Free Markets, Free People

federal jurisdiction


There oughtta be a law!

Those of us on the libertarian-ish end if things support, at the very least, a return of government size and scope to its constitutionally defined bounds. As part of that, the last thing we generally want is more Federal laws about most things. We’re supposed to support a more federal system, and decry most Federal pre-emption of state laws. But I’ve been thinking lately there there are a few Federal laws I’d like to see that do pre-empt local and state laws.

In several states, photographers and videographers have been arrested and charged under various wiretapping statutes for filming police officers and other public officials in public. Just yesterday, I wrote about a young woman who was prosecuted for surreptitiously making an audio recording of police officers who were urging her to drop an official complaint against another officer. Whether you are an elected official or a DMV clerk, your duties should be completely open to public audit—except for some rather obvious and narrow military or national security exemptions—and you should have no expectation of privacy in the performance of your duties. Anybody should be able to film  or record you at any time you are performing those duties.

There should be some system whereby any private citizen who has performed federal military or law enforcement service can obtain a federal concealed weapons permit that is valid in every place in the United States, irrespective of any state or local laws to the contrary. Those eligible should have completed at least one term of service with an honorable discharge or its equivalent, have no criminal record, and no history of mental illness.

There have been a troubling number of incidents where police officials have served warrants in the wrong locations, often late at night, resulting in armed confrontations with homeowners. Sometimes, the homeowner is shot and killed. Sometimes, as in the Corey Maye case, a police officer is shot and killed, and the homeowner faces a terrible legal ordeal. That’s just wrong. If the police serve a warrant at the wrong location, for any reason, they forfeit the right to charge the homeowner for any unfortunate gunplay that results. As the police are solely responsible for creating the situation, they should be solely responsible for the outcome, as well as any damages that might accrue from their mistake. This should include prosecution for animal cruelty for a police officer who commits puppycide during these raids. I hate it when they do that, and they seem to do it a lot.

You might notice that all my laws place burdens on the government, not the citizens. Maybe you could suggest some other liberty-friendly laws.

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Dale Franks
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An Arrogancy of Jurisdiction

Suppose I told you that there is an organization which claims to have worldwide jurisdiction (literally, “where the law speaks”) over all matters of criminal law and justice, regardless of who a person is? No I’m not referring to the ICC, but instead to the Obama administration.

The Obama administration is considering a criminal trial in Washington for the Guantanamo Bay detainee suspected of masterminding the bombing of a Bali nightclub that killed 202 people, a plan that would bring one of the world’s most notorious terrorism suspects just steps from the U.S. Capitol, The Associated Press has learned.

Riduan Isamuddin, better known as Hambali, was allegedly Osama bin Laden’s point man in Indonesia and, until his capture in August 2003, was believed to be the main link between al-Qaida and Jemaah Islamiyah, the terror group blamed for the 2002 bombing on the island of Bali.

It’s not readily apparent what charges would be brought against Hambali, but a real question exists as to exactly what power our civil judicial system would have over him. In order to pass judgment on anyone, a court must have personal jurisdiction over the defendant, which essentially means that he has some nexus with the place where his trial takes place. With respect to Khalid Sheikh Mohammed, there is at least a good argument that his alleged activities with respect to the 9/11 attacks and the World Trade Center bombings creates a connection with the court of record in New York City. In contrast, Hambali does not, as far as anyone has alleged, have any connection whatsoever with the District of Columbia, nor with anywhere else in the United States. So on what basis can a DC court claim to have any power over his person?

Yet that’s just what the Obama administration proposes to do. It is considering trying Hambali in a federal civil court, supposedly for his terrorist actions (which are legion, to be sure) elsewhere in the world. Most famously, Hambali is thought to be the mastermind behind the devastating bombings in Bali back in 2002. But Bali is in Indonesia, not the United States. Indeed, Jemaah Islamiya, of which Hambali is known to be the operations coordinator and chief liason to al Qaeda regarding its Southeast Asia conquests, has not been alleged to be involved in any actions in America or her protectorates. All of which should lead to the inexorable conclusion that our federal courts have no jurisdiction over Hambali.

Perhaps no real harm would come from a court reaching such a decision. It wouldn’t lead to a release of the prisoner, necessarily, since the question of guilt or innocence would never be addressed. But what if, instead, a ruling is made that there is personal jurisdiction over Hambali? Stranger things have happened — witness the vast expansion of judicial power created in Boumediene v. Bush, where the Supreme Court found that its jurisdiction for habeas corpus purposes extended to any person within America’s exclusive control. Should a DC court find it does have personal jurisdiction over a person who has no connection to America except for being captured by her soldiers, that would be paramount to declaring American law and jurisprudence the law of every land. In other words, we would be claiming that our laws “speak” everywhere and for everyone, whether you like it or not.

If you are inclined to believe that holding enemy combatants at GITMO directly aids al Qaeda’s recruitment efforts, how do you think the terrorist organization and her adherents will take to our claim that they, and everyone else in the world, are subject to our civil laws? How will the rest of the world view such an arrogant statement? Beyond satisfying some petty political aims, by taking such a misguided step as this the Obama administration is not doing the U.S. any favors, and is likely damaging our interests.