On the general theory of expertise in democracy: reflections on what emerges from the American “torture memos” today

Twenty years ago, I wrote in Philosophy of Economics (Routledge, London & New York, 1989) quoting from Solzhenitsyn’s experience:

“….the received theory of economic policy… must be silent about the appropriate role of the expert not only under conditions of tyranny (Solzhenitsyn: “The prison doctor was the interrogator’s and executioner’s right-hand man. The beaten prisoner would come to on the floor only to hear the doctor’s voice: ‘You can continue, the pulse is normal’” ); but also where the duly elected government of an open and democratic society proceeded to do things patently wrong or tyrannical (the imprisonment of the Japanese Americans). Hence Popper’s “paradox of democracy” and “tyranny of the majority”..… A theory of economic policy which both assumes a free and open society and bases itself upon a moral scepticism cannot have anything to say ultimately about the objective reasons why a free and open society may be preferred to an unfree or closed society, or about the good or bad outcomes that may be produced by the working of democratic processes…”

Today’s Washington Post reports:

“When the CIA began what it called an “increased pressure phase” with captured terrorism suspect Abu Zubaida in the summer of 2002, its first step was to limit the detainee’s human contact to just two people. One was the CIA interrogator, the other a psychologist. During the extraordinary weeks that followed, it was the psychologist who apparently played the more critical role. According to newly released Justice Department documents, the psychologist provided ideas, practical advice and even legal justification for interrogation methods that would break Abu Zubaida, physically and mentally. Extreme sleep deprivation, waterboarding, the use of insects to provoke fear — all were deemed acceptable, in part because the psychologist said so. “No severe mental pain or suffering would have been inflicted,” a Justice Department lawyer said in a 2002 memo explaining why waterboarding, or simulated drowning, should not be considered torture. The role of health professionals as described in the documents has prompted a renewed outcry from ethicists who say the conduct of psychologists and supervising physicians violated basic standards of their professions. Their names are among the few details censored in the long-concealed Bush administration memos released Thursday, but the documents show a steady stream of psychologists, physicians and other health officials who both kept detainees alive and actively participated in designing the interrogation program and monitoring its implementation. Their presence also enabled the government to argue that the interrogations did not include torture. Most of the psychologists were contract employees of the CIA, according to intelligence officials familiar with the program. “The health professionals involved in the CIA program broke the law and shame the bedrock ethical traditions of medicine and psychology,” said Frank Donaghue, chief executive of Physicians for Human Rights, an international advocacy group made up of physicians opposed to torture. “All psychologists and physicians found to be involved in the torture of detainees must lose their license and never be allowed to practice again.” The CIA declined to comment yesterday on the role played by health professionals in the agency’s self-described “enhanced interrogation program,” which operated from 2002 to 2006 in various secret prisons overseas. “The fact remains that CIA’s detention and interrogation effort was authorized and approved by our government,” CIA Director Leon Panetta said Thursday in a statement to employees. The Obama administration and its top intelligence leaders have banned harsh interrogations while also strongly opposing investigations or penalties for employees who were following their government’s orders. The CIA dispatched personnel from its office of medical services to each secret prison and evaluated medical professionals involved in interrogations “to make sure they could stand up, psychologically handle it,” according to a former CIA official. The alleged actions of medical professionals in the secret prisons are viewed as particularly troubling by an array of groups, including the American Medical Association and the International Committee of the Red Cross. AMA policies state that physicians “must not be present when torture is used or threatened.” The guidelines allow doctors to treat detainees only “if doing so is in their [detainees’] best interest” and not merely to monitor their health “so that torture can begin or continue.” The American Psychological Association has condemned any participation by its members in interrogations involving torture, but critics of the organization faulted it for failing to censure members involved in harsh interrogations. The ICRC, which conducted the first independent interviews of CIA detainees in 2006, said the prisoners were told they would not be killed during interrogations, though one was warned that he would be brought to “the verge of death and back again,” according to a confidential ICRC report leaked to the New York Review of Books last month. “The interrogation process is contrary to international law and the participation of health personnel in such a process is contrary to international standards of medical ethics,” the ICRC report concluded….” (emphasis added)

Twenty-five years ago, the draft-manuscript that became the book Philosophy of Economics got me into much trouble in American academia. As I have said elsewhere, a gang of “inert game theorists”, similar to many (often unemployable ex-mathematicians) who had come to and still dominate what passes for academic economics in many American and European universities, did not like at all what I was saying. A handful of eminent senior economists – Frank Hahn, T W Schultz, Milton Friedman, James M Buchanan, Sidney Alexander – defended my work and but for their support over the decade 1979-1989, my book would not have seen light of day.  Eventually, I have had to battle over years in the US federal courts over it – only to find myself having to battle bribery of court officers and the suborning of perjury by government legal officers  too! (And speaking of government-paid psychologists, I was even required at one point by my corrupt opponent to undergo tests for having had the temerity of being in court at all! Fortunately for me that particular psychologist declined to participate in the nefariousness of his employer!).

I find all this poignant today as Philosophy of Economics may have, among other things, described the general theoretical problem that has been brought to light today.  I was delighted to hear from a friend in 1993 that my book had been prescribed for a course at Yale Law School and was strewn all over an alley in the bookshop.

Separately, I am also delighted to find that a person pioneering the current work is a daughter of our present PM. I have been sharply critical of Dr Singh’s economics and politics, but I have also said I have had high personal regard for him ever since 1973 when he, as a friend of my father’s, visited our then-home in Paris to advise me before I embarked on my study of economics. My salute to the ACLU’s work in this – may it be an example in defeating cases of State-tyranny in India too.

Subroto Roy,

My American years Part One 1980-90: battles for academic integrity & freedom

see revised and expanded version

My American years: Part One 1980-90: battles for academic integrity & freedom

On the Blacksburg campus February 1982, my second year in America.

I had come to Blacksburg in August 1980 thanks to a letter Professor Frank Hahn had written on my behalf to Professor James M Buchanan in January 1980.

I was in an “All But Dissertation” stage at Cambridge when I got to Blacksburg; I completed the thesis while teaching in Blacksburg, sent it from there in September 1981, and went back to Cambridge for the viva voce examination in January 1982.

Professor Buchanan and his colleagues were welcoming and I came to learn much from them about the realities of public finance and democratic politics, which I very soon applied to my work on India.

Jim Buchanan had a reputation for running very tough conferences of scholars. He invited me to one such in the Spring of 1981. We were made to work very hard indeed. One of the books prescribed is still with me, In Search of a Monetary Constitution, ed. Leland Yeager, Harvard 1962, and something I still recommend to anyone wishing to understand the classical liberal position on monetary policy. The week-long 1981 conference had one rest-day; it was spent in part at an excellent theatre in a small rural town outside Blacksburg. This photo is of Jim Buchanan on the left and Gordon Tullock on the right; in between them is Ken Minogue of the London School of Economics — who, as it happened, had been Tutor for Admissions when I became a freshman there seven years earlier.

(I must have learnt something from Jim Buchanan about running conferences because nine years later in May-June 1989 at the University of Hawaii, I made the participants of the India-perestroika and Pakistan-perestroika conferences work very hard too.)

My first rooms in America in 1980 were in the attic of 703 Gracelyn Court, where I paid $160 or $170 per month to my marvellous landlady Betty Tillman. There were many family occasions I enjoyed with her family downstairs, and her cakes, bakes and puddings all remain with me today.

A borrowed electric typewriter may be seen in the photo: the age of the personal computer was still a few years away. The Department had a stand-alone “AB-Dic” word-processor which we considered a marvel of technology; the Internet did not exist but there was some kind of Intranet between geeks in computer science and engineering departments at different universities.

It was at Gracelyn Court that this letter reached me addressed by FA Hayek himself.

Professor Buchanan had moved to Blacksburg from Charlottesville some years earlier with the Centre for Study of Public Choice that he had founded. The Centre came to be housed at the President’s House of Virginia Tech (presumably the University President himself had another residence).

I was initially a Visiting Research Associate at the Centre and at the same time a Visiting Assistant Professor in the Economics Department. I was very kindly given a magnificent office at the Centre, on the upper floor, perhaps the one on the upper right hand side in the picture. It was undoubtedly the finest room I have ever had as an office. I may have had it for a whole year, either 1980-81 or 1981-82. When Professor Buchanan and the Centre left for George Mason University in 1983, the mansion returned to being the University President’s House and my old office presumably became a fine bedroom again.

I spent the summer of 1983 at a long libertarian conference in the Palo Alto/Menlo Park area in California. This is a photo from a barbecue during the conference with Professor Jean Baechler from France on the left; Leonard Liggio, who (along with Walter Grinder) had organised the conference, is at the right.

The first draft of the book that became Philosophy of Economics was written (in long hand) during that summer of 1983 in Palo Alto/Menlo Park. The initial title was “Principia Economica”, and the initial contracted publisher, the University of Chicago Press, had that title on the contract.

My principal supporter at the University of Chicago was that great American Theodore W. Schultz, then aged 81,

to whom the Press had initially sent the manuscript for review and who had recommended its prompt publication. Professor Schultz later told me to my face better what my book was about than I had realised myself, namely, it was about economics as knowledge, the epistemology of economics.

My parents came from India to visit me in California, and here we are at Yosemite.

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Also to visit were Mr and Mrs Willis C Armstrong, our family friends who had known me from infancy. This is a photo of Bill and my mother on the left, and Louise and myself on the right, taken perhaps by my father. In the third week of January 1991, during the first Gulf War, Bill and I (acting on behalf of Rajiv Gandhi) came to form an extremely tenuous bridge between the US Administration and Saddam Hussain for about 24 hours, in an attempt to get a withdrawal of Iraq from Kuwait without further loss of life. In December 1991 I gave the widow of Rajiv Gandhi a small tape containing my long-distance phone conversations from America with Rajiv during that episode.

I had driven with my sheltie puppy from Blacksburg to Palo Alto  — through Tennessee, Arkansas, Oklahoma, Texas, New Mexico and Arizona; my parents and I now drove with him back to Blacksburg from California, through Nevada, Arizona, Colorado, Kansas, Missouri, Illinois, Indiana, Kentucky, West Virginia.  It may be a necessary though not sufficient condition to drive across America (or any other country) in order to understand it.

After a few days, we drove to New York via Pennsylvania where I became Visiting Assistant Professor in the Cornell Economics Department (on leave from being Assistant Professor at Virginia Tech). The few months at Cornell were noteworthy for the many long sessions I spent with Max Black. I shall add more about that here in due course. My parents returned to India (via Greece where my sister was) in the Autumn of 1983.

In May 1984, Indira Gandhi ruled in Delhi, and the ghost of Brezhnev was still fresh in Moscow. The era of Margaret Thatcher in Britain and Ronald Reagan in America was at its height. Pricing, Planning & Politics: A Study of Economic Distortions in India emerging from my doctoral thesis though written in Blacksburg and Ithaca in 1982-1983, came to be published by London’s Institute of Economic Affairs on May 29 as Occasional Paper No. 69, ISBN: 0-255 36169-6; its text is reproduced elsewhere here.

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It was the first critique after BR Shenoy of India’s Sovietesque economics since Jawaharlal Nehru’s time. The Times, London’s most eminent paper at the time, wrote its lead editorial comment about it on the day it was published, May 29 1984.

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It used to take several days for the library at Virginia Tech in Blacksburg to receive its copy of The Times of London and other British newspapers. I had not been told of the date of publication and did not know of what had happened in London on May 29 until perhaps June 2 — when a friend, Vasant Dave of a children’s charity, who was on campus, phoned me and congratulated me for being featured in The Times which he had just read in the University Library. “You mean they’ve reviewed it?” I asked him, “No, it’s the lead editorial.” “What?” I exclaimed. There was worse. Vasant was very soft-spoken and said “Yes, it’s titled ‘India’s Bad Example’” — which I misheard on the phone as “India’s Mad Example” 😀 Drat! I thought (or words to that effect), they must have lambasted me, as I rushed down to the Library to take a look.

The Times had said

“When Mr. Dennis Healey in the Commons recently stated that Hongkong, with one per cent of the population of India has twice India’s trade, he was making an important point about Hongkong but an equally important point about India. If Hongkong with one per cent of its population and less than 0.03 per cert of India’s land area (without even water as a natural resource) can so outpace India, there must be something terribly wrong with the way Indian governments have managed their affairs, and there is. A paper by an Indian economist published today (Pricing, Planning and Politics: A Study of Economic Distortions in India by Subroto Roy, IEA £1.80) shows how Asia’s largest democracy is gradually being stifled by the imposition of economic policies whose woeful effect and rhetorical unreality find their echo all over the Third World. As with many of Britain’s former imperial possessions, the rot set in long before independence. But as with most of the other former dependencies, the instrument of economic regulation and bureaucratic control set up by the British has been used decisively and expansively to consolidate a statist regime which inhibits free enterprise, minimizes economic success and consolidates the power of government in all spheres of the economy. We hear little of this side of things when India rattles the borrowing bowl or denigrates her creditors for want of further munificence. How could Indian officials explain their poor performance relative to Hongkong? Dr Roy has the answers for them. He lists the causes as a large and heavily subsidized public sector, labyrinthine control over private enterprise, forcibly depressed agricultural prices, massive import substitution, government monopoly of foreign exchange transactions, artificially overvalued currency and the extensive politicization of the labour market, not to mention the corruption which is an inevitable side effect of an economy which depends on the arbitrament of bureaucrats. The first Indian government under Nehru took its cue from Nehru’s admiration of the Soviet economy, which led him to believe that the only policy for India was socialism in which there would be “no private property except in a restricted sense and the replacement of the private profit system by a higher ideal of cooperative service.” Consequently, the Indian government has now either a full monopoly or is one of a few oligipolists in banking, insurance, railways, airlines, cement, steel, chemicals, fertilizers, ship-building, breweries, telephones and wrist-watches. No businessman can expand his operation while there is any surplus capacity anywhere in that sector. He needs government approval to modernize, alter his price-structure, or change his labour shift. It is not surprising that a recent study of those developing countries which account for most manufactured exports from the Third World shows that India’s share fell from 65 percent in 1953 to 10 per cent in 1973; nor, with the numerous restrictions on inter-state movement of grains, that India has over the years suffered more from an inability to cope with famine than during the Raj when famine drill was centrally organized and skillfully executed without restriction. Nehru’s attraction for the Soviet model has been inherited by his daughter, Mrs. Gandhi. Her policies have clearly positioned India more towards the Soviet Union than the West. The consequences of this, as Dr Roy states, is that a bias can be seen in “the antipathy and pessimism towards market institutions found among the urban public, and sympathy and optimism to be found for collectivist or statist ones.” All that India has to show for it is the delivery of thousands of tanks in exchange for bartered goods, and the erection of steel mills and other heavy industry which help to perpetuate the unfortunate obsession with industrial performance at the expense of agricultural growth and the relief of rural poverty.”…..

I felt this may have been intended to be laudatory but it was also inaccurate and had to be corrected. I replied dated June 4 which The Times published in their edition of June 16 1984:

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I was 29 when Pricing, Planning and Politics was published, I am 54 now. I do not agree with everything I said in it and find the tone a little puffed up as young men tend to be; it was also five years before my main “theoretical” work Philosophy of Economics would be published. My experience of life in the years since has also made me far less sanguine both about human nature and about America than I was then. But I am glad to find I am not embarrassed by what I said then, indeed I am pleased I said what I did in favour of classical liberalism and against statism and totalitarianism well before it became popular to do so after the Berlin Wall fell. (In India as elsewhere, former communist apparatchiks and fellow-travellers became pseudo-liberals overnight.)

The editorial itself may have been due to a conversation between Peter Bauer and William Rees-Mogg, so I later heard. The work sold 700 copies in its first month, a record for the publisher. The wife of one prominent Indian bureaucrat told me in Delhi in December 1988 it had affected her husband’s thinking drastically. A senior public finance economist told me he had been deputed at the Finance Ministry when the editorial appeared, and the Indian High Commission in London had urgently sent a copy of the editorial to the Ministry where it caused a stir. An IMF official told me years later that he saw the editorial on board a flight to India from the USA on the same day, and stopped in London to make a trip to the LSE’s bookshop to purchase a copy. Professor Jagdish Bhagwati of Columbia University had been a critic of aspects of Indian policy; he received a copy of the monograph in draft just before it was published and was kind enough to write I had “done an excellent job of setting out the problems afflicting our economic policies, unfortunately government-made problems!”  My great professor at Cambridge, Frank Hahn, would be kind enough to say that he thought my “critique of Development Economics was powerful not only on methodological but also on economic theory grounds” — something that has been a source of delight to me.

Siddhartha Shankar Ray told me when we first met that he had been in London when the editorial appeared and had seen it there; it affected his decision to introduce me to Rajiv Gandhi as warmly as he came to do a half dozen years later.

In the Autumn of 1984, I went, thanks to Edwin Feulner Jr of the Heritage Foundation,  to attend the Mont Pelerin Society Meetings being held at Cambridge (on “parole” from the US immigration authorities as my “green card” was being processed at the time). There I met for the first time Professor and Mrs Milton Friedman.

Milton Friedman’s November 1955 memorandum to the Government of India is referred to in my monograph as “unpublished” in note 1; when I met Milton and Rose, I gave them a copy of my monograph; and requested Milton for his unpublished document; when he returned to Stanford he sent to me in Blacksburg his original 1955-56 documents on Indian planning. I published the 1955 document for the first time in May 1989 during the University of Hawaii perestroika-for-India project I was then leading, it appeared later in the 1992 volume Foundations of India’s Political Economy: Towards an Agenda for the 1990s, edited by myself and WE James. (The results of the Hawaii project reached Rajiv Gandhi through my hand in September 1990, as told elsewhere here in “Rajiv Gandhi and the Origins of India’s 1991 Economic Reform”.) The 1956 document was published in November 2006 on the front page of The Statesman, the same day my obituary of Milton appeared in the inside pages.

Meanwhile, my main work within economic theory, the “Principia Economica” manuscript, was being read by the University of Chicago Press’s five or six anonymous referees. One of them pointed out my argument had been anticipated years earlier in the work of MIT’s Sidney Stuart Alexander. I had no idea of this and was surprised; of course I knew Professor Alexander’s work in balance of payments theory but not in this field. I went to visit Professor Alexander in Boston, where this photo came to be taken perhaps in late 1984:

Professor Alexander was extremely gracious, and immediately declared with great generosity that it was clear to him my arguments in “Principia Economica” had been developed entirely independently of his work. He had come at the problem from an American philosophical tradition of Dewey, I had done so from a British tradition of Wittgenstein. (CS Peirce was probably the bridge between the two.) He and I had arrived at some similar conclusions but we had done so completely independently.

Also, I was much honoured by this letter of May 1 1984 sent to Blacksburg by Professor Sir John Hicks (1904-1989), among the greatest of 20th Century economists at the time, where he acknowledged his departure in later life from the position he had taken in 1934 and 1939 on the foundations of demand theory.

He later sent me a copy of his Wealth and Welfare: Collected Essays on Economic Theory, Vol. I, MIT Press 1981, as a gift. The context of our correspondence had to do with my criticism of the young Hicks and support for the ghost of Alfred Marshall in an article “Considerations on Utility, Benevolence and Taxation” I was publishing in the journal History of Political Economy published then at Duke University. In Philosophy of Economics, I would come to say about Hicks’s letter to me “It may be a sign of the times that economists, great and small, rarely if ever disclaim their past opinions; it is therefore an especially splendid example to have a great economist like Hicks doing so in this matter.” It was reminiscent of Gottlob Frege’s response to Russell’s paradox; Philosophy of Economics described Frege’s “Letter to Russell”, 1902 (Heijenoort, From Frege to Gödel, pp. 126-128) as “a document which must remain one of the most noble in all of modern scholarship; a fact recorded in Russell’s letter to Heijenoort.”

In Blacksburg, by the Summer and Fall of 1984 I was under attack following the arrival of what I considered “a gang of inert game theorists” — my theoretical manuscript had blown a permanent hole through what passes by the name of “social choice theory”, and they did not like it. Nor did they like the fact that I seemed to them to be a “conservative”/classical liberal Indian and my applied work on India’s economy seemed to their academic agenda an irrelevance. This is myself at the height of that attack in January 1985:

Professor Schultz at the University of Chicago came to my rescue and at his recommendation I was appointed Visiting Associate Professor in the Economics Department at Brigham Young University in Provo, Utah.

I declined, without thanks, the offer of another year at Virginia Tech.

On my last day in Blacksburg, a graduate student whom I had helped when she had been assaulted by a senior professor, cooked a meal before I started the drive West across the country. This is a photo from that meal:

In Provo, I gratefully found refuge at the excellent Economics Department led at the time by Professor Larry Wimmer.

It was at Provo that I first had a personal computer on my desk (an IBM as may be seen) and what a delight that was (no matter the noises that it made).  I recall being struck by the fact a colleague possessed the incredible luxury of a portable personal computer (no one else did) which he could take home with him.   It looked like an enormous briefcase but was apparently the technology-leader at the time.  (Laptops seem not to have been invented as of 1985).

In October 1985, Professor Frank Hahn very kindly wrote to Larry Wimmer revising his 1980 opinion of my work now that the PhD was done, the India-work had led to The Times editorial and the theoretical work was proceeding well.

I had applied for a permanent position at the University of Hawaii, Manoa, and had been interviewed positively at the American Economic Association meetings (in New York) in December 1985 by the department chairman Professor Fred C. Hung. At Provo, Dr James Moncur of the Manoa Department was visiting. Jim became a friend and recommended me to his colleagues in Manoa.

Professor Hung appointed me to that department as a “senior” Assistant Professor on tenure-track beginning September 1986. I had bargained for a rank of “Associate Professor” but was told the advertisement did not allow it; instead I was assured of being an early candidate for promotion and tenure subject to my book “Principia Economica” being accepted for publication. (The contract with the University of Chicago Press had become frayed.)

Hawaii was simply a superb place (though expensive).

Professor James Buchanan won the Economics “Nobel” in 1986 and I was asked by the Manoa Department to help raise its profile by inviting him to deliver a set of lectures, which he did excellently well in March 1988 to the University as well as the Honolulu community at large. Here he is at my 850 sq ft small condominium at Punahou Towers, 1621 Dole Street:

In August 1988, my manuscript “Principia Economica” was finally accepted for publication by Routledge of London and New York under the title Philosophy of Economics: On the Scope of Reason In Economic Inquiry. The contract with University of Chicago Press had fallen through and the manuscript was being read by Yale University Press and a few others but Routledge came through with the first concrete offer. I was delighted and these photos were taken in the Economics Department at Manoa by a colleague in September 1988 as the publisher needed them.

Milton and Rose Friedman came to Honolulu on a private holiday perhaps in January 1989; they had years earlier spent a sabbatical year at the Department.

Here is a luncheon that was arranged in their honour. They had in the Fall of 1988 been on their famous visit to China, and as I recall that was the main subject of discussion on the occasion.

Milton phoned me in my Manoa office and invited me to meet him and Rose at their hotel for a chat; we had met first at the 1984 Mont Pelerin meetings and he wished to know me better. I was honoured and turned up dutifully and we talked for perhaps an hour. I recall making a strong recommendation that he write his memoirs, especially so that the rumours and innuendo surrounding eg the Chile episode could be cleared up; I also said a “Collected Works” would be a great idea; when Milton and Rose published their memoirs Two Lucky People (Chicago 1998) I wondered if my first suggestion had come to be taken; as to the second, he wrote to me years later saying he felt no Collected Works were necessary.

From 1986 onwards, I had been requested by the University of Hawaii to lead a project with William E James on the political economy of “South Asia” .I had said there was no such place, that “South Asia” was a US State Department abstraction but there were India and Pakistan and Sri Lanka and Bangladesh and Afghanistan etc. Sister projects on India and Pakistan had been sponsored by the University, and in 1989 important conferences had been planned by myself and James in May for India and in June for Pakistan.

I was determined to publish for the first time Milton’s 1955 memorandum on India which the Government of India had suppressed or ignored at the time. At the hotel-meeting, I told Milton that and requested him to come to the India-conference in May; Milton and Rose said they would think about it, and later confirmed he would come for the first two days.

This is a photo of the initial luncheon at the home of the University President on May 21 1989. Milton and India’s Ambassador to the USA at the time were both garlanded with Hawaiian leis. The first photo was one of a joke from Milton as I recall which had everyone laughing.

There was no equivalent photo of the distinguished scholars who gathered for the Pakistan conference a month later.

The reason was that from February 1989 onwards I had become the victim of a most vicious racist defamation, engineered within the Economics Department at Manoa by a senior professor as a way to derail me before my expected Promotion and Tenure application in the Fall. All my extra time went to battling that though somehow I managed to teach some monetary economics well enough in 1989-1990 for a Japanese student to insist on being photographed with me and the book we had studied.

I was being seen by two or three temporarily powerful characters on the Manoa campus as an Uppity Indian who must be brought down. This time I decided to fight back — and what a saga came to unfold! It took me into the United States District Court for the District of Hawaii and then the Ninth Circuit and upto the United States Supreme Court, not once but twice.

Milton Friedman and Theodore Schultz stood valiantly among my witnesses — first writing to the University’s authorities and later deposing in federal court.

Unfortunately, government lawyers, far from wanting to uphold and respect the laws of the United States, chose to deliberately violate them — compromising a judge, suborning demonstrable perjury and then brazenly purchasing my hired attorney (and getting caught doing it). Since September 2007, the State of Hawaii’s attorneys have been invited by me to return to the federal court and apologise for their unlawful behaviour as they are required by law to do.

They had not expected me to survive their illegalities but I did: I kept going.

Philosophy of Economics was published in London and New York in September 1989

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The hardback quickly sold out on its own steam and the book went into paperback in 1991, and I was delighted to learn from a friend that it had been prescribed for a course at Yale Law School and was strewn along an alley in the bookshop:

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The sister-volumes on India and Pakistan emerging from the University of Hawaii project led by myself and James were published in 1992 and 1993 in India, Pakistan, Britain and the United States.

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As described elsewhere, the manuscript of the India-volume contributed to the origins of India’s 1991 economic reform during my encounter with Rajiv Gandhi in his last months; the Pakistan-volume came to contribute to the origins of the Pakistan-India peace process. The Indian publisher who had promised paperback volumes of both books reneged under leftwing pressure in Delhi; he has since passed away and James and I still await the University of Hawaii’s permission to publish both volumes freely on the Internet as copyright rests with the University President.

In 2004 from Britain, I wrote to the 9/11 Commission stating that it was possible that had the vicious illegalities against me not occurred at Manoa starting in 1989, we may have gone on after India and Pakistan to study Afghanistan, and come up with a pre-emptive academic analysis a decade before September 11 2001.

To be continued in Part Two.

Two cheers — wait, let’s make that one cheer — for America’s Justice Department

The State of Illinois’  Governor being charged by the US Justice Department on grounds of fraud and bribery is something to cheer about for everyone who may have faith in the Rule of Law.

As has been outlined elsewhere here,  while in the United States I became  a victim of demonstrated fraud on the court (bribery and perjury) at the hands of a different State’s government attorneys. In the summer of 1992, staying with family friends at Broad Branch Terrace in Washington DC, I was told by an attorney neighbor who lived opposite of the name of  Patrick Fitzgerald, the present prosecutor in the Illinois case.  I think I  managed to speak  to Mr Fitzgerald  on the phone for a few minutes and I think it was from him that I received the name of a renowned Washington attorney who did in due course provide me assistance in the complex matters involved in my case.  About May 1996, several US Supreme Court Justices decried “attorney-fraud” publicly in the press,  coinciding  with  the Clerk of that Honorable Court advising me on the phone and by letter to return to the district federal court for rectification.  A decade later, one of the attorneys involved pleaded guilty in that district court to having defrauded a different client.  In August 2008, an attorney with the US Justice Department in his personal capacity invited me to lay out the matter before him which has been done, and I am fully hopeful the Obama Administration’s new Attorney-General will see things through to have justice delivered  in my case.   There is no time limit under Fed Rule 60(b) for rectification of fraud on the court.

Subroto Roy

 

Become a US Supreme Court Justice! (Explorations in the Rule of Law in America)

 

For almost two decades, Since the summer of 1988 when *Philosophy of Economics* got accepted for publication, I have found myself in a saga exploring the Rule of Law, the nature of justice and freedom, and the nature of racial animosity and xenophobia in the United States. Judge it here for yourself. Files 1 and 2 marked SCOTUS are the front-matter and Petition for Writ of Mandamus as received by Circuit Justice Sandra Day O’Connor of the Supreme Court of the United States in February 1996. Files 3 to 10 constitute the Appendix of Record giving the rulings of the US District Court for the District of Hawaii and the US Court of Appeals for the Ninth Circuit, including especially in File 8 the “after-discovered” evidence of how my attorney had been covertly purchased by my opponent. An example of perjured trial testimony is contained in File 2. In September 2007, I asked my opponent — the Government of one of the 50 States — to voluntarily admit its wrongdoings to the present Chief Judge of the US District Court as is required by law. Government lawyers should, after all, try to act lawfully.

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Become a US Supreme Court Justice! (Explorations in the Rule of Law in America) Preface

For almost two decades, Since the summer of 1988 when *Philosophy of Economics* got accepted for publication, I have found myself in a saga exploring the Rule of Law, the nature of justice and freedom, and the nature of racial animosity and xenophobia in the United States. Judge it here for yourself. There are 10 pdf files in a password protected post of the same name. Please send me an email identifying yourself and offering any reason, including curiosity, that you may have to want to examine the matter.

Files 1 and 2 marked SCOTUS are the front-matter and Petition for Writ of Mandamus as received by Circuit Justice Sandra Day O’Connor of the Supreme Court of the United States in February 1996. Files 3 to 10 constitute the Appendix of Record giving the rulings of the US District Court for the District of Hawaii and the US Court of Appeals for the Ninth Circuit, including especially in File 8 the “after-discovered” evidence of how my attorney had been covertly purchased by my opponent. An example of perjured trial testimony is contained in File 2. In September 2007, I asked my opponent — the Government of one of the 50 States — to voluntarily admit its wrongdoings to the present Chief Judge of the US District Court as is required by law. Government lawyers should, after all, try to act lawfully.

For the files with the evidence please see https://independentindian.com/2008/11/09/become-a-us-supreme-court-justice-explorations-in-the-rule-of-law-in-america/

 

Justice & Afzal

Justice & Afzal

first published in The Sunday Statesman Editorial Page

October 14, 2006

There is a difference between law and equity (or natural justice). The power of pardon is an equitable power. Commuting a death-sentence is a partial pardon
By SUBROTO ROY

“Fiat justitia pereat mundus” ~let justice be done even if the world shall perish ~ is a maxim only Immanuel Kant among the great philosophers may have wished to maintain. Yet it serves to remind us that there exist wrong reasons for carrying out as well as wrong reasons for not carrying out the death-sentence on Afzal Guru. Wrong reasons for carrying out the death-sentence include saying that only by his death will families of the victims of the Parliament attack receive satisfaction (justice is hardly the same thing as revenge) or that only thereby can the Indian Republic show itself to be standing up to terrorism. Wrong reasons for not carrying out the death-sentence include saying Afzal’s death would be seen as unjust by many people in J&K and result in further civil or political turmoil there or elsewhere, or that more terrorism will result.

Justice should be done and be seen to be done to Afzal by the Indian Republic ~ here as elsewhere, justice is a matter between an individual and the State. The question remains open whether such justice involves his death or his imprisonment for life or even his being paroled in due course. Unlike Praveen Mahajan for example, Afzal has not committed premeditated first-degree murder or parricide. He is from an Indian State where there has existed some separatist sentiment for decades, and evidently he has been an accomplice to an act of war against India involving attempted kidnapping or mass murder. If he is an Indian national, he may have been treasonous and seditious; if he is a Pakistani national or wishes to be treated as such, he may have been some kind of spy, agent provocateur or saboteur, or an accomplice of such people. The moral question before India today has to do with what precisely is the nature and quality of justice to be dispensed in this particular case, in these particular factual circumstances as far as presently known, given all the principles, precedents, rules and laws available.

Someone may fairly wonder how or why it is possible the President of India has any discretion at all left to commute a sentence of death once the judiciary up until the Supreme Court of India has spoken. The answer has to do with the subtle distinction that is still made in common law countries like Britain, the USA and India between law and equity or “natural justice”. Britain ever since the 13th Century has had an institution known as “Lord Chancellor” in whose person came to be combined the highest judicial and executive roles (Tony Blair’s New Labour Government is due to abolish it). “Chancery” or courts of equity traditionally were parallel to courts of law, recognising that normal legal processes may cause justice to sometimes fail (especially in corrupt times) and hence require direct executive intervention. In the United States today, equity is embodied in Rule 60(b) of the Federal Rules, and federal courts are empowered to oversee all other courts including themselves for violations of natural justice.

By way of example having nothing necessarily to do with capital punishment, “solicitation of counsel, clerks or judges” is embracery curialis, recognized as extrinsic fraud and subversion of justice since Jepps 72 E R 924 (1611), “firmly established in English practice long before the foundation” of the USA, Hazel Atlas, 322 US 238 (1943). “Embracery is an offense striking at the very foundation of civil society” says Corpus Juris 20, 496. A court of equity has inherent power to investigate if a judgement has been obtained by fraud, and that is a power to unearth it effectively, since no fraud is more odious than one to subvert justice. Cases include when “by reason of something done by the successful party… there was in fact no adversary trial or decision of the issue in the case. Where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practised on him by his opponent, as … where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat; or where the attorney regularly employed corruptly sells out his client’s interest to the other side ~ these, and similar cases which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a new suit may be sustained to set aside and annul the former judgment or decree, and open the case for a new and a fair hearing….” Hazel Atlas. Fraud on the court includes that “perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication” Moore’s Federal Practice 60-360.

Equitable action under Rule 60(b) can vacate judgment whenever such action is appropriate to accomplish justice. (In contemporary American federal judicial processes at least in the present author’s experience over two decades, this rather subtle branch of jurisprudence may have become known, however, more in its breach than fulfilment).

The power of pardon is one such supra-legal equitable power of the executive authority. For a state’s chief executive to pardon a crime is to release someone of guilt or to remit punishment. In Britain, the power is with the Government’s Home Office and in the old Commonwealth it was delegated to the Governor-General. In the USA it is a power of the President or State Governors to pardon crimes, and the most famous case was that of President Gerald Ford pardoning his predecessor Richard M. Nixon. Pervez Musharraf recently pardoned A Q Khan. Both highlight the fact the power of granting a full pardon is to be exercised rarely, and may be justifiable only on grounds of “Reasons of State” where someone has done something unlawful which the State is willing to condone for sake of some greater good in the national interest. But a pardon also can be partial, requiring the offender fulfil a condition such as serving a lesser substituted punishment. Commuting a death sentence by requiring the offender to serve life in prison is this sort of conditional pardon.

In India today, the President under Article 72 of the Constitution is empowered “to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute” a sentence of death and also intervene in other cases. Article 161 gives a lesser power to State Governors. These are singular examples of the acknowledged presence of equity in modern Indian jurisprudence, though our customary laws remain a vast untapped source of natural justice, (viz. Tagore Law Lectures 1905-1906 by SN Roy). Just last week, a Supreme Court bench of Justice Arijit Pasayat and Justice SH Kapadia ruled the power of reprieve, pardon or remission of sentence may not be exercised for “political considerations or on the basis of religion, caste or other extraneous factors”. There must be bona fide valid reasons. The bench set aside an Andhra Pradesh order passed by a Governor from the Congress Party remitting the sentence of imprisonment awarded to a Congress leader in a murder case involving a Telegu Desam Party victim. In an egregious violation of his discretion, the Governor had said the sentence already undergone was sufficient and directed release, but the Supreme Court in November 2005 admitted a petition challenging the order and stayed it. The Court has now held that exercise of the power is subject to judicial review and it may not be exercised for extraneous, political or mala fide reasons. The Court has thereby enlarged its role in equity (or natural justice) similar to that which American federal courts have had under Rule 60(b). There is also an argument for abolishing Article 161.

In cases of equitable treatment of capital punishment in India today like that of Afzal (or Dhananjay before him), the fact the Executive has notoriously starved our Judiciary of adequate resources ever since Independence (The Statesman, 26 February 2006) also may not be something irrelevant to evaluating the likelihood of a mistake having been made. All things considered, if justice is to be done and seen to be done in Afzal’s case, the Indian Republic should be in no hurry whatsoever in deciding to either execute him or to even release him.

From Facebook 31 March 2014

Why was Afzal hanged in such a hurry and almost in secret? Why did the BJP bay for his death so loudly every day, getting the Congress scared they would lose an election if they did not? Competitive foolishness just as over Telengana. Afzal had not pulled any trigger. That it was an avoidable injustice is made apparent by the Supreme Court commuting the death sentences of other political murderers, including Rajiv Gandhi’s killers and now Bhullar…


From Facebook 24 November 2012

I did not think Kasab should have been hanged principally as it was on the basis of his evidence that India cracked the case and he deserved some jurisprudential credit for that. He was the star witness for the prosecution against the terrorist masterminds who had sent him. Separately, I also do not believe, all things considered, that Afzal should be hanged, though there may be nothing defective in law against his conviction and sentence and he has had some legal bad luck. The law of pardon or commutation is of an equitable nature, beyond the normal law itself…His cooperation with the police would be the reason for his life to be spared — besides the fact that he pulled no trigger to kill anyone himself nor caused anyone else to do so.

From Facebook August 12 2011:

Subroto Roy has now for the first time been able to read the Supreme Court judgement affirming Afzal Guru’s death sentence, commuting Shaukat’s, and affirming the acquittal of Gillani. It does not seem defective in law. Afzal Guru was perhaps misrepresented by lawyers or misled himself into confessing his crimes very early on. But hand-in-glove with the murderous terrorists he certainly appears to have been. The fact he helped the police with his confession may be the only equitable reason for the President to commute the sentence.