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Posts Tagged ‘law’

Like night follows day, liberals oppose wars started by Republicans and shrug their shoulders at those started by Democrats.  Indeed, even when those wars–both Iraq and Afghanistan–were supported by congressional resolutions and UN mandates, there was much talk over the last decade of “illegal wars” and the evils of unilateralism.  All that talk evaporated when President Hope and Change assumed the helm.

The Libyan campaign manifests a certain amount of multilateralism (indeed, France is there, which is apparently the sine qua non of all multilateralism) but there is no authorization at all from a congressional resolution.  Under the War Powers Act, which was instituted post-Vietnam and post-Nixon, American military action of more than 60 days requires consultation with Congress and formal congressional support.  Indeed, this statute itself quite a bow to executive power, as the Constitution does not seem to contemplate any unilateral, executive military action other than in the case of repelling national invasions.  Congress must declare wars.  And, a fortiori must authorize warlike military action in general. Here it has partially delegated that power, but retained its essential role in the process.

Obama is thwarting that role and usurping the powers of war and peace solely to himself.  This is, quite frankly, the traditional mark of a tyrant.  It should have all Americans from every background and political persuasion concerned.

Here we have an action far overseas, that has been subject to minimal explanation to the American people and is based on a very dubious rationale of stopping so-far-nonexistent-masacres, and not a single American legislator has voted in favor it.  The deadline for such authorization has come and gone, and Obama has announced quite lawlessly in my view that he does not have to and does not intend to seek any congressional support for the Libyan campaign. 

Ideological and cowardly as our political leaders are, we’ve seen little institutional concern over Congress’s rights here. Their one trump card now would be to defund the campaign.  But there seems little support for that. If this war is indeed popular, shouldn’t the Congress at least vote to authorize it, if only to preserve its own institutional power? One would think the Congress would ant to shore up its ability to prevent a future unilateral war.  And this war, unlike Iraq, is truly unilateral insofar as it emanates from and is sustained by the will of one man alone, the President, without any checks and balances to speak of!  That he has teamed up with other regimes, some democratic and others less so, is immaterial.

We are witnessing one of the chief evils of a Republican-Party dominated national legislature:  they rarely see a war or military action they’re willing to oppose, which passivity they imagine to be the height of patriotism.  In spite of this imagined seriousness, some completely idiotic wars have come and gone this way (such as Kosovo), and, from a purely self-interested standpoint, it should be noted that Democrats do not return the favor even after they’ve voted in favor of military action, e.g., the ridiculousness that is John Kerry.  While the President deserves some deference on foreign policy, particularly in the age of al Qaeda, that deference can be taken too far.  When the President has no congressional authorization whatsoever and violates a statute to commit a war, that is the time for nonideological action based on the institutional concerns of the legislative branch itself.

The President, like all presidents, quite naturally and predictably changed his tune and supported Bush-era institutions such as the GITMO detainment and related executive rights over foreign policy.  This is what powerful men do; they are jealous over their power and their prerogatives.  But Congress, contrary perhaps to the expectations of the Founders, has proven to be a bit of a pushover, particularly on matters of war and peace.  Why is this? Well, the less they do, the less responsibility they have, and thus the less blame they must endure for failure.  This seems to be part of the problem.  In addition, the rise of ideological politics, where ideologically motivated political parties seek certain ends without regard to which branch may implement them seems to have been an unexpected development of the last 100 years or so.  The Founders imagine a politician to be a proud man, naturally avaricious of power, and therefore unlikely for ideological or other goals to give up that power.  The founders, nearly all lawyers, imagined the genius of the advocacy system writ large, whereby faction would balance faction and each branch of government would be on guard against the others. What they did not contemplate is that ideology and the politics of party would castrate men, rendering them obedient and humble before the President elected by a national plebiscite.  The disaster of Vietnam shook Congress from its stupor.  Let us hope nothing quite so bad is required to get the Congress to check the ambitions of Obama.

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Military tribunals make perfect sense for members of al Qaeda.  These individuals are non-citizens, their prosecution often depends on sensitive intelligence, and their presence in American courtrooms would be disruptive and a security risk.  In war, military tribunals have been used from the Revolutionary War forward, and their streamlined procedures, ability to hold proceedings in secret, and capacity for swift justice recommend them over civilian procedures designed for ordinary crimes.  Of course, the  years-long delays in trials for Guantanamo Bay prisoners and the failure, since 9/11, to execute huge numbers of al Qaeda members in our custody suggests the “swiftness” part is not taken seriously enough by the executive branch.  By contrast, in World War II, Germans using American uniforms to infiltrate allied lines and disrupt American units during the Battle of the Bulge were summarily executed.  But, even so, these tribunals are preferable to the alternative, even if their potential efficiency has not bee employed to great effect.

So it is with a mixture of happiness and schadenfreude that I learn the Obama adminsitration is going to try Khalid Sheikh Mohammad in a military tribunal down in Guantanmo Bay.  Recall that Obama and many of his supporters preened self-righteously about the demerits of preventitive detention, the need to accord al Qaeda detainees full POW status, the evils of military tribunals, the inhumanity of drone attacks and much else during the 2008 campaign and before.  That is, the left didn’t only rail against the War in Iraq, where they had a point.  They also railed against every aspect of the war against al Qaeda. 

On both fronts–preventitive war and the use of cedures for terrorists–Obama is in retreat.  He is realizing that most Americans don’t really give a fig about terrorists, they want them killed or captured, and simply have the minimal humane concern that innocent goatherders be returned to their families if they can be reliably identifiied.  We all know, and Obama and his buddies forgot, that the burdens of proof are shifted in wartime and that we must err on the side of safety, particularly as we face a foreign, ruthless, and uncivilized enemy that deliberately hides among civilians.  It is not America’s fault that the innocent Afghanis and al Qaeda terrorists appear similar; it’s al Qaeda’s, with their ragamuffin appearance and terrorist tactics. 

I’d like to think this decision is a sign of Obama growing in office, but it appears more like simple triangulation.  Just as he dropped his lifelong obsession with gun control once he became president and realized it was political dynamite, it’s obvious that his views on foreign policy and the law of war were mostly campaign props, instincts developed from years in liberal Hyde Park, rather than well thought out positions.  Here he has been temporarily burdened by the incompetent Eric Holder’s “true believer” implemntation of these principles, but Obama’s political instincts are not so terrible than a guaranteed loser–such as a face off with 9/11 Families in NYC–is going to be pursued to the bitter end. Even on his signature issue, race and American identity, he left his pastor of 20 years when it became a problem. 

We are reminded from all this and much else that Obama is not a man of high principle; his chief principle is his love of self and his interest in political survival.  And thus all that “hope and change” rhetoric is now quite obviously a bunch of gliterring genrealities uttered by a thoroughly ordinary politician.

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One notable aspect of the defense of the Ground Zero Mosque is the claim that defending the rights of these Muslims it is part and parcel of living in accord with our traditions of property rights, free speech, and religious freedom.  But this is, frankly, the theory of America.  Yes, these are important and hoary legal rights.  But they were instituted by our Founders and still valued for practical reasons:  we value our own right to worship, we do not want our neighbors policing our worship, we do not want to contribute to the worship of others, with which we may disagree, and we do not want the kinds of violent contests over religion that have characterized much of European history.  In our past, and even now, there were practical limits on the range of expression of speech or religious freedom owing to our common heritage.  Likewise, and with similar practicality, we value democratic institutions because we believe it limits government excess, allows our interests to be filtered through the political process, and prevents the concentration of power in a king or oligarchy.  But, we also knew until recently among whom we were living, voting, and choosing representatives and presidents.  These were not third world rabble on the whole.  We were not going to face violent reactions in either politics or religion if the outcome–conversion or a lost election–were not a desired one.  Once again, experience rendered the theory a practical and beneficient one.

But for liberals–whether neoconservative or “out of the closet” left-liberals–the procedures are often valued without regard for their practical outcome.  And among left liberals in particular, negative practical outcomes are embraced in the name of theories because these outcomes undermine traditional power structures, habits, and people.  Such rhetorical appeals use our honor and contempt for hypocricy as the very means by which our collective happiness will be undermined.  Thus, free speech for Muslims is championed while draconian prosecutions for “hate speech” among our peers in Europe and Canada are greeted with indifference.  Democracy that yields a ban on gay marriage is struck down by the courts, even as it is championed in Iraq to accomplish Sharia or in South Africa to expropriate property from farmers.

If I may paraphrase something I wrote earlier on Bush’s policies on Iraq:  he acted on the assumption that we’re winning in Iraq by turning Iraq into a democracy, but he was mistaken insofar as he believeed “democracy” is a substantive policy outcome and not an interim procedure that could lead to any number of substantive results both for us and the Iraqis.

Procedural schemes in government are justified to the extent they lead to some long-run practical benefit. Procedures and rights are inventions to achieve practical and final ends like safety, commerce, and order. In both foreign and domestic policies, there should be no purely idealistic procedures, if they would likely lead to some abhorrent practical outcome, such as a society’s destruction.

With Bush and his inner circle, the supporters of a deontological and idealistic foreign policy deluded themselves into thinking that they’re the good ones and that their opponents simply lack sufficient commitment to the cause, instead of recognizing that they’re thoroughly ideological in outlook and merely hoping that a positive outcome will result from the unknown nature of Iraqi public opinion as expressed through elections. This was dangerous and irresponsible, considering the stakes.

Similarly, blind supporters of free speech and religious freedom for Muslims in America do not recognize that the lack of commitment to free speech and religious freedom among this subgroup renders that expansion of freedom short-sighted, unwise, and self-destructive in the long-run, or, at the very least, carries some countervailing risks.  What good is “religious freedom” that results in subordination to Sharia in the name of a suicidal consistency and unwillingness to look beyond theory to practice and outcomes?

As Burke stated in reference to another self-destructive experiment in consistency, “Government is not made in virtue of natural rights, which may and do exist in total independence of it, and exist in much greater clearness and in a much greater degree of abstract perfection; but their abstract perfection is their practical defect. By having a right to everything they want everything. Government is a contrivance of human wisdom to provide for human wants. Men have a right that these wants should be provided for by this wisdom.”  Indeed.  While rights and legalities are of high importance, they are not of supreme importance.  They are means to an end, and if they clearly do not serve that end because of some changed circumstance, they must be modified, amended, or in some other way adjusted to deal with reality.

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Ace reports an extraordinary story that I’d like to hear the disciples of judicial process and civil liberties for terrorists in the Democratic Party respond to:

Last May, Iraqi terrorists kidnapped three American soldiers.

American intelligence officials searched for cyber-signals about the kidnapping… and actually found them. They found the kidnappers talking to each other on-line.

However, they had to stop listening because the signals were passing through an American-based server and under the law that meant there could be no eavesdropping without a warrant.

So they stopped listening in on foreign terrorists holding kidnapped American soldiers.

For ten hours, officials worked to get “emergency authorization” to resume eavesdropping.

His post, and the evidence in support, is worth reading in full. In an earlier post entitled Wishful Thinking and Terrorism and another here, I’ve discussed some of the issues surrounding this issue.  In short, my view is that combating terrorists located overseas during a time of war, when combined with emerging communications technologies, demands flexibility and less judicial process than the fight against peacetime, domestic criminality. It would be nice if the Democratic Party would grow up and quit acting like this war to protect America from terrorism (and also the exigencies of protecting our troops fighting it overseas) can be carried on effectively without some flexibility in the executive branch and its agencies. Process is not free. We accept this domestically because we, American citizens, might be caught in the law enforcement net. But for terrorists communicating overseas with one another or their agents in America, there are few valuable interests at stake. If any American is talking to Khalid Sheik Mohammad, I want someone in the CIA listening as a matter of course.

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Andrew Sullivan, as usual, is confused and lets himself get carried away when it comes to homosexuality. He notes, “In 1994, just 19 Fortune 500 brands advertised in the gay press. Last year, 183 did.”

He concludes solemnly, “The private sector has long led the government in recognizing the simple reality of gay America.”

Umm, no. The government has always recognized this just fine when it is relevant, and it certainly can’t be said to have ignored gays in the bygone age of criminal sodomy laws. No, the government treats us all the same, except when we’re different in a relevant way. It doesn’t need to recognize the “gay reality” more than any other. The government and its laws rightfully do not care if we have long or short hair, or if we spend our money on books or on CDs, or if we are stylish or dull. A gay person’s legal reality is no different than anyone’s else. A gay person can call 911, file a lawsuit, and apply for a student loan. And, of course, a gay person can marry a person of the opposite sex just like everyone else. What Sullivan really is saying by innuendo is the theme underlying so much of his writing: since esteemed big businesses don’t seem to get hung up on gays, and indeed make money marketing to them, why can’t I and every other gay person get my surrogate daddy’s approval through government-recognized gay marriage? I hate to be so harsh, but this theme runs through his and all other gay people’s appeals to acceptance rather than mere toleration.

Of course, the difference between the government and the market is profound. It is the differences between law and its attendant social approval on one side and voluntary, private arrangements on the other. The government does sometimes care if we’re a man or a woman, or a citizen or a foreigner, or any number of other distinctions. In these areas, the law’s otherwise one-size-fits-all rules recognize that people are not equal in all respects. But these exceptions are exactly that: exceptional. For the most part, the law treats all of us the same.

Businesses are quite different, since there is a great deal of money to be made by appealing to niche markets. Thus, instead of one movie or one book or one type of car or one type of music, there are many examples of each. Unlike the laws, the market and its participants gain a great deal by recognizing our differences in finer and finer detail. This doesn’t prove that the business world is more decent than the government, but rather that it functions differently. It appeals to our voluntary choices, does not use force against us, primarily seeks to make a profit, and does not purport to codify our moral sensibilities.

Indeed, the behavior of businessmen historically shows that they are prone to avarice and indifference to the common good and should, therefore, be appropriately regulated to prevent anti-social activity. Businesses, after all, have sold everything from radar detectors and unsafe cars to Olde English 800 and security systems for drug lords. Various businesses might appeal to gays–gay people do, after all, have money–but they also appeal to everyone else: good, bad, and indifferent. Government, with an entirely different set of tools and concerns must keep people and their businesses within certain boundaries. It must bestow its benefits parsimoniously. And this means, at times, it must operate far behind the curve of social change, lest faddishness be enshrined in law, e.g., urban renewal, prohibition.

Sullivan’s lazy, hair-brained, and easily refuted blog entries are a real disgrace to his own intellect and an insult to his numerous readers. His latest example of sophistry is, sadly, just one of many.

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