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What Would Thomas Jefferson Do?
Posted by: Jon Henke on Sunday, July 16, 2006

Arising from Glenn Greenwald's recent citation and condemnation of the Anti-idiotarian Rottweiller's statement "Five ropes, five robes, five trees. Some assembly required." I've been having an interesting conversation with Wulf from Atlasblogged on the proper time and place for meeting State force with personal force — what we'll call "revolution".

While many — me included — have condemned Misha's hyperbolic suggestion of violence against judges, it occurs to me that the comment is not very different from a comment made by Thomas Jefferson...
"The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants."
Indeed, I have no particular moral problem with the idea that force should sometimes be used against an overweening, unjust State. That's exactly how the United States came into existence. And while some might say that "democracy" distinguishes our founding fathers' actions from any current ones, I think that's a conceptual mistake. Democracy is a palliative against tyranny, but it certainly does not, itself, rule out intolerable injustices.

In an email, Wulf wrote:
Is the law right? How should we treat it if it is not right? Over which laws (passed through legitimate procedures) would you be willing to fire shots to defend your home? If the cops showed up to confiscate your pot, your guns, your money, or your children, which ones are worth shooting a cop over? WWTJD? [What would Thomas Jefferson do?]
Similarly, Radley Balko recently asked:
Would the founders — whom our government celebrates today — have tolerated the government we have now? As Cowen notes, we rose up and revolted against a government that was far less intrusive, invasive, and — at risk of hyperbole — tyrannical than the one we have now. My guess is that alcohol prohibition alone would've been enough have Payne or Jefferson calling for arms. Never mind the New Deal, the Great Society, or today's encroaching police state.
My question is this: is there a clear, bright line between when civil obedience/disobedience is proper and when Revolution/violence directed against the State is proper? I tend to think that there is no objective bright line — there are only subjective personal tolerance levels and the power (or lack thereof) to enforce them.
 
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I think you’re right. Moreover, we tend generally to tolerate oppression if it comes incrementally and subtly rather than in large, discrete doses. And so we become inured to levels of oppression that we wouldn’t tolerate if they were thrust on us all at once.

Gradualism is aided by the generational effect. A person who was born into the ethos of the New Deal finds less to object to in the Great Society than a person who was born into the world of, say, the 1890s.

There is also the comparative effect. For example, immigrants to this country are willing to tolerate the levels of oppression they find here because (a) their homelands are even more oppressive and/or (b) they are "bought off" by the promise of material wealth that they might attain, in spite of the oppression they find here.

Those of who were born here also look at what we have, in spite of "big brother," and say to ourselves (a) it’s unlikely to be better anywhere else and (b) the cost of trying to make it better here would be too high.
 
Written By: Tom Anger
URL: http://libertycorner.us
Jon Henke -
My question is this: is there a clear, bright line between when civil obedience/disobedience is proper and when Revolution/violence directed against the State is proper? I tend to think that there is no objective bright line — there are only subjective personal tolerance levels and the power (or lack thereof) to enforce them.
I think you framed your own question with the answer. As long as Americans act only as individuals and are inclined to tolerate infringements on their liberty because of a belief that the downside is far worse. (A 5 year long bloody civil war anyone? Disrespect for All-Wise Lawyers in Robes? Politicians that depend on armed agents of the state to enforce their laws saying killing a government enforcer of the law is the highest of all capital crimes??? Fear of any resistance being called "Terrorism!" )

Our 2-Party system does aide and abet the slow erosion of liberty. When has a Party said a court decision was "intolerable" and would be rejected - since Jackson & Lincoln’s time? When have the people told their leaders they have had enough of the Nanny State? When have the people said they will oppose the Members of the Ruling Elite with violence if they go too far? Elites who have foisted the ACLU’s will on us, abortion, hijacked our foreign policy and each year shoved more regulations and laws on us until we are all in our inability to understand the roomfuls of codes and regulations we live under — all lawbreakers in one way or another?

Our cars are a fine example. Sensible child restraint laws gave way to mandatory seat belt laws. Periodic government "emissions" checks of modern cars needing no tune-ups are still mandatory to feed the bureaucracies created. Regulations in building or modifying cars are so plentiful they cannot be complied with. Chips built into cars now give cops and corporations the data they need to help convict or a legal excuse to jack up insurance on drivers in accidents. Does anyone doubt that if radios had just been invented they would be as regulated and restricted as "distracting cell phones" have become?

Wulf’s email -
Over which laws (passed through legitimate procedures) would you be willing to fire shots to defend your home? If the cops showed up to confiscate your pot, your guns, your money, or your children, which ones are worth shooting a cop over? WWTJD? [What would Thomas Jefferson do?]
The problem goes past America. Some think the stress and anxiety of extreme regulation of society is weakening Western Civilization as a whole. Dying, losing it’s vigor from the choking effects of not being able to live life without a host of bureaucratic permissions needed for each step. Being powerless to act against the violators of the social contract except through a distant, uncaring State no longer interested in maintaining the social contract they derive all power from. Entrepreneurs spending 1/3rd of time on small business effort on taxes, paperwork, learning all the regulations impinging on the business, fighting proposed new regulations.

Or if a handful of Jewish lawyers at CRC, Southern Poverty Law Aenter, ACLU working for black clients get the courts to rule that all non-blacks in America must be subject to a 5% payroll tax on earnings for the next 50 years for "slavery reparations? If the slavery reparations movement lawsuits in the pipeline succeed, do you bend over and take it? If not, how do you resist? Or if a Hispanic-dominated California "votes" to seceed and form Alta Aztlan?

My guess is Americans are still too complacent and deluded about "America being 2nd to none" - in our schools, healthcare, economic competiveness, infastructure, finances, safety - that we must fall enough as a nation [a process well underway, IMO] that Americans wake up, form a widespread consensus that they need and demand a Party that will fight to regain our lost liberties.

The Far Right/Religious Right/Militia fantasy of the "well-armed individual" standing alone at his home, without any larger organization backing him, mowing down cops in the name of Freedom until he too is gunned down does not appear to be a viable strategy.
 
Written By: C. Ford
URL: http://
There is an excellent essay on "Varieties of Pacifism" at the Neo-Neocon blog that provides some insights on this topic:

http://neo-neocon.blogspot.com/2005/09/varieties-of-pacifism-part-i-gandhis.html



By the way, if anyone is not familiar with neo-neocon, it is a very thoughtful and well-reasoned blog written by a woman who describes herself this way:


"I’m a woman in my fifties, lifelong Democrat mugged by reality on 9/11. Born in New York, living in New England, surrounded by liberals on all sides, I’ve found myself slowly but surely leaving the fold and becoming that dread thing: a neocon."



(Is it a violation of Netiquette to plug one blog in the comments section of another?)
 
Written By: Aldo
URL: http://
I think a huge reason for the erosion of liberty without any fight is what another commenter called the high cost of making it better. Meaning, even if some large block of voters felt that violent revolution was the only means of change left to them, the gap between their violent capabilities and that of the government is too huge to make violence a viable option (and even if that’s not the reality, because I’m putting too much stock in American military might, I’m guessing it FEELS real enough to most such voters that they’d be deterred from trying the violence option).
 
Written By: jinnmabe
URL: http://
(Is it a violation of Netiquette to plug one blog in the comments section of another?)
I don’t have any problem with it, Aldo. As to the blog you mention, I heartily agree and have plugged Neo-neocon myself. One of the few blogs I read fairly regularly. Smart lady.
 
Written By: McQ
URL: http://www.qando.net/blog
In a liberal democracy like ours civil disobedience and revolution are almost never moral or justified.

In a country like ours civil disobedience is only justified when the electoral system has itself been subverted. This was the case with respect to African Americans particularly in the South prior to the passage of the Civil Rights Age and, particularly, the Voting Rights Act. Their civil disobedience during that period was justified.

Revolution is never justified as long as the country remains a liberal democracy.

Imperfection does not constitute either a subversion of the electoral system or the end of liberal democracy. Impasse does not constitute either a subversion of the electoral system or the end of liberal democracy. Apathy does not constitute either a subversion of the electoral system or the end of liberal democracy. Undue influence on the part of monied interests does not constitute a sufficient subversion of the electoral system or the end of liberal democracy to justify civil disobedience or revolution. And, most especially, not getting your way does not constitute either a subversion of the system or the end of liberal democracy.

If there’s imperfection, improve on it. There will always be room for improvement. If there’s an impasse, convert voters to your side. If they’re apathetic, get them excited. If monied interests have undue influence address it through the electoral or legal system. If you’re not getting your way, convince people.

Anything else is tyranny.

I have no doubt that if the electorate were genuinely dissatisfied with the Supreme Court that offending justices would be removed from office using legitimate (or, possibly, quasi-legitimate) legal and electoral means.
 
Written By: Dave Schuler
URL: http://www.theglitteringeye.com
So Dave, your answer is that the clear, bright line is when the government ceases to be a liberal democracy...
Are you saying that it is impossible for this type of government to infringe upon the rights of the individual? Or that it would be okay when that happens?
 
Written By: Wulf
URL: http://www.atlasblogged.com
I find myself in large agreement with Dave Schuler. I’d differ slightly in that I lean toward the belief that civil disobedience, so long as it is non-violent, and the consequences of said disobedience are not evaded, is a legitimate expression of extreme political dissatisfaction.

Besides, the sad truth is that if we really wanted freedom, that’s what we’d have. And if we ever convince enough of the electorate to actually revolt for lost liberties, would have long before motivated enough of them to achieve our goals through the democratic process.

And that’s good, because I cannot see how any envisionable attempt at revolt could possibly succeed anyway.
 
Written By: CNH
URL: http://
is there a clear, bright line between when civil obedience/disobedience is proper and when Revolution/violence directed against the State is proper?
The question already assumes that the State is engaged in some type of oppression that cannot be redressed through ordinary political means. Certainly, in a functioning democratic system we would not be putting our lives, liberty, and livelihoods on the line to challenge the power of the State through either of these options.

At the point where extralegal action must be used to challenge the State, the decision comes down to tactics. In order to have a chance of succeeding, either civil disobedience or revolution must be a mass movement. The challenge would be in starting the wave in motion. Once a massive wave of civil disobedience or revolution is started, a thinking individual will decide whether or not to join based on his own beliefs about the morality of violence and his own calculations about the chances of success.

Civil disobedience is a weapon that requires the enemy to have some type of conscience in order to be successful. It could work against a State that is depriving a people of their liberty for purely political reasons, like the British in India. It will not work against fanatics. The neo-neocon blog points out that Gandhi’s civil disobedience tacts worked for the Hindus against the British, but when they tried the same tactics against the Muslims in the battles over the Partition they were slaughtered, and their cause was lost.

The author of the neo-neocon blog quotes an article by Dr. Koenraad Elst, a Belgian scholar on India:
Gandhi’s mistake was not his pacifism per se...The Khilafat pogroms revealed one of the real problems with his pacifism: all while riding a high horse and imposing strict conformity with the pacifist principle, he indirectly provoked far more violence than was in his power to control.
The blog’s author concludes:
There is an ancient Talmudic saying: "He who is kind to the cruel ends up being cruel to the kind." The fact that in Gandhi’s efforts to stop violence "he indirectly provoked far more violence than was in his power to control" is a good example of that principle in action.
 
Written By: Aldo
URL: http://

Are you saying that it is impossible for this type of government to infringe upon the rights of the individual?
Essentially, I am saying it is impossible for a liberal democracy to infringe upon the rights of its citizens by definition except within very narrow circumstances.

My own experience with those who practice civil disobedience or are would-be revolutionaries is that it is not a last resort. Many have never voted, or written their Congressmen, or attended a political meeting (other than to protest). They merely want to impose their will on others.

 
Written By: Dave Schuler
URL: http://www.theglitteringeye.com
I disagree with Schuler. The Soviet Union was among the most liberal democracies of all on the surface, with a "rights-guaranteed" Constitution and high voter turnout in each election. The problem of course was that was just stuff on the surface. Underneath, nothing significant happened without the decision of the Party Cadres.

In America, despite Schuler’s belief that:
it is impossible for a liberal democracy to infringe upon the rights of its citizens by definition except within very narrow circumstances.
- the reality shows it is otherwise on some of the most major issues of liberty and freedom.

No one voted for abortion or affirmative action. To say, well, that’s just the "courts" - ignores that the Ruling Elites have blocked referandums, votes to reverse it, block impeachment of any judge. When did we agree to businesses having racial and gender quotas imposed on them by unelected bureaucrats and lawyers of the EEO?

We have accepted profound changes in the way children are taught and what they are taught because The People cannot overcome the clout of the Educrats. How did driving without a seatbelt go from kids only, to a warning from kindly "Hero" law enforcement officers, to it become a major fine (violating your own safety) when no state ever had voters decide? Answer - bureaucrats at Transportation dictated it.

Why do we have unguarded Borders, massive use of H-1B visas when 80% of voters have opposed it for 20 years? Why hasn’t it stopped? Can you say the money and clout of a few?? Why have the Elites managed to enforce complete Gun bans or gun ownership solely at the permission of a government functionary? Even though the people never voted on it, or toy bans, or drug recalls? Why do our taxes go to pay for free school, welfare, and medical care of illegals? What legislature voted on that? Why does "Pay to Play" now dominate the Congress and State government at a level not seen since the Days of the Robber barons? When did the voters agree to widespread corruption? When exactly did we agree that we should gut America of manufacturing jobs, most going to our great 21st Century strategic rival?

Why is America now the owner global Empire that has entangled America in over 80 countries and drains our treasury to them, rather than being of any benefit to the average American citizen, and obligates us to nearly unending war and interventions? Because the Ruling Elites want it so.

And so does Schuler, I guess.

Or he thinks the usurpations of our liberties since the 70s are not "outside a narrow margin".

Perhaps part of the problem is that too many ordinary Americans still have the illusion that they are in control of a "liberal democracy". They are like Soviets who believed they elected Stalin, they loved Stalin, and all their neighbors also did - because Russia was a progressive liberal democracy except for class enemies, bigots, reactionary elements - that the Party of the People was always looking out for.
 
Written By: C. Ford
URL: http://
C. Ford

The "Ruling Elites" only rule because we elect them. In every single example you cite, you must come to grips with the fact that will of the "Ruling Elites" reflects the will of some voting constituency for whom a particular issue is of paramount importance. Outside of having a true, direct democracy, in which every single issue is voted upon by the entire electorate, voters will forever be faced with choosing the lesser of two (or more) evils.

Additionally, "The People" is not some undifferentiated monolithic voter bloc. A significant section of "The People", perhaps sad to say, AGREES with the "Educrats" et al. Many are even cool with the SCOTUS playing SuperLegislature! (tm).

And this, ultimately, is a big reason why revolution is a non-starter. Your opponents won’t just be the "Ruling Elite". You’ll be fighting against "The People" as well.

The closest approximation to a solution that I can come up with is greatly increased federalism, devolving virtually all political decisions to the states. Make the Federal Govt. responsible for the Common Defense (and little else), and then each state can govern it’s affairs as it so wishes. If you don’t like how state A is doing things, you can move to state B. Who knows, maybe then a critical mass of like minded individuals could perhaps pull something off like peaceful seccesion.
 
Written By: CNH
URL: http://
it occurs to me that the comment is not very different from a comment made by Thomas Jefferson...

"The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants."


[Raises an eyebrow]

Are you comparing Jefferson’s comment to a call for violence against judges stating that the Executive had to obey the rule of law?

 
Written By: Phoenician in a time of Romans
URL: http://
is there a clear, bright line between when civil obedience/disobedience is proper and when Revolution/violence directed against the State is proper?
Be clear you have to make it a revolution. Violence against the state is never practical, defending your home is merely violence against the officers of the state. Waco happening to you.

WWTJD? He would not grab a gun and holler at the red coats ’don’t tax my tea’. He might raise an army, enlist foriegn support and attack the government.

As CNH states:
a big reason why revolution is a non-starter. Your opponents won’t just be the "Ruling Elite". You’ll be fighting against "The People" as well.
This does not exactly mean revolution is a non-starter it just means your "patriots" will have to beat their "patriots". It is a given that your patriots will be outnumbered (given that the libertarians only get a percent or so of any election - the Bolsheviks polled higher), so you will have to fight smarter and more resolutely (than the Bolsehviks) to win.


BTW - What is your core problem? TJ was fighting no taxation without representation, but you seem to be concerned that other people are making use of a representative democracy to progress their anti-libertarian ideas. If so a revolution to destroy representative democracy might be your only option.
 
Written By: Unaha-closp
URL: http://
I don’t think Jon has a ’core problem,’ although he may correct me. I think this is just a hypothetical question. It is certainly an interesting intellectual exercise.
 
Written By: Andrew Olmsted
URL: http://andrewolmsted.com
CNH -
The "Ruling Elites" only rule because we elect them.
Hardly. The people that dominate the Ruling Elites shun political office. It’s about their dominance of critical US institutions, ability to come through with the cash envelope, the perfectly legal ex-Senator lobbying fee, the money to run the ACLU, the power to offer academic, corporate, political advancement for the "right thinking and actions beforehand.

CNH -
And this, ultimately, is a big reason why revolution is a non-starter. Your opponents won’t just be the "Ruling Elite". You’ll be fighting against "The People" as well.
NO, you’ll be fighting "Their bought and paid for People". But don’t worry, a fight to regain American’s lost liberties and the People taking back their destiny from the Ruling Elites will likely wait on something big like the collapse of the US dollar, Medicare or Social Security going bankrupt, or the destruction of the American Middle class to accelerate. We are not yet where royal France in 1788, WWI Russia, or Weimar Germany was.

So far, as Tom Anger said, the stripping of liberties, the changes, have been done slowly and incrementally so the cost of rebelling against each new tax, regulation, court edict can be kept low enough in each example that the sheep don’t stampede...

Phoenician -
[Raises an eyebrow]
Are you comparing Jefferson’s comment to a call for violence against judges stating that the Executive had to obey the rule of law?
Jefferson did not distinguish between Tyrants. To Tom, they came in all flavors.

Meaning donning robes before commanding a populace to do things not written in their laws or Constitution no more "immunizes" the judiciary from charges of tyranny when they speak of how the emenations and penumbras they feel allow them to create law - than a police squad of jackboots breaking into houses without warrant or probable cause and confiscating firearms (New Orleans) on ground of "unlimited emergency powers of Hero Cops" are immune from tyranny charges.

 
Written By: C. Ford
URL: http://
Hardly. The people that dominate the Ruling Elites shun political office. It’s about their dominance of critical US institutions, ability to come through with the cash envelope, the perfectly legal ex-Senator lobbying fee, the money to run the ACLU, the power to offer academic, corporate, political advancement for the "right thinking and actions beforehand.
We do not live in a "one dollar, one vote" democracy. It’s true that money may very well buy influence in Washington, but in the end, it only influences the decisions of the voting populace, it does not determine or supplant them. And besides, this idea that the "Ruling Elite" even constitute a single entity speaking with a single voice is more than a stretch.
NO, you’ll be fighting "Their bought and paid for People". But don’t worry, a fight to regain American’s lost liberties and the People taking back their destiny from the Ruling Elites will likely wait on something big like the collapse of the US dollar, Medicare or Social Security going bankrupt, or the destruction of the American Middle class to accelerate. We are not yet where royal France in 1788, WWI Russia, or Weimar Germany was.

So far, as Tom Anger said, the stripping of liberties, the changes, have been done slowly and incrementally so the cost of rebelling against each new tax, regulation, court edict can be kept low enough in each example that the sheep don’t stampede...
And should any of that happen, you are far, far more likely to see a revolution with ballots instead of bullets. (and when did the "destruction of the American middle class BEGIN?)

Look, I am highly sympathetic to (my understanding of) your political goals. My only argument is that talking revolution is just spinning your rhetorical wheels.
 
Written By: CNH
URL: http://
While many — me included — has condemned Misha’s hyperbolic suggestion of violence against judges, it occurs to me that the comment is not very different from a comment made by Thomas Jefferson...
I think there’s a huge difference you’re overlooking. Namely, that Misha’s hyperbolic suggestion of violence was hyperbolic, while there’s no evidence at all that Jefferson’s statement was.

As to when it becomes OK to revolt, I mostly agree with Dave S.’s conclusions but not his reasoning. I don’t think that liberal democracies are any less capable of violating people’s rights than any other form of government is, but I do think that as long as a liberal democracy exists, armed revolution is a cure worse than the disease. If the people are in control, and they’re doing bad things, the only long-term solution is to persuade a solid majority to change their ways. Once you do that, a liberal democracy won’t waste much time implementing the desired reforms. If you can’t do that, armed revolution isn’t going to help, as you’ll either end up creating a dictatorship, or replacing one democracy with another, and the people are going to vote back into power the same crap you were trying to get rid of in the first place.
 
Written By: Xrlq
URL: http://xrlq.com
Libertarians will probably never be in a position to openly revolt against the State. To challenge a State such as ours would require a mass movement. In the current intellectual climate, any mass movement would unfortunately be more likely to agitate for less, rather than more, personal liberty. Moreover, libertarians are not temperamentally suited to forming or joining mass movements.

Rather than taking up arms against the State, libertarians might someday be forced to join underground networks, hiding from the State rather than openly taking up arms to confront it.

If the government can be changed, and the trend toward restricting personal liberty reversed, the best hope is not for a violent revoltion or massive civil disobedience, but through an intellectual paradigm shift within the culture. This might require a cataclysmic event to make people receptive to new ideas the way that the Great Depression and the 9/11 attacks did. Libertarians should be doing the intellectual spadework to prepare to take advantage of such an opportunity, the way that the Conservative Movement prepared for the "Reagan Revolution."

The biggest mistake that libertarians could make right now would be to allow alarmism over the excesses of the social conservatives or the neoconservatives to spook us into the arms of the Democrats and the Left. Human beings in general, but Americans in particular, have an intuitive understanding of and appreciation of the value of personal liberty. I do not see much risk of Americans allowing their government to go too far down the slippery slope of taking away personal liberties like free expression.

Economic liberty is another matter entirely. People do not intuitively grasp the value of economic liberty. This is a concept that requires a little bit of education and economic literacy to fully understand. The small amount of economic liberty that we have left in this country is very vulnerable to further erosion, and the Democratic party, currently controlled by public employee unions and plaintiff’s attorneys, will not put up too much of a fight to protect it.

 
Written By: Aldo
URL: http://
had to obey the rule of law?

I have this recollection of reading about how teachers in California aren’t required to follow any law that hasn’t gone through two court reviews.

Wow. I wonder which treaty allows this.

 
Written By: Neo
URL: http://
"And, most especially, not getting your way does not constitute either a subversion of the system or the end of liberal democracy."

Beyond pointing out that a person like that simply is not talking about freedom, which was the first political principle of America, I would only point out that in the practice of gathering gangs at polls in order that a majority can prevail over a minority with the force of state, there can be no question over who, exactly, is having whose "way" with whom.

That’s just disgusting.
 
Written By: Billy Beck
URL: http://www.two—four.net/weblog.php
Meaning donning robes before commanding a populace to do things not written in their laws or Constitution

Interesting. And this has what to do with Hamden, in which the judges commanded that the Executive Branch actually obey the Constitution and follow law set down by Congress, exactly?
 
Written By: Phoenician in a time of Romans
URL: http://
Phoenician - you appear ignorant of Article II, in your misbelief that Congress can simply pass laws wiping out inherent Article II powers they disagree with. Past Presidents, not as weak as Jimmy Carter or George Bush - did tribunals and Congress butted out. Even now, whatever law Congress comes up with will be careful to say that they are not making a challenge to the Balance of Powers.

And what has the Constitution have to do with Justice Stevens great blunder in Hamden saying that international terrorists are not part of an international conflict, therefore deserve POW protections?
 
Written By: C. Ford
URL: http://
Phoenician - you appear ignorant of Article II, in your misbelief that Congress can simply pass laws wiping out inherent Article II powers they disagree with.

Article I:

"Section 8. The Congress shall have power [...] To make rules for the government and regulation of the land and naval forces;"

Well, that seems fairly clear.

Article II:

"The President shall be commander in chief of the Army and Navy of the United States [...] when called into the actual service of the United States"

That also seems fairly clear.

The US Congress specifically has the power to regulate the land and naval forces of the US. "Thou shall not torture prisoners" is one of those regulations.

The US President commands the Army and Navy. Nowhere in the Constitution does he have the power to ignore the law set down by Congress - indeed "he shall take care that the laws be faithfully executed".

Which part of "he shall take care that the laws be faithfully executed" are you having problems with?
 
Written By: Phoenician in a time of Romans
URL: http://
The Soviet Union was among the most liberal democracies of all on the surface, with a "rights-guaranteed" Constitution and high voter turnout in each election. The problem of course was that was just stuff on the surface. Underneath, nothing significant happened without the decision of the Party Cadres.
The rights guaranteed in the USSR were things like food, housing, work, and other positive rights that simply should not be guaranteed.

The USSR was not liberal (at least in the classical liberal tradition) and it wasn’t a democracy. It was a leftist dictatorship.
 
Written By: Don
URL: http://
Phonecian, you’re missing the point. Hamdan wasn’t about "stating that the Executive had to obey the rule of law." The majority in Hamdan instead took it upon themselves to unilaterally rewrite the Geneva Conventions to extend its protections to people who the Conventions define as war criminals outlawed by it.

Making treaties is the province of the legislative and executive branches, isn’t it? Do you think the President and Congress would seek a treaty with Al Qaeda, and if so, do you think the people of this country would approve it? Of course not...but thanks to the Supreme Court, we have one now, where we have to treat AQ with all the privileges of honorable combatants...while the jihadis are free to slaughter, torture, brutalize, decapitate and booby-trap the corpses of our soldiers, and send them home for closed-casket funerals.

In the process, the Hamdan majority cavalierly ignored 150 years of Constitutional precedent and arguably overstepped their own Constitutional boundaries by infringing on the executive branch’s responsiblilty to direct the conduct of a war. They’ve also opened the door to invite Congressional interference into executive war powers, as well.

As far as Misha’s comments go, Misha was referring not only to Hamdan, but to an entire series of questionable Supreme Court decisions in which the Court evidently disregarded the laws and the Constitution in order to impose their will on the country by judicial fiat. Kelo, for example, or (not one of Misha’s examples, but one he should have mentioned) the Missouri death-penalty case which the Supremes overturned on grounds that the "consensus opinion of foreign law" held the death penalty to be immoral and unjust...without regard for the Constitution, not foreign law, as the supreme law of the land.

I’m glad that somebody has finally stopped complaining about Misha’s hyperbole long enough to ponder the question of what to do about Supreme Court justices who display contempt for the Constitution, and rule as they d*mned well please without regard for the laws of the land. Which has been happening for decades, BTW...with no end in sight.
 
Written By: Wes S.
URL: http://
The majority in Hamdan instead took it upon themselves to unilaterally rewrite the Geneva Conventions to extend its protections to people who the Conventions define as war criminals outlawed by it.

Uh-huh.

Firstly, please point out the "war crime" in the charges alleged here (think carefully - is Al Qaeda an army of a state at war with the US, or not?)

Secondly, have the charges against Hamdan been proven yet? Is there such a thing as a preumption of innocence applicable even to Arabs? How then is he defined as a war criminal rather than an alleged war criminal?

Thirdly, feel free to point out where ruling that the provisions of a military commission violate both the UCMJ and the Geneva Conventions "rewrite the Geneva Convention".

Fourthly, please read Article 5 of the Third Geneva Convention.

and lastly, and rather importantly, please read the following extract from the majority finding on Hamdan:

"Hamdan observes that Article 5 of the Third Geneva Convention requires that if there be “any doubt” whether he is entitled to prisoner-of-war protections, he must be afforded those protections until his status is determined by a “competent tribunal.” . Because we hold that Hamdan may not, in any event, be tried by the military commission the President has convened pursuant to the November 13th Order and Commission Order No. 1, the question whether his potential status as a prisoner of war independently renders illegal his trial by military commission may be reserved.[13] "
 
Written By: Phoenician in a time of Romans
URL: http://
Firstly, please point out the "war crime" in the charges alleged here (think carefully - is Al Qaeda an army of a state at war with the US, or not?)
Let’s see...AQ masquerade as civilians, hide among civilians, use civilians as human shields when they launch their attacks, and indiscriminately slaughter and brutalize civilians. Yes, they are defined as "war criminals" - unlawful combatants, more precisely - under the terms of the Geneva Conventions, and liable to summary execution under its terms. It’s impossible to read the Geneva Conventions and conclude otherwise...or at least it should be...anyway, the whole point of prosecuting "war crimes," whether committed by uniformed combatants or not, is to protect civilians, after all.

It doesn’t matter that AQ doesn’t constitute "an army of state," nor are they recognizably considered "partisans" (which the Conventions also allow for). AQ is nonetheless outlawed by the Geneva Conventions...but thanks to the Supreme Court, we now have to treat the head-hacking jihadi maniacs as if they were honorable combatants.
Secondly, have the charges against Hamdan been proven yet? Is there such a thing as a preumption of innocence applicable even to Arabs? How then is he defined as a war criminal rather than an alleged war criminal?
Well, thanks to the Supreme Court decision in Hamdan, it doesn’t matter. One side effect of treating captured jihadis as POWs is that we can keep them locked up until the end of hostilities without trying them...which effectively means keeping them in Gitmo for the rest of their natural lives, since that’s probably how long it will take us to defeat the murderous ideology of jihad. Which the Supreme Court apparently recognizes, since the Hamdan majority ruling explicitly stated that we actually don’t have to try POWs. Unintended consequences and all that...and for what it’s worth, I think the presumption of innocence extends even to liberals.
Thirdly, feel free to point out where ruling that the provisions of a military commission violate both the UCMJ and the Geneva Conventions "rewrite the Geneva Convention".
But constitutional precedent and the UCMJ both provide for military tribunals, Phonecian. Are you going to say that the UCMJ - and the US Constitution, for that matter - enshrines violations of the Geneva Conventions? (A JAG officer can find the relevant UCMJ passages for you.) Much of that precedent was established during WWII, when FDR had several captured Axis spies and saboteurs - a couple of whom were actually US citizens - tried, convicted and in a couple of cases executed by tribunals. They apparently weren’t violations of the Geneva Conventions back then, hmmm? Nonetheless, the Hamdan majority totally ignored existing Constitutional precedents when it made its ruling.

Frankly, the Hamdan decision wouldn’t have been a problem had the Supremes instead said something along the lines of the following:
"Look, we realize that there are pre-existing Constitutional precedents for military tribunals, but we’re not sure that they cover the situation we now face. Or the Geneva Conventions, for that matter. Most of those precedents were set during the Civil War and/or World War II, which were wars of relatively short duration against clearly defined enemies. This current war, on the other hand, may drag on for decades, against most often shadowy groups of individuals who masquerade as civilians. Sometimes as OUR civilians. As such, this new war will likely touch upon the responsibilities and duties of all three branches of government, not just the war-fighting powers of the executive. Accordingly, before we start accusing the President or anybody else of overstepping their Constutional boundaries, we all should sit down and figure out just where those limits are...and how best to deal with the enemy combatants we capture in this new, totally unprecedented sort of conflict. In the interim, imperfect as it might be, we’ll just have to consider captured jihadis as POWs for the duration."
While some might have disagreed with such an alternate Hamdan ruling, it would have achieved much the same result while respecting both the Constitution and Presidential war powers. Instead, the Supremes, as they have so often in the recent past, chose to disregard both the Constitution, and an international treaty duly ratified by a prior Congress and signed into law by a prior President, and impose their personal feelings by judicial fiat.





 
Written By: Wes S.
URL: http://
Yes, they are defined as "war criminals" - unlawful combatants, more precisely - under the terms of the Geneva Conventions.

You should have thought more carefully.

Either Al Qaeda should be held to the Geneva Conventions, or not. If so, then the US should automatically extend the provisions of the Conventions to them - case closed. If not, then the US may or may not be required to treat them under the Geneva Conventions - but Al Qaeda can only be treated as mass murderers rather than war criminals. Try them in a civilian court.

Yes, they are defined as "war criminals" - unlawful combatants, more precisely - under the terms of the Geneva Conventions,

Exact cite please.

Well, thanks to the Supreme Court decision in Hamdan, it doesn’t matter. One side effect of treating captured jihadis as POWs is that we can keep them locked up until the end of hostilities without trying them...

You really don’t see the problem in locking people up for ever based solely on the government claim that they are bad people without a fair trial?

Tell me, do you have any idea why this concept developed? Do you realise it was specifically protected in the Constitution?

But constitutional precedent and the UCMJ both provide for military tribunals, Phonecian

Except, as you fail to address, that they don’t apply universally, and the Supreme Court ruled they don’t apply in this case. Try again.
 
Written By: Phoenician in a time of Romans
URL: http://
Sigh.

Phonecian, it’s not my fault you’re thick as a brick. One more time:

People like AQ are classified as war criminals and unlawful enemy combatants by the Geneva Conventions and are entitled to nothing more than summary execution by the terms of the treaty. They are specifically not entitled to being treated as honorable combatants, because they fight out of uniform, deliberately brutalize, target and murder innocent civilians, etc. You obviously didn’t read it carefully enough...but that’s OK; neither did the Supreme Court.

Also:
You really don’t see the problem in locking people up for ever based solely on the government claim that they are bad people without a fair trial?
That was precisely my point, Phoney. That is but one of many problems with Hamdan, which you fail to recognize. Reread the frickin’ thing yourself, dumb*ss. Nor did the Supremes bother to explain why military tribunals aren’t OK in this war but were in the previous wars this country has fought; they ignored constitutional precedent entirely.

Of course, this whole argument will probably be moot for future jihadis, because the simplest solution for our forces will be to stop taking them prisoner. Instead of habeus corpus...we’ll just have more jihadi corpses. As for the guys we’re currently holding, well, eventually we’ll probably get around to prosecuting them through full-blown military court-martials or even civilian courts...once we’ve been able to declassify some of the intelligence sources and methods that allowed us to identify them as terrorists...and recalled the troops that captured them from the battlefield for testimony...and then there’s the discovery process, etc...in any event, if they actually get trials, they’ll have to wait years.

And if they don’t get trials, if we just treat them as POWs, as Hamdan clearly provides for...they may be in Gitmo for the rest of their natural lives, if that’s how long it takes us to win this thing.

So don’t lecture me on habeas corpus, Phoney...tell it to the Supreme Court instead. But don’t bother to bore me with it anymore...a sentiment about you that seems pretty common around here, from what little I’ve seen of the regulars at QandO.

 
Written By: Wes S.
URL: http://

 
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