(Links thanks to the lovely folks at No Treason.)

From the paleo-deviationists to the neo-deviationists, let’s now consider the recent fuss over the latest incisive moral theorizing from Humane Studies wunderkind Vlad Dracula:

If boiling people alive best served the interests of the Wallachian people, then it would neither be moral or immoral.

Since Vlad has since complained that the infidel are distorting what he said (and playing dirty pool, too!), let’s make sure we have it all in its proper context. Vlad has argued at length in several places that the notion of universal human rights is ultimately nonsensical: rights are, on his account, political artifacts, not natural facts, and so claims of rights only make sense within the context of a constitutional order. He argues, further, that because rights are not natural facts, the citizens of one country have no objectively binding obligations to respect the lives, dignity, or autonomy of people in other countries. He cavils that gratuitous cruelty might not be justified; but that this is merely a matter of a sentimental, not a normative should. One of his infidel challengers had the temerity to point out:

His position on the moral significance of foreigners is also incoherent. If they do not have rights, why should we treat them with decency? Can’t we just smash their heads in with hammers, or nuke them, or boil them alive? What is a sentimental should and where does it come from?

To which Vlad replied:

If boiling people alive best served the interests of the Wallachian people, then it would neither be moral or immoral. It would just be grotesque, or indecent, or harsh. But since it doesn’t have any strategic value, we don’t boil people or nuke them. A sentimental should means that most of us find such behavior unsavory, even barbaric–but it doesn’t match up against any grand moral standard etched into a Libertarian Rosetta Stone. To momentarily digress into pop-philosophical obscurantism, it’s intersubjectively wrong, not objectively wrong (i.e. politically circumscribed).

Prince Dracula is well within his prerogatives to demand some direct approach to addressing this more nuanced perspective. So let’s see what we can do by way of a logical response to the argument.

1. If you can’t make significant rights claims independently of a constitutional order, then there is nothing wrong with boiling innocent foreigners alive to serve Wallachian interests, as long as you don’t mind it.

2. But there is something wrong with boiling innocent foreigners alive to serve Wallachian interests, even if you don’t mind it.

3. Therefore, you can make significant rights claims independently of a constitutional order. (M.T. 1, 2)

Thus, Prince Dracula is wrong, and Bargainer and Logan are right. Q.E.D.

You might claim that I have dealt with the Impaler’s (subtle! nuanced!) position in far too short a space; you might even go so far as to claim that I have begged the question against him. No, I haven’t. In fact, he has begged the question. Just as there are no non-question-begging arguments for terrorism, there are no non-question-begging arguments for the permissibility of boiling innocent foreigners alive in order to further Wallachian interests. If Vlad’s argument is valid, the most that he has shown is that his premises are, in fact, incompatible with points of human decency far more clear than any murky Hobbesian musing about the contextuality of rights claims or an alleged state of nature–and having shown that the Hobbesian argument is incompatible with such a plainly obvious point of human decency is as good a reason as any to deny at least one of the Hobbesian premises. It’s certainly not any reason whatever to dismiss human decency. (For more on the nature of proof and the issue of question-begging, see footnote 2 on my argument against Honderich.)

That it is wrong to boil innocent foreigners alive, and that it is wrong because you are doing something wrong to them is blindingly obvious. In fact, it’s so blindingly obvious that even Dracul admits that it is true; his problem is that he cannot live up to his own moral decency intellectually, and so he invents the weasel category of a sentimental should in order to sidestep the dilemma. (It’s worth pausing to note that this is exactly the same move that is made by some who claim that we have no direct moral obligations towards animals–in order to weasel around the fact that they know perfectly well that it’s wrong to inflict gratuitous cruelty on animals. That Vlad’s argument uses the same tactic towards human beings from outside of your own state is telling. And not in a good way.)

The problem here is trying to make sense of the notion of a sentimental should—why is it that we feel horror at contemplating pitching innocent foreigners into the cauldron and boiling them alive? It seems that the sentiment of horror is either a rational or an irrational reaction to the situation. If it’s an irrational response to the situation, then clearly there are no grounds at all to pay the sentiment any heed in making decisions about what we ought or ought not to do; an irrational feeling as such cannot weigh against a course of action. If it’s a rational response to the situation, on the other hand, what would it be that makes it an apt response to the situation? That the deed being done is in fact a ghastly thing to do to another human being no matter what his or her nationality? But Vlad cannot take this stance and still hold onto his Hobbesian argument.

Is the feeling of gut-wrenching horror justified by something else? If so, what? Rule-utilitarians might claim that it’s justified by the fact that cultivating feelings of horror at such human suffering is conducive to respecting the rights of those who Vlad would allow to have legitimate rights-claims (fellow citizens and parties to relevant treaties). But that would make the feeling of horror at boiling foreigners alive into nothing more than a projective error–useful, perhaps, for people who can’t compartmentalize their feelings for foreigners from their feelings for fellow citizens; but the emotional constitution that would be most reflective of the actual state of affairs would be one that sharply distinguishes between the real obligations not to torture fellow citizens and the free-for-all that is (according to Vlad’s argument) permitted against aliens.

Or you might, instead, claim that, because we’re talking about sentimental attachments here, questions of justification by some state of affairs outside of the sentiment don’t even make sense–it’s just part of being a human being that a horror at torturing other human beings is part of your emotional frame. But this won’t do, either: the sentimental should that Vlad wants to invoke is supposed to be something that enters into our reasons for action; that is, it is something that forms a part of why we do or do not act in a particular way. Emotions are not bludgeons that blindly knock us in one direction or another; they express reasons for or against actions, and as such have to stand or fall as reasons for action, justified or unjustified by how accurately they express the real fact of the matter.

The fact of the matter is that when you throw someone into the cauldron and fill it with boiling water while they scream in agony until they die, you have done something wrong–even if they are not subject to the same state as you are, and even if the state you are subject to is in a state of war with the state that they are subject to. You have done something wrong because you did something wrong to the poor fellow you just boiled alive. If Vlad thinks he has an argument against that, let him bring it out–but he shouldn’t be surprised when it receives nothing more than a certain gesture of the hands.

Update 2004-12-05: Sorry, I got things mixed up a bit. Turns out this was actually about Max Borders writing about the interests of the American people, not about Vlad the Impaler and the Wallachian people. My bad.

During the late unpleasantness, in spite of a sharply divided electorate and sharply worded debate, there was one point of agreement that you could always count on. To illustrate, here’s George Bush, trying to lay the smack down on Kerry:

When our country is in danger, it is not the job of the president to take an international poll; it’s to defend our country.

And here’s John Kerry doing his best to sidestep the smack down by insisting that he agrees with Bush on the principle:

What I said in the sentence preceding that was, I will never cede America’s security to any institution or any other country. No one gets a veto over our security. No one.

Of course, Bush and Kerry disagree over something here: they disagree over what Kerry’s position is. But of course that disagreement reveals a fundamental agreement between the two: both of them accept the underlying premise that it would be absolutely damning for a Presidential candidate to tie decision-making about when and where the American military is deployed to another country or an international body. In fact, this is a point of political dogma repeated endlessly by almost everyone who has anything at all to say about the matter. Here’s William Saletan in Slate:

It’s clear from Kerry’s first sentence that the “global test” doesn’t prevent unilateral action to protect ourselves. But notice what else Kerry says. The test includes convincing “your countrymen” that your reasons are clear and sound.

And here’s Dick Cheney, direct as ever:

We heard Senator Kerry say the other night that there ought to be some kind of global test before U.S. troops are deployed preemptively to protect the United States. That’s part of a track record that goes back to the 1970s when he ran for Congress the first time and said troops should not be deployed without U.N. approval.

Now, I think that the Right is obviously wrong on the exegetical question of what Kerry actually said and believes, but I won’t belabor the point here (if you want it belabored, I suggest Roderick’s discussion at Austro-Athenian Empire). Let’s take it for granted that neither Bush nor Kerry would give another country a veto over American security policy, and move on to the critical question: do they have legitimate grounds for refusing to do so?

You’d take it from the way the debate has gone that it’s self-evident that they do: everyone in the droning classes seems to take it for granted that no sane governor could reasonably think that you ought to give other countries a veto over American security policy. Yet both Bush and Kerry were running for President–an office whose legal authority is supposed to derive from the Constitution of the United States. And the Constitution (which you swear to uphold when you become President) says, inter alia, that

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. (Article VI, emphasis added)

One of those treaties made under the authority of the United States is the Charter of the United Nations, which was ratified by the United States government in 1945. If you accept the Constitution as legally binding, then you have to accept the provisions of the United Nations charter as legally binding; and among those provisions are:

Article 2

…

§ 2. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter.

§ 3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.

§ 4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

…

Article 33

§ 1. The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.

§ 2. The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means.

…

Article 39

The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

Article 40

In order to prevent an aggravation of the situation, the Security Council may, before making the recommendations or deciding upon the measures provided for in Article 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable. … The Security Council shall duly take account of failure to comply with such provisional measures.

Both Bush and Kerry claim to recognize the legal authority of the Constitution and the treaties made under it, including the U.N. Charter. But the plain text of the U.N. Charter gives other countries a veto over U.S. military policy, through the apparatus of the United Nations. Except in cases of actual invasion (which are exempted Article 51), the United States government cannot go to war without U.N. approval without violating the U.N Charter, and thus also the Constitution.

Now, as an anarchist, I don’t have a dog in this fight. I couldn’t care less about the United Nations: I’d argue that trusting a body constituted by the world’s heads of state and their representatives to protect international peace and human rights is about as wise as trusting a League of Foxes to guard the hen-house (and for precisely the same reasons). For that matter, I don’t recognize the legal authority of the Constitution and I don’t think that the pretenders to government office have any legitimate authority to ensnare the rest of us in legally binding treaties. But I do care about bad arguments. If there’s anyone who doesn’t agree with my peculiar views on the nature of legal authority, it’s John F. Kerry and George W. Bush; they claim to recognize the Constitution as legitimate and either one would swear to uphold it after being elected. If they really believe what they claim to believe about the law, then a decent sense of intellectual shame would demand that they either:

1. … accept other countries’ veto power over the United States’ decisions to go to war,

2. … move to formally withdraw the United States from the United Nations, or

3. … stop claiming that the Constitution is the basis for their legal authority

Something’s got to give; you can’t hold all the positions that John Kerry and George Bush loudly insisted that they hold without getting yourself stuck in a rank inconsistency. It may be too much to expect intellectual decency from politicians and political discourse. But if political discourse has lost its sense of shame, then the sooner it learns it again, the better. And someone has got to start the teaching, by example.

As the French might say, écrassez l’inf?@c3;a2;me.

(Link thanks to Pandagon 2004/11/14. I appreciate the commentary, Jesse, but I could have done without the joke about sexual assault.)

John Ashcroft has never been one to shy away from pushing the envelope; for the latest example, consider his parting words for the judicial branch.

Ashcroft:

Without referring to specific adverse rulings on the treatment of detainees or enemy combatants, Ashcroft blasted activist judges for encroaching on the powers that he insists belong solely to the president in wartime.

The danger I see here is that intrusive judicial oversight and second-guessing of presidential determinations in these critical areas can put at risk the very security of our nation in a time of war, Ashcroft said.

… he spent most of his 30-minute speech defending the administration policies against federal judges critical of the government’s terrorism policies.

Ideologically driven courts have disregarded and dismissed the president’s evaluations of foreign policy concerns, in favor of theories generated by academic elites, foreign bodies and judicial imagination, Ashcroft said.

Slimy judicial activist elites:

Article I

Section 9. … 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.

…

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; … nor be deprived of life, liberty, or property, without due process of law; …

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Charges of judicial activism have a long history on the Right. It used to be that judges were denounced as judicial activists for upholding limits to government power that go beyond what is, strictly speaking, spelled out in the Constitution. Ashcroft has an even better idea: now you can denounce judges as judicial activists for refusing to go beyond what is, strictly speaking, spelled out in the Constitution in order to find exceptions to limits on the power of the Executive.

(You may note that there are accomodations for wartime exigencies in Article I §9 and Amendment V; true, but none of those exceptions apply to the current set of cases, and none limit the protection of Amendments IV, VI, or most of the clauses of Amendment V, either. Nowhere are the phrases the president’s evaluation of foreign policy concerns or except when the security of our nation in a time at war is at risk to be found.)

Here’s how the strict constructionists in the audience greeted this exciting new discovery:

As Ashcroft arrived Friday, he received a long and roaring standing ovation from a hotel ballroom filled largely with leading conservative lawyers. In his speech to the Federalist Society’s national convention, Ashcroft made no direct mention of his decision to step down as the nation’s top law enforcement official.

Ashcroft’s stepped down, but no doubt the Right will continue in its campaign against the creeping menace of judicial activism, marching forward as they always have: that is, by denouncing defenders of individual rights and proudly championing the absolute power of the Monarch as ordained by Almighty God.

O it’s time to let mighty the Eagle soar…

Further reading:

• GT 2004/06/24: Pro-Choice on Everything, Part I
• GT 2004/05/30: Why We Marched
• GT 2003/12/20: Belated birthday presents for the Bill of Rights
• GT 2002/08/10: Judge Doumar has made his ruling; now let him enforce it
• GT 2002/06/11: An Important Update from the War Information Council

Thanks to our War President, equating political dissent with an act of treason has become something of a national pastime in Republistan. Tom Tomorrow has already commented on this phenomenon in connection with televised sociopath Ann Coulter, but while Coulter is certainly a dangerous lunatic there is at least this one point in her favor: a significant part of her book is devoted to documenting what she takes to be overt acts of war, and material assistance to the enemies of the United States (especially the Soviet Union). Of course, her case is based mainly on distortions, fabrications, and nonsense; but it still puts her a step above the foot-soldiers of tyranny who simply drag out the language of “aid and comfort to the enemy” explicitly and directly on the basis of nothing more than peaceful dissent from the President’s war policy.

Consider, for example, a fellow named Dan Kuykendall, who (during my time in the Auburn Peace Project) decided that it would be best to notify the Opelika-Auburn News that rallies opposing the war on Iraq give aid and comfort to the enemy, and mused that Isn’t the definition of treason giving aid and comfort to the enemy? Since then, the rhetorical tactics haven’t changed much; consider this contribution to Blockheads for Bush, commenting on Ted Kennedy’s recent missives against Mr. Bush’s war:

Let us be clear about this – there are legitimate criticisms to be made about the liberation of Iraq; about whether or not we should have gone in, and about the manner in which we went in, and about how we have performed since we went in; there are, however, no legitimate criticisms to be raised about the reason we went in, nor can there be any legitimate point for an American to make other than that we should be doing more to win this fight. To criticise the reasons we went in and/or to do anything which indicates an unwillingness to see this thing through to final victory is the statement of a fool, or a traitor. No two ways about it.

We’ve given the left a pass long enough – its [sic] time for those who are of leftwing opinion to make their final call: which side of the river are you on? If you’re on America’s side, then you want total and overwhelming US victory – and just to really spell it out; this means that our enemies are dead or begging for mercy. I challenge you – choose, and let you be known for what you are by what you choose – patriot, or traitor.

(Subsequent comments make it clear that most of the Bush League takes the traitor horn of the dilemma. Some offer the charitable suggestion that Ted Kennedy might be both stupid, and a traitor.)

I sent a letter to the editor of the Opelika-Auburn News in reply to Mr. Kuykendall back in April 2003; since the underlying rhetoric hasn’t changed any in the ensuing year, the reply was a useful template for my comment on the BfB article:

Treason is a federal crime, defined in Article III, Section 3 of the Constitution, which says Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. Apparently at least some of the commentators on this weblog have read the passage, as they refer to the aid and comfort language. Unfortunately, it seems that they have also failed to read Amendment I, which reads Congress shall make no law … abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

The Founders did their best to make very sure that the Constitution prevented the government from using charges of Treason to suppress peaceful dissent. That is why the language of the article clearly states that the law of treason to be invoked only for overt acts with the intent to wage war on the United States, or to provide concrete, material assistance to those who do.

If anyone has evidence that Ted Kennedy has committed such a serious federal crime, they should contact the FBI field office in Boston at (617) 742-5533. Otherwise, baseless insinuations against Mr. Kennedy, for nothing more than disagreeing with George W. Bush’s foreign policy, amounts to little more than a shameful proposal for tyranny. You have every right to agree or disagree with Mr. Kennedy’s policy; you have no right to make such scurrilous attacks against fellow citizens on the basis of mere political disagreement.

Posted by: Rad Geek at April 10, 2004 11:51 AM

The comment has been posted directly on the Blockheads for Bush article; we’ll see how long it remains in their echo chamber as it was posted.

It’s been a rough century for the Bill of Rights. It started out with Woodrow Wilson’s totalitarian Espionage and Sedition Acts, proceeded through Franklin Roosevelt’s mass jailing of dissidents and the Vietnam era’s brutal COINTELPRO, and has ended up with Bush Jr.’s USA PATRIOT Act, suspension of habeas corpus, and periodic attempts to push through even more totalitarian surveillance legislation. My intent, however, is not to retell the rather disgusting tale of assaults on civil liberties during wartime (that tale is retold nicely enough by Justin Raimondo, in the context of the John Walker Lindh trial). Rather, I want to wish a belated happy birthday to that good old parchment barricade against tyranny. December 15, 2003 was the 212^th anniversary of the passage of the first ten Amendments to the Constitution.

The Executive Branch has not been very kind to the Birthday Bill. Consider, for example, that most famous of amendments:

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

And another Amendment, less frequently cited but no less important, which the Founders considered absolutely essential to preventing monarchial tyranny from the Executive:

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Consider, on the other hand, the conduct of the FBI — and not just the conduct, but the overwhelming sense of entitlement — in pissing all over both of these barricades for liberty:

What a completely surreal evening I had last night. As I’d mentioned, I reluctantly dropped John off at the airport around 4pm or so. I went with him to the baggage counter and waited while he filled out the paperwork to declare his firearms, walked with him to the security line, and kissed him goodbye. I thought I might need some distraction, so I had agreed to meet some friends for dinner at 7pm. I went home, changed, and then headed to the restaurant. Just as I pulled into the parking lot, my cell phone rang.

I said hello, and a polite stranger asked if I was [my name], identified himself as a police officer, then asked if I was safe and okay. My forehead wrinkled, and I said I was. The officer then asked if I knew John, and whether he had (a) been staying with me this past week and (b) brought firearms with him for the purpose of shooting at the local range. I said yes to both, and jumped to the conclusion that John must’ve not cleared each and every gun — I know I’m obsessive about checking mine when I travel — it wouldn’t be unreasonable for him to have left one magazine in when dealing with the number of guns he brought with him. So the officer then asked if I’d mind coming to the airport to talk to him.

. . .

They told me that John was in a little trouble. They dodged my questions at first, and then said he had brought a firearm with him that he had not declared. The way in which they said it implied that he had a gun I hadn’t seen, that it was loaded, and that it was on his person. They didn’t outright say any of those things — but they very adroitly led me right to that conclusion. Then they started asking me questions. Who was I, how did I meet John, what were our political views, did we meet with others who might have similar political views on his visit… lots of things that were clearly leading right to the idea that he was some sort of militia nut who was here on a recruiting mission or some such.

They started out treating me like some poor stupid femme who’d been unknowingly lured into some sort of illicit affair with a Very Dangerous Fellow. On top of that, both were extremely flirty. They seemed to think that I didn’t know John had any guns with him. When I said I did, they wanted to know how many and what types. Then whether I knew that he had illegal high capacity magazines with him. I said that so far as I knew, all of his high-cap mags were pre-ban and thus not illegal. They asked if I knew he’d made modifications to his guns. I said sure, he’d put a new trigger in his Glock while he was here. Stupid, stupid questions calculated to make me think he was some sort of maniac.

Then they moved on and asked me if I knew what kind of literature he had with him.

Fortunately, this is not just a jeremiad about the decline and fall of civil liberties in America. The Executive branch is not the only branch of government there is (gee, it’s almost like they designed the Constitution with this sort of thing in mind…), and the news is not all doom and gloom. In particular, two federal courts have given the Bill of Rights a belated birthday present, by striking down the Bush administration’s assaults on habeas corpus and the Fourth Amendment in the case of Abdullah al-Mujahir (nee José Padilla) and the internment camp at Guantanamo Bay.

The Bush administration, of course, is not about to take this lying down, and they are planning to appeal this up to the Supreme Court if they have to. Good — let the battle be joined, just in time for an election year when the Left and civil libertarians need to mobilize. In the meantime, take a moment to celebrate. Give the Bill of Rights a reading, and say a thank you to the Second and Ninth Circuit Courts of Appeals. Happy birthday Bill of Rights — and here’s hoping for many happy returns.

For further reading:

• GT 2002-08-10: Judge Doumar has made his ruling; now let him enforce it.
• GT 2002-06-11: An Important Update from the War Information Council