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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.
The U.S. President has a variety of emergency powers, but none of them can in any way affect the rules set out in the Constitution. Congress, through the years, has expanded presidential power; these powers came with strings attached. In emergency, some of these strings come off, but the basic constitutional protections remain.
This is not to say that Presidents have not violated the Constitution. Lincoln suspended the right of filing writs of habeas corpus (as did Davis). The loyalty oaths and attendant disqualifications from office may have constituted ex post facto laws and bills of attainder, but the Fourteenth Amendment, in making such disqualifications part of the Constutition, resolved that issue. And let's not forget about internment camps during World War II.
Presidents may act unconstitutionally, but unlike Great Britain, unconstitutional acts, if they go unpunished, do not set a precedent for their constitutionality.
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under-paid karma whore
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.
"What is the sound of one belly slapping?"
Basically, now is when it's most important to have groups like the ACLU. Like most liberal groups, they're being attacked as unpatriotic, but considering we have cases like Korematsu on the books and not overturned, having groups that will watch out for violations of our rights and raise public awareness is important.
And it's not like it's only leftist groups fighting for these thigns, either. The article in the post didn't mention things like the Alien or Sedition Acts, but some of the languge in the bill Ashcroft is trying to ram through congress. There was a coalition of groups from the ACLU and gay rights organizatons to the NRA and anti-aborition activists all united in opposition, saying that we can find ways to protect the security of citizens *without* depriving them of rights.
Lincoln's justification of his abrogation of rights during the civil war is just another manifestation of the tired ends-justify-the-means-argument. Unfortunately, not everyone would agree with his ends, and certainly not many would agree with the means. In breaking law to save the union, he ultimately set precedent to fundamentally change that which he sought to save.
Law, even in its happy-faced, kinder, gentler democratically accountable form, is force. If it were unnecessary to compel one to act in a certain way or to not act in a certain way, there would be no need for law. Similarly, if it were unnecessary to compel Afghanistan or Somalia or Serbia or Vietnam or Germany, or any of the countries against which we have waged war to act a certain way, there would be no need for war.
The use of force on the domestic public in the form of law during wartime is ultimately no different than the use of force during peacetime. It is simply stripped of all its warm, fuzzy clothing that make it palatable come election time. Try it for yourself. Go up to the treasury and ask for your share of the War on Drugs budget back and see what happends.
>End Anarchist Rant
Somewhere, something incredible is waiting to be known. -- Carl Sagan
Supreme Court Chief Justice William A. Rehnquist has a book, All the Laws but One: Civil Liberties in Wartime that is about these issues. Here is a quote from a speach he gave at The Woodrow Wilson International Center for Scholars in 1999:
So, we can expect to lose 'rights', and we can expect to gain some of them back when the 'war' is over. The problem being, our current war has no defined ending, and it has already been explained to the American citizens that this will be a long drawn out war full of secracy. The longer a war goes on, the more rights that are taken in the name of that war. It is esp. damning that dissonates is being actively suppressed, with the Bush clan warning our media to 'act responsibly' and advising against such things as playing BinLaden's videos. At the end of wartime, we never regain back all that we have lost.
"If our liberties are to be protected, it is up to us to protect them."
But what happens when the media is a toy that does not discuss these issues and that is the people's only source for information? Many of my friends have no idea about what is going on with DMCA and the major news organizations refuse to give any coverage from the people's POV. It will be a grim future where we have an uninformed populace who does not even know which issues to oppose.
"Every man is a God in disguise; a divinity playing the fool."
-R.W. Emerson
Of course, at that time, almost everyone was shell shocked, and it was not on the radar yet
In this situation, war has not been formally declared. Usually, in a war, such laws are "for the duration". Since we are not "formally" at war, there is no such limitation.
Freedoms lost may likely be a permanent loss, unless people strive to make sure otherwise.
"It is a greater offense to steal men's labor, than their clothes"
T: After this conflict, will we see that Bin Laden speech in full? Will we hear about all the other things that are being kept (rightly) silent now? Or will they be stamped "Top Secret - 25 years", and only released when many of us are collecting our pensions and don't give a damn?
We just have to make sure that the current conflict just keeps on with its original aims - combat terrorists, terrorism and supporters of terrorism, and doesn't morph early next year into a different beast (cheaper oil would be nice, wouldn't it?). There needs to be public accountability for the actions of the military within all conflicts, to ensure that they operate within the bounds of their mission, and that they should not become a pawn in some political game.
Which I don't think will happen this time, but though like pointing out.
CmdrTaco explain this one: Invalid form key: On9kApk2Hq ! and Invalid form key: GSQ8puWVyf !
Hattig :)
-- The price of Linux is support: Book Prices to Kill...
Why is the country so pro-government all of a sudden, when its so easy to prove that its exactly those in the elite that control its every move?
In the war against Iraq, many of those at the top of the pyramid (G.H. Bush, Cheney, Schwartzkopf, etc) were found GUILTY by the International War Crimes Tribunal. The war against Iraq was not about Saddam Hussein, but about oil interests. This was never covered in the media, and many United Staters today fully support the actions we used against the "enemy." Saddam is not crazy, not stupid, and was probably not wrong in his reacquisition of Kuwait. He even asked us if he could do it, and we didn't say no.
In Afghanistan, oil interests of our President and his cronies are the only thing at stake. The proof against bin Laden is thin at best, and the translations of bin Laden's video that everyone thinks he is accepting blame are off at best. But the 500 years of oil (at current consumption rates) that UNOCAL and the elite's friends want access to is currently controlled by the Taliban. Again, ignored by the government controlled media.
Freedom of Speech is gone when it is regulated. With the FCC punishing anti-government sentiment from its beginning, its obvious there is no freedom of speech in the TV and radio media. Since the newspapers are now controlled by those same media mavens, they too should be ignored.
The Libertarian philosophy of non-intervention and free trade is more important than ever to focus on. Even lifetime Libertarians though are towing the government line and wanting revenge, even though the proof against Afghanistan and bin Laden is shamefully non-existant.
And the biggest kick is that we are not even at war. We can't be. If we are, it is illegal, as the Constitution REQUIRES Congress to declare it.
Want to stop terrorist militant attacks on our nation? Limit the powers of Congress as set forth in the Constitution. Create a new foreign policy of non-intervention by our government, remove all sanctions and embargos, tariffs and subsidies. Let good people trade with whoever they want, and stop subsidizing big business in every way.
I think many slashdotters would understand that 99% of the problems we complain about here is not Big Business' fault at all, but governments and the people's. We LET Congress give Big Business subsidies, so why are you complaining that M$ has a monopoly? If Congress couldn't subsidize, M$ wouldn't donate to their campaigns, and we wouldn't have such a monopoly-like fiasco. On the same hand, when we give Congress the power to subsidize business, we give the U.S. "interests" in other countries. This is the cause of almost all our problems, including terrorism!
Limit big government, and you will limit so many problems that we face in the world and locally each and every day. Give the government more power, and you only make it worse.
If you don't believe me, why not drop me an e-mail and lets debate it one on one. I, too, was a non-believer, until I spent just a few months researching the realities of "Big Government."
10990 -> 11612 -> 11807 -> REVOKED BY 12196
10995 -> REVOKED BY 11556
10997 -> REVOKED BY 11490
10998 -> REVOKED BY 11490
11000 -> REVOKED BY 11490
11001 -> REVOKED BY 11490
11002 -> REVOKED BY 11490
11003 -> REVOKED BY 11490
11004 -> REVOKED BY 11490
11005 -> REVOKED BY 11490
11310 -> REVOKED BY 11490
The interesting bit is that 11490 was itself revoked by 12656. PEO 12656, "Assignment of emergency preparedness responsibilities", is still on the books.
Of particular note is Sec. 102, which states in part:
As well it should... it's not within the Executive's powers to make law, only to regulate how its agencies carry out the execution of law defined by the Legislature.
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.
You could've hired me.