The Constitution in Wartime

Findlaw has an excellent essay discussing the history of law in wartime. The author makes the point very elegantly that inter arma silent leges (usually translated "in time of war the law is silent", but I prefer "in the face of arms, the law is silent"). Richard Stallman has an essay on a similar theme, not quite as good, but still worth reading.

Comments

Somebody explain something to me

[Zen Mastuh]

IAAA (I am an American), but I don't understand why we are at war--especially with Afghanistan. We were attacked by people who have never claimed responsibility. It is possible that all who were involved perished in the crashes. Our government and the major media want us to believe that Osama ibn Laden was responsible, despite the fact that he actually claims responsibility for his attacks. He is a guest of the Taleban, who has told us (since 9/xx) that they will turn him over upon receipt of conclusive evidence. The Taleban has offered to negotiate several times; meanwhile, Bush's claim that "we will use Diplomacy" remains untrue (he has rejected every offer). Bush refuses to turn over any evidence, citing "National Security"--does that mean that Americans would riot in the streets if they knew what was really happening? Now we are bombing the shit out of the poorest nation in the world because they are bound under their Holy Law to protect their guest. We slander them on TV with false stories about opium (which can't grow in a four-year drought...), while we are using neighboring Uzbehkistan--#2 worldwide in opium production--as an air base for our troop transports, just like we did with Laos/Cambodia during VietNam (search on google.com for Bo Gritz if this doesn't ring a bell).

Back to the topic, our politicians and lobbyists are shredding the Constitution with the full support of the misled American majority. This wasn't in the EULA. I wish to move to a country with more civil liberties, such as Germany.

Hayeck & the Libertarians

[spRed]

FA Hayeck (bigtime libertarian dude) acknowledged that the law may be suspended in times of war. The basic idea is that if you lose everything, then what was the point of playing by the rules. This comes with a _VERY BIG_ but, namely that once order is restored, the government is held responsible for the laws it violated. This isn't to say everyone is put on trial, but they should be required to compensate (how they compensate is left vague) the citizens who were violated.

This is a very sensible view, IMO, but the compensation part is tricky. Especially because once peace is restored, tempers & public sentiment are still running hot and the public (read: voters and hence representatives) may not be in a compassionate mood.

-spRed

Re:Hayeck & the Libertarians

[renehollan]

Indeed.

Ayn Rand (an Objectivist, rather than a libertartian, but often the source of many individual's interest in libertarian philosophy) also wrote on this subject. The idea is that principles do not apply in emergency situations, because the situation can't be forseen (If it could, it would not be an emergency).

The classic example is standing on the shore and seeing someone in the middle of a lake fall out of a boat and start to drown. You want to help them (even though you have no obligation to do so), but have no boat. There is a boat tied up to the dock, but it isn't yours. Do you take it without permission for the time it takes to save the poor victim?

Rand wrote that doing so was permissible and not a violation of Objectivist principles for several reasons. Under the circumstances, any rational person would want to be saved, even at great cost to themselves (i.e. a rescue bill). So the person drowning is unlikely to protest. This probably goes for the owner of the boat as well, though with a much weaker argument: he might argue that he should not be inconvenienced because of someone else's misfortune and wouldn't change his mind if he were drowning, because he avoids such risks.

So we have a situation where someone is harmed (loses use of his boat for a while, perhaps JUST when he needs it the most), and someome can be reasonably expected to be willing to pay for their rescue. Also, the would-be rescuer would likely be willing to compensate for the use of the boat (and risk not getting reimbursed by the victim) -- this is but one of the risks he takes on.

The only problem here is the lack of a contract with the owner of the boat!

In tort situations (harms caused outside of a contract, for example, a child breaking a neighbor's window with a ball), the guiding principle has been restitution. Here, an emergency results in the willful (as opposed to negligent) commitment of a tort. But clearly the motive is not malice (i.e. the rescuer does not WANT to deprive the boat owner of use of his boat).

So, the rational solution is to let the would-be rescuer chose between letting the victim drown, or compensate the boat owner for the tort he is about to commit on his property. Presumably the cost of this restitution can be estimated -- surely the boat owner can't argue a great opportunity loss if the boat is not kept secure: anyone could easily steal it and thus the owner couldn't argue for the value of it's constant availability. If the recuer takes the boat, and can't agree with the boat owner as to what reasonable compensation should be, the matter is settled by the courts.

The important ideas here are (a) the freedom (but NOT obligation) to chose to commit an otherwise tort in a time of crisis, (b) restitution after the fact. A more subtle idea is that opportunity costs can't be effectively compensated due to torts commited in emergencies.

Of course, IAAL (I Am A Libertarian), but IANAL (I am not a lawyer). NO PART OF THIS POST SHOULD BE CONSTRUED AS LEGAL ADVICE.

Martial Law

[cyberkine]

The Federal Emergency Management Agency (FEMA) that helps out natural disaster victims and so forth, is actually part of a martial law government in waiting. Under Jimmy Carter's 1979 consolidation of various related agencies into FEMA, it acquired the Defense Department's Defense Civil Preparedness Agency. With the end of the Cold War this aspect of its mission has probably taken a back seat to floods, earthquakes and huricanes. But the capability is still there.

Re:Well..

[killthiskid]

Can I have some examples of increased civil liberties?

Lost Rights, a book by James Bovard, is long, thorough, dry, and depressing collection of the MANY losses and attacks on civil liberties.

• American's today must obey 30 time more laws today than at the turn of the century.
• Fedral Agencies publish an average of 200 pages of new rulings, regulations, and proposals in the Fedral register everyday.
• A citizen's use of their land is presumed illegal until it is approved by multiple zoning and plannig commisions.
• Since 1985, there have been over 200,000 properties siezed under forfeiter laws.
• We have 2 million people in prison, a higher percentage than any other nation. Quote Mother Jones, "Since 1980, the national crime rate has meandered down, then up, then down again -- but the incarceration rate has marched relentlessly upward every single year. Nationwide, crime rates today are comparable to those of the 1970s, but the incarceration rate is four times higher than it was then. It's not crime that has increased; it's punishment."

I could go on, but the point I want to make is this: from what I can tell, we have been experiencing a net decrease in rights... If you could point to me to info that shows otherwise, I would happily read that, too.

benefits

[tinkerton]

I agree with one thing, there are big benefits at stake, and England, Germany and France very much like to be part of the game. Italy being the sulking outsider.

Here is my homework :

The Caspian oil basin is a very important one.
Cheney , as CEO of Halliburton in 1998:"I cannot think of a time when we have had a region emerge as suddenly to become as strategically significant as the Caspian". Estimates have only been rising since.

but actually the whole of central asia is involved. I read that Wolfowitz is very much in favor of grabbing all of it and stripping Russia bare.
A big problem with the caspian and central asian resources is getting them out through a safe way. There are in several possible corridors.

- Iran is shortest, but boycotted in every possible way.
- The corridor to Turkey is difficult to secure.
- China is more than 2000 miles.
- The corridor to kosovo is an interesting issue, because the US has been very active in the Balkan conflicts, using NATO as a front, and secured the pipeline(see fort Bondsteel) and the public did not even notice what was going on. Macedonia is needed too in the plan, and underway. The US strategy in the Balkan deserves a lot of attention.
For one thing, the unrestrained free traffic of Afghan heroin through Kosovo increases financing of opposition in Russian border states like Chechnya.
- The Afghanistan-Pakistan corridor is best known for the Unocal line in construction, which has been interrupted in Afghanistan since i think 1998(that was the year they asked government for help).

But Afghanistan is also a starting point for moving north. Russian sources are afraid(well, to be honest , i only found one) that the US will try to drive a mass of refugees north, use it to destabilise the region and create an alibi to intervene with NATO. British and US diplomacy already requested Pakistan to keep the borders closed(I think, can't remember the source right now). I guess they did not need much pressing.
For this you need weak humanitarian aid inside Afghanistan.

The only mobile troops of Russia are being pinned down in Chechnya, and Bin Laden does not seem to have control there. Hoe much reason will US need to move north?

As is well known, not everyone thinks international approval is necessary.

If you feel like a very long google session, each time take 2 or 3 words at random from:
Halliburton, Brown and Root, AMBO ,Bondsteel, Cheney, Carlyse, Bush , Caspian oil, Unocal, Macedonia, KLA, NLA, MPRI, KPC, OSCE,William Walker, Afghanistan, heroin, drugs, Oliver North, Vinnell Corporation, Dyncorp, soros.

That bang you just heard is from a surveillance server that just blew up :)

The web, real educational at times. And addictive too