24
Apr
2013
Road to Serfdom? Not on Daniel Kuehn’s Watch
Commenting on the Boston suspect:
On this particular case, I don’t want to comment too specifically except to just make a blanket statement that I obviously think Tsarnev should be accorded the full protections of the Constitution. I hesitate to get outraged at what’s happened so far simply because my experience with Law and Order leads me to have some vague recollection that they can hold someone for a while without arresting them while looking into things, and I’m not sure how that works exactly. But those legalities aside (which they should exploit to the fullest as long as it’s legal), he needs to be Mirandized if we’re going to hold him.
I should watch those off-handed remarks,,, people were flipping out over the Law and Order line unnecessarily I think. It was a casual way of saying “somebody that knows how law enforcement works fill in the details that I’m ignorant on”.
It was just a Monday morning post – not long after the capture and some recollection that there was a period that law enforcement had to charge them. That’s done, so it’s a moot point now. And it’s a good thing.
This was an excellent post by Andrew Sullivan on the whole ordeal: http://dish.andrewsullivan.com/2013/04/22/padilla-vs-tsarnaev-bush-vs-obama/
Generally speaking – aside from a few excesses (hey, we’re all human), this has proceeded very well I think.
I think it is appropriate that Tsarnev is treated as a civilian criminal accused and subject to trial by jury with all the regular rules of evidence, witnesses, cross examination and you name it. If they can’t find enough evidence to convince a jury beyond reasonable doubt then he should be set free.
Why is there even a question over this?
If they were involved in an orchestrated terrorist attack with al Qaeda there’d be good cause to hold them as enemy combatants instead (still, of course, enjoying due process but not treated like someone charged with a felony).
However, in this case it doesn’t seem like there is a shred of evidence that they were anything other than inspired by larger terrorist organizations.
Since when has al Qaeda been a national government? Or any recognizable entity with well defined characteristics?
Al Qaeda is a bogey man, it lives behind the door, or any dark place you care to name. It consists of arbitrary people doing arbitrary things as whatever time seems convenient at the time.
As far as I know it’s never been a national government.
Sometimes they live behind doors. My understanding is that sometimes they’re in caves too.
“Since when has al Qaeda been a national government?”
I’m not sure I see the relevance of the qulaifier. Are you sayimng only national governments can be part of a war? Civil war cannot be war? That tribal war cannot be war?
I thought the:
“Or any recognizable entity with well defined characteristics?”
that followed made it clear what he meant.
So would the IRA count?
I could have sworn that we’re again funding Al Qaeda and have been for a few years now, most prominently in Syria, but also elsewhere.
They’re not Al Qaeda if the taxpayers finance them. Then they’re freedom fighters.
If there isn’t enough evidence to charge and convict someone of a crime, what evidence is there to charge someone as an “enemy combatant”?
Further, war, what war? There’s been no declaration of war.
Bob Roddis,
Your first point is well taken and is a crushing hammerblow to the illogic of the Elusive DK.
Your second point is well taken within the arbitrary and abstract confines of the “civil government” paradigm. But it shouldn’t mean anything of importance to any right thinking person. For example, what does it matter if you “declare war” before bombing women and children, or before denying a person commonly understood due process before the legal system?
What would change if a war had been declared? What does it mean to “declare a war”?
“Why the hell are you shooting at me?” “Oh, well, I DECLARED a war…”
This clip from The Office illustrates the point perfectly, just changed “bankruptcy” to “war” in the dialog.
http://www.youtube.com/watch?v=hiCilTzhXrA
The difference between declaring and not declaring war is in the legal ramifications – certainly not a difference to the victims.
A classic from The Office… but the right analogy that that serves for is if Bob Roddis stood on the street corner in DC and just started yelling “the United States declares war on Finland!” (and to be honest, I wouldn’t be very surprised if I saw him doing just that – or something like it – some day).
Like the Office scene, It’s a declaration without consequence to the people of Finland OR any legal ramifications.
“and to be honest, I wouldn’t be very surprised if I saw him doing just that – or something like it – some day)”
Yeah, that’s honest. More like just another example of projection. I think Roddis would declare war on Finland way, way, waaaaaay after you would.
But hey, that’s just me totally distorting his NAP position.
Come on now, MF. I’m proposing to make it harder for government officials to engage in war by making them jump through more legal hoops. From that, it naturally follows that I would simultaneously be seeking to make it easier to start wars. See?
Darn, missed that DK leap of logic.
I’m slowly learning.
Your lack of logic also explains your failure to understand why government bonds and spending do not and cannot “crowd out” private investment.
http://www.flickr.com/photos/bob_roddis/4163003939/in/set-72157600951970959
Ya, you did miss my logic. It’s not that I expect Bob Roddis to be an impassioned, sane, war monger. It’s that I expect him to loose his marbles and start shouting random things at cars.
Loosing one’s marbles and shouting random things at cars…
You mean like invading Austin and start shouting that if any man, woman or child dares peacefully opting out of the union, that they will be threatened with machine gun violence, backed of course by actual uses of machine guns?
Yeah, Roddis is the crazy one.
I’m not sure what you mean by your first point. I think it’s a forgone conclusion that there’s plenty of evidence to convict him of a crime (unless some kind of interesting insanity plea or duress argument about being under the control of the brother comes out).
But if in addition to being able to be convicted of a crime he’s an enemy combatant they might want to treat him as such… or maybe not. I’d prefer sticking to the criminal charges anyway in all likelihood. Anyway, this is a moot point because there seems to be no evidence at all that he was an enemy combatant and lots of evidence that he’s a criminal.
I never said there’s been a declaration of war. There’s been an authorization of the use of force, though. Here’s a good review of the differences and similarities: http://www.ndu.edu/library/docs/crs/crs_rl31133_14jan03.pdf
The difference is that the “authorization of the use of force” allows us to pretend we aren’t *really* at war. It also skirts the Constitutional requirements for going to war. There will never be another war, by the way. Just a whole series of never-ending “not wars” that look pretty freaking similar…
Just like there’s no more torture, only enhanced interrogation, no more murder, just collateral damage, no more…you get the picture.
I’m not sure what you mean… authorization of the use of force carries most of the same implications as a declaration as far as I can tell. What do you mean it allows us to pretend we aren’t really at war?
What has the authorization done to have done that that a declaration of war wouldn’t do?
Specifics?
Please.
“What do you mean it allows us to pretend we aren’t really at war?”
Bush and Obama bypassing the international laws of war because we “aren’t at war”, but are instead simply “authorized to use force” against “enemy combatants” (not soldiers), yadda, yadda, yadda. The military still pretends it is peacetime for a reason.
“What has the authorization done to have done that that a declaration of war wouldn’t do?”
The authorization is far more open ended then a declaration of war.
But international law applies in the case of authorizations of the use of force.
The way I understand the crucial difference is that a formal Declaration of War essentially recognizes that hostilities currently exist with and authorizes the President to use the Armed Forces to carry out military action. The AUMF has no temporal or geographic restrictions, defines no specific enemy, and implicitly authorizes the President to preemptively initiate hostilities against whomever in order to prevent future acts of terrorism.
Furthermore, I think the entire legal framework constructed to carry out the so-called War on Terror (of which the AUMF is just one legislative act) needs to be considered as well, ie Patriot Act for surveillance programs, NDAA for extrajudicial indefinite detainment, in addition to redefining terms, ie terrorist – military aged males in a target zone, imminent threat – which doesn’t even require the US govt to have clear evidence of a specific attack which will take place in the immediate future (you can’t make this stuff up). Taken that as a whole seems to grant the Executive Branch with powers that greatly exceed those otherwise granted through a formal Declaration of War.
The interesting question here that I’m not fully clear on would be what authority would the Executive retain if, for instance, the AUMF were repealed and the other above mentioned legislation and legal framework remained.
oops, bracketed some text that wasn’t rendered in my previous comment.
” hostilities currently exist with and authorizes the President”
should read
” hostilities currently exist with [ nation state ] and authorizes the President”
When I started law school in 1977, they explained to us that under the old fogey interpretation of the constitution, the New Deal would have been deemed unconstitutional. However, since we are now enlightened and know that the Great Depression proved that laissez faire does not work, interpretation of the constitution changed with the changing times.
This is same BS argument the statists are using to institute the Keynesian Police State. New circumstances require a new more enlightened interpretation of the constitution.
However, in both cases, it was the prior statist policies that caused the crisis at hand. DK’s paper showed that the Fed facilitated WWI and was the source of the price distortions that led to the 1920 depression.
http://factsandotherstubbornthings.blogspot.com/2013/01/poor-kid-was-just-couple-years-too.html?showComment=1358998365568#c2813953362544372035
As we know, further Fed price distortions led to the Great Depression.
The present terrorist “emergency” is the result of US government stomping around the world inflicting Clintonista democratic socialism upon its victims, and which at best, results only in poverty, bloody ethnic conflict and terrorist blowback.
Both “emergencies” which allegedly required the abolition of existing constitutional protections were in fact caused by the prior unconstitutional policies of the statists/”progressives”.
Everywhere in the world (except the USA) and in historical conflicts and treaties, the rules of war divide people into two categories: combatants, and non-combatants.
Combatants are defined as national military forces (operating under some sort of government or state) or irregular troops operating under an organized command structure. The basic requirements are:
* A command structure exists, i.e. the troops are following orders.
* They either wear a uniform, or have some sort of distinctive sign that is recognisable from a distance.
* They carry arms openly.
* They abide by the rules of war.
Such people are afforded certain protections (e.g. POW status, cannot be prosecuted for murder if they only attack other combatants) and also have the responsibility to not make war on civilians, not attack medical personnel, not use indiscriminate weapons, etc.
The normal presumption is that someone not fitting the classification of “combatant” must therefore be officially a “non-combatant” and thus be subject to the normal civilian rights and responsibilities. They can be prosecuted for crimes and they are not afforded POW status, but they are afforded the protection of normal criminal proceedings (whatever those may be in the territory they happen to be found).
In the USA, and only in the USA a magical third category has appeared where they have “lawful combatants” and “unlawful combatants”. The so called “unlawful combatants” do not get POW status, but they also do not get Constitutional protections that a normal civilian would get. They have no rights and responsibilities and essentially legally don’t exist. The fact that pretty much anyone can be placed in this category on a whim should have all US citizens deeply worried. There is no due process involved in declaring you an “unlawful combatant” and once such a declaration is made, there is no due process for anything after that. It is an end run around the normal rights and responsibilities of the State, plain and simple.
http://www.icrc.org/customary-ihl/eng/docs/v2_rul_rule3
And for the record, Tsarnev does not classify as a combatant under any of the requirements above. He was not operating under any command structure, he was not wearing a uniform, his weapons were concealed and he deliberately attacked civilians. Thus, he is himself a civilian belligerent and subject to all the normal criminal law that anyone else would be (including due process, right to a fair trial, a jury, yadda, yadda).
Great post, Tel. Nothing more to add. Bravo!
Agreed. Excellent post.
+1 !
This isn’t quite right Tel, as the conventions recognize and exempt from some protections those who fight but not in uniform, etc. men were shot by both sides in WWII for fighting in disguise for example. Such persons are not under the conventions entitled to civilian trials. The fact that someone fights in a way that does not meet the criteria does NOT ipso facto entitle him to greater protection. Failing to wear a uniform for example forfeits rights not enhances them. If Tsarnaev does prove to have been under command, and we do not know yet, he could very well be properly classified as a combatant who broke the rules. I am not saying he should be, I am just saying you are mistaking the conventions.
Say in 1944 a German soldier out of uniform pretends to be a medic and pulls out a gun and shoots a GI. He would be shot probably with a drumhead trial, and that would be consistent with the conventions.
[Andy] Worthington returns to update the status of our illegal offshore penal colony in Cuba, and tells how the administration, the Congress and the courts have all lined up to continue to hold 166 prisoners there, even though 86 have been cleared for release. Obama said he would close the camp, and did release a number of prisoners in 2009 [and 2010]; but he buckled to opposition, and Congress has placed severe restrictions on the president’s ability to release any inmates from the camp, while the courts have been blocking all habeas corpus actions. This leaves the 86 entombed with no indication of if and when they might be released, with dozens more, who may never be charged or released, just left in a legal limbo.
That seems to be to be a fair summing-up of the issues, as Guantánamo begins its 12th year of operations.
http://www.andyworthington.co.uk/2013/01/21/andy-worthington-discusses-guantanamos-horrendous-11th-anniversary-with-peter-b-collins-and-scott-horton/