Quotulatiousness

January 16, 2012

An unwelcome kind of “Top Ten Reasons” list

Filed under: Government, Liberty, USA — Tags: , , , , — Nicholas @ 09:04

Jonathan Turley, writing in the Washington Post:

Every year, the State Department issues reports on individual rights in other countries, monitoring the passage of restrictive laws and regulations around the world. Iran, for example, has been criticized for denying fair public trials and limiting privacy, while Russia has been taken to task for undermining due process. Other countries have been condemned for the use of secret evidence and torture.

Even as we pass judgment on countries we consider unfree, Americans remain confident that any definition of a free nation must include their own — the land of free. Yet, the laws and practices of the land should shake that confidence. In the decade since Sept. 11, 2001, this country has comprehensively reduced civil liberties in the name of an expanded security state. The most recent example of this was the National Defense Authorization Act, signed Dec. 31, which allows for the indefinite detention of citizens. At what point does the reduction of individual rights in our country change how we define ourselves?

While each new national security power Washington has embraced was controversial when enacted, they are often discussed in isolation. But they don’t operate in isolation. They form a mosaic of powers under which our country could be considered, at least in part, authoritarian. Americans often proclaim our nation as a symbol of freedom to the world while dismissing nations such as Cuba and China as categorically unfree. Yet, objectively, we may be only half right. Those countries do lack basic individual rights such as due process, placing them outside any reasonable definition of “free,” but the United States now has much more in common with such regimes than anyone may like to admit.

These countries also have constitutions that purport to guarantee freedoms and rights. But their governments have broad discretion in denying those rights and few real avenues for challenges by citizens — precisely the problem with the new laws in this country.

The list of powers acquired by the U.S. government since 9/11 puts us in rather troubling company.

January 12, 2012

Federal government throws a wrench into the same-sex marriage debate

Filed under: Cancon, Law, Liberty — Tags: , , — Nicholas @ 09:20

Updated below: I should retract my implication that this was a deliberate ploy by the federal government to re-open the same-sex marriage debate. It clearly is not, and was not any kind of political ploy — although at least one lawyer in the Justice department feels it should be. Original post:

Just when we thought the whole thing had been settled, Ottawa decides to toss their social conservative base a bone:

The Harper government has served notice that thousands of same-sex couples who flocked to Canada from abroad since 2004 to get married are not legally wed.

The reversal of federal policy is revealed in a document filed in a Toronto test case launched recently by a lesbian couple seeking a divorce. Wed in Toronto in 2005, the couple have been told they cannot divorce because they were never really married — a Department of Justice lawyer says their marriage is not legal in Canada since they could not have lawfully wed in Florida or England, where the two partners reside.

The government’s hard line has cast sudden doubt on the rights and legal status of couples who wed in Canada after a series of court decisions opened the floodgates to same-sex marriage. The mechanics of determining issues such as tax status, employment benefits and immigration have been thrown into legal limbo.

This new development will certainly re-invigorate the debate about same-sex marriage — perhaps to head off a debate about polygamy (there are many Muslim families living in Canada with the husband having more than one wife, for example).

Update: Matt Gurney offers a more comprehensible account of the court case and the government’s response:

The legalities of the situation are complex. The unidentified couple, whose names are covered by a publication ban, returned to Canada to apply for a divorce after being married here seven years ago. They were not able to obtain said divorce because under the Divorce Act, applicants must be residents of Canada for at least 12 months. This couple does not, and seemingly never has, lived in Canada. They just chose to marry (and split up) here because it was not possible for them to do so in their home jurisdictions.

Uninterested in living in Canada for a year just to get divorced, the couple filed a Charter claim against the Ontario and federal governments, claiming that the residency requirement violated their Section 7 right to “life, liberty and security of the person” and their Section 15 right to equality under the law. These both seem to be spurious arguments — but rather than fight them on their own (lacking) merits, a government lawyer instead deployed this humdinger of a legal manoeuvre: They can’t get divorced because it turns out they were never married at all.

Done! Easy-peasy. Let’s break for lunch.

The government is arguing that since Florida and the U.K. — the home jurisdictions of the estranged couple — don’t recognize gay marriages, a gay marriage licence issued in Canada isn’t legally valid. People living in Canada, Canadian or otherwise, would have no problem, because Canada does recognize same-sex unions. But if your home country or state doesn’t, then the government has argued that a Canadian marriage has no standing in law. Weird, but true.

[. . .]

To be clear — the suggestion that these couples were never married under Canadian law, a suggestion advanced by a single government lawyer — is ridiculous. The notion that Canadian law should be dependent on the local laws of every single other jurisdiction on the planet is asinine. A government that has made so much of standing up for Canada’s values on the world stage has no business declaring our own laws subservient to any other land’s. We might not have the hard- or soft-power to give our laws much weight abroad, but we can at least honour them in our own country.

Update, 13 January: The government is actually responding quickly and correctly to the story:

Canada’s justice minister says all same-sex marriages performed in Canada are legally recognized and the government is working to ensure foreign couples married here can divorce if they chose to.

“Marriages performed in Canada that aren’t recognized in couple’s home jurisdiction will be recognized in Canada,” Justice Minister Rob Nicholson said Friday in Toronto.

“I want to be very clear that our government has no intention of reopening the debate on the definition of marriage,” he added.

[. . .]

“I want to make it clear that in our government’s view, these marriages are valid,” Nicholson said.

[. . .]

The Harper government went immediately into damage control and denied that they were looking into the issue.

“We’re not going to reopen that particular issue,” Prime Minister Stephen Harper told reporters Thursday.

January 5, 2012

“The internet is not a human right” says one of the internet’s founding fathers

Filed under: Liberty, Media, Technology — Tags: , — Nicholas @ 15:53

And he’s right, too:

Vint Cerf is warning that people who insist that the internet is some sort of human or civil right are missing the point.

In an op-ed piece in The New York Times, Cerf — regarded by many as one of the fathers of the internet for his role in creating TCP/IP — explained that technology isn’t a human right in itself, but merely an enabler for more concrete things such as communication. He criticized the UN and others for taking the position that broadband communications is a human right, saying that we should instead focus on more fundamental problems.

“Technology is an enabler of rights, not a right itself,” he writes. “There is a high bar for something to be considered a human right. Loosely put, it must be among the things we as humans need in order to lead healthy, meaningful lives, like freedom from torture or freedom of conscience. It is a mistake to place any particular technology in this exalted category, since over time we will end up valuing the wrong things.”

Double-jeopardy falls to political correctness

Filed under: Britain, History, Law, Liberty — Tags: , , , — Nicholas @ 10:14

Brendan O’Neill on the terrible precedent of a recent British government decision and it’s most recent mis-use:

On Nick Ferrari’s breakfast show on London’s LBC radio this morning, I argued that all the people describing this case as a victory for justice are overlooking the fact that it is a victory built upon the wreckage of some pretty important legal principles. One longstanding legal protection in particular — the double jeopardy rule, the idea that no one should be tried twice for the same crime — had to be dismantled in order to get Dobson back in the dock. Having been acquitted of the murder of Lawrence in 1996, Dobson was what we used to call ‘autrefois acquit‘, previously acquitted, which in the past would have meant that he could not have been tried for the murder a second time. That all changed in 2003, when New Labour ditched the double-jeopardy rule.

[. . .]

Double jeopardy is the elephant in the room of the Dobson and Norris conviction. Sure, journalists are mentioning it, usually in fluffy factboxes titled ‘How this case came to court’, but no one wants to discuss it in detail. No one wants to discuss the extraordinary amount of history and progressive tradition that had to be consigned to the dustbin of ‘bad ideas’ in order to secure one conviction against two nasty blokes.

The double-jeopardy rule had existed in some form or other for centuries. There was a Roman maxim which said ‘nemo bis in idem debet vexari‘ — no man shall be punished twice for the same. It’s there in early Christianity, too, in St Jerome’s insistence in the fourth century that ‘there shall not rise up a double affliction’. It’s also in the sixth-century Digest of Justinian, the seed of much of modern jurisprudence, which insisted that, ‘The governor should not permit the same person to be accused of a crime of which he has been acquitted’. An academic study of the double jeopardy rule in history points out that it is one of the ‘few legal rights recognised by the Christian fathers throughout the Dark and Middle Ages’.

In twelfth-century England, a form of double jeopardy was codified in the Constitutions of Clarendon, which, in an attempt to rein in the authoritarian instincts of Henry II, stipulated that no man could be tried for the same offence in both the ecclesiastical courts and the king’s courts. It had to be one or the other. From England it spread to the US, where the eighteenth-century revolutionaries and their successors made a bar against double jeopardy a key plank of their new republic’s constitutional guarantee of liberty against state power. In each historic period, the purpose of the rule against ‘double afflictions’ was strikingly similar: to protect individuals from potentially being hounded and interminably retried by governors, crown forces or cops determined to stick them in jail. That’s because being permanently at risk of prosecution is itself a kind of life sentence.

December 28, 2011

Uncovering the historical definition of “the press”

Filed under: History, Liberty, Media, USA — Tags: , , — Nicholas @ 11:35

Elizabeth sent me a link to this Dan Smyth post on what the US Founding Fathers understood the term “the press” to mean:

If the Founders wanted to protect in particular who today we call media, reporters, etc. with “freedom of…the press,” then surely the Founders could have written, for example, “freedom of … journalists” or “freedom of … newsmongers.”

Volokh describes how, with no significant exceptions, prominent writers the Founders often cited, including William Blackstone, Jean-Louis De Lolme, and George Tucker, connected press freedom with the right of every “freeman,” “citizen,” or “individual” to “write,” “print,” or “publish” his or her thoughts. This fact implies the Founders didn’t intend the press clause to protect the existing or future collection of “newsmongers” per se but rather to recognize the right of any person (or “freeman”) to use printing presses (Until 1694, England imposed licenses on publications, which the Founders abhorred). James Madison’s following first draft of the Bill of Rights’ speech/press clauses highlights this point: “The people [emphasis added] shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.” According to Johnson’s dictionary, “people” had such definitions as “a nation,” “men, or per[s]ons in general,” and “the commonality.”

Volokh provides much more evidence for the press clause’s “the press” being the printing press, particularly his evaluations of U.S. court cases from the Founding to 2011 that demonstrate judges have consistently interpreted the press clause as protecting any individuals who use the printing press, including newspaper advertisers and authors of letters to the editor, pamphlets, and books. Volokh describes how it was only the 1970s when some lower courts began interpreting the press clause’s “the press” to be a collection of journalists and not the printing press as a technology.

December 26, 2011

Montana voters angry over “indefinite detention” vote, seek to recall their senators

Filed under: Government, Liberty, USA — Tags: , , , , , — Nicholas @ 11:42

Jonathan Turley has the details:

We have been discussing the disconnect between citizens who have repeatedly opposed continued rollbacks of civil liberties and the Democratic and Republican leadership pushing for such rollbacks, including the recent provision allowing indefinite detention of citizens under the National Defense Authorization Act of 2011 (NDAA). Now Montana citizens have decided to try another approach given the non-responsive attitude of our leaders — they are moving to remove their two Senators from office over their votes in favor of indefinite detention powers.

Montana is one of nine states with recall laws. The other states are Arizona, Colorado, Louisiana, Michigan, Nevada, North Dakota, Oregon, and Wisconsin. Eighteen states have recall laws, but most do not apply to federal officers.

H/T to Radley Balko for the link.

December 6, 2011

Forbes: The NDAA is the “Greatest Threat to Civil Liberties”

Filed under: Government, Liberty, USA — Tags: , , , , — Nicholas @ 00:40

E.D. Kain makes the case for President Obama to veto the National Defence Authorization Act:

If Obama does one thing for the remainder of his presidency let it be a veto of the National Defense Authorization Act — a law being debated in the Senate currently which would place domestic terror investigations and interrogations into the hands of the military and which would open the door for trial-free, indefinite detention of anyone, including American citizens, so long as the government calls them terrorists.

So much for innocent until proven guilty. So much for limited government. What Americans are now facing is quite literally the end of the line. We will either uphold the freedoms baked into our Constitutional Republic, or we will scrap the entire project in the name of security as we wage, endlessly, this futile, costly, and ultimately self-defeating War on Terror.

In short, if the government says you’re a terrorist, it has the right to detain you in military prisons for as long as it likes: you have no rights as a designated “terrorist”. So much for habeas corpus.

December 4, 2011

The Economist looks at Seasteading

Filed under: Law, Liberty, Politics, Technology — Tags: , , , — Nicholas @ 10:48

And it manages to avoid the mocking tone that’s common to most articles on this topic:

THE Pilgrims who set out from England on the Mayflower to escape an intolerant, over-mighty government and build a new society were lucky to find plenty of land in the New World on which to build it. Some modern libertarians, such as Peter Thiel, one of the founders of PayPal, dream of setting sail once more to found colonies of like-minded souls. By now, however, all the land on Earth has been claimed by the governments they seek to escape. So, they conclude, they must build new cities on the high seas, known as seasteads.

It is not a completely crazy idea: large maritime structures that resemble seasteads already exist, after all. Giant cruise liners host thousands of guests on lengthy voyages in luxurious surroundings. Offshore oil platforms provide floating accommodation for hundreds of workers amid harsh weather and high waves. Then there is the Principality of Sealand, a concrete sea fort constructed off Britain’s coast during the second world war. It is now occupied by a family who have fought various lawsuits to try to get it recognised as a sovereign state.

Each of these examples, however, falls some way short of the permanent, self-governing and radically innovative ocean-based colonies imagined by the seasteaders. To realise their dream they must overcome some tricky technical, legal and cultural problems. They must work out how to build seasteads in the first place; find a way to escape the legal shackles of sovereign states; and give people sufficient reason to move in. With financing from Mr Thiel and others, a think-tank called the Seasteading Institute (TSI) has been sponsoring studies on possible plans for ocean-based structures and on the legal and financial questions they raise. And although true seasteads may still be a distant dream, the seasteading movement is producing some novel ideas for ocean-based businesses that could act as stepping stones towards their ultimate goal.

November 29, 2011

Comparing the Tea Party and Occupy movements

Filed under: Economics, Liberty, Politics, USA — Tags: , , , , , — Nicholas @ 16:04

H/T to Jon, my former virtual landlord, for the link.

European democracy is now “the preserve of right-wing populism”

Filed under: Europe, Government — Tags: , , , , — Nicholas @ 09:09

Frank Furedi on the urge to omit democracy from European government:

Over the past month, it has become clear that the European Union doesn’t simply suffer from a democratic deficit; rather, it has decided that in the current climate of crisis and uncertainty, the institutions of government must be insulated and protected from public pressure. In Brussels, and among an influential coterie of European opinion-makers, the idea that ordinary people have the capacity to self-govern is dismissed as at best a naive prejudice, and at worst a marker for right-wing populism.

As we shall see, this desire to renounce the politics of representation is by no means confined to EU technocrats. To no one’s surprise, many businesspeople and bankers also prefer the new unelected governments of Greece and Italy to regimes that are accountable to their electorates. And such elitist disdain for nations’ democratic representative institutions is also shared by sections of the left and the intelligentsia, too. So in his contribution on the crisis of democracy, Jürgen Habermas, the leading leftist German philosopher, writes off national electorates as ‘the preserve of right-wing populism’ and condemns them as ‘the caricature of national macrosubjects shutting themselves off from each other’.

Indeed, it isn’t the old-fashioned conservative detractors of the multitude who are at the forefront of the current cultural turn against democratic will-formation — no, it is liberal advocates of expert-driven technocratic rule who are now the most explicit denouncers of democracy. The current political attack on the principles of representative democracy is founded on three propositions. First it is claimed that the people cannot be trusted to support policies that are necessary for the preservation and improvement of society. Secondly, it is suggested that there is an important trade-off to be made between democracy and efficiency, and that in a time of crisis the latter must prevail over the former. And finally, anti-democratic ideologues believe that governments, especially democratic governments, have lost the capacity to deal with the key problems facing societies in today’s globalised world.

November 1, 2011

Niall Ferguson on the West’s “killer applications”

Filed under: Economics, History, Liberty — Tags: , , — Nicholas @ 13:08

Niall Ferguson points to several key institutional innovations that were key to the rise of the West, compared to the rest of the world:

The West first surged ahead of the Rest after about 1500 thanks to a series of institutional innovations that I call the “killer applications”:

1. Competition. Europe was politically fragmented into multiple monarchies and republics, which were in turn internally divided into competing corporate entities, among them the ancestors of modern business corporations.

2. The Scientific Revolution. All the major 17th-century breakthroughs in mathematics, astronomy, physics, chemistry, and biology happened in Western Europe.

3. The Rule of Law and Representative Government. An optimal system of social and political order emerged in the English-speaking world, based on private-property rights and the representation of property owners in elected legislatures.

4. Modern Medicine. Nearly all the major 19th- and 20th-century breakthroughs in health care were made by Western Europeans and North Americans.

5. The Consumer Society. The Industrial Revolution took place where there was both a supply of productivity-enhancing technologies and a demand for more, better, and cheaper goods, beginning with cotton garments.

6. The Work Ethic. Westerners were the first people in the world to combine more extensive and intensive labor with higher savings rates, permitting sustained capital accumulation.

For hundreds of years, these killer apps were essentially monopolized by Europeans and their cousins who settled in North America and Australasia. They are the best explanation for what economic historians call “the great divergence”: the astonishing gap that arose between Western standards of living and those in the rest of the world.

September 29, 2011

ReasonTV: Prohibition Vogue

Filed under: Government, History, Law, Liberty — Tags: , , , , , — Nicholas @ 13:25

September 20, 2011

About that “ethnic cleansing” in Basildon

Filed under: Britain, Government, Law, Media — Tags: , , , — Nicholas @ 09:10

All the great and the good are girding for battle over the Dale Farm evictions:

A terrible episode of ‘ethnic cleansing’ is looming. It promises to be so bad that a spokesman for the United Nations’ Committee on the Elimination of Racial Discrimination has been helicoptered in to ‘oversee negotiations’. Amnesty International has set up a special ‘priority action’ page on its website, pleading with people to write letters of outrage to politicians. Head-tilting celebrities have turned up to raise awareness about what one journalist refers to as the ‘racist hysteria’ of the coming cleansing, including that grande dame of right-on causes, Vanessa Redgrave. Things are so dire that the BBC has sent in Fergal Keane, its softly spoken, Irish ponderer of all things evil, who doesn’t only wear his heart but also his lungs, liver and spleen on his sleeve, who cut his teeth reporting on the war in Bosnia and the calamity in Rwanda. ‘It’s a very apprehensive situation’, he intoned on last night’s news.

Oh god, what has happened? A new war in Africa? A rekindling of the old wars in Bosnia? No. Basildon Council in Essex in south-east England is planning to evict some Travellers from their plot of land in Dale Farm. That’s all. Yet watching the media coverage, perusing the millions of tweets of tear-stained concern, you could be forgiven for thinking that the so-called Battle of Dale Farm was a rerun of Bosnia 1992. That is because moral opportunists, cause-hunters, those desperate for some political momentum in their lives, have cynically transformed a small-scale spat between a council and some Gypsies into an epochal stand-off between the forces of racist hysteria and the massed ranks of decent UN cheerleaders. It speaks to the desperation of today’s wannabe moral crusaders that they are willing to infuse even the Dale Farm fallout with the kind of simple-minded moralistic lingo they usually reserve for foreign wars.

Of course, the threatened Dale Farm eviction, which was supposed to take place yesterday until the High Court in London imposed a temporary injunction against it, will be bad and distressing for the Traveller families involved. Eighty-six families could be forcibly removed, simply for building homes on land which they own yet which Basildon Council says is protected Green Belt territory. But is that any justification for using phrases such as ‘racist hysteria’ to describe Basildon Council’s actions and even conjuring up the Holocaust to describe the plight of the Travellers, with Vanessa Redgrave talking about ‘what happened during Hitler’s rule’ and demanding that ‘minorities shouldn’t be destroyed’? If there’s any hysteria here, it is among those who fantasise that we’re witnessing a rerun of Nazi evil and that it is down to conscience-exercising celebs and Amnesty letter-writers — the heroes of the hour — to stop it in its tracks.

August 19, 2011

Cage match: Jason Kenney against Amnesty International

Filed under: Cancon, Government, Law, Liberty — Tags: , , , , — Nicholas @ 09:16

Paul Wells on the ongoing war of words between Canada’s immigration minister and the earnest folks at Amnesty International:

Some stories are so odd nobody knows how to handle them. I don’t know how else to explain why Immigration Minister Jason Kenney’s extraordinary public feud with Amnesty International has attracted so little coverage.

Here’s a senior Conservative minister departing from the Conservatives’ normal bland talking points and unleashing a written broadside against a critic. And Kenney’s sparring partner wasn’t a predictable target. It was the Canadian branch of Amnesty, one of the most revered human rights organizations in the world. But that didn’t stop the minister from calling Amnesty’s concerns “poppycock,” “sloppy and irresponsible” and “self-congratulatory moral preening.”

Here’s what the fuss was about: last month, Kenney and Public Safety Minister Vic Toews released the names and photos of 30 fugitives who’d evaded immigration authorities since being found inadmissible because they’re believed to be complicit in genocide, crimes against humanity or war crimes. In short, the ministers were asking the public to help track down fleeing war crimes suspects. The public has stepped up: since the ministers’ announcements, six of the 30 men have been apprehended and three of those six deported.

July 11, 2011

Can the government force you to provide your password?

Filed under: Government, Law, Liberty, Technology, USA — Tags: , , , , — Nicholas @ 09:37

Declan McCullagh discusses a potentially precedent-setting case in Colorado that may determine whether the 5th amendment applies to your personal passwords:

The Colorado prosecution of a woman accused of a mortgage scam will test whether the government can punish you for refusing to disclose your encryption passphrase.

The Obama administration has asked a federal judge to order the defendant, Ramona Fricosu, to decrypt an encrypted laptop that police found in her bedroom during a raid of her home.

Because Fricosu has opposed the proposal, this could turn into a precedent-setting case. No U.S. appeals court appears to have ruled on whether such an order would be legal or not under the U.S. Constitution’s Fifth Amendment, which broadly protects Americans’ right to remain silent.

I’d hope that the protections against self-incrimination would apply in this case, but government power has been expended so far in the last ten years that it would not surprise me if the courts gut this right in their deference to the executive (just like every other time, it seems).

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