Tuesday, January 03, 2012

United States of Homeland Security

President Obama has signed into law the National Defense Authorization Act for Fiscal Year 2012. The signing comes after weeks of equivocation and obfuscation, and a widespread reporting blackout in the major media.

At issue are sections 1031 and 1032, which, in somewhat ambiguous language, seem to provide for the indefinite detention of US citizens without trial, by the military if the government so chooses, if those citizens are classified as terrorists or as terrorist sympathizers.

When it came out of the Senate, the law (then S.1867) was accompanied by Feinstein amendment #1456, which states that the law shall not be "construed to affect existing law or authorities, relating to the detention of United States citizens, lawful resident aliens of the United States or any other persons who are captured or arrested in the United States."

This amendment, however, was a political maneuver to pacify opponents, while proponents believed they already had the ability in question with respect to the detention of US citizens classified as terrorists (which enabled the detention without trial of the US citizen Jose Padilla in 2002, after being classified as an "enemy combatant").

In signing the bill into law, President Obama issued a signing statement clarifying that this current Administration "will not authorize the indefinite military detention without trial of American citizens." This, of course, says nothing about future Administrations, which can reverse signing statements and executive orders at will.

Moreover, the sections in question are blatantly unconstitutional.

Article I Section 9 of the US Constitution says, "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."

The Constitution doesn't specify that habeas corpus applies only to citizens of the US, and British legal custom (the American revolutionists were ethnically British) reinforces the claim that this is an "inalienable right."

The Magna Carta says, "No Freeman shall be taken or imprisoned, or be disseized of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the land." It says, "Freeman" not "subject."

By strengthening the ability of the government to choose by ad hoc action which system of justice applies to which detainees (i.e., the new military established by President George W. Bush under the Military Commissions Act of 2006; or civilian courts), this bill flies in the face of the principle of rule of law, and therefore exemplifies arbitrary government.

In 1944, free market theorist Friedrich Hayek wrote:
"while every law restricts individual freedom to some extent by altering the means which people may use in the pursuit of their aims, under the Rule of Law the government is prevented from stultifying individual efforts by ad hoc action... If the law says that such a board or authority may do what it pleases, anything that board or authority does is legal -- but its actions are certainly not subject to the Rule of Law. By giving the government unlimited powers, the most arbitrary rule can be made legal; and in this way a democracy may set up the most complete despotism imaginable....The Rule of Law thus implies limits to the scope of legislation: it restricts it to the kind of general rules known as formal law and excludes legislation either directly aimed at particular people or at enabling anybody to use the coercive power of the state for the purpose of such discrimination. It means, not that everything is regulated by law, but, on the contrary, that the coercive power of the state can be used only in cases defined in advance by the law and in such a way that it can be foreseen how it will be used."
Language like that contained in this law has no place in American jurisprudence, and President Obama, as a "constitutional scholar" ought to know better.

I guess it takes a constitutional scholar to most effectively dismantle the constitution.

The government's next step is likely to start using this law very selectively and carefully establishing precedent. Then, gradually, the scope of the law will be extended, using legal theories like those advanced by John Yoo under Bush II, or though a classified legal interpretation such as that described by Senators Mark Udall and Ron Wyden.

But Obama is the lesser of two evils, right?

Tuesday, December 27, 2011

Irrational Contagion

Informed, rational debate is a cornerstone of American ideology. The American constitutional republic is a clear implementation of European Enlightenment Rationalist ideals.

Conservatives want government to keep its hands off their Medicare. They're going to get what they asked for and they're not going to like it.

Conservatives claim government can't run anything efficiently, but that government-run healthcare will put private insurers out of business. The healthcare industry seems to be doing just fine despite Medicare and Medicaid; the health care industry is making out like a bandit.

Conservatives criticize Muslims for wanting theocracy, and advocate returning the US to its "Christian roots."

Conservatives think we need to cut back the public sector -- except the military, which at 5% of GDP, is a pretty sizable chunk of the public sector (1/3 of federal spending).

Conservatives claim to oppose subsidies on principle, but promote school vouchers, expect free roads, advocate increased spending on "national security," and hold that corporate welfare is beneficial to ordinary citizens. "National security" is the oldest subsidy program in the United States: 80% of the federal budget under George Washington's administration went to Indian eradication. America was built on subsidies and genocide, not entrepreneurial initiative: railroad subsidies and land grants fueled the Westward expansion, which was more about the advance of technologies like the telegraph than it was about the rugged individualist squaring off against the wilderness. In this sense, conservatives do hold traditional values.

Conservatives believe in traditional values, and uphold entrepreneurs has the epitome of these values, despite the fact that entrepreneurs get ahead by innovating -- that is, overturning tradition. It was the new, urban, bourgeoisie that displaced the feudal system in the Middle Ages, and it was the bourgeoisie that overthrew the monarchy in the 18th Century. Capitalism is the enemy of tradition.

Conservatives want competition, which is unpredictable if it is fair; and they also want stability in the markets to guarantee a return on their investments. They blame regulation for causing "uncertainty," despite the fact that accepting risk is a central feature of entrepreneurialism, which they hold to be quintessentially American.

Conservatives oppose stem cell research because it destroys embryos, but have no problem with fertility clinics, which also destroy embryos.

Conservatives oppose biological Darwinism, but embrace social Darwinism.

Conservatives claim to be religious, but have no compassion for the poor or the sick. They believe we're all sinners, and that we need laws like the Ten Commandments and the Golden Rule to guide our behavior; but somehow, we're more trustworthy where large sums of money are involved, and industry suffers from too much regulation.

Conservatives want government to stay out of business, but expect their elected officials to create private sector jobs.

Conservatives oppose "activist judges," but uphold an individual right to bear arms, which is the result of "activist judges." Conservatives often ignore the first clause in the Second Amendment, "A well regulated militia being necessary to the security of a free State," which, as a preamble, serves the purpose of a legal "whereas" clause. If there is an individual right to bear arms, it is the result of "activist judges." They support the NRA as though it were a civil rights organization, when in fact, it is an industry trade group.

Conservatives disdain the mainstream media, but cultishly adhere to the Fox News worldview -- the most watched cable news channel -- part of a multi-billion dollar media empire, including the Wall Street Journal.

Conservatives want lower taxes so they can "starve the beast," but disparage anybody who is too poor to pay federal income tax.

Conservatives claim to love the Constitution, but despise the federal government.

Conservatives claim to love liberty and marriage, but want to dismantle the Bill of Rights for the sake of national security, and refuse to let gay couples marry.

Conservatives point to dysfunctional government as evidence that government itself is a threat, but would never point to the contemporary rise in divorce rates as evidence that the institution of marriage is a problem that should be abolished.

Anything follows from a contradiction. Even though conservatives believe that their positions represent established, well-reasoned principles, they are conditioned by the media to exhibit knee-jerk reactions in response to stock key phrases. With respect to the vehemence with which conservatives advocate their positions, it is worth noting that hardly anybody ever actually sees the people they elect; voters give authority to "personalities" constructed through the media. The media then uses the authority of these constructed personalities to further shape the behaviors and attitudes of voters.

Monday, May 02, 2011


A: We killed Osama bin Laden.
B: Who?
A: Osama bin Laden.
B: ?
A: The Al Qaeda guy?  911?
B: I stopped keeping track of the bastards after we bagged Saddam Hussein.