American exceptionalism and the rules of war

Professional soldiers regard war as normal.   The best of them adopt codes of honor that define things that you can do and not do in time of war.

Most of us Americans, during most of our history, have not regarded war as normal.  Our major wars have been fought against enemies we regarded as either outside the bounds of civilization, like the Indians, or evil, like the Nazis.

We believed that war is inherently bad and that, in fighting against evil, the means that brings about the surest and quickest victory is the most moral.

That was the justification for General William T. Sherman’s march through Georgia and General Phil Sheridan’s devastation of the Shenandoah Valley during the Civil War.  The chivalrous Southern generals were shocked (although they didn’t extend their chivalry to black troops).  Sherman’s reply was the war is hell, and there is no way to refine it.

The same kind of thinking was the justification for the Allied bombing of the cities of Germany and Japan, culminating with the atomic bombing of Hiroshima and Nagasaki.  I remember that era, and I don’t think American public opinion then would have tolerated any limitation on the use of force.

But now the United States is in a different situation.  Our government is committed to open-ended war without any path to victory or any definition of victory beyond avoiding humiliating defeat.

We justified Sherman’s March and the bombing of Dresden and Hiroshima because these were extraordinary situations, after which we could get back to normal.

Now torture, assassination, invasions and subversion of foreign countries are normal, which our government justifies by saying that we Americans are the embodiment of democracy, freedom and the rule of law, and so our enemies by definition are enemies of democracy and freedom and are outside the accepted rules of war.

Insurgents fighting in Afghanistan, Syria and other countries against U.S. and U.S.-backed forces say that, because they are fighting for liberation of their homelands, rules do not apply to them, either.

I don’t foresee us Americans adopting battlefield rules of engagement that cost American lives, nor submitting to the jurisdiction of international agencies such as the International Criminal Court, while we still seek worldwide military supremacy.

My hope is that American leaders can renounce the ambition for the USA to be the world’s only superpower, while that is still a matter of choice, and accept a role as a normal nation among others.

LINKS

Double Standards and the Rules-based Order by Paul Robinson for IRRUSSIANALITY.

Bolton and the ICC by peteybee for Pete’s Politics and Variety.

The rule of law and Julian Assange

The rule of law is a fundamental principle, at least as basic or maybe more basic than voting rights and freedom of the press.

This is part of our British heritage, going back to Magna Carta—the idea that nobody, not even the King, is above the law, and nobody, not even the humblest cottager, is below the protection of the law.

For us Americans, the rule of law was part of our Constitution even before we had a specific Bill of Rights.

The Constitution from the beginning has guaranteed the right of habeas corpus, which means the right of  arrested persons to be told what law they are accused of breaking, and forbid ex post facto laws, which declared things illegal after they were done, and bills of attainder, which declared certain persons outside the protection of the law.

I was shocked and disillusioned by how easily, after the 9/11 attacks, these fundamental principles were forgotten.

The Bush administration, the Obama administration and now the Trump administration claim the right to order the killing of anyone they deem a threat to the state, based on secret criteria and without accountability to anyone.

George W. Bush had a kill list.  Barack Obama called has a “disposition matrix”.  I don’t know what Trump calls it.  Most of us middle-class white Americans of have come to regard it as normal, possibly because we think only people with dark skins and Arab names will ever be on it.

I read a chilling article by Matt Taibbi about a journalist who figured out he is on the kill list, and is trying to get off it.  He doesn’t know what he is accused of nor how to appeal.

Julian Assange is in a situation in some ways similar to this journalist.  A grand jury has been meeting in Alexandria, Va., since 2010 to consider his case.  James Comey, when he was FBI director, and Attorney-General Jeff Sessions have said they intend to apprehend Assange.

Rep. Adam Schiff, ranking Democratic member of the House intelligence committee, has said he’s not interested in testimony from Assange until Assange is in custody.  Yet no charges against Assange have ever been announced.  If the grand jury has indicted him, those indictments are sealed.

Neither the US nor the UK government has been willing to say whether an extradition request is on file.

The basic principle of the rule of law

Magna Carta is the inspiration for the Fifth Amendment to the U.S. Constitution, which states that “no person shall … be deprived of life, liberty or property without due process of law …”

How is this compatible, as Laurie Calhoun asked in the article linked below, with the President of the United States claiming the right to order the killing of anybody anywhere in the world based on his personal judgment that the killing his warranted?

LINK

Remembering the Magna Carta by Laurie Calhoun for We Kill Because We Can.

Today is the 800th birthday of Magna Carta

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.

To no one will we sell, to no one deny or delay right or justice.

via Magna Carta.

Today is the 800th anniversary of the signing of the Magna Carta – the Great Charter of British liberties – by King John of England.

Britons and Americans historically have seen this as the beginning of the concept of the rule of law—the idea that anyone, no matter how powerful, is above obedience to the law, and no-one, no matter how powerless, is below the protection of the law.

These ideas are embedded in the United States Constitution in Section One, Article 9, which guarantees the right of habeas corpus, and forbids bills of attainder and ex post facto laws.

The right of habeas corpus means that a person cannot be imprisoned unless charged with violation of a specific law, and told which laws he or she is accused of breaking.

The forbidding of bills of attainder means that the government is forbidden to pass a law aimed at one specific person or family.  The forbidding of ex post facto laws means the government is forbidden to pass a law making something illegal after the fact.

What these mean is that under the written American Constitution, as under the unwritten British constitution, individuals should be safe from harm, no matter how much they displease the rulers or displease public opinion, so long as they refrain from violating the written laws.

This concept was considered so fundamental that it was incorporated into the Constitution before there was a Bill of Rights guaranteeing freedom of worship, freedom of speech, the right to bear arms and other basic rights.

It also is the basis of the idea of “due process of law” in the Fourth Amendment, which protects the people against unreasonable searches and seizures, and the Fourteenth Amendment, which forbids state governments to arbitrarily deprive anyone of life, liberty or property.

The idea of Magna Carta ought to be remembered and honored by the people of the United States, the United Kingdom and other countries in the British legal tradition.  Liberty under law will only exist so long as people are willing to defend it.

Vladimir Putin and ‘the dictatorship of the law’

When Vladimir Putin first ran for President of Russia in 2000, he promised to establish the “dictatorship of the law.”  That would have been a great achievement if he had managed it.

What I take this to mean, and I think what most Russians took it to mean, was the opposite of the principle of the “dictatorship of the proletariat.”

The idea of the “dictatorship of the proletariat” in the old Soviet Union was that there need be no limit on Communist Party power because that power was supposedly exercised on behalf of the working class.   Any idea of holding the Communist regime accountable for its actions was treated as an attack on working people

The idea of the “dictatorship of the law” is just the opposite—that everyone, high and low, is subject to the law.   It is that nobody is too powerless not to have the protection of the law, and nobody is too powerful not to be subject to the law.

Putin would have been a great statesman if he had achieved this.  But the reality that Russia is run by patronage networks.   The system is set up so that it is impossible for the best-intentioned honest citizen to live within the law.  What matters is whether you offend powerful people, and whether you know other powerful people who can protect you.

Last week I read the following description of the system in the London Review of Books, by Peter Pomerantsev, a documentary film-maker who worked in Russia.

Competition: its benefits and its pitfalls

Science fiction writer David Brin wrote recently society works best when there is competition—competition in the marketplace to make the best products at the lowest price, competition in elections to see which politician can best serve the aims of the public, competition between scientists to make new discoveries and argue for new theories, and competition between lawyers to make sure all sides of a case get a fair hearing.

That is a great ideal.  The problem is to make it work as intended.

A society such as he describes is something new in history.  Most complex civilizations in history were organized from the top down—with government monopolies, hereditary monarchs, religion (or political) dogma and no such thing as impartial law.

Jonathan Rauch in his 1992 book, The Outnation: A Search for the Soul of Modern Japan, noted the contrast between the USA and hierarchical Japan:

It was [John] Locke, followed by Adam Smith and others, who first built the theory of liberal social mechanisms – public processes, like voting or trading or performing experiments, in which no one gets special personal authority (no kings, no dictators, no high priests or oracles) and no one in particular gets to control the outcome.  In the liberal scheme of things, no matter who you are, your vote is just a vote, your dollar is just a dollar, and your experiment had better work when anyone else tries it.  Moreover, there is no last election, last trade, or last hypothesis.  America is John Locke’s country.

The problem is how to create the conditions in which competition works for the benefit of society.  As Brin noted, the kind of competition he described can take place only within a legal governmental framework that gives protection against fraud and force.  To say that rules and regulations are incompatible with the free market is the same as saying that referees are incompatible with basketball.

Rules and regulations do not work unless a majority are willing to obey them.  Unenforceable laws are not merely useless, they are harmful.   Laws are no substitute for a basic ethic of honesty and fair play.

The emperor doesn’t care that he has no clothes

A Malaysian scholar, Rahinal Ibrahim, is suing the U.S. government to be removed from a no-fly list and to be told why she was put on the list to begin with.  But the government refuses to tell her whether she is on such a list.  The judge and her lawyer, who was given a special security clearance, have been told, but they are forbidden to pass the information on.  Even the verdict may be kept secret from her.

And a key witness, an American citizen, who happened to be out of the country, was denied permission to fly back to the United States to testify.

Are officials of the Department of Homeland Security are so insulated from public opinion and common sense that they do not realize how ridiculous this is?  Or do they have such a sense of power that they don’t care whether what they do makes sense or not?  If you are forbidden to fly, you know that you are on a no-fly list, so why pretend that it is a secret?

It is not just that the emperor has no clothes.  The emperor doesn’t care whether people notice he has no clothes or not.

Rahinal Ibrahim

One of the key concepts of a free government—more fundamental that democracy or the Bill of Rights—is the idea of the rule of law.  Life can be tolerable even under a dictator or king if you can be safe so long as you obey the law.

What makes a totalitarian government different from an authoritarian government is that under the rule of a Stalin or a Hitler, it is impossible to obey the law—because you can’t survive without breaking the law, or because the laws are contradictory, or because the laws are secret, or because people in authority can exercise power regardless of law.   Under totalitarian rule, everybody is guilty or potentially guilty, and only escape punishment because of the indulgence of the government.

The USA operates under the rule of law for most people most of the time.  But, as this incident shows, the rule of law does not operate for all people all the time.  What can be done to someone of Muslim heritage with a dark skin can be done to those of us of Christian heritage with white skins, and there are worse things that can happen than being on no-fly lists.

Click on In Bizarre No-Fly List Trial, Even the Verdict Might Be Secret for details by David Kravetz for Wired.  Hat tip to Jack Clontz.

Gun laws and psychiatric surveillance

If you live in New York state and go to see a therapist about anger management problems, there is a possibility you may lose your deer rifle and go into a police data base of potentially dangerous people.

New York’s new gun-control law requires therapists and social workers to report to county mental health directors whether they believe a patient is dangerous.  That information will go into a state data base, which would be used to confiscate gun owners’ weapons.

I would not go to a therapist if I did not think I could trust him or her to keep what I confided in confidence.  I would not trust a therapist if I thought the therapist was going to report what I said to the police.  The unintended consequence of such a law is that people most in need of therapy will not seek it.

Human beings have free will.  That means human behavior is unpredictable.  But New York state law puts the burden of predicting human behavior on therapists, but does not allow them to use their own judgment as to what to do.  A therapist has options if a patient seems dangerously violent—to increase the patient’s medications, to notify people who may be at-risk, to start proceedings to have the patient committed to a mental institution and, yes, to notify the police if that seems necessary.

Simply by the law of averages, someday somebody who is in therapy is going to commit a violent crime with a gun.  No therapist wants to be in the position of not having notified the authorities in advance that the person is dangerous.  The incentive will be to notify the authorities even if there is only a slight possibility of danger.

A conservative friend of mine pointed out that the same incentive applies to prosecutors and judges, and is nothing new.  But prosecutors and judges have to justify their decisions by actual evidence.  Therapists make a subjective judgment and don’t have to prove they’re right.

Even if there were an accurate predictive science of psychology, as in the movie and Philip K. Dick short story “Minority Report”, there still would be a problem in denying you of your legal rights not because of what you had done, but because of what someone thinks you might do.  There are people in prison who have served their sentences, but who are not released because some psychiatrist thinks the person will be a recidivist.

The basic principle of liberty under law, as affirmed in England’s Magna Carta of 1215, the English Bill of Rights of 1688 and the U.S. Constitution in Article One, Section 9, is that the government can punish you only if you have broken a law and that you have a right to know the specific law you are accused of breaking.  Another principle of liberty under law is presumption of innocence.  The prosecution has to prove you have broken the law.

When we look at the old Soviet Union, and how psychiatry was abused to punish political dissidents who had broken no law, we ought to be wary of making therapists agents of the police.

§§§

Click on NY Gun Law May Discourage Mental Health Therapy for Those Who Need It for a report by CBS News.

Free speech and fast food chicken

If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought — not free thought for those who agree with us but freedom for the thought of those we hate.
    ==Oliver Wendell Holmes Jr.

Mayor Rahm Emanuel of Chicago said he will try to prevent the Chick-fil-A fast-food restaurant chain from expanding in their cities because they disapprove of the opinions of Chick-fil-A President Dan Cathy, a Southern Baptist who is strongly opposed to gay marriage.

A Chicago alderman, Joe Moreno, said he will try to prevent a Chick-fil-A restaurant from opening in his ward, and Mayor Emanuel said Moreno has his support.  Boston Mayor Thomas Menino said Chick-fil-A is not welcome in Boston.

Nobody has accused Chick-fil-A of breaking any laws.  Nobody has accused Chick-fil-A of discriminatory hiring practices.  Nobody has accused Chick-fil-A of refusing service to customers.  But Mayor Emanuel thinks he has the right to use the power of government to punish a business because its CEO expressed an opinion he doesn’t agree with.

People who favor gay marriage are not going to change anybody’s minds by trying to repress people with whom they disagree.  Mayor Emanuel’s action serve only to harden battle lines and lock people into their previous positions.  Opponents of gay marriage, including Mike Huckabee and Rick Santorum, have rallied to Dan Cathy’s support.  Very likely Chick-fil-A, whose business is concentrated in the South, will have a net gain in business as a result of the uproar.

Now I don’t agree with Dan Cathy myself.   I don’t think his opinions should go un-contradicted.  And anybody who is offended by his views is free to patronize some other restaurant.   That’s different from government persecution.

If you really believe in free speech, you believe in it for everyone.  If you make exceptions based on your emotions, why should anybody take you seriously?  If some mayor somewhere tries to close a business because its owner is for gay marriage, Rahm Emanuel gives him an excuse to accuse his opponents of being hypocrites.

Somebody pointed out that, until a few months ago, Barack Obama took the same position as Dan Cathy—that the marriage relationship only pertained to a man and a woman.  Would President Obama have been unwelcome in Chicago and Boston?

Click on Rahm Emanuel’s dangerous free speech attack for a good post by Glenn Greenwald, a civil liberties lawyer who is gay himself.

Click on In Defense of Chick-Fil-A for a good post by Adam Serwer of Mother Jones.  He quoted John Knight, director of the LGBT (lesbian gay bisexual transgendered) rights project at the Illinois branch of the American Civil Liberties Union, as saying, “We think there’s a constitutional problem with discriminating against someone based on the content of their speech.”

Click on Don’t Fil-A the First Amendment for the view of Scott Limieux of The American Prospect.

Click on My evolving position on gay marriage if you’re interested in my personal opinion on this subject.

Which of us is naive?

A friend of mine thinks the government should be unconstrained in killing, imprisoning or torturing terrorists and enemies.

He thinks I am naive to want the government to observe due process of law or any Constitutional, legal or ethical limits.

I think my friend is naive to think that the government’s unconstrained power will always be used against people he thinks of as terrorists and enemies, and never against himself or people he cares about.

“What are we defending?”

The following by Matt Taibbi in Rolling Stone is exactly right:

… When we abandoned our principles in order to use force against terrorists and drug dealers, the answer to the question, What are we defending? started to change.

The original answer, ostensibly, was, “We are defending the peaceful and law-abiding citizens of the United States, their principles, and everything America stands for.”

Then after a while it became, “We’re defending the current population of the country, but we can’t defend the principles so much anymore, because they weigh us down in the fight against a ruthless enemy who must be stopped at all costs.”

Then finally it became this: “We are defending ourselves, against the citizens who insist on keeping their rights and their principles.”

What happened at UC Davis was the inevitable result of our failure to make sure our government stayed in the business of defending our principles.  When we stopped insisting on that relationship with our government, they became something separate from us.

And we are stuck now with this fundamental conflict, whereby most of us are insisting that the law should apply equally to everyone, while the people running this country for years now have been operating according to the completely opposite principle that different people have different rights, and who deserves what protections is a completely subjective matter, determined by those in power, on a case-by-case basis.  … …

The state wants to retain the power to make these subjective decisions, because being allowed to selectively enforce the law effectively means they have despotic power.  And who wants to lose that?

The UC Davis incident crystallized all of this in one horrifying image.  Anyone who commits violence against a defenseless person is lost.  And the powers that be in this country are lost.  They’ve been going down this road for years now, and they no longer stand for anything. … …

Bravo to those kids who hung in there and took it.  And bravo for standing up and showing everyone what real strength is.  There is no strength without principle.  You have it.  They lost it.  It’s as simple as that.

Click on UC Davis Pepper-Spray Incident Reveals Weakness Up Top to read Taibbi’s whole article.

Hat tip to Glenn Greenwald.

[Update 12/2/11]  Click on About Pepper Spray for a report on its chemistry and toxicology.  Hat tip to The Browser.

Robert Bolt on the rule of law

The following is from Robert Bolt’s 1960 play,  A Man for All Seasons.

Robert Bolt

WILLIAM ROPER: Arrest him.
SIR THOMAS MORE: For what? … …
MARGARET MORE:  Father, that man’s bad.
THOMAS MORE:  There is no law against that.
ROPER:  There is! God’s law!
THOMAS MORE:  Then God can arrest him. … …
ALICE MORE: (exasperated) While you talk, he’s gone.
THOMAS MORE:  And go he should, if he was the Devil himself, until he broke the law.
ROPER:  So now you’d give the Devil the benefit of law!
THOMAS MORE: Yes.  What would you do? Cut a great road through the law to get after the Devil?
ROPER:  I’d cut down every law in England to do that!
THOMAS MORE:  (roused and excited)  Oh? (advances on Roper) And when the last law was down, and the Devil himself turned round on you—where would you hide, Roper, the laws all being flat? (he leaves him)  This country’s planted thick with laws from coast to coast—man’s laws, not God’s—and if you cut them down—and you’re just the man to do it—d’you really think you could stand upright in the winds that would blow then?  (quietly)  Yes, I’d give the Devil himself the benefit of law, for my own safety’s sake.

I love those lines, and I loved the play.  I saw both the stage and movie version, and liked the stage version better.  I think Robert Bolt’s Thomas More character is a great example of the way to live, even though he talks like a 20th century agnostic such as Bolt rather than the 16th century Catholic that he was.

Click on Bolt, Robert Oxton for Bolt’s entry in the Oxford Dictionary of National Biography.

Daniel Schorr on Nixon’s enemies list

My friend Anne e-mailed me a link to an article about how President Richard Nixon ordered the FBI to investigate CBS reporter Daniel Schorr, who was on his “enemies list,” and how they were unable to dig up any dirt about him because he led such an exemplary life.  Click on Nixon Era Probe to read it.

The story is a tribute not only to Schorr, but to the integrity of the FBI investigators.  They knew what was wanted, and yet they declined to shade the truth.  The most striking thing about President Nixon’s “enemies list” was how harmless his enmity was.  The worst he could do was order tax audits.  Being on the “enemies list” was more a badge of honor than something to fear.

Adlai Stevenson once defined a free society as a society in which it is safe to be unpopular.  The Schorr episode  shows what it means to live under the rule of law, in which nobody in power can do anything to you so long as you commit no crime.

“No Bill of Attainder, no ex post facto Law…”

The US attorney general, Eric Holder,  has announced that the Justice Department and Pentagon are conducting “an active, ongoing criminal investigation” into the latest Assange-facilitated leak under Washington’s Espionage Act.

Asked how the US could prosecute Assange, a non-US citizen, Holder said, “Let me be clear. This is not saber-rattling,” and vowed “to swiftly close the gaps in current US legislation…”

In other words the espionage statute is being rewritten to target Assange, and in short order, if not already, President Obama – who as a candidate pledged “transparency” in government – will sign an order okaying the seizing of Assange and his transport into the US jurisdiction. Render first, fight the habeas corpus lawsuits later.

via CounterPunch.

Before there was a Bill of Rights guaranteeing freedom of speech, freedom of the press, freedom of worship and the right to keep and bear arms, the United States Constitution protected even more basic freedoms.  The Constitution banned ex post facto laws and bills of attainder, guaranteed the right of habeas corpus and defined the crime of treason in narrow and specific terms.

These were the basic principles of a nation founded on the principle of the rule of law – a principle that in the English-speaking world went back to the Great Charter of 1215 and the English Bill of Rights of 1688.  The principle of the rule of law is that no matter how much you anger your rulers, they can’t do anything to you unless you break an actual law with a specific punishment.

The rule of law means that a government can’t punish you for breaking a law that was passed after the fact (ex post facto law).  It can’t pass a law aimed at you personally (bill of attainder).  If you are arrested, you have a right to be brought before a judge and told what specific law you are accused of breaking (habeas corpus).  And you can’t be charged with treason just because you’ve done something that the government didn’t like.

All this has been turned on its head in the case of Julian Assange and Wikileaks.  Eric Holder says that he’s made up his mind to charge Julian Assange with something – although as of now he hasn’t been able to specify a law he has broken.  And if there is no law on the books, he will propose something “to close the gaps in U.S. legislation.”

Senate Minority Leader Mitch McConnell said Assange should be prosecuted to the fullest extent of the law and, “if that becomes a problem, we need to change the law.” [Added 12/11/10]

Holder and others have invoked the Espionage Act of 1917, which was passed at a time when the nation had gone even crazier than it has now.  The Islamophobia of today is nothing compared to the Germanophobia of that era.  The law has never been used against journalists, and for good reason.  If the government can define anything whosoever as a secret, and can punish anyone who reveals its secrets, there are no limits on its power.  How can we the people hold our government accountable if it can keep us from knowing what it does?

The age of the kilo-page

I recently learned a new expression – “kilo-page” – which means a thousand pages, as in, “The financial reform bill is more than a kilo-page.”  My rule of thumb is that a kilo-page law is not understandable, and that a law that is not understandable defeats the whole purpose of the rule of law, which is to have impartial rules for the common good that everybody follows.  A kilo-page law is an open invitation to the powerful to manipulate the system for their own benefit.

I came across the expression in the comment thread on a web log post entitled Scandinavian Simplicity by an economist named Scott Sumner.  Sumner makes the point that Sweden recently issued a single-page regulation – that everyone who gets a mortgage loan must make a 15 percent down payment – that will do more for financial stability than the whole 1000-plus pages of the U.S. financial “reform” bill.  The actual expression “kilo-page” was coined by another economist, named Bryan Caplan.

Hat tip to Marginal Revolution.