Quotulatiousness

December 1, 2012

The ACLU and the introduction of sex as a civil right

Filed under: Books, Law, Liberty, Media, USA — Tags: , , , — Nicholas @ 11:33

For Reason, Debbie Nathan reviews a new book by Leigh Ann Wheeler:

When it comes to Americans’ understanding of sexual privacy and public sexual expression, most of us are effectively members of the American Civil Liberties Union. This is so even for people who carry no card, pay no dues, and — if such a thing were possible — have never even heard of the organization.

That’s the takeaway from How Sex Became a Civil Liberty, Leigh Ann Wheeler’s dense but fascinating account of the ACLU’s wildly successful efforts, since its founding almost 100 years ago, to bring sex under the purview of the Bill of Rights. Wheeler, a Binghamton University historian, could have stuck with a wonky narrative about a long march of law and jurisprudence. Instead, she’s taken what she calls an “empathic” approach. She has combed vast archives, including personal correspondence of the ACLU’s founders and decades of files from the national office and local affiliates.

From these papers she has assembled a story about men and women working through their own sexual passions and contradictions as they shaped a legal and political practice for the entire country. She reveals how activists pushed, slouched, and pushed some more to arm their fellow citizens with sexual rights, even as those rights provoked further conflicts, including among ACLUers themselves.

November 7, 2012

No matter who you vote for, the government always gets in

Filed under: Liberty, Media, Politics, USA — Tags: , , , , , , — Nicholas @ 09:07

L. Neil Smith explains one of the most significant reasons that the most recent US election didn’t seem to offer much in the way of choice between the two major party candidates:

No matter how hard Productive Class folks may work at trying to put good people into office, people who respect the Bill of Rights, as well as our dignity as individuals, every single time, we end up with a non-choice between two sets of rapacious gangsters, government parasites and their corporate lookalikes who, differing only in the excuses they use to justify it, see us only as cattle, to be herded, branded, milked, and slaughtered. On the rare occasion that someone decent pokes his head up — Barry Goldwater, Ron Paul — it’s cut off by the socialist mass media, pack animals who give prostitution a bad name.

Beyond the palest shadow of a doubt, the game is rigged, with people who actually work for a living assigned the role of perpetual losers, expected to bow down to Authority no matter how ludicrous its demands, required to observe the letter and the spirit of the law no matter how often, or how outrageously it’s flouted by the insatiably power-hungry. Those who object — especially if they get together to air their grievances — are labeled rednecks, racists, or terrorists by the socialist mass media, depending on what’s in fashion at the time. The truth has no place in this process, only the virtual reality created by the socialist mass media at the behest of their thuggish clientele.

To make things even worse, members of the Productive Class find themselves in the role of shuttlecock in a game of political badminton that has been going on for two centuries. Fed up with the failures and excesses of, say, the Republicans, voters will replace them with Democrats, only to be reminded, in short order, that Democrats suffer failures and commit excesses of their own. Four years after that, experiencing political amnesia again, they put Republicans back in power, when what they ought to do is dump “both” major parties (which are really only one entity, the party of endless lies and coercion) altogether.

October 30, 2012

Pushing for “medical marijuana” makes full legalization less likely

Filed under: Health, Law, Liberty, USA — Tags: , , , , , , , — Nicholas @ 09:05

L. Neil Smith makes the point that supporters of medical marijuana may be missing:

What I do mind — and perhaps I am alone in this, who knows? — is weak and disingenuous politics with regard to drugs. It was the issue of “medical marijuana” that first got my goat this way. I don’t doubt for a microsecond that the weed makes life easier and longer for those suffering certain diseases, and I believe that those who would deny them that relief are little better than scavengers on the misery of others.

But observation — and my knowledge of history and human nature — suggests that the majority of those who advocate the legalization of pot “purely for medicinal purposes” do not require it for that reason. They simply want to slip the nose of their personal camel under the edge of the tent, and I find that approach sneaky, dishonest, and cowardly.

I believe that if they had spent the past fifty years pushing the Ninth Amendment right to roll up and smoke whatever frigging vegetable you wish, marijuana would be legal now, and there would not have been a “War On Drugs” handy for the psychopathetic enemies of liberty to transform into a War on Everything, including the American Productive Class.

I think we’ve seen the high point for medical marijuana. The proof of that lies in a current initiative to “Regulate Marijuana Like Alcohol”, on the ballot in my home state of Colorado this year. The title says it all, although the details could be gruesome, ending in a mess found in some states and all military bases, where the government runs the liquor stores (about as well as they run everything else). In the Air Force, when I was growing up, some officious snoops regularly examined the records of the store and your commanding officer would get a tattletale letter if they thought that you were buying too much booze.

Whatever that amounts to.

This is not a kind of progress any that real libertarian would recognize. The fact that advocates of the measure make a major selling point of taxing the stuff only makes it worse, both in principle and practice. First, by what right does anybody steal money from me when I choose to spend it on some things and not on others. Furthermore, when I was just entering college, a smoker could buy a pack of Marlboros out of a machine for 35 cents. Today, the price per pack is nudging five dollars, and only a small fraction of that is attributable to inflation.

Exactly the same thing will happen with marijuana.

October 10, 2012

Defending the rights of the accused (even when the accused are “clearly guilty”)

Filed under: Law, Liberty, USA — Tags: , , , — Nicholas @ 10:41

Ken White doesn’t like the way the criminal justice system is criticized on the basis of “feelings”, rather than the facts. In a recent case that the media has reported on as a travesty of justice, he defends the process by which the decision was reached.

Blogger “Gideon” writes at A Public Defender and is, in fact, a public defender. That is to say, Gideon works every day under lousy conditions, inadequate funding, and impossible odds to provide a vigorous defense to people accused of crimes who can’t afford a lawyer — people who, absent vigorous representation, will be ground up by the system, guilty or innocent. God bless Gideon for that. Gideon has been waging a lonely battle to explain what Fourtin v. Connecticut actually means.

As Gideon explains at length […], prosecutors made the strange and probably incompetent tactical decision to charge Fourtin under an infrequently used subsection of the Connecticut rape statute, a subsection that only applies to sexual assault of someone who is “physically helpless.” What the Supreme Court of Connecticut found was not that “if a severely handicapped person could resist but doesn’t, its not rape.” What the Court found was that this victim — who, though severely handicapped, could move and resist — was not “physically helpless” within the meaning of the statute, which is narrowly confined to people who are “unconscious or for some other reason physically unable to communicate lack of consent.” The Court found that the evidence showed that the victim could communicate lack of consent, and thus wasn’t “physically helpless” under the statute. The Court also repeatedly criticized the prosecutor’s decision to charge the case under this particular statute (rather than, for instance, under another subsection that could have applied because the victim was so mentally impaired that she was “unable to consent to such sexual intercourse”), and failure to offer evidence of state’s latecoming theories under this statute.

I’m outraged that the prosecution made a lousy and seemingly inexplicable call. I’m outraged that someone who sexually assaulted a profoundly handicapped woman goes free because of incompetence. But I’m not outraged that the state has to prove that you’re guilty of the specific crime you’re charged with to put you in prison. That’s fundamental to due process. “Well, hell, he didn’t do what he’s charged with, but he did something else awful” is tyrannical. I’m more afraid of the state’s ability to make it up as they go along in a criminal case than I am of criminals going free. As a criminal defense attorney, I know that it would be impossible to defend clients if the government could throw on their case and then ask the judge to find a statute that fits, instead of charging defendants with a specific crime and then proving that crime. As Gideon points out, the Sixth Amendment gives you the right “to be informed of the nature and cause of the accusation” against you. “You’re a criminal, we’ll figure out what statute you violated after we see how the evidence turns out at trial” is not due process.

October 3, 2012

Sullum: Slandering Muhammad Is Not a Crime

Filed under: Liberty, Media, Religion, USA — Tags: , , , , , — Nicholas @ 09:15

At Reason, Jacob Sullum highlights the good and not-so-good about President Obama’s defence of free speech:

Addressing the U.N. General Assembly last week, President Obama tried to explain this strange attachment that Americans have to freedom of speech. He was handicapped by his attraction to a moral principle whose dangers the journalist Jonathan Rauch presciently highlighted in his 1993 book Kindly Inquisitors: “Thou shalt not hurt others with words.”

During the last few weeks, the widespread, often violent, and sometimes deadly protests against The Innocence of Muslims, a laughably amateurish trailer for a seemingly nonexistent film mocking the prophet Muhammad, have demonstrated the alarming extent to which citizens of Muslim countries, including peaceful moderates as well as violent extremists, embrace this injunction against offending people. “We don’t think that depictions of the prophets are freedom of expression,” a Muslim scholar explained to The New York Times. “We think it is an offense against our rights.”

This notion of rights cannot be reconciled with the classical liberal tradition of free inquiry and free expression. But instead of saying that plainly, Obama delivered a muddled message, mixing a defense of free speech with an implicit endorsement of expectations that threaten to destroy it.

Update: The UN thinks free speech is something that was created by the UN in 1948:

Free speech is a “gift given to us by the [Universal] Declaration of Human Rights,” said Deputy Secretary General of the United Nations Jan Eliasson during a press conference on October 2nd at UN headquarters in New York. It is “a privilege,” Eliasson said, “that we have, which in my view involves also the need for respect, the need to avoid provocations.”

October 1, 2012

Michigan’s unions battle for a veto right over state law

Filed under: Government, Law, USA — Tags: , , , — Nicholas @ 10:10

In the Wall Street Journal, Shikha Dalmia looks at a proposed constitutional amendment in Michigan which would give unions a huge veto power over state law:

The Michigan Supreme Court recently approved the placement of a proposed constitutional amendment on the November ballot. If passed by voters, the so-called Protect Our Jobs amendment would give public-employee unions a potent new tool to challenge any laws — past, present or future — that limit their benefits or collective-bargaining powers. It would also bar Michigan from becoming a right-to-work state in which mandatory union dues are not a condition of employment. The budget implications are dire.

[. . .]

The amendment says that no “existing or future laws shall abridge, impair or limit” the collective-bargaining rights of Michigan workers. That may sound innocuous, but according to Patrick Wright of the Mackinac Center for Public Policy, the amendment would hand a broad mandate to unions to challenge virtually any law they don’t like.

[. . .]

The ballot initiative states that it would “override state laws that regulate hours and conditions of employment to the extent that those laws conflict with collective bargaining agreements.” In other words, collective-bargaining agreements negotiated behind closed doors would trump the legislature — a breathtaking power grab that would turn unions into a super legislature.

Perhaps the biggest upside for unions is that the proposal would prohibit Michigan from becoming a right-to-work state. Regaining its competitive position with respect to the 23 right-to-work states that have become attractive to manufacturers, even auto makers, would be unlikely. Rather, labor would get a field-tested strategy for scrapping those states’ right-to-work laws with ballot referendums.

September 10, 2012

Extending the state’s say in private decision-making

Filed under: Britain, Law, Liberty — Tags: , , , , , — Nicholas @ 09:55

Barbara Hewson on recent legal developments in Britain which extend the state’s ability to interfere in the private lives of adults:

For centuries, the High Court has claimed an ‘inherent jurisdiction’ to take care of the persons and property of those who could not look after themselves. This power covers minors and wards of court, as well as adults who lack mental capacity. It originates in an ancient Crown Prerogative, going back to feudal times (1). But in a little-noticed legal development, some judges of the Family Division have started to claim an ‘inherent jurisdiction’ over the lives of adults in full possession of their faculties.

This is a disturbing trend. These rulings are given at private hearings. Parliament, the public, and indeed the Ministry of Justice, are none the wiser. The problem, at base, is a constitutional one. Our judges are unelected, and are not supposed to make laws. That is parliament’s function.

Parliament has said that people become adults at age 18 (2). Most people think that the point of reaching adulthood is that you get to decide where you live, and who your friends are. If you make unwise decisions, that is unfortunate, but it is not a basis for the authorities to intervene. However, last March, in a case called ‘DL’, the Court of Appeal said that the High Court is entitled to disregard adult decision-making (3).

[. . .]

Judges of the Family Division of the High Court have been seduced by what Frank Furedi has called ‘the fatalistic sociology of the precautionary principle’. This views all human beings as innately powerless, vulnerable and at risk (7). And if to be at risk is a condition of life, then everyone becomes a legitimate target of judicial intervention and protection. This refusal by the courts to acknowledge adults as self-determining agents has ominous implications for liberty and the law.

September 4, 2012

Paul Wells writes a political obituary for Jean Charest

Filed under: Cancon, Politics — Tags: , , — Nicholas @ 10:25

If Jean Charest somehow overcomes the odds (and the most recent polls), we can just file this column away for the next time:

He’s mostly been a lousy premier. His dreams of “re-engineering” Quebec soon went by the wayside. He spent most of his first mandate struggling to show he even understood Quebec. He stalled on important reforms—he left university tuitions, for instance, frozen until 2008. He did not move to clean up party financing, and when the allegations against his own government mounted, he seemed honestly to believe it was the accusers who were the problem. He stalled until he was weak instead of moving to reform when he was strong.

But he hung on, for as long as any modern Quebec premier has hung on. While he was hanging on, the constitutional debates that made Canadian public life so joyless and distracted from 1976 to, say, 2000 did not reconvene. Charest had no interest in making the argument his predecessors Robert Bourassa and Claude Ryan favoured: that Canada did not deserve to survive if its Constitution could not be amended to suit the whims of Outremont intellectuals. Montreal’s economy recovered, and today the city’s downtown looks better than it has in 40 years, if you survive the drive in without having half of an overpass fall on you. Nothing’s perfect.

On his way to defeat, he implemented important reforms in the way most reforms actually happen in the real world: under fire and in a desperate attempt to avoid further humiliation. The Charbonneau commission of inquiry into corruption in the construction agency, the belated reforms to university financing, the woefully delayed attempts to pay what it takes to have public infrastructure that doesn’t crumble overhead: none of these was his bright idea, but they are in place, almost despite him, and his successors will benefit. He is Quebec’s Gorbachev, a reformer despite himself, swallowed up by forces he hoped only to contain. Like Gorbachev, he will look better in hindsight than he feels while it’s happening.

Enoch Powell said all political lives end in failure. What matters is the word “end.” Public life in a democracy is so cruel that taking a long time to fail is its own kind of success.

Is Charest’s political life really ending? He’s only 54. He once had a future in Ottawa. I cannot imagine he still does. But in his ungainly fashion he has defied imagination before. All I know is that he has been good for more surprises than almost any politician I’ve covered.

September 2, 2012

The importance of encryption for private citizens

Filed under: History, Liberty, Technology — Tags: , , , , — Nicholas @ 11:26

Wendy McElroy relates one of the earliest examples of private encryption in the young American republic:

In America, the tug of war between privacy and forced access to encrypted data is as old as the nation’s formation. As always, forced access was executed by authorities against individuals.

In 1785, a resolution authorized the secretary of the Department of Foreign Affairs to open and inspect any mail that related to the safety and interests of the United States. The ensuing inspections caused prominent men, like George Washington, to complain of mail tampering. According to various historians, it also led James Madison, Thomas Jefferson and James Monroe to correspond in code. That is, they encrypted their letters to preserve the privacy of their political discussions.

The need for Founding Fathers to encrypt their correspondence is high irony. The intrusive post office against which they rebelled had been established specifically to provide a free flow of political opinion. In the 1770′s, Sam Adams urged the 13 colonies to create an independent postal system because the existing post office, established by the British, acted as a barrier to the spread of rebellious sentiment. Dorothy Ganfield Fowler in her book Unmailable: Congress and the Post Office observed, “He [Adams] claimed the colonial post office was made use of for the purpose of stopping the ‘Channels of publick Intelligence and so in Effect of aiding the measures of Tyranny.’”

Alas, the more government changes, the more oppression remains the same. Soon the Continental Congress itself wanted to declare some types of matter ‘unmailable’ because their content were deemed dangerous. Anti-Federalist letters and periodicals became one of the first types of information to become de facto unmailable. (Anti-federalists resisted centralized government and rejected a Constitution without a Bill of Rights.) During the ratification debates on the Constitution, the Anti-Federalists were unable to circulate their material through the Federalist-controlled post office.

August 23, 2012

Quebec election: why is Pauline Marois getting a free pass for xenophobia?

Filed under: Cancon, Media, Politics — Tags: , , , , , , , — Nicholas @ 09:09

Jonathan Kay wonders why the English language media in the “rest of Canada” are being so careful to avoid calling out PQ leader Pauline Marois for far greater sins than any Alberta politician committed during the recent Alberta election:

Given the close scrutiny that surrounded the recent Alberta election, it is somewhat surprising that more attention is not being paid to the genuinely alarming things coming out of the mouth of Parti Québécois leader Pauline Marois.

During the Alberta campaign, every gaffe committed by a member of the right-wing Wildrose Party became a national news item. The Toronto media, in particular, lapped it up — because it played to our outdated stereotype of Alberta as a land of rural hicks. Yet nothing that was said in the Alberta campaign can compare to the declarations of Ms. Marois, who has easily established herself as the most xenophobic major-party leader in all of Canada.

So why has there been comparatively little uproar over Ms. Marois? It is as if Canadians in the rest of the country have become so accustomed to watching Quebec nationalists bottom-feed for votes that we no longer are shocked by it. But Quebec is, after all, part of Canada. And Ms. Marois might become the province’s next premier on Sept. 4. Surely, it is worth rousing ourselves to pay attention to the fact that this woman is proposing policies that are unconstitutional and even bigoted.

August 15, 2012

Canadian liberty, 1776-2012

Filed under: Cancon, History, Liberty, USA — Tags: , , , , — Nicholas @ 09:32

F.H. Buckley has an interesting article in the National Post, comparing the American and Canadian “flavours” of liberty from the American Revolution down to today:

The Fathers of Confederation had seen the American constitution close up and didn’t want any part of it. They didn’t foresee just how we’d turn out. Overall, however, our good fortune would not have surprised them, for they knew that they were founding a free country.

On reading the Confederation debates, one is struck by how the Fathers insisted that we had real liberty in Canada, more so even than Americans. That comes as a bit of a shock, as we had thought that Americans had property rights in liberty. They owned it, and on occasion were kind enough to try to export it to lesser countries, as they did 200 years ago in the War of 1812 (where they came in a very strong second).

[. . .]

When McGee and the other Fathers looked south, they saw a country with more of Constant’s liberty of the ancients but less of the liberty of the moderns. Moreover, of the former, the right of self-government had been corrupted by political machines and trivialized by elections for dogcatchers. The high ideals of the American Founders had been forgotten, and their republican virtue was now, in the era of Boss Tweed and Jay Gould, little more than American braggadocio. As for the liberty of the moderns, there was that little matter of slavery and its aftermath. True, Americans could express themselves through lynch-parties, but that was the kind of liberty the Canadians did not want.

Many of the differences between the two countries remain, but Canadians no longer have more of the liberty of the moderns than Americans. In both countries, benign neglect has been replaced by the bureaucrat’s officious nudges, giving us ugly light bulbs, toilets that don’t flush and idiotic playground rules. Could one have predicted this 25 years ago? I think not. Back then I had legal scholar Cass Sunstein over for dinner. Until a few days ago he was Obama’s regulatory czar, and over dinner in 1987 he predicted how the regulatory state would expand, in the name of risk reduction. “Americans won’t stand for this,” my wife told him. They prize their freedom too much. “Ah, but we’ll change their preferences,” he replied. And he was right.

June 29, 2012

Shikha Dalmia attempts to pull some lessons from the confusion of the Supreme Court’s Obamacare ruling

Filed under: Health, Law, USA — Tags: , , , , — Nicholas @ 10:51

The biggest loser in this ruling may well have been the remains of the Supreme Court’s dignity. At Hit and Run, Shikha Dalmia pokes through the smoking ruins of the decision to try to make some sense out of it all:

One: We know a ruling is a going to lead to a holy legal mess when it begins like this:

    ROBERTS, C. J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III–C, in which GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined; an opinion with respect to Part IV, in which BREYER and KAGAN, JJ., joined; and an opinion with respect to Parts III–A, III–B, and III–D. GINSBURG, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which SOTOMAYOR, J., joined, and in which BREYER and KAGAN, JJ., joined as to Parts I, II, III, and IV. SCALIA, KENNEDY, THOMAS, and ALITO, JJ., filed a dissenting opinion. THOMAS, J., filed a dissenting opinion.

Another instance where a ruling began this way was in the 1978 Bakke case. In it, Justice Powell could not convince a majority of his colleagues to sign off on his tortured claim that the University of California could not reject white candidates because of their race. But it could give blacks and other minorities extra bonus points because of their race. He was against racial quotas, you see, but thought racial preferences were just peachy — a distinction that his conservative and liberal justice had difficulty seeing. The upshot was multiple opinions with multiple dissents and multiple concurrences without any clear guidance as to which one was applicable. This has lead to 40 odd years of conflict and confusion in the lower courts that the Supreme Court is still trying to sort out

[. . .]

Three: No one should ever again believe that conservative justices are opposed to judicial activism, preferring, instead to read and apply the law as written, computer-like. Justice Scalia proved this in his ruling in the Raich case when he happily signed off on an expansive understanding of Uncle Sam’s Commerce Clause authority to nullify state medical marijuana laws duly passed by voters just because he happened to disagree with them. Had it not been for his misguided reasoning, ObamaCare’s constitutionality — or lack thereof — under the Commerce Clause would not have even been an issue.

But Scalia at least chose to exercise one of the two options presented to him: uphold or overrule the law as written. Justice Roberts, on the other hand, as many have already pointed out, has rewritten ObamaCare as per his taste. The law itself repeatedly noted that the fine for not purchasing health care was a penalty not a tax, a designation that Roberts accepts in order to determine if the court had standing to rule under the Anti-Injunction Clause (the Clause bars legal challenges to federal taxes before they have gone into effect). But he rejected that designation and redubbed the “penalty” a “tax” in declaring it constitutional.

Update: Ace gets a bit heated about the political switch of opinion on the part of the chief justice:

What galls me is that a majority of the public wanted this overturned — but we don’t count. What counts is the opinion of the elites Roberts socializes with. They are a decided minority, but continue imposing their political will on the nation as if they were a majority.

And the actual majority? The Little People don’t count. They don’t have the right schooling, nor the socialization to truly understand how to best manage their affairs.

I was just reading a bit about the making of The Good, the Bad, and The Ugly. Sergio Leone included a brutal Union prison camp; he noted that there was a lot written about the Confederates’ brutal prison camps (like Andersonville) but nothing about the Unions’ similar camps. The winners, he noted, don’t get written about that way.

Roberts has aligned himself with the elites, who he supposes will be the Winners, and will thus have the final say in the history books about him. And he’s probably right that they will have the final say: Conservatives simply do not have much sway at all in some of the most critical institutions in America. And we’ll continue paying a high price for that until we change that.

Update, the second: Mark Steyn, on the other hand, sings the praises of Obamacare, now that it has hurdled the Supreme Court:

Still, quibbling over whose pretzel argument is more ingeniously twisted — the government’s or the court’s — is to debate, in Samuel Johnson’s words, the precedence between a louse and a flea. I have great respect for George Will, but his assertion that the Supreme Court decision is a “huge victory” that will “help revive a venerable tradition” of “viewing congressional actions with a skeptical constitutional squint” and lead to a “sharpening” of “many Americans’ constitutional consciousness” is sufficiently delusional that one trusts mental health is not grounds for priority check-in at the death panel. Back in the real world, it is a melancholy fact that tens of millions of Americans are far more European in their view of government than the nation’s self-mythologizing would suggest. Indeed, citizens of many Continental countries now have more — what’s the word? — liberty in matters of health care than Americans. That’s to say, they have genuinely universal government systems alongside genuinely private-system alternatives. Only in America does “health” “care” “reform” begin with the hiring of 16,500 new IRS agents tasked with determining whether your insurance policy merits a fine. It is the perverse genius of Obamacare that it will kill off what’s left of a truly private health sector without leading to a truly universal system. However, it will be catastrophically unaffordable, hideously bureaucratic, and ever more coercive. So what’s not to like?

June 14, 2012

The Commerce Clause: how it evolved to empower government control of everything

Filed under: History, Law, Liberty, USA — Tags: , , , — Nicholas @ 09:36

U.S. District Judge Roger Vinson ruled that because the Patient Protection and Affordable Care Act’s individual mandate to purchase health insurance is unconstitutional, the entire law “must be declared void.” Judge Vinson cites this Reason.tv video on page 47 of his decision.

June 7, 2012

“What’s next? Prosecutions before military tribunals in the U.S.?”

Filed under: Government, Liberty, Military, USA — Tags: , , , , — Nicholas @ 10:57

Judge Andrew Napolitano on the lack of outrage over the use of military drones within the borders of the United States (and, in all probability, Canada):

When drones take pictures of us on our private property and in our homes, and the government uses the photos as it wishes, what will we do about it? Jefferson understood that when the government assaults our privacy and dignity, it is the moral equivalent of violence against us. The folks who hear about this, who either laugh or groan, cannot find it humorous or boring that their every move will be monitored and photographed by the government.

Don’t believe me that this is coming? The photos that the drones will take may be retained and used or even distributed to others in the government so long as the “recipient is reasonably perceived to have a specific, lawful governmental function” in requiring them. And for the first time since the Civil War, the federal government will deploy military personnel inside the United States and publicly acknowledge that it is deploying them “to collect information about U.S. persons.”

It gets worse. If the military personnel see something of interest from a drone, they may apply to a military judge or “military commander” for permission to conduct a physical search of the private property that intrigues them. And, any “incidentally acquired information” can be retained or turned over to local law enforcement. What’s next? Prosecutions before military tribunals in the U.S.?

The quoted phrases above are extracted from a now-public 30-page memorandum issued by President Obama’s Secretary of the Air Force on April 23, 2012. The purpose of the memorandum is stated as “balancing…obtaining intelligence information…and protecting individual rights guaranteed by the U.S. Constitution…” Note the primacy of intelligence gathering over freedom protection, and note the peculiar use of the word “balancing.”

May 31, 2012

Bush violated US constitution by authorizing drone strikes

Filed under: Government, Law, Military, USA — Tags: , , , , , — Nicholas @ 09:50

At Reason, Judge Andrew Napolitano on the presidential “kill list” and the limits of presidential power under the constitution:

The leader of the government regularly sits down with his senior generals and spies and advisers and reviews a list of the people they want him to authorize their agents to kill. They do this every Tuesday morning when the leader is in town. The leader once condemned any practice even close to this, but now relishes the killing because he has convinced himself that it is a sane and sterile way to keep his country safe and himself in power. The leader, who is running for re-election, even invited his campaign manager to join the group that decides whom to kill.

This is not from a work of fiction, and it is not describing a series of events in the Kremlin or Beijing or Pyongyang. It is a fair summary of a 6,000-word investigative report in The New York Times earlier this week about the White House of Barack Obama. Two Times journalists, Jo Becker and Scott Shane, painstakingly and chillingly reported that the former lecturer in constitutional law and liberal senator who railed against torture and Gitmo now weekly reviews a secret kill list, personally decides who should be killed and then dispatches killers all over the world — and some of his killers have killed Americans.

[. . .]

The president cannot lawfully order the killing of anyone, except according to the Constitution and federal law. Under the Constitution, he can only order killing using the military when the U.S. has been attacked, or when an attack is so imminent and certain that delay would cost innocent American lives, or in pursuit of a congressional declaration of war. Under federal law, he can only order killing using civilians when a person has been sentenced lawfully to death by a federal court and the jury verdict and the death sentence have been upheld on appeal. If he uses the military to kill, federal law requires public reports of its use to Congress and congressional approval after 180 days.

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