Institutional Voyeurs
Mood:  flirty
Topic: Politics

All these issues that have been raised in the current debate over Iraq are old issues. These are the issues that caused Article I and Article II as well as the 1st, 4th, 5th, 6th, 7th, 8th, and 14th Amendments to be written. Taken as a whole there is no way a reasoning individual could possibly see these activities of the government as legal.

I say legal because the constitution is the codified or "made into law" will of the people. We can change our minds, but when the government does something that we have told them explicitly they cannot do or if they don't do something we have explicitly commanded them to do, they forfeit their legitimacy and become felons.

It's not some magic rite that makes them felons and it doesn't require a court to declare it. Courts are needed to sort out the issues and mete out the penalties, but convicted or not the objective reality of guilt remains. A person who has sworn to uphold the constitution and doesn't is forsworn, a traitor to the United States, and a felon. The fact will affect them even if they are exonerated or pardoned. Nothing can really ever rehabilitate such a person.

 But the latest bout in the dialogue has been the issue of the fourth amendment. This is a simple one and written in simple language. 

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

Now the word warrants is capitalized so it has been seen to mean a legal document. This needn't be the case though as the word warranted means justified. The likely meaning at the time it was written was a court order, but one that simply affirmed the inherent authority in the peace officer or other persons. Why does that matter? Simply because there is no such thing as a legal but warrantless search. If the search is legal then it is warranted, if not it isn't.

What this means when reduced, is that NO search OR seizure is legal when performed by agents of any branch of the US Government at any level unless:

1) a finding of fact by a court demonstrates a crime has been committed

2) an oath has been sworn (or affirmation by those who do not take oaths on religious grounds) by the searchers certifying on penalty of perjury that there is reasonable cause to believe that the persons who control the property to be searched are probably guilty of that crime

3) that the places to be searched are limited in scope and probative locations

4) that the things or persons to be seized are explicitly named prior to the search or arrest 

The "warrantless" searches being conducted are illegal and unconstitutional by virtue of the fact the authorities engaging in the searches and directing the agents have admitted to their warrantless nature. To declare ANY search as warrantless and then conduct that search shows a guilty mind. It is a felony confession.

Another tack commonly taken is the "reasonableness" issue. The text says no unreasonable searches, therefore the agency insists it is reasonable to search financial transactions and simple purchases and rented properties and the list goes on interminably.

The constant wheedling away at the constitution is disastrous. But don't me duck that question. Reasonableness is vague. It was intentionally vague because the framers were afraid they might be creating a guarantee that would prevent law enforcement. They left it to the people to decide what was reasonable. Reasonableness can drift from generation to generation. And while it offends most of us to think it, it is culturally and historically bound.

This is why the oversight by a court has been mandated. Judges in most areas are elected. For this reason, they must be sensitive to the cultural and historical context that determines reasonableness. Ergo the vagaries are eliminated when the legislation by congress and the executive orders of the president are curtailed by constitutional constraints.

Much of the body of law allowing hot pursuit is illegal law, because it defies the constitutionally mandated oversight in favor of expediency. The Supreme Court has often erroneously held that unconstitutional activities are constitutional because political agendas have swayed them to interpret the constitution instead of interpreting the laws as is mandated by the constitution.

This sort of bending the constitution to fit the statute instead of bending the statute to fit the constitution is born out of the desperate expediency of trying avoid protracted exchanges where bills are passed only to be overturned by the court. This dialogue is seen as too time consuming when vital issues of crime and national security weigh in the balance. 

Expeditious and efficient governance is tyranny. We do live in a high speed society. We do have sophisticated people committing crime. But it was never the intention that the federal, state or local government have the power to prevent crime. The tools they should be limited to are catching the perpetrator AFTER the fact or in the act. Crime prevention is the sole purview of the potential victim. Security guards and defense of property against trespass, robbery, theft or vandalism are the right of the people.

The US Government has long been in the process of disarming the public in the name of public safety. In fact, a disarmed public has no security from predatory persons. But more importantly they have no security such as that named in the 4th amendment, namely security in the face of tyranny. Security from arrest, or the seizure of property or business, medical and financial records is the Security that the president is mandated to protect. Yet our current president and his token legislature are the greatest threat to this security that we have faced since the Victorian policy state invaded us and burned the white house.

 I'm not advocating a particular course of action, other than legal reform which reverts these powers to the people as they were intended and which leads to the incarceration and/or execution of those persons who have been engaged in illegally circumventing fully half the articles and amendments to the constitution.

In Denmark, every able bodied man owns an assault rifle and amazingly they don't have a lot of murder and violent crime. If the criminal has to concern himself with the fact that he may be justifiably killed by his intended victim for illegal entry, or attempted robbery, crime drops. Criminals are first and foremost, risk management specialists. If the risk is too high in relation to the potential gain they back off.

This is the reason the first amendment guarantees the inherent right to bear arms. The intention was that a rogue agency of the government or a violent criminal on the prowl would be forced to consider the possibility that any given citizen might be better armed and trained. Both types of security threat are equally deleterious to the peace and public safety and should rightly be at risk at all times from the ordinary citizen.

The very atmosphere of firearms anywhere and everywhere restrains evil interference. They deserve a place of honor with all that is good.

-George Washington 

Adolpho Bush?
Mood:  incredulous

Today President Bush went on a rampage. The old saying is, "when you are caught in a lie, lie harder." Bush told us that special or unusual punishments were being meted out in secret CIA operated prisons in other countries, and that these cruel and unusual punishments had netted information that was instrumental in foiling at least three and possibly more terrorist plots. He told us that the use of cruel and unusual punishment in interrogation was acceptable because the victims of this treatment were dangerous men and had lot's of high grade information. In effect, he made the case that:

1) the ends justify the means

2) it worked so it must have been necessary

3) cruel unusual punishment forbidden by US statute is okay if it is done by the CIA and if the stakes are really high

4) belief that an almighty God is a moral and legal authority higher than the state and that his dictates transcend the the laws of any given nation, is cause for abrogating a believer's human rights. 

Torture works sometimes? Really? Well why didn't you say so? That must make it all right then. Especially since any authentic Christian or Anonistic Jew fits the profile for "persons of interest" in CIA doublespeak.

While he admitted the interrogation uses unusual techniques, Bush insists that torture is not being used. However, the following techniques used by CIA interrogators have been catalogued:

1) slapping

2) hitting the soft tissue of the belly in order to cause great pain without internal injury

3) prolonged use of repetative noise at high volume designed to cause nerve defness and disorientation

4) sleep deprivation and enforced exhaustion designed to cause dementia and mental collapse

5) water boarding: the use of fabric and running water to incite the fear of drowning.

Sorry George, no spin can make these techniques anything other than torture. This is the reason it is critical that the Senate Armed Services committee form a bill that enforces what CAN be used as an interrogation technique and allow exceptions ONLY where an independent or judicial review, subject to public scrutiny, has been made. If the executive, or worse yet the field operative is allowed make these decisions for himself we will only see repeats of Abograve. They have proven they cannot be trusted to behave humanely and responsibly without tight regulation.

In addition the use of the belly slap is what was euphemistically referred to as the "rubber hoses" in the 1930's. This technique is precisely the method that caused the need for Miranda. If this technique is rearing it's ugly head again then it only emphasizes the need for ALL non-military prisoners of ANY agency of the federal government to be subject to miranda. The use and authorization of secret prisons must be prosecuted as the war crime it is.

One of the biggest issues in this debate is the status of CIA and other intelligence operatives. Simply put they are either agents of the justice department and as such must be bound by miranda, or they are agents of the DOD and have no authority to act in a law enforcement capacity toward nonmilitary personnel. This attempt to innovate is clearly, not only unconstitutional but is intended to agressively and with premeditation undermine the constitution and the US Service Code and their authority over the activities of ALL US persons and any person acting as an agent of a US entity or agency.

Sadly what we are seeing is the natural outcome of antireligious, anti-intellectual relativism that soldiers and politicians who have grown up in 20'th century America have inculcated. In WW II a soldier given an order to commit the sort of atrocities that we've been leaked would have politely refused and accepted a court-marshal rather than obay an unlawful and inhumane order. The caliber of the men and women serving is not the issue, it's the lack of religiously instilled inhibitions that would make such behavior unlikely. Plato is no substitute for Amos. 

Reciprocity ain't Nothing but a Hound Dog

As congress enters recess, the Bush administration is slowly proceeding with the process of drafting legislation which they will request congress to initiate when they return. This legislation is an attempt to excuse the past egregious behavior by the military and in particular the Military Police and the Military Intelligence forces deployed in iraq and in Guantanamo Bay. This legislation will center around the issue of military tribunals commissioned to try prisoners detained because they are accused of terrorism against US persons or property. Three issues stand as preeminient.

1) Use of heresay evidence.

2) Use of confidential materials.

3) Use of information derived through illegal measures such as torture.

Now torture is a sticky issue. The circumstances that Attny. Gen. Gonzales wants to protect is the situation where a person is captured and tortured by a third party and information of a probative value is uncovered, OR where intelligence operatives torture a subject to get warfare intelligence that is later proven to be factual. This information would be factual and probative in hindsight, but because it was obtained through inhumane means it is not admissable in an American court of any sort. The Attny. Gen. wishes to inovate and create a situation where this tainted information could be used in court.

Sen. Sessions has expressed the belief that if a group that is targeted by the United States doesn't respect american laws and standards of humanity, then those persons should not be given the protections which the constitution and laws of the US provide. This cannot be anything but hypocrasy. As senator Graham pointed there is the question of reciprocity. As I'm sure Sen. Sessions is aware this concept has been summed up nicely in the words of Jesus as reported by Matthew: "What ever you want men to do to to you, do precisely that to them." If he actually values the freedom mandated by the constitution (not priviledged by government fiat) then he is responsible to treat and to insure that other treat ALL persons with those standards.

With regard to confidential materials, yes as Sen. Graham has pointed out there are things too sensitive to provide to the  accused. In addition the provinence of this information may be necessary to secrete and deny to the accused. In these cases, if the prosecutions case rides on such information, that information cannot be legitmated as evidence. In order for justice to be served, a defendent must be allowed to attempted to discredit such evidence through confidential communication with his counsel. If the data introduced as evidence cannot be discussed with the accused the counselor cannot adequately defend the accused. If it's secret you can't use it. This is a reasonable expectation.

The concern over heresay is the intention to allow the opinions of intelligence operatives and soldiers to be admitted into evidence without the presence of the accusing witness(es). This heresay evidence provision is clearly unconstitutional and will allow evidence to be presented that is uncorroborated and cannot be directly challenged by the accused. If that is allowed to stand there can be no claim that any verdict is just. Further there is a simple solution.

Currently every court in the land allows sworn affidavit on the part of the witness to staqnd for the witness. The only objection to using affidavitt must be that the administration wants to use unsworn testimony, made in the absence of the accused. An intelligence operative or even a foreign national, could be sworn in in the presence of a cleared JAG officer and the identity of the witness would thus be protected for national security purposes. Even a line soldier could be called to a rearward position for this process without disrupting his unit undully.

These issues are not as cloudy as the administration wants to make it. The "grey" of the grey areas is introduced by the administration for the purpose of misdirection. The disire is to use military assets as police against citizens. This is not only illegal it's immoral. If police powers are desired, put federal martials in their fancy black uniforms displaying their shiny gold shields and send them forward to question and incarcerate detainees. Surly OKC, Fort Gibson and Chicago would be happy to let them go for a bit. ;)

Sen Graham disappointed me on one point. Fortunantly he isn't my representative, but I was disappointed by his statement that he believes that persons captured during this "war on terror" should not be reported to the international community. There he drifts from the very sound line of thinking he's been following through this mess. Reporting is a critical issue. Reporting dissuades people from open ended incarceration such as that suffered by Nelson Mandella and the huge numbers of US soldiers held in Viet Nam after 1972.

It is critical that the administration be transparent as the the identities of ALL persons captured and held. Habeous corpus is not a suggestion and it is critical to just and humane treatment of prisoners. If anything the revelation of such information only increases the effectivness of the war. The propaganda and moral value of such reports is astounding. Ideological groups like Al Qaeda are often more motivated by personalities than by a heartfelt attachment to principles. In these cases the capture of an important leader only served to demoralize the enemy. There is no valid reason not to make the reports mandated by the geneva convention, further there are overridding reasons to make these reports.

 One of the arguements that is being presented is that "this war on terror" is so different that the previous law was not framed to envision it. In fact Sen. Warner confirmed that he as a marine in 1949 was never faced with these issues. This arguement is of course untrue. As part of a rebellious uprising against the lawful authority of parliment and of the Crown, George Washington lead an unlawful combat that was quite successful in the end. Adjunct to this John Adams and his terrorist organization "The sons of Liberty" or "The Sons of Thunder" were engaged in public beatings, bombings, arson and theft of goods and funds against British subjects and American colonists who were loyal to Great Britain.

The "Minute Men" were irregular ununiformed unlawful combatants who formed improptu militae to fight for the American independence. We rightly, and dutifully revere these Terrorists, and elected several to presidency. Great men were every one of them.

When france was annexed by Germany in WWII, Germany engaged in Nation Building identical to what we have done in Afghanistan and in Iraq. The lawful French Government was Nazi and they were allied with Germany. An unlawful combatant force was encouraged and supported by the US Government. The Frech troups in North Africa began to illegally fight against France and private citizens were equiped to commit terrorism against German military personnel, their families and their French supporters including the Lawful government of France. We unashamedly celebrate these people as patriots and heros. God bless them.

When the USSR invaded Afghanistan and tried to engage in nation building we equipped the Taliban with Stinger missiles and CIA military training and advisors. This is in fact who trained Osama Bin Ladin. We built the terroist force in Afghanistan with the intention of driving the Russians out. 

When a small underequipped and disenfranchised people are oppressed by a greater and more powerful force it is the standard prosecution of War to used "commando" tatics and unlawful combatants. This has ALWAYS been american legal and military doctrine. Changing that now, for simple expediency is dangerous to the Union and the Constition, is hypocritical and will result in the torture, execution and imprisonment of Americans in the future. Reciprocity is a hard pill to swallow. I don't want to see us take that medicine.

Yes we have no bananas.
Mood:  incredulous

One of the funnier abuses of the English language is the careful misapplication of the double negative. Yes we have no Bananas. A critical issue in the testimony of the Atorney General when he spoke before the Senate Judiciary Committe on Tue of this week, seemed to be Constitionality of presidential action and constitutionality of congregional oversight. "Judge" Gonzales seems to be committed to the stress of symantics regarding constitutionality in the context of just such distortions.

 

He repeatedly used a peculiar definition of the semantics when making a primary point and in the next sentence he would dynamically define the same term in a contradictory manner then combine these points to produce a conclusion that is based on two contradictory opinions. When boolean logic is used to diagram a logic argument or dialectic this works out to: A= B and C=D therefore A=D. This sort of syllogistic tap dance is the basis of much of the communist political doctrine as well as occuring in mein kampf. It certainly is not sound thinking.

 

The main way this plays out in the "General's" dialogue is his oblique statement that Article 2 of the constitution gives the president and his direct employees the right to do anything to pursue the prosecution of a war without accepting the dictates of the congress, unless a specific law passed by congress covers specific details of a specific operation. This disregards the fact that operational details of an ongoing campaign MUST change to meet the circumstances that arise in the heat of battle. Mr. Gonzales would contend that when a plan goes ary, the president and the entire chain of command are exonerated by virtue of Article 2.

 

The "general" argues for instance that FISA courts have no jurisdiction over the action against `al Qaeda and cannot apply limitations such as the 15 days limit on wiretapping of US persons in contact with suspected members. This limitation essentially states that wiretaps must cease within 15 days of a declaration of war. The General claims no declaration of war on `al Qaeda exists. Yet when he describes the president's powers under Article two he refers specifically to wartime powers. This is exactly the sort of dual definition cited above.

 

When asked if he agreed that the decision in Hamdi vs the US Government, restricted the CIA to abide by the articles of the Geneva convention with a minimum standard of always in every circumstance being held to the standards of Title 18 of the US Service code and Article 3 of the Geneva convention, firmly stated that he didn't agree that the intelligence services must be bound to abide by this article in any action other than action against Afghanistan. This is most troubling.

 

The clear intention is to preserve the right to violate US LAW and constitution as well as US treaties, including the third geneva convention. It is clear that he believes it is acceptable to use US Intelligence agencies, which by definition are military assets and NOT legally empowered and constiutionally supported law enforcement agencies, to prosecute civilians. He clearly intends that the president he supports should do so likewise.

 

It all comes back to this Article 2 issue.  Does the president have the authority to protect the US from foreign threats? Sure he does. Article 2 says so. Thus far, any reasoning person would agree with the Attorney General. However, the only document that gives the president the authority to do this is the Constitution that contains that article. No article of the constitution abrogates the remaining constitution. So of course: ALL ACTIVITIES ENGAGED IN BY THE PRESIDENT AND THE VARIOUS BRANCHES AND DEPARTMENTS OF GOVERNMENT EVEN THOSE TAKEN IN ACCORDANCE WITH ARTICLE 2 MUST BE BOUND BY THE RESTRICTRIONS OF EVERY OTHER ARTICLE AND AMENDMENT TO THE CONSTITUTION.

 

If the president authorizes or fails to end and publicly punish any activity which violates the explicit constiution, he is in violation of the constitution and makes his own appeal to Article 2 null and makes himself guilty of criminal activity with regard to the 1st, 4th and 14th amendments and possibly others besides. In addtion, such activity makes him guilty of violations of law with regard to Titles 14, 17 and 18 of the USSC. So clearly specific laws DO govern the current activities.

Pickled Erring
Since the more disengenuous elements on the President's side of the debate over how to deal with detainees in Guantanamo Bay have begun to be overridden in favor of a more direct approach from the DOD, I'll try to keep the irony and sarcasm to a minimum. That said, the current round of testimony before congress has been instructive in more than one way. It's facinating to observe the vast gulf in corporate culture of the house is so very different from that of the Senate.

The Senate has demonstrated a reserve and an intelligence in dealing with this issue that is quite encouraging. The testimony from their panel as well as the comments of the Senators seems like a reasoned debate on the practical issue of how to proceed. The house however seems intent on simply codifying the will of the president on war crime tribunals without regard to the long term precident such decisions will have.

The main sticking point that both sides seem to have is the problem of POW status. Currently, the law supports the indefinite detention of POWs, without trial until the end of hostilities, at which point the POW is released without prejudice and returned to there native community.

The Executive insists on calling the "war" on terrorism a war, however it is military action sanctioned by congress, but without the legally and constitutionally mandated requisite of a discreet military enemy.

Instead, the US congress, at the urging of the president, has declared war on a civilian religious institution. This action violates the first amendment injunction against making a "law regarding [religion]".

If the activities of muslim religious institutions are criminal, and the US wishes to prosecute them then the Laws of War are inapplicable. If the persons targeted are a legitimate military objective, then declaring war on them gives them defacto status as a foreign power and as such makes their combatant members, regardless of uniform status, soldiers and entitled to treatment as POWs.

Instead, the congress and the Executive are trying to find a means of legitimizing the decision to try and have things both ways. They declare that the "members of 'al Qaeda" are civilians not soldiers yet they wish to use military assets to target and capture them. In addition they wish to deny these "illegal enemy combatants" the right to civilian trial because of their combatant status.

On the other hand they wish to prevent these "non soldiers" the right to fair and adequate treatment as soldiers. Worse this "un-War" against terrorism, is not declared versus a single enemy but against all terrorist organizations. Since such an amorphous and illegal declaration of war can continually be retargeted for upwards of 100s of years, the effective sentence of combatants so detained will be a life sentence.

As POWs whis would be tantamount to a gulag or life imprisonment without benifit of properly constituted trial. This is forbidden by American law and custom and may well violate the constitution. More importantly if one religious group can be targeted, any other can as well. It is a dangerous and untenable solution, nothing less than an end run around the constitution, regardless of the legitimacy of the current target.

What is the solution? First off the assertion that what US citzens or US troups do when not within the contiguous 48 states, is somehow no longer governed by the US Service code and the Constitutions needs to be put to bed with extreme prejudice. Those proposing such a farce need to have their ears ringing from the force of the congressional censure.

Secondly persons detained because of combatant status in time or war need to be treated like soldiers. Persons detained for war crimes need to be treated like soldiers guilty of war crimes. Nuermburg is a good example. Persons detained for NOT being soldiers or for not properly wearing a uniform should be treated like spies, or like criminals and be tried in a habeous court.

If evidence is so sensitive that a defendant defending himself can't be exposed to it, it isn't evidence. Hearsay is not evidence in any territory under the control of the US government. No soldier should have to consider whether he is maintaining a legitimate chain of custody, unless he is a criminal investigator. No soldier should have to worry about illegal entry on a battlefield. No civilian should EVER be the target of a US soldier.

There is no legitimate cause for changing these standards. The ONLY purpose to changing these standards is to allow what the constitution was drafted to prevent.