Vox Libertas

Text and Subtext

2010-07-04T18:19:00.003-05:00

Today we celebrate not the 234th anniversary of the birth of this nation, of our declaration of independence—that was two days ago on July the 2nd, the date that the Continental Congress unanimously passed Mr. Richard Henry Lee's resolution of independence, the day on which the United Colonies of America became the United States of America. No, we celebrate the 234th anniversary of the publication of the formal text stating the reasons for that independence. We celebrate not the act but the explanation, not Independence but the Declaration. Today we celebrate the power of words, of ideas, of reasons and reason. The great acts were on April 19th, 1775, which is commemorated as Patriots Day only in the Massachusetts, our offspring state Maine, and for the past decade, the state of Wisconsin, and July 2nd, 1776, which is not to my knowledge celebrated, despite John Adams' prediction.

The precise words of the Declaration and their history has been in the news lately as modern technology has shown what has been long suspected, that while writing the rough draft, Jefferson obliterated the word "subjects" and replaced it with "citizens". This change along with several others shows how new the ideas in the declaration were, how even the authors of the document, among the most eloquent speakers and writers of their day struggled to overcome the linguistic conventions of the ideas and mindset that they were overthrowing.

Elsewhere in the draft we find a reference to George the Third that reads:

The History of

the
~~his~~
^

present

king of Great Britain
~~majesty~~
^

Jefferson was obviously having trouble shaking off the styles of monarchy, of thinking of, or at least referring to the King as "his Majesty" and the people as his subjects. His original phrasings presume that authority flows down from God to King to subject to slave, but the very words of the document declare that "governments are instituted among men, deriving their just powers from the consent of the governed", who in turn are "endowed by their Creator with inherent & inalienable rights" in the words of the draft. Jefferson and the Founders were in the process of standing the social order on its head. No longer did authority come from the divine right of Kings, but from the natural rights of the people, the governed. This was a whole new theory of rights, authority, government and law.

This mistake of thinking in terms of authority deriving from the inherent power of those who govern is still made today, in the pages of our newspapers, the seat of our government and the maunderings of our pundits. It was not long ago that the Attorney General of the United States made the deplorable assertion in sworn testimony before Congress that "there is no expressed grant of habeas in the Constitution" as if the Constitution grants rights to the people rather than ceding the power of the People to the government. How often do we hear the President referred to as "Commander in Chief of the American People" as if he has the right to command, rather than being the servant and tool of the people? How often do we hear that foreigners, immigrants or terrorists should not receive the "rights the Constitution grants citizens"? According to the theory that Jefferson was struggling to fit his words to, these questions and claims are nonsense. Nature or Nature's God endows us with rights. The Constitution protects them, and grants limited power to the government that it creates, that it "constitutes".

That theory is basically the same as that found in Thomas Paine's "Common Sense", written a few months earlier, and derives in large part from the writings of John Locke, who crystallized the Enlightenment thinking that was evolving in the coffeehouses and the Freemason lodges and private clubs of England, Europe and the colonies. Here's what Locke wrote in the second chapter of "On Civil Government":

§ 6. But though this be a state of liberty, yet it is not a state of licence: though man in that state have an uncontrolable liberty to dispose of his person or possessions, yet he has not liberty to destroy himself, or so much as any creature in his possession, but where some nobler use than its bare preservation calls for it. The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions: for men being all the workmanship of one omnipotent and infinitely wise Maker; all the servants of one sovereign master, sent into the world by his order, and about his business; they are his property, whose workmanship they are, made to last during his, not another's pleasure: and being furnished with like faculties, sharing all in one community of nature, there cannot be supposed any such subordination among us, that may authorize us to destroy another, as if we were made for one another's uses, as the inferior ranks of creatures are for ours. Every one, as he is bound to preserve himself, and not to quit his station wilfully, so by the like reason, when his own preservation comes not in competition, ought he, as much as he can, to preserve the rest of mankind, and may not, unless it be to do justice to an offender, take away or impair the life, or what tends to the preservation of life, the liberty, health, limb, or goods of another.

Locke had two basic formulations that he used most often to describe the natural rights of man: "Life, Liberty and Property" and "Life, Health, Liberty and Possessions". Jefferson uses a slightly different formula. In the draft he initially writes of "the preservation of life, & liberty, & the pursuit of happiness", but he, or one of the others, shortens that to the pithier "life, liberty and the pursuit of happiness". The difference is worth noting. According to the natural rights reasoning, life and the ability to enjoy it are fundamental rights, rights that we can deduce from the very act of Creation. The rights to liberty, health and property are essential rights because they provide the necessities for life and its enjoyment. All of these are inherent and inalienable, whether they are primary or secondary. And so, Jefferson replaces health and property with "the pursuit of happiness" and in doing so presages the Utilitarian philosophy of Jeremy Bentham and John Stuart Mill. (This makes Bentham's mocking "Short Review of the Declaration" a little ironic.)

Interestingly, Jefferson didn't see the inspirational second paragraph of the Declaration as being all that important. For him, the key purpose of the Declaration was to air and enumerate the grievances that forced the colonies to declare their independence. His first paragraph basically says that declaring independence is a drastic step and we owe to the world to explain why we take it. The last paragraph actual declares independence. The bulk of the document lists the causes, the grievances. The second paragraph is there simply to lay the groundwork for the list of grievances, to set forth the philosophical assumptions and reasoning. It is merely the background. And therein lies its tremendous value. It is a one paragraph summary of the revolutionary philosophical underpinnings of the birth of a nation, the first nation conceived in and dedicated to a philosophy, rather than being an expression of raw power.

The Macintosh comes with a service for summarizing any document or text. If you set it to summarize by paragraphs, feed it the Declaration, and restrict it to one paragraph, it chooses the last, but if you set it to two, it chooses—rightly—the second and last. The first is preface, the bulk just a list of complaints. The second is the philosophical grounding and the last is the concrete action.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. --Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

:

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

There is another whole section that was being reworked in the rough draft, but which was eliminated in toto from the final version of the Declaration, namely the reference to slavery, which read,

he has waged cruel war against human nature itself, violating it’s most sacred rights of life & liberty in the persons of a distant people who never offended him, captivating & carrying them into slavery in another hemisphere, or to incur miserable death in their transportation thither. this piratical warfare, the opprobrium of infidel powers, is the warfare of the CHRISTIAN king of Great Britain. determined to keep open a market where MEN should be bought & sold, he has prostituted his negative for suppressing every legislative attempt to prohibit or to restrain this execrable commerce: and that this assemblage of horrors might want no fact of distinguished die, he is now exciting those very people to rise in arms among us, and to purchase that liberty of which he has deprived them, by murdering the people upon whom he also obtruded them; thus paying off former crimes committed against the liberties of one people, with crimes which he urges them to commit against the lives of another.

And while this section was removed, and slavery continued on for another four score and seven years, the words of that inspiring second paragraph, that all men are created equal, as the great modern orator Byron Rushing has pointed out became the property of others, of posterity and the law, and when combined with the legal reasoning at the heart of Anglo-American Common Law, ultimately resulted in the abolition of slavery, as we could no longer deny that "All men are created equal and endowed by their creator with certain inalienable rights" means just that—ALL people.

And so on this Independence Day, it is worthwhile to reread the Declaration of Independence, in all its drafts, to reflect on the text that is there and the subtext that is revealed as we study the context, the other writers, the other documents and the history of the times.

Of Persons, Corporations, Money and Speech

2010-01-31T16:58:00.008-05:00

These are the times that try men's souls. On the one hand we have the Supreme Court of the United States empowering corporations at a time when they already come far too close to owning our representatives, our government and our country. On the other, we have a populace that doesn't understand how our most fundamental principles tie to either this question or the trying of accused terrorists.

Someone MUST speak out about the nature of our Rights and our Constitution.

We seem to have forgotten the truths that our founding fathers took to be self-evident, the principles to which our nation was dedicated. Many on the left are decrying the recent Citizens United Supreme Court decision, while at the same time civil libertarians often thought to be on the left have spoken in defense of the decision. As it turns out the questions here are not simple, and to work them out requires really knowing both how the system works and what the underlying principles are. It's not easy stuff, and we seem unprepared for it.

Let me start by agreeing with those who fear undue influence and power is given to the corporations, domestic, foreign and multinational by this decision. This decision does, in fact, remove important safeguards against the super-rich corporations overwhelming our electoral process with huge amounts of money. Not only that, but it opens our government to the influence of foreign money and foreign-owned corporations. It's easy to sneer at that last accusation (one Supreme Court Justice did just that), claiming that the decision only applies to US corporations, but that ignores the fact that being incorporated in one of the United States is very different from being owned exclusively or mostly by US citizens. Citgo, for instance is incorporated in the US, but it is owned by Petróleos de Venezuela. It is a "US corporation", ye, but it is also an entirely "foreign owned corporation". If Citgo has a right of free speech that allows it to finance political campaigns in the US, then Hugo Chavez who runs the government of Venezuela, who owns PDV, who owns Citgo, has that right. Many people think that this is not a good thing.

But let me also say that people like Glenn Greenwald and Jonathan Turley also have a very real and valid point that the decision in Citizens United, which empowers Citgo, and PDV and Venezuela and Chavez is based on long standing principles of Constitutional law, law that has both important practical justifications and a basis in our most sacred principles. Greenwald has written on the topic at "What the Supreme Court got right" and "Follow-up on the Citizens United case". I recommend reading both, though I do not agree with everything that he wrote. Turley wrote a lengthy commentary in his blog and spoke about the topic on a segment of Countdown.

Greenwald makes the point that none of the nine Justices agree with those of us who argue that it is a problem that the law holds that corporations are people and that money is speech. On the latter he lays out a rather specific challenge. He says that if we are to claim that speech isn't money then we have to explain what will protect us from laws like the following (he gives several hypothetical examples, I'm using one for brevity):

"It shall be illegal for anyone to spend money to criticize laws enacted by the Congress; all citizens shall still be free to express their views on such laws, provided no money is spent;"

My own response is that this is absolutist rhetorical flummery, that if money is speech, you get into problems just as deep:

If money is speech, then the First Amendment must give me the right to pay my Congressman to take an action I wish him to, because I have the right to tell him what I want him to do.
Clearly I have a right to tell my representative what I want him to do. If I cannot, I have lost not only the right of free speech, but also the right to representation, which is definitionally inherent in a Republic. But that doesn't give me the right to put my money where my mouth is and pay him to vote my way. That's bribery and corruption.

In the end, I do not believe that either absolute extreme, that money is speech or that money has nothing to do with freedom of speech is tenable, but, and it is a big "but", but Constitutionally protected rights, natural rights tend to be absolutist. That is one of their strengths. "Congress shall make no law..." like "Thou shall commit no murder" (I hope you'll forgive my slightly non-traditional, but I believe accurate translation of the Commandment) is strong because it is a prohibition. once you get into qualifying them you start allowing loop holes and we all know where that gets you.

I think we need to recognize that Constitutionally protected rights are not an artifact of law, are not granted by the government, judges or the Founders, but are rather natural rights, with which we are endowed by our Creator, whatever you consider said Creator to be. Corporations, are NOT natural, though. They ARE social constructs, the product of law, goverment and the consensus of society. When we constitute them, when we incorporate them as entities within our legal system, I think we have to say that they have rights, but that those rights are not inherent, that they derive from the rights of the people they comprise, and who create the corporations. We endow the corporations with rights and we can limit them.

Similarly, money is a social construct and while there are certainly moral aspects to money and to its use, it is not, in and of itself, speech. It can be used to enable or discourage speech and can be used to violate the rights of others, or with deference to their rights or to empower people, ourselves or others with regard to their rights. "Money is speech, speech is protected, money is thus protected" is a nice syllogism. It is simple and understandable, it is easy to derive conclusions from it. But it is oversimplified.

Einstein was right. "Make everything as simple as possible. And no Simpler."

Where does that analysis get us? Certainly NOT to a Constitutional amendment. But, given that corporations are created by legislation, Why can't legislation explicitly limit and define the rights and obligations they have? And since corporations are primarily commercial in nature, why can't regulating them be a federal function? The state laws define and control corporations and the methods of incorporation, but in the name of regulating interstate commerce, cannot the federal government set certain limits on corporations and the laws that control them?

This ties in to a number of issues before us today:

The empowering of corporations on the grounds of free speech.
Regarding money as speech and thus giving the extremely rich a greater practical right to "speak".
The influence of foreign money through the free speech of US incorporated, foreign owned corporations.
The right of all US citizens and anyone in the US to habeas corpus and trial by jury.
"Getting FISA right" and the potential abuse of the USA PATRIOT Act.
A system which allows the government to try accused terrorists in whichever court they know they can convict them in.

For all of these, it is important to understand the nature of rights in US Constitutional principles. We need to ground these discussions not only in what makes us safe from terrorists or corporations or corruption, but in terms of the natural rights that all men are endowed with and which we the people do not allow our government to violate. Our fundamental, natural rights are not granted by the government, the King, or the Constitution, and understanding that, and the principles our whole system is based on is both important and sadly lacking in the discussion of a lot of these and other critical issues.

Fix the USA PATRIOT Act

2009-10-07T16:04:00.003-05:00

In the last couple of weeks very important things have been going on in the realm of Civil Liberties, and our concern for issues like Health Care, Iran, Afghanistan and the Chicago bid for the Olympics have distracted us from it. And it is not going well. You can help. Help put pressure on the US Senate and House of Representatives to put important protections of the rights of "US persons", our citizens and resident aliens into the law as it is renewed.

If you listen to Fox News, "Some on the Left" or "Some Democrats" want to strip the federal government of critical powers to protect us from terrorists. Unfortunately, as they are making these claims in defense of the USA PATRIOT Act, they get most of the facts wrong. Julian Sanchez of the CATO Institute has a video and blog posting that tears their coverage apart.

So what is really going on? If the Democrats aren't trying to completely eliminate valuable anti-terrorist tools, what has been happening the last two weeks?

First of all, several sections of the USA PATRIOT Act are up for re-authorization, because they were passed with a "sunset clause" that makes them expire at the end of the year. According to even official Inspector General reports from both administrations, the Patriot act has lead to substantial abuse of US Citizens constittution rights. In response to these abuses Senators Feingold and Durbin introduced an act called the "JUSTICE Act". "JUSTICE, like "USA PATRIOT" is a goofy acronym, in this case standing for "Judicious Use of Surveillance Tools In Counterterrorism Efforts. Note that while I'll call the acronym goofy, but the act itself is far from that. It basically insures that a number of these special powers authorized in the USA PATRIOT Act and other post-9/11 legislation are only used against terrorism, that the government has to establish a connection to terrorists in order to use "John Doe roving wire taps", "sneak and peek" secret searches, "National Security Letters" and other procedures.

Resources: Feingold and Durbin's fact sheet on JUSTICE and the actual text of the bill.

A broad coalition supported the JUSTICE Act. Senator Leahy, however, submitted his own bill that offered fewer limitations and protections and the Senate Judiciary Committee (SJC), which Leahy heads, decided to use it as a starting point. Many of us started to agitate to get pieces of the JUSTICE Act supported as amendments to the Leahy bill. The evening before the bill was taken up by the committee, Diane Feinstein, chairman of the Senate Intelligence Committee made a deal with Leahy. An even weaker bill that she largely wrote, and which he cosponsored, replaced the Leahy bill as the starting point. Only a small amount of work happened on that bill last Thursday, before it was postponed until this coming Thursday, due to conflicts caused by the Senate also doing markup on the Health Care bill which was drawing Senators away.

Resources: Comparisons of the JUSTICE Act and Leahy's bill from Center for Democracy and Technology, Julian Sanchez on Cato@Liberty, and Marcy Wheeler on Emptywheel.
Resources: Reactions to last week's SJC meeting from the EFF, the ACLU, David Kravetz, Wired's Threat Level

And that brings us to this week and Thursday's coming second round of markup on the bill. We, that is grass roots civil libertarians, Get FISA Right, the ACLU, the EFF and others, would like you as citizens, as bloggers, as Facebook and Twitter users to make you voices heard. We'd like you to blog, tweet and write about this effort in order to get as many people as possible involved, and for all of you and them to bring pressure to bear on your senators, especially if one of your senators sits on the Judiciary Committee, and your Congressmen and any other Senators and Congressmen you may support, contribute to or know, to do the right thing. To work for and support amendments, whether they come from the JUSTICE Act or other sources that restrict the circumstances and the purposes under which these powers can be used.

Why? Well, I started out bashing Fox coverage on this, let me now shift to praising one Fox commentator and recommending that you listen to his highly knowledgeable and impassioned speech against the USA PATRIOT Act and National Security Letters. Please watch Judge Andrew Napolitano's speech on "Natural Rights and The Patriot Act", shown here. His explanations of the history of our Constitution, laws and the abuses of citizens' rights regarding the USA PATRIOT Act and National Security letters are well worth listening to whether your politics are left, right or center. I recommend watching all three parts.

As ever, I don't want you to just believe what I say. I want you to read and listen and learn. Form your own opinions. I've included a number of links to pertinent resources in the posting above and the two videos. Get FISA Right has a resource page with more links and more calls to action. Please read there. Join us when several of us live blog during the hearings on Thursday. If you agree with us sign and retweet our Twitter petitions. Blog about what you believe, but above all, be a Free Voice. Be a voice for freedom.

Resources: Our Twitter Petition: "@RussFeingold and @SenDurbin, thanks for your tireless efforts to reform the #patriotact http://act.ly/kn (please RT)"
Resources for activists: Get FISA Right's "How to help bring JUSTICE to the PATRIOT Act" page.
Resources for bloggers: Get FISA Right's "JUSTICE Act blogger resources" page.
Resources: For live-blogging: Get FISA Right's Patriot Act Action Hub

Vox Libertas,
Jim Burrows

Re: Jim, I need your voice on health care--Sorry, sir

2009-05-24T14:18:00.003-05:00

Mr. President,

It is with great sadness and regret that I must decline your emailed request. I do this with intimate and personal knowledge of how important this legislation is. I am a computer consultant by profession, and with the downturn in the economy, my income has been slashed to a small fraction of what it once was. In fact, our family has had to rely heavily on my wife's part-time income while I attempt to build a whole new business. Last week, that reliance ended. In a fall down the cellar stairs, my wife broke one ankle and the other foot. Because I have been self-employed for the last 2.5 years and my wife is only a part-time employee with no benefits, our only health insurance is what we can afford to pay for out of pocket. The bills arising out of her injury and her inability to work combine put us in a precarious position.I find myself having to rely on the charity of others, on the Council for Aging in our small town, on volunteer organizations such as Household Goods Recycling of Massachusetts, and the support of family members.

Believe me, sir, I know how important health care reform is. I understand intimately how critical the Recovery and Stimulus plan are. I could not believe more in the important work that lies before you economically and with regard to health care. I understand that health care was, quite understandably your primary object during much of the campaign and that the economy has become both a problem of its own and an obstacle to the extremely hard work of making progress on health care.

Sadly, sir, while I believe all that, and my own livelihood and home are threatened by the dual threat of healthcare costs and the collapsed economy, none of that is my primary concern. No, sir. My concern is for the health of our Republic and not of the body or the economy. I love my wife, and I love my family, and I love my home. But we are strong and we will survive, somehow. My deepest concern is for the heart and soul of this country, for the Rule of Law, for the principles upon which this great nation was conceived, and to which it is dedicated. And that, sir, I believe is endangered. It is endangered by torture; by indefinite detention; by warrant-less surveillance, search and seizure; by kangaroo courts that fail to uphold either our civilian laws or the uniform code of military justice; by the notion that the highest ranking officials can break our laws and not be investigated, let alone prosecuted; by a government that clouds its crimes in claims of secrecy and unspecified nationally security. Today, sir, it is endangered by you.

After eight years of a Presidency that plumbed depths of deceit, greed, corruption, war crimes and the arrogation of raw power, I voted for you in hopes that we could turn the page, that we could heal this land, that we could restore the rule of law. Sadly, sir, it seems that we cannot; that your view of the presidency, of executive privilege, of state secrecy, of the immunity of the powerful from the rule of law is too tainted by the power illegitimately accrued by your predecessor. It seems, sir, that the old adage is true. Power corrupts and absolute power corrupts absolutely.

So, no, sir, you may not have my voice on health care, nor on the economy. You may not have it even though the woman I love is in bad need of better health care, even though this economy is depriving me of the ability to support my family. At this time, even in the face of those great crises, I have only enough voice for this: "Return us to the Rule of Law, not men." Close Gitmo. Stop the Military Commissions. Try the prisoners or free them. Forswear prolong and preventative detention. Investigate the War Crimes and prosecute the guilty. Stop hiding behind Executive Privilege and National Security. Save my country. Save it for my children and their children. Save it for your children. This is not a distraction. Without our Soul this country dies.

I will find some way, through the charity of strangers, the support of my family or the Hand of Providence to get my wife the care she needs. I will find a way to join with others to build a company to employ us all and save our homes and livelihoods. It will be hard, but since they brought my multi-great grandfather to these shores in chains for the crime of being a Scot and supporting the wrong absolute ruler, my family has found a way to do those things. Somehow, I and mine will find the way to protect and fend for ourselves. What you, sir, must do, is defend this country, and despite all that has been said in this new century, the threat to this country is not foreign fanatics. It is domestic fanatics. It is power misused, law abandoned. It is forgetting what makes this nation great. It is abandoning our principles.

I am not of your party. I am an independent. Yet, I voted for you, and worked for you and wept with joy to see a man with your background, both in heritage and in principle, elected President. The promise of it! The hope. Live up to that hope, sir. Give us back our Country. That, above all, is what we need. Then, sir, I will join you in working for health care and the economy and the other great works there are before us.

Jim Burrows, aka Brons - Vox Libertas

Republicans, Republicanism and the Republic

2009-05-10T08:45:00.004-05:00

The news last week was that only 20-30% of Americans are willing to identify themselves as "Republicans". When John Dvorak's blog polled its users as to their politics and party affiliation and asked them what the Republicans needed to do about this, the first response included the following,

Its likely a third party…conservative, will rise, if the Republican party cannot cleanse itself of Democrats aka RINOs

Then we would have no choice but form another party…however we are hopeful we can expel them…and recover those who left.

The Republican party is shrinking and losing votes, and the response of an ardent advocate of the party is that what they need to do is "cleanse itself" of the "Democrats aka RINOs" that are inflating its membership. Somehow, if the party can expel the Democrats in their midst they can then recover the true Republicans who left the party because of all these Democrats in their midst.

If I may, "WTF?!"

As an Independent who vote about 40/60 Republican/Democrat for the last three decades of the 20th century and who has voted 100% Democrat for the 21st, I think we Independents may not have made ourselves clear. The problem, dear Republicans is not that you aren't extreme enough, not pure enough, too infiltrated by Democrats. So, let me lay out what I, as an Independent who has stopped voting with the Republicans am looking for. It sure isn't a purer stricter, more conservative Republican party. And, by the way, it isn't what the Democrats of today are. They are second only to the current Republican party in needing to be torn to bits and rebuilt from scratch. I'm looking forward to turning on them. But not until there is something better.

So who the Hell am I, anyway? I'm an Independent. I do not consider myself a Conservative or a Liberal, a Republican or a Democrat. I might call myself a "Progressive" except that that label is used by Liberals who are afraid to use the word "Liberal" to describe themselves because the Conservatives have made it a dirty word.

So, labels being useless, let me say what I believe in:

I am a fervent Civil Libertarian
I am vehemently pro Habeas Corpus, pro-Posse Comitatus
I am just as vehemently anti-torture
I am anti-Big Government, Big-Business, Big-Labor
I am pro-choice
I am anti-abortion
I am anti-war
I am pro-veteran
I am pro-gun
I am pro-decriminalization of marijuana
I think that ethics, and family values are in a shambles
I am pro-marriage equality
I am an agnostic. I'm sick of the religious right and the fundamentalist atheists

and so on...

In all of that, the key concept is that very few things are Black vs White, harsh dichotomies wherein one side represents virtue and the other all that is wrong wit the world. I tend to feel that truth is found in medias res, as they would say back when it was more popular to pepper your American with Foreign.

With the nomination of a Souter replacement on the horizon, we are soon to be blessed with the spectacle of the Democrats and Republicans beating each other with the absolute and diametrically opposed values of "a woman's right" with "baby killing", just as if that made sense. And the Media will egg the two sides on, just as if there were two sides. It's all very simple, really. You either believe in freedom or tyranny, life or death. You are on the side of the Angels or of the Devil himself.

Except that real life is nothing like that. As I said above, I am pro-choice and pro-life. In the 42 years since someone facing the decision first asked my advice, I have always said that it is the woman's decision, the woman's choice, her moral conundrum, and I have always advised for life, and against abortion. I have offered my support, my sympathy, my hand to hold and my shoulder to cry on, regardless of the decision. I do not believe in abortion. I have yet to encounter in life a time when I thought it was the right choice. That is my ethical judgment. I may disagree with a woman's judgment, but I refuse to judge her as a person for any difference that her judgment has from mine.

And the vast majority of the country agrees with me. And every woman that I have known who has faced the decision has known to her very core, that it is not a black and white issue, that there is no 100% unquestionable right or wrong for all people for all time. They see the decision, the choice, the responsibility, they weigh it, they are tormented by it, and they come to a decision. They need our respect and our support and our love. Not polarized polemic.

But we will not see that in the next few weeks, not unless we are very very lucky, not without the hand of Providence, I'll warrant.

Having looked of the future of Supreme Court nominations, lets turn to the recent past, the big "debate" of the last couple of weeks: the tortuous wrangling over torture. Since when has torture been a core Conservative value? When did the "Rule of Law" become the sole purview of the Left? How do you reconcile the "Inherent and Unenumerated Power of Sole Supervisor of the Unitary Executive, and Commander in Chief of All the American People" to detain and torture enemies of the state without trial, without probable cause, without right to counsel, without the right of habeas corpus or His right to spy in absolute secrecy on enemies of the state without warrant or probable cause with the Conservative values of small government, states rights or personal liberty?

When did the Republican Party become the party of Party Loyalty over the Rule of Law? When did Tyranny, the rule of a supreme leader in Washington DC dictating to the states become a Republican value?

There is one perspective that I can see that as making sense from. If you regard the Republicans as the Party of Lincoln, and do so from the perspective of a loyal Confederate, you can see where that trend has always been present in the party. If you view Lincoln as a modern day Caesar, tyrannically turning the Army on the citizenry, suppressing the rights of states and individuals in favor of a unitary federal power and the interests of New York bankers, then I suppose you can regard the Republican Party as having a tradition of choosing strong central authority over freedom. It's a fairly narrow view of the party, but it makes a certain amount of sense. BUT! But the people who are most prone to see things that way, to take the states rights position, to view the Republican party heritage as one of federal tyranny are conservative Southern whites. And they are the ones most embracing this modern authoritarian abuse. The party of Lincoln and northern banking interests is strongest among Southern white males. If I may, "WTF!?!"

I'm a heterosexual who will be celebrating 36 years of marriage in just over a month. I am grossly disheartened with the state of marriage and the family today. I swore before God and my family to love honor and obey in sickness and health all the days of my life, and I meant it. And too few people do that. I have watched dozens or scores f marriages break up over problems less severe than some my wife and I have worked our way through. for the last 7 or 8 years we have taken in other people's children, given them a roof over their head and a bed (or couch or bean bag chair, depending upon crowding) to sleep on, when their own families wouldn't.

I believe in family values. Deeply. And I am aghast at the state of disrepair and neglect that they have fallen into. I'm a philosopher by training and an ex-lay minister. Ethics and values are as important to me as my family and family in general. And so, I support the right of any couple to marry. Back when I was a teenager, that right was guaranteed even for mixed racial couples. I remember that event and I was enormously proud when that guarantee was extended to same-sex couples in my Commonwealth.

If marriage is in a sorry state today, it is not because of the efforts of those who have been denied access to it. It isn't the fault of them, of queer ("strange and unusual" in Joe the Plumber's words) others, it is due to people like me, to the majority of us, to people who were permitted to marry, who did so and made a terrible mess of it, to people who were permitted to marry and didn't bother.

I won't claim that I am typical of the Independents of this country. I know that I'm a little eccentric. Many of my values are a bit out of the mainstream, and when they are mainstream, they are often a mixed bag, a collection that many would see as in conflict with each other. But if my specific beliefs are not themselves typical, the fact that they are diverse, complex, involving shades of gray, that is typical. That is the character of Independents as a group, of the middle ground of American political belief. America may not agree with me. No other American may share all of my values or opinions, but the truth is that the swing voters, the Independents, the moderates, and probably the majority of Americans as a whole are like me than they are like the black and white, simple minded dichotomy that the Republicans, Democrats and Media present us with.

This country is becoming more diverse with every passing day. We are becoming a majority-minority country. We are becoming more ethnically diverse. More opinions, religions, sexual orientations, ethnic backgrounds are becoming empowered and active in the political scene, and the parties had better figure out how to deal with that.

It is totally in keeping with the traditions of this country. Our Founding Fathers were a diverse and squabbling lot. This isn't a Christian country, for instance. It is a country founded on Religious freedom specifically because it was a country in which Catholics and Protestants, Puritans and Quakers, Deists and Jews all had to tolerate each other when all other countries were Protestant or Catholic or divided between two, with Catholics and Huguenots in a deadly embrace or some such. We are the place where citizenship went from being just for land-owning members of the local parish to any land owner, to any freeborn man, to any man to any human. We can cope with universal rights, with diversity, with personal responsibility.

JimB. aka Brons
Jim Burrows
Vox Libertas

What does it mean to "get FISA right"?

2009-03-05T12:01:00.005-05:00

[In order to get the discussion moving I posted this at GetFISAright and Change.org yesterday. Today, it is going to all versions of Vox Libertas except DKos. It will follow there. Please join the discussion in any or all of these. It is important that we get this right.]

As a member of "Get FISA Right", I find myself asking, "What does 'get it right' mean?" I don't have a definitive answer, but let me give a few thoughts as a basis for a discussion of the topic.

The Foreign Intelligence Surveillance Act (FISA) was originally passed in 1978 order to balance the legitimate need to spy on the nation's foreign enemies, with the Constitutional rights of her citizens, and especially to curb existing abuse. Technology has changed dramatically since it was written, and our enemies are different. Also, there has been a new round of abuse. All of these must be addressed.

To "get it right", let me suggest that we need:

One law that covers all spying
Require warrants when the US spies on

Anyone in the US
US persons (citizens and resident aliens) anywhere

Allow the intelligence agencies to spy freely on foreigners oversees, even if the taps are in the US
Require Executive, Judicial and Congressional oversight when protected and unprotected communications are entangled.
Criminalize violation of the Constitution.

Item #4 is a knotty one. Since foreign and domestic traffic flows through the same "pipes" and is in the clear, and it is not easy to tell just from the content who the participants are, software that sorts what can legally be captured from what cannot can violate the Constitution and the law if it uses the wrong algorithm or has a bug. This is what the "targeting" and "minimization" procedures are all about. There must be diligent oversight, and it requires esoteric expertise. It requires nerds and Constitutional Law experts. And the jurisdiction to oversee.

#5 may seem superfluous, but is important. If your Constitutional rights are violated, you can sue, but only if you prove you have "standing". If the violation was done in secret, that can be hard to prove. If the criminal law is violated, the Department of Justice and Law Enforcement can and should investigate and prosecute.

That's my framework. What do you think?

For a longer discussion, let me recommend the following blogs from last summer (disclaimer: #3 is by me):

David Kris's "A Guide to the New FISA Bill", Part I, Part II and Part III.
Wes Walls' "Understanding Recent Changes to FISA -- A Visual Guide (Flowchart)"
Jim Burrows' "I think I understand the FISA bill. Do I?" (at Blogspot. Also on Daily Kos, LiveJournal, MySpace, and Vox)
Wes Walls' "FISA Revisited"
Paul Russell's three-part "Figuring Out FISA"

On Sex and Evolution and Politics

2008-12-23T01:50:00.003-05:00

And now for something completely different... Usually I write here in Vox Libertas about politics, about the Rule of Law, the Constitution, the behavior of our elected leaders and the dangers that I see in the growing trend to authoritarianism, oligarchy, the cult of personality and the centralization of power. Today, I am going to write about politics, too, but also about evolution and science, homosexuality, morality, philosophy and love. I do so inspired by Proposition 8, and reading an article about altruism and evolutionary psychology, and because a new yet dear friend asked me if I knew any other lesbians. And perhaps because it is a time of family and holidays, and the darkest days of the year.

In a discussion of marriage and the law a few weeks back, someone cited the notion that "marriage is between one man and one woman", and I asked,

"What about the others?"
"What others?"
"Those that are neither a man or a woman."
"What do you mean?"

What I meant was that if you look at the purely physical level, at our genes and our hormones, you find that the simple notion of "men" and "women" as a black and white concept doesn't quite hold up. Genetically, men are XY and women XX in terms of the 23rd chromosome pair. But that's not all of the possibilities. There are X0, and XXX, XXY, XYY and so on. These are quite rare and may add up to something like .3% of live births. There are also a number of hormonal and fetal development conditions, such as Androgen insensitivity syndrome, wherein people who are XX or XY end up with the "wrong" genitals. These folk, along with the extremely rare chromosome types are called "intersexed". I've seen estimates that between .6% and 1.3% of live births are "intersex" by somewhat varying definitions and counts.

And thus the question, "What about the rest, the interesexed?" What rights should they have? Most people don't ask or think about that question, after all, each of these conditions is quite rare, occurring in one in a thousand or ten thousand or twenty or more thousand births. But stop and think. If the number is, say .3% to pick a nice low number, in America that's still about a million citizens, a million people not matching the definitions, not even in the debate about traditional vs same-sex marriage. What about the others?

In chasing tweets over on twitter, I found myself on the web site of the journal, "entelechy", which is devoted to mind and culture, to evolutionaty psychology. One article there started out,

When it comes to altruism, the party line in evolutionary psychology goes something like this: True altruism doesn’t really exist — it’s not an evolveable quality of organisms given how natural selection works her magic (which is by selecting features of organisms that have the effects of replicating their own particular genes). The two predominant kinds of altruism discussed by evolutionists both clearly represent “gene selfishness” when examined closely. On one hand, kin selection, the helping of genetic relatives, is essentially the helping of one’s genes as they exist in the bodies of others. On the other hand, reciprocal altruism, the helping of a non-relative with an implicit understanding of being helped in return by that individual at some future point, has an obvious selfishness as well.

Two important recent theoretical developments within evolutionary psychology give pause to evolutionists who stick by this orthodoxy. First, David Sloan Wilson, NEEPS’ esteemed inaugural keynote speaker, makes the case that natural selection can, in fact, work at the level of groups of organisms to the extent that competition between groups is a salient feature of the species. Under such conditions, altruistic behaviors that reduce one’s fitness within the group but that provide benefits to the group can actually evolve under some conditions.

This brought me in mind of a discussion that I've had occessionally regarding the "unnaturalness" of homosexuality, as viewed from a "selfish gene" evolutionary standpoint. Homosexulaity, since it works against reproduction, must the arguemt goes, be an "unfit" strategy, from a selection of the fittest evoltionary perspective. It must then from a purely scientific viewpoint be an unnatural and unhealthy trait, or so the argument goes.

Yet, as the quote above points out, among humans, who are very social creatures, groups--tribes, villages, extended families--compete with each other, and when they do traits that may work against reproduction of the individal may still work to the advantage of the gnepool from which they arose. Specifically, childless aunties and uncles, surrogate parents to orphans, childless hunters and gatherers, may lead to the survival of the group. Homosexuality at the level of one in twenty may produce valuable group members, increasing the chance of survival of all members while only mildly reducing the number of individuals in the next generation.

If, in fact, one of the biological and evolutionary roles of homosexually individuals is to serve as surrogate parents to children whose parents are absent, dead or busy insuring the groups survival, should they not be permitted to serve that function, to fulfill those instincts in the modern world?

A couple of years ago, two very old and dear friends of mine got married, because being citizens of the Commonwealth of Massachusetts, they could for the first time in the 25 years that they have been together. The wedding, a church wedding, was extremely beautiful, not only for the love the brides felt for each other, the physical beauty of the surroundings, or the sense of justice fulfilled, but also beacuse of the large number of people who came "as family". Many people of many ages came to share the wedding of two women, whom they called "mom". My friends have always taken in strays, offered home and motherly advice, both warm and stern, to those who need it. More recently, I made some new friends of another lesbian couple, and soon met the young people they called their "godsons". And as I thought about it, it seemed to me that this is a pattern that we see a lot, extended volitional "families" centered around homosexual and especially lesbian couples.

As a philosopher and social psychologist by training, it has always bothered me when scientists interpret "natural selection" to mean "survival of the fittest" in a dog-eat-dog competitive world, resulting in notions like "True altruism doesn’t really exist". The problem with this is that it always seems like a theory that doesn't fit the observable facts. When we hear that infants don't smile--"it's just gas", and only humans understand speech, or animals don't lie or only humans have a sense of self, it leaves me wondering if the speaker was ever a parent or lived with a cat or dog. And inevitably, after the clever theory-based truism has been repeated into triviality, some clever wight goes off, conducts a study and shows that it just ain't so.

The first Neanderthal fossils included the skeleton of a lame, half blind old cripple. How did he survive to old age? What selfish gene preserved him long beyond the point of reproduction, when he was likely more a burden to his juniors than the other way around? The answer would seem to by love, charity and altruism. The answer would seem to be natural selection of the functional group, the evolutionary advantage of love.

A week or two back amid the brouhaha over Proposition 8 and Rick Warren, while some anti-same sex marriage advocate was worrying about how accommodating same-sex marriage would lead to embracing pedophilia, incest, polygamy and maybe even bestiality, a marriage equality advocate rebutted that what people don't get about same-sex marriage is that it is about love, not sex, or not just sex. I think that one of the reasons that people lose track of that is that they have a hard time really embracing the notion that there is more than one way to be OK, that in fact it is normal for human groups to comprise diverse individuals. Different is taken to be abnormal, and abnormal to be perverted from the norm.

But, the truth is there isn't just one (or two) way(s) to be human. There are men and and women and others. There are straight, homosexual, bisexual, and transgendered folk. Some of us marry and reproduce and some of us care for those whose parents can't or won't. And at the heart of being human is love, both erotic love and the charity of human kindness. We revere and care for the aged and infirm. Enlightened self interest, with a goodly emphasis on enlightened, makes us more successful and more human. Cut-throat dog-eat-dog competition is not the fundamental way of nature, even for dogs, who exhibit remarkable amounts of compassion, empathy and love themselves.

And so the Deist in me, lead by reason, science, and nature tells me that all men were created equal, even if they were not created alike, and that Nature's God, Nature's Law and Nature's Justice teach us that we should allow our brothers, sisters, and even the others among us who were created different to fulfill the need for love, the need to nurture, the need to join together in eternal bonds the right and the dignity so to do. With that I return to the roots of this blog, the Vox Libertas, the free voice of our Founders.

As ever, don't believe me. Research, learn and decide for yourself, but do not turn a deaf ear to what Reason and Faith, Hope and Charity teach us.

Vox Libertas.

Commander in Chief of all the American people?

2008-07-26T16:43:00.007-05:00

On Thursday, I noticed something on The Verdict that really bothered me. The next day, Josh Marshall of Talking Points Memo commented on the same general issue, though he did not mention the particular incident that had caught my eye.

On the Verdict, they were discussing Barack Obama's speech in Berlin, when Dan Abram's asked,

ABRAMS: So, what‘s the problem?
WATKINS: The problem is this—speeches like that are reserved for the commander-in-chief of the United States. The commander-in-chief speaks with the American people. Barack Obama is not just a citizen of the world or citizen of the United States, he is the presumptive Democratic nominee.
They know he‘s running for the presidency and what you do when you give a speech like that and you‘re not the commander-in-chief of all the American people, is that you undermine the institution of the president.

All together, Watkins used the title "Commander-in-Chief" six times, and the way he used it was also revealing, What he said was:

commander-in-chief of the United States.
commander-in-chief speaks with the American people.
commander-in-chief of all the American people
commander-in-chief of all the American people.
commander-in-chief, president of all the people.
commander-in-chief of the United States

Please note that what the US Constitution says in Article I is,

The President shall be Commander in Chief of the Army and Navy of the United States

There is a not so subtle difference between the notion of "the Commander in Chief of the US military" and "the Commander in Chief of all the American people". As Josh Marshall points out in his article,

The point of the constitution's explicitly giving the president the title of commander-in-chief was not to make him into a quasi-military figure. It was precisely the opposite -- to create no doubt that the armed forces answered not to a chief of staff or senior general or even a Secretary of Defense (originally, Secretaries of War and Navy) but to a civilian elected officeholder who operates with the constrained and limited power of that world rather than the unbound authority of military command.

The civilian Commander in Chief of the armed forces is an elected representative of the people who commands and sets the strategy of the military, insuring that it serves the will of the people. The Commander in Chief of all the American people begins to sound a whole lot like the Roman Emperor, the "Imperator" or Commander who commands the people and the armed forces.

If you combine this image of the President as the Commander in Chief of the American people, with the image suggested by an audio clip that was aired on the Verdict a few days before, you get a really interesting picture. According LexisNexis, this is what the McCain Campaign said on Tuesday:

RANDY SCHEUNEMANN, MCCAIN ADVISER: This is really an amazing statement. He believes that deferring to commanders on the ground is not the job of commander-in-chief. He believes that deferring to the best military judgment of commanders is rubber stamping. He refuses to credit General Petraeus and General Odierno for their leadership. He disparages their strategic judgment and trumpets his own.

He finds it amazing that Obama "believes that deferring to commanders on the ground is not the job of commander-in-chief", which certainly suggests that Scheunemann believes that it is the Presidents job to so defer. That, my friends, is what happens when a country is ruled by a military junta. In America the civilian populace directs the military through their civilian representative, the President. Apparently in the McCain world the military directs, at the very least in military matters, the President.

There's a serious conflict in these two images of the Presidency, but both reveal a militarism that is very scary. As Josh Marshall points out these images, this language is becoming more and more pervasive and they dangerously distort the public view of the President, the military, the nation and civil liberties.

The time has come to speak out against this mindset. Be a free voice.

Vox Libertas

I think I understand the FISA bill. Do I?

2008-07-19T14:17:00.011-05:00

By way of disclosure, I am something of a Civil Liberties fanatic, and am firmly convinced that Obama did the wrong thing on retroactive immunity and am angry about that. Also, I haven't trusted George W. Bush since the first 10 secs I saw him speaking. He reminded me of the arrogant lying bullies who used to break my bones when I was a youngster. He set off all my alarms just by the way he talked and moved.Obama was something like my 4th choice in the primaries, ahead of Clinton.

So, I'm not an apologist for any of the current crop of politicians, and not at all well disposed towards anything that looks to weaken the rule of law, the Constitution or our civil liberties. All that being said, the brouhaha over FISA and the accusations of cowardice, lack of principles and political opportunism has started sounding a whole lot more like heat than the light of reason. A recent claim claim by Lawrence Lessig, a Civil Libertarian with a background in law made me stop and think.

[Obama's] vote for the FISA compromise is thus not a vote for immunity. It is a vote that reflects the judgment that securing the amendments to FISA was more important than denying immunity to telcos. Whether you agree with that judgment or not, we should at least recognize (hysteria notwithstanding) what kind of judgment it was. The amendments to FISA were good. Getting a regime that requires the executive to obey the law is important.

People on the left, people like Glenn Greenwald, Jonathan Turley, Russ Feingold and Chris Dodd keep painting the recent FISA as a false compromise, a capitulation to Bush, and a blot on the fourth amendment. So why do Lessig and former Constitutional Law lecturer Obama say that it is important? Who is right?

Well either you can pick your authority figure and believe them—you pays your money and you takes your chances—or roll up your sleeves, wade into the bill and make your own decision. I never was the "argument from authority" type. So why should I pick one camp or the other?

I've been working on this posting for more than a week, and I think I have a handle on a line of reasoning that shows that the FISA amendment makes sense and may very well be a "Good Thing™". I don't find the argument compelling, but I think that it really deserves to be fully explicated, discussed and weighed, and as of yet, I think that I can respect and understand anyone who feels either that it outweighs the argument that FISA as a whole or as amended is so damaging to civil liberties and the rule of law that it outweighs the benefit or the other way around. I would really like to hear people who are passionate on both sides after they understand this reasoning.

Assumptions

There are a number of assumptions regarding the level of protection that should be afforded communications depending upon the people and jurisdictions involved. In terms of the three major combinations, the following breakdown seems to by the default assumption:

Spying on foreign/foreign communications is OK.
Intercepting US/US communications requires a warrant or constitutional equivalent.
Intercepting US/foreign communications is the purview of the FISA court and law
The location where the spying is done is not as important as who is communicating.

In the next couple of subsections, I will lay out each of these, at least briefly.

1. Spying is OK

Some would argue that "spying is important" or even "spying is necessary". For the purposes of this analysis, all we need to assume is that it is legitimate for the foreign intelligence services to spy on foreigners when that is in keeping with their mission, our relationship to the foreign nations involved, so long as they do so in accordance with their regulations and charter. Such spying is conducted beyond the jurisdiction of the United States and beyond the guarantees of our constitution. Thus "foreign/foreign" communication, by which I mean communications between two people, neither of whom is a "US person", should not be controlled by US warrants or restricted by Constitutional rights. International laws may apply.

It is certainly possible to disbelieve in spying, but we have done foreign spying for a very long time and the foreign intelligence services have always been unencumbered by the US courts and Constitution, so long as they were operating outside the US and the subjects were foreigners.

2. US/US requires a warrant

On the other hand, spying on Americans in America requires a court order. In essence, whenever the US Constitution is the ruling law, Warrants are required, otherwise it is "unreasonable search and seizure". The simplest version of this is communications between two US citizens, in the US, but resident aliens in the US are by precedent also protected by the Constitution. The term "US persons" is used in many laws as a shorthand for US citizens, US resident aliens and US corporations, since corporations are generally treated as "persons" in US law at present. For the purposes of FISA, "US person" is defined as follows:

“United States person” means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101 (a)(20) of title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section.

The requirement for warrants is a fundamental right in America, and the Constitution specifically limits the power of the government within its jurisdiction. There are certain questions about where the Constitution holds sway, but it at the very least applies within the sovereign jurisdiction of the United States and in all dealings between the US government and US citizens regardless of location.

3. FISA controls US/foreign surveillance

One may think, either as a civil libertarian or as a proponent of a strong federal executive that FISA in principle is bad law, but since 1978 in order to balance the government's legitimate foreign intelligence interests with the need for judicial oversight, FISA has been the law. It's basic charter is to control spying that occurs between US persons and foreign powers or agents. The simple Wikipedia summary of FISA is pretty much in keeping with my understanding and reads as follows:

The act was created to provide Judicial and congressional oversight of the government's covert surveillance activities of foreign entities and individuals in the United States, while maintaining the secrecy needed to protect national security. It allowed warrantless surveillance within the United States for up to one year unless the "surveillance will acquire the contents of any communication to which a United States person is a party". If a United States person is involved, judicial authorization was required within 72 hours after surveillance begins.

In short, if no US person is involved, even if the surveillance occurs within the US, assumption #1 applies, if a foreign agent power and US person are both involved, a FISA order is required. If no foreign agents or powers are involved, assumption #2 rules. FISA arose because the line between all-foreign and all-US can be blurry. FISA adds assumption #3 as the middle ground.

4. Location is now unimportant

When the mindset behind FISA was formed, location was pretty much static. If you were spying on two foreigners who were outside the US, you pretty much could be assumed to be outside the US. If you were listening to the conversation between two Americans who were inside the US, then you were probably there, too.

Today, this is less true. Main communications lines are often centered in the US and communications between foreign locations can often be picked up in the US. Similarly, Internal US communications may very well travel outside the US en route. It is generally assumed that this shouldn't change the situation vis a vis rights and Constitutional protections. The US government shouldn't be able to spy on Americans who are in America just because the act of spying occurs outside the US. Likewise, if traffic between known terrorists in Pakistan and agents in Spain happens to flow through the United States, the CIA should be as free to spy on it would have been if the bits/electrons had never crossed over our borders.

This is at the heart of the "FISA must be modernized to keep up with technology" argument that you often hear. And generally, I think that it is correct. The rights and protections should be determined primarily by who the actors are and who the subjects are, and secondarily where the subjects are located. Anything done in the US or to Americans must take the Constitution into account. From an ethical perspective we might like to say that, just for instance, all people are created equal and are naturally endowed with certain unalienable rights, and so the US Constitution should protect the rights of all of humanity everywhere. There are,however, myriad practical and political problems with that view.

What is "private"?

Beyond jurisdiction, the other thing that determines the legality of information gathering is the question of privacy. Gathering public information is merely being well informed. Gathering private information is spying, or at least searching. And so the notion of an "expectation of privacy" enters the picture.

Current law holds that while the content of electronic communications such as phone calls and emails is generally protected (where US Constitutional and other protections apply), the addressing of the messages are not. The court generally has held that the average citizen has less of an expectation of privacy regarding the numbers called than regarding what is said. The address and return address on a postal envelope along with the postmark information is even less protected.

In the purely telephonic days, the devices that were used in this area were "pen registers" and "trap and trace devices". Pen registers recorded the numbers that a phone dialed. Trap and trace devices could determine and record the numbers from which incoming calls originated. These concepts have been adapted to digital messaging and networking. Thus, capturing and recording the addresses that computer traffic flows through is less protected than examining and recording the content of the messages.

This brings us to the illustration of the post card that accompanies this article. Most Internet traffic isn't encrypted, and the address and data portion of a network packet are the same sort of things. In many ways, it is as if mail was accomplished with postcards rather than envelops. Imagine if you will, that the law applied to the information on a postcard the way it does to the Internet or phone call. Without a warrant, it is OK to capture and record the address and return address and the postmark information, but not the text.

Further, let us apply our assumptions above. If the sender and recipient are foreign nationals, operating outside the US, then it is OK for the intelligence services to read the whole postcard, but if either the sender or recipient is a "United States-person", then a warrant or other authorization is required. One can envision a peculiar device that covers the left half of the card or the handwriting on the left, exposing the printed return address, scans the address and postmark and determines the identity and location of the sender and recipient, compares that with suitable records and makes the decision as to whether the hidden portion can lawfully be photographed and recorded.

Mr. Kringle is a native of the North Pole, territory claimed by the Russians. Records show that the postcard arrived on a plane from Canada, but the postmark shows that before that it was mailed within the US. Young Mr. Dough is a US-person, possibly a US citizen. Before such phrases as "keeping a little list" and "fellow travelers" can be used as evidence that Mr. Kringle is a "Red", Mr Dough's rights must be accounted for.

My fanciful steam punk postcard scanner is actually not all that fanciful. It is rather analogous to the sort of software you would need to use in order to capture email. Email messages are just streams of bytes organized into packets and messages according to a whole hierarchy of standards and protocols, and the way that the addresses are encoded is not particularly different from the way that the message content is. In the outer couple of protocol layers,IP addresses are encoded in binary, but the to and from fields of an email message are encoded in exactly the same sort of human readable text as the body of the message. The most simple minded search programs that you could use to search an email stream could readily scan unprotected addresses and protected contents with equal ease.

To implement the intent of our laws, that foreign/foreign messages can be scanned, searched and recorded by our intelligence services, without a warrant or the involvement of the courts, but insure that US/US email requires an ordinary warrant and US/foreign-agent email can be handled in accordance with the FISA law, a moderately intelligent and carefully crafted program needs to be used.

Basically such a device would consist of a "pen register" to determine who the message addressed to and a "trap and trace device" to determine where it came from. An analyst or analytical engine of some sort then determines if at least one "US person" is involved, and if any foreign agents are involved. If both are "United States Persons", then a list of applicable warrants determines if the contents can be saved or analyzed. If no US person is involved, then the message can be freely analyzed. If a mixture, then a check for the FISA process must be made.

Any system for scanning the Internet trunk feeds that we have access must be very carefully controlled. The software wants to be carefully designed and implemented, and the people operating and maintaining it must be carefully vetted. The policies and procedures for authorizing and monitoring its use must be carefully written and and enforced with appropriate oversight.

Personally, if I were with the federal government, my approach would be to split the trunk and send the duplicate feed into a highly secured room, control who had access to that room, staff it only with people who had serious background checks, make sure there was a field manual and oversight. Given their charter, the combination of technology and surveillance would suggest that the NSA be the agency chartered to handle this. I'm thinking it would look a whole lot like the whistle-blower described. The question is can the feds be trusted? Given my dedication to civil liberties and my view on the lawless behavior of the current administration, I'd have to say, no, not in the current instant. But that doesn't mean that no US Attorney General and no National Security Adviser can be trusted. It just means that we know that they can't all be. We have illustrative examples.

Now a bunch of Senators, Representatives and the odd Presidential candidate probably have more faith in the notion that the federal government can be structured and run in a way that is trustworthy. In the end, most of us trust ourselves and some fraction of folks like us. So, with that in mind, how does the recently passed FISA amendment stand up?

What is the new FISA?

While working on this posting I've read Title I of the recently passed FISA amendment bill a couple of times and tried to chart out the differences. While doing so, I came across someone who has done the same thing and published his completed flow chart of the original and amended FISA, skipping the short-live Protect America Act. Let's have a look at his analysis along with the actual text. The original article can be found on Wes Walls' blog Ketchup and Caviar. Here are the two flowcharts:

In his analysis, Wes says:

"The focus of change is the bolded red line marked “U.S. or non-U.S. Persons Located Inside or Outside the U.S.” Currently a warrant is required in this case. Notice the changes involving the bolded blue lines and text in the [second] chart. What New FISA does is create a special case involving our bold red line in the first chart. It provides a way for the executive branch to engage in warrantless (but “certified”) wiretapping of wire and cable (including email and phone) of any Foreign-to-U.S. communications collected inside the U.S. You’ll see the new set of criteria for certification in this special case. It does add new protections for U.S. Persons (citizens or greencard holders) by requiring the typical FISA warrant in all cases in which they are targeted."

I would have worded the change differently. What I would note is that the upper middle section of the flowchart changes from being based on location (the one rounded corner box and the three red lines) to a simpler pair of boxes based on whether any US person is involved. As a result, there is now a relatively simple three way decision regarding foreign surveillance. (Note that there is a fourth case, the "normal" one: If no foreign agents are involved, surveillance requires an ordinary warrant.)

If any US person is involved or the communications is domestic, a FISA warrant is needed
If no US person is involved, the communications is email or over cables, a special "Certification of Mass Acquisition" is available.
Otherwise, no warrant is needed when no US person is involved.

Paths 1 and 3 represent the simple cases. One no US persons are involved and the communications is foreign, the foreign intelligence services are unencumbered by US law (#1). Generally, if the foreign intelligence services want to spy on Americans or in America, then a FISA warrant is needed (#3). One exception for this is allowed. Spying on electronic communications of non-US persons outside the US by means of surveillance inside the US can be done under the new "Mass Acquisition" process. Note that this is specifically the case where communications that is fair game to our spies is embedded in a system that is known to contain protected US communications that is not targeted. (This is pretty much my case where the combination of a pen register, trap and trace device and analytical engine can be used to separate the two.)

And that brings us to the blue box in the bottom right. Here's what Wes has there:

Is the target reasonably believed to be located outside the United States?
Is the purpose of the targeting to acquire foreign intelligence information?
In the particular case, will "minimization procedures" adequately balance the privacy of US citizens against foreign intelligence needs?
Will there be a good-faith effort to avoid domestic targets and domestic communications? Will other limitations be observed?

I've removed the struck out text and the pointer to part II of David Kris's "A Guide to the New FISA Bill". I will address these shortly.

Questions #1 and #2 basically reiterate the decisions that got us through the flow chart to Mass Acquisition. The new act's jurisdiction has gone from searches involving a "foreign power or agent thereof" to focusing on non-US persons outside the US (question #1). This is actually a good thing for the civil liberties of US persons, since as previously defined, a foreign agent could be a US person working for a foreign power. The question now is just "US person or non-US person". Without the struck out text, question #2 is basically a restatement of part of the logic that got us to this section. It becomes "Is the purpose of targeting [foreign communications between non-US persons believed to be outside the US by capturing traffic within the US] to target foreign intelligence information?"

With Question #3 we get to the heart of the issue, the "minimization procedures". These are spelled out in the bill in section 702 e, as follows (via OpenCongress):

(e) Minimization Procedures-
REQUIREMENT TO ADOPT- The Attorney General, in consultation with the Director of National Intelligence, shall adopt minimization procedures that meet the definition of minimization procedures under section 101(h) or 301(4), as appropriate, for acquisitions authorized under subsection (a).
JUDICIAL REVIEW- The minimization procedures adopted in accordance with paragraph (1) shall be subject to judicial review pursuant to subsection (i).

Section "301(4)", mentioned in #1 refers to physical surveillance, so the relevant section is 101(h), as follows (via Thomas):

(h) “Minimization procedures”, with respect to electronic surveillance, means—
specific procedures, which shall be adopted by the Attorney General, that are reasonably designed in light of the purpose and technique of the particular surveillance, to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information;
procedures that require that nonpublicly available information, which is not foreign intelligence information, as defined in subsection (e)(1) of this section, shall not be disseminated in a manner that identifies any United States person, without such person’s consent, unless such person’s identity is necessary to understand foreign intelligence information or assess its importance;
notwithstanding paragraphs (1) and (2), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes; and
notwithstanding paragraphs (1), (2), and (3), with respect to any electronic surveillance approved pursuant to section 1802 (a) of this title, procedures that require that no contents of any communication to which a United States person is a party shall be disclosed, disseminated, or used for any purpose or retained for longer than 72 hours unless a court order under section 1805 of this title is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person.

In essence, this is the requirements document for the pen register, trap and trace device and analytical engine device. Where as question #3 is "will the procedures be adequate?", question #4 is "will a good-faith effort be made to see that they are applied?" Two changes in the law would seem to attempt to speak to this question.

First, throughout the document, things that used to be the purview of the Attorney General or "the Attorney General or the National Security Advisor" are now "the Attorney General and the National Security Advisor" or at least "the Attorney General with the advice of the National Security Advisor". This doesn't guarantee the good intentions or competence of the two people, but it at least requires the collusion of two Senate approved officials, and one can see why the Senators might want that.

Second, the bill explicitly states in a number of places that the actions taken "shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States." This may seem frivolous. After all, all US laws must be consistent with the Constitution, and no federal action may legitimately violate Constitutionally protected rights. However, the inclusion of this specific proviso in the FISA law means that violations of the 4th amendment in carrying out these procedures is not only a violation of Constitutionally protected rights, with all that entails, but a federal crime under this statute as well. This provides an additional means of prosecution.

It remains to be seen whether these changes will have the beneficial effects that the Senators and others who support it hope, but I begin to see why they might think that this is an important improvement to the FISA laws. It

brings all foreign surveillance under this law
aligns the law with the jurisdiction and protections of the Constitution
requires explicit procedures be defined for winnowing protected US communications from unprotected foreign communications
makes the AG and NSA jointly responsible
requires review
makes explicit the criminal nature of stepping outside this law or the Constitution
increases senate oversight
makes explicit the grounds for criminal proceedings

While it may be argued that this law can be abused, that the government can use it as cover for domestic surveillance, the law explicitly addresses that. The law makes it a crime to target any of the following (from section 702(b)):

(b) Limitations- An acquisition authorized under subsection (a)--
may not intentionally target any person known at the time of acquisition to be located in the United States;
may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States;
may not intentionally target a United States person reasonably believed to be located outside the United States;
may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States; and
shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States.

Making it a crime doesn't stop it, but it does give us a handle for dealing with it.

In the end, given the need to balance the Constitutional protections of US persons and anyone in the US with the need to allow the foreign intelligence services to spy on foreigners overseas, and the facts of the mingling of foreign and domestic traffic and that email is more like postcards than letters in envelopes, I am left wondering what alternative there is other than a law something like this one.

Quiet Revolutions

2008-07-09T18:50:00.004-05:00

Today the rule of law, the checks and balances and the rights reserved in the Bill of Rights were damaged as the FISA act was once again altered and retroactive immunity was authorized for law breaking telecoms. A lot has been written about this. I will not add to that.

Instead, I thought I would point out a pair of quiet revolutions that took place over the last couple of years that got very little coverage. I do so for two reasons. First it is worth noting that not all of the battles for civil liberties in the last couple of years have been lost, and second, it is important to realize that major changes both for good and ill can happen with virtually no one noticing.

The day after the Military Commissions Act was passed and habeas corpus damaged, a second important protection was virtually wiped away—Posse Comitatus. If the weakening of habeas corpus dredges up images of King John, Runnymede, and the Magna Carta, Posse Comitatus should put us in mind of Julius Caesar and the crossing of the Rubicon. The Posse Comitatus Act of 1878 basically forbids the use of the US military or the National Guard under federal control within the United States. It keeps the government from using the miltary on its own citizens. It is essentially the modern version of the Roman law that forbade the legions from crossing the Rubicon into Italy proper.

The Insurrection Act of 1807, on the other hand, authorizes the use of the military and the federalized militia to deal with lawlessness, insurrection and rebellion within the country. The tension between the two acts defines the ways in which the President may legitimately use the military domestically.

The expansion of the Insurrection act came on the "John Warner National Defense Authorization Act for Fiscal Year 2007". Section 1076 of that law rewrote Section 333 of title 10 of the U.S. Code, the Insurrection Act. I wrote a blog posting dealing with the changes a year ago, and also produced a page showing the changes in detail. To summarize quickly, the circumstances under which the President could use the military within the US was expanded from insurrection and rebellion to include "natural disasters, public health emergencies and terrorism", and most alarmingly of all "other circumstances" and left the determination of whether these circumstance pertained to the President.

In short, under the new law, if the President determined that a situation of domestic violence, conspiracy or "unlawful combination" has hindered or obstructed the execution of the laws, and that this is one of those "other circumstances cited in the law, he may federalize the National Guard and use it and the armed forces. This basically made the power to declare martial law and arbitrary power of the President.

The good news is that the "National Defense Authorization Act for Fiscal Year 2008" (HR 4986) which was passed and signed by the President in late January completely undid these changes, and the Insurrection Act and Posse Comitatus have returned to their original balance. The bad news is that it had to be done on the QT. Nearly a year before HR 4986 was passed, Senator Leahy, with the support of Kit Bond, Senator Hagel and 10 Democratic Senators introduces S. 513, a bill that would have done the same thing. It died in committee. Only by burying it in the defense authorization act could they sneak it through.

Civil Libertarians would have celebrated this victory except that it went unheralded, and in fact if you look for news stories about the change which was signed at the end of January, you will find that many are dated at the end of April.

Those of you who paid attention to the Senate debate over the last couple of days on the FISA and telecom immunity legislation will recognize the names of the senators who were willing to stand up for Posse, as sponsors or cosponsors of S 513:

Sen. Patrick Leahy [D-VT]
Sen. Christopher Bond [R-MO]
Sen. Sherrod Brown [D-OH]
Sen. Robert Byrd [D-WV]
Sen. Maria Cantwell [D-WA]
Sen. Thomas Carper [D-DE]
Sen. Robert Casey [D-PA]
Sen. Russell Feingold [D-WI]
Sen. Charles Hagel [R-NE]
Sen. Mary Landrieu [D-LA]
Sen. Blanche Lincoln [D-AR]
Sen. Ken Salazar [D-CO]
Sen. Ron Wyden [D-OR]

I'm afraid I cannot say what nameless aide put the language into HR 4986. Such is the reality of modern stealth legislation.

We must continue to fight the good fight, just as the three or four dozen senators who voted today to support civil liberties did, just as the sponsors of S 513 did, and at times quietly as the author of HR 4986 § 1068.

As ever, don't believe me.
Research for yourself.
Be a free voice.
Cry for Freedom

A house divided against itself cannot stand.

2008-06-28T17:51:00.006-05:00

Just over 150 years ago, Abraham Lincoln warned us that "a house divided against itself cannot stand". While the image of national disunion, prophetic as it was, was what captured the national imagination, his actual message was not that the house would fall, not that the Union would crumble, but that

It will become all one thing or all the other. Either the opponents of slavery will arrest the further spread of it... or its advocates will push it forward, till it shall become alike lawful in all the States...

His speech was a call to action, a warning that the Union was on a path that would lead to that which the North felt was inconceivable, the full legalization of slavery. It was a warning of the course the Republic was on, unless direct and strong action was taken to avert it. Sadly his speech was not strong enough to rally him the support needed to attain the Senate, let alone achieve his goal. Rather, it wasn't until the house actually began to fall, that states seceded, that a war was fought, that he achieved his goal and then paid its price.

I can easily imagine the horror he felt as his nation trod relentlessly towards slavery or disunion. I can imagine it because our house, our houses today are divided. The nation is divided, the Republican and Democratic parties are each divided, the proponents of civil liberties are divided. Polarization is rampant, and it endangers what we cherish.

A bit over 250 years ago Franklin wrote the following

As to the other two acts. The Massachusetts must suffer all the hazards and mischiefs of war, rather than admit the alteration of their charters and laws by parliament. "They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety".

The last quote, which he published in slightly altered form a few years later, is reminiscent of his maxim of 270 years ago to "Sell not virtue to purchase wealth, nor Liberty to purchase power."

All of this is advice that is extremely timely. All of it came to mind as I read Glenn Greenwald and Keith Olbermann, two staunch and outspoken defenders of our civil liberties and tradition of the rule of law not men, bickering with each other, sparked by Senator Obama's abandonment of his pledge to fight against retroactive immunity and the expansion of presidential power, presumably to increase his chances of being elected. All this while we as a nation take step after inexorable step away from habeas corpus, away from posse comitatus, away from the separation of powers, away from the rule of law towards the rule of men, the ever strengthening unenumerated inherent power of the man who is the decider in unitary executive.

The time has come to put aside the bickering between Obama Democrats and PUMA "Clintonians" and put a stop to the Republican advancement of the authoritarian destruction of our civil liberties. The time has come for civil libertarians such as Greenwald and Olbermann to put aside the bickering between them. The time has come for Obama to refuse to sell liberty to purchase power. The time has come for virtue over greed. The time has come to realize that it is not immigrants, legal or illegal who are stealing our jobs, but corporations and wealthy CEOs that are shipping those jobs overseas. The time has come to realize that Islamic radicals cannot steal our freedom, only we can sell it out of fear and greed.

The time has come for Republicans to stop sacrificing every conservative principle, every liberty in the name of party loyalty. Authoritarian rule by a unified executive that can at a whim nationalize the National Guard, and employ the Armed Forces in the US in "other circumstances", augmenting that with mercenaries who operate outside both American law and that of the nation they are "helping", and law breaking public carriers immunized at the word of the unified executive--these are not conservative values. Crippling national debt is not fiscal conservatism whether it is brought on by a spendthrift congress or a Commander in Chief who refuses to budget or collect taxes for America's longest war.

The Supreme Court recently reaffirmed that the Constitution valued habeas corpus even before it affirmed the Bill of Rights. And out of party loyalty, and fear of stateless terrorists, Republicans and Conservatives pilloried them for it. What conservative principle is served by fear mongering, of surrendering our most fundamental rights? None! The only reason that Liberals and Conservatives are fighting over this issue is because of what side the other is on.

A house divided against itself cannot stand. PUMA, Greenwald, Olbermann, Get A Grip! Sell not Liberty to purchase power. Obama, stand firm! Do not capitulate on principles for fear of being soft on terrorism. It is not "Strong on Terrorism" to give up essential liberty to obtain a little safety! It certainly isn't soft on terrorism to hold law breakers accountable--even if they were asked to break the law by the president.

We have allowed polarization to divide our country and our parties. We have allowed fear to cause us to sell out our principles and our liberties. Great Republics do not fall to small bands of fanatics. They fall when fear and divisiveness cause the people to surrender their rights and freedoms to the Leader, the Dictator, the Emperor. They fall when they allow their armies, their mercenaries, their spies, their police to be turned on them. They fall when they allow the government to keep a "little list" of people who cannot move freely, when they allow free speech to be confined to zones, when the leader's agents are immune from the law. They fall when the wealthy can buy the law.

Franklin, Jefferson, Washington, Hamilton, Lincoln, Eisenhower all have warned us repeatedly against fear, greed, manipulation, the combination of money and military power. People! Stop! Think! Stop hating the enemy. Stop fearing the bogeyman. Dear me. Obama and Clinton differ in the details. Greenwald and Olbermann are on the same side of all the issues. They're calling each other names over who should be blamed for what. It doesn't matter who is blamed! What matters is what we do! Anthony Kennedy is a Conservative for great Ghu's sake.

When did it become a great Conservative value to fear monger!? Scalia says that Americans will die if we follow habeas corpus? The McCain campaign thinks it would be good for Republican political aspirations if after 8 years of the Republican Bush administration a terrorist attack was successful!? Republicans are rooting for Al Qaeda? Huh? The failure of the Republicans to keep us safe means we need more years of them? What?

Stop! Take a breath. Let's take a quick survey: Small government, low taxes, balanced budgets, states rights, free market economics, original intent, strict constructionism. Aren't those conservative values? Where did they go? The Republicans are so afraid of dissent among the ranks that they are willing to sell conservative principles for party unity and loyalty and follow a Republican president wherever he will lead.

The Democrats have so sanctified and so demonized their own leaders that they are willing to follow the Republicans into the same unprincipled "rule by men, not laws" future. The Dems, and the advocates of civil liberties are so focused on casting blame that they will attack their own allies.

Fear and division.

A House divided against itself cannot stand.
Sell not virtue to purchase wealth, nor Liberty to purchase power.
We have nothing to fear, but fear itself.

Please, get a grip.

Thank you. I'll be quiet now. We return you to the civil war, already in progress.

School Girl vs "Professional Journalist"

2008-02-14T01:08:00.009-05:00

Two news stories recently caught my eye, not only for what each one told us about the state of the Republic, but even more so, what comparing them tells us about the sorry state of journalism today. In the first story, Chris Wallace of Fox News managed to be so obsequious that it made even George W. Bush uncomfortable to accept the gesture.

WALLACE: I want to follow up on that. Whether it is interrogation of terror prisoners or the intercepting of surveillance among al Qaeda members, are you ever puzzled by all of the concern in this country about protecting of rights of people who want to kill us?

BUSH: That is an interesting way to put it. I wouldn't necessarily define some of the critics of my policy that way. I would say that they want to be very careful that we don't overstep our bounds from protecting the civil liberties of Americans.

In the same interview, Bush grossly misrepresented Senator Obama's foreign policy:

WALLACE: Do you think there's a rush to judgment about Barack Obama? Do you think voters know enough about him?

BUSH: I certainly don't know what he believes in. The only foreign policy thing I remember he said was he's going to attack Pakistan and embrace Ahmadinejad, which -- I think I commented that in a press conference when I was asked about it.

WALLACE: I hope not. But so you don't -- you don't think that we know enough about him or what he stands for?

Bush's summary of what Obama supposedly said is patently false. The Senator actually said of Pakistan exactly what the President himself said, that if there were actionable intelligence that Osama bin Ladin were in a known location in Pakistan he would go after him, preferably with Pakistan's support, but even over their objection. As to "embracing" the Iranian president, what he actually said that started all the brouhaha was that he would be willing to meet with the leader of Iran (and 4 other countries hostile to the US) "And the reason is this: that the notion that somehow not talking to countries is punishment to them -- which has been the guiding diplomatic principle of this administration -- is ridiculous." (Transcript available at CNN.)

Wallace did not challenge the President on this misrepresentation, but rather encouraged him. The interview was a segment on the Feb 10, 2008, edition of "Fox News Sunday with Chris Wallace" is available in pieces on YouTube, and a partial transcript is available on FoxNews.com.

The second story involves Karl Rove's recent appearance at Choate, the exclusive prep school. Rove had originally been scheduled as a commencement speaker, but was rescheduled to make a longer public appearance, dining with a group of students and giving a public speech followed by a question and answer period.

The article describing the event in the February 12, 2008 Hartford Courant contained the following account, which was picked up by a number of other journals, including Rolling Stone, who hailed the student as a hero.

Then there was Marla Spivak.

Spivak, a senior from Hamden, was one of the students invited to have lunch earlier with Rove. That left her somewhat emboldened as she stood before the crowd and asked Rove to explain how giving gay people the right to marry would endanger other people.

Rove took issue with the way the first gay marriages came about, through the Massachusetts Supreme Court. An issue as important as the definition of marriage should be resolved by a legislature or a referendum, not a court, he said.

Gay couples could gain the legal rights of married couples through legislation without actually getting married, he said.

But wouldn't creating a separate body of legislation for gay people be creating a separate but equal system, a step back?, Spivak asked.

Rove replied with an answer about Mormons changing their views on marriage to conform with the nation's laws.

Spivak kept pressing. "You never actually answered, how does it threaten anyone?" she asked.

Rove asked, what's the compelling reason to throw out 5,000 years of understanding the institution of marriage as between a man and a woman?

What, Spivak countered, was the compelling reason for society to allow interracial relationships when they had once been outlawed.

Then Rove invoked the Declaration of Independence before Spivak interjected that its reference to "life, liberty and the pursuit of happiness" seemed to support her claims.

Their verbal pingpong match tapered off after Rove brought up polygamy and Spivak acknowledged that she did not know enough about polygamy to answer. Rove later asked when she planned to run for political office.

Whereas Wallace was a disgrace to journalism, young Marla did her school proud. Having Rove on campus was somewhat controversial, but this exchange shows why it was a good idea. Marla and her classmates as well as the readers of the Courant, Rolling Stone and the others who covered it all learned a valuable lesson. Ignorance, bigotry, hypocrisy and their like will always be with us, but the light of truth, reason and justice can be shone upon them by youngsters who haven't even finished school. It is about time that journalists and Congressmen learned to have the backbone and persistence that Marla showed. Where is the threat? Where is the danger in same-sex marriage? Where is the justice in denying it? These are questions worth asking, be they asked by school girls, journalists, comedians or Supreme Court justices.

Chris Wallace, a second generation journalist should know better than to suck up to the President with such drivel. He should know enough to press when the President lies during an interview. He should not be shown up by a high school student. Shame on him! Shame on Fox for letting him! And shame on us for putting up with all of them. Marla Spivak should put them and us all to shame.

Feel free not to agree with the disdain I feel for the man who lies from the Oval Office. Feel free to not share my pride in my Commonwealth that its Supreme Judicial Court recognized the conflict between our Constitution and our laws and forced us to reconcile them. This is a free country and each of us should be a free voice. Each of us should raise that voice and ask the questions that we have, and make power answer those questions. Hard questions, honest questions, voiced freely and persistently is what keeps this country free, and keeps our voices free.

Thank you, Marla Spivak. You are a free voice, one that should make us proud.

Vox Libertas

Thank you, Senator Dodd

2007-12-17T11:27:00.000-05:00

Senator Dodd,

Thank you, Senator. Thank you for doing what so few have these last few years: standing up for the Rule of Law. The Rule of Law doesn't have a big office on K Street, nor does it result in much juicy gossip. And though, for a while, it seemed to have become a partisan issue, with the Republicans working against it out of loyalty to an Imperial President and Democrats speaking up for it to show their opposition to him, we see now that it has few partisans, that few will man the barricades for it.

And yet there you stand, not in Iowa or New Hampshire, but on the floor of the Senate, speaking for the Rule of Law, the principle that if you violate the law, commit crimes, you must face justice in a court of law. There you stand, for the principle that the law of the land and not the whims and dictates of the Commander in Chief, the Sole Supervisor of the Unitary Executive, the man with "Inherent Executive Authority" that goes back to the Divine Right of Kings, is what rules us. There you stand.

And with you stand the ghosts of all our forefathers who gave their lives for the precious documents that enshrine that principle. How has it come to this that so few of our supposed leaders, our representatives, our senior statesmen stand by you? How is it that Senator Reid can give lip service to the principle, but bring to the floor the version of the bill that casts it aside, yet again? How can he not honor your "hold" and yet honor Senator Graham's that protects the power to torture from the application of the Army's Field Manual?

We hear much about supporting our troops. How does it support them to throw aside the practices of the Field Manual which prescribes principles of international law that we expect the world to apply to them. How does it support our troops to set aside the Uniform Code of Military Justice in favor of secretive ad hoc "Tribunals"? How does it serve them to tear down the principles that we insisted on at Nuremberg, that the rule of law and not of vengeance and power of the victor to do what he likes with the vanquished? How does it honor our dead to set aside the Constitution, Federal statutes and those of the several States, the laws and principles they fought and died for?

How have we come to the point where the ability to torture gets more respect from the leader of the Senate, the supposed head of the Opposition, than does the defense of the principle that those who break the law must face Justice in a Court of Law? It seems surreal. Routinely these days you hear people invoke Orwell's 1984, and less often Brave New World. Occasionally, Animal Farm is suggested as shedding light on where we are, or wry comments are made about the subtitle, "How I learned to stop worrying and love the bomb".

But this week I feel like I'm caught in the President's Analyst. You may remember the film that satirized spy thrillers and conspiracy theories, by making the ultimate evil force that threatened our country that villain that everyone could hate: TPC -- The Phone Company. I feel like Dr. Sydney Schaefer, the titular President's Analyst who becomes convinced that everyone is spying on him, that all the spy agencies, and at their heart The Phone Company are out to get him. Back in 1967 we laughed at the film. It was an absurdist spoof. Today we seem on the verge of making it real, of making The Phone Company immune to prosecution, immune to civil suit, immune to inquiry as they secretively spy on us at the whim of a President whose lawyers tell him he is above the law or perhaps he IS the Law..

But, there you are. There you stand. Son of an FBI agent, Senator and Nuremberg prosecutor. Dark horse in a Presidential race where one freshman senator criticizes another for lack of experience. And while they thump their tubs, you stand and speak and act for the Rule of Law. Thank you Senator. Thank you from the bottom of my heart. As the descendant of a Scot who came to this country in chains, condemned to indentured servitude for standing against a self proclaimed "Lord Protector", only to win his freedom and settle in your home state, I thank you.

Thank you for remembering how hard fought our freedoms and privileges are in this country, thank you for standing for the the Rule of Law. It's not glamorous. It will not win you friends. It probably does you little good on the campaign trail. It will not endear you to K Street or to the leaders of your party. But thank you, and may Providence bless you.

Jim Burrows
Vox Libertas
A free voice

In Concord, Cannon Law

2007-10-14T20:30:00.000-05:00

In Concord, Cannon Law This is now the fourth posting in my "In Concord" series, in which I have been trying to capture the thoughts and reflections that occupy me when I go to the Old North Bridge in Concord, Massachusetts, a hallowed place that has served as my church for most of the 21^st Century. These postings have come in the order that their subjects arise in a typical visit, contemplating the enemy graves, the battle and fallen Minute Man memorialized there. We now follow the path to the Visitor's Center. After a short while it turns sharply to the right. The road used to fork here and the left fork continues on as a mowed path through the grass past the ruined foundation of Capt. David Brown's farm. I often stop here to contemplate the subject of this posting, but for a while there has been an even more concrete focus to be found further up the path.

In the Visitor's Center we find "The Hancock", one of the two remaining cannons from the cache that Gov. Gage had sent his men to confiscate. It is on loan from the Bunker Hill Monument in Boston (which commemorates the battle fought on Breed's Hill, but that is a story for another day). Like the other remaining cannon believed to be from the Concord cache, "The Adams", the Hancock is named after one of the two dangerous radical leaders that Gage was seeking. It sits on a recently made gun carriage not unlike the ones found and burned in downtown Concord resulting in the smoke that made the men of Concord fear their town was being burned. Together they represent the triggering causes of the "shot heard round the world", the outbreak of the War that would give birth to one great nation and begin the fall from power of another.

All that because Gage feared this weapon and its like in the hands of Hancock, Adams and the bands of insurgents and unlawful combatants who sided with them, to put it in the terms of my earlier postings. All this because rather than treat with men like Hancock and Adams, he and his superiors across the sea chose a preemptive military action, to interdict the radicals and their weapons of war.

But that formulation is all from the point of view of the British, their motives, their mistakes and the strategic failures that they led to. These are important in light of the analogy to our failure to apply the lessons of Concord to modern times, but now let us look at The Hancock and its fellows from the perspective of the Colonists. What does it tell us about their motives and beliefs, about the oft-cited Founding Fathers, their beliefs and assumptions?

To put it bluntly, the Battle of Concord was fought in part over the right of the people to bear arms, and not just pistols, and fowling pieces, but cannons—weapons of war. Gage moved precipitously and disastrously because he did not believe that the weapons of war belong in private hands, a view shared by many Americans today. But what Captain Davis and Private Hosmer died for on the North Bridge was their belief in the right and the need for the people to remain armed. Captain Davis was a gunsmith who drilled his Minute Company with bayonets and shot that he supplied them with, who died defending right of the men of a nearby town to possess cannons, powder, shot and the stores needed to field their militias against a government they found tyrannical.

When we write of Colonel Barrett, Captains Davis and Brown and the other colonial officers, it is easy to think of them as commissioned officers because of the titles of rank the bore, but there is an important distinction between Col. Barrett and Col. Francis Smith, the redcoat who lead his soldiers into Concord, between Capt. Davis and Capt. Walter Laurie who lead the troops on the other side of the bridge. Capt. Laurie, commander of the 43rd Regiment of Foot bore a King's Commission. He was a Captain in the King's army because the King said he was. His authority over his troops devolved to him because he and his superiors were appointed by the King or his appointees.

Capt. Davis was a captain because his fellow citizens in Acton said he was. Capt. Davis was elected. He served his town and his neighbors because he volunteered to and they elected him. His bravery, familiarity with firearms and willingness to supply and train his neighbors qualified him. Before the battle he and Major Buttrick, whose house is just beyond the Visitor's Center, and who drilled his men on the very field upon which the Colonials were gathered, and Capt. Brown, his next door neighbor, whose family watched the battle, and Col. Barrett whose field hid the cannons. They met to discuss and decide what to do because they were responsible not to a distant Governor or more distant King, but to the men who would die following their orders. The men, their neighbors, who elected them to make these decisions.

I stress the distinction between the commissioned officers of the King's army and the elected officers of the colonial militias and Minute companies because it is important in understanding who the cannons belonged to (ignoring for the moment the fact that they may very well have stolen them from the British). They belonged to the People. Even in 1775, before the Declaration of Independence, before the Constitution of the United States of America, these men gathered in Concord believed that political and even military power arose from the people.

The cannons were not Col. Barrett's, not Hancock's or Concord's. The cannon belong to the people. Barrett had them because he was the a senior officer in the people's militia, and was capable, as he proved, of protecting them until they were needed. He needed no authorization from the King, no commission as an officer. Rather he had the trust and respect of the men who elected and followed him, who were willing to die following his orders or those of Capt. Davis or Maj. Buttrick.

That this is so becomes quite clear a little more than a year later when John Hancock, the dangerous fanatic who fled Lexington with Sam Adams a few hours before the fight at the Bridge, and who would become the first Governor of the State of Massachusetts, seventh President of the United States in Congress Assembled, signed a document that declared that

... Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, ...

and

... But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, ...

And that is the importance of the cannon, since named after him, that lay concealed in the furrows of Col. Barrett's field, and the shot, powder and amassed provisions that were stored in his neighbors' houses. They enabled the people, the militia, to throw off British rule, to revolt against the government that they judged to be despotic.

These men did not believe in the inherent authority of the Commander in Chief and Supervisor of the Unitary Executive to ignore the law, whether he called himself the King and claimed Divine Right or President elected by a minority of the citizenry. They believed in retaining not only their rights, and the right and obligation to revolt. They also believed in the retaining the cannons, the weapons of war, to enable them to exercise those rights and duties to overthrow despots not merely foreign, but domestic.

It is all well and good to try to claim that

A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.

means something else, but as the men who laid down their lives in Concord on Patriot's Day, April 19, 1775, demonstrated, the men who hallowed this ground did so in defense of the right to bear cannon, and the right to revolt. And it was not merely the men of the Commonwealth who believed this. In response to Shay's Rebellion, a little more than a dozen years later the Virginian Thomas Jefferson wrote:

A little rebellion now and then is a good thing. …God forbid we should ever be twenty years without such a rebellion. The people cannot be all, and always, well informed. The part which is wrong will be discontented, in proportion to the importance of the facts they misconceive. If they remain quiet under such misconceptions, it is lethargy, the forerunner of death to the public liberty. …And what country can preserve its liberties, if its rulers are not warned from time to time, that this people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to the facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants. It is its natural manure.

And here's the paradox of liberty. This country whose founding documents proclaim the right of revolution, the right of the populace to be armed enabling such a revolution, was the site of a singular event, as a man dressed in colonial garb at the foot of the Concord obelisk pointed out to me yesterday. Twenty two years after the Battle of Concord, John Adams, the cousin of the other dangerous radical who fled with Hancock, was after whom the other cannon is named was inaugurated as President, under the following history making conditions.

The outgoing Head of State was still alive
The incoming Head of State was not related to the outgoing
The turnover was entirely peaceful
The incoming and outgoing Heads of State disagreed about major policies
The military was not involved

The country that believed in and was based on the right of revolt—armed revolt—was the birthplace of the entirely peaceful and orderly change of government.

And so, I disagree with those who seek to keep assault rifles and other weapons of war out of citizen's hands, to confine them only to duly appointed representatives of the government. Men died hallowing the ground where I pray in defense of just the opposite.

I met another man on the path of this sacred place, one who disagreed with some of what I have said in this series, who quoted me an old Shi'ite proverb that Iblis, the devil, was the first to reason by analogy, and that underscores the admonition that I usually end my blog postings with: Don't believe me. Read and research for yourself. Think and pray. Discuss with those who not only agree with you, but those who do not. Make your own decisions and act to preserve your country.

Be a Free Voice, the Voice of Liberty
Cry "Freedom!"
Vox Libertas

In Concord, The Minuteman--Unlawful Patriot?

2007-10-09T20:53:00.000-05:00

This is the third in my series of postings capturing my thoughts and reflections from my frequent visits to the Old North Bridge in Concord, the site to which I most often go to pray and meditate these last half dozen years. The course of this series has followed my usual path through the site. In the first, I started where each visit begins and ends, at the graves of the two British soldiers. In the second, I proceeded to the obelisk and contemplated the historic parallels between their mission to Concord and our invasion of Iraq. In this installment we proceed across the bridge to the monument that was the reason for my visit on September 12, 2001, the first time I came to the site explicitly to pray.

Today, we visit the Concord Minuteman. My prayer on September 12 was one of thanksgiving as well as one of mourning and remembrance. It seemed clear to me that just as the Minutemen defended their homes and neighbors in Colonial America, a number of the passengers of Flight 93 constituted the Militia in 2001. The details were sketchy, but it seemed clear from the reports of phone calls from the passengers that a group of men and women had gathered, determined that the hijackers had to be stopped from using their plane as a weapon, and charged the cockpit.

I came here to honor them, and their predecessors of the last 3 centuries, free citizens, volunteers who have stood to defend our Republic and Commonwealth. A few weeks later, in early October, I came here to pray before writing an essay entitled "9-11: America Victorious", in which I protested the portrayal of 9-11 as an American failure. This angered me because it gives too little credit to patriots like Beamer, Bingham, Burnett, and Glick who exemplify the Minuteman spirit.

In all the times that I have discussed this subject at the foot of the Minuteman statue, never has anyone disagreed with my contention that the Flight 93 heroes are the modern versions of Isaac Davis, and his fellows. Some have been surprised that they hadn't thought of it that way before, but none have taken issue.

Not so my other observation. You see, the Minuteman as portrayed in Daniel Chester French's statue is clearly an Unlawful Combatant, or more correctly, he is not in terms of the Geneva Conventions, a "Lawful Combatant". According to Article 4 of the Third Geneva Convention, in order to qualify as a Prisoner of War (a Lawful Combatant), one must fulfill the following requirements:

(a) That of being commanded by a person responsible for his subordinates;
(b) That of having a fixed distinctive sign recognizable at a distance;
(c) That of carrying arms openly;
(d) That of conducting their operations in accordance with the laws and customs of war.

The colonial militias at the time of the Battle of Concord wore no uniforms, and displayed no fixed distinctive sign, though some did wear war paint and others cockades, but these were more designation of rank than of allegiance. It can also be argued that they did not conduct their operations in accordance with the laws and customs of war. Certainly it was so argued at the time. One of the fallen British soldiers at the North Bridge was described by a fellow as appearing to have been scalped. The militia fired from cover, retreated into civilian houses and blended into the civilian populace. There is reason to believe that the cannons that the Governor was looking for in Concord were stolen from the British in Worcester. In the months leading up to the Battle of Concord, the militia had been used to intimidate the Governor's appointed judges, and so on.

Please, dear reader, understand that I do not say these things to disparage the Minutemen or the militias in general. You will be hard pressed to find someone more proud of the history or citizens of the Commonwealth or the Republic. I vehemently support the revolutionaries and insurgents who were our founding fathers. They were free men who fought for Liberty and for us, their descendants. They founded one of, if not the, greatest countries ever to grace the pages of history.

Rather, I bring these things up because I am critical of the Geneva Conventions and even more so of our nation's relationship to them. You see, in direct contradiction of the policies and opinions of the current administration, I hold that the Geneva Conventions do not cover enough people, rather than too many. They are not quaint, should not be abandoned or narrowed. The should be expanded. As they stand they would not cover the very men who fought to create our country. They would not cover the farmer who sets aside his plow to take up his rifle.

Ah, but you say, what of paragraph 6? (At least those of you facile with GCIII Article 4, Section A.) What of

6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

We were, however an occupied territory, a colony. Recall, if you will, that what had the Colonists up in arms (literally)—gathering the cannons, muskets and ammunition that Governor Gage sent his troops to find and confiscate were the "Intolerable Acts", including the Quartering Act, the reason that that the framers felt it was necessary to include in the Constitution the prohibition that

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Also, we had plenty of time. We had organized militias for more than a century. We did not "spontaneously take up arms". We chose the path of irregular militias rather than regular armies. No, paragraph 6 is not for us.

I'm no lawyer, especially not one versed in international law, so there may be something that I have overlooked, some way in which one might argue that the colonial militiamen might be covered by GCIII and GCIV, but at best, the matter is unclear. And so, if we were to be true to the history of our nation, we would be pressing the international community to extend the coverage of the Geneva Conventions, and not as the current administration has done, worked to restrict that coverage.

This country was founded by insurgents, by free men who banded together for self protection who believed that the government was "of, by and for the people", that it takes its legitimacy from the will and the consent of the governed. We reject monarchy based on divine right and the subordination of the people to the state. The restrictions in the Geneva Conventions are based on the premise that only a state may raise an army, that fighters who are part of a recognized army fielded by a legitimate state should be protected. Individuals who fight for their own liberty, for the defense of their neighbors without state blessing are not as valued and protected. Unlawful Combatants. Insurgents and other non-state sponsored individuals are not protected. This should not be surprising as the Geneva Conventions are agreements between states.

It is perfectly understandable, but in terms of what happened on April 19, 1775, and the years that followed it, of the principles of the Declaration of Independence and the Constitutions of the United States and of the several Sates, it is not very American. It is very Bush, however. The current administration believes very much in rule by a strong individual, a Commander in Chief who is the sole decider in a Unified Executive. They have advanced political theories that dismiss individual liberty for the good of the State and the nation. They have sought to limit the number of people protected by the Geneva Conventions, and by our laws. For them, States are more important than individuals, rights are granted to citizens by the state rather than the other way around, and of course all power in the state is wielded by the sole supervisor of the unitary executive.

The lesson of Isaac Davis, the Acton Minuteman immortalized in the Concord Minuteman statue is that the farmer, the gunsmith, the man who was convinced that if he took up arms he would die, takes up arms because it is the right thing to do, because a patriot protects his neighbor's town from being burned by an occupying army seeking to disarm honest farmers. Here is not a soldier, not a lawful combatant, but a gunsmith, a farmer, a free man, chosen by the common consent of his fellows, to lead the first charge.

This is America.

But as ever, don't believe me. Read the history of the Battle of Concord and the Intolerable Acts. Read of the life of Isaac Davis, and the owl he believed foretold his death but which did not hold him back. Read the story of Mark Bingham, the gay patriot from San Francisco and the words of his mother, Alice Hoglan regarding the ground that is hallowed by the bones of her son and the terrorists he died fighting. Decide for yourself what the memorials in Concord mean at their heart, what it means to honor the enemy dead, what it means to live in a Commonwealth and a Republic founded by insurgents, rebels and and citizen soldiers.

Be a free voice.
Be Liberty's voice.
Cry, "Freedom!"

Vox Libertas

In Concord, Cycles of History

2007-10-03T22:13:00.000-05:00

This is the second of my postings, capturing my thoughts and reflections at the Old North Bridge in Concord, Massachusetts, site of the "shot heard round the world". In the first, I introduced the series with a consideration of the import of the memorial to the two fallen British soldiers. In this installment, I will consider how they came to be there and how those events echo our own time.

I go often to pray and ponder at the North Bridge, walk down the processional aisle between the twin rows of pines, stop to pay my respects at the graves of the two British soldiers and to pray not only for them but for all soldiers who fight and die in foreign lands, for our soldiers who are overseas and for our Republic. My next stop, is the obelisk, a few feet behind me.

I came to this spot, between the two monuments, one month short of the 208th anniversary of the Battle of Concord, on March 19, 2003 to contemplate what brought these two British soldiers to this spot.

They were sent, you see, on a mission to seek out and confiscate or destroy Weapons of War in the hands of dangerous fanatics who were a threat to their homeland thousands of miles away, and to capture and arrest two of the most dangerous of the fanatics' leaders. They never found the weapons. They never captured the leaders. But the locals, fearing that their town was being burned down by the invading army, who by the way, were actually trying to save the town, took up arms, joined the militias in huge numbers and using tactics that violated the rules of war drove the invading army back to the capital city, where they remained besieged until they withdrew. The mission, the invasion, the occupation, emboldened the fanatics, allowed them to recruit huge numbers, and assisted by foreign fighters hostile to the invading army drove them from the area. In doing so, they set an example for fanatics, separatists and nationalists around the world and a globe-spanning empire declined and fell.

The next day, March 20, 2003, it was my fears and not my prayers that were answered. This time the Great Power was the United States and not Great Britain. The Weapons of War were chemical and biological weapons, and perhaps a nascent nuclear project rather than cannons and as we have subsequently learned, seem not to have existed—the cannons were only hidden. But the story was nonetheless familiar.

Of course, the analogy is imperfect. Saddam was undoubtedly a despot and had little in common with Adams and Hancock, and we were legitimately a British colony, and so on, but still, there are important lessons in terms of the strategy, the cost of tactical errors, and the like. To someone steeped in the history of the Battle of Concord, the siege of Boston and the American Revolution, some of these lessons are glaring. The soldiers buried here were their nation's first casualties in a series of conflicts that saw their homeland lose its influence in the area and its possessions and prominence throughout the world.

I had originally planned to give a more detailed account of the Battle of Concord and its analogy to our invasion of Iraq, but in keeping with my oft repeated urging that you not believe me, but rather inform yourselves and make your own decisions, let me refer you to the Wikipedia's article on the battle. You will find that the article is tagged as having its accuracy and neutrality challenged. The reason is that a couple of people feel that it is biased in favor of the British, and speculate this is due to foreign editors. As a matter of fact, the main editors are locals, and their understanding is quite like mine. But perhaps more importantly for my purposes here, since I am drawing an analogy between the colonials and modern Iraqis, and the the British and the modern US, that bias if it does exist works against and not in favor of my points.

I'll wait here while you go read the article.

Now that you're back, let me draw your attention to the following paragraph in the "Aftermath" section of the article (emphasis mine):

In terms of accomplishments and casualties this was not a major battle. However, in terms of supporting the political strategy behind the Intolerable Acts and the military strategy behind the Powder Alarms, the battle was a significant British failure because the expedition contributed to the fighting it was intended to prevent and because few weapons were seized.

This is the precisely the point I made to the tourists I discussed the Concord/Iraq parallels with back in 2003, on the eve of our invasion. Invading someone else's country, putting them in fear of their lives, and of the loss of their homes is not a way to keep the peace, is not a way to win world opinion. Rather it, in the President's words "emboldens the enemy". And anyone who knows about the birth of our country should have known that.

And the lessons go deeper than that. Governor Gage was on the one hand someone obsessed with secrecy, but clumsy in intelligence. His orders to Col. Smith were sealed, not to be opened until the troops were underway. His orders for reinforcements were sent only as single copies to keep them from falling into enemy hands, and yet the Colonials knew of his plans in advance and the failure to send duplicate orders created unnecessary and costly delays. When the reinforcements did move out, they went with inadequate supplies and when supplies were later sent to them they were waylaid and fell into enemy hands. Intelligence failures, a failure to adequately plan for contingencies, and an obsession with secrecy should all seem familiar to us today.

And yet, if we just study the first Battles of the American Revolution, we can see these lessons. If we study the last days of the Roman Republic as it became the Empire, or the fall of Republics into Empire after them we can find other, just as important, lessons.

I urge you, dear reader, as I have urged so many that I encounter by the Old North Bridge, to study our history, to think about these issues and most importantly, to speak out, to be a Free Voice, to be the Voice of Freedom, to Cry Freedom. Our Republic is a priceless treasure and it is under threat. It is under threat that is predictable and preventable. Those who forget, those who ignore, those who cannot learn from history are doomed to repeat it.

Vox Libertas.

In Concord, Meditations and Realizations

2007-10-01T06:06:00.000-05:00

This is the first in a series that I plan to post, capturing the thoughts and reflections that I have when I go to one of my favorite and most sacred places, the Old North Bridge in Concord, Massachusetts. For most of this new millennium, the bridge and its environs has been my church and my retreat, the place I go to pray, to think, to find my balance. It has been such for a number of reasons. First, it was the site of pivotal events which shaped history for the centuries to come, and which resonate with the events that move us most profoundly today. Second, it is a place where men laid down their lives for their country. Finally, as a piece of nature, the arching bridge over the flowing river reminds me of the miracle of nature and creation.

Each of these articles should be short and focus on one theme, one line of thought of the several that I focus on when I go to the bridge. My time there, my meditations on nature, life, death and sacrifice, my ponderings of the history made there and its place in the larger fabric of American life and history have provided me with what I regard as important lessons and reminders, and so I'd like to share those with others.

The first spot, and the last that I always visit there will be the focus of this first reflection. I expect that it will be shorter and perhaps simpler than most of those that follow. But, as with my visits, I hope it will set the groundwork, the initial tone, of my postings, just as visiting the spot itself sets the context for my visits.

The spot is the graves of two British soldiers who were killed at the bridge on April 19, 1775. For those who have not vsited the site, let me set the scene. The bridge is not far from Monument Road, and you approach it down a broad path between rows of high arching pine trees, trees intentionally planted there to create something of a cathedral in the pines atmosphere. The path leads straight to the obelisk monument, and off to the left, by the inevitable New England stone wall, there is a small chained off area, with two Union Jacks and a large inscribed stone. Usually, there are flowers on the graves. If the pines create a cathedral effect, the graves are a small chapel to the side. They are small and unremarkable, at least physically.

But in another way they are most remarkable. All over the world you can find war memorials, grave sites, and markers to the fallen dead of past wars. But here, without much fanfare is one of the most unique. It is a memorial to the Enemy's Honored Dead. Think of that. Not to our nation's fallen heroes, not to the local boys who gave their lives, but to the fallen enemies, to those who were seen as invaders and a threat to the town, to two of the first casualties of the American Revolutionary War, even though they were on the other side.

This unique memorial says a lot to me about who we are as a people. Many of my ancestors are Celts, Irishmen and Scots, people who are renowned for their abilities to keep a feud alive for years, and generations. And so it is the world over, where wars are often fought over slights and insults generations or centuries old. But here, in America, "the Great Melting Pot", historical enemies have learned to live side by side, to hang together lest we hang separately. The first permanent colonists in the Commonwealth, the Pilgrims and the Puritans, came here seeking not religious tolerance, but the freedom to, in the case of the Pilgrims, create a separate community run by their own strict principles or in the case of the Puritans, to purify the Anglican church, according to very similar principles. Names like "Cotton Mather" are not associated with tolerance.

A century and a half later, as the United States emerged, Americans had learned that Quakers, Catholics, Protestants, Jews and Deists all had to set apart their differences, to live and work side by side with those with whom they disagreed upon the most fundamental truths and principles, that if freedom, democracy and the rule of law were rule in place of the King as joint head of Church and State then differences and old grudges must be set aside. Not surprisingly, once the Revolution and its echo, the War of 1812 were past, we tended to see Great Britain and Canada as perhaps rivals, but not real enemies.

And so, 130 years ago, the British graves were protected by pillars and chains donated by an English ex-pat, and we honor their deaths, and their role in the founding of our nation. We lay flowers on their graves, and mark it with their flag, and write words that praise their bravery. And that, is something not often seen now or through history. It is a small thing, but one of many that make me proud to live in my Commonwealth and my country.

And as I look at our present day conflicts, I start with a prayer that we can understand those on the other side and those caught up in the middle as we have come to understand those whom we fought 232 years ago. In part, these two soldiers died in a conflict that had been growing inevitably for years, and in part they died due to misunderstandings and confusions that arose in the heat of the moment. They died as a result of the folly of their superiors, immediate and ultimate, and helped to start a struggle that led to the fall of their Empire. I pray, each visit, that we can learn from them; that we can avoid similar follies; that we do not plunge our great Republic into a similar decline from greatness.

I visit their graves with both pride and humility. Only a great people can afford to honor their fallen enemies, and great nations can fall through hubris and folly.

In future installments, I will deal with such topics as the parallels between the Battle of Concord and the War in Iraq, the Minutemen and the Geneva Convention, and Concord's relationship to the Second Amendment, any one if which is likely to be a bit more controversial than this piece.

Until then, be a Free Voice.
Cry, Liberty.
Vox Libertas

Protecting the Republic

2007-08-15T23:10:00.000-05:00

The Democrats are failing us, as the recent FISA Court vote clearly demonstrates. They are not protecting our Civil Liberties, they are cowering before the political threats of a "politically weak" president and worst of all they are allowing him to arrogate more and more power into the Presidency. We need to make them understand that we want political leaders who will stand up for the People, our Liberties and the Republic.

Glenn Greenwald has written (here, here, here, here, here, and here) and spoken (here and here) extensively recently about how the Democrat-led Congress meekly deferred to the President and hastily revised the FISA laws, greatly expanding the government's power to secretly and without judicial or Congressional review tap any telephone or email communications that can be "reasonably believed" to be outside the US. Many others have taken up the cry and all of the Democratic Presidential hopefuls have distanced themselves from the action.

Most of the writing on this topic has spoken about the great harm done to our Civil Liberties, but as John Dean pointed out, in many ways, that is not the most important and dangerous aspect of the incident. Dean wrote in FindLaw's on-line journal, The Writ, an article entitled "The So-Called Protect America Act: Why Its Sweeping Amendments to the Foreign Intelligence Surveillance Act Pose Not Only a Civil Liberties Threat, But a Greater Danger As Well". In it he wrote,

The most stunning aspect of the Democrats' capitulation is their abandoning of their institutional responsibility to hold the president accountable. The Protect America Act utterly fails to maintain any real check on the president's power to undertake electronic surveillance of literally millions of Americans. This is an invitation to abuse, especially for a president like the current incumbent.

Greenwald and numerous others have written of the FISA fiasco, that congress capitulated to the "weakest President" in recent history. Witness:

It is staggering, and truly disgusting, that even in August, 2007 -- almost six years removed from the 9/11 attacks and with the Bush presidency cemented as one of the weakest and most despised in American history -- that George W. Bush can "demand" that the Congress jump and re-write legislation at his will, vesting in him still greater surveillance power, by warning them, based solely on his say-so, that if they fail to comply with his demands, the next Terrorist attack will be their fault. And they jump and scamper and comply.
-- Glenn Greenwald in Salon.com

Once again, the weakest president in the history of this country walks away a WINNER!!! Winning BIG TIME!
-- PinkytheBrain in a comment in Crooks and Liars

I do not understand how "Total Capitulation", jumping at the demand of the politcally weakest President in history, and craven betrayal of principle makes the Democrats "appear stronger".
-- LJean a comment in Balkinization

But if 41 Democrats lack the courage to stand up to the weakest president in decades at a time when every indicator they trust—polls, focus groups, pundits—is saying no to this man, when will they find the strength to stand?
-- Arlene Goldbard

By "weakest", of course, they mean that the President has extremely little support among the People, and after all the People are the source of power in our country and under our constitution. And so, lacking popular support the President should be weak, but in two very great senses, he is not. And therein lies the rub.

First of all, as they point out, the Democrats routinely, repeatably and predictably capitulate and give him pretty much anything he asks for. And secondly, what he has asked for is Power, and they have given it to him. They heap it on him and when they don't he just takes it and they stand by.

This President, this "weak" President has the authority to federalize the National Guard and deploy the US military within the borders of the US when, and I quote the new text of the insurrection act "as a result of ..., or other condition ... the President determines that ... domestic violence has occurred .. and such violence ... obstructs the execution of the laws ... or impedes the course of justice". It used to be that he could do so only to put down violent rebellion and insurgency, or to repel invasion. Now, natural disaster, terrorism or the unspecified "other condition" is sufficient. He used to be able to order insurgents to disperse, now he can issue a proclamation ordering "insurgents or those obstructing the enforcement of the laws to disperse". If he thinks peaceful protesters "obstruct enforcement", he can use the military to disperse them, once he has invoked this act. No other President has had this power.

With the FISA rewrite, it is not the Court but Attorney General Alberto Gonzales who oversees warrantless wiretaps. The same Alberto Gonzales who could not answer an opinion question asked of him in Congressional hearings without taking it back to "his principal"; who believes that the President as the sole supervisor of the "unitary executive" makes all decisions.

No, in terms of legal power, granted him and abdicated to him by the Congress, and his reconstituted Supreme Court, the current President has more pure executive and governmental power than any previous President. God help us if he were politically powerful as well.

So what are we to do about it? Well, we can turn out any Congressman who doesn't stand up to him. We can replace them with people who understand that their mandate is to protect our liberties, our constitutional government and the Republic. But what if there aren't enough. California has no Senator who voted against FISA. Only one did in Massachusetts. These are the supposed extreme liberal states. What if there aren't any Democrats with backbone in a senatorial or congressional primary? Well, I suppose you could vote for the John Bircher, or the Libertarian. But still, what if there aren't enough?

Well, at least, wrote people last weekend, none of the Democratic Presidential candidates voted for the FISA amendment. Perhaps the answer is to vote for a strong Democratic President who will whip Congress into shape and... wait a minute... Isn't that proposing that we turn to a Strong Presidential candidate to protect the Republic by weakening the Presidency? Is there, perhaps, just perhaps, a teeny little issue hiding in there?

This, boys and girls, ladies and gentlemen, is not going to be easy. The reason that power corrupts is that good people are tempted to use it--just for now--when it falls into their hands, for good purposes, and there are always good purposes that need power. And so power is seldom surrendered. The time to stop this isn't in the next election, it is now!

The FISA bill was only a temporary stopgap, with a 6-month sunset clause. Speaker Pelosi has sent a letter saying that when Congress returns next month, they'll need to reexamine it. But President Bush has also said that it needs to be revisited. It is, he feels only a first step, and the whole change needs to be made. Congress has to grant him and the executive branch, which as the sole supervisor of the unitary executive, means him, more power, more immunity from oversight, more protection from prosecution for him and those who go along with him, inside or outside the law.

The time to act is now. Make sure your voice, your free voice for so long as it remains so, is heard. Demand that your congressmen stand up for the Republic and against the concentration of ever more power into the President's hands.

Vox Libertas
A Free Voice, that cries Freedom!

Khalil, the Heretic

2007-07-28T12:59:00.000-05:00

Sigh. It has been far too long since I wrote here, and my review of John Yoo's "The Powers of War and Peace" has sat incomplete too long. My apologies. It seems that life happens while you are busy making other plans. The Yoo review will, sadly, continue to be delayed. Reviewing and critiquing political and legal theory takes more concentrated research and thought time than I seem to be able to muster in a single lump of late. So, please forgive me if I fall back for a moment on a simpler task, and write about media fear-mongering and cultural ignorance.

I was reading this morning, a little piece over in Think Progressive regarding Fox News's fear mongering coverage of the Khalil Gibran International Academy (KGIA), a new school opening in Brooklyn that will teach the Arabic language (in a special 2 our session after normal school hours) and Arab culture. When I saw the article and the Fox video, I knew nothing about the KGIA, but it seemed a little surprising to to me to hear the phrases "Muslim school", "Islam 101?" , "Funding Fatwa?," and "Coming soon to a classroom near you, Al Qaeda!" used with regards to a school named after Khalil Gibran, a Lebonese Christian, excommunicated from his church and exiled from his Ottoman Turk-controlled homeland for his attacks on the corruption of the nobility and the church, so I did a little research,

On the one side I found a blog by Daniel Meeter, paster of the Old First Reformed Church, who along with Rabbi Andy Bachman had accepted the invitation of the school's designated principal, Debbie Almontaser to serve on tKGIA's advisory council, in which he described her as an American Patriot. On the other, I found an article by Daniel Pipes in the New York Sun entitled "A Madrassa Grows In Brooklyn", which described Ms. Almontaser as an extremist. This article and a whole series of articles at pipelinenews.org are echoed in blogs all over the Web.

As I said, I know nothing of the school or Ms. Almontaser, but was suspicious of claims that someone who invited a pastor and a rabbi onto the advisory council of a school named after an iconoclastic Christian was pushing a fundamentalist Islamist agenda. After a couple of hours Googling and reading, it seems pretty clear that Fox News, Pipes, Pipline and the others are either engaged in fear mongering or are its victims.

Take, for instance, the following description of the Ms. Almontaser from a hyscience.com article entitled "The Dangerous Islamist Leftism Of Dhabah (Debbie) Almontaser And The Proposed Khalil Gibran School In Brooklyn":

According to Dhabah Almontaser, the principal designee of the proposed Khalil Gibran School in Brooklyn, the 9/11 Attacks America's Fault, and "terror is the last resource of a desperate and oppressed people" (as in oppressed by America). Almontaser's views and objectives are so bizarre that the school will be a government funded madrassah...

and contrast it with this slightly longer quote from the interview:

Terror is the last resource of a desperate and oppressed people, but that does not mean that it is acceptable. People who do terrorist acts have lost the sense of right and wrong, each individual committing such acts should be punished with the maximum extent of the law. Only Allah is entitled to take lives.

Just a little bit of a difference. She sound less of a "Dangerous Islamist" when she disapproves of terrorism and killing. When asked, "How do you think terror can be combated?" her reply was

- At least not by bombing a country into pieces! We did not bomb the hometown of Timothy McVeigh to combat terror when he exploded the Oklahoma bomb in 1995. Great Britain does not bomb North Ireland to fight down the IRA, and Spain does not kill hundreds of civilians in their search for ETA terrorists. So which right do we have to kill Afghan women and children, old and young in the search for Al Qaeda?

- Terror is combated by finding the terrorist cells, break them down and bring the responsible to justice. I am sure that our intelligence can find them. With the technology of today they survey what ever they want and are infiltrated in all kinds of communities.

At the time she said this, a little more than a year after 9/11, it was a point of view that would have been shocking or hard to swallow for a great many, but today as an ever-growing majority of Americans turn against the President's "War on Terror" it seems more mainstream.

On the other hand, her view on the causes of the 9/11 bombing are still not mainstream, and I can see how some, perhaps even many, would find them shocking or a little threatening. Asked "Why do you think terrorists attacked the USA?", she replied,

- A year ago I could not answer such a question. To me it was just impossible to comprehend how someone could do such terrible, totally sick atrocities. Many said they were not surprised that terrorists attacked the US. That hurt me deeply. Today I believe that the terrorist attacks can have been triggered by the way the USA breaks its promises with countries across the world, especially in the Middle East and the fact that it has not been a fair mediator with its foreign policy. It is not true that the people in the Middle East and Southeast Asia hate our lifestyle, our freedom and our democracy. What disturbs them is that we in order to secure our own well being, deprive them of the possibility of achieving the same high living standard and freedom of choice that we have in the western world.

[This is the point where she made the oft-quoted statement about terror being the last resource.]

This sort of candid criticism of American policy is the kind of thing that gets liberals and progressives accused of "hating America", and is an accusation that is hard for many of us to hear, but that makes it all the more important for us to listen to it and to understand where it comes from, rather than react with fear or anger. Rather than focusing solely on the extent that she holds her country responsible and not her faith or language, seeing it in a conext that starts and ends with a staunch disapproval of terror ("such totally sick atrocities... should be punished with the maximum extent of the law.") and on religious and ethical grounds in the context of her religion, can help us understand world culture and how it affects us all.

This brings me back to the thing that fist caught my ear, the fact that the Fox commentators and the critics in The New York Sun and the blogosphere all talk about the Khalil Gibran school and don't bother to mention that it was named after an anti-traditionalist Lebanese Christian, most likely because they don't even know. They fear and hate, but do not understand.

And that is not all that surprising. Gibran became quite popular in the late 60's but was generally viewed as a smaltzy poet, a source of pop aphorisms thanks to the popularity of The Prophet in both abridged and unabridged versions. In fact, though, he was really something of a radical and iconclast. Two of his works that I enjoyed while growing up were Spirits Rebellious, and Broken Wings. The first story in Spirits Rebellious, "Madame Rose Hanie" and Broken Wings address the same theme, a beautiful young woman in love with one man but in an arranged marriage with another older richer one. In Rose's case, Gibran argues explicitly that in leaving her rich husband to live with the poor one she loved, Madame Hanie was being faithful. Had she stayed, her motives and actions would be hardly different from that of a whore. Broken Wings is told from the perspective of the young man, whose beloved Selma dies in childbirth having stayed with her older husband. It was my favorite of his stories, even before I met and married my own Selma. How could I not appreciate:

In every young man's life there is a "Selma" who appears to him suddenly while in the spring of life and transforms his solitude into happy moments and fills the silence of his nights with music.

The final story in Spirits Rebellious, "Khalil, the Heretic", is of a young peasant man who stands up to a corrupt sheik and church. It's not a subtle story, but it is the one that got him exiled from his country and excommunicated from his church and the passion of its attack on church and state in the name of Jesus and the people helps one to understand his other works. (By the way, the title is not quite so self-referential as one might think, as Gibran's name was actually Gibran Khalil Gibran--Khalil Gibran was his father's name. His American publisher didn't think people would understand the double name.)

I bring up who and what Gibran was because, Anglo-Germanic Celt though I may be, his poetry, his faith, his art and his rebellion were all a part of my childhood, and it is perhaps due to that as well as all the other diverse influences that make me believe in this country and its E Pluribus Unum philosophy. The fear mongers would have us believe that the only part that matters is the "one", that foreigners should cast off their old languages and culture and become one, but that misses the great strength that there is in the "out of many". The great miracle of this country's founders was that Puritans, Anglicans, Catholics, Quakers, and Deists could all agree that their religion need not be the established one, that we could have many, or even chose none. Louisiana could join the Union with a legal code that owed more to French law than British Common Law. French-speaking enclaves could exist in New Orleans and northern New England, three Republics with Spanish traditions and histories and Spanish-speaking citizens could join the Union. We can be different and be Americans, love America.

A prayer offered by the title character of "Khalil, the Heretic" seems particularly appropriate to Vox Libertas.

Hear us, Oh Liberty;
Bring mercy, Oh Daughter of Athens;
Rescue us, Oh Sister of Rome;
Advise us, Oh Companion of Moses;
Help us, Oh Beloved of Mohammed;
Teach us, Oh Bride of Jesus;
Strengthen our hearts so we may live,
Or harden our enemies so we may perish
And live in peace eternally.

I cannot read them in the original Arabic, but the English version does nicely.

But, as ever, don't believe me. Read the works of Gibran. Read Debbie Almontaser's own words and think about them. Compare them to what is said about her. Learn something of the history of the Middle East, study from the Anglo/French, Turkish, Jewish and Arabic perspectives. See if you can synthesize a holistic view of that history from the varied versions.

Be a free voice, the voice of liberty, cry "Freedom!" till it rings.
Vox Libertas

Yoo: War-time powers NOT in effect

2007-05-29T18:03:00.000-05:00

John Yoo Review, part II

In part 1 of my review of John Yoo's book, The Powers of War and Peace, I criticized him for his flawed understanding of history, and of how things today differ from from the last century or two. In this article, my focus is more his reasoning and analysis of history. I think that the inescapable conclusion of this review is that even if we accept his premises and his reasoning we find that he provides arguments that directly contradict the doctrines and actions of the Bush administration.

In a day when a professor of government at Harvard University can write a serious piece in the Wall Street Journal arguing that the country needs and the US Constitution allows for "one-man rule" in preference to the Rule of Law, I believe it is particularly important to carefully read, analyze, and where necessary rebut writers like John Yoo and Harvey Mansfield who are providing the theoretical basis for the turn towards authoritarian rule.

In part 1, I suggested that Yoo's misrepresentation of history had several possible causes. Among them, one of the most likely was that he was serving a political agenda. In chapter's 2-5, we some evidence for that agenda—Yoo focuses very strongly on showing that the fact that the Legislature has the power to declare war does not mean that the President requires their permission to initiate military actions or hostilities, and that likewise making, breaking and interpreting treaties is an executive function. By so focusing on these points, however, he ignores several implications of his reasoning that weaken the justification for a strong unified executive that is free of legislative interference.

The first example of this appeared in the introduction. There, while considering the implications of Article II of the Constitution granting the Senate the power to ratify treaties, he wrote:

the Senate's participation in treatymaking and appointments reflects an effort to dilute the unitary nature of the executive branch, rather than to transform these function into legislative powers. When the Constitution, for example, grants the executive a power that is legislative in nature, such as the veto power, it does so in Article II. Participation of the Senate in treatymaking does not transform treaties into legislative acts, just as its role in appointments does not make the appointment of officers legislative in nature.

Because the distinction between executive and legislative powers is critical to his argument that the President enjoys the power to engage the nation in military conflicts and to negotiate treaties without the Congress's permission, he must draw sharp distinction between the unenumerated executive power that is vested in him from the power of the legislature. Thus, he views the Senate as acting, in this case, in a role analogous to the privy council in Britain or the Governor's Council in Massachusetts and the like. But in so doing he must ascribe to the founders the desire to dilute the "unitary executive" of which we hear so much.

Either the Senate is exercising legislative oversight in the making of treaties and appointments or the Senate is in these instances acting with executive power. In either case the notion of the President as the sole supervisor of a unitary executive is weakened. In the choice that Yoo has made in his analysis, we see the President's executive power tempered by the oversight and approval of a part of the federal executive that he does not supervise. Thus, when he argues in signing statements that the executive branch need not follow the laws as passed by the legislature, and does so as the sole supervisor of the executive branch, he does so in direct contradiction to Yoo's analysis.

If we make the other choice, that the Senate is part of the legislative branch and any powers granted to it are legislative in nature regardless of which Article they appear in, then we have clear instances where the President is subject to direct legislative oversight and approval, and when the President argues in his signing statements that the executive need not follow the dictates of the legislature in order to preserve the separation of powers, again we have counter examples. No matter which choice we take in this dilemma, Yoo has supplied us with a counter-argument for the independent and unitary executive that the neo-cons wish to claim.

Moving to the chapters that I had explicitly targeted with this part of my review, we come to another major contradiction of administration and neo-conservative theory, this time in the area of the declaration of war. A large portion of Yoo's book focuses on countering the arguments of "pro-congress" scholars who assert that it is illegal or unconstitutional for the President to engage in warfare without Congress's formal declaration of war. To do so, he argues that at the time of the writing of the Constitution it was clearly understood that a declaration of war neither initiated nor authorized military action. He writes in the section on British law at the time of the revolution:

First, it [the declaration of war] notified the enemy that a state of war existed between them. If a nation warned its enemy of future hostilities, its later actions would receive the protection of international law. A declaration announced that hostile actions by its soldiers were taken under national aegis, and thus did not constitute piracy or robbery.
p. 33

Second, declarations played a domestic legal role by informing citizens of an alteration in their legal rights and status.
p. 34

Thus, a declaration of war served the purpose of notifying the enemy, allies, neutrals, and one's own citizens of a change in the state of relations between one nation and another. In none of these situations did the declaration of war serve as a vehicle for domestically authorizing war.
p. 34

In the section on the colonial constitutions, he explains even more explicitly:

The declaration of war's main purpose lay not in authorizing military operations, but in triggering the governor's exercise of his domestic powers, such as the authorization to impose martial law.
p. 61

If we follow Yoo's reasoning, we may find that we must concede that the President does not need a declaration of war in order to commit the nation to armed conflict, but we must also find that without a declaration of war, the powers that the President has been claiming as Commander in Chief to authorize warrant-less wire taps, hold "enemy combatants" indefinitely, and so forth, are not permitted to him. Every time the President tells us "we are at war, and extraordinary measures are necessary", he is exceeding his authority, unless there is a declaration of war, according to Yoo's own analysis.

This line of reasoning finds it full conclusion in the following passage in the section where he analyzes the Constitution itself, which somehow the administration and the neo-cons don't seem to ever cite:

Textually, a declaration of war places the nation in a state of total war, which triggers enhanced powers on the part of the federal government
p. 151

A paragraph later, he expands on the type of enhanced powers that require a declaration of war.

Congress has recognized the distinction between declared total wars and nondeclared hostilities by providing the executive branch with expanded domestic powers—such as seizing foreign property, conducting warrantless surveillance, arresting enemy aliens, and taking control of transportation systems, to name a few—only when war is declared.
p. 151, (emphasis mine.)

Most remarkably, a few pages later, Yoo distinguishes the declaration of war from the "Authorization of the Use of Military Force" (AUMF) and other similar Congressional acts, when he writes:

With both Iraq and Afghanistan, a supporter of the Declare War Clause theory of war powers may well have felt the Constitution satisfied because of the two statutes authorizing hostilities—even though these scholars have never explained why authorizing statutes satisfy the requirement for a declaration of war.
p. 157

This is in very stark contrast with Yoo's own argument that "because the United States is at war with al Qaeda, the President possesses the constitutional authority as Commander-in-Chief to engage in warrantless surveillance of enemy activity." By his very definitions, this authority only applies in a declared war.

Conclusions

And so, we find that the very theories that John Yoo uses to argue for the strengthening the powers of the President, contain within them very powerful arguments against the way that the the Bush administration has exercised his supposed authority. Yoo, himself argues that the founding fathers wish to dilute the unitary nature of the executive by granting executive powers to the Senate, acting as an independent executive council, approving appointments and treaties.

More significantly, Yoo writes explicitly that the use of extraordinary war-time powers, such as warrantless surveillance require a declaration of war, and that the authorization of of military action in Afghanistan and Iraq does not qualify as a declaration of war.

If one of President Bush's own theoreticians and Justice Department appointments, a man credited with providing the foundation for doctrine of the unitary executive and the view of the President as wielding unenumerated executive powers, tells us that the founding fathers wish to dilute the unitary executive and that warrantless wire-tapping requires a declaration of war, how can we avoid drawing the conclusion Bush has exceeded his authority, violated the law, and violated the Constitution?

As ever, don't believe me. Investigte for yourself. Read the Constitution. Borrow Yoo's book from the library. (I find it hard to recommend buying it.) Peruse The Founders Constitution, an excellent collections of historical documents related to the Constitution. Read the "John Yoo says surveillance illegal" in the Daily Kos, for another conflict between his reasoning and administration practice.

Be the Voice of Liberty!
Cry Freedom! Uphold the Rule of Law!
To Be Continued...

What Is Wrong with CNN?

2007-04-05T21:07:00.000-05:00

Video availble at YouTube

Crooks and Liars recently featured a story entitled "What the hell is wrong with CNN?". I thought of it immediately while watching "The Situation Room" last night. After covering the President's denial that Iraq is in a civil war, but rather the grip of "pure evil", they turned to a "developing story" regarding the so-called "showdown" between Congress and the President over war funding. Wolf Blitzer was off for the night, so Suzanne Malveaux stood in to give the following melodramatic reading:

Suzanne Malveaux:

Secretary Robert Gates sounding the alarm about the Iraq mission. He is predicting very serious consequences for US forces, in just a matter of days if a new cash infusion doesn't come through.

CNN Pentagon correspondent Barbara Starr has more. Barbara, of course when we hear the President sound those alarms, his critics question his reliability, but now you are getting this from the Pentagon, tonight.

Barbara Starr:

"Suzanne, Defense Secretary Robert Gates had a very dire prediction today. If there isn't an agreement with Congress for additional war finds, maybe the war would have to end."

As you can see from the picture above, the caption read "Gates: No Money, No War, Iraq Nightmare Scenario." So, after we hear that somewhere between 2/3 and 3/4 of the American people want an end to the war, and the administration repeatedly asserting that Congress's only role in war is the "power of the purse", we now learn from CNN that "the war would have to end" constitutes a "nightmare scenario", a "dire prediction" of "serious consequences". What is the world coming to? In this democratic Republic, the populace might get what they want! Shameful.

OK, now that I've used sarcasm, maybe I'm not giving them enough credit. Maybe CNN was doing the same thing. Maybe I just missed it. Maybe all that's wrong with CNN is that they think I'll recognize sarcasm. Maybe I can't. Maybe their delivery stinks. I don't know. But my jaw certainly dropped.

It certainly doesn't sound like that legendary "Liberal bias" one hears the non-Fox News mainstream media accused of. Note that the two journalists quoted above are the show's anchor and their Pentagon correspondent, and not partisan commentators, and yet Barbara cites the "very dire prediction... maybe the war would have to end." There's no indication at all that there is any contrary view, that ending the war might not be a "nightmare scenario".

As ever, don't believe me. You decide. Watch the video on YouTube, read the transcript. Judge or yourself.

Cry Freedom! Be the Voice of Liberty!

John Yoo: Historic Flaws

2007-04-01T19:19:00.000-05:00

Part 1 of a review of John Yoo's
The Powers of War and Peace

I have been reading The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11 by John Yoo, and my reactions to it are strong and complex enough that I've decided to critique it here on on Vox Libertas. This page is the first in a planned series. I have not finished reading the book yet, and so the course of this series is not planned out, but so far, I see three major classes of difficulty with the book. They are:

His assumptions about history and the state of the world today are wrong.
His arguments are fallacious, often based on cherry-picking his evidence to suit some agenda or preconceptions.
Even if you buy in to his reasoning and conclusions, the actions of the Bush administration are often in conflict with the results.

Flawed From the Start

Yoo, himself, points out that his views are in sharp contrast with the prevailing views on the Constitution:

This book proposes a constitutional theory of the foreign affairs powers that differs, at times sharply, from the conventional academic wisdom but that describes more accurately the actual practice of the three branches of government.
p. viii

Others have also noticed this difference, but have a different explanation. See, for instance, Andrew Napolitano's book, Constitutional Chaos: What Happens When the Government Breaks Its Own Laws. Where Judge Napolitano sees the government breaking the law and violating the Constitution, and warns that we are becoming a government of men, and not laws, Yoo urges us to revise our understanding of the Constitution in light of what may appear to be unlawful practice. This difference is crucial and perhaps critical, and so Yoo's revisionist reasoning should be examined closely.

Yoo recounts some of the last two or three decades of political theory in the area of treaties and war powers, and contrasts the historical context in which they were written with what he sees as our current circumstance.

At the time such leading scholarly works as those mentioned above were written, the nature of war continued to be thought of as occurring solely between nation-states. The Persian Gulf War had just witnessed an American-led coalition's defeat of Iraq's grab for Kuwait—a traditional war over territory fought by the regular armed forces of nation-states. Nation-states were presumed to be both rational and susceptible to various levels of coercion, with force often being used only as a last resort.
p. ix

Thus, he claims, the theories of the day were based on this view of current events.

The disappearance of the threat of a war that could directly harm American national security allowed policymakers and intellectuals the luxury to envision a future in which they could reduce the overall level of armed conflict.
p. ix

Please notice that while this is possible, it should be remembered that Yoo himself is proposing that current practice should serve as a basis for political theory, and that his predecessors in general did not claim to work this way.

The Myth of Post-9/11

In his preface Yoo presents a view of recent history that will be familiar to anyone who has heard the Bush administration and their neo-con theoreticians defend their policies and actions:

The World after September 11, 2001, however, is very different. It is no longer clear that the United States must seek to reduced the amount of warfare, and it certainly is no longer clear that the constitutional system ought to be fixed so as to make it difficult to use force. Rather than disappearing from the world, the threat of war may well be increasing. Threats now come from at least three primary sources: the easy availability of the knowledge and technology to create weapons of mass destruction (WMD); the emergence of rogue nations; and the rise of international terrorism of the kind represented by the al Qaeda terrorist organization.
pp. ix-x

At the heart of this passage is the argument that three new developments provide us with justification for extreme actions and a change of course. Specifically, he cites:

availability of knowledge and technology for WMD
emergence of "rogue" nations
rise of international terrorism

Weapons of Mass Destruction in the hands of dangerous radicals are the reason given for the invasion of Iraq, for isolating the "Axis of Evil", and for finding ourselves on the brink of adding a third war to our collection in the Middle East. I go regularly to pray at the grave site of other soldiers sent on a similar mission more than two centuries ago. You see, Concord, Massachusetts is the next town over and at the Old North Bridge there is a memorial to the British soldiers who died there in the Battle of Concord. It starts,

They came 3000 miles and died to keep the past upon its throne.

Before 2001, I'd only been there a couple of times, but since going there in remembrance of the modern Minute Men who died on Flight 93, I return regularly, so the story of the Battle of Concord may well be more familiar to me than to many of you, my readers. Let me recap.

The British had heard that the colonial militia had canons, long arms, shot and gunpowder stored in Concord, and between 700 and 800 troops were sent out under the command of Lt. Col. Francis Smith to retrieve these weapons to prevent them from being used by radical insurgents who objected to the occupation of nearby Boston by British troops. By the time they arrived in Concord there were few weapons to be found, but they burned a few gun carriages on the common near the meeting house. The militiamen gathered nearby saw the smoke and charged the British troops that were stationed near the North Bridge. They outnumbered the British more than 4-to-1, and the Red Coats took their first fatalities, the aforementioned soldiers whose memorial is there today.

The British withdrew, and were joined by a slightly smaller force, and though they now numbered about 1300, the militias grew even faster and the British routed and retreated to Boston. The militias gathering around the city turned into the Siege of Boston, which turned into the American War of Independence, which was the first of a number of secessionist wars that resulted in the collapse of the British Empire, the first power upon whom the sun never set.

The point of recounting that bit of history is that fear of dangerous weapons of war, and mass destruction is not new. Ah, but you say, cannons and gunpowder are not weapons of mass destruction of the calibre that we face today. That is true, but they were serious enough to threaten the largest cities of the day and cause sufficient destruction to threaten a city or a nation's economy.

And they were not the only WMDs. Think of the smallpox-infected blankets used in the Siege of Fort Pitt. Think of the terror of mustard gas in The Great War—WWI. Recall, if you will, that when we speak of Saddam using WMDs, mustard gas was what he used on the Kurds and the Iranians. The same WMD used by the Germans on Canadians 90 years ago.

Every era has its terror weapons, in the light of which all that came before always seem like child's play. Familiarity breeds contempt. New technology is scary.

The Emergence of Rogue Nations is no more a new thing than WMDs, or the dangers of new technology and knowledge. Take, for instance the so-called "Barbary States", home of the Turkish Corsairs or "Barbary Pirates", the area the Islamic world calls the Maghreb. From the Western perspective, this area has long been ruled by strongmen and pirates since the days of the Crusades, much of the time under the aegis of the Ottoman Empire, financed by tribute, ransom, slavery and plunder.

(Note that all of the European powers also commissioned privateers, and that the early economy of the United States was closely tied to slavery, and that the people of North Africa and the Middle East, like my celtic ancestors are a tribal people, basing their power structures on familial ties rather than territory and lines on maps.)

To the extent that the term "rogue nation" means anything it means outlaw nations that don't obey what we recognize as the civilized international law. Besides the Barbary States of the Maghreb which the US has fought since it gained its independence from England (see the "Shores of Tripoli" reference in the marine hymn), our early history with the French and "their" indians (not to be confused with "our indians" who harassed the French, and the demonized "wild indians" of the American West), is full of nations that fit that definition. And just as the indians learned to scalp their enemies from Europeans, it was after all, the US that helped build the Afghani Mujahideen up to fight the Russians.

No, the United States has dealt with deadly enemies whose culture was way outside of our notion of civilized international relationships since before the country was founded. Which brings us to the terrorist threat.

International Terrorism isn't a new development in the world, nor unfamiliar to Americans.

I've already mentioned the "French and Indian War", but conflict between the French and British colonies, was much longer lived than that one war. Both sides harassed the other through their surrogate allied native tribes. As mentioned above, one of the things the European powers taught their Indian clients was the taking of scalps to as proof for the awarding of bounties. Beyond scalping, fire and kidnapping were frequent tactics in the guerilla and terrorist struggle along the colonial boundaries.

As the conflict turned from British vs French to colonist/Americans vs Indians, the intentional depletion of game animals, disease infected blankets and the distribution of addictive drugs in the form of alcohol were added to the repertoire of terrorist tactics. Make no mistake about it, early American history involved terrorism and state-sponsored terrorism. Biological weapons and a drug trade in the hands of terrorists were all known, and practiced by the British, French, Native Americans and the United States.

Although Yoo doesn't explicitly mention "Ethnic Cleansing" among his list of modern ailments, it is worth considering that the New World knew it not only in the treatment of Native Americans, but also in the form of the expulsion of the Acadians from Nova Scotia to, among other places, New Orleans, where we know them as the "cajuns". And speaking of New Orleans, there was also piracy and privateering familiar to the denizens of New Orleans and those along the Anglo/Spanish frontiers.

Returning to terrorism, and moving on to the 19th century there was the wave of revolutions that swept through Europe in the 1840s. In America, we had Bloody Kansas leading up to the Civil War, and during it, the guerilla warfare of Quantrell and Bloody Bill Anderson, and Sherman's march to the sea, all of which could legitimately be described as terrorism, at least by those on the receiving end. Anarchist terrorism grew through the last decades of the 19th century and into the 20th, where, it was the spark that ignited World War I, with the assassination of Archduke Franz Ferdinand of Austria.

It makes great propaganda to talk about how "the whole world changed" after 9/11, but it does not accurately reflect history or the American experience. We may have had a few illusions dispelled, but WMDs, rogue nations, international and state-sponsored terrorism are all familiar, or should be, to Americans with any historical perspective.

And Flawed to Its Heart

This historical weakness, unfortunately, strikes to the very heart of Yoo's book because one of its main thrusts is to use history as a basis for his constitutional theory. For his theory to be sound, the understanding of history upon which it based must be sound.

Yoo's claims that everything has changed after 9/11 are, however, not historically sound, and that he makes them in the introduction to what is presented as a scholarly reconsideration of fundamental Constitutional issues, raises the question of where they come from. Some of the possibilities are:

He is terribly misinformed.
He has gotten swept up in the popular mythology.
He is blinded by his own biases and preconceptions.
He is cherry picking his facts to suit his theory.
He is intentionally misleading us to sell his theory.

Any of these weaken the book. The later ones carry more blame, and given that he contributes substantially to the Bush Administration's theoretical basis for strengthening the centralized authority of the Presidency, give us good reason to be wary.

In the historical chapters that follow, Yoo appears to be cherry picking his history, to be seeking out those pieces that suit his theory, so perhaps that's what is happening here. Perhaps he is just blinded by his assumptions, biases and loyalty to the President.

Several of Yoo's claims make assumptions that he does little to prove,

These new threats to American national security, driven by changes in the international environment, should change the way we think about the relationship between the process and substance of the warmaking system....
If, however, the nature and level of threats are increasing and military force unfortunately remains the most effective means for responding to those threats, then it makes little sense to commit our political system to a single method for making war.
p. x, (emphasis mine.)

I have already provided numerous counter examples to his claimed new types of threats are emerging or increasing. The new claim that he interjects in these passages that military force is the most effective response to these threats, is also unsubstantiated, and should be questioned. It is, for instance, that US military forces has been entirely effective in Iraq.

As ever, don't believe me. Study history yourself. Check out The Powers of War and Peace from the library. If the book is too long for you, sample the memoranda he wrote as part of the Bush Administration. There are examples available at the DoJ and FindLaw. An interview with Yoo at the University of Chicago, includes both comments and quoted passages. The Harvard Law Review includes it in a broad review of 4 books. The Founders Constitution is an excellent collections of historical documents related to the Constitution.

Be the Voice of Liberty!
To Be Continued...

Issues Demanding Action

2007-02-28T16:03:00.000-05:00

It's been a while since I posted to Vox Libertas. Most of that time has been spent reading and watching congressional hearings and small symposiums. This posting will attempt to pull together some of what I've learned and to point out both specific and general sources that I think will be of interest and use to you, dear readers.

Ambassador Freeman Tells It Like It Is

Perhaps the strongest piece I read was a speech made by retired ambassador, Charles W. Freeman, Jr. to a gathering of DACOR (Diplomats and Consular Officers, Retired). The speech is long and rich, as you might expect when a highly skilled and experienced diplomat addresses his peers. I will therefore excerpt and summarize, but please read the whole thing. It is available at the Middle East Policy Council web site. Freeman was Reagan's translator on his trip to China and the ambassador to Saudi Arabia during the Gulf War, among other things. He has served in China, India, Thailand, Africa, the Middle East and Europe.

The man clearly loves the country he has served so well, and after a glowing summary of our successes and contributions to world civilization in the 20th century, he says baldly,

Since 9/11 Americans have chosen to stake our domestic tranquility and the preservation of our liberties on our ability – under our commander-in-chief – to rule the world by force of arms rather than to lead, as we had in the past, by the force of our example or our arguments. And we appear to have decided that it is necessary to destroy our constitutional practices and civil liberties in order to save them.

He then, quickly summarizes the same Robert Harris account (see "The 'war on terror' that ruined Rome" in the Herald Tribune) of the beginning of the end of the Roman Republic that inspired some of my rhetoric in The Real Tragedy of 21st Century America. The parallels between Rome's reaction to piracy and kidnapping in Ostia in 68 BC, which ultimately led to the Republic falling into Empire, and our reaction to 9/11 is a sobering cautionary tale.

From the first few seconds that I heard George W. Bush speak, long before I knew what his politics were, I was dead set against the man for the simple reason that he set off the "Beware! Lying arrogant bully!" alarm that a childhood featuring broken bones developed in me. Thus, Freeman's comment that

There has been little room for such measures – for diplomacy – in the coercive and militaristic approach we have recently applied to our foreign relations. Much of the world now sees us as its greatest bully, not its greatest hope.... Thus, the neglect of both common courtesy and diplomacy fosters violent opposition to our global preeminence in the form of terrorism, nuclear proliferation, and war.

struck a particularly painful cord with me. He goes on to point out with clarity how little the current administration and the public that they mislead understand war or diplomacy:

The common view in our country that diplomacy halts when war begins is thus worse than wrong; it is catastrophically misguided. Diplomacy and war are not alternatives; they are essential partners. Diplomacy unbacked by force can be ineffectual, but force unassisted by diplomacy is almost invariably unproductive.

He's too wise to use dreaded "died in vain" phrase, but he does point out how the lives of our troops are doing little to actually achieve our national priorities and why,

Every death or crippling of an American on the battlefields of the Middle East is a poignant reminder that, in the absence of diplomacy, the sacrifices of our soldiers, sailors, airmen, and marines, however heroic, can neither yield victory nor sustain hegemony for the United States. A diplomatic strategy is needed to give our military operations persuasive political purposes, to aggregate the power of allies to our cause, to transform our battlefield successes into peace, and to reconcile the defeated to their humiliation.

He moves through a laundry list of our foolish and dangerous military and diplomatic mistakes and takes us from the devaluing of our diplomatic currency to the weakening of the power, respect and desirability of our actual currency, the dollar and the devastating impact that that can have on our mortgaged future.

He ends with a list of principles which should guide us in recovering our nation. His full text is very well worth reading, but here I have summarized, taking just the first sentence or two from each point:

First, an America driven by dread and delusion into the construction of a garrison state, ruled by a presidency claiming inherent powers rather than by our constitution and our laws, is an America that can be counted upon to respect neither the freedoms of its own people nor those of others.

Second, it is time to recognize that freedom spreads by example and a helping hand to those who seek it. It cannot be imposed on others by coercive means, no matter how much shock and awe these elicit.

Third, credibility is not enhanced by persistence in counterproductive policies, no matter how much one has already invested in them. The reinforcement of failure is a poor substitute for its correction. Doing more of the same does not make bad strategy sound or snatch successful outcomes from wars of attrition.

Fourth, we must recover the habit of listening and curb our propensity to harangue. We might, in fact, consider a war on arrogance to complement our war on terror.

And finally, he exhorts us to change with the following,

Guantánamo, AbuGhraib, the thuggish kidnappings of "extraordinary rendition," the Jersey barrier, and an exceptional aptitude for electronic eavesdropping cannot be allowed permanently to displace the Statue of Liberty and a reputation for aspiration to higher standards as the symbols of America to the world. To regain both our self-respect and our power to persuade rather than coerce the world, we must restore our aspiration to distinguish our country not by the might of its armed forces but by its civility and devotion to liberty. The best way to assure the power to cope with emergencies is to refrain from the abuse of power in ordinary times.

But please don't trust my poor powers of summary and explanation. Please, read the words of this man who has so long and so capably served our country, who knows the arts of diplomacy, law and governance so much better than our current leaders. And then talk to your friends and family. Get out the word and save the Republic.

JAGs Judge the Military Commissions

In the Jurist, University of Pittsburgh's on-line law journal, two retired lawyers from the Judge Advocate General's corps, now law professors, wrote an analysis entitled "Military Commissions: War Crimes Courts or Tribunals of Convenience?". This article is shorter than Freeman's, and more focused, but still strikes at the heart of what's going wrong in this country. Geoffrey Corn served as a tactical intelligence officer, chief prosecutor and finally the Special Assistant for Law of War Matters to the U.S. Army Judge Advocate General, and so is highly qualified to address the issues raised by the MCA and the Manual for Military Commissions. He and Prof. Hansen specifically address the following question:

What is the purpose of creating these tribunals? Are they intended to serve the legitimate purpose of leveraging the unique competence of the profession of arms to sit in judgment of alleged violations of the laws of war? Or are they intended to serve the much less credible purposes of simply providing a more “convenient” forum to adjudicate crimes that do not fall into this category, or even worse did not even exist when the commissions were created?

and come to a very unfortunate conclusion.

They start by citing the MCA's own declared purpose: to “codify offenses that have traditionally been triable by military commissions” and contrast that with the actual offenses enumerated and how they differ from those in the Uniform Code of Military Justice, the Manual for Courts-Martial and the international law of war. While it is worthwhile reading their analysis, one example in the simplest of terms will illustrate.

One of the crimes explicitly punishable by death is the intentional killing of a "protected person". The way that the new Manual for Military Commissions differs from the UCMJ, MCM and international law is that whereas they require proof that the defendant knew that the victim was a a protected person (innocent civilian, basically) the new manual merely requires that he "should have known". This raises negligence rather than actual intent to the level of capital crime.

The conclusion of their article reads:

The nature of the offenses established by the MCA and the apparent use of the MMC to modify the nature of these offenses is both telling and troubling. By disconnecting the realm of available offenses from a solid mooring to the laws of war, the military commissions are invariably disconnected from the pragmatic foundation that has historically justified such tribunals. No matter what procedural changes may have been implemented by the MCA, this most fundamental question about the legitimacy of these tribunals will persist until the charges genuinely reflect that law from which the authority for such tribunals is derived. Until then the military commissions will be rightly viewed as a tribunal implemented for the convenience of the government.

This is a stinging indictment of the purposes of the MCA, its military commissions and manual, made not by liberal civilians, but ny experience JAG lawyers, one of whom was the Corp's expert on the Law of War. Again, read their article, tell your family and friends.

The MCA and Habeas Corpus

An interesting contrast of opinions can be seen by comparing another Jurist article and one that appeared in the Writ, with a recent discussion held at the Duke University Law School of the outstanding legal issues arising from the MCA.

In her article "Why Boumediene Was Wrongly Decided", Marjorie Cohn concludes that the recent ruling by the DC Circuit Court of Appeals upholding the stripping of habeas corpus under the MCA was erroneous and is likely to be overturned by the US Supreme Court. She bases this on specific Supreme Court case law. The two main grounds are that the Court has indicated that the US has sole jurisdiction over Gitmo, and the Combatant Status Review Tribunals and other MCA processes are not an adequate substitute for habeas corpus, as demanded by existing precedent.

In contrast, the participants in the February 12 Duke discussion "The Military Commissions Act of 2006: Outstanding Legal Issues", which is available on video, and audio versions, seem a lot less certain that the MCA will be overturned, given the complexity of the issues and Congress's fairly obvious intent in its passage. The video is well worth watching and is moderately clear and accessible. The discussion took place before the DC court ruled on
Boumediene, but their analysis does not seem to preclude much of the reasoning of the Court. One panelist suggests that the ultimate decision on the applicability of Constitutional protections at Gitmo will depend on how Justice Kennedy, as the swing vote reasons, when the cases get to the Supreme Court.

Even more recently, Michael Dorf has stepped into the question in a commentary in The Writ. Like Prof. Cohn, and the Duke participants, Dorf says that it is up to the Supreme Court to determine the extent of habeas corpus. He is less certain of the outcome but offers substantial reasoning as to why he hopes that they will finally address the core Constitutional issues and do so in light of modern circumstances and law. He says,

Those who favor reading the Constitution to mean exactly what it was generally understood to mean at its adoption frequently complain that, if judges depart from the original understanding, then they have no fixed standard by which to ascertain constitutional meaning. The charge, however, is doubly misleading.

First, as the disagreement in Boumediene itself illustrates, discerning guidance for modern controversies from Eighteenth Century sources that were contested even in their day, is hardly a determinate exercise that leads to a single incontrovertible result. Second, one can find functional guideposts for modern understandings that also effectively constrain conscientious judges' decisionmaking.

Collectively, these three sources provide an excellent understanding of the issues that Freeman so passionately tells us is of vital importance. They can be a bit challenging at times, but are well worth the attention of the informed citizen, and if we are not going to just allow politicians with increasingly unlimited power to make all our decsions for us, we must become well informed.

General References

I often urge Vox Libertas readers not to believe me, but to inform themselves. Let me suggest here a couple of resources that I find very helpful in this:

The Jurist, The University of Pittsburgh's on-line legal journal and news feed. Specific resources there include:

The Jurist Forum, op-ed pieces by law professors and Jurist editors
Paper Chase - "Serious law. Primary sources. Global perspective".

The FindLaw site, including:

FindLaw News, legal news in their "for legal professionals" section.
The Writ, FindLaw's on-line legal journal, with excellent commentaries, and a discussion forum.
FindLaws' Annotated Constitution - The full text, with copious commentary and references

The Founders Constitution, an excellent collection of the historical documents that informed the decisions of the authors of the Constitution and shed light on their reasoning.
Thomas, the Library of Congress's searchable database which contains the text of bills and resolutions and their history as they move through Congress.
The White House's news page – the full text of all the Decider's signing statements and press releases, videos of many of his speeches and appearances. One way or the other, an important site.

Keep informed. Discuss the issues with family and friends. Be the Voice of Liberty.

The "Mary Cheney" Question Redux

2007-02-20T13:28:00.000-05:00

I have recently started posting Vox Libertas on The Daily Kos, and since I had a backlog of blogs, I have been revising my older works for posting on Kos. The first of these consisted largely of a merging of my The Issue of Habeas Corpus and Alberto Gonzalez: “There is no expressed grant of habeas in the Constitution" postings into a singal unified Kos Diary called Habeas Corpus Redux.

My latest Kos Diary is an update of Just What Is "Out of Line"?, which I've called The "Mary Cheney" Question Redux. This time I've added substatntial new material, dealing with the columns of Leonard Pitt, jr. (Pulitzer Prize-winning columnist at the Miami Herald) and the issues he raised there. Feel free to visit dKos and recommend my diary if you are a Kos reader.

I did edit the previously published material some, but the bulk of the changes were additions at the end of the posting. For those not interested in going over to the Daily Kos version, here is most of the new material...

At the time that I wrote the above, the media had largely ignored most of the questions that the various situations raised. A few days later, Leonard Pitts, jr, of the Miami Herald addressed the issues head on. Back in December, Pitts had written:

I find it telling that Vice President Dick Cheney hews to the hard conservative line on virtually every social issue, except gay marriage. It is, of course, no coincidence that Cheney has a daughter who is a lesbian. Which tells me his position is based not on principle but, rather, on loving his daughter. It is a fine thing to love your daughter. I would argue, however, that it is also a fine thing and in some ways, a finer thing, to love your neighbor's daughter, no matter her sexual orientation, religion, race, creed or economic status—and to want her freedom as eagerly as you want your own.

After the abortive Situation Room interview, he wrote a column in which he managed to offend both the right and the left. On the matter of the propriety of the question, he sided with Chrissy Gephardt, and disagreed with Mary Cheney writing,

She is wrong. What Mary Cheney has in her womb is both a child and a political statement. One is reminded of how a simple act like drinking from a public fountain once became a political statement because some people said other people ought not have the right to do such things.

Similarly, although women all over America are carrying babies right now, Mary Cheney and any other lesbian woman who does the same unavoidably makes a political statement. Because some people believe they ought not have the right to do such things.

He also disagreed with Vice President Cheney's claim that Blitzer was "out of line."

He, too, is wrong. The Bush administration has used gays as Southern politicians once used (and often, still do use) blacks -- as scapegoats, boogeymen, distractions. Largely because of that, Heather Poe will have no legal parental rights to ''her'' child.

Dick Cheney is that administration's No. 2 official. So there is nothing ''out of line'' in asking him about any of this.

At the same time, perhaps surprisingly, he agreed with at least part of James Dobson's criticism of Mary and Heather's decision to have a baby specifically because he does see the baby as a statement, a tacit statement that fathers don't matter.

When this agreement resulted in Pitt being accused of being an anti-gay bigot, he wrote a second column explicating his position. The author of Becoming Dad: Black Men and the Journey to Fatherhood, Pitt's major concern is what he sees a diminution of fatherhood and the disintegration of the family, especially the black family:

But as 16 percent of white kids and a whopping 51 percent of black ones grow up father-free, facing all the difficulties that portends, I definitely have something against the idea, whether advanced by straight women or lesbians, that father is unnecessary, that so long as there's some uncle around to show a boy how to hit the mark in the toilet, everything is hunky dory.

Like Dobson, he cites

a growing body of research ... which tells us the child raised without his or her biological father is significantly more likely to live in poverty, do poorly in school, drop out altogether, become a teen parent, exhibit behavioral problems, smoke, drink, use drugs, or wind up in jail.

In her own response to the Situation Room interview, Mary specifically addressed these claims, saying:

"Every piece of remotely responsible research that has been done in the last 20 years on this issue has shown there is no difference between children who are raised by same-sex parents and children who are raised by opposite-sex parents. What matters is that children are being raised in a stable, loving environment."

As it turns out, both sides have a certain point. Dobson and Pitts are correct. Children from "broken homes" and the children of poor unwed mothers are at a great disadvantage, but what they are failing to recognize is that the world is far more complex than the simple black and white of their world view. That single mothers are often poor, unable to spend as much time as they would like or ought with their children and the trauma of divorce, death and desertion are all factors. At least as importantly, the world isn't divided into 2-parent+kids households and broken homes, and neither of those is the historical norm.

Most of humanity has lived in multi-generational extended families. One could with some justice argue that grandparentless households were just the first step on the path to the fatherless households. Beyond that, while the human lifespan has been three score and ten--seventy years--since Biblical times, many people died before reaching that age, and so these extended families were often missing some members, mothers, fathers, one or more grandparents or had substitutions, stepparents, aunts and uncles and such. Even when everyone was alive, often family members had to be away from the family for extended periods. As a descendant of generations of sea captains, I am well aware of this.

Families have always come in a wide number of shapes and sizes. Focusing on the 1950s Leave It To Beaver husband, wife, two or three kids and a dog model as the only healthy configuration is historically, sociologically and psychologically unjustified. As I said, Dobson and Pitt are correct, a healthy, rich family life is important to children. They are wrong in their narrow view of the limits of that life. And what we need as a society is an examination, an honest evaluation of what we can do to insure that as many families are as healthy as they can be.

And it is very very far from certain that denying Mary and Heather the right to build the best family that they can will help. It is almost certain that criticizing them in Time magazine, and condemning their family as unhealthy will not make life any easier for their child. It is unlikely that failing to defend your daughter's family when they are publicly condemned will help, or that the families of millions of other gays and lesbians will be helped by public figures failing to stand up for theirs.

This country desperately needs an actual public discussion of values and issues, not an exchange of hateful barbs and name calling, but a give and take wherein people actually listen and strive to learn. Wolfe appears to have tried to engage in such a discussion if rather crudely and half-heartedly. John Stewart and Chrissy Gephardt actually did a credible first step. Leonard Pitts wrote thoughtfully, and shows signs of being the sort of person who can listen.

One columnist and a comedy show is still a pretty weak showing though. As John Edwards is fond of saying, We're a better country than that. Or we can be.

A Government of Men, Not Laws?

2007-02-14T18:10:00.000-05:00

One of my concerns regarding the state of the Republic is with what seems like a trend towards a government of men not laws, in a reversal of one of our most important principles. Here's an example from Spiegel Online's interview with Tyler Drumheller, former chief of the CIA's Europe division (emphasis mine):

SPIEGEL: So there was no clear guidance of what is allowed in the so called "war on terrorism"?

Drumheller: Every responsible chief in the CIA knows that the more covert the action, the greater the need for a clear policy and a defined target. I once had to brief Condoleezza Rice on a rendition operation, and her chief concern was not whether it was the right thing to do, but what the president would think about it. I would have expected a big meeting, a debate about whether to proceed with the plan, a couple of hours of consideration of the pros and cons. We should have been talking about the value of the target, whether the threat he presented warranted such a potentially controversial intervention. This is no way to run a covert policy. If the White House wants to take extraordinary measures to win, it can't just let things go through without any discussion about their value and morality.

This jumped out at me in part because of something I'd heard from the Attorney General a couple of days earlier while watching video of the January 18 Senate Judiciary Committee hearing, “Oversight of the U.S. Department of Justice”:

LEAHY: But before I turn it over to Senator Specter, let me mention that Senator Specter and I joined together in asking the chief judge in the FISA court for copies of the decision of that court that you announced publicly on Wednesday. The court’s apparently willing to provide these decisions to the committee. You have no objection for that, do you?

GONZALES: Senator, I think that’s a decision that I would like to take back to my principal, quite frankly.

[... text elided ...]

LEAHY: I don’t think I fully understand that. Are you saying that you might object to the court giving us decisions that you’ve publicly announced? Are we a little Alice in Wonderland here?

GONZALES: I’m not saying that I have objections to it being released. What I’m saying is it’s not my decision to make.

The first case was pretty blatant. Drumheller is explicitly calling out Rice for being more concerned with the President's opinion than principles or process. The second is a bit more subtle. Senator Leahy is focusing on the apparent contradiction of Gonzales announcing the decision and then objecting to the court sharing it. What bothers me is that the Attorney General cannot make such a simple decision on his own. Please note that the decision to release the decision is the court's and not the AG's. Leahy is only asking the AG's opinion on the court's decision.

Note, too, the language that Gonzales uses. He calls the President "his principal", as if he is still the White House Counsel or the President's personal attorney, rather than the nation's chief law enforcement officer, the head of the Department of Justice and the nation's attorney.

I'm sure that many will think I'm making a mountain out of a mole hill, but these statements aren't isolated, they are part of a larger pattern, one that involves controversial political theory, and questionable practices. They tie to theories of Presidential "inherent authority", the doctrine of the "unitary executive", and the President's recent actions.

Let me outline this greater context in hopes of clarifying the reasons for my concern when I heard the above comments.

Inherent Authority Theory

The theory of the president's "inherent authority" as Commander in Chief has been put forth multiple times, in somewhat different forms by John Yoo of UC Berkley. Most famously and accessibly, he put it forth in the memos that were issued in the weeks after 9-11 which asserted that the President had the authority he needed to conduct military and intelligence operations as he saw fit in the War of Terror, and then in his book The Powers of War and Peace.

The basic thrust of this theory is that rather than being a coequal branch of government with the legislative and judicial branches whose powers are limited to those expressly granted to them, the President as the Chief Executive and Commander-in-Chief has inherent unenumerated "inherent powers". As an example of this, take the following from the Sep 25, 2001 memorandum:

This difference in language indicates that Congress's legislative powers are limited to the list enumerated in Article I, section 8, while the President's powers include inherent executive powers that are unenumerated in the Constitution.

So, it would seem that when We the People did ordain and establish the Constitution, we did so in a way that modeled the role of the President as Executive on that of the King of England. The notion that the President wields powers that are assumed by his Executive and military roles is tied fairly closely to another theory that the administration has been promulgating—that of the "Unified Executive".

Unified or Unitary Executive Doctrine

This theory proposes that, in the President's quaint wording, he is the sole "decider" of the Executive branch, that all executive authority and responsibility resides in him, and that the rest of the Executive branch are merely his employees, whom he directs. This has a number of implications. One is that one agency or department in the Executive branch cannot sue another, since there would be only one party to the suit—the President would be suing himself! Another is that the Legislature cannot direct Executive branch departments or agencies, that would usurp the President's responsibility to supervise his direct and indirect reports. Thus, when Congress charges a particular agency to carry out a specific law or to report back to them, they exceed their authority. Alternatively, they cannot under this theory set qualifications on who can fill posts that they create. That would interfere with his right to hire whom he chooses.

If the Inherent Authority theory treats the President as if he was King George III, the Unified Executive comes closer to The Sun King. While it falls short of Louis' claim, "L'etate, c'est moi" ("I am the State"), it basically declares that the President is the Executive Branch, and all dealings between the Legislature and the Executive go through him. Moreover, in order to take care that the laws and Constitution are faithfully executed, it is his duty to interpret the Constitution, overthrowing the principle of Judicial Supremacy established in Marbury v. Madison.

Put together, we end up with a picture of a Commander in Chief and Chief Executive who is the sovereign head of the executive branch, and who exercises inherent powers beyond those explicitly enumerated in the Constitution.

Executive Order 13422—"Policy Officers"

Let us turn now, not to the theory that the President and his administration operate under, but some of the actions they and the Republican dominated Congress have taken, and how those expand his powers, as if the inherent powers of the unitary executive were not enough. One that was being debated in two Congressional committee hearings Tuesday, is Executive Order 13422 which revises 12866 which sets out how regulations established by federal agencies are planned and reviewed. On the whole, much of 12866, both before and after amendment seems like good governance, and an attempt to control and rationalize the many shelf yards of federal regulations.

But one major change is that whereas the original order created the role of "Policy Officer" reporting to the heads of major agencies, the new version mandates them for all agencies, requires that they be someone appointed by the President (without requiring that they be approved by Congress) and reporting to the President. Further, it specifies that that the Policy Officer must approve of each regulatory effort before it is put on the agency's schedule and each regulation before it is published.

The Policy Officer changes have two basic effects, they give the President more direct control of the executive, allowing him to specify how Congress's laws are enacted, which is in keeping with the Unitary Executive model. It also shifts control away from the professionals in the agency's area of expertise to political appointees. To an extent, this shifts us in the direction of Soviet apparatchiks a model which while it was intended to insure that Party goals and priorities were met, resulted in a marked decrease in the effectiveness of the Soviet bureaucracy.

Changes to "The Insurrection Act"

The second action that fits into this pattern of centralized Presidential control is to be found in H.R. 5122, the "John Warner Defense Authorization Act of 2007", which among a great many other things amended the Insurrection Act, which along with Posse Comitatus controls and limits the President's use of the military within the United States. The changes are worded as a collection of edits which alter a substantial fraction of the wording of section 333 of the Insurrection Act, and so I found it helpful to create a marked-up version of §333, showing the changes. Also helpful is a flow chart in the Wikipedia entry for the insurrection act.

As either of these should make clear, the major change is to expand the circumstances under which the President can deploy the armed forces and take direct control of the National Guard away from the Governors who normally command them. In the past, he could do so only in cases of "insurrection, domestic violence, unlawful combination, or conspiracy". Under the new wording "natural disasters, public health emergencies and terrorism" are added to the list as is the wildcard "other circumstances". Other changes include specifying that the President can use the armed forces, including the National Guard, in US territories as well as the states, explicitly naming the National Guard rather than referring to "the militia" and what appear to be minor textual changes.

With a broad enough interpretation of "other circumstances" and "opposes or obstructs the execution of the laws" or "impedes the course of justice", the President can pretty much deploy the military domestically whenever he feels it necessary and become the sole military commander in the area, federalizing the National Guard. So long as you trust the President, this isn't such a bad thing. But as other nations have learned, elected officials are not always what they seem.

Final Questions

The final result of these theories and changes in the law is that we have a President who is the sole decision maker in a unified hierarchical executive branch with inherent unenumerated powers as Commander In Chief and Chief Executive upon which Congress may not intrude, who is responsible for interpreting the laws and Constitution and how they are carried out, who is authorized to take sole command of all federal and state military force and use it domestically in any circumstances where he believes that justice or the execution of his interpretation of the laws is impeded.

The questions that we must now ask ourselves are

What exactly is the difference between "the decider" as constituted above and "dictator"?
Do we believe that this President and all of his successors are trustworthy enough to be given this power?

Just What Is "Out of Line"?

2007-02-04T15:22:00.000-05:00

One of the things that led to the creation of this blog was my conviction that new media and social networking could be a powerful tool for defending democracy and liberty in the modern age. In part, I came to this conviction because of the roll of Enlightenment Era "new media and social networking" in the creation of this country and in part it was due to... The Daily Show.

At the time, news had just broken that a study had shown that The Daily Show had just as much substantive content as the network evening news. Combined with studies that showed that about as many 18-29 years got their news from it as from the network news and that Daily Show viewers tended to skepticism about government and the news media, but confidence in their own political understanding, it gave a picture of a generation whose politics were substantially influenced by a fake news show on a comedy channel.

While many in my generation view that notion with considerable trepidation, I took it as essentially good news. The combination of faith in themselves and skepticism of those in power could result in voters who are more concerned with liberty, civil rights and such. The down side is that the skepticism could discourage them from voting, but that's a problem that can be worked, and in future posts I will address some of the ways that I see of doing this.

The Daily Show also provides another valuable service. It puts the mainstream press into a sharp and critical light. Probably the best known example of this is the president of CNN, Jonathan Klein's citing of Jon Stewart as one of the causes for the cancellation of Crossfire, a show that Stewart appeared on, accusing them of being bad for America, and that as a news show, he at least, had higher expectations of them than they did, expectations the failed to live up to.

Another example came up this week. Last week Wolfe Blitzer on his show The Situation Room had tried to question Vice President Dick Cheney on the negative statements made by his supporters regarding his lesbian daughter's pregnancy. The VP objected strenuously to the question even being asked. This week, Stewart did a long segment on whether the question was legitimate.

The first part was a typical Daily Show satire, but the second half was an interview with Chrissy Gephardt, the openly gay daughter of Dick Gephardt who claimed it was a perfectly legitimate question. The way he conducted the interview was interesting and relevant. (If you haven't seen it, take the time to watch it at Comedy Central or iFilm.) Jon never actually mentioned that Chrissy was gay. Instead, he said that like Mary she is a political activist and the daughter of a national political figure, and interviewed her on how hard it is being the daughter of a politician, whether he chose to be a politician or was born that way, and whether politicians should have children. He then asked her if Wolfe's question was fair, and when she replied that it was, he framed the question of the hypocrisy of not defending people who are like your daughter in terms of the "hypothetical" case of segregationist Strom Thurmond having a black daughter.

Turning the religious right's question of whether gays and lesbians should have children and the claim that the lives of such children are unfairly difficult around is both good humor, and as satire makes the point that who we are and the decisions we make can make life hard for our children, but that what is important is how we treat them, how we treat others, and whether we are honest and consistent in our beliefs and actions. It also kept the piece being about the issues rather than on who Mary and Chrissy are.

This segment stands out because:

Jon asked a question that the mainstream media should have, but didn't.
Chrissy was articulate, funny and made the point excellently.
He assumed that the viewer knew that Chrissy was a lesbian and that Thurmond actually had a mixed-race daughter. It treated the audience as knowledgeable and intelligent.

What we have here is a "fake news" comedy show that treats its viewers and guests with respect and asks questions that mainstream journalism ought to be asking, but too often aren't. On the one hand, the good news is that someone is asking the questions and someone is getting through to young people. But that leaves us with the question of why it is up to a comedy show to examine the appropriateness of Wolfe's question? Many news media reported that Cheney rebuffed Blitzer's question as "out of line", and video media showed Wolfe's chagrin and awkward backpedaling, which carried the obvious implication that he recognized his guilt. But few brought up the issue of whether the question was actually out of line, or whether the criticisms, by people who helped get Cheney elected, of his daughter weren't even more out of line, or needing response.

A couple of days later Mary Cheney also criticized Blitzter's question and the media carried that, usually highlighting her statement that her baby "is a blessing from God. It is not a political statement. It is not a prop to be used in a debate by people on either side of an issue". Interestingly, that phrasing appeared within hours of Cheney's appearance on The Situation Room in a discussion of the show on an internet gossip site (emphasis is mine):

15. Cheney is obviously ashamed of his daughter, despite what he proclaims or he wouldn't have such a hissy-fit when asked a question like this. Cheney's in the public eye and should be accustomed to being asked this type of question repeatedly. It is an interesting news item. Here's a man who's aligned with a party that hates homosexuals, and the #2 man has a daughter that is gay. I found it rather interesting to hear it referred to on a news program some weeks back that Cheney's daughter's partner was the "wife", yet Cheney's daughter is the one pregnant. I guess in a confused relationship like this, gay women as husband's are now capable of having children; sort of like being the mom and dad rolled into one. I'm sure the kid will be loved, but it's also going to grow up really confused, which will lead to other psychological issues. Pity the child. Cheney's daughter is only concerned about herself and her partner; afterall, the kid is merely a political statement and a liefestyle choice prop.

Posted at 6:47PM on Jan 24th 2007 by TH

I suspect that it is no coincidence that when Mary spoke out a few days later she used the same wording as this comment. I suspect that it or a repetition of it reached her ears and was very hurtful, with its claim that her father is ashamed of her, that the party that both he and she campaigned for hates homosexuals, and that she is moved by selfishness rather than love.

Given that it led to such hurtful things being said, mightn't there be some truth to the claim that the question is over the line and shouldn't be asked? Doesn't she have a point that she deserves some privacy and respect? Yes. Those are valid points, and deserve consideration. But, the counterpoints that she is open about her sexuality, publicly announced the pregnancy, worked on her father's campaign, and has written a book about her life are also valid. And the issue didn't start on The Situation Room. Wolfe was only citing very negative, and probably quite hurtful claims made the Cheneys' political allies, and asking if they shouldn't be answered or rebutted. Is Wolfe more at fault for asking the father if he would care to reply to those who criticize his daughter than the ones actually criticizing her?

In the end, by the time that she has announced her pregnancy, the right has attacked her, Wolfe has brought the topic up, Cheney has rebuked him, and Mary has said that neither side should be using her baby, the issue of whether it was a legitimate question is an open issue, that you would expect the press to consider. And if it is out of line to ask the VP to address the topic, if Mary Cheney's pregnancy is nobody's business, how does that affect the whole issue of the privacy of gay and lesbian couples in general? Do they as a class deserve to be left alone, or is it just the families of the rich and powerful?

And now we're finally back around to the question that this blog as a whole is always concerned with, whether we are in danger of sacrificing liberty, whether we are laying the foundation for turning Republic into Empire. We have heard that it is only a "private family matter" when the President's two daughters are charged with alcohol related crimes, and when his brother Jeb's sons and daughter have similar brushes with law involving liquor, sex, drugs and the like. Yet both the President and the Governor supposedly believe in being tough on crime, strong on "values", tough on drugs, and such, and trot out other people's families for display at public speeches. It sounds like asking for special treatment, and in past years the press has argued that even in the cases of the under-age Bush children there was a legitimate story.

But now, a few years later, in the case of Cheney's adult, political activist, public figure daughter, the argument that respect for the VP should dictate discretion in what questions he is asked seems to be taken to heart. The press appears to be learning to show deference, and I cannot help but wonder if after all the talk about the President's inherent power, the way that major votes on habeas corpus, wire tapping, detention without trial, and even torture are being voted on on party lines, out of "loyalty to the President" or in opposition to him, if we aren't shifting our mental habits to the rule of men rather than the rule of law. The President and Vice President are due greater respect than the common man, because of their power and position. The press having learned in the five years since 9/11 not to "embolden the enemy", not to appear disloyal or unpatriotic, is getting used to the habit of deferring to power.

For myself, I can see going a little easy on the private lives of the families of public figures, to at the very least offering them the same discreet privacy that we would show the families of the common man. But in the case of an adult who is a political activist and a public figure in her own right, when she is criticized or attacked in a way that embodies the ways that others are also treated, I don't see the reason for extraordinary deference. Gay rights, gay marriage, gay adoption, and gay parenting are all very vital issues of the day. The debate over them has at times sunk to the level of death treats against gay families. Addressing these issues in polite public debate is important.

It is a sad commentary that it is left to a comedy show to address such serious issues, but it is a hopeful sign that a large and growing fraction of our younger citizens are attending to these issues, informed through such a show.

As ever, don't take my word for it. Watch the shows; read what's been written; get involved; speak out and make a change.

Alberto Gonzalez: “There is no expressed grant of habeas in the Constitution"

2007-01-26T13:24:00.000-05:00

In my last posting, I made a last minute reference to an exchange between Attorney General Gonzales and Arlen Specter during Senate hearings on January 18th wherein Gonzalez denied the existence of a Constitutional right of habeas corpus. At that time, I suggested that Attorney General might be right as suggested in a posting over at the Daily Kos. The whole issue came up after I already posted my first version to Vox, and so I didn't have a lot of time to research and contemplate the issue.

With time to consider it, I believe that at best the Attorney General is mistaken and at worst he was using rhetorical trickery in a deliberate attack on the fundamental freedoms guaranteed in the Constitution.

To recap, the exchange went as follows. I have added a bit of what led up to the comment. A fuller transcript and video are available at Think Progress.

Specter: Where you have the Constitution having an explicit provision that the writ of habeas corpus cannot be suspended except for rebellion or invasion, and you have the Supreme Court saying that habeas corpus rights apply to Guantanamo detainees [... text elided]

Gonzales: A couple things, Senator. I believe that the Supreme Court case you’re referring to dealt only with the statutory right to habeas, not the constitutional right to habeas.

[further exchange elided]

Gonzales: “[...] there is no expressed grant of habeas in the Constitution; there’s a prohibition against taking it away,”

Specter: “Wait a minute... The Constitution says you can’t take it away except in case of rebellion or invasion. Doesn’t that mean you have the right of habeas corpus unless there’s a rebellion or invasion?”

Gonzales: “The Constitution doesn’t say every individual in the United States or citizen is hereby granted or assured the right of habeas corpus. It doesn’t say that. It simply says the right shall not be suspended except in cases of rebellion or invasion.”

The key claim here, of course, is that "there is no expressed grant of habeas in the Constitution". And of course that's correct, but very misleading. The thing that you have to remember is that—and this is critical—the Constitution does not grant rights to the people. The constitution has no expressed grant of habeas corpus, because it has no grants whatsoever!

Perhaps the most important thing in the whole constitution is its first three words: "We, the People". The US Constitution is a groundbreaking document because unlike previous charters and constitutions, it derives its authority and power from the people, and not a grant from King or other "greater power". What makes it different is that in it the people grant the government certain powers. The most radical and important statement in the whole document is that "We, the People of the United States, ... do ordain and establish this Constitution for the United States of America."

This sentence and its wording are important. We not only establish the constitution and the government that it defines, we "ordain" it, which means "To order by virtue of superior authority; decree or enact", and carries the connotation of "invest with ministerial or priestly authority; confer holy orders". English law, on the other hand originates with the granting of rights by the King who ruled either by divine right or by right of conquest. We in America, on the other hand, "hold these truths to be self-evident, that all men are created equal, that they are endowed, by their Creator, with certain unalienable Rights", and that "to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed".

So, when Attorney General Gonzalez says. "there is no expressed grant of habeas in the Constitution" he is telling the absolute truth, but his statement doesn't mean what it sounds like. It doesn't mean that there is no such right and it doesn't mean that the Constitution doesn't protect that right. When he says "“The Constitution doesn’t say every individual in the United States or citizen is hereby granted or assured the right of habeas corpus", it doesn't mean a thing. The Constitution doesn't grant or assure us the rights of Life, Liberty and the Pursuit of Happiness either. It doesn't have to. It assumes them.

The key, meaningful claim that he makes in the controversial passage is "It simply says the right shall not be suspended except in cases of rebellion or invasion". And what that means is that when we, the people, created the government, specifically the legislature, as this is Article I, we ceded Congress the right to suspend habeas corpus only in certain specific circumstances. By mentioning the right (or privilege) and ceding the power to suspend it in certain circumstances we also assured ourselves that it could not be taken away in any other circumstances.

And here is part of the tragedy I wrote of in my first posting. We allow phrases like "Constitutional right" to trick us into thinking that this country is like a monarchy or other authoritarian state wherein rights are granted to the people. That's not the case. We are born with them and we reserve them. In some limited and specific circumstances we cede some of them to the state, but barring the explicit relinquishing of our rights, they are ours by nature or by the grant of our Creator. If we lose our rights because we allow ourselves to be convinced that they were never granted to us then that is truly tragic.

This brings us to the passages I added to the quotation above, the ones that make me wonder at the Attorney General's motives. Senator Specter starts out by talking about the Constitution the way it actually works. He speaks of the explicit provision that habeas may not be suspended. Gonzalez responds by drawing the distinction between the "constitutional right" and "statutory right" to habeas, and says that SCOTUS was dealing only with the "statutory right". Specter then responds that he is wrong that they deal with the "constitutional right", and then after they differ on that, which depends on Specter accepting the usage and concept of a "constitutional right", Gonzalez points out that there is no "express grant" of the "constitutional right". Please note that he was the one who introduced the term "constitutional right to habeas", which he now says the Constitution doesn't grant, and implies doesn't exist. If it doesn't exist, why did he even speak about it?

As I was searching the Internet for a transcript that included Specter's question, I came across the following on Jeff Strabone's blog:

Gonzales: I was just simply making an observation that there isn't an expressed grant. My understanding is that in the debate during the framing of the Constitution there was discussion as to whether or not there should be an expressed grant, and a decision was made not to do so. But what you see in the language is a compromise. I think the fact that in 1789, the Judiciary Act, that they passed statutory habeas for the first time, may reflect -- maybe -- I don't want to say a concern, but why pass a statutory right so soon after the Constitution? Perhaps, because it wasn't express grant of habeas.

Up until I read this, I might have believed that the whole bait and switch introduction of the "constitutional right of habeas" for which there was "no express grant" wasn't deliberate trickery, but then he pulls this stunt! First of all, there was no suggestion that there should be an "express grant". The founders knew that the state doesn't grant rights to the people. What was proposed was that the passage should read as follows, based on the Massachusetts and New Hampshire constitutions:

The privileges and benefit of the writ of habeas corpus shall be enjoyed in this government in the most expeditious and ample manner: and shall not be suspended by the Legislature except upon the most urgent and pressing occasions, and for a limited time not exceeding ___ months.

After about a week, this was changed to:

The privilege of the writ of Habeas Corpus shall not be suspended; unless where in cases of rebellion or invasion the public safety may require it.

The original New England version did not attempt to grant a right. Rather it tried to insure that its implementation be full and timely and that any suspension have a specific time limit.

As to why the Judiciary Act was passed immediately, first off the Constitution ordained that there should be a federal judiciary, but it didn't define the details. The Act determined the number of Supreme Court justices, defined the federal district and circuit courts and defined their jurisdictions, powers and responsibilities. Until it was passed there were no actual courts. Thus it needed to be passed as soon as possible.

As to why it addressed habeas corpus, Chief Justice John Marshall explained that in Ex parte Bollman, the case which established Supreme Court's habeas corpus jurisdiction. First off, he points out that in a country with "courts which are created by written law ... the power to award the writ by any of the courts ... must be given by written law". To this he added the observation that,

It may be worthy of remark, that this act was passed by the first congress of the United States, sitting under a constitution which had declared "that the privilege of the writ of habeas corpus should not be suspended, unless when, in cases of rebellion or invasion, the public safety might require it."

Acting under the immediate influence of this injunction, they must have felt, with peculiar force, the obligation of providing efficient means by which this great constitutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted. Under the impression of this obligation, they give, to all the courts, the power of awarding writs of habeas corpus.

It is hard to believe that the Attorney General is unaware of these facts. You could learn them easily from The Founders Constitution web site or FindLaws' Annotated Constitution, or even the Wikipedia, all using Google. For him to speculate the way he has, consigning the right to the Great Writ to the maybe/perhaps world of dubious rights never expressly granted is reprehensible.

We must not let Orwellian Double Speak and rhetorical trickery deceive us about our most fundamental rights.

Don't believe me. Inform yourself. Protect your freedom. Vote. Write your representatives. Inform your family and friends.

JimB.

The Issue of Habeas Corpus

2007-01-22T15:29:00.000-05:00

One of the key issues that triggered my current focus on political activism, my creating of this blog and my previous post "The Real Tragedy of 21st Century America", is that of habeas corpus, and the Military Commissions Act. This posting will try to explain what this is all about and why it troubles me. But, don't take my word for it. One of the themes of Vox Libertas is the importance of individual involvement. Read what I think, but make sure to get involved, formulate your own views and then work to insure that they get acted upon.

What is Habeas Corpus?

In Latin, "habeas corpus" means more or less "have the body" (or as Dorothy Sayers named her mystery story "Have His Carcass"). A writ of habeas corpus, is a demand by a court that a government agency produce a prisoner and demonstrate that the have proper grounds on which to hold him. It is called "The Great Writ", because it is the process by which Common Law countries insure the second freedom mentioned in the U.S. Declaration of Independence—Liberty—in its most fundamental form: the right not to be imprisoned arbitrarily.

Whereas the rights of free speech, religion, assembly and such are important enough to be in the First Amendment of the U.S. Constitution, habeas corpus is important enough to be mentioned in the first article of the Constitution. Article 1, Section 9 of the Constitution includes the following:

"The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.
"No bill of attainder or ex post facto Law shall be passed."

What these two sentences guarantee us is:

the right to require the government to justify detaining or imprisoning us
the right not to be outlawed without a trial
freedom from laws passed after the fact

Collectively, they protect us from the whim of those in power, and distinguish a government of laws from a government of men.

Recent History

Our most recent problems with habeas corpus started after 9/11. In November 2001, President Bush issued a military order "Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism". This was the directive that called for the detention and trial by military commissions of aliens that the President determined were dangerous. This order was controversial because it ignored or circumvented the US federal Courts and civilian law and due process, military Courts Martial and the Uniform Code of Military Justice and the Geneva Conventions, and denied the detainees rights such as habeas corpus and speedy trial. In the end, the Supreme Court found that it was unconstitutional.

The case that brought this order to the Supreme Court is known as Hamdan v. Rumsfeld (not to be confused with Hamdi v. Rumsfeld, which is actually a case setting precedent for Hamdan v. Rumsfeld). Hamden petitioned the Washington DC US District Court for a writ of habeas corpus, which Judge James Robertson heard and decided in Hamden's favor. This decision was reversed by a three judge appeals court, including Judge John Roberts. The next day, the President nominated Roberts to the US Supreme Court, and so when SCOTUS heard the case, he recused himself. The court declared the order unconstitutional after first deciding that it had jurisdiction.

The Military Commissions Act of 2006 was passed in direct response to the Supreme Court's ruling.

Perhaps the most troubling aspect of these events is the administration's reliance on the military orders of the Commander in Chief in conflict with the Constitution, civil and military laws and courts and international treaties in the name of emergency "war powers" in combination with an unprecedented new form of "war" that has no obvious end conditions and which the administration itself says could last decades or even generations.

The MCA and Habeas Corpus

In response to the Supreme court's decision, the Military Commissions Act was drawn up with much the same purpose as the military order that started this whole chain of events. Among other things, it allows a broader range of harsh interrogation methods that are permitted on, disallows the use of the Geneva Conventions by, and denies the right of habeas corpus to those found to be unlawful enemy combatants.

Several legislators, lawyers and other critics have suggested that while the MCA only explicitly denies habeas corpus to non-citizens, there is a catch 22 involved: If the government picks you up for being an unlawful enemy combatant or materially supporting a terrorist organization, and denies that you are a citizen, how do you challenge their jurisdiction and prove your citizenship? The normal mechanism would, of course, be a writ of habeas corpus, but you don't have access to that, given that they claim you are an alien unlawful enemy combatant.

Michael Dorf, a Professor of Law at Columbia provides a rather dispassionate criticism of the MCA in FindLaw's on-line journal Writ. Keith Olbermann, in turn, made an impassioned indictment of it and the President as a Special Commentary on his show Countdown. Other criticisms can be found in the Wikipedia article on the MCA. The Wikipedia provides a good definition and history of habeas corpus, and FindLaw has the full text of the MCA.

After the election, with the Democrats taking control of the legislature, a number of Senators began to move to restore habeas corpus. Senator Dodd, later joined by Senator Leahy, introduced the "The Effective Terrorists Prosecution Act" (S.4060) on November 16, 2006, and Senators Specter and Leahy introduced the "Habeas Corpus Restoration Act of 2006" (S.4081) a few days later. [As with any US legislation the full text, in various versions can be found on the Library of Congress's Thomas Web page. Clicking on the bill's numbers above will take you there.]

"Creating New Rights for Terrorists"?

One of the arguments that you often hear in defense of the MCA is that it doesn't violate anyone's rights because foreign enemies never had habeas corpus rights. This, as it turns out, is not actually true. During the War of 1812, in the case of United States v. Thomas Williams. Chief Justice Marshall ordered the release of an alien enemy, Thomas Williams, on a writ of habeas corpus. Williams had been held under the Alien Enemies Act, which is the only one of the Alien and Sedition Acts that has never been repealed. Thus, it is quite clear that enemy aliens during a time of declared war do have the right of habeas corpus, and so dismissing the possibility that detainees, whose unlawful combatant status has not yet been determined by a Combatant Status Review Tribunal, also have the right is just not warranted.

Remember, questions of the constitutionality of a law or ruling cannot actually be answered unless the Supreme Court has ruled on the issue. Up until they have, it is only a matter of opinion. But, in this case we do have the decision of Chief Justice John Marshall on what is clearly a highly related matter.

It is particularly difficult to credit the claim that the bills to restore habeas corpus that have been submitted since the MCA was passed are creating new rights for terrorists. Here is the pertinent language from Senator Dodd's bill:

"SEC. 9. RESTORATION OF HABEAS CORPUS FOR INDIVIDUALS DETAINED BY THE UNITED STATES.
(a) Restoration.--Subsection (e) of section 2241 of title 28, United States Code, as amended by section 7(a) of the Military Commissions Act of 2006 (Public Law 109-366), is repealed."

It's hard to see how repealing the change made by the MCA involves creation of a new right and not the restoration it claims to be.

A "Constitutional Guarantee" of Habeas Corpus?

An exchange between Attorney General Gonzales and Arlen Specter during Senate hearings on January 18th is beginning to cause quite a controversy. As reported, the exchange went as follows:

Gonzales: “There is no expressed grant of habeas in the Constitution; there’s a prohibition against taking it away,”

Specter: “Wait a minute... The Constitution says you can’t take it away except in case of rebellion or invasion. Doesn’t that mean you have the right of habeas corpus unless there’s a rebellion or invasion?”

Gonzales: “The Constitution doesn’t say every individual in the United States or citizen is hereby granted or assured the right of habeas corpus. It doesn’t say that. It simply says the right shall not be suspended” except in cases of rebellion or invasion.”

As it turns out, the Attorney General may be correct. (See, for instance the posting defending his claim in the liberal Daily Kos blog.) If he is, then it is even more important that the Great Writ be restored by the legislature, and regardless of whether he is right or wrong, it must be chilling to see the Attorney General questioning the right of habeas corpus, and subordinating it to the President's emergency war powers, especially in the context of an indefinite, and perhaps perpetual "War on Terror".

More than ever, it is critical that We, the People, become the voice of liberty, and insist that our legislators defend the Constitution and our rights, or replace them with someone who will.

JimB.

The Real Tragedy of 21st Century America

2007-01-22T14:48:00.000-05:00

We often hear the 9/11 attacks, especially on the World Trade Center described as a tragedy, and for the families and friends of those killed, it was tragic. My heart ached watching the events unfold that day, and I can only imagine the impact that it had on folks whose family members were on those planes and in those buildings.

In another sense, though, it was not a "tragedy" in the classical sense of the term. Tragedy is a form of drama in which the great are brought to ruin through the workings of their own actions and folly, and while America is one of the world's and history's great powers, the attack of 9/11 was not our downfall, nor really brought on by our own actions or hubris. And in fact, on that day Americans demonstrated to the world some of our finest qualities.

The FDNY, police and other first responders reacted professionally and heroically. Many doctors and ordinary citizens seeing their fellows in difficulty, ran towards the danger to help. On flight 93, a group of common citizens gathered together, took a vote and decided to fight back, which we can only believe resulted in the downing of flight 93 before it could be used as a weapon against another target. Those passengers, like the Minutemen in Concord, represent the Militia of the United States, and they did what citizens of almost no other country in the history of the world do in the face of an emergency—vote and then defend themselves. The employees of Cantor Fitzgerald, carried on after suffering 2/3s casualties and reopened the bond market, again after a vote. Military organizations that take 2/3 losses seldom carry on as well. Brokers don't expect to take any losses. Thousands and thousands of people walked calmly out of the city across the bridges, without the panic we expect and see in fiction. No, America was heroic and did not fall that day.

But the events of that day are being used in the years following to bring upon a true American tragedy, the fall of the world's greatest democratic republic due to her own foolishness and actions. In the years following the heroism and victories of 9/11, we have perpetrated terrorism on ourselves, frightening—terrifying—ourselves with the specter of foreign and alien terrorists as if they could actually destroy the greatest nation on earth. And we have been destroying that nation by surrendering our most valued possessions, our freedom and the rule of law, in the name of security. And if we let this continue, the great will fall as a result of our own actions, our own flaws, our own foolishness—classic tragedy in the true sense of the word.

Three weeks after 9/11, I wrote a web page venting my anger at the portrayal of 9//11 as an American defeat (see "9-11: America Victorious"). Now, I find that I am even angrier, angry that we are working so hard to turn victory into defeat, defeat in the name of "victory" in a tragic war, defeat in revenge for a supposed "defeat" that was actually a victory, defeat caused by surrender, surrendering liberty for temporary security.

This blog is intended to not only vent that anger, but to help correct the misperceptions, the doublespeak, the lies and to fend off this entirely senseless tragedy. Join me. Cry 'Freedom". Be the Voice of Liberty.

JimB.

Welcome To Vox Libertas

2007-01-22T13:06:00.000-05:00

Whether you read it as "The Voice of Freedom" or "Cry Freedom", Vox Libertas is my new blog dedicated to the issue of protecting our Republic and the freedom and principles upon which it is based.

The road to this blog started back in September when the Military Commissions Act was passed, restricting the right of habeas corpus on the same day that I found out my job was one of the many being "downsized". As I reflected on the two events, I realized that I was far more concerned about habeas corpus than my own career, which made me rethink a lot of things about my life, politics, activism and the state of our Republic. Since then, I've been doing a lot of reading, researching and networking, all with eye towards doing something to rolling back some of the damage that has been done to our country and its principles.

I hope that you will join me here, commenting and contributing. Even more, I hope you'll take some sort of action. Register to vote, if you haven't. Get your friends and family to register. Support candidates. Write your senators and representatives. Attend public hearings and town meetings. Study history, our Constitution and the daily news. Talk with friends and family.