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Posts Tagged ‘Constitution’

Libyan Misadventure

America is undertaking an undeclared war in Libya against someone that has not done anything to harm the US in 20 years or more.  It would be like attacking Cambodia today for the Mayaguez Incident.  It’s all trumped up, and the ostensible purpose in advancing human rights issues, cut both ways.

Andy McCarthy delivers a real tour de force analysis of this whole stupid campaign, from its false pretenses, to the contributions of congressional cowardice, to its shifting and dishonest rationale.  I particularly like his point that Obama has this notion of “staying on course with history” but that, in the process, he risks arming the same kind of people we once armed in Afghanistan, only to find them turn against us.  Indeed, there is substantial evidence the Libyan opposition is Islamist and aligned with al Qaeda.

He writes:

Obama convinced himself that Qaddafi was about to fall. This misimpression was compounded by European pressure (driven by the continent’s dependency on Libyan oil reserves) and by what Victor Davis Hanson sagely diagnosedas a desire to avoid being seen as once again trailing rather than leading events, as in the case of Egypt. All this together induced a lethal flip-turn, and the president announced that it was time for Qaddafi to go.

Yet, Obama’s unprovoked military offensive, in conjunction with NATO, is ostensibly divorced from this stated American goal. We began attacking Qaddafi’s forces and his compound while disavowing any intention to oust him. We are there only to protect civilians, administration officials maintain. Meanwhile, attacks against Qaddafi intensify, “rebel” atrocities against black Africans are ignored, and intervention hawks like Sen. John McCain (until recently a supporter of the U.S. embrace of Qaddafi) advocate that the rebels be armed and trained, notwithstanding their known terrorism ties.

McCain’s response only reminds me that if he were president we’d have a dozen similar campaigns on our hands, including perhaps one in the Caucuses that could lead to WWIII with Russia.  I’m glad for this reason alone that he is not president, but the great danger he posted to world peace does not take away from the various errors and evils of the Obama administration.

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Health Care Shutdown

I have not noticed Obamacare; neither have most Americans.  Obama for political reasons pushed this “urgent” law and then allowed most of its provisions, popular and otherwise, to kick in two or four years out. Thus, the most energized constituency are those Americans fearful of its impact and attached to the status quo. Obama did not manage to build a group of supporters, outside of a few activists.  The energy is with his opponents.

While I’m encouraged by the federal decision declaring the individual mandate unconstitutional, I am doubtful this decision will not be overturned.  The Supreme Court’s Commerce Clause jurisprudence is incredibly malleable, and unlike the Violence Against Women’s Act or the Gun Free School Zones Act cases, the provision (or not) of health care is much more directly an economic activity, which is dealt with more deferentially by the courts.  Of course, a brief perusal of the Constitution reveals a great deal the federal government does is unconstitutional, but the Court’s long line of cases have created a kind of parallel “constitution” that must be treated as law as a practical matter.

Obamacare is a major boost to the destructive entitlement spending that will bankrupt our country before long.  It is a major imperative to reverse it in 2012 or earlier.  Obama’s lack of political acumen will likely be its death knell, however, rather than the courts, in spite of this brief (and likely fleeting) sign.

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FBI agent, Samuel Hicks, was killed this week in Pittsburghwhile serving an arrest warrant in a botched drug raid.  He was 33.  After the agent knocked on the suspect’s door and announced his intention, the suspect apparently proceeded to flush his stash of cocaine down the toilet.  After the suspect didn’t answer, they were shot by the suspect’s wife when they came through the threshold.  The arrest went down using the “knock and announce” tactics and non-SWAT gear that libertarians have long asked for.

For years now libertarians have complained about “excessive force” in drug raids, including SWAT teams’ use of AR-15s and full body armor.  Even now, libertarians pretend that drug dealers’ sordid lives are equal in social value as those of FBI agents, blaming the FBI agents for their raid tactics rather than looking at the long string of criminal, illegal choices that led to the suspect’s position on the wrong end of a raid in the first place.  I wrote in an earlier entry–an adaptation of which was published in the Washington Post–that not only are police using less force today than in the past, but that the displays of potential force in a typical SWAT raid actually reduce violence compared to alternatives by encouraging submissive behavior by suspects.

The moral compass of libertarians is more than a little off course, and that is why they remain a fringe movement in America’s public life.  Even people that recognize police and the state need to be restrained by generous protections for civil liberties do not typically believe that the lifestyles of drug dealers are the reason why; instead, these rights are protected because criminals as a whole act as surrogates for other members of society who may have encounters with police.  Undeniable criminals’ civil liberties are respected because innocent people too may be arrested, not because accommodating crooks and allowing them to run wild is an end in itself.  The libertarians’ silence on the Hicks’ case as the facts have come out is noteworthy.  The pro-drug-dealer libertarians of the CATO Institute make a big show of every mistaken drug raid, while ignoring the many cases of brutal drug dealer violence against police and one another. Libertarians ultimately have a maudlin view of drug dealers, whose “natural rights” to deal crack are somehow being infringed.  This is of course a ridiculous position, that makes little account of the rule of law, and ends in the absurd equation of the moral status of violent, greedy drug dealers with that of sworn FBI agents enforcing our democratically enacted laws.

Update and Response:  Radley responded at length to my past, as have many commentators below. 

One line of argument raised by Radley and many commentators below is that these raids are unnecessary and suspects could be taken on the streets.  That may be true and safer in some instances, but I think this sets up a false dichotomy, and I believe some deference is owed to the experienced folks who have to make these decisions under conditions of uncertainty. 

Further, the question is not “no knock” raids versus “no raids at all.”  It’s “no knock raids” versus “knock and announce raids.” The older tradition of police work was one where suspects had a great deal more fear and thus respect for the police often involved knocking on the door and arresting them without much resistance.  This has changed; it’s not controversial to say criminals in general are somewhat more violent and less respectful of police than they were in, say, the 1950s.  Where a search warrant is involved, the home is where the evidence is.  If the suspect and home are not secured simultaneously, a conviction of someone even for a very violent offense may not happen. 

The safety tradeoffs of public arrests versus arrests at home are not obvious either.  Felony stops and high speed chases are both notoriously dangerous and endanger the community at large rather than limiting the collateral damage to the drug dealers and their associates (as well as the police, who must take some risks by necessity).   

It’s also been suggested that somehow this drug dealer’s wife was some innocent babe in the woods who only cared about protecting her children, as evidenced by the 9-11 call.  This paints a “snapshot” distorted picture of the suspect and his family.  Setting aside the possibility that the 9-11 call that Radley was so moved by was a ruse to drum up an alibi, news reports make it clear that she had expensive tastes and was arm-and-arm with her husband in his drug-dealing enterprise.  There is a chain of choices that led to this incident.  She could have left her man. She could have made an ultimatum and told him to stop dealing drugs.  But instead together they took the major risk that they would someday be raided over their drug dealing gig.  I’ll even concede that drug dealers run higher risks of “home invasion” robberies, but at the same time they also run the higher risk of police running warrants.  If someone busts into my house, I can be 99% sure it’s not the cops.  For a drug dealer, maybe it’s a 50-50 proposition.  So she can’t just claim complete innocence and surprise that people are busting through her door, and it says a lot about her that she’d put these kids in that position.  Home invasions of one sort or another are a risk of the “profession,” and if you tag a cop you should expect to go away a long time. 

This line of argument also risks absurdities.  It’s not clear why these concerns for suspects’ families should not apply in the case of super-violent criminals.  After all, the wives and kids aren’t the serial rapists or bank robbers, right?  I guess the people on the freeway or 7-11 parking lot should be put at risk instead. 

Finally, there is a persistent attempt to connect these raids exclusively with the drug war.  But this is not the case.  Warrants pre-exist the Nixon-era “War on Drugs.” Warrants are mentioned in the Constitution’s Fourth Amendment.   In fact, in the recent past, these raids were undertaken with fewer civil liberties’ protections in a milieu of much higher police-on-citizen deadly violence.  Police tactics evolve, and the SWAT raid has the benefit of overwhelming a suspect and making him psychologically ill disposed to shoot at the cops in a desperate Alamo-style showdown. 

The real precipitating driver for the birth of SWAT teams and SWAT tactics were incidents like Charles Whitman’s murders at UT in the 60s and the persistent problem of barricaded suspects in armed robberies.  Once that capability is there, however, there is no reason it shouldn’t be used when practical. It’s obviously quite a bit safer for everyone involved to raid a house using a SWAT team as opposed to two plain clothes Narcotics officers using a Remington shotgun.  (Watch Serpico sometime to get a sense of the 70s warrant-service flavor.) 

I do think a lot of this may come down to optics.  After all, the statistics are not on Radley’s side.  He says, “And even if all of these raids went down exactly as planned, there’s the broader question of whether the image of armed men dressed as soldiers battering down American citizens’ doors some 40-50,000 per year, mostly for consensual crimes, is one that’s consistent with a free society.”  Pace Radley’s point, I find this imagery less disturbing than the imagery of police officers’ funerals.  It is appropriate that some risks are taken by police to preserve evidence while also protecting themselves, and in achieving those goals, we should be generous in our grant of means, equipment, and tactical discretion.

It seems elementary, but highly controversial among libertarians, that so long as a law exists, it should be enforced.  It would not be appropriate for police to decide not to enforce the drug laws, and, most important of all, there is not a hermetical seal between drug dealers and other criminals.  Recidivist drug dealers commit other crimes.  Other types of criminals deal and use drugs.  On balance, drug crimes permit violent and anti-social people to be locked up for a long time on a relatively easy-to-prove charge.  I don’t buy all these guys would be getting masters degrees if drugs were not criminalized.  There have always been rackets, and there have always been greedy, law-breaking people.  I’d rather they be convicted of an easily proved crime than run around pimping prostitutes or robbing banks or doing God knows what else that would be much harder to obtain convictions on if drugs were legal.

That said, I’ll concede that some good arguments exist to decriminalize certain drugs and reduce mandatory minimums.  But the issue of the law’s substance and the tactics used in its enforcement are distinct.  Other criminals whether thieves or child porn possessors or vandals could and should be subject to “no knock” warrants when necessary to preserve evidence and when, as here, it’s the safest way to protect the community at large in the arrest of the suspect.

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If America lurches towards dictatorship, it will be more with a whimper than a bang. We won’t need to fear secret police so much as the oppressiveness of mass conformity, social pressure, the siphoning of wealth, and the spread of “official” viewpoints. I realize Americans’ fears of one’s political opponents assuming dictatorial powers are a bit overwrought and overdone. Neither W, Bush Senior, Clinton, nor Reagan was in any real sense a potential dictator, even though all three were reviled and feared by many opponents. Nonetheless, with the perspective of time, we see that their imagery, styles, goals, and personalities were American through and through.

The times and the place create the leader, and our post-religious, meaning-starved society more than ever wants atonement, purpose, and passion. The Obama message to white and black alike has resonated.  To the former he promises forgiveness, to the latter, dignity and power.  But his style, his words, and the imagery of his campaign are all new, whether in the form of enormous adoring crowds or the creepy posters. Coupled with an existing economic crisis and the Bush administration expansion of executive power, Obama certainly could move us in a very bad direction from which it would be very difficult to return to ordinary, constitutionally limited government.  Some of the brakes we take for granted will be absent.  Obama can cry racism, for instance, in the casual, insinuating way he did in his primary campaign against Hillary Clinton.  Further, his supporters and his support is both intense and untethered to specific actions.  It is hard to imagine that Obama will be forced to deflect the kind of criticism Bush has been subjected to from the right. By 2004, Bush was widely treated by conservatives as a mere magistrate and widely defended simply as the lesser of two evils.

The best analog would probably be someone like the Four Term leader, FDR, who retained a cult-like level of respect long after his death among working class survivors of the Great Depression. In reading a collection of contemporary essays, I was struck by the prescience and continuing relevance of the following passage by Herbert Agar:

Our real danger is from people like the late Huey Long, or the amiable Doctor Townsend. If fascism comes to America, it will not come as the result of a comic-opera putsch in which Wall Street buys an ex-general of Marines to lead a march on Washington. It will come as it came to Europe, as a revolt of the lower middle class, of the people who want to be self-respecting proprietors, but who find themselves-dispossessed–proletarian in fact, but not in feeling. These people are easy game for the demagogue, for the man who will promise them the moon and promise it quickly, who will tell the desperate middle class the the problem of making them all kings, or all financially independent, is perfectly simple.

If the middle class is sufficiently desperate, it will vote the demagogue into power. And when the demagogue comes to power, he will find that his ‘age of plenty’ is not so easy to provide. At that point fascism is born. At that point the demagogue, threatened with a breakdown of the whole economic system, turns to the Lords and Masters whom he has been abusing, and makes a deal.  The demagogue stays in office and keeps the people quiet.  The Lords and Masters stay in power and run the economic systems just the way they ahve always wanted to run it.  The corporate State is monopoly-capitalism made safe, monopoliy capitalism with the whole power of society behind it.

The economic bailout rammed through Congress will give Obama and his future treasury secretary incredible leverage over every sector of the economy.  Apparently “helping” our basket case auto industry is now on the agenda, but everything will have a catch:  obeissance to whatever faddish idea Obama has about giving his constituents a fair deal, anti-free-market environmentalist extremism, and who knows what else.  The worst thing about this will be that Bush’s corporate welfare was always rightly labeled as such by genuine free market critics.  Obama will have his mass movement in his corner, denouncing critics as retrograde special interests and uncompassionate failures.  He’ll tie the passions of young people with the most small-minded and short-sighted indulgences in mercantalism.  Judging by the way he handled things in Chicago and on the campaign trail, don’t expect kid cloves from The One, especially when he’s pursuing bad policies that help the connected few at the expense of the many.

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Bush’s defense of his more controversial stands in the war on terror has been Clintonian. First, he denies that something is taking place. Then, when that something–in this case, the use of “enhanced interrogation techniques” is exposed–he simply denies without explanation a reasonable characterization by critics: these techniques constitute torture. Now, I do not support torture. And, more precisely, I do not support official policies that sanction torture. There may be times to forgive ultra vires actions after the fact; this is different from allowing them in advance. These techniques and policies may be defensible. But Bush does not show respect to his critics or the citizens who elected him by providing such a defense. He never says, for instance, these are regrettable incidents of war, truly dirty deeds that are absolutely necessary. Instead, he just repeats: this is necessary, and also this is not torture. No one is fooled, not even his supporters. This kind of rhetoric has been his hallmark in other contexts; for example, he denied that his nation-destroying amnesty proposal was in fact amnesty.

Framing policies is important. There is nothing wrong with describing them in a manner that reasonably describes them in a way that is favorable. But simply denying reality and ignoring critics and proffering labels instead of reasoned arguments is a sign of decline. It’s a sign of decline in the Presidency and also in the citizens who accept this descent into unreason. Reagan, in describing his various controversial policies–the arms race or cutting taxes and spending, for example–did not deny reality, but instead explained how these policies were necessary and likely to work towards the common good. He acknowledged their essence and did not, for lack of a better word, lie.

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