The Case against Genetic Engineering

Slate‘s William Saletan, writing at The New York Times, reviews Michael J. Sandel’s The Case against Perfection: Ethics in the Age of Genetic Engineering. I have not read Sandel’s book, nor do I plan to read it. My case against genetic engineering, to which I will come, may bear no resemblance to Sandel’s. But there’s no way of learning what Sandel’s case is, given Saletan’s rather glib criticism of Sandel’s book.

Saletan’s glibness is evident in passages such as these:

[G]enetic engineering is too big for ethics. It changes human nature, and with it, our notions of good and bad.

When norms change, you can always find old fogeys who grouse that things aren’t the way they used to be….But eventually, the old fogeys die out, and the new norms solidify.

Once gene therapy becomes routine, the case against genetic engineering will sound as quaint as the case against running coaches [a practice apparently unknown before the 1924 Olympics].

In a world…controlled by bioengineering, we would dictate our nature as well as our practices and norms. We would gain unprecedented power to redefine the good. In so doing, we would strip perfection of its independence. Its meaning would evolve as our nature and our ideals evolved.

Saletan, in so many words, professes a tautology: The future will bring what it will bring, and whatever it brings will be the future. Saletan might as well write this: If murder is widely accepted in the future, murder will be acceptable in the future. I doubt very much that Saletan would endorse such a statement. I suspect, rather, that an effort to be clever at Sandel’s expense led Saletan down a moral blind alley of his own construction.

What is that moral blind alley? If it is not obvious to you, consider this passage from the entry for moral relativism at the Stanford Encyclopedia of Philosophy:

Metaethical Moral Relativism (MMR). The truth or falsity of moral judgments, or their justification, is not absolute or universal, but is relative to the traditions, convictions, or practices of a group of persons.

The definition of MMR* points to Saletan’s error. He treats the same (or very much the same) group of persons as being a different group because of the passage of time. In other words, the future just “happens” — as if people cannot make judgments in the present about the consequences, for them, of pending or reversible decisions.

To come at it a different way, Saletan conflates what could be with what should be. There could be a market for genetic engineering, but should there be such a market? There are, after all, markets for murder, arson, and the fruits of theft (among other such things), but I doubt that Saletan would condone such markets.

The real issue, then, is whether to allow genetic engineering, in light of its consequences. Saletan finally approaches that question when he says that “self-engineering….seizes control of humanity so radically that humanity can no longer judge it.”

But Saletan waits until the final paragraph of his review to say even that much. He then quickly closes the review with with smart-alecky observations instead of pursuing the consequences of genetic engineering. Perhaps he thinks that he has done so when, earlier in the review, he writes this:

The older half of me shares [Sandel’s] dismay that some parents feel blamed for carrying babies with Down syndrome to term. But my younger half cringes at his flight from the “burden of decision” and “explosion of responsibility” that come with our expanding genetic power. Given a choice between a world of fate and blamelessness [without genetic engineering] and a world of freedom and responsibility [with genetic engineering], I’ll take the latter. Such a world may be, as Sandel says, too daunting for the humans of today. But not for the humans of tomorrow.

There again, Saletan assumes that the future will be what it will be. More importantly, he badly mischaracterizes the world of today. Our present world, contra Saletan, is (relative to the brave new world of genetic engineering) one of freedom and responsibility. To use the example of a baby with Down syndrome (properly Down’s syndrome), parents who choose to abort such a baby (for that is what Saletan means) have every bit as much “freedom” to make that choice (under today’s abortion laws) and are just as responsible (morally) for their decision as they would be if they were to choose bioengineering instead. Genetic engineering simply introduces different “freedoms.”

Thus we come to the real issue, which is the wisdom (or not) of allowing genetic engineering in the first place. For, as we know from our experience with the regulatory-welfare state, once an undesirable practice gains the state’s approbation and encouragement it becomes the norm.

And that is the broad case against allowing genetic engineering: If it gains a government-approved foothold it will become the norm. It will result in foreseeable (and unforeseeable) changes in the human condition. It will cause most of us who are alive today to wish that it had never been allowed in the first place.

How so? Consider the specific case against genetic engineering:

Following upon (but not supplanting) abortion, it would enable humans to retreat further from the acceptance of responsibility for the consequences of the procreative act. The prospective acceptance of responsibility for our actions is a restraining influence upon which civil society depends. That restraining influence has been lessened enough by such elitist initiatives as the legalization of abortion, leniency in the punishment of criminals, and permissiveness in the face of disruptive speech and behavior in public schools.

It would reinforce the attitude — inherent in abortion — that humans are mere machines to be overhauled or junked at will. It would, in other words, take us another giant step down the slippery slope toward state-condoned (if not state-conducted) euthanasia.

From there it would be an easy step for the state (controlled by “liberal” elites) to dictate who may have children, how many children they may have, the gender-mix of the children, the occupations those children may pursue, etc., etc., etc.

Yes, genetic engineering could have some positive consequences (e.g., reducing the number of children born with Down’s syndrome). But the prospect of such consequences should not eclipse the broad, fundamental, negative consequences for human dignity and liberty.
__________
* The validity of MMR is a matter for another post…sometime, perhaps.

The Real Threat to Liberty . . .

. . . is this, not this.

The Military Commissions Act of 2006

President Bush has signed the act into law. John Yoo has some choice things to say about it:

The new law is, above all, a stinging rebuke to the Supreme Court. It strips the courts of jurisdiction to hear any habeas corpus claim filed by any alien enemy combatant anywhere in the world. It was passed in response to the effort by a five-justice majority in Hamdan v. Rumsfeld to take control over terrorism policy. That majority extended judicial review to Guantanamo Bay, threw the Bush military commissions into doubt, and tried to extend the protections of Common Article 3 of the Geneva Conventions to al Qaeda and Taliban detainees, overturning the traditional understanding that Geneva does not cover terrorists, who are not signatories nor “combatants” in an internal civil war under Article 3.

Hamdan was an unprecedented attempt by the court to rewrite the law of war and intrude into war policy…..

Until the Supreme Court began trying to make war policy, the writ of habeas corpus had never been understood to benefit enemy prisoners in war. The U.S. held millions of POWs during World War II, with none permitted to use our civilian courts (except for a few cases of U.S. citizens captured fighting for the Axis). Even after hostilities ended, the justices turned away lawsuits by enemy prisoners seeking to challenge their detention. In Johnson v. Eisentrager, the court held that it would not hear habeas claims brought by alien enemy prisoners held outside the U.S., and refused to interpret the Geneva Conventions to give new rights in civilian court against the government. In the case of Gen. Tomoyuki Yamashita, the court refrained from reviewing the operations of military commissions.

In Hamdan, the court moved to sweep aside decades of law and practice so as to forge a grand new role for the courts to open their doors to enemy war prisoners. Led by John Paul Stevens and abetted by Anthony Kennedy, the majority ignored or creatively misread the court’s World War II precedents. The approach catered to the legal academy, whose tastes run to swashbuckling assertions of judicial supremacy and radical innovations, rather than hewing to wise but boring precedents….

…[E]nemy combatants who fight out of uniform, such as wartime spies, have always been considered illegals under the law of war, not entitled to the same protections given to soldiers on the battlefield or ordinary POWs. Disguised suicide- bombers in an age of WMD proliferation and virulent America-hatred are more immediately dangerous than the furtive information-carriers of our Cold War past. We now know that more than a dozen detainees released from Guantanamo have rejoined the jihad. The real question is how much time, energy and money should be diverted from winning the fight toward establishing multiple layers of review for terrorists. Until Hamdan, nothing in the law of war ever suggested that enemy status was anything but a military judgment….

This time, Congress and the president did not take the court’s power grab lying down. They told the courts, in effect, to get out of the war on terror, stripped them of habeas jurisdiction over alien enemy combatants, and said there was nothing wrong with the military commissions. It is the first time since the New Deal that Congress had so completely divested the courts of power over a category of cases. It is also the first time since the Civil War that Congress saw fit to narrow the court’s habeas powers in wartime because it disagreed with its decisions.

The law goes farther. It restores to the president command over the management of the war on terror. It directly reverses Hamdan by making clear that the courts cannot take up the Geneva Conventions. Except for some clearly defined war crimes, whose prosecution would also be up to executive discretion, it leaves interpretation and enforcement of the treaties up to the president. It even forbids courts from relying on foreign or international legal decisions in any decisions involving military commissions.

All this went overlooked during the fight over the bill by the media, which focused on Sens. McCain, Graham and Warner’s opposition to the administration’s proposals for the use of classified evidence at terrorist trials and permissible interrogation methods. In its eagerness to magnify an intra-GOP squabble, the media mostly ignored the substance of the bill, which gave current and future administrations, whether Democrat or Republican, the powers needed to win this war.

Imagine that. The commander-in-chief — not a majority of the Supreme Court — will command the armed forces.

Evidence that Congress did the right thing can be found in the insane, Left-wing rhetoric of Keith Olbermann, who last night said this:

For, on this first full day that the Military Commissions Act is in force, we now face what our ancestors faced, at other times of exaggerated crisis and melodramatic fear-mongering: A government more dangerous to our liberty, than is the enemy it claims to protect us from. [Thanks to John McIntyre at RCP Blog for the quotation.]

Olbermann has evolved over the years from witty sportscaster to moon-maddened opponent of anything and everything that would bring our enemies to heel. He cannot see — or chooses not to see — the difference between foreign enemies and criminal suspects. In that respect, he is typical of our domestic enemies in the Democrat Party.

More about Treasonous Speech

Tom W. Bell (Agoraphilia) notes that

[a] grand jury in Orange County filed a charge of treason against Adam Yahiye Gadahn [on October 11]. That marks him as the first person charged with treason against the U.S. since 1952. If captured and found guilty, Gadahn could face the death sentence.

The indictment accuses Gadahn of acting as a propagandist for al-Qaeda in several of that group’s videos. He allegedly announced that he had joined al-Qaeda and claimed, “Fighting and defeating America is our first priority. . . . The streets of America shall run red with blood.” Gadahn also supposedly called on Americans to convert to Islam and urged U.S. soldiers to switch sides in the Iraq and Afghan wars. On the basis of those and other allegations, the indictment concludes that Gadhan “knowingly adhered to an enemy of the United States, namely, al-Qaida, and gave al-Qaida aid and comfort . . . with intent to betray the United States.”

Bell concludes: “If prosecutors can catch Gadahn, they have a fair chance of convicting him of treason.” The main doubt in Bell’s mind is whether or not Gadahn, who left the U.S. in 1998, had previously renounced his citizenship, which — as Bell observes — “it is not quite as easy as, say, simply burning a flag.”

Regarding treason and speech, generally, Bell refers to his article, “Treason, Technology, and Freedom of Expression.” I posted here (March 5, 2005) about an earlier version of the article.

Some months later (August 18, 2005) I had more to say about Bell’s views, as well as those of Eugene Volokh. Volokh yesterday repeated same points upon which I commented on August 18, 2005. Volokh’s option 2 regarding the treatment of speech runs thusly:

Speech is unprotected whenever the speaker has the purpose of aiding the enemy (and perhaps there’s some evidence that the speech is indeed likely to provide some at least modest aid). This exception would justify punishing any speech that falls within the statutory and constitutional definition of “treason.”

I think this too is probably too broad. Perhaps the speaker’s intentions made him morally culpable and thus theoretically deserving of punishment. But prohibiting all speech that intentionally helps the enemy risks punishing or deterring even speakers who intend only to protect American interests, but whose intentions are mistaken by prosecutors and juries — a serious risk, especially in wartime. On the other hand, I suspect that quite a few judges would take the view that treason by speech that is intended to help the enemy should be treated the same as treason by action that is intended to help the enemy.

As I wrote at the time,

I prefer Volokh’s option 2. . . .

[P]resumably an intention to aid the enemy would have to be proven in a court of law. I doubt very much that an unsubstantiated intention would survive an appeal. Why not give it a try and see how the Supreme Court rules on the issue — as surely it would be asked to do.

I must add this: Speech that intentionally aids the enemy cannot also be speech that is intended to protect Americans’ interests. You are either with us or against us.

Terrorists’ "Rights" and the Military Commissions Act of 2006

Cato’s Mark Moller finds that the Military Commissions Act of 2006 “is not patently unconstitutional—but it is hardly on uncontrovertible constitutional footing, either.” That is not a surprising conclusion, coming as it does from a member of the “libertarian” camp that cannot seem to focus on a key purpose of the Constitution: the protection of the liberties of American citizens.

Andrew McCarthy, writing at National Review Online, is well focused — as usual. As McCarthy points out,

Congress has already given al Qaeda detainees the very rights the critics claim have been denied [by the Military Commissions Act of 2006].

Last December, Congress enacted the Detainee Treatment Act (DTA). It requires that the military must grant each detainee a Combatant Status Review Tribunal (CSRT) at which to challenge his detention. Assuming the military’s CSRT process determines he is properly detained, the detainee then has a right to appeal to our civilian-justice system — specifically, to the U.S. Court of Appeals for the D.C. Circuit. And if that appeal is unsuccessful, the terrorist may also seek certiorari review by the Supreme Court.

McCarthy explains that, under the Constitution, terrorists have no habeas corpus rights or treaty rights:

Congress cannot “suspend” habeas corpus by denying it to people who have no right to it in the first place. The right against suspension of habeas corpus is found in the Constitution (art. I, 9). Constitutional rights belong only to Americans — that is, according to the Supreme Court, U.S. citizens and those aliens who, by lawfully weaving themselves into the fabric of our society, have become part of our national community (which is to say, lawful permanent resident aliens). To the contrary, aliens with no immigration status who are captured and held outside the territorial jurisdiction of the United States, and whose only connection to our country is to wage a barbaric war against it, do not have any rights, much less “basic rights,” under our Constitution. . . .

Isn’t habeas corpus necessary so that the terrorists can press the Geneva Convention rights with which the Court most recently vested them in its 2006 Hamdan case? Wrong again.

To begin with, although its reasoning was murky, the Hamdan majority seems technically to have held that Geneva’s Common Article 3 applied to military commissions because of a congressional statute, the Uniform Code of Military Justice. Again, if a right is rooted in a statute, not in the Constitution, Congress is at liberty to withdraw or alter the right simply by enacting a new statute. Such a right is not in any sense “basic.”

If the Supreme Court were to decide that the Military Commissions Act of 2006 is unconstitutional, it would be high time for President Bush to take a Jacksonian stance: “The Supreme Court has made its decision, now let them enforce it.” I would base that stance on an earlier holding by the Court:

The provisions of the Constitution which confer on the Congress and the President powers to enable this country to wage war are as much part of the Constitution as provisions looking to a nation at peace. And we have had recent occasion to quote approvingly the statement of former Chief Justice Hughes that the war power of the Government is “the power to wage war successfully.” . . . Therefore, the validity of action under the war power must be judged wholly in the context of war. That action is not to be stigmatized as lawless because like action in times of peace would be lawless.

— Justice Felix Frankfurter, concurring in Korematsu v. United States (1944)

Losing Sight of the Objective

Those who are so keen to bestow constitutional rights on terrorists have lost sight of a key purpose — perhaps the key purpose — of the Constitution: to provide for the common defense. Of Americans. Against their enemies: foreign and domestic, overt and covert.

Profiles in Principle

Apropos the preceding post, here are the names of the U.S. Senators and Representatives who voted against McCain-Feingold (Bipartisan Campaign Reform Act of 2002).

Senators against:*

Allard (R-CO)
Allen (R-VA)
Bennett (R-UT)
Bond (R-MO)
Breaux (D-LA)
Brownback (R-KS)
Bunning (R-KY)
Burns (R-MT)
Campbell (R-CO)
Craig (R-ID)
Crapo (R-ID)
DeWine (R-OH)
Ensign (R-NV)
Enzi (R-WY)

Frist (R-TN)
Gramm (R-TX)
Grassley (R-IA)
Gregg (R-NH)
Hagel (R-NE)
Hatch (R-UT)
Helms (R-NC)
Hutchinson (R-AR)
Hutchison (R-TX)
Inhofe (R-OK)
Kyl (R-AZ)
Lott (R-MS)
McConnell (R-KY)
Murkowski (R-AK)

Nelson (D-NE)
Nickles (R-OK)
Roberts (R-KS)
Santorum (R-PA)
Sessions (R-AL)
Shelby (R-AL)
Smith (R-NH)
Smith (R-OR)
Stevens (R-AK)
Thomas (R-WY)
Thurmond (R-SC)
Voinovich (R-OH)

Representatives against:**

Aderholt
Akin
Armey
Bachus
Baker
Ballenger
Barcia
Barr
Bartlett
Barton
Biggert
Bilirakis
Blunt
Boehner
Bonilla
Boozman
Boucher
Brown (SC)
Bryant
Burr
Burton
Buyer
Callahan
Calvert
Camp
Cannon
Cantor
Chabot
Chambliss
Coble
Collins
Combest
Cooksey
Cox
Crane
Crenshaw
Culberson
Cunningham
Davis, Jo Ann
Davis, Tom
Deal
DeLay
DeMint
Diaz-Balart
Doolittle
Dreier
Duncan
Dunn
Ehlers
Ehrlich
Emerson
English
Everett
Flake
Fletcher
Forbes
Fossella
Gallegly
Gekas
Gibbons
Gillmor
Goode
Goodlatte

Goss
Granger
Graves
Green (WI)
Gutknecht
Hall (TX)
Hansen
Hart
Hastert
Hastings (WA)
Hayes
Hayworth
Herger
Hilleary
Hilliard
Hobson
Hoekstra
Hostettler
Hulshof
Hunter
Hyde
Isakson
Issa
Istook
Jenkins
Johnson, Sam
Jones (NC)
Keller
Kelly
Kennedy (MN)
Kerns
King (NY)
Kingston
Knollenberg
Kolbe
LaHood
Largent
Latham
Lewis (CA)
Lewis (KY)
Linder
Lipinski
Lucas (OK)
Manzullo
McCrery
McInnis
McKeon
Mica
Miller, Dan
Miller, Gary
Miller, Jeff
Mollohan
Moran (KS)
Murtha
Myrick
Nethercutt
Ney
Northup
Norwood
Nussle
Otter
Oxley
Paul

Pence
Peterson (MN)
Peterson (PA)
Pickering
Pitts
Pombo
Portman
Pryce (OH)
Putnam
Radanovich
Rahall
Regula
Rehberg
Reynolds
Rogers (KY)
Rogers (MI)
Rohrabacher
Royce
Ryan (WI)
Ryun (KS)
Saxton
Schaffer
Schrock
Scott
Sensenbrenner
Sessions
Shadegg
Shaw
Sherwood
Shimkus
Shows
Shuster
Simpson
Skeen
Smith (NJ)
Smith (TX)
Souder
Stearns
Stump
Sununu
Sweeney
Tancredo
Tauzin
Taylor (NC)
Terry
Thomas
Thompson (MS)
Thornberry
Tiahrt
Tiberi
Toomey
Vitter
Walden
Watkins (OK)
Watts (OK)
Weldon (FL)
Weller
Whitfield
Wicker
Wilson (NM)
Wilson (SC)
Young (AK)
Young (FL)

If I had no other information about a person listed above, I would vote for that person if he or she is standing for election to the U.S. House or Senate this fall.

__________

* 38 of 49 Republicans and 2 of 50 Democrats. (Jeffords of VT, a nominal Independent, voted for BCRA.)

** 176 of 217 Republicans (with 5 others not voting), 12 of 210 Democrats (with 1 other not voting), and 1 of 2 Independents.

One Small Blow for Freedom of Speech

First, the bad news:

Andy Roth of The Club for Growth posts a roundup of reactions to McCain-Feingold Iron Curtain Day. As David Keating explains in a followup post,

our free speech rights disappeared at 12:00:01 AM this morning.

It is now illegal for virtually all nonprofit groups to run any radio or TV ad that merely mentions the name of a congressman. Even a 10 second spot that simply had a congressman’s photo and no audio could land you in jail.

David goes on to quote “Former FEC Chairman Brad Smith [who] explains the ‘reform’ today and asks”:

In exchange for surrendering our First Amendment rights, what have we gained? Do you feel Congress is more ethical than before? Less attuned to special interests? Do you feel more empowered, or less empowered, than you did four years ago, when the law passed? Can you name any tangible benefit from these prohibitions?

Absolutely none. Not a one. The only benefit accrues to McCain, Feingold, and the other hypocrites on Capitol Hill who have used their power to immunize themselves from criticism and to perpetuate their incumbency.

Well, I’m mad as hell about it, and I’m going to do something about it.

So, here’s the good news:

This is an open invitation to the supporters of any U.S. House or Senate candidate who has opposed McCain-Feingold, and who is running against an incumbent who voted for it. Send me the links to your candidate’s web site and to his or her statements about McCain-Feingold. If your candidate has indeed opposed McCain-Feingold and his or her opponent did indeed vote for it, I will publicize those facts right here on this blog.

UPDATE (12/09/06): No one has yet taken up my offer. Sad.

Academic Fools

AP story:

Harvard dean defends Khatami invitation

CAMBRIDGE, Mass. – The dean of Harvard University’s John F. Kennedy School of Government defended the decision to invite former Iranian President Mohammad Khatami to speak on the eve of the anniversary of the Sept. 11 terror attacks.

“Do we listen to those that we disagree with, and vigorously challenge them, or do we close our ears completely?” Dean David Ellwood said in an interview published Thursday in The Boston Globe.

This is an excellent example of what passes for rational thought in the academy.

What Dean Ellwood says, in effect, is this: We should listen to an armed thug who is preparing to attack us because if we listen we might learn something. Right! What we’ll “learn” is that the armed thug really isn’t preparing to attack us — just before he does that very thing.

It should come as no surprise to academicians of Ellwood’s ilk (which seems to be most of them) that non-academicians take them for deluded fools, dupes, and Leftists who prefer despotism to freedom. For that is what they are.

Fire Ward Churchill

PirateBallerina has posted a petition to fire Ward Churchill:

Fire Ward Churchill

We, the undersigned faculty members of US institutions of higher learning, in order to protect and ensure the integrity of academic scholarship, applaud and support the efforts (however belated or inept) of the University of Colorado at Boulder to terminate the employment of Professor Ward Churchill, a documented historical fraud and serial plagiarizer.

The petition may be signed only by academics who teach (or taught) at U.S. institutions of higher learning. Two college professors have had the courage to identify themselves and sign the petition. If you qualify as a signatory, get in on the action. Follow this link for more information.

Carnival of Links

I collect interesting links, group them by topic, and dump each related set of links into a draft post. Then, using the links as a starting point, I convert the draft to a full-blown post, as I have time.

I still have many interesting links in my collection that I probably won’t build into full-blown posts. Rather than hoard or discard those links, I present them here, organized by topic and with brief descriptions.

Liberty and the State

Mere Libertarianism: Blending Hayek and Rothbard: Agree or not with the author’s premises and conclusions, it’s an informative comparison of the two main schools of libertarianism.

Anarchism: Further Thoughts: An analysis of the varieties of anarchism and the faults of each.

Tax Rates Around the World: A brief post about the disincentivizing effects of high tax rates.

Paternalism and Psychology: A different look at the wrongness of “libertarian paternalism.”

Principles and Pragmatism: Why one libertarian blogger prefers idealism to pragmatism.

Lochner v. New York: A Centennial Perspective: (go to download link for full paper) The author of this long paper suggests that Lochner‘s much reviled “substantive due process” holding is in fact the basis for key Supreme Court decisons (e.g., Griswold v. Connecticut, Roe v. Wade, and Lawrence v. Texas).

Terrorism, War, and Related Matters

Apply the Golden Rule to Al Qaeda?: Why it makes no sense to apply Common Article 3 of the Geneva Conventions to terrorist detainees.

Captain Ed’s archive on Saddam’s Documents: A collection of posts about Saddam’s WMDs and terrorist ties.

The ACLU and Airport Security: How the ACLU is trying to depict behavior profiling as racial profiling.

Infinite Hatred: Considers and rejects the idea that it is futile to kill terrorists.

They, the People: An essay that parses the degrees of conflict and suggests that all-out war is the best way to change the hearts and minds of the enemy.

The Brink of Madness: A Familiar Place and The Mideast’s Munich: War with the Mullahs Is Coming: Two persuasive arguments that the West’s present mindset is like that which prevailed at the time of the Munich Agreement in 1938.

Sustaining Our Resolve: A sober but upbeat assessment of the prospects for the Middle East and the war on terror, by George P. Schultz.

Is the Bush Doctrine Dead?: An analysis by Norman Podhoretz.

Code Red: In which the writer tackles several anti-war and anti-anti-terror shibboleths.

Presidential Signing Statements

Bush’s Tactic of Refusing Laws Is Probed: An article about a panel of the American Bar Association’s so-called probe of Bush’s signing statements. (This WaPo article is anti-Bush, of course, but it sets the stage for the next two links.)

Enforcing the Constitution: A brief post defending signing statements.

The Problem with Presidential Signing Statements: A longer analysis of signing statements that also defends them.

Ideas

The Fifty Worst (and Best) Books of the Century: A distinguished panel of libertarian-conservatives compiles a list of the worst and best. The lists of worsts seems about right. The list of bests includes too many boring “classics.”

“Fake but Accurate?” Science: A scathing indictment of the “hockey stick” curve — which purports to show that global warming is only a recent phenomenon — its author, and its coterie of defenders.

The Problem of the Accuracy of Economic Data: An exposition of the spurious precision of economic statistics and analyses based on them.

Taking On Torture

There is a reason for the United States to abjure torture. That reason can be summarized thusly: We could allow torture in exigent circumstances (e.g., to save the life of a kidnapped child who has been buried in a sealed container, where the perpetrator is in custody and is unwilling to disclose the child’s location). But if we do that, it is likely that the precedent will result in the use of torture in circumstances where an innocent person is tortured to no avail.

As an answer to that objection, there is Alan Dershowitz’s proposal to legitimate and regulate torture (as summarized at Wikipedia):

Although [Dershowitz] claims to be personally against the use of torture, he believes that authorities should be permitted to use non-lethal torture in a “ticking bomb” scenario, regardless of whether international law permits it, and that it would be less destructive to the rule of law to regulate the process than to leave it up to the discretion of individual law-enforcement agents. Under his proposal, the government would not be allowed to prosecute the torture subject based upon information revealed under that interrogation method. “If torture is going to be administered as a last resort in the ticking-bomb case, to save enormous numbers of lives, it ought to be done openly, with accountability, with approval by the president of the United States or by a Supreme Court justice”. [A CNN interview of Dershowitz on this subject is here.]

Relatedly, Tom Bevan of the RealClearPolitics Blog writes about an exchange between Charles Krauthammer and Michael Kinsley:

Last December Charles Krauthammer argued the following in a Weekly Standard cover story:

However rare the cases, there are circumstances in which, by any rational moral calculus, torture not only would be permissible but would be required (to acquire life-saving information). And once you’ve established the principle, to paraphrase George Bernard Shaw, all that’s left to haggle about is the price. In the case of torture, that means that the argument is not whether torture is ever permissible, but when–i.e., under what obviously stringent circumstances: how big, how imminent, how preventable the ticking time bomb.

Michael Kinsley responded the following week, calling Krauthammer’s argument a case of “salami-slicing:”

You start with a seemingly solid principle, then start slicing: If you would torture to save a million lives, would you do it for half a million? A thousand? Two dozen? What if there’s only a two-out-of-three chance that person you’re torturing has the crucial information? A 50-50 chance? One chance in 10? At what point does your moral calculus change, and why? Slice the salami too far, and the formerly solid principle disappears.

If the reports out of Pakistan are true [that Pakistan used torture to develop the intelligence that led to the breakup of the plot to take down 10 UK-U.S. flights], this theoretical debate just became much more interesting, because we now have a very real slice of salami. If more than four thousand lives were saved as a direct result of intel obtained using torture, does that make it justified? I think it’s clear what Krauthammer would say. But what about Kinsley? Are four thousand innocent lives a big enough slice of salami for him?

Krauthammer seems to subscribe to something along the lines of Dershowitz’s proposal. Kinsley does not, because he is worried about proportionality. In Kinsley’s case, the proportion must be, say, tens of potential victims saved for every act of torture. That’s akin to the foolish notion that it is better that ten [or 100] guilty persons escape than that one innocent suffer. But, as I put it here,

Better for whom? It’s better for the guilty, who may claim more victims, but certainly not better for those victims. [See also this post.]

With respect to torture, the right proportion, under the right circumstances, is one to one. Why should the life of, say, one kidnapped child be sacrificed because we are unwilling to condone the torture of one known perpetrator? Where’s the morality in that?

It seems to me that given the circumstances now surrounding the United States, we should openly adopt a policy along the lines of Dershowitz’s proposal, as opposed to posturing piously about torture à la John McCain.

Other related post: A Rant about Torture

Testing, Testing

From the Associated Press:

Chertoff says U.S. needs more authority

WASHINGTON – The nation’s chief of homeland security said Sunday that the U.S. should consider reviewing its laws to allow for more electronic surveillance and detention of possible terror suspects, citing last week’s foiled plot.

Michael Chertoff, secretary of the Department of Homeland Security, stopped short of calling for immediate changes, noting there might be constitutional barriers to the type of wide police powers the British had in apprehending suspects in the plot to blow up airliners headed to the U.S.

But Chertoff made clear his belief that wider authority could thwart future attacks at a time when Congress is reviewing the proper scope of the Bush administration’s executive powers for its warrantless eavesdropping program and military tribunals for detainees held at Guantanamo Bay, Cuba.

“What helped the British in this case is the ability to be nimble, to be fast, to be flexible, to operate based on fast-moving information,” he said. “We have to make sure our legal system allows us to do that. It’s not like the 20th century, where you had time to get warrants.”

The outcry from “civil libertarians” is bound to be loud and shrill. “Civil libertarians” are focused exclusively on the protection of “rights” for the sake of, well, protecting “rights.” They take no interest in actually protecting fundamental rights: life, liberty, and the pursuit of happiness.

P.S. Score one for the defenders of life, liberty, and the pursuit of happiness in their battle against the American “Civil Liberties” Union. The right not to be bombed triumphs over the “right” not to be searched in NYC.

The Lessons of the Hamdan Decision

The Supreme Court today handed down its 5-3 decision in Hamdan v. Rumsfeld. According to SCOTUSblog,

[t]he Supreme Court ruled . . . that Congress did not take away the Court’s authority to rule on the military commissions’ validity, and then went ahead to rule that President Bush did not have authority to set up the tribunals at Guantanamo Bay, Cuba, and found the commissions illegal under both military justice law and the Geneva Convention. In addition, the Court concluded that the commissions were not authorized when Congress enacted the post-9/1l resolution authorizing a response to the terrorist attacks, and were not authorized by last year’s Detainee Treatment Act. The vote against the commissions and on the Court’s jurisdiction was 5-3, with the Chief Justice not taking part.

The Court expressly declared that it was not questioning the government’s power to hold Salim Ahmed Hamdan “for the duration of active hostilities” to prevent harm to innocent civilians. But, it said, “in undertaking to try Hamdan and subject him to criminal punishment, the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction.”

Okay, so here are the lessons:

1. Don’t hold ememy combatants at Gitmo.

2. Try again after the retirement of Justice Stevens (author of the majority opinion).

3. Let the Court enforce its own rulings.

4. AJ Strata says, “can’t try them, so fry them.”

Parsing the Vote on the Flag-Burning Amendment

The U.S. Senate yesterday failed, by one vote, to adopt S.J. Res. 12, which proposed this amendment to the Constitution: “The Congress shall have power to prohibit the physical desecration of the flag of the United States.” The House already had passed the same “flag burning amendment,” and so it would have gone to the States for ratification had one Senator voted “yea” instead of “nay.”

I am against any statute (e.g., campaign-finance “reform”) or amendment to the Constitution that limits freedom of speech. (I might favor a law making it treasonous to publish, knowingly, classified information pertaining to the conduct of an on-going war, which is not speech as the Framers understood it.) I am therefore against any amendment to the Constitution that limits symbolic speech, such as flag-burning. Let the flag-burners and their ilk be known for the post–patriotic, post-Americans that they are.

That said, I wonder what motivated the 34 senators who voted against the flag-burning amendment:

Akaka (D-HI)
Bennett (R-UT)
Biden (D-DE)
Bingaman (D-NM)
Boxer (D-CA)
Byrd (D-WV)
Cantwell (D-WA)
Carper (D-DE)
Chafee (R-RI)
Clinton (D-NY)
Conrad (D-ND)
Dodd (D-CT)

Dorgan (D-ND)
Durbin (D-IL)
Feingold (D-WI)
Harkin (D-IA)
Inouye (D-HI)
Jeffords (I-VT)
Kennedy (D-MA)
Kerry (D-MA)
Kohl (D-WI)
Lautenberg (D-NJ)
Leahy (D-VT)
Levin (D-MI)

Lieberman (D-CT)
McConnell (R-KY)
Mikulski (D-MD)
Murray (D-WA)
Obama (D-IL)
Pryor (D-AR)
Reed (D-RI)
Sarbanes (D-MD)
Schumer (D-NY)
Wyden (D-OR)

Those who undoubtedly voted nay to defend freedom of speech are easy to identify. They are the two conservative Republicans who broke ranks with their party: Bennett of Utah and McConnell of Kentucky.

I’m sure that many of the Democrats voted nay for the same valid reason as that of Senators Bennett and McConnell. But many others, I am equally certain, voted the way they did for one or both of these reasons:

They can no longer find it in themselves to believe that America, in spite of its faults and mistakes, is better than its enemies.

Their partisanship so consumes them that they oppose the Republican president’s efforts to defend America — of which the flag is a reminder.

I won’t name names. That’s an exercise for the reader.

What about the 66 senators who voted for the flag-burning amendment? The lineup on the yea side consists of yahoos and panderers — patriotic though they may (or may not) be. The yahoos are those who sincerely believe in restricting freedom of speech. (John McCain, take a bow.) The panderers are those who voted yea to placate “the base” or to take a stand that might help them win re-election in the fall.

What might have happened if the proposed amendment had gone to the States? A look at Senate votes by State offers a clue. The States that probably would have gone against the amendment are California, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, New York, Rhode Island, Vermont, Washington, and Wisconsin. That’s 12 States, one shy of the number required to block ratification of the amendment.

In other words, the flag-burning amendment might well have been ratified had the Senate approved it. One senator’s vote averted national embarrassment. I hope it was cast by a senator who believes in freedom of speech, but I fear it was not.

The New York Times: A Hot-Bed of Post-Americanism

Proof, if any were needed, that The New York Times‘s publication of details of classified defense programs is politically motivated:

The New York Times, 9/24/01

by Hugh Hewitt

The New York Times, editorializing a long time ago, when the Trade Center ruins were still burning:

The Bush administration is preparing new laws to help track terrorists through their money-laundering activity and is readying an executive order freezing the assets of known terrorists. Much more is needed, including stricter regulations, the recruitment of specialized investigators and greater cooperation with foreign banking authorities. There must also must be closer coordination among America’s law enforcement, national security and financial regulatory agencies….If America is going to wage a new kind of war against terrorism, it must act on all fronts, including the financial one.

(HT: LegalXXX who posted this in June, 2004, and to e-mailer Mary Beth S. who pinged me as to the existence of the editorial, which she found on this FreeRepublic thread.)

Permalink

What has changed since September 24, 2001? Only this: The New York Times has become ever more partisan — so much so that the Times feels compelled to oppose and undermine the war on terror simply because Bush is commander-in-chief. How post-American.

ADDENDUM: From WorldwideStandard.com:

Courtesy of The New York Times

From the International Herald Tribune:

BRUSSELS Prime Minister Guy Verhofstadt of Belgium has asked the Justice Ministry to investigate whether a banking consortium here broke the law when it aided the U.S. government’s anti-terrorism activities by providing it with confidential information about international money transfers.

The group, known as the Society for Worldwide Interbank Financial Telecommunications, or Swift, has come under scrutiny following a report last week by The New York Times….

Heather MacDonald and Gabriel Schoenfeld explain the recklessness of the New York Times here and here.

Posted by Daniel McKivergan on June 27, 2006 12:10 PM | Permalink

But why worry, if you’re a post-American? The terrorists surely will spare the Times. Hah!

Post-Americans and Their Progeny

What are post-Americans? Mark Krikorian, writing at NRO, explains:

Let me be clear what I mean by a post-American. He’s not an enemy of America — not Alger Hiss or Jane Fonda or Louis Farrakhan. He’s not necessarily even a Michael Moore or Ted Kennedy. A post-American may actually still like America, but the emotion resembles the attachment one might feel to, say, suburban New Jersey — it can be a pleasant place to live, but you’re always open to a better offer. The post-American has a casual relationship with his native country, unlike the patriot, “who more than self his country loves,” as Katharine Lee Bates wrote. Put differently, the patriot is married to America; the post-American is just shacking up.

Now, there are two kinds of post-American. David Frum, in his “Unpatriotic Conservatives” article for NR last year, highlighted what I think is the less important kind: Those who focus on something less than America, whether white nationalists or neo-Confederates, etc. The second, more consequential and problematic kind are those who have moved beyond America, “citizens of the world,” as the cliché goes — in other words citizens (at least in the emotional sense) of nowhere in particular.

What does post-Americanism lead to? Among other things — such as The New York Times‘s deliberate efforts to sabotage the war on terror) — it breeds home-grown al Qaeda wannabes. Consider this, by Jim Wooten (ThinkingRight):

So who’s surprised, then, that we see the emergence of the well-fed, well-clothed, no-worry wannabes, bored and “angry,” willing to join al-Qaida in worldwide revolution? “They were persons who for whatever reason came to view their home country as the enemy,” said Attorney General Alberto Gonzales in announcing the seven arrests.

We live in a country where immigrants are invited to have dual loyalties, where a liberal’s “highest form of patriotism” is trashing the President and the nation’s military efforts in Iraq, where being “worldly” is granting no favoritism, nor making any distinction, between dictators and democracies, or considering a room that’s too warm and terrorist butchery to be equally-condemable forms of “torture.” All the recordable anger of the Left is directed inward, not at themselves, but at this country.

That’s because the post-American Left is just waiting for a better offer. But it will never come. We “buried” Hitler, Stalin, Mussolini, Tojo, Krushchev, Brezhnev, Gorbachev, Ulbricht, Jaruzelski, Ceauşescu, Saddam, etc., and we will “bury” Castro, Putin, the Chinese cabal, Kim jong-il, Osama and his supporters — and all the rest of Hitler and Stalin’s spiritual heirs — as long as we do not succumb to post-Americanism.

Related posts:
Getting It Wrong: Civil Libertarians and the War on Terror (A Case Study) (05/18/04)
The Illogic of Knee-Jerk Privacy Adocates (10/06/04)
Treasonous Blogging? (03/05/05)
I Dare Call It Treason (05/31/05)
Shall We All Hang Separately? (08/13/05)
Foxhole Rats (08/14/05)
Treasonous Speech? (08/18/05)
Foxhole Rats, Redux (08/22/05)
The Faces of Appeasement (11/19/05)
We Have Met the Enemy . . . (12/13/05)
More Foxhole Rats (01/24/06)
Calling a Nazi a Nazi (03/12/06)
What If We Lose? (03/22/06)< A Political Compass (03/24/06)
Moussaoui and “White Guilt” (05/03/06)
In Which I Reply to the Executive Editor of The New York Times (06/25/06)

In Which I Reply to the Executive Editor of the New York Times

UPDATED THROUGHOUT, 06/26/06

From The New York Times, Sunday, June 25, 2006. Reproduced in its entirety. My comments in brackets and italic boldface. The underlying story is here.

June 25, 2006

Letter From Bill Keller on The Times’s Banking Records Report

The following is a letter Bill Keller, the executive editor of The Times, has sent to readers who have written him about The Times’s publication of information about the government’s examination of international banking records:

I don’t always have time to answer my mail as fully as etiquette demands, but our story about the government’s surveillance of international banking records has generated some questions and concerns that I take very seriously. As the editor responsible for the difficult decision to publish that story, I’d like to offer a personal response.

Some of the incoming mail quotes the angry words of conservative bloggers and TV or radio pundits who say that drawing attention to the government’s anti-terror measures is unpatriotic and dangerous. (I could ask, if that’s the case, why they are drawing so much attention to the story themselves by yelling about it on the airwaves and the Internet.) [Because, you idiot, you’ve already let the cat out of the bag. The damage is done.] Some comes from readers who have considered the story in question and wonder whether publishing such material is wise. And some comes from readers who are grateful for the information and think it is valuable to have a public debate about the lengths to which our government has gone in combatting the threat of terror. [A public debate that divulges the details of a classified anti-terror program that has been effective? Anyway, you forgot to mention the Lefties — yourself and your staff included — who simply want to shut down the war on terror because it offends your sensibilities.]

It’s an unusual and powerful thing, this freedom that our founders gave to the press. Who are the editors of The New York Times (or the Wall Street Journal, Los Angeles Times, Washington Post and other publications that also ran the banking story) to disregard the wishes of the President and his appointees? And yet the people who invented this country saw an aggressive, independent press as a protective measure against the abuse of power in a democracy, and an essential ingredient for self-government. They rejected the idea that it is wise, or patriotic, to always take the President at his word, or to surrender to the government important decisions about what to publish. [But it is neither wise nor patriotic to undermine the government’s lawful efforts to prosecute a war, and that is precisely what the Times and other publications have done.]

The power that has been given us is not something to be taken lightly. [But you have done just that in your zeal to sell newspapers, win Pulitzer prizes, and push your writers’ books.] The responsibility of it weighs most heavily on us when an issue involves national security, and especially national security in times of war. I’ve only participated in a few such cases, but they are among the most agonizing decisions I’ve faced as an editor. [Because your “agonizing” always seems to lead to the same conclusion (publish), I doubt that it’s really agonizing at all.]

The press and the government generally start out from opposite corners in such cases. [Why should that be, unless you place the Times’s interests — don’t give me that baloney about “pubic interest” — above the nation’s.] The government would like us to publish only the official line, and some of our elected leaders tend to view anything else as harmful to the national interest. [Strawman alert!] For example, some members of the Administration have argued over the past three years that when our reporters describe sectarian violence and insurgency in Iraq, we risk demoralizing the nation and giving comfort to the enemy. Editors start from the premise that citizens can be entrusted with unpleasant and complicated news, and that the more they know the better they will be able to make their views known to their elected officials. Our default position — our job — is to publish information if we are convinced it is fair and accurate, and our biggest failures have generally been when we failed to dig deep enough or to report fully enough. After The Times played down its advance knowledge of the Bay of Pigs invasion, President Kennedy reportedly said he wished we had published what we knew and perhaps prevented a fiasco. [Irrelevant. Kennedy was second-guessing his failure of nerve. He was responsible for the Bay of Pigs fiasco.] Some of the reporting in The Times and elsewhere prior to the war in Iraq was criticized for not being skeptical enough of the Administration’s claims about the Iraqi threat. The question we start with as journalists is not “why publish?” but “why would we withhold information of significance?” We have sometimes done so, holding stories or editing out details that could serve those hostile to the U.S. But we need a compelling reason to do so. [This entire paragraph is off the point. What the government might have liked — or not liked — in various cases isn’t in question. What is in question is why the Times and other media outlets have chosen to divulge very real, very secret, and probably very effective measures, such as the surveillance of international communications and the tracking of financial transactions.]

Forgive me, I know this is pretty elementary stuff — but it’s the kind of elementary context that sometimes gets lost in the heat of strong disagreements. [In other words, those who are enraged by the Times’s actions are nothing more than right-wing hotheads.]

Since September 11, 2001, our government has launched broad and secret anti-terror monitoring programs without seeking authorizing legislation and without fully briefing the Congress. [The government has acted in accordance with already existing legislation.] Most Americans seem to support extraordinary measures in defense against this extraordinary threat, but some officials who have been involved in these programs have spoken to the Times about their discomfort over the legality of the government’s actions and over the adequacy of oversight. [So, the Times favors disgruntled leakers over national security. Well we knew that, and the reasons for it, namely, the Times’s zeal to sell newspapers, win Pulitzer prizes, and push its writers’ books.] We believe The Times and others in the press have served the public interest by accurately reporting on these programs so that the public can have an informed view of them. [Actually, your purpose — among others not so lofty — was to discredit a Republican administration by running scare headlines.]

Our decision to publish the story of the Administration’s penetration of the international banking system followed weeks of discussion between Administration officials and The Times, not only the reporters who wrote the story but senior editors, including me. We listened patiently and attentively. We discussed the matter extensively within the paper. We spoke to others — national security experts not serving in the Administration — for their counsel. [Yeah, but you knew all along what you were going to do, didn’t you?] It’s worth mentioning that the reporters and editors responsible for this story live in two places — New York and the Washington area — that are tragically established targets for terrorist violence. The question of preventing terror is not abstract to us. [Oh, play that violin! New York and Washington aren’t the only potential targets, you narcissistic jerk. By your words and actions you have revealed that the question of preventing terror is abstract to you.]

The Administration case for holding the story had two parts, roughly speaking: first that the program is good — that it is legal, that there are safeguards against abuse of privacy, and that it has been valuable in deterring and prosecuting terrorists. And, second, that exposing this program would put its usefulness at risk.

It’s not our job to pass judgment on whether this program is legal or effective, but the story cites strong arguments from proponents that this is the case. While some experts familiar with the program have doubts about its legality, which has never been tested in the courts, and while some bank officials worry that a temporary program has taken on an air of permanence, we cited considerable evidence that the program helps catch and prosecute financers of terror, and we have not identified any serious abuses of privacy so far. A reasonable person, informed about this program, might well decide to applaud it. That said, we hesitate to preempt the role of legislators and courts, and ultimately the electorate, which cannot consider a program if they don’t know about it. [If they don’t know about it, it’s for a very good reason: Loose lips sink ships. Wars aren’t won by discussing battle plans in town meetings.]

We weighed most heavily the Administration’s concern that describing this program would endanger it. The central argument we heard from officials at senior levels was that international bankers would stop cooperating, would resist, if this program saw the light of day. We don’t know what the banking consortium will do, but we found this argument puzzling. First, the bankers provide this information under the authority of a subpoena, which imposes a legal obligation. Second, if, as the Administration says, the program is legal, highly effective, and well protected against invasion of privacy, the bankers should have little trouble defending it. The Bush Administration and America itself may be unpopular in Europe these days, but policing the byways of international terror seems to have pretty strong support everywhere. And while it is too early to tell, the initial signs are that our article is not generating a banker backlash against the program. [No, but it does give the bad guys — and potential bad guys — better information about how to avoid the tracking of their banking transactions.]

By the way, we heard similar arguments against publishing last year’s reporting on the NSA eavesdropping program. We were told then that our article would mean the death of that program. We were told that telecommunications companies would — if the public knew what they were doing — withdraw their cooperation. To the best of my knowledge, that has not happened. While our coverage has led to much public debate and new congressional oversight, to the best of our knowledge the eavesdropping program continues to operate much as it did before. Members of Congress have proposed to amend the law to put the eavesdropping program on a firm legal footing. And the man who presided over it and defended it was handily confirmed for promotion as the head of the CIA. [Off the point again. You fail to mention the bad guys and how your stories helped them avoid detection. Or don’t you care about them?]

A secondary argument against publishing the banking story was that publication would lead terrorists to change tactics. But that argument was made in a half-hearted way. [Who says? Are you into reading body language?] It has been widely reported — indeed, trumpeted by the Treasury Department — that the U.S. makes every effort to track international financing of terror. [But not precisely how.] Terror financiers know this, which is why they have already moved as much as they can to cruder methods. [How do you know that? How can anyone know that? All one can do is track what can be tracked, but you’ve probably told terrorists more than they knew about how their money is tracked.] But they also continue to use the international banking system, because it is immeasurably more efficient than toting suitcases of cash. [Though they may use it less than before, or in more devious ways, thanks to you.]

I can appreciate that other conscientious people could have gone through the process I’ve outlined above and come to a different conclusion. But nobody should think that we made this decision casually, with any animus toward the current Administration, or without fully weighing the issues. [Regardless of your smug justifications, you did come to the conclusion that it was your right and responsibility to endanger American lives by exposing programs that help track terrorists. The First Amendment gives you the right to publish; it doesn’t say that you must publish. Use your head, if you can retrieve it from the orifice at the other end of your torso.]

Thanks for writing.

Regards,
Bill Keller

[P.S. I pay the President to defend the country, not you. If you want the job, run for it. Until you’ve been elected and inaugurated, keep your mitts off the war effort. You’re on a par with a drunk who aspires to direct traffic, and about as qualified for the job.]

ADDENDUM: See this excellent fisking of Keller’s letter by Hugh Hewitt.

ADDENDUM 2: See this “indictment” by Mark Henry Holzer of the Times and the leakers who have been passing classified information to the Times since 9/11.

ADDENDUM 3: Michelle Malkin has a roundup of blogospheric reactions.

ADDENDUM 4: Michael Barone asks (about those gentle folk of the Times) why do they hate us?

ADDENDUM 5: The American Spectator Blog reports that Keller has been caught lying about the amount of contact the NYT had with the White House and the vehemence of the government’s objections to the story.

ADDENDUM 6: Treasury secretary John Snow piles on (in effect repeating some of what I say above).

Those UN Gun Grabbers and the Second Amendment

Michelle Malkin joins the list of bloggers and other who are alarmed by the upcoming UN conference on global gun control. She points to a release by the Second Amendment Foundation, which includes this:

The U.N. Conference on Global Gun Control, scheduled June 24- July 7, poses a direct threat to our constitutionally-protected individual right to keep and bear arms, said Alan Gottlieb, founder of the Second Amendment Foundation (SAF). Gottlieb will attend the conference, but he suggests that this may be an opportune time for Congress and the White House to reconsider this nation’s level of financial support for an international organization that now wants to write a treaty that specifically attacks a cornerstone of our federal constitution, and the lynchpin to our liberty. . . .

“Yet, as we celebrate our 230th anniversary, global anti- gunners, under the guise of reviewing a U.N. program of action on small arms and light weapons, want to create a binding international agreement that could supersede our laws and constitution,” Gottlieb said. “We have done much for the U.N. and in return, the organization has hosted despots, tyrants and dictators whose record of human rights abuses, aggression and genocide speaks for itself. And now comes an attack on our constitution, on our national holiday.

Gottlieb and other defenders of Americans’ right to bear arms are justifiably alarmed by the UN’s blatant anti-Americanism, of which the upcoming conference is but the latest manifestation.

It is my view, however, that the U.S. cannot effectively amend the Constitution and do away with the right to bear arms simply by virtue of its membership in the UN. I have made that point in connection with our right to declare war regardless of the UN’s position on such a declaration. (See this, this, and this.) The same logic applies to the Second Amendment.

I am not counseling complacency in the face of enemies abroad and dupes at home. I am saying that — in the end and given the right Supreme Court (which we probably have on this issue) — the Second Amendment will survive.

Hudson v. Michigan and the Constitution

Re: Hudson v. Michigan, which the U.S. Supreme Court decided yesterday. A post at SCOTUSblog gives the essence of the case in this brief paragraph:

The bare holding of the case is simple: if police have a warrant to search a home, and they enter in a way that violates their constitutional duty to knock first and announce themselves, the evidence turned up in the search can be used in a criminal prosecution.

The critical point is the assertion that police have a “constitutional duty to knock first and announce themselves” in the execution of a warrant. The Court accepts that reading of the Constitution. The syllabus that accompanies the Court’s holding begins with this:

Detroit police executing a search warrant for narcotics and weaponsentered petitioner Hudson’s home in violation of the Fourth Amendment’s “knock-and-announce” rule.

Where is that rule found? It’s not spelled out in the Fourth Amendment:

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.

We have “knock-and-announce” for the reason given in Justice Thomas’s majority opinion in Wilson v. Arkansas (1995):

At the time of the framing, the common law of search and seizure recognized a law enforcement officer’s authority to break open the doors of a dwelling, but generally indicated that he first ought to announce his presence and authority. In this case, we hold that this common-law “knock and announce” principle forms a part of the reasonableness inquiry under the Fourth Amendment.

However, later in Justice Thomas’s opinion we find this:

This is not to say, of course, that every entry must be preceded by an announcement. The Fourth Amendment’s flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests. As even petitioner concedes, the common-law principle of announcement was never stated as an inflexible rule requiring announcement under all circumstances.

It’s obvious that “knock-and-announce” is a patently absurd rule for those cases in which knocking and announcing would enable a suspect to destroy, hide, or abcond with the very items that are the subject of a search warrant. In fact, Justice Scalia’s majority opinion summarizes the exceptions to “knock-and-announce.”

Hudson v. Michigan is controversial mainly (solely?) because, as Justice Scalia states, “[f]rom the trial level onward, Michigan has conceded that the entry was a knock-and-announce violation.” If the State of Michigan had not made that concession, Hudson would never have made it to the Supreme Court.

Here’s my take: Because of Michigan’s concession, the Court was bound to accept as “fact” that the entry into Hudson’s house was a “knock-and-announce” violation. But the facts of the case suggest that it was not a clear-cut violation of “knock-and-announce.” Again, from Justice Scalia’s opinion:

Police obtained a warrant authorizing a search for drugs and firearms at the home of petitioner Booker Hudson. They discovered both. Large quantities of drugs were found, including cocaine rocks in Hudson’s pocket. A loaded gun was lodged between the cushion and armrest of the chair in which he was sitting. Hudson was chargedunder Michigan law with unlawful drug and firearm possession.

This case is before us only because of the method of entry into the house. When the police arrived to execute the warrant, they announced their presence, but waited only a short time—perhaps “three to five seconds,” App.15—before turning the knob of the unlocked front door and entering Hudson’s home. Hudson moved to suppress all the inculpatory evidence, arguing that the premature entry violated his Fourth Amendment rights. . . .

When the knock-and-announce rule does apply, it is not easy to determine precisely what officers must do. How many seconds’ wait are too few? Our “reasonable wait time” standard, see United States v. Banks, 540 U. S. 31, 41 (2003), is necessarily vague. Banks (a drug case, like this one) held that the proper measure was not how long it would take the resident to reach the door, but how long it would take to dispose of the suspected drugs—but that such a time (15 to 20 seconds in that case) would necessarily be extended when, for instance, the suspected contraband was not easily concealed. Id., at 40–41. If our ex post evaluation is subject to such calculations, it is unsurprising that, ex ante, police officers about to encounter someone who may try to harm them will be uncertain how long to wait.

Reading between the lines, the majority in Hudson v. Michigan believed that the case did not involve a “knock-and-announce” violation. But the majority could not change the fact of Michigan’s concession that there was such a violation. So the majority did the next best thing; it prevented Hudson from getting off scot-free, in spite of the supposed violation. How? The majority found the “exclusionary rule” inapplicable and allowed the evidence found in Booker Hudson’s home to be used against him.

By its action the majority also forestalled claims similar to Hudson’s. The second-guessing by prosecutors and judges of reasonable judgments made by the police in the execution of their duties — especially in the execution of lawful warrants — is not a defense of liberty. Rather, it undermines liberty by making it easier for predators like Booker Hudson to elude justice, on the questionable theory that “it is better that ten guilty persons escape than that one innocent suffer.”

I contend, further, that a proper reading of the Constitution would require either “knock-and-announce” or a warrant, not both. At the time of the framing, when “knock-and-announce” was accepted law, warrants were not accepted law. As William J. Stuntz writes in The Heritage Guide to the Constitution (pp. 326-9):

. . . When the Fourth Amendment was written, the sole remedy for an illegal search or seizure was a lawsuit for money damages. Government officials used warrants as a defense against such lawsuits. Today a warrant seems the police officer’s foe — one more hoop to jump through — but at the time of the Founding it was the constable’s friend, a legal defense against any subsequent claim. Thus it was perfectly reasonable to specify limits on warrants (probable cause, particular description of the places to be search and the things to be seized) but never to require their use.

Hudson served justice, while remaining true to the original meaning of the Constitution.

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The New York Times, 9/24/01

by Hugh Hewitt

Courtesy of The New York Times

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