Scary News For International Travel

You would have thought that security wouldn't have been a problem in Russia, unburdened as it is with concerns for civil liberties. But the bomb that the TSA will be looking for next blew up this morning in Moscow, killing 35 people who were waiting to enter Russia and apparently detonated by a suicide bomber. Naturally, everyone's hearts and sympathies go out to the families of those killed and the Russian government catches those responsible and punishes them as only Russians can.

Terrorism Russia is problematic because it could come from so many sources. Our friends from al-Qaeda are always on our minds when something like this happens, but it could be Chechen rebels, Dagestani rebels, someone trying to liberate South Ossestia -- it's almost like Russia is behaving imperialistically and making enemies along the way. Even if that is true, though, it in no way justifies this sort of violence on innocent civilians.

Closing Guantánamo Bay: The Buick Solution

General Motors has, after its traumatic financial reorganization, reduced its branding from eight or nine different brand names to four. One of its brands, GMC, is reserved for trucks, so it has only three levels of branding available for its passenger cars. Roughly speaking, Chevrolet is now the its entry-level GM brand, its mid-level brand is the Buick, and its luxury line is branded Cadillac. This will become important later on in this post, so just file that bit of background away as I move on to the substance of my thoughts this morning, which have to do with national security and justice.

It is probably beyond trite at this point to say that closing the prison for (accused) terrorist at the U.S. Naval Base on Guantánamo Bay, Cuba, is much easier said than done. While the facility itself can indeed be rendered into the past tense with a stroke of the President's pen, the prisoners therein cannot. And we are talking about some Very Bad Men in that prison.

Why close it at all, then? Why not stop worrying and learn to love Guantánamo? Well, in one sense, the President painted himself into a corner, having offered as a prominent campaign promise the closure of the facility. He's having his feet held to the fire on that from his left flank -- and, oddly, from his right, insofar as he's stuck his neck on the issue and seems completely incapable of admitting his own past naïvité on the matter.

One reason that is heard for closing the prison at Guantánamo is that it is purportedly the "number one recruitment tool" of Al Qaeda. Benjamin Wittes gives lie to that point. The presence of American military troops in Iraq and Afghanistan is the #1 recruitment tool we have handed the bad guys, and misconduct by U.S. military personnel is the #2 tool. If the objective is to starve Al Qaeda of new recruits, closing Guantánamo isn't going to make a lot of difference.

The pressure to close Guantánamo, at least according to Professor Wittes, is really in the form of diplomatic rhetoric from our European allies, who see the prison as a symbol of the Presidency of the detested George W. Bush. Ameliorating our European friends' distaste for our Immediate Past President is a markedly insubstantial justification for letting loose on the world about two hundred dirtbags against whom we have military intelligence strongly indicating a predilection for Blowing People Up.

This is particularly so when privately, most of the nations involved do not particularly want us to do this and are quite satisfied with our indefinite detention of people they do not particularly want delivered back to them. It seems we can point to Wikileaks for confirmation of that last fact.

So the real reason to loot at closing Guantánamo is that keeping Guantánamo open is somehow inconsistent with our own ideals. Having a federal prison located on a naval base outside the de jure territorial limits of the United States is not something that ought to give anyone much heartburn from a Constitutional law perspective. The Federal government can operate a prison, and it may do so wherever it exercises de facto power. Two things about Guantánamo are troubling from a Constitutional law perspective, though: 1) the claim that prisoners there are tortured, and 2) the prisoners are deprived of liberty without due process. Neither of these issues has anything to do with the location or name of where those things are purportedly happening.

As to the first issue, that too can be addressed with the stroke of a pen by the President. It can and should be addressed by Congress. The rule is, and ought to be, stark and simple. Regular Readers are familiar with it by now: no torture, ever. Someone who tortures someone else should be punished. We should be readily willing to offer inspections by NGOs for the purpose of verifying that we do not torture our prisoners because we should not be torturing our prisoners. This does not mean granting the NGO inspectors unfettered access to the prisoners, who are, after all, Very Bad Men.

As to the second issue, the practicalities of providing regular trials in civilian courts to at least the most prominent of these prisoners has proven a significant challenge. So far, only one such trial has taken place, U.S. v. Ahmed Khalfan Ghailani. Ghailani was charged with participating in the 1998 bombings of the embassies in Kenya and Tanzania which killed hundreds of people. The result of the trial was one conviction of conspiracy for the Tanzania bombing and acquittal on the other 284 counts brought against him. While I think this demonstrates the resilience of the regular court system to handle such cases, this ambiguous result is seen as a setback for the government's handling of these prisoners through the judicial process.

The significant issue raised by the Ghailani trial was that Ghailani's statements elicited under torture were excluded from evidence, as were interrogations that resulted from those torture-induced statements. This was the legally correct way for the court to handle the issue. Those who defend the use of torture point out that it is sometimes effective, that when done right it can elicit a great deal of information from the tortured prisoner. Maybe yes, and if so that's a very variable sort of case-by-case calculus, but torture is nevertheless incompatible with due process and incompatible with a ban on cruel and unusual punishment, both of which are Constitutional mandates and both of which are beyond the legitimate exercise of governmental power.*

More obnoxiously, the Administration announced before the trial started that Ghailani would not be freed regardless of the result of the trial. While this may be the right national security decision, it begs the question of why a trial is held at all. A show trial is not due process; indeed, it's better from a due process perspective to say "there will be no trial" than to have a meaningless trial.

So the question of dispensing due process to these prisoners is difficult. Civilian trials and civilian rules of justice in our civilian courts are the Cadillac of due process, but the Cadillac presents difficult challenges in this setting. So maybe we can't afford a Cadillac here.

Military tribunals may well be an effective answer to this conundrum; that might not be a Cadillac solution, but it might be a Chevy hatchback (I think those are called Aveos this year but I can't keep track anymore). Gets you where you want to go but not in any particular style or comfort, which translates to "it doesn't really look like something diplomatically or legally satisfactory."

Congress could solve this problem by creating a new court and a reasonable and fair set of rules of evidence and procedure designed to handle these issues. This could be a step up from a Chevy even if it falls short of being a Cadillac -- call it a Buick.

What we're doing right now isn't even on the GM rating scale -- it's walking. But if we can't afford a Cadillac and the Chevy isn't going to cut it, then the compromise is the Buick.

Congress has authority to do this under Articles I and III of the Constitution. Attempts have been made to go this route, but as of yet Congress has failed to exercise its power in this manner and the President has failed to pursue this solution. Were the President doing more than flailing about to balance the national security needs of keeping these Very Bad Men under our control, and the diplomatic and Constitutional imperatives of affording due process to everyone under our power, he would be tackling the problem from this angle. To be sure, there are complex issues here, but they can be worked out and we have no shortage of smart lawyers familiar with the issues who can contribute to resolving them.

Why he isn't, I don't know. Perhaps he hasn't had time to really consider this in between the myriad of other things demanding his attention; perhaps he lacks faith that Congress will put together something that strikes the right balance between these competing pressures; perhaps he genuinely lacks vision in this area or substantial concern for it, a bitterly disappointing proposition but one which I no longer find surprising. But that, in my sight, is the appropriate route towards undoing the Gordian knot of lawfully disposing of the Very Bad Men in Guantánamo Bay.


* I note that many of those who would defend the government's ability to use torture to extract information from a prisoner are of an identity with those who would criticize the government for reaching beyond the boundaries of its legitimate exercise of power by imposing the "individual mandate" of the "Obamacare" health reform law. Of course, a principled reading of the Constitution is too much to ask from any particular faction in politics these days and those of us who are willing to show real faith to the Constitution as an instrument of liberty and a practical and effective limitation on government's power are still looked on as the "crazy uncles" of American politics, who may raise a good point every now and again but mainly are to be politely disregarded.

United States v. Ghaliani

Ahmed Ghaliani was accused of being a significant participant in the August 7, 1998 bombings of the United States embassy complexes in Kenya and Tanzania. At least 223 people were killed and over 4,000 were wounded in nearly-simultaneous suicide bombings of the two embassies in Dar es Salaam and Nairobi.

After a substantial political controversy, Ghaliani was tried in a regular United States District Court in the Southern District of New York. A critical witness against Ghaliani and a substantial confession were excluded from the trial because the judge found that the evidence had been obtained through unconstitutional interrogation techniques (commonly called "torture"). The result was that Ghaliani was acquitted of 284 of the 285 counts against him, being convicted of only a single count of conspiracy.

Let's not lose perspective on the real-world result. Ghaliani hasn't been sentenced yet, but the minimum sentence that can be imposed on him is 20 years and the judge can find that good cause exists for a life sentence. There is no parole in the Federal penal system -- if you're sentenced to serve 20 years, you're going to serve 20 years. This is not a man who is going to be walking free, planning additional crimes, or hanging around with his terrorist buddies again any time soon. That's the result from a single count.

Some have argued, and with some weight to the argument, that torture is in fact useful to extract information from prisoners. But let's distinguish "information," which can be useful and used for gathering additional "information" and possibly motivating intelligence or military operations, from "evidence," which can be used in a court. Information which is obtained wrongfully cannot be used as evidence.

It needs to be underlined that the same exclusion of evidence would have applied in a military tribunal. Substantial, educated, and mature discussion of the issue can be found at the excellent blog Lawfare, which has been having something of a Ghaliani-fest since the verdict was returned. It also bears noting that the conviction's having been obtained in a civilian court makes the conviction much easier to defend on appeal. What it really comes down to is not in what forum Ghaliani should have been tried but whether he should have been tried at all or simply held without trial indefinitely.

While I can see the attraction to indefinite detention, our legal system cannot tolerate such a thing forever. Someone who is in the power of the government at some point transforms from being a "detainee" to being a "prisoner" and becomes entitled to some kind of legal process, an opportunity to know why he is being held, and to present evidence and argument in a meaningful bid for freedom. We do this not because we lack concern about guys like Ghaliani. We do this because it is the only way for us to act consistent with our own morals and ideals, it is fundamental to our system of government, it is at the still-beating heart of why there is such a country as the United States of America in the first place. We must not fear truth, and truth is, hopefully, what trials are all about.

What bothers me about the verdict here is the question of "what if he had been acquitted of everything," because then we would have to make a very hard decision. If Ghaliani is really as dangerous as the government tells us he is, he cannot be allowed to go free. But if he is acquitted of any crime, then we have no legally valid option but to let him go free. And the fact that the Administration announced before the trials started that there was no chance at all that Ghaliani would be allowed to breathe free air, this makes the trial appear to be a show trial. I'd rather that they simply skipped the trials altogether than have the trials not be meaningful. If Ghaliani had been acquitted of everything, he should have been set free.

The big problem here, and I don't claim to have any easy, pat solutions to it, is that so much evidence against so many of these Really Bad Guys is tainted from being obtained through torture. So it could very well be the case that most of the really good evidence we've got against, say, Khalid Sheik Mohammed will be excluded from any court. So we return to the question of whether we should have trials at all.

There is insistence in some quarters to treat terrorism prisoners, and all anti-terrorism activities, as military in nature. If we were talking only about protecting ships in foreign ports, fighting bad guys in the mountains of Afghanistan, and shooting missiles at camps, I could see that. But we're also told that there are dozens of terrorist training camps within the United States, and we know that U.S. citizens are involved in terrorism activities of some kind. There is intelligence that must be gathered within our own borders and from our own citizens. Some interaction with the criminal justice system is therefore inevitable.

It's very, very tempting to say, "Keep them in Guantanamo and throw away the damned key already." But here's what I can't get past: if we really don't have any good evidence to offer against someone we're keeping under lock and key, we shouldn't be keeping that person under lock and key. Trials are where that kind of evidence is tested. We fought the Revolution for that.

Trials are a risk for the government. But at the end of the day, our choices are to betray our own principles or take the risk. If we succeed, the problem of what to do with these guys really does go away -- they go into the penal system and that is that. Let us hope that we have sufficient admissible evidence for the rest of the prisoners with whom who we eventually have to do something.

You Need To Let Us See Your Ass Crack Because Of 9/11

Hat tip to Doug Mataconis.

Dear TSA: Please Dispense With The "Freedom Feel-Up"

I've been thinking more and more about the nudity scanners and genital gropes that airline passengers are being asked instructed by the government to endure if they want to travel by airplane.

First of all, let's start with the law.  In the case of United States v. Aukai (9th Cir. 2007) 497 F.3d 955 we get from an ideologically balanced panel of judge a detailed examination of exactly how far the TSA can go in requiring all passengers to submit to an "administrative search" before more intrusive searches can be implemented. In Aukai, the defendant went through the same sort of screening that we've all been used to for quite some time -- he walked through a "magnetometer" or metal detector and put his bags through an x-ray screening machine. The metal detector indicated the presence of metal, and the defendant denied having anything metal on his person. The TSA screener then ran a wand over the defendant, and it registered metal in the defendant's front pocket three times. A supervisor ran the back of his hand on the outside of the defendant's pocket, felt something, and asked the defendant to empty that pocket. When the defendant did so, it was revealed to be a meth pipe.* The critical passage:

Although the constitutionality of airport screening searches is not dependent on consent, the scope of such searches is not limitless. A particular airport security screening search is constitutionally reasonable provided that it “is no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives [ ][and] that it is confined in good faith to that purpose.”

So it was okay to require Aukai to go through a metal detector and run his bags through an X-ray machine; these are "reasonable" searches permitted under the Fourth Amendment. But the wanding, pat-down, and command to empty pockets was not justified until those less intrusive search methods raised a suspicion that there might be something dangerous in Aukai's pocket. It turned out to be evidence of Aukai's criminal stupidity, but of course the TSA officers would have had no way of knowing that from the metal detector devices.

Second, consider  Ken at Popehat's nice little thought experiment. Most people think they can distinguish packaging from content; is it true here? If something feels as though it's imposed on us from outside, would we resist it? But if it comes from the government, swaddled in a pretty assurance that "It's For Your Own Safety," why do we turn in to sheeple and quietly consent? I'm not out of line to say that most people have and will consent -- alarmingly, roughly four in five Americans polled support these screens although, as Nate Silver points out in the link, it's easier to support someone else's loss of dignity than your own.

Third, a look at how the Israelis do airport security. Notice how it is person-specific, not object-specific. Kevin Drum points out in that article that the Israelis make no bones about racially profiling airport users (not just passengers), and that we would be required to omit that portion of our own security screens because our Constitution is written differently than Israel's. Nevertheless, it seems to me that there are rather important lessons the Israelis could teach us which we are ignoring.

Fourth, speaking of Israelis, here's a gem from an Israeli security expert, which is to say, someone who has training in how to bomb airplanes: "I can overcome the body scanners with enough explosives to bring down a Boeing 747." Further evidence supporting the proposition that this is all a big, expensive, inconvenient act designed to make people feel better but which does not also materially enhance the reality of safety.

Fifth, a statement from a TSA official that the public must learn to tolerate Fourth Amendment violations in order to travel in the air. Perhaps the guy spoke inartfully, perhaps he knows full well what he was saying (admission between 2:30 and 2:40 in linked video).

Sixth, a few reasons why we should care about this. Most prominently, the government lies when it says that the images of naked people aren't stored and kept for later use and/or amusement of bored TSA workers looking to mock citizens at the airport. Let me quote a little bit more from Ken at Popehat, because he's done a better job than I of finding good links for good reasons not to trust the government with this sort of power over people whom it has no probable cause to think are committing any crime:

the TSA can’t distinguish between a thing and a picture of a thing, thinks that it has authority to investigate illicit cash (and believes that telling them it’s none of their business represents suspicious behavior), relies on junk science to “detect” danger, feels entitled to your unquestioning obedience (and tries to earn it not with competence but with, in effect, a also-ran muppet), and is vigilant against pressing dangers like Decepticons. Of course, if you recruit on pizza boxes, you’re not going to wind up with Elliot Ness. You’re going to get people who use the body scanners to make fun of people’s genitals, pretend to find cocaine in passengers’ luggage as a prank, steal from carry-ons, and generally act like badged choads. Oh, and sex offenders. Don’t forget the sex offenders. A security checkpoint is Walt Disney World for them.

* * *

Consider this story from a groped rape survivor: ... Think she’s alone at being treated like that? Think she’s being over-sensitive? Think again. Oh, think again.

* * *

Another addition: “Heads up, got a cutie for you.”

* * *

And Another: Hate kids? Love kids more than currently legal? Either way, a career at TSA has you covered!
And still more: Really, who am I to criticize the brave men and women of the TSA, who are all that stands between us and the menacing terrorist snowglobes?

* * *

More: Sure sounds like sexual assault to me.

How much is enough before people will say, "Enough!" So to conclude this festival of links demonstrating just how far the TSA has gone, seventh let's recall the guy who refused to submit to one of these searches, gave up his flight, was released by the TSA into a crowd of people, and went home causing no security risk at all. Yeah, sure enough, for daring to defy the TSA's authoritaii, he's now subject to a civil suit from the government, and they're seriously considering actually going through with it. The fact that this is the guy who actually publicized the TSA's tactics and exposed them for the petty martinets that they are has nothing to do with the fact that they're suing him out of the thousands of people they could have sued. No, nothing at all.

The Founding Fathers wouldn't have put up with this. They'd have recognized it for what it was: the government abusing and exceeding its authority; they wouldn't have put up with what is, in effect, a General Warrant. At most, these kinds of scans and searches should be reserved for people whose behavior and the results of other kinds of appropriate and Constitutional searches raise specific flags and concerns. At best, maybe we ought to take a few lessons from our friends in Israel. El Al painfully learned its security lessons in the 1960's and hasn't experienced Major Asset Loss since then -- so how do they do it? One thing's for sure -- they don't worry about peoples' feelings or ameliorating commercial pressures on donors to political campaigns. They do what needs to be done, and they do it without looking at or feeling peoples' sexual organs.


* I thought meth pipes were made of glass, not metal, but I don't smoke meth so I'm probably not the best person to opine on such matters.

America Is The Measure Of Herself

A clear-eyed blogger has pointed out (in a post that I can no longer locate) that much of the ongoing sturm und drang over the mosque community center that includes a mosque presently in construction nearly tragically underfunded right on top of two blocks away from Ground Zero is really all just so much pornography of opinion. As I've mediated on before, what may really be going on is a massive miscommunication resulting from the poverty of the English language -- "should" there be a mosque at this location can imply either a normative assessment of the social appropriateness about this proposal, or it can imply a legal assessment of whether the government possesses the power to prevent it from going forward. My initial take was the second facet of the question, but I'm not so sure that many of the objectors to the mosque project aren't simply being foggy about the distinction between the two issues because either they aren't able to intellectually distinguish between the two concepts or because they are motivated to prefer not to do so for, among other possible reasons, political advantage.

But there is a class of mosque-project protestor who clearly does understand the difference between the normative "should" and the governmental "should," and that class includes the editorial board of the Washington Examiner, Newt Gingrich, and Andy McCarthy. They have all made the point that there are no Christian churches in Saudi Arabia, but there are plenty of mosques in the United States and even in New York City. There is some ill-defined boundary of good taste within which mosques ought not exist, they claim, sometimes rather gruesomely (but nevertheless illogically) claiming that because debris from the 9/11 attacks fell on Park Place, this mosque project is nevertheless still on "sacred ground." By pointing to a nation where the government actively prohibits religious diversity and imposes a state religion, these authors are squarely addressing the question of whether the government should intervene in this increasingly vapid issue.

I think the comparison with Saudi Arabia is insulting. Insulting to the United States. Since when do we evaluate our own Constitutional standards of the limits on governmental power against those set by a monarchy? Since when do we judge our own measure of social tolerance against a yardstick created by a nation with a fanatical, barbarous, and murderous state religion?

America is the judge of herself. The Constitution of the United States is the ultimate yardstick against which we should measure ourselves. I don't give a damn how the King of Saudi Arabia governs his subjects. We don't have kings here, we don't have subjects. We are self-governing citizens in a nation ruled by law and administered by a Constitution whose core function is to limit the powers of the government. We are more than capable of judging and evaluating ourselves; we have an active marketplace of ideas and opinions in which to do that; we are possessed of higher ideals than the rest of the world and we do better than the rest of the world when we aspire to fulfill our own ideals.

As to the second question, whether the project is in good taste, I'll reserve judgment. I'm willing to give the guy a chance to actually say what he wants to say (if he can raise the money to do it) before I evaluate it one way or the other. But mainly, they have exercised their rights and said what they choose to say. After all, this is a free country.

In Saudi Arabia, I'd likely be deported for saying this -- and if I were a Saudi citizen I'd be gambling with my life to say it -- but the King of Saudi Arabia can suck it because he and his nation don't matter to this debate. In America, the owner of private property may put that private property to any lawful use he chooses, even if that means a house of worship for an unpopular religion; in America, a citizen may express whatever opinion he wishes, even a political opinion that Sharia law ought to become the law of the USA and the government has acted immorally; in America, we draw strength, power, and our communal identity from the differences among us. This is not Saudi Arabia.

Notwithstanding the efforts of religious fanatics to impose the phrase "In God We Trust" on their fellow citizens who do no such thing, our national motto has always been E Pluribus Unum. Nineteen religious fanatics with box cutters who committed mass murder ten years ago aren't worth giving that up.

More On The Mosque Two Blocks From Ground Zero

I've heard and read a lot of arguments about why it's in bad taste for a mosque to be built right on top of two blocks away from Ground Zero, and about how it would be hurtful to the survivors of the people killed on that day if the mosque is built -- even if we distinguish between the Sufis who want to build the mosque and the Sunnis who made the attack happen, because the Sufis and the Sunnis have common religious beliefs.

I've heard and read some arguments to the effect that if a mosque is built right on top of two blocks away from Ground Zero, the Muslims will have "won," it would be a "statement" that Sharia law is coming to America, or it demonstrates "weakness" by America.

I've heard and read a lot of arguments about why it's going to set interfaith relationships back for years if a mosque is built right on top of two blocks away from Ground Zero.  I've heard and read claims that mosques can be built elsewhere than right on top of two blocks away from Ground Zero, although I notice that people are trying to stop mosques from being built in places like Murfreesboro, Tennessee; Temecula, California; and Sheboygan, Wisconsin, too -- and these are not places well-known to have been the sites of conflict between Islam and the United States.

I've heard and read some discussion about why the imam who would preside at the mosque to be built right on top of two blocks away from Ground Zero has said some questionable things about Islam and America, and about 9/11 (he's also said some rather commendable things that seems worthy of support).  I've also heard and read a lot of speculation and fear about where the money to build a mosque right on top of two blocks away from Ground Zero is going to come from.

But what I haven't read or heard, anywhere, is an argument about how, consistent with the United States Constitution, any of the above matters one tiny little bit.  The legal issue is: "Can the City, County, or State of New York, or the United States of America, prohibit the building of a mosque at this site?"  The closest thing I can get to an anti-mosque advocate addressing this issue is something like this comment:

I also find myself getting annoyed with pundits on the Libertarian right who are sanctimoniously hiding behind an absolute freedom of religion argument and refusing to acknowledge any other concerns or factors, sometimes to the point of accusing those of us opposed to the mosque of being bigots or knee-jerk Islamophobes. They also ignore the nature of Islam and what the mosque symbolizes: not just a place of worship, but also the dominance and superiority of Islam and sharia law. In a place where thousands were murdered in Islam’s name, that is unacceptable, and it is not protected by the 1st amendment.

Maybe this commenter isn't a bigot or a knee-jerk Islamophobe. Now, there are plenty of bigots and knee-jerk Islamophobes out there objecting to the building of mosques (whether they be in Manhattan or Murfreesboro or Sheboygan or Temecula) but let's apply the principle of charity here and look only at the argument made, not make unfounded presumptions about the motivation of the person making the argument.  (My doing so requires that the arguer cease using words like "sanctimonious" to describe those who, like me, claim the contrary result, by the way.) 

The substantive claim is that Islam is subversive to American values and law ("the nature of Islam," "what the mosque symbolizes: .... the dominance and superiority of Islam and sharia law").  This is a viewpoint-specific restriction on a First Amendment freedom -- either of free speech or free exercise.  So the rule is, and can only be, "Would you also restrict Christianity in this way?"  Obviously not.  Now, one might ask, what Christians have engaged in acts of unprovoked mass terrorism, and are there any churches of the same religion as the terrorists located near the site of their terrible attack?  After all, we wouldn't let, for instance, the LDS church build a site commemorating a brutal attack by Mormons on Native Americans, coincidentally also occurring on September 11, would we? 

America is full of sites of people motivated by religion who have done terrible things, and we don't blame their coreligionists for the bad things people have done while claiming to act in the name of God, and if they God they were acting in the name of happens to be the Christian God, well, the religion itself seems to get a pass, where Islam does not.  And lest we claim that "Islam is a violent, cruel religion," and back that up with citations from the Koran, let us not forget that the Christian Bible, too, has many cruel, violent passages -- maybe more, depending on how you count them.

The question is not whether we as a people like Christianity or Islam more.  The question is, can the City, County, or State of New York, or the United States of America, prohibit the building of a mosque at this particular site?  The answer is "no."  The Constitutional case is simple, open-and-shut, with the inevitable and predictable conclusion being that we have no choice but to allow and tolerate the mosque at this location.

Nothing I have said here would prohibit someone who thinks a mosque at this location would be a bad idea from engaging in peace protest outside the mosque once it is built, or its construction site while it is being built.  Nothing I have said here would prohibit someone who thinks a mosque at this location would be a bad idea from boycotting businesses owned by people who patronize the mosque, from refusing to work on the construction of the building, or encouraging people to refuse to work on the construction of the building.  Nothing I have said here would prohibit someone who thinks a mosque at this location would be a bad idea from trying to raise money of their own to buy the site (if the owners are willing to sell) or a site near it so as to build something they think would be more appropriate. 

Finally, nothing I have said here would prohibit someone who thinks a mosque at this location would be a bad idea from trying to persuade the owners of the site to go about pursuing their goals in a different way or at a different location.  Because nothing I have heard or read anywhere seems to be addressed to the owners of the property.  It has all been addressed to the general public or to some level of the government.  What we're talking about here is the First Amendment.  The First Amendment gives everyone the power to try and persuade each other of the correctness of their point of view, and the government has to keep its hands off that sort of persuasion.  What bugs me most is the appeal -- either explicit or implicit -- to use the power of the government to stop American citizens from peacefully using their own property as they see fit.

What Obama Hath Wrought

To say that the Presidency of Barack Obama has been a disaster from a governmental restraint perspective is the understatement of the century.  Granted, the century is still young.  But can anyone doubt that Terry Michael's claims that libertarians should have endorsed and got behind Obama have been, at best, demonstrated as almost exactly wrong.  Yes, there are progressives condemning Obama as too conservative and conservatives condemning him as too liberal, but both are missing the point.

President Barack Obama is a statist, whose real agenda is maximizing the power of the national government and in particular that of the executive branch.  His real agenda for the direction of American government is a continuation, if not an acceleration, of the process begun under George W. Bush, a process with its roots in the creation of the Department of Homeland Security and Medicare Part D, which came to full flower in the bipartisan bank bailouts of 2008 and the government buyout of General Motors and Chrysler, and reached a triumph with the health care reform law.

Just like his predecessor -- no, even more callously and crassly than his predecessor -- Obama has suborned compliance with the law to his own political advantage.  Consider, for instance, this interview with an editor at the Associated Press concerning the Obama White House's attitude towards the Freedom of Information Act:

...shortly after President Obama took office, the department had instituted a highly unusual policy that is unprecedented at other federal agencies in which many hundreds of FOIA requests that had been submitted by members of the media, citizens, advocacy groups, members of Congress were being vetted by political staff who didn't know anything about the Freedom of Information Act.

They were allowing the political staff to govern the release of the information. Nothing could be released until the political advisers agree that it was okay to send it out the door. [¶] ... either the political staff, the senior staff in Secretary Napolitano's office were dictating which releases could be disclosed to the public and to the media and to the members of Congress, frankly, and when they could be disclosed.

[Interviewer Q:] But you're saying that they vetted the people who are making the requests. They were looking at the backgrounds of those people?

[A:] The documents that we got described in remarkable detail a process by which the FOIA staff, the career staff at the Department of Homeland Security were instructed to provide, along with a synopsis of the request for information, detailed information about where the person lived, who it was, was it a reporter, was it not, was it an advocacy organization, what was the interest of the advocacy organization. All of this is highly, highly unusual under the act.

In other words, who you were and where you stood politically affected what information the government would release, when it would release it to you, and what portions of it would be redacted. To be fair, the interview goes on to suggest that this policy has been changed and depoliticized somewhat. But the fact that it even occurred to someone to suborn the FOIA process to political considerations demonstrates that the law is viewed as an obstacle to achieving political goals.

And why shouldn't they view the law as an obstacle and not a goal? Obama and the Obamamen view the Constitution as an obstacle rather than a goal. The Fourth Amendment, for instance, is just as much an inconvenience to Obama and his security personnel as it was to Bush and the Bushmen, and their solution is the same -- get private companies, unbounded by the Fourth Amendment, to do all the government's without-good-cause spying on American citizens by proxy.  And Obama and his legislative minions have taken Bush's national security claims further than Bush ever did -- reserving the right to summarily execute an American citizen abroad who is accused* of aiding al-Qaeda, and what's more, making it a crime to offer that American citizen the assistance of counsel.  He has even left truck-sized loopholes in his own orders that continue to authorize the use of torture of prisoners in American custody.**

These things should not make you feel better that Obama is protecting our freedoms and our way of life.  These are attacks on our freedoms and our way of life.  Just like George Bush did before him.  What's worse, these attacks come from within our nation, within our government, come wrapped in the flag to make dissent and criticism of them appear unpatriotic and risky, and because they come from a Democratic President rather than a Republican one, leave the political left of the country largely silent in a damning exposure of their hypocrisy.  Not that the political right comes off much better in my analysis; they loudly condemn Obama doing today exactly the same sort of thing that they cheered Bush on for doing two years ago and the commitment of the "tea party movement" to meaningfully reducing the government's powers can be relied upon only for so long as the President of the United States is not a Republican, at which point we're back to the partisan-polarized dialogue about government power we had going in 2007.

There are meaningful and important differences between America's two political parties.  But I have come closer to thinking that the differences are not so important as the similarities.  There is no significant political organization in America devoted to individual freedom and restraining the power of government.  There is no significant political organization in America focused on the reduction of our government's spending deficit, much less elimination of its debt.  For too long we have allowed fallacious arguments about "the other guy" to distract us from the fact that the people entrusted with safeguarding our Constitution have been the ones subverting it.  "Yeah, but that other guy is really a bad dude and we should be scared of him!" is not a valid rebuttal to

Osama bin Laden masterminded the destruction of some very large buildings and the deaths of over three thousand people, which was an awful thing.  But as awful as it was, America survived that attack.  America was and is stronger than that.  As long as we are a free people, we always will be.  It is only from within, and not from without, that America can truly be defeated.  And the ones who possess the power to defeat America are the ones who ought to be leading it.  America will not be defeated on a battlefield or a chess match.  It will be defeated if and when it morphs into something new and different from what it has been.  That is why we should beware of efforts to change the definition of what an "American" really is.  That is why we should be educated and vigilant and principled with regards to how our government conducts itself.  And so far, my verdict is that we are still at risk.


* Probably correctly, I will stipulate.  That's not the point.
**  I've said it before and I'll say it again -- the rule should be "No torture.  Ever."

Ground Zero Mosque

There is a building near the corner of Broadway and Park Place in New York City, occupying a spot either two or three blocks north of the edge of the World Trade Center reconstruction site depending on how you count it (it’s on the north side of the street two streets away from the northern edge of Ground Zero).  It has recently been the home of Burlington Coat Factory, which four or five stories tall, it is dwarfed by taller building surrounding it.  The building is owned by Soho Properties (possibly Inc. or possibly LLC; the use of multiple business entities for a single enterprise is a common and legal strategy for high-capital ventures such as buying and selling real estate in Manhattan.)  Soho Properties, in turn, is controlled by a man named Sharif El-Gamal, one of its principal owners and its CEO.  El-Gamal is also affiliated with a group called the Cordoba Initiative.  Cordoba Initiative describes its mission as follows:

Cordoba Initiative aims to achieve a tipping point in Muslim-West relations within the next decade, bringing back the atmosphere of interfaith tolerance and respect that we have longed for since Muslims, Christians and Jews lived together in harmony and prosperity eight hundred years ago.
Solving some of the most intractable conflicts in the world today requires innovative strategies for cross-cultural engagement. Cordoba Initiative tackles this mandate with forethought, expertise and the ability to leverage contacts in influential positions within the Muslim World and the West. Thinking outside the box about international and intercultural conflict resolution also means thinking introspectively about each side's place within its own historical narrative with a view to devising internally oriented solutions.

Cordoba Initiative would like to build a thirteen-story building at Park Place and Broadway.  The proposed project, “Cordoba House,” as a thirteen-story tall community center which will include a worship space for Muslims.  The first link in this paragraph is a CNN article describes it as a 15-story project, but later reporting says it would be 13 stories.  It hardly matters for our purposes because this is not an architecture blog, I’m interested here in the political, social, cultural, legal, and economic issues raised by the project.  Whether it’s a 13 or 15 story building is something that architects, engineers, financiers, and zoning commissioners can tackle later, if the project ever goes forward.

The principals of the Cordoba Initiative, which presumably includes Mr. El-Gamal, are Sufi Muslims.  Sufism is a sect of Islam which has a highly spiritual, mystical component and is separate from the better-known Muslim sects of Shi’a and Sunni; it is the same sect that gave rise to the famous whirling dervishes (more formally called the Mevlevi) and avows that its doctrines are of infinite tolerance; there are some people who claim to be Sufis but deny being Muslim, which is a matter of some theological controversy among religious scholars and others who care about such things.  Point is, people are pissed.

The proposal to build Cordoba House is, unsurprisingly, controversial.  Those who find the proposal offensive and in bad taste – including on the one hand a conservative or GOP-related group I’d never heard of before called “the Republican Trust PAC,” which unsuccessfully tried to run advertisements on TV to use the issue for fundraising, and on the other hand angry atheist (really anti-theist) “comedian” Pat Condell (who tries to be preachy and is therefore not funny in his video blasting the idea) – dwell on the fact that the terrorists who hijacked the planes and flew them into the World Trade center nearly nine years ago were not only Muslims, but motivated by a fanatical belief in Islam.

So it is not surprising that there is an effort underway to, regardless of the merits of such a proposal, slap “landmark” status on the existing building so as to prevent its being torn down and rebuilt as Cordoba House.  There is even a proposal to build something called “The 9/11 Christian Center At Ground Zero,” which strikes me as just a little bit tacky (especially considering that there is already a rather famous Christian Church, Trinity Church in Manhattan, which is already literally across the street from Ground Zero and boasts of George Washington having worshipped within its historically-significant walls.  Rick Lazio (amusingly described to me as “a punk” during my visit to New York City ten years ago by a self-identified Republican back when then-Congressman Lazio was running for Senate against Hillary Clinton) is making the source of its funding a campaign issue; which is good for him because Lazio’s campaign appears to be pretty much out of dough.

In response, the Cordoba Initiative has decided to rename their project “51 Park Place.”  As if that matters at all to anyone at this point.  It seems pretty clear that no matter what they call it, if there is a Muslim house of worship there, a certain group of people are going to whine about it.

I say "whine" rather than "object," because the building of this community center, mosque, house of worship, or whatever else you want to call it, does not appear to violate any laws of the United States of America, or those of the State, County, and City of New York.  The appropriate local governmental board and the Mayor have given their blessing to the project.  So it’s a legal use of the property and that is what the owner wants to do with it.  If it’s not illegal, people should be able to do what they want with their own property.  Respecting the freedom of others means tolerating it when they make decisions you would not have made.  You might not choose to be a Muslim, but you’ve got no choice in the matter of your neighbor deciding to become one.

Are the whiners bigots?  Well, if I – an atheist who thinks that Christianity and Islam are simply two different kinds of the same nonsense – can distinguish between fanatic Sunnis who hijacked the airplanes and the quasi-hippies of the modern-day Sufi movement, then surely others can do the same.  (Stipulated that historically, Sufis have been as violent as pretty much any other religious sect you care to name.)  These aren’t the same Muslims. Both of the whiners I cited -- Pat Condell the atheist "comedian" and the Republican political group I've not heard of before -- present a monolithic view of Muslims, which is that all Muslims are the same as the ones who flew the planes into the buildings or who odiously celebrated that attack after it happened. But such a monolithic view of Muslims is erroneous; Muslims are no more monolithic in even their religious views of the world than are Christians and imputing similar politics to them based on their purportedly similar views of the divine is as much a mistake as saying that all atheists are politically liberal. It's just not so. Condell in particular warps history by condemning even the name of the Cordoba initiative as one which celebrates the Muslim conquest of Spain; I would challenge him to find an alternative example of a place and time in which "Muslims, Christians and Jews lived together in harmony and prosperity" other than the Umayyad Caliphate.*

By either deliberately or ignorantly failing to see these people for what they really are, they are portraying the sponsors of the building as evil when they are not.  Ignorance, or worse, deliberate misrepresentation, are hallmarks of bigotry.  A sometimes blogger of whom I am a big fan would likely go further and call the attempts to stop the mosque from being built "dog-whistle racism;" I'll say that many of the opponents of the mosque may not think of themselves as bigots, but if so, they ought to take a step back and try to look at their actions and statements from a more objective perspective.

And then there’s the issue of a mosque going right there.  “Why can’t it be built somewhere else?” is the question.  Having it close to Ground Zero may well be the point – locating a center dedicated to portraying Islam as having a peaceful, tolerant side near the site of a great atrocity committed in the name of Islam may well be the focus of the idea behind the center in the first place.  Perhaps you disagree with the notion that Islam can be a religion of peace (and indeed, there is ample evidence that people use Islam to justify horrific acts of violence and war).  But you can’t stop someone from saying something just because you disagree with what they have to say.

So, how far out from the “sacred ground” of Ground Zero do we have to go, anyway, before a mosque’s presence would be tolerated?  Presumably, those folks who say that it is an insult to the memories of the more than 3,000 people who died on 9/11 and argue that a mosque “right there” is inappropriate must concede that such an argument implies that it would be appropriate to build a mosque somewhere else.  So two blocks away is too close.  How about Chambers & Church, five blocks away?  Still too close?  Maybe not in Manhattan at all, so how about Brooklyn?  (Too bad, because there’s already a mosque in the East Village, about one and one quarter miles from Ground Zero.)  My suspicion is that the sort of person who objects to a mosque being built in Manhattan is going to disapprove of a mosque being built pretty much anywhere, at least anywhere in the U.S.A., but that result is also unacceptable in a country whose ideological roots are as permeated as ours in the idea of freedom of religion.

Another objection is that this somehow symbolizes a triumph of Islam over America.  But I don’t see that in the presence of a mosque at all.  I see the presence of a mosque near a place so important to our national memory as a triumph of American values – values of tolerance, of liberty, of property rights, of people of different backgrounds coming together to form a new culture – dare I use the word “diversity,” charged as it is with the weight of political correctness?  Yes, I dare.  Diversity is better than its opposite, and the idea of America as a "melting pot" of global cultures inherently involves diversity.  The "melting pot" idea also involves assimilation into the larger culture here, but the avowed ideals of the Cordoba Initiative fit very well into both halves of that dynamic.

My personal preference might be that there be no houses of worship at all in downtown Manhattan at all.  But even so, I’d concede along the way that some of the churches there are historically significant, some are beautiful buildings, and they provide outlets for the residents of those neighborhoods to engage in the religious activities of their choice.  My personal preference can’t be what’s happening because my preference infringes on the freedom of others.  Your personal preference might be that there be no mosque there, but Christian or Jewish houses of worship are okay.  But such a preference also infringes on the freedom of those who want there to be a mosque, and moreover that preference favors one religion over another.  It is our own rule, our own ideal, that the government may not favor one religion over another.  And, whatever rule is made should be one that maximizes freedom to the extent that is reasonably possible.

Therefore the result must be, let Cordoba House, I mean, 51 Park Place, be built.  Not to appease the Muslims or permit them a "victory," but rather in fulfillment of our own national ideals of freedom.  When we fulfill our own ideals of the rule of law, especially in so poignant a place as this, that will be our victory, a victory more profound than a military conquest.  It will be a victory for liberty.


*  Cordoba itself is ambiguous from the standpoint tolerant diversity, peace, and prosperity.  If you lived in Cordoba in, say, the year 1000, you would much rather have been a Muslim than a Christian or a Jew.  The dhimmi paid higher taxes and faced restrictions on their ability to own property or pursue a career in the government or the military.  Nevertheless, they were not enslaved, free to practice other professions, able to access education, buy and sell property, pursue justice in the courts, and were allowed to worship as they chose and maintain their own houses of worship.  The Umayyads conquered Iberia from 711 to 718, and Christian leaders, initially based in what are today regions of Aquitaine and Languedoc began the reconquista in 722, which was not completed until nearly eight hundred years later.  So it's not like the Christians of the era were universally happy with being ruled by the Muslims -- but since King Ferdinand and Queen Isabella implemented the Inquisition so soon after expelling the Moors from Granada, the completed Christian reconquista can hardly be seen a step towards greater tolerance.  What's more, even the Muslims of the era cannot be seen as monolithic; while the Umayyads practiced a relaxed form of Islam, one which permitted interfaith marriages, the drinking of wine, and did not enforce daily prayers, they were eventually displaced by the Almoravids and the Almohads, who were more culturally similar to the stricter observances pervading in the Arabic and Iranian areas of Muslim dominance and who also fragmented the political unity of Iberia that the Umayyads had achieved.  So there were intolerant Muslims who came to rule the Caliphate of Cordoba after a time, too.  I can and do accuse the sponsors of the Cordoba initiative of idealizing the Caliphate of Cordoba, but the point here is that despite the ambiguity and flaws that came out of the nearly eight hundred years the Muslims ran the show south of the Pyrenees, there was for a substantial period of historical time a degree of interfaith tolerance actually practiced, combined with a degree of economic prosperity and cultural achievement, that had not been known anywhere on Earth since the fall of the Roman empire.  And yes, I'm including China, India, and Byzantium in making that claim.

Promise Breaker

When I first seriously looked at Barack Obama as a candidate for President, the thing I liked best was that he took civil liberties seriously.  He really got it that freedom is what America is realy, really, all about.  If he became President, our government would take the Constitution seriously again.

Since then, of course, I've been quite disappointed in how reality has played out.  At first, it could be chalked up to inexperience and needing to respond to things immediately before Obama's new policy positions could be fully worked out.  But after a year and a half in the White House, Obama owns whatever it is the government is doing outright, and if anything, it's worse than it was under Bush because not only has nothing changed, Obama has in some cases literally taken things up to the next level.

Here, I'll let my man Jon Stewart lay it out for you, using video to compare Candidate Obama to President Obama in the way that only The Daily Show (and its spinoff Colbert Report)* ever seems to actually do:

The Daily Show With Jon Stewart	Mon - Thurs 11p / 10c
Respect My Authoritah
www.thedailyshow.com
Daily Show Full Episodes Political Humor Tea Party

I've said it before -- where Bush would have read your e-mail without a search warrant, Obama will just plain f-ing kill you.  That's rather a more serious civil liberties problem. 

This guy does not take civil liberties seriously.  He talked the talk as a candidate and not only did nothing, but consciously made it worse.  The one thing I really, really was looking forward to in an Obama Administration turns out to to have been a cynical lie.

But on that super-accelerated deficit spending plank of his platform in exchange for little tangible increase in government or medical services, I've got to give the guy credit -- he followed through on that campaign promise with gusto.

I can't say I'm surprised.  I am, however, quite disappointed.


*  Once again, I throw my hands up in frustration that it seems to take a comedy show to do what the news ought to be doing.

The Citizenship Of Negative Rights

A proposal by Senator Joe Lieberman:

It’s time for us to look at whether we want to amend that law [depriving citizenship of those who enlist in foreign militaries against the US] to apply it to American citizens who choose to become affiliated with foreign terrorist organizations, whether they should not also be deprived automatically of their citizenship, and therefore be deprived of rights that come with that citizenship when they are apprehended and charged with a terrorist act.

Lieberman, in other words, would take away a U.S. citizen's rights upon that citizen merely being accused of terrorism. This is populism at its most detestable and frightening.  Had Lieberman at least said that citizenship could be stripped after conviction of such a crime, well, I still wouldn't like that, either, but it would be a little bit better.

After all, if we're talking about people convicted and not merely accused of crimes, well, what exactly does such a person lose?  Life, liberty, or property, obviously; a convicted felon may be imprisoned or fined or executed, depending on the statute authorizing punishment and the crime of which the felon was convicted. That's what the criminal justice system is all about.

A felon loses his franchise; felons are deprived of their right to vote upon conviction. The right to vote is, of course, the right to participate in forming the government, and therefore it is consent to be governed.  When you take away someone's right to vote, you are saying that their consent to be governed is now irrelevant; such a person is a "subject" rather than a "citizen," at least in one sense of the word "citizenship."

Another sense of the word, however, is that a citizen is a "participant in society."  In theory, a felon can go out into the work force and get a job; while getting a good job upon release from prison is difficult for many felons, it is not impossible, particularly if the felon possesses appropriate skills or education.  Felons are not deprived of their property even while incarcerated unless their property is substantially related to the crime of which they were convicted (e.g., drug dealers do not get to retain property rights in their drugs or guns, but unless the government and prove that it was bought with drug money, they can keep their houses and cars). Convicted felons can enter in to contracts. They retain their rights to free speech, free worship, and to petition the courts for redress of grievances, and when they are in court, they get the same due process that would be given to a non-felon in their situation. Soldiers may not be quartered in their houses. Generally, they can get passports (unless they are on parole and the terms of the parole prohibit international travel), and they can travel between the states freely.  Felons, upon release from prison, are in many senses of the word, meaningful participants in larger society.

There are some other rights that felons lose, too.  The ability to own a firearm. The ability to serve on a jury. Some but not all privacy rights; felons can be and often are made to register their residence and periodically report on their activities to law enforcement agencies (e.g., Megan's Law).

Thing is, we do these things to convicted felons already -- we take away rights and civic abilities which we would not and should never tolerate being done to a law-abiding citizen.

Felons also retain certain civic duties. Men under age 40 may be required to register with the Selective Service despite their status as felons (this does not mean the military will want them, but they are still required to register).  They must obey lawful orders of the police and the courts; they must comply with all laws the same as non-felons.  And most importantly, they must pay taxes. (This despite their inability to vote; while we tend to think of this an an exception to the concept of "no taxation without representation" this is not a rational or principled exception but rather an accident of history.)

So if what Lieberman is talking about were things like this, well, it really wouldn't be much of a stretch anyway.  Convicted felons, even upon release from prison, are not really full citizens anyway since, as I've demonstrated by example above, they do not possess the full suite of rights that an unconvicted person does.  But what Lieberman is really talking about are due process, bail, and cruel and unusual punishment. 

But let's also give a thought to the abstract concept of what "rights" are in the first place.  Our Constitution does not speak very much about the rights of the individual, but rather mainly about the extent of the government's ability to exert power.  Political scientists refer to this with phrases like, "Federal constitutional rights are phrased in the negative, not in the affirmative."  A Constitutional right in this nation is the "right" stop the government from doing certain things to you.  Thus, our rights as citizens are phrased as restrictions on what the government can do:  "Congress shall make no law respecting an Establishment of religion..." and "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

So, if Lieberman's proposal is intended to be meaningful, he would expand the government's power, to grant the government power to inflict punishment without due process, without the right to counsel, without availability of the writ of habeas corpus, to impose excessive bail and to inflict cruel and unusual punishment. In the American constitutional scheme, depriving the individual of rights is the same thing as making the government more powerful as to that individual.

Since the "rights" of a citizen are really limits on the power of the government, to not be a citizen means that the government can do certain things to you which it could not do to a citizen. But even people we think of as non-citizens (say, law-abiding tourists from another nation, or a resident alien with a green card) are still beneficiaries of the limits on the powers of the government set forth in the Constitution; and indeed, they like anyone else within the government's power have the ability to petition the courts to enforce those limits on governmental power.

In other words, the government cannot deprive an alien of due process anyway.  The government cannot demand excessive bail from an alien anyway.  The government cannot impose cruel and unusual punishment on an alien anyway.  Stripping someone of their citizenship by statute does not give the government the Constitutional power to do the things Lieberman wants it to be able to do.

What, then, would stripping a convicted terrorist of U.S. citizenship do?  It would not enable the government to deprive the terrorist of life, liberty, or property without due process.  It would not enable the government to hold the person without bail, without assistance of counsel, or otherwise do with this person as it pleased (absent some other circumstance creating an already-existing exception to those legal doctrines).  It would not make extraction of information from such a person easier, more effective, faster, or more reliable.  It would not make securing a conviction against such a person any easier.  It would not make us safer, more secure, wealthier, or more free.

What it would really do, of course, is put Joe Lieberman on record as really, really not liking terrorists. Well, Senator Joe, I'm willing to give you credit for that pretty much just on your say-so. You really don't need to be monkeying with the Constitution to prove it and frankly, I'd rather you didn't.

Constitutional Rights Are Not Negotiable

Faisal Shahzad is an American citizen of Pakistani national origin and an apparent adherent to the Muslim faith who has been arrested for suspicion of being the Times Square Almost-Bomber.

Faisal Shahzad is an American citizen who has been arrested for suspicion of a crime.

Faisal Shahzad must be read his Miranda rights.

This is not subject to question, negotiation, political expediency, attachment of labels, or any other matter of convenience.  If we dispense with Faisal Shahzad's Constitutional rights now, there will be nothing to stop the government from dispensing with your rights when you are wrongfully accused for something.

Any questions, Senator McCain?  I mean, I know you're running for re-election against a challenge from your right flank and all, but the Constitution is not a document that we ought to disregard, much less lightly.  This ought not to be subject to question, negotiation, or political discussion.

UPDATE:  But see.  Ordinary Gentleman Mark Thompson is correct to point out that, if the government is certain that there is enough evidence to convict Shahzad without interrogating him at all, no Miranda warning need be given. This, however, is nothing new because Shahzad is being called a "terrorist" as opposed to a "common criminal."  Further, as I've noted elsewhere, nearly all convictions are based upon the strength of confessions, which means that Miranda or its equivalent should presumably be in play after each and every arrest effected by any U.S. law enforcement officer.

Calm Down Already

The rhetoric has become too shrill.  Even bloggers I normally like, respect, and find intellectually resonant have reverted to fear and hysteria.  And, if one reverses the ideological polarity, there is a remarkable resemblance to the ideological panic of 2002.

That's not to say that ideological or policy opponents of health care reform should relax their efforts to articulate their vision of a better America or to undo the damage they think has been done -- far from it, although I'm not sure what, exactly, they could argue for at this point.  There are two kinds of members of the opposition:  the ones who actually engaged in the legislative process (and realized a moderate degree of success in doing so, an example of the hated "Broderism" of a true moderate in action) and those who chose plugging their fingers in their years and stamping their feet while saying "no-no-no-no-no-no-no-no-no-no-NO!" over and over again as the tactic of choice.  The President rightly does not fear the latter tactic because it's a new middle-class entitlement, which means that like Social Security or the home mortgage interest tax deduction, we might as well chisel it into granite as a permanent fact of American economic life susceptible to only marginal change from this point forward.  It can be changed incrementally but good luck trying to repeal it.

But it is not worth engaging in domestic terrorism.  Knock off the bullets* and the knives and the other implied threats of violence already.  While not all the reports of petty acts of domestic terrorism are accurate or even plausible, the right way to express your distaste for Congress' recent activity is through the political process.  What we're reading about now is terrorism -- the use of violence against those who have personally done nothing wrong in order to effect political change motivated by fear.  Violence as a form of protest against passage of the health care reform laws should be condemned by everyone on all points of the political spectrum immediately and without reservation.

So it's time for some perspective. Health care reform is big, expensive, and inefficient government in action. As enacted, it is an extension of the Bush Administration's big-government, compassionate-conservatism ideology -- it piggybacks government supports for private industries, uses fines to incentivize behavior the government finds desirable, and despite a lot of rhetoric and a willingness to cross ideological lines, it will both have much less effect that either its proponents hope or its opponents fear.

The big deal about it is not that it diminishes our civil liberties, because it doesn't.  It is that we have more important things to be spending our money on -- or more accurately, to be spending our children's money on.  That is worth raising and sustaining a political stink and working to minimize its fiscal impact.


*  The bullet found in Eric Cantor's office window is being treated by the police as a "random act" rather than one with a political motivation. Okay, but the timing of this "random act" still seems very odd.

Terrorism in Austin

It appears that a 53-year-old Texas man named Joseph A. Stack had some serious and perennial tax troubles and had come to greatly resent the government for pursuing him to pay back taxes (and interest and penalties).  If that were the end of the story, it would not be news.  Quite unfortunately, this is news, because of what happened next.

Stack's house was set afire either yesterday or today, and today he posted a suicide note on the internet that read: "Violence not only is the answer, it is the only answer ... Well, Mr. Big Brother IRS man, let’s try something different; take my pound of flesh and sleep well."  Then, someone who seems to have been Stack flew a small plane into a seven-story office building in Austin which houses the IRS.  There are many injuries but as of the time I write these words no fatalities and only one person unaccounted for (who may well have simply not been at work today for some reason).

Now, here's the thing -- excerpted from the Business Week story linked above:

Spokesmen for the Federal Bureau of Investigation and the Department of Homeland Security said that initial indications show no ties to organized terrorism.
"It does not appear to be terrorism," White House spokesman Robert Gibbs told reporters traveling with President Barack Obama on Air Force One today. The Department of Homeland Security "is looking at all angles," he said.

"It does not appear to be terrorism," Mr. Gibbs?  Really?  Flying a plane into an office building trying to kill employees of the U.S. government isn't terrorism?  So how exactly are we defining the term "terrorism" these days?

I presume here that Stack was the suicide pilot.  In quantitative terms like scale and effect, Stack's suicide attack has fallen far short of achieving what al-Qaeda's strike on September 11, 2001 did.  But qualitatively, I have a difficult time distinguishing this from 9/11.

Can a lone actor be a terrorist?  Of course.  One does not need to be supported by a large network of like-minded individuals to be a terorrist.

Can a person be a terrorist acting against his own government, his own nation?  To be sure.  Timothy McVeigh is reviled as a home-grown terorrist.  Anthony Padilla has been held by the U.S. government despite his U.S. citizenship.

Does a terrorist need to have some kind of an announced or discernable political objective?  Stack presumably had one -- to get the IRS to change the way it does business, to leave people like him alone lest its offices be attacked in this fashion again.  Or at least to revenge himself on the IRS, which he seemed to view as some sort of oppressor.  Stack thought that achieving this goal, a goal detrimental to the strength of the U.S. government, was something worth exchanging his life for.

Now, my heart goes out to the families of the injured, and to the family of Mr. Stack -- his family should not be penalized morally for a crime that they did not commit, and they did lose a loved one today and may well be homeless and in serious financial trouble on top of that. I hope people can see that without getting blinded by anger at Stack himself. It's easy, too, to understand how a guy in Stack's position could feel like he was at the end of his rope, particularly if you've been through tough financial times yourself. So that makes the attack in Austin today a deeply saddening event.

But it's also one that really brings home the point that attaching labels like "terrorism" or "criminal" to a particular act is a very subjective thing -- and one that winds up having not just nomenclature but philosophical, political, and legal consequences.  This incident, to me, illustrates how smoothly-graded the shading between "terrorist" and "criminal" really is.  Which is why we need to be on our guard against turning a blind eye to the government eschewing Constitutional safeguards.  Like, say, Mirandizing a suspect, or arraigning him after he is arrested.  It's also a reminder that threats come from within the country as well as from without.

Sarah Palin And The Hand Jive

Holy crap, it's been three days and people are still blogging about Sarah Palin writing notes to herself on her hand while speaking at the Tea Party convention in Nashville on Friday.  Seriously.  How is that different than if she had used a teleprompter or index cards?  Anyone who's had to do public speaking for longer than five minutes at a stretch knows how easy it is to forget even very basic things.  So she used a few notes, and chose a rather juvenile method to write them down.  So what? 

No other politician in America would have received such vicious scrutiny and content-free criticism.

I say, criticize what she said, not the notes she used to remind herself to say it.  What did she say that's worthy of criticism? 

After spending ten minutes justly criticizing the Administration for the bank bailout and the stimulus package, she then advocated tax cuts without advocating a scaleback in government services.  That's bad for the national debt.  ("Washington has got to across the board, lower taxes for small businesses so that our mom and pops can reinvest and hire people so that our businesses can thrive.")

She complained that Abdul Mutallab (the Amsterdam "Christmas bomber") got a lawyer and was read his Miranda rights, suggesting that basic and fundamental components of due process are somehow bad.  ("The protections provided—thanks to you sir [PALIN ADDRESSES MALE VETERAN IN AUDIENCE]—we’re going to bestow them on a terrorist who hates our Constitution and wants to destroy our Constitution and our country? This makes no sense because we have a choice in how we’re going to deal with the terrorists. We don’t have to go down that road. There are questions that we would have like answered before he lawyered up.")

She mocked the idea that the President ought to be respectful of the Constitution.  ("Treating this like a mere law enforcement matter places our country at grave risk. Because that’s not how radical Islamic extremists are looking at this. They know we’re at war. And to win that war, we need a commander-in-chief, not a PROFESSOR OF LAW STANDING AT THE LECTERN!")

She was dismissive of the possibilities of diplomacy to resolve international conflicts.  ("...we must spend less time courting our adversaries and spending more more time working with our allies. And we must build effective coalitions capable of confronting dangerous regimes like Iran and North Korea. It’s time for more than just tough talk. Ah! Just like you . . . probably just so tired of hearing the talk talk talk . . . Tired of hearing the talk!")

All of these suggest that she has not thought through her ideas for governing the country.  All of this suggests that were she put in power, she would take the country down a dangerous path which we will later regret taking.  And none of it has anything to do with a few scribbled notes on her hand.

The Massacre Of Moab

In my now-famous post Top Ten Worst Bible Stories, I singled out the Massacre of the Midianites in Deuteronomy 7:1-6 and Numbers 31:1-18 for particular criticism.  It is, in fact, a story of genocide, the bloodthirsty and unprovoked annihalation of a people who had done nothing that we can look at today as having been even remotely morally equivalent to what they suffered at the hands of Jehovah's followers.

An intrepid, intelligent, and earnest apologist has taken on my challenge to offer a justification for this story.  I suggest that if you have interest in this exchange, you read his apology for it first, and then come back to the balance of this very long analysis, that appears below after the jump.

More After The Jump -->

Maybe It's Time To Start Taking The Train

So let me get this straight.  Dutch Security fails to identify a potential terrorist and keep him off a plane flying in to Detroit.  Then, the guy turns out to be a not very competent suicide bomber and fails to properly discharge his chemical detonator concealed within the lining of his underwear.  He is then subdued by fellow passengers and is now an existential threat to the United States from inside his cell in a Federal penitentiary in Ann Arbor.

Because of this, I will now not be allowed to leave my seat to pee for the last hour of any flight, unable to have a blanket if I somehow get to sleep, and maybe will not have the ability to use electronic devices at, well, pretty much any time during my flight.  Well, that might change with a by-your-leave from the airplane's captain.  Someone seems to have forgotten Rule One.  And that the Lockerbie bombing took place less than an hour after takeoff, not in the final hour, which pretty conclusively demonstrates that if a nutbag wants to blow up an airplane, he doesn't much care where in the flight arc he might be.

I don't see how preventing me from using my laptop or making me pee my pants is going to keep the airplane any safer.  And at some point, this increased and increasingly burdensome airline security is going to produce not just diminishing but decreasing returns in terms of both overall safety and allocation of security resources.

Top Ten Worst Bible Stories

It’s time for Bible stories. And they’re awful. In fact, they’re so bad I feel compelled to put them below a jump so that squeamish Readers can avoid them. Disclaimers first, and then the blood.  So you can skip the post if you know you're going to be offended.  But I hope you do read it.

More After The Jump -->

Never-Ending War Tax

Representative David Obey has proposed a “war tax” in the Share Our Sacrifice Act.  This is, I presume, a progressive's idea of fiscal responsibility.  Most families would pay an additional 1% of their net income as a surtax to their 1040 form income taxes, with exemptions for families with an immediate member of the household who actually served in Iraq or Afghanistan since the 2001 attacks, or who lost an immediate relative in either the attacks or in military operations in one of those two theaters.  Progressively higher surtaxes would kick in for families with below-the-line income of over $150,000.

I am in favor of supporting America’s war efforts, and I am in support of deficit reduction. But Obey’s proposal is not a good idea, either from the standpoint of the war effort, or from the standpoint of deficit reduction.  But I will nevertheless indulge in a pluck at low-hanging fruit here, and point out why this is a bad idea.

This “war” is unlike any “war” we’ve ever been involved in. We are “at war” with… what or whom? Al-Qaeda? Islamo-facism? Terrorism? Terrorism is a tactic; al-Qaeda is a network of terrorists with vaguely similar sorts of political agendas; Islamo-fascism is an (ill-defined) ideology which we are prepared to tolerate in an ally (read: Egypt, the House of Saud) while still using as a rallying cry against our enemies (read: Iran, al-Qaeda). These are not things that we can be “at war” against, at least not in the traditional meaning of a war in that there is no organized political, national, or military opponent against which we can deploy our military.

I’ve previously floated the idea that maybe we were at war with the nascent Caliphate of Osama bin Laden, which would be one of the first times I can think of in history that one nation went to war not to a) displace the government of a hostile nation-state, b) suppress a rebellion against its own government, or c) conquer geographic territory but rather to prevent a nation-state from being created. Perhaps Muslim resistance to the Frankish Crusades would count as another such effort to prevent the creation of a new nation-state (they failed and had to wait 200 years and several internal political realignments to reconquer that territory), and maybe the Boer War would count for that, too.

Maybe U.S. military efforts to capture Pancho Villa, who had political aspirations above his banditry, are the most similar to what we’re doing now. Those actions were on both sides of the Rio Grande and we didn’t exactly have permission of the Mexican government to conduct military activities within their borders, although the Mexicans were hardly in a position to object. But that was all over relatively quickly.

We were at war with Iraq and Afghanistan -- we displaced the governments of the Taliban and Saddam Hussein and replaced them with governments friendlier to us. We occupied those nations militarily after succeeding in those efforts, and an insurgency against our puppet governments bred underneath us. So now, we’re supporting those governments from insurgents who would topple them. So what we are doing now is not war, it’s something else, something which lacks a concise moniker. Let’s call it “nation-building.” Our record at doing this sort of thing isn’t all that great, but that doesn’t mean this is necessarily a bad thing to do or that we can’t succeed. The nations we are building in Afghanistan and Iraq are significantly friendlier to us than those which preceded them and we will be better-off strategically if they succeed enough to the point that they can defend themselves (but not if they grow so powerful they become regional powers in their own right).

So the “war” that Obey wants us all to pay a supplemental tax on is a chimera, not a “war” in the true sense of the word, the sense meant by the Constitution when it gives Congress the power to declare war and the President the power to make war. This “war” will never really be over until and unless we decide it is. We get to decide when Iraq and Afghanistan are strong enough to stand or fall without our involvement. And they probably never will be as long as anyone still lives who reads this post on the date of its publication -- at least, I predict that no one alive today will ever again see a day when there are not active-duty U.S. military forces deployed to Iraq in significant numbers. I’m not so confident about making such a prediction in Afghanistan, a nation with little strategic significance and few natural resources.

Congressman Obey is one of the most liberal members of Congress* and so he is hoping, I suspect, to make the public groan under the pressure of this tax and demand that the “war” come to an end so the tax will end also. He is deceiving himself, and in the process, unwittingly proposing a deception on the American people -- because even if this were an honest “war” tax, the “war” will never really end and therefore it will become a permanent tax. 

If Congressman Obey thinks the American people are undertaxed, let him say so.  If he thinks that we must raise taxes to solve our governmental deficit, let him say so.  A credible, non-frivolous argument can be made to support such a claim.  Myself, I'd prefer to see some cuts in government spending, but David Obey never saw a non-military spending cut he didn't detest with the same sort of virulent hatred which normal people would reserve for pederasts.  And if I'm going to be made to pay more taxes, I want to see the government being more responsible with that money than it has proven to be.  Giving a government run by the likes of Obey more money strikes me as about as wise as giving a packet of matches to a developmentally-handicapped child who is already playing with gasoline.


*  Wisconsin is a weird place -- you can represent an almost completely rural district, like Obey does, and still be so ultra-liberal guys like Michael Moore tell you, "Whoa, dude, dial it back a little bit."