Here’s a predictable pattern.

1. A new revelation is published or broadcast about a controversial new policy or by-product of the War on Terror. (Abu Ghraib/torture, extraordinary rendition, the outing of Valerie Plame, an alleged plan to attack Iran, secret propaganda in Iraq, FISA-free NSA surveillance of Americans, and so on.)
2. Some supporters of Washington’s foreign policy wonder whether the reporter or news organization or leaker who revealed the information might be guilty of aiding and abetting the enemy.
3. The media, Democrats, and anti-war activists are criticized for piling on, for ignoring worse crimes committed by the enemy, and for hysterically exaggerating the underlying issue.
4. Think-pieces are written about how this controversial or possibly illegal policy should actually be legalized and embraced.
5. Some self-described small-government conservatives and libertarians exasperatedly ask if critics of the policy understand that we’re at war, and explain how this latest kerfuffle illustrates why libertarians should never be invited to the grown-ups’ table when discussing foreign policy.

— Matt Welch, Hit and Run 2006-01-05

… to which we can add,

6) The critics respond with expressions of horror at the idea that some particular group of people could be treated that way — American citizens, in particular — without giving any grounds for regarding that group of people as morally or politically special.

As for myself, I’m tired of softball. So, come one, come all, and take the A Fortiori War Powers Quiz, Take One. Liberal hawks, liberal doves, progressives, leftists, anarchists, and pro- and anti-war libertarians are all invited to play. Previous respondents — Cathy Young, Bill at So Quoted, Anthony Gregory, Matt Welch, Blar, etc. etc. — are all especially invited to play. (You should note that unless you scored pretty high on Welch’s quiz, your answers to this one are unlikely to be all that interesting — the a fortiori will run from your answers to Welch’s questions toward your answers to mine, rather than vice versa. Don’t worry, surveillance hawks; the A Fortiori War Powers Quiz, Take Two will be coming in a few days, and will have more interesting diversions for you.)

Anyway, here’s how the quiz works. The unifying theme is How far is too far in the War on Terror? The question is a bit open-ended, so it helps to come down to brass tacks, with yes / no hypotheticals. First, take Welch’s quiz to get the first ten. The next thirteen are below. My answers to every one of them is No. What about yours?

1a) Should the National Security Agency or CIA have the ability to monitor foreign phone calls or e-mails without obtaining judicial approval?

1b) Should the National Security Agency or CIA have the ability to monitor domestic phone calls or e-mails with judicial approval?

1c) Should the National Security Agency or CIA have the ability to monitor foreign phone calls or e-mails with judicial approval?

2) Should the government have the ability to hold a citizen of a foreign country without charge, indefinitely, without access to a lawyer, if he is believed to be part of a terrorist cell?

3) Can you imagine a situation in which the government would be justified in waterboarding a citizen of a foreign country?

4) Are there foreign journalists who should be investigated for possible treason or other crimes against the United States? Should Sedition laws be re-introduced?

5) Should the CIA be able to legally assassinate people in countries with which the U.S. is at war?

6) Should any cops (whether concerned with terrorism or not) be given every single law-enforcement tool currently available in non-terrorist cases?

7a) Should law enforcement be able to seize the property of a suspected (though not charged) foreign terrorist, and then sell it?

7b) Should law enforcement be able to seize the property of a charged (though not convicted) American terrorist, and then sell it?

7c) Should law enforcement be able to seize the property of a charged (though not convicted) foreign terrorist, and then sell it?

7d) Should law enforcement be able to seize the property of a convicted American terrorist, and then sell it?

7e) Should law enforcement be able to seize the property of a convicted foreign terrorist, and then sell it?

Now compare and contrast with your answers to these questions with the analogous questions from Matt Welch’s quiz. Are they the same or different? If they different, what, if anything justifies the difference in your answers?

I, too, would love to know.

Roderick’s recent post (2006-01-06) reminded me: Cory Maye needs our help, and we need to keep eyes on his case. About a month ago, I mentioned the case of Cory Maye in the course of my commentary on the premeditated murder of Tookie Williams by the state of California. Maye was sentenced to die by poisoning on January 23, 2004. Now, as far as the death penalty is concerned, I just don’t care whether Maye is innocent or guilty. Innocent or guilty, the state of Mississippi has no right to kill him when he poses no threat; that’s premeditated murder, with or without the black hood and the Crown on the heads of those responsible. (See GT 2004-12-15: God damn it and GT 2005-12-13: Murder in the first for further discussion in the context of different cases.)

But there are good reasons to think that Maye is innocent, and that the crime of murdering him would be doubly foul. Radley Balko has been talking this up since discovering the case in early December. There are lots of legalistic worries about the conduct of the police and the progress of the trial. It’s important to keep track of those for the purposes of defending Maye’s life, but it’s also important to remember that the pretext on which the narco-cops were storming Maye’s house in the first place — the so-called War on Drugs — is itself a massive, systematic, and senseless paramilitary assault on innocent people, for committing the crime of taking drugs without a permission slip — an act which is at worst foolish, perhaps a vice, but which can at worst hurt only themselves. The cops, in other words, had no damn right to storm Maye’s house, and the state of Mississippi couldn’t give them one even if they had complied with all the official paperwork (which it seems that they didn’t). Whether or not a judge wrote them a warrant that covered Maye’s home, they had no right to be there. Whether or not they knocked and identified themselves, they had no right to break into Maye’s house by force. And when an armed gang that has no right to be there invades your home without your permission and comes after you, you have a right to defend yourself, by force, if necessary. Balko’s right to say:

Maye’s case is an outrage. Prentiss, Mississippi clearly violated Maye’s civil rights the moment its cops needlessly and recklessly stormed his home in the middle of the night. The state of Mississippi is about to add a perverse twist to that violation by executing Maye for daring to defend himself.

— Radley Balko, The Agitator (2005-12-17): Cory Maye

But it’s important to note that that’s true even if the police and D.A.’s version of the story were (as it almost certainly is not) true from beginning to end. The War on Drugs is indeed a war — but it’s a war on people, not substances, and those people have done nothing to deserve being attacked by the paramilitary forces of the State. The warriors are trying to make Cory Maye its latest casualty. They must be stopped.

WikiPedia’s article on Cory Maye summarizes the details of the case. There’s a new website, MayeIsInnocent.com, that provides a clearing-house for information and news about the fight for Maye’s life. If you want to help, here are three things you can do:

1. Write a couple letters: Read over the information on Maye’s case at The Agitator, at WikiPedia, and at MayeIsInnocent.com. Write a polite, well-considered letter to Governor Haley Barbour (for an example, see Silent Running (2005-12-10): An Open Letter) mentioning the legalistic details that I’ve mostly set aside here, and ask him to grant clemency or a pardon. Be sure to mention what you’re going to do next: take that letter, pare it down to 300 words or fewer, make it a bit less polite, and send it to your local newspapers. Be sure to include URIs for Balko’s coverage and/or MayeIsInnocent.com. The more heat that Barbour gets, and the more that it makes its way into the Op-Ed pages of newspapers across the country, the more pressure there will be to act. And the more that it appears in those Op-Ed pages, the more people will learn about the case.

2. Post news or commentary on your website about the case. If you haven’t done so already, get on it. If you have, mention anything that’s new since your last post. Why? Because this is important, but it’s in danger of receding into bloggers’ archive sections and out of public sight. Keep the debate alive online and it will have a better chance of reaching more ears both online or offline. If you’ve written letters, you can post copies online for other people to see. If it’s nothing more than a Cory Maye is still in jail and the state of Mississippi still threatens to murder an innocent man, there’s nothing wrong with that, either. Because he is still in jail and the state of Mississippi is still threatening to murder an innocent man; the sword over his head hasn’t moved away just because your attention has. (If you’re the sort to post buttons or banners at the top of your page, Roderick (2006-01-08) and Laura Denyes (2006-01-04) have some suggestions. Don’t forget to link the image to MayeIsInnocent.com or a similar clearing-house.)

3. Help Cory defend himself in court. If you have the money, you can help by contributing to [Cory Maye’s legal defense fund]. Even small contributions ($10, $20) can be immensely helpful in a case like this. Maye’s case is on appeal, but his current lawyer is a public defendant and needs financial help to be able to continue his investigative and advocacy work on Maye’s case. Contributions can be sent by mail to:

   Cory Maye Justice Fund
   c/o R.E. Evans
   P.O. Box 636
   Monticello, MS 39654

   See Balko’s post (2005-01-06 for the details.

Battlepanda (2005-12-13) suggests some more ways you can try to raise a ruckus about this. Let’s get on with it: an innocent man’s life is on the line.

Here’s a typical, arbitrarily selected attempt by mainstream liberals to explain what’s wrong with the Bush administration’s enthusiastic support undisclosed, unchecked, and unaccountable domestic spying. This comes from Hilzoy at Political Animal (2005-12-18):

What George Bush has done, by signing his Presidential Order, is to produce exactly that accumulation of powers that Madison and the other framers of the Constitution were determined to prevent. He has decided to circumvent the courts’ power to decide whether the government has enough evidence to place someone under surveillance, thereby removing a crucial check on executive power, and arrogating one of the powers of the judiciary to himself.

Moreover, the power he seeks to strip the judiciary of is not a peripheral one; it is essential to the Fourth Amendment prohibition against unreasonable searches and seizures. …

In addition, in deciding that he has the right to disregard clear statutes, President Bush is arrogating to himself the power of the legislature as well. The Legislature has the power to make laws; the Executive carries out the laws the Legislature has written. Had George W. Bush wanted to, he could have gone to Congress and asked it to change the laws. Instead, he decided to simply ignore them: to act as though he had the powers that the Constitution reserves to the legislative branch.

He is, essentially, claiming that he has the right not just to execute the laws, but to write them himself, and then to judge their application. …

But if it’s hard to reconcile the administration’s position with the Constitution and the views of the framers, it’s even harder to reconcile it with anything remotely resembling common sense. Because, on this view, the President can do anything he wants — anything at all — during wartime. …

In this country we do not have an absolute monarch. We have a President who is bound by the rule of law, just like the rest of us. When he asserts the right to set the laws and the Constitution aside, and to arrogate all the powers of government in his hands in secret so that he can use it unchecked, we have an obligation to make it clear that he is wrong.

Now, to be clear, I think that the Right’s legal brief on behalf of the Bush administration is both specious and frankly dishonest; they’re wrong, and Hilzoy is right, about the question of positive law. But here’s the open question. There are actually two separate, or separable, objections that Hilzoy is lodging against the use of undisclosed, unchecked, and unaccountable domestic spying on in these passages. Specifically, Hilzoy is objecting both that

1. Bush has to claim the authority to disregard existing laws and the Constitution in order to justify undisclosed, unchecked, and unaccountable domestic spying (i.e., he’s operating outside of the standing law); and also

2. engaging in undisclosed, unchecked, and unaccountable domestic spying, in and of itself, involves arrogating all the powers of government into his hands (i.e., he’s diminishing the separation of powers, and thus claiming the right to more power than one person should have).

It should be clear that these two objections are separable. The Constitution didn’t have to be written with provisions for the separation of powers, and the Constitution and the laws can always be changed. If, for example, Bush had gotten Congress to repeal FISA, and, while he was at it, had gotten Congress and the several states to amend the Constitution to repeal or limit the Fourth Amendment, then he wouldn’t be vulnerable to objection 1, but objection 2 would not be affected.

Now, here’s the open question. If Bush had gotten the law and the Constitution changed so as to authorize undisclosed, unchecked, and unaccountable domestic spying, would that have made it O.K.? Would it have even made it substantially less bad?

If it would have, then why would it have? If it wouldn’t have, then why spend so much time and energy stressing the fact that he did tread on the statutory law and the Constitution, if you don’t think that that makes a substantial difference?

Here’s an old joke from the Brezhnev era. I offer it as a parable in light of the recent debate at Catallarchy (2005-12-15) and Unclaimed Territory (2005-12-14) over public objections to the killing of Tookie Williams and the alleged failure of his supporters to properly denounce all the murderous regimes in the world.

A Soviet apparatchik has been assigned to show an American guest around Moscow. They’re standing on the subway platform waiting for the train, which is now a couple of minutes late. The apparatchik is passing the time by showing his guest the map of all the subway stops throughout Moscow and the spotless cleanliness of the platform — a triumph of socialist efficiency and the rational planning of the people’s public works committee. The American nods quietly and agrees that it’s very clean. Half an hour later, the apparatchik is still talking, and there’s still no train in sight; by now he’s moved on to pointing out the ornate beauty of the station and the murals on the walls — a visible manifestation, he says, of the people’s victory, and the workers’ heroic sacrifices. The American says Yes, Sergei Ivanovich, it is very elaborate. After about an hour another train whizzes by without stopping on its way to another station, and the apparatchik (who’s looking pretty nervous at this point) tries to get his American guest to marvel at the latest triumphs of Soviet science and technology that allow the trains to run faster and more quietly than any in Eastern Europe. Finally the American turns to his guide and says, That’s all very impressive, Sergei Ivanovich, but where is our train?

His guide turns very red in the face and blurts out, And what about your blacks in the South?

Further reading

• GT 2005-12-13: Murder in the first

I’ve been thinking for a while that I ought to start a feature leading up to the (upcoming) 5th anniversary of Geekery Today, called Dumb Things I’ve Said. The basic idea being that anyone who spends five years writing regularly on controversial topics is likely to change their views over time, and it’s better to spend your commemorative anniversary posts hammering out your own errors than clapping yourself on the back, because you’ve probably said things you later ended up thinking were pretty dumb. I’m no exception, and what I wrote a couple years ago in belated recognition of Bill of Rights Day is a case in point. I doubt that I’ll actually start the feature, but that won’t keep me from ragging on myself for today, at least.

It’s been 214 years today — December 15th — since the first ten amendments, commonly known as the Bill of Rights, were scribbled onto the end of the United States Constitution by order of the several states and the Congress of the United States. Folks with too much time on their hands have dubbed it Bill of Rights Day and think you ought to celebrate the grand legacy of those ten amendments. A couple years ago, I took the opportunity of the 212th anniversary to sing the praises of the Bill of Rights, to bemoan the erosion of some of their traditional protections, and hope that a brighter day would dawn soon. It was a bunch of nonsense, and I should have known that it was at the time, but it took me a while to really see through the dust that the canonical fairy-tales about legal history kick up.

Not surprisingly, I had started doubting the usefulness of leaning on the Constitution when I became an anarchist. But old cognitive habits die hard, and it wasn’t until last year, when I really started reading about William Lloyd Garrison and the rest of the disunionist abolitionists, that I began to feel anti-constitutionalism in any serious way, and it was largely through the Garrisonians that I came to realize the importance of making your arguments from moral basics rather than from legal hermeneutics. Voting abolitionists, and even Lysander Spooner, insisted on twisting the Constitution every which way they could to avoid the conclusion that it was (1) a pro-slavery alliance, and thus (2) an objective force for evil, the covenant with Death and agreement with Hell that Garrison denounced. But as interesting as Spooner’s argument was, it was really Garrison that was right about the Constitution (as I think Spooner came to realize later in his career); the important thing wasn’t constitutionality, but justice, which is not subject to legislative fiat. The Garrisonians, because so many of them were fervently religious, talked about a higher law than the Constitution; that’s partly right, but in a sense it’s also a matter of a lower, more human law; any serious theory of justice has to start from our ordinary claims to justice and dignity, the kind of demands that we ordinarily address to our fellow human beings (don’t attack me without reason, don’t trash my stuff, mind your own business if it’s not hurting you) rather than the ritual incantations that you might utter before a Court (Eighth Amendment, Public Use Clause, penumbral right to privacy, blah blah blah).

But as of a couple years ago my recognition of all this was nowhere near complete, and so my half-complete anti-statism didn’t stop me from singing the Bill of Rights’ praises, piously hoping that other branches of government would force the Bush administration to stick more closely to it, and absurdly describing it as that good old parchment barricade against tyranny.

Well, the thing about parchment barricades is that they don’t hold up very well against pressure. (That’s why you usually want to make barricades out of mud or bricks, at a minimum.) Constitutions don’t protect liberty; people do. Or don’t, which is the legacy the Constitution of the United States leaves us with today. Whatever protections the Bill of Rights was supposed afford white male citizens from the federal government, and whoever those protections were supposed to be extended to in the present day, we have (just to pick a few arbitrarily-selected examples) the FBI spying on us in secret, increasingly arrogant and militant paramilitary police ([1], [2], [3], [4], [5]) occupying our cities, a rampaging global war machine, deliberate and systematic gutting of habeas corpus, and a Justice Department that seems to believe that it can threaten and arrest people for failing to comply with secret laws whose terms they refuse to disclose. Either the Bill of Rights permits this kind of abuse, in which case it does not deserve the praise of rational people, or it forbids it but is incapable of stopping it, in which case it is useless.

In either case, my whining that this sort of thing oversteps this or that clause is bloody well irrelevant; the problem with invading people’s lives with unwarranted searches and seizures, government-sponsored religious persecution, seizing guns, maintaining a standing war machine, inflicting cruel and unusual punishment, or rounding people up and throwing them in prison forever without charges, is not that they’re unconstitutional; it’s that they’re evil. There may be cases where something is wrong just because it violates some bit of positive law — respect for human life demands that you drive on the side of the road other people drive on, but it’s a matter of arbitrary convention which side that should be — but these are certainly not that sort of case. The right to your own body, to self-defense, to your conscience, to peace and freedom, are prior to any law or compact, the only possible foundation for any just law or legitimate authority at all, and therefore not dependent on the Constitution saying one mumbling word about them.

Human rights don’t need to be written on scraps of paper to be worth defending, and wasting your time and energy wrangling over the right enchantments to invoke The Law on your side is a distraction and a sucker’s bet. I’ll take my rights. You can keep the bill.

Further reading

• GT 2005-09-17: International Ignore the Constitution Day
• GT 2005-09-02: Definition 2
• GT 2005-07-04: Burn, baby, burn
• No Treason! 2005-12-11: Bush Gets it Right