Producing it in engineered organisms could therefore make treatment more widely available. Amyris Biotechnologies, working with a grant from the Bill and Melinda Gates Foundation, has produced the drug using such an organism, and is hoping to have it on the market by 2012. The company’s founder hopes to eventually be able to synthesize any molecule found in a plant inside an easy-to-grow microbe.

Another mooted application would be engineering photosynthetic algae to produce and release oils, which could be collected and used as fuels. Such a process could be far more efficient than one based on growing conventional algae and then processing them for whatever quantity of oils they contain naturally.

Of course, synthetic biology does raise safety and ethical considerations. While I don’t think tinkering with genetic material is fundamentally morally different from cross-breeding plants or animals, there may be more danger of unanticipated consequences. Weighing the reality of that risk against the promise of what engineered organisms could do isn’t a straightforward task, especially in situations where the groups bearing the risk and receiving the benefits are not one and the same. Regulating the industry, and establishing legal precedents on things like liability, will be an important part of future policy- and law-making.

Sarkozy’s incoming carbon tax

While Canada’s best effort at a carbon tax ended in failure, one worth about $25 a tonne seems likely to be adopted in France. The new tax is intended to be revenue neutral, with corresponding handouts to households (both those that pay tax and those that don’t) and corporations. Some expect the most significant impact to be on liquid fuel prices. Sweden has been rather more ambitious in this regard, having imposed a tax of about $100 per tonne on oil, coal, natural gas, liquefied petroleum gas, petrol, and aviation fuel used in domestic travel.

Like most carbon taxes, the French initiative includes significant loopholes – including for heavy industry and non-nuclear forms of electricity generation. Even so, it represents a bit of good news in the lead-up to the UNFCCC negotiations in Copenhagen this December. Hopefully, it will be progressively expanded to other emitting activities, at the same time as the level of the tax is progressively increased. Here, Sweden sets an encouraging example: when they imposed their carbon tax in 1991, it was at about 1/4 of its present level.

[Update: 23 March 2010] French government backs down on carbon tax plan

The B.C. government’s forcible relocation law

In the run-up to the Vancouver Olympics, a law has been proposed in British Columbia that would allow police officers to forcibly transport homeless people to shelters during ‘harsh’ weather. Once they are at the shelters, they will be permitted to leave at their discretion. While it is never desirable for people to be harmed for lack of shelter, this law strikes me as morally and legally problematic. It is certainly seems contrary to section nine of the Canadian Charter of Rights and Freedoms, which provides protection against arbitrary detention and imprisonment. The question then is whether it is ‘saved’ by section one, which allows for the other rights to be subjected “only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

Under the Oakes test, which has become Canada’s standard but unofficial way of interpreting section one of the Charter, there are a number of requirements for allowing a law that violates a section of the Charter from being ‘saved’ by the ‘reasonable limits’ clause in section one. There must be a “pressing and substantial objective” and the means must be “proportional.” More specifically, the means must be “rationally connected to the objective,” involve a “minimal impairment of rights,” and that the law be proportional to the objective. People dying of exposure could certainly be categorized as a pressing and substantial objective, but I am less sure about whether there is a minimal impairment of rights involved. Certainly, the onus must be on those advocating the law to provide a strong argument for why it is constitutional. Such an argument would have to establish clearly that existing powers on the part of emergency services are inadequate to prevent homeless people suffering and dying during extreme weather, that forcible relocation would help, and that the violation of rights is proportional to the benefit.

The law may also be discriminatory insofar as it is meant to apply only to the homeless. Under the law, it seems like police would treat people differently when they came across them in extreme weather, based on whether they have a ‘home’ somewhere. The law would certainly never pass if it also included provisions for police to forcibly take people with homes back to them, if they happened to be out during an extreme weather event.

It is certainly important that shelters be available for the homeless, and that they be able to access them (especially during times of harsh weather). That being said, it is not clear why police should have the power to forcibly transport people. For one thing, the law risks being abused to clean up Vancouver’s image during the Olympics. Vancouver’s problems with drugs and homelessness are certainly something the Olympic organizers would want to keep out of the media. If they did so, however, it would be a shame; it would show that the city is prepared to simply suppress the visibility of enduring problems, rather than making a serious effort to respond to them.

Arguably, most of the problem of homelessness is the product of a weak social safety net, especially in areas like mental health and the treatment of drug addiction. For people who have others who care about them, it is possible to get reasonable assistance with such problems. For people with serious mental issues and nobody to play an assisting role, things must be much more difficult. Authorizing police to round up people who have committed no crime when it is cold and rainy seems more like an awkward cover-up mechanism than like a policy motivated by genuine concern for human welfare.

Unmanned aerial vehicles

In most of the world’s militaries – and even in paramilitary groups like Hezbollah – drones and unmanned aerial vehicles (UAVs) are playing increasing roles in combat and intelligence gathering. They are running ahead of convoys in Afghanistan and Iraq to try to spot or jam improvised explosive devices (IEDs). Even as far back as the first Gulf War, they were being used by battleships to target fire from naval guns. Some Iraqi troops even surrendered to them.

Some even go so far as to say that the era of manned fighter aircraft is drawing to a close, and that the American F-22 may be their last such craft. They can be more manoeuvrable than manned craft, since the physical limitations of pilots are no longer an issue. This is an increasingly serious problem as surface-to-air missiles continue to become faster, more advanced, and more widely employed. Due to not being limited by pilot fatigue, UAVs can also have a much more enduring presence. Missions lasting several days have already been undertaken, and future vehicles may be able to remain airborne for weeks or even months. The US Navy has a ‘Broad Area Maritime Surveillance (BAMS)’ program, which aims to provide intelligence coverage of most of the world’s strategic ocean areas, with vehicles capable of loitering for 24 hours.

Of course, the new technologies raise issues beyond military strategy. The ethics of programming machines that employ lethal force will probably become an increasingly important element of international law.

The ICRC and neutrality

I am still in the process of reading Michael Ignatieff’s The Warrior’s Honour, written when he still had the kind of freedom of speech that puts academics at an advantage relative to politicians. One situation described therein does a good job of encapsulating the complexities involved in trying to mitigate the savagery of contemporary war.

It concerns the choices made the the International Committee of the Red Cross (ICRC) during and after the wars that accompanied the breakup of Yugoslavia. The ICRC is a unique institution, legally mandated to implement the Geneva Conventions. A key element of that arrangement is neutrality; the ICRC does not distinguish between good wars and bad wars, nor between aggressors and victims. By not doing so, it maintains the kind of access that other organizations are denied.

In the wake of the Yugoslav wars, the ICRC had the best records on who was massacred, where, when, and by who. Such records would have aided the work of the International Criminal Tribunal for the former Yugoslavia (ICTY), in seeking to prosecute those responsible. The ICRC refused to provide the records, arguing that if the combatants had thought that ICRC records might eventually be used in war crimes trials, they would not have permitted the ICRC to provide the kind of aid it was able to.

The neutrality of the ICRC was subsequently rewarded, when they ended up being the only aid organization not expelled from Bosnia during the Croat-Muslim offensive against Serbs. Ironically, this included the single greatest instance of ethnic cleansing: a term generally associated with actions Serbian forces had undertaken previously, including by using released and trained prisoners as unofficial proxies for acts that violated the Geneva Conventions.

As this example illustrates, contemporary conflicts are often deeply morally ambiguous, on everything from the role of child soldiers to whether it is truly possible for aid organizations to be impartial. To me, there seems to be considerable importance to maintaining an organization like the ICRC, simply because it can get the kind of access that others cannot. When it comes to more judgmental organizations, there are plenty to choose from, including Médecins Sans Frontières, which also has a headquarters in Geneva.

Open thread: torture prosecutions

As many articles have described, the appropriate response to allegations of torture by Americans is controversial. Some argue that prosecutions are the only moral course, that they will restore US standing and draw a sharp line under the past. Others argue that, while justified, prosecutions would be a major distraction for the Obama administration, and will undermine progress on other fronts. Of course, domestic political necessities cannot provide excuses for ignoring war crimes.

That said, there is certainly a practical case to be made on both sides. While the general public hasn’t realized it yet, today’s leaders will be judged retrospectively on whether they set us on a path to avoid dangerous climate change. Prosecutions could kick off a new phase of partisan warfare that makes such progress impossible, given the need for support in the senate.

What do readers think? Are prosecutions warranted? Are they absolutely necessary? What costs would be associated with carrying them out, and with ignoring them?

An apology for Alan Turing

In addition to being one of the most notable mathematicians and computer scientists in British history, Alan Turing played a key role in cracking German codes during the Second World War. Despite the importance of his contribution, and the role intelligence from the Government Communications Headquarters (GCHQ) played in helping the allies in the Battle of the Atlantic, Turing was subsequently persecuted by the British authorities for being homosexual.

Turing was stripped of security clearance, criminally prosecuted for consensual sex with another man, chemically castrated with estrogen injections, and eventually driven to depression and suicide.

Recently, a petition was launched insisting that the “British Government should apologize to Alan Turing for his treatment and recognize that his work created much of the world we live in and saved us from Nazi Germany. And an apology would recognize the tragic consequences of prejudice that ended this man’s life and career.” An apology for both his specific treatment and the general persecution of homosexuals seems entirely in order. Hopefully, the government will bow to the petitioner’s request, despite Turing not having any surviving family to apologize to.

While writing a historical wrong is a valid reason for issuing an apology, the incident is also not without contemporary relevance. Just look at the continued policy within the US armed forces to dismiss gay linguists from the military. Once again, people making a significant contribution to national security are being discriminated against on the basis of characteristics that are none of their government’s business.

[Update: 10 September 2009] Admirably, British Prime Minister Gordon Brown issued an apology to Alan Turing: “While Turing was dealt with under the law of the time and we can’t put the clock back, his treatment was of course utterly unfair and I am pleased to have the chance to say how deeply sorry I and we all are for what happened to him. Alan and the many thousands of other gay men who were convicted as he was convicted under homophobic laws were treated terribly. Over the years millions more lived in fear of conviction.” The full statement is on the Prime Ministerial website.

Securing the City

Christopher Dickey’s Securing the City: Inside America’s Best Counterterror Force – the NYPD describes the evolution of New York’s counterterrorism capabilities following the 2001 attacks against the World Trade Centre. Much of the responsibility is attributed to Raymond Kelly, who still serves as Police Commissioner, and David Cohen, his intelligence chief. Key among the changes was the development of much greater intelligence capabilities: everything from officers posted with federal agencies and overseas to developing a broad array of linguists, radiation detection systems, and advanced helicopter optics. All in all, the NYPD developed capabilities to become a mini-CIA, while also strengthening their policing and tactical capacity. All this was done in the face of considerable bureaucratic resistance, particularly from the federal agencies who felt their role was being subverted by the new developments.

Much more than Fred Burton’s book, Securing the City considers the checks and balances associated with greater police power. For instance, Dickey discusses the intelligence operations against people protesting the Republican National Convention in New York in 2004. Dickey also makes passing reference to torture and rendition (without considering the ethics of either at length), as well as surveillance and entrapment-type operations where intelligence officers pretend to help advance terrorist plots, so as to incriminate the others involved. Dickey comes to the general conclusion that the new NYPD capabilities are justified, given the situation in which the city finds itself. He does, however, worry if those capabilities will be properly maintained as budgetary pressures tighten, or when Kelly and the other key architects leave.

Some of the book’s chapters break out from the broad narrative to discuss specific topics, such as weapons of mass destruction or the dangerousness of ‘lone wolf’ operatives who operate independently and without the links to others that make most attackers detectable. While such treatment does make sense, the placement of the chapters can make the book feel a bit randomly assembled at times. Similarly, long italic passages (several pages long) are annoying to read. One other complaint is that the book includes a massive number of names, which can be difficult to keep track of. A listing of ‘characters’ with a brief description of the importance of each would be a nice addition to the front materials.

Dickey is harshly critical of the Iraq war, arguing that is was a distraction that undermined American security. He also argues that the ‘Global War on Terror’ was deeply misguided: “dangerously ill-conceived, mismanaged, and highly militarised.” He is also critical of Rudolf Guliani, who he accuses of taking credit for the successes of others, as well as making poor decisions of his own. His general position on the risk of terrorism is an interesting one. Basically, he thinks the capabilities of Al Qaeda and their sympathizers to carry out attacks in the U.S. has been exaggerated, as demonstrated by just how inept most of the post-9/11 plots were. Nevertheless, he sees the consequences of a terrorist attack as being so severe that even dubious plans being made by incompetent terrorists need to be tracked down and broken up. He repeatedly cites the example of the first World Trade centre bombing, where an inept group failed to advance their aims until Ramzi Yousef joined them and carried their operation to completion. Because of this, he agrees with Burton in thinking that terrorism cannot be treated primarily as a criminal matter. The standard of collecting courtroom-usable evidence is too high to disrupt plots early and effectively, while maintaining the covert capacity to do so again.

Overall, Securing the City is a worthwhile read for those with an interest in security, intelligence, or policing. It’s a nice demonstration of the global importance of some cities in the present age, and the special characteristics of New York. In particular, he praises the role of immigration in the city, citing it as one of the reasons why the NYPD was able to assemble such a diverse and effective capability. Those wanting more context in which to think about the strategic, tactical, and ethical issues surrounding modern terrorism would be well served by giving this book a read.