We are developing the social individualist meta-context for the future. From the very serious to the extremely frivolous... lets see what is on the mind of the Samizdata people.
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Samizdata quote of the day
I said that the power of detention [without charge or trial] is at present confined to foreigners and I would not like to give the impression that all that was necessary was to extend the power to United Kingdom citizens as well. In my opinion, such a power in any form is not compatible with our constitution. The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory.
Lord Hoffman’s opinion in A(FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent), also reported by the BBC.
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Sorry, but this is just a crock.
There are two reasons why someone may be detained and held in prison:
1. They have been charged with committing a crime and awaiting trial.
2. They are being held as a prisoner of war.
If we abandon the practice of differentiating between accused law breakers and enemy combatants, we can simply return to slaughtering our enemies on the battlefield and eliminate surrender as an option.
Now, which would you prefer as the “long term consequence of victory” we hand over the terrorists? A modification of our laws with respect to honoring the differences between law breakers/wartime conduct, or abandon the concept of parole?
This is a kind of moral relativist goal, along the lines that “all killing is murder.” That is simply false. All prisoners are not law-breakers or “innocent until proven guilty.” The time and place of their arrest makes just as much difference to the argument as the reason for killing.
“The time and place of their arrest makes just as much difference to the argument as the reason for killing.”
I don’t really understand that. A prisoner of war is a special case where someone is innocent of any crime, yet must be held captive. In return for this rather odd set of circumstancse, the POW gets a great deal of special protection (in theory…).
Other than this case, a person is person. The presumption of innocence must be universal. It doesn’t make any sense at all to say that one is presumed innocent when suspected of some crimes but not others. That _may_ be a practical thing to do, but as an ethical stance it’s obviously inconsistent.
How should one decide what assumed crimes remove the right to a trial or the presumption of innocence? You can’t, unless you resort to meaningless words like terrorist.
The ever-widening definition of terrorism should be a concern, in light of this:
http://www.cnn.com/2004/WORLD/meast/12/15/hezbollah.tv/index.html
Mrs de Toit,
What makes you think that these people were “enemy combatants”? The evidence is secret. The detainees haven’t had any opportunity to see the evidence, much less dispute it or explain the circumstances. All we know is that these men have been rounded up in the dead of night by the secret police (Special Branch) and whisked away without possibility of recourse.
Of course enemies captured on the field of battle get treated differently. But there is no known reason for thinking these people are such. Or do you define the whole world as “the field of battle”, and ‘accept’ that traditional civil liberties can no longer apply if the accusation is terrorism? If you reduce the whole world to “the theatre of war” then Liberty really is dead.
As Lord Hoffman said, we can survive as a nation a few tragic deaths, but we cannot survive our own systematic destruction of the liberties we are supposed to be defending.
Just my 0.02 Euro’s worth, but the islamonutters are well aware of the generally ‘innocent until proven guilty’ stance of the west. They also are aware of our horror of killing or incarcerating non-combatants. Hence they do their best to mingle with and hide behind non-combatants.
Dealing with them is more akin to counterespionage than warfare, thus you don’t let a suspect know how much you know about them, nor how you came to know it.
“Hey guy, we reckon you were in Fallujah, planting IED’s! Abdul Postlethwaite says he saw you.”
“Oh, no way, dude! I was busy praying right the other side of town or something. 97 people will give me alibis”
“Whoops! Our mistake! Off you go!”
“Does Abdul Postlethwaite live at No. 22 or 24?”
“24”
“Thanks. Bye”
It doesn’t look like a problem to me.
If they are enemy combatants, declare them such and move them to a red cross/crescent monitored POW camp. Give the government a year or two to show why they were tagged as POWs ( long enough for the intel used to get stale ).
Some humane method of dealing with enemy soldiers is absolutely needed, if only to encourage surrender. Abuse of POWs causes the enemy to stop surrendering, and stop taking prisoners themselves.
So your solution, Mary, is to require that our governments show all the data and evidence they have at their disposal, treating the enemy differentially if they are working out of an office in London or Los Angeles, so that we can FEEL GOOD about liberty being protected?
War is fought to DEFEND Liberty. The entire concept is that liberty is BEING threatened and we’re having to do things we would not normally choose in order to protect it.
Newsflash: We didn’t turn the whole world into the battlefield. They did.
And the enemy’s response to your remedy will be? Conduct all business of war off the traditional battlefield, making it possible to know every detail of their arrest, all the information gathered and the methods used, and all the people involved who may have contributed to their being seized.
Yes, it IS better that we hold people without charge, without dispute UNTIL the war is over–until the enemy has surrendered.
This is what post war tribunals are for. If anyone in government abused the enemy combatants policies then they will be severely punished.
We cannot survive the elimination of parole and surrender. Losing that, eliminating the possibility that a soldier can simply stop fighting and be held prisoner until the duration, is worse than any temporary infringements on liberty. Some things ARE worse and have much more dire consequences to humanity.
Which is to say, forever.
There will be no end to the war on terrorism, just like there will be no end to the war on drugs, or on poverty, or the war on want. If Al Qaeda really is an organisation then maybe it can be defeated, but that won’t be the end of it–and people are already referring to Al Qaeda as “more a movement or even a concept, than a single organisation”.
There will be no glowing future when all is well and things go back to “normal”. All we have to decide is, what kind of society do we want to live in: one where Special Branch can snatch you or me off the streets of London and holds them for good in the name of the possibility of slightly greater security, or one where it can’t?
Taking people off the streets of Baghdad, right now, is another story entirely. I wish it weren’t so, but internment there is necessary: that’s just the practicality of the situation there. Getting Baghdad to the point where it is a practical possibility to afford Iraqi citizens the rights we expect is, and ought to be, one of our key objectives in being there.
The problem here is that the intelligence on which these men are held may be sound, but how can we know? Since the Hutton Report we know that much intelligence is wrong, or partial, or subject to evaluation depending on what the Prime Minister wants it to say.
Bliar told us that we had to go to war with Iraq on the basis of intelligence that he could not share with us, but if we knew it we would agree with him. Many people were prepared to give him the benefit of the doubt. We did not like him or trust him ordinarily, but in the case of war it seemed reasonable to assume that Bliar was not just winging it yet again, and relying on Alastair Campbell to spin us into a war.
Guess what? He was. Bliar is morally unfit for his office. He did not have the guts to say that we wanted to depose Saddam Hussein, a policy I have no problem with, instead he concocted a cover story based on flimsy, false or politically manipulated intelligence. He has devalued the currency. We can no longer trust him.
With regard to these suspects, there should be a way to keep them under house arrest, maybe wearing electronic tags, signing in at a police station daily, forbidding them access to computers. You could even keep a nice Community Support Officer in a little shed at the end of their garden. But there is no way they should be locked up, possibly until they die, on the basis of intelligence they cannot challenge.
Tony Bliar is unfit to be Prime Minister in a time of peace, but in a time of what we are told is war he is an absolute liability.
The problem here is that we are forced to use one of two categories of people – Prisoner of War or Accused Criminal- when neither is an acurate definition of the people we are dealing with.
With apologies to J, terrorist is a much abused term, but not a meaningless one. A terrorist is someone who seeks to achieve their goals through the deliberate use of terror amongst the civilian population to cause the civilian population to act, because of fear, in the way the terrorist wants. This correct definition does not depend upon the viewpoint of the person doing the describing, only upon the actions of the people being defined, be they Israelis, Palestinians, Iraqis or British WWII bomber crews. One man’s terrorist is NOT another man’s Freedom Fighter, at least not necessarily- there is an objective difference. (That’s not to say that people can’t move from one group to another, and even back over time- but the point is a terrorist IS a meanigful term, decided purely by the terrorist’s actions, not their policies or aims).
The problem in the light of the above article is that a terrorist is NOT either a criminal or an enemy soldier (though they may be either or both of those as well). A criminal breaks the law, but not with the systematic intent of causing fear. A soldier attempts to kill other soldiers on a battlefield. Our law accepts both these categories, distinguishes (quite rightly) between them, and has ways to deal with them. But, as Mrs du Toit has touched on, neither approach works to deal with terrorists.
Traditionally the British government, at least domestically, has sought to treat terrorists (i.e the IRA) as criminals, in part to deny them moral legitimacy. This also restricted the use of the facilely termed “shoot to kill” policy, to the point where Thatcher’s government was severely criticised when the SAS shot dead terrorists intent on bombing civilians on Gibraltar, because it was argued they should have tried to arrest them instead. The end result has been a “managed” level of terrorism, but one that has seen a sell out by the British government to terrorists in Northern Ireland, with all the terrorists now cosily established as mafias with their own political wings.
The US government by contrast has taken the opposite tack with Al Queda, seeking to treat all potential AQ terrorists as enemy combatants, hence the rationale behind Guantanamo Bay. The problem here is it makes an essentially counter-espionage task look like a military one, and alienates the broad global public support that is essential for long term success.
Both governments are hobbled by being forced to use methods restricted by laws that simply don’t recognise what we are dealing with. What we need to do is face reality, evolve our legal system, and identify a 3rd category of “bad person” against whom the state may legitimately use force- the terrorist.
Libertarians have tended to argue against any move away from criminal law against terrorists, primarily through fear that different laws, once enacted, may be widened for general abuse. Of course that is a legitimate fear; but it can be mitigated by
a. using the definition of terrorist above, so that it couldn’t be used against, for example, socialists, enviromentalists, ethnic or religous minorities, etc UNLESS they CHOOSE to use systematic violence against civilians in order to create terror;
b. stipulating that a terrorist is someone who belongs to a group publicly proscribed by parliament (or Congress, etc);
c. stipulating that any such group must be only one you join voluntarily, i.e. not a racial group;
d. then allowing the security services to arrest/interogate/convert or kill anyone who continues to be a member of such a group after it’s prohibition. All such prohibitions to be regularly reviewed, certain activities such as torture to remain utterly proscribed, etc. An independant system of secret judicial overview to be incorporated, as per the Diplock courts in Northern Ireland (which have certainly not proven to be poodles for the UK security forces).
Readers can expand on this for themselves. The point is that such a system will allow us to defend our liberty, whilst minimising the threat to our liberty from rampant state security organs, by incoporating effective checks and balances. No it’s not perfect, nothing ever is, but if anyone has a better idea, I’m very willing to hear it.
(Interestingly enough an appropriate concept used to exist in English common-law- the “Out-law”, someone who voluntarily places themselves outside of the protection of the laws that protect the rest of us- sounds like a good description of a terrorist to me).
3 released detainees went back into the fight against us.
It is FUNDAMENTALLY unreasonable to detain people without explicit reason, without any limit on time, without showing them any evidence to support the detention, without permitting the evidence to be tried in a court of law, especially by applying different standards to British citizens and foreigners present in Britain, and finally by doing all of this in a country which is not actually at war with anyone.
This violates the rule of law, the principle of habeas corpus and any concept of due process. If these principles no longer apply, then our civilisation does not deserve to prevail, for we have made ourselves no better than those who challenge us.
EG
Hello again, Mrs. du Toit.
There are two reasons why someone may be detained and held in prison:
1. They have been charged with committing a crime and awaiting trial.
2. They are being held as a prisoner of war.
This sort of detention is sometimes called internment and the UK was liberal in its application in WWII. And likely at other times.
Incorrect. Terrorists break the law. Last time I looked murder, arson, criminal damage, theft, causing an explosion, possessing explosives without a licence, possessing an unlicenced firearm and conspiracy or incitement to any of these things were crimes. If the man has done any of these things, and you have evidence, then charge and try him. If there is no evidence, how can you show he has broken the law?
If a would-be terrorist has not actually broken any law, what the hell can you say he is guilty of? If you cannot bring evidence to show beyond reasonable doubt that he has either broken the law or was conspiring or intended to break the law, then you have to let him go.
You can’t prosecute someone because you think he MIGHT commit a terrorist (or criminal) act, or lock him up because you think this but can’t prove anything.
EG
“A terrorist is someone who seeks to achieve their goals through the deliberate use of terror amongst the civilian population to cause the civilian population to act, because of fear, in the way the terrorist wants.”
Well maybe TB will be arrested with any luck…’24 hours to save the NHS’ etc.
Mary:
It never was a single organization. The very definition “The Base” (aka in English “Headquarters”) was meant to describe a type of consortium of disparate para-military groups coordinated by OBL. It is, in war speak, a “coalition.” If you’re looking for a Al Qaeda secret decoder ring, membership card, or embroidered vest, you won’t find one.
SC:
Works for me. I especially like your loosely worded “shoot on sight” policy. Then we wouldn’t have to continue these endless discussions about the evil of government secrets, charging them, and providing lawyers.
😉
But getting back to the original premise that the idea of establishing or maintaining enemy combatants held on secret charges as a “win for the terrorists” is also specious. The terrorists want for us to: 1. Die. 2. Become like them. “Becoming like them” would be to abandon parole, murdering anyone who disagrees with us. It is holding enemy combatants (sans charges of breaking the law, because NONE EXIST internationally–since there is no such thing as “International Law”) that is the difference between US and THEM. MERCY is a Western concept.
These prods to treat them like bank-robbers or serial killers is stupid. The legal system was never intended to be used in this way nor could we accommodate the hundreds of thousands of people in the system. In a word, it’s “Nuts!”
Britain has abandoned charging people of “petty” crimes or filing reports where “no hope of finding the criminal” exist. In other words, your criminal justice, police, and court system is already bankrupt, yet you believe that adding terrorists to the system will work?
I can see it now, a terrorist being released because of a legal technicality (the U.S. equivalent of failing to Mirandize or the Brit “Legal Caution”). Yeah. That would work.
There are no happy solutions here. Every option has terrible risks. It comes down to this: Who do you trust more, your government, or the terrorists?
Last time I looked murder, arson, criminal damage, theft, causing an explosion, possessing explosives without a licence, possessing an unlicenced firearm and conspiracy or incitement to any of these things were crimes.
Would it be OK if Iran issued them a license?
Mrs du Toit,
“Who do you trust more, your government, or the terrorists?”
That must be rhetorical as its clear who’s bigger and nastier.
SC, you almost convinced me, but there’s still on fundamental problem with your plan: how do you know whether a person is a member of such a group, and so liable to such treatment? On the mere say-so of the Security Services, without evidence?
One of the reasons that enemy soliders can be treated differently from criminals is that there’s no difficulty in telling who they are: they admit it. They’re found on a battlefield (a real one, with cannons and stuff, not a metaphorical one) and most helpfully of all they wear uniforms and insignia. It’s not an accident that the special protections given to POWs by the Geneva Conventions depend on the wearing of uniform.
Those who choose not to wear uniforms can readily be confused with the civilian population. That renders them liable to harsher punishment (you can shoot them as spies, which you can’t do to POWs). But in any civilised society it also necessitates a proper legal process — not for the protection of the terrorist (screw them!) but for the protection of the citizenry who might otherwise be mistaken for terrorists.
I agree with the harshest things said above about what to do with terrorists, and more. I just think it would be a suicidal mistake to neglect to make sure that they really are terrorists first.
Mary,
It sounds as if we agree. We agree that at some time and place an investigation should occur to verify that an enemy combatant is safe for release.
The only point of disagreement I can see is WHEN that should occur.
Since you’ve stated you believe the War on Terrorism will last “forever” you would choose a WHEN based on that belief. Since I believe the War on Terrorism is of a limited duration less than “forever” I can be more patient.
You have proof that the system is working. Some folks held as enemy combatants were released (and some went right back to killing us, but hey, no one is perfect, right?). Those who made the mistakes are and should be held accountable. Secrets don’t stay secret forever.
Since we’re quibbling over WHEN and it’s based on a beliefs (not facts) with respect to potential outcome, we have to agree to disagree. I could, of course, argue that “forever” is doubtful as no war has ever lasted “forever” but, beyond that, it is an issue of faith.
Mrs du Toit, I think you’re a terrorist. Don’t bother asking me why; I’ve no intention of telling you. You will remain imprisoned for as long as I wish, and you may not appeal against this or seek any review of my decisions – they are absolute and final.
Do you regard this as fair? I certainly don’t, but it seems to be the kind of view you are espousing, so you surely can’t complain about it. After all, regarding this as unfair would make you a hypocrite, and I would never dream of accusing you of that.
Don’t be ridiculous.
If the person in question has committed a crime, charge him and try him. If he hasn’t, you have no right to detain him since he is neither a charged prisoner on remand nor a prisoner of war. If your evidence is sound, you will not be afraid to present it – in camera if necessary – and give the prisoner the opportunity to challenge it. If it is unsound, then go away and TRY HARDER to get real evidence that will stand up in court.
If your husband, or son, or daughter, or whatever were imprisoned sine die on the mere word of an unaccountable agent who would refuse to even tell you or them what evidence he had, let alone show it, and if there was no appeal, no recourse to any other method, then YOU, madam, I am quite sure, would be the first one to squeal and howl in rage at the arrogance of the murderous state exercising arbitrary justice. As Rob pointed out, this would indeed be hypocrisy, and of the highest order.
Your attitude does not speak for the values of civilised conduct we are trying to defend. For shame, Mrs du Toit, for shame.
EG
Don’t forget,everyone of those people is free to walk out of jail,providing only that they immediately leave Britain(they don’t mention this too often on the BBC).The problem is that they then have to find a country willing to take them.For some reason this appears to be quite difficult.
It’s not quite as simple as that. If they cannot be returned to their country of origin for fear of inhuman treatment, and if no other country will accept them, then it is illegal for the British government to further detain them unless they are going to be charged with something.
EG
its not quite as simple as that.
Well it is as simple as that actually.They are free to go so long as they keep on going right out of Britain.All they have to do is go home or find another country willing to take them.If they are unable to do that this country should reserve the right to detain them until those circumstances change.They are not being tortured or mistreated and if the government has reason to believe they are liable to be a threat to life here it would be imprudent to let them go.
If that is illegal I would suggest we change the law.The first duty of any government is the protection of its citizenry.On this occasion ,for once,it seems that HMG has remembered that.
Without wishing to appear unduly rude, you either know little about concepts such as habeas corpus & the rule of law, or you have not bothered to read the opinions of the Law Lords, or conceivably both. I’d suggest you follow the link and read the opinions.
They are being mistreated in that they are being incarcerated without lawful cause.
If the government is so damned sure they’re a danger, why does it not present evidence in court and have them convicted? If it has no evidence, then how can it say they have done anything wrong?
Actually, it is the protection of all persons under its jurisdiction, citizens or not. You cannot apply one standard of legal process to the citizens in your country and another to non-citizens in your country.
Whilst unfortunately forgetting that there are certain constitutional obligations which forbid it from embarking on the course of action it has taken.
You CANNOT lock people up because of what you think they might do. You have to have evidence that they have committed an offence, and you have to have that evidence judged in a court. This is a basic principle of the rule of law in a civilised nation – precisely the sort of concept lauded so frequently on this blog, and with good reason – and either it applies or it does not. If it does, these people get set free or charged and tried. If it does not, then we are no better than the terrorists.
Would you show the same cavalier disregard for the liberties of, say, British or American citizens detained indefinitely without charge by a foreign state who refused to give any substantive reason why they were being detained? I suspect not. Goose, gander, sauce.
EG
Hey! Wow! I agree with Euan Gray!!! Thats never happened before!!!
Mary Contrary, What you are missing is the matter of nationality. If the person in question is a citizen of the country doing the detaining, then naturally the Laws of that nation apply. I disagree that there should be a special catagorey for citizens. For one government to detain the citizen of another government is a matter between those two governments. Stateless humans are just SOL. They have NO Legal protection , nor deserve any.
BTW, the WoT can and will be won. I think you are somewhat confused as to just what we are fighting against. Terrorism is a form of guerrilla warfare. It uses violence directed against non-combatants in a attempt to destabalize a government.
It is a tactic used by tyrants against both their own citizens and other nations. Blowing up commuter trains for the heck of it is murder. Doing it to change a government is terrorism. Replace all the governments that use terrorism as part of their foriegn policy and the people blowing up innocents are murders and can be treated as such.
J, the ‘innocent until proven guilty’ is an old English idea that spread to N. America. AFAIK, the rest of Europe (most of the world?) uses the Napoleon code, which DOES NOT have the innocent until proven guilty thingie. English common law evolved over the centuries. Centuries that were filled with bad experiencs with government. The Napoleon code was written by ol’ nappy to ensure the same legal standards across his freshly liberated lands. It was also written with the idea of keeping the power of the state in his hands. Pro-government vs anti-government.
That is why the USA can never join the ICC. It is litterly illegal. We would have to scap the Constitution and the Bill of Rights. Without those documents, there is no USA. I’ve been told, but I’ve never seen it , that when the USA joined the UN, Congress attached a clause that exempted the USA from the ICC provisions of the UN Charter. I know that Congress is wont to doing this to Treaties, but I’ve never actually read the Bill that ratified the UN charter. So I’m passing on what should be considered a rumor that is backed up by events. I tried to find the bill, but without a number that was beyond my skills. The UN Charter is a scary document. There is not the slightest chance that it would be ratified by ANY Congress of the last 30 years.
The first duty of any government is the protection of its citizenry .Everything else,including the well being of illegal immigrants who happen to be within its jurisdiction ,comes after that.
Personally,I’d put all the detainees on planes back home,but all things considered I’d agree that HMG have probably got it about right.If the Law Lords say they are acting illegally,then change the law.
Any thoughts on why no other country will touch them with a barge pole?And do you really,truly believe that by offering these people the option of A: Going home-B:Finding another country to go to-or C:Staying locked up in Belmarsh,fed watered and cared for,makes us “no better than the terrorists”?
Oh and don’t worry about being unduly rude,I long ago realised that arguing with people who refuse to face reality inevitably leads to rudeness, quite often extreme rudeness.
It is irrelevant. Anyone detained, at any rate in common law countries like the US and Britain, has the same legal protection and is entitled to the same process of law utterly irrespective of nationality EXCEPT in time of declared war where it is legally permissible to detain enemy aliens. There is, in this case, no declared war and hence no legally defined enemy.
At least in the UK, they have the same legal protection as citizens.
By raising charges against them and prosecuting them in a criminal court, just like any other murderer. This can already be done – if you blow up a train and kill people, it is murder and can be prosecuted as such under the criminal law.
I suspect you don’t know an awful lot about law, international relations or the history of terrorism, do you?
EG
EXCEPT in time of declared war
Educate me, please. The U.S. has declared war. They did so when they voted to give “War Powers” to the President leading up to the invasion in Iraq.
Britain has sent troops and is a member of that same coalition. Is Britain not in the same “at war” mode as the U.S.?
Please go and read up on what the phrases “rule of law” and “equality before the law” mean. Even if someone is illegally in your country and you wish to deport him, you must still observe the law in so doing. If you don’t, you have arbitrary justice – against which the English decapitated a king and the Americans fought a revolutionary war. Perhaps they were wrong – perhaps arbitrary justice is what we need, and we should never have bothered with civil war or revolution?
In this case – yes, emphatically. For one thing, it’s inhumane. For another, it is illegal. For a third, it is contrary not just to ordinary law but to the provisions of constitutional law.
The whole point of western civilisation, of our settled liberal capitalist democracy, the only reason it actually works, is that we have this concept of the rule of law, of equality of all persons before the law (irrespective of nationality). We prosper because we do NOT exercise arbitrary law and arbitrary justice, because we do NOT imprison people without telling them why or putting any evidence to trial, because we believe people are innocent until PROVEN guilty.
In this case, people have been detained indefinitely, without being put on any charge, without being able to even see what evidence there might be against them, without this evidence ever being tried in court and, since they cannot be deported, for no valid legal reason whatsoever. We have, therefore, ignored the very legal principles which make our civilisation what it is, which in fact distinguish it from the arbitrary caprice of the theocratic diktat we are trying to avoid – and so we have become no better than those we oppose.
EG
No. War is a legal state. A formal declaration of war grants rights to and imposes obligation upon both belligerents and neutral states. This has not been done. It was not done in the case of Afghanistan, nor was it done in the case of Iraq, nor was it done in the “war on terror.”
Granting the President war powers is NOT the same thing as declaring war on a foreign nation. In fact, if you read what has been said by the diplomats and politicians since 2001, you will note that there is a very careful determination not to use the word “war” in its legal sense – precisely because it is a legal as well as a practical matter.
EG
From :fas.org: War Powers Resolution: Presidential Compliance
The War Powers Resolution states that the President’s powers as Commander- in-Chief to introduce U.S. forces into hostilities or imminent hostilities are exercised only pursuant to (1) a declaration of war; (2) specific statutory authorization; or (3) a national emergency created by an attack on the United States or its forces. It requires the President in every possible instance to consult with Congress before introducing American armed forces into hostilities or imminent hostilities unless there has been a declaration of war or other specific congressional authorization.
I’ve looked at what the “diplomats and politicians since 2001” have been saying and they are in disagreement.
S. J. RES. 23 includes the words “war powers” and the FAS link clearly explains that since the war powers resolution was pass in Congress during the Nixon administration, the issue of “declaring war” and “war powers” are clearly synonmous. Any one of those three situations can exist for the U.S. to be at war.
Certainly congress has been referring to the “War on Terror.” I don’t see the Congess mincing words.
Not really new.
The word internment is generally used to refer to the imprisonment or confinement of people without due process of law and a trial.
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Initially the British government rounded up 74,000 German and Austrian aliens, but within 6 months the 112 alien tribunals had individually summoned and examined 64,000 aliens, designated them as “friendly aliens” and freed them from internment with no special restrictions, eventually only 2,000 of the remainder were interned.
>
Following the September 11, 2001 attacks, the Anti-Terrorism, Crime and Security Act 2001 was passed allowing the indefinite detention without charge, trial or prisoner of war status, of foreigners designated “suspected international terrorists” by the Home Secretary, but cannot be deported under existing immigration powers because they may face human rights abuses. In order to pass this statute, the British government declared a state of emergency and opted out of part of the European Convention on Human Rights referring to the right to liberty. The internees can choose to leave Britain voluntarily, if any other country lets them in.
Wikipedia.
Mrs du Toit:
You are confusing the common use of the word ‘war’ to mean military or warlike operations, and the legal use to define a formal state of war in international law (and you need not comment that there is no such thing as international law – there is, and this is beyond debate).
As I understand it, the US Congress (and not the President) has the constitutional right to declare war. This is a defined legal step. It has in fact not done so in this case. You might wish to compare recent activity with the formal declaration of war in 1941 after the attack on Pearl Harbour. Now, this does not mean that Congress cannot confer war powers on the President – the key phrase here is “or other specific congressional authorization.” De facto it makes little difference, but de jure it does have some effect.
Currently in the US the President has extra powers conferred by Congress (the ‘war powers’), although a formal state of war as understood in international law does not, in fact, exist. The case of Britain is similar, but with some differences.
In Britain, the Crown declares war and makes peace. In practice, this is done by the Prime Minister by exercise of the royal prerogative. In the case of Iraq, a debate was held in parliament to permit the government to embark on hostile operations, but constitutionally this was not required. In any event, there has never been a formal declaration of war by the UK. Again, contrast this with the declaration of war against Germany in 1939 following the invasion of Poland. You might also wish to consider that after Pearl Harbour the US was not formally involved in the European war until Germany declared war on the USA.
Part of the reason for avoiding declarations of war lie in the UN treaties and charter (examples of the international law you consider not to exist), which state that the treaty nations shun the use of war to resolve international disputes. Another factor is that certain obligations are imposed on belligerents in a time of war (more international law, I’m afraid), and not declaring war can from a purely legalistic (but not moral) point of view avoid these and pretend that the other normal obligations (e.g. under the various UN treaties) apply exclusively.
The fact remains that, although people talk of war, there has never actually been a formal, legal declaration of war, either in Iraq, or Afghanistan, or in the ‘war on terror.’ Had there been, it is possible that the legal position of certain detainees particularly those at Guantanamo Bay, would be somewhat clearer.
I would also comment, in the context of the original article, that alone of all the EU countries Britain applied a derogation from the human rights treaties it has signed, although Britain was not the only EU country under threat and indeed not the only EU country to have troops in Afghanistan or Iraq. This contributes to the interpretation that the British government’s actions are not only simply illegal and constitutionally invalid, but unnecessary and unjustified both in domestic and international law and in morality.
EG
Poppycock. War has existed a great deal longer that formal declarations thereof. When a group of people from a self-declared group kill 3000 of your people in a day, you are at war with that group of people regardless of what some jackasses in a big white house declare or not.
Then let me rephrase it to suit your preconceptions – in the contemporary environment of international law, including the various laws, usages and conventions of warfare, war is a legal condition affecting nations, granting rights to and imposing obligations upon both belligerents (the countries at war) and neutrals (all other countries) and furthermore altering the relationships between the belligerents themselves and between belligerents and neutrals. This is not a difficult concept.
For a handy and well-explored illustration of one effect, consider the situation of the German warship ‘Graf Spee’ in the battle of the River Plate in 1939. The time that the ship was permitted to remain in a neutral harbour was limited by the laws and conventions of war – had there been no declaration of war, the ship could have remained in harbour for as long as the governments concerned were content for this to happen. There are many other examples which illustrate the point if you care to look for them.
Murder existed long before there were laws concerning it. Does that mean the laws on murder are ‘poppycock’ as well?
EG
internment, in international law, detention of the nationals or property of an enemy or a belligerent.
>
The practice of detaining persons considered dangerous during a war is often called internment, even though they may not be enemy nationals.
AllRefer
Leaving aside the legal definition of war (though, for the record, I agree with Euan’s argument), this also raises questions of how you define specific individuals as belonging to a group.
Traditional wars between nations made this quite easy – citizens of hostile nations could generally be easily identified. Whilst it might have been unfair and immoral (in the strict sense of individual rights) to incarcerate people based on their nationality, there was at least a specific criteria for this, which was beyond dispute. Such tradeoffs between liberty and security had to be considered when there was an imminent threat to liberty itself, and it became necessary to restrict liberty in order to save it from a greater external threat.
The current situation does not bear any comparison to the last time such restrictions were required – namely WWII. Hitler had a very real chance of conquering Britain and presented a clear and present danger to the liberty of all British citizens, and that merited heavy-handed tactics even if it violated the liberties of innocent German citizens living in Britain. Al-Qaeda, however you define that word, does not present a similar threat. Therefore there is little, if any, justification for restricting liberties. Bear in mind that the UK already has robust anti-terrorist legislation from the Northern Ireland conflict.
The second point is that identification of individuals as part of any group is not nearly so straightforward as in conventional (I was going to say ‘real’) war. Genuine enemies do not wear uniforms or insignia, so the POW system designed to operate in European wars does not readily apply itself to this situation. Upon capturing, say, a uniformed Nazi soldier, there could be little debate over his status. Capturing an alleged Al-Qaeda member presents far more significant problems.
The identification is not based on self-evident facts such as the wearing of a uniform or posession of a passport, or language spoken. It is based on evidence gathered by police and intelligence services, evidence which really should be capable of withstanding legal scrutiny. If such scrutiny does not take place, we have no assurance that innocent people are not being incorrectly imprisoned, and that strikes at the very heart of our nature as a society based on the rule of law.
I agree that terrorists need to be pursued and caught wherever they operate, and the security services should be empowered to bring the full force of the law against those who plan and execute acts of terrorism. However, there are already laws which cover these offences and there is simply no need to restrict fundamental liberties in order to combat terrorism.
This is further underlined by the nature of the war on terror – it is a war between competing ideologies; liberal democracy on one side, and totalitarianism/fundamentalism on the other. The biggest victory the terrorists could hope to gain would be the dilution of our ideology of freedom. We must stand firm and reaffirm that, no matter what threats or acts of violence the terrorists carry out, our commitment to our values is unassailable.
Murder existed long before there were laws concerning it. Does that mean the laws on murder are ‘poppycock’ as well?
You missed the point entirely. Actually, murder is murder and war is war whatever anyone in government decides to call it. Laws are designed to further society. They don’t dictate reality.
People break laws all the time, everywhere. They are variably effective systems, not sacred morality-defining rules. And no amount of minute and tedious legal analysis is ever going to demonstrate whether the internment of suspected terrorists is right or wrong. That’s a practical matter, depending on the seriousness of the threat and whether or not the benefits would be worth the risks.
No, I have not. The point is that our society is based on, among other things, the rule of law. Laws apply to the conduct of war. If our civilisation is to stand for anything worthwhile, then the law must rule and it must do so impartially.
In our civilisation, people are equal before the law. They have the same legal rights and are entitled to the same due process of law, irrespective of their nationality. Practical distinctions are made: for example, in the US foreigners can be detained without charge for a little longer than citizens, but this is largely to permit time to identify them properly. There is absolutely no legal or moral justification for indefinitely detaining people without trial or charge and especially without showing any evidence to justify the detention, and it is even worse when one considers that such sanctions are not applicable to British citizens but only to foreigners.
In Britain and in the US, amongst many other countries, a person is considered innocent untli proven guilty. These people have never been charged, let alone put on trial. The evidence has not been seen by them, and it has never been challenged. They are essentially condemned without trial, assumed to be guilty and given no opportunity to prove their innocence or otherwise.
I agree that practical measures do need to be taken to deal with the terrorist threat. However, I see no reason why these should be any more than we already have – present the evidence in court and put the matter to trial. I repeat – and I think this is the most important thing in this whole discussion – you CANNOT imprison people for fear of what they MIGHT do, when you have NO credible evidence to suggest they were conspiring to actually do anything.
To do this is to fall back to the arbitrary whim of the unaccountable government agent. By any standard, whether legal, moral or even practical, THIS IS WRONG.
EG
Rob’s last points above were excellent. Mrs du Toit seems to be in favour of any amount of infractions of laws of the land in order to preserve security. Does that include use of torture? Another question I would like to put is this: at what point could or should the folk thus incarcerated be released in Mrs du Toit’s opinion? Never? Is there no “sunset” provision that she would favour?
If anyone believes that our society is fair and decent they’ve had their head in the sand. Where are the hordes that are out to get us? Not in camp xray or in cells( good pun?) in the UK. WE are being kept in a state of fear because that is when we are most easily manipulated. We are “at war” under blatant lies with no evidence whatsoever. Yes I am a troll. Not proud of it but there you go.
EG, you are wrong. First in the USA it IS a declared war. The Senate passed a bill by about 2 to 1 , IIRC. 75%( approx.) of the Senators voting ‘no’ are now out of government.
“Actually, it is the protection of all persons under its jurisdiction, citizens or not. You cannot apply one standard of legal process to the citizens in your country and another to non-citizens in your country.”
Laughable. What planet are you from? Every day in America non-citizens are treated differently, BY LAW. Does the term Green Card mean anything to you? An alien without a green card does not have the same rights as an American Citizen. Forget your world wide government, it doesn’t exist and it won’t exist. Ever.
Step back and use a little logic. If there is no difference in the application of Law, then why are there Nations?
I don’t think you realize just what dangerous ground you are on here. Congress has already declared war on Brussels. It is sitting there waiting for the ICC to try and arrest some poor American. Don’t know if the President in office at that time will use it or not, but that is a different subject.
Taking your statement at face value, anyone in the world that sets foot on British soil can not be deported. Think about that for a minute.
I want to see this in writing. Show me the treaty.
Stehpinkeln:
Firstly, the United States Congress has not made a declaration that a state of war exists between the United States and Iraq, or Afghanistan, or any group of nations for the ‘war on terror.’ Granting the President ‘war powers’ is NOT the same thing as declaring war. You probably ought to read the declarations of Congress on the matter.
Secondly, I do not mean that the same laws apply to both citizens and non-citizens. The same due process of law does, however, apply, as does the doctrine of the rule of law and the principle of habeas corpus.
Thirdly, the United States Congress has not ‘declared war on Brussels.’ Perhaps you could point to the declaration made by Congress that a state of war exists between the United States and the European Union?
Fourthly, it is not the case that anyone who sets foot in Britain ‘cannot be deported,’ and nor did I ever say it was. Under British law, where the government wishes to deport someone it may detain them whilst the deportation process is under way. If the person cannot be deported to his country of origin, for example because he may face persecution or hazard of death, then he may be deported to a third country. If no third country is prepared to accept him, and they are not under any obligation so to do, then in British law that person cannot be deported and logically cannot be further detained since deportation (the end purpose of the detention) is not going to happen. If the person can be deported to his home country, or to a third country, then the state has every right to deport him and may detain him until the time of deportation.
Finally, if you want to see the treaty, I refer you to the European Convention on Human Rights, to which the UK is a signatory, and the Human Rights Act, which gives the Convention legal force in the UK.
But then, if you’d read the opinions of the judges and/or had a passing acquaintance with the relevant law, you’d already know that.
EG
Laws are enacted by a country to safeguard its citizens. Those laws are continually updated to meet changing circumstances. How frequently are international laws updated and to meet whose changing circumstances?
The core laws of most countries aren’t actually updated that often – the US constitution has been updated only 17 times in 200 years (after the first 10 amendments), for example, and the 800 year old Magna Carta & 300 year old Bill of Rights still form a core part of British law.
Where the law lays down fundamental principles, it isn’t updated too often. Where the law makes more detailed regulation it does indeed change much more freuquently. International law tends to deal more in basic principles rather than the minutae of detailed regulation (although there are of course exceptions), and hence isn’t updated as often – and nor does it need to be.
Some might argue that international law should be updated to deal with the ‘war or terror.’ I don’t agree with this idea, though. Terrorist crimes are already illegal – murder, kidnap, extortion and so on are already criminal offences – and thus can be prosecuted through existing criminal law. Furthermore, terrorism was not invented on September 11 2001, and a great many nations have been dealing with it for many decades without requiring major changes in international law.
It is, of course, quite understandable that the US may not see things this way, since until 2001 it has not really had to deal with a terrorist enemy. Instead of expecting the rest of the world to change, it might be useful for the US to consider what other countries have done in the past, and indeed there is a distinction to be drawn between the understandable knee-jerk hang ’em and flog ’em attitude of many ordinary citizens and the more informed learning approach of the US diplomatic and military establishment in this regard.
EG
EG- I think we actually agree on 90% of this issue. I too am deeply unhappy (along with the Law Lords) with the current situation. My proposal above is designed precisely to protect the rule of law by bringing in laws that reflect reality, and so will work. Our current laws do not reflect the reality of terrorism, and so will be bent by desperate governments- which is exactly what is happening. You are entirely correct that the biggest threat to us in the long run will then be the abuse of those powers by government, but the best way to avoid this is to bring in a set of effective laws that allow the government to protect us from terrorists whilst intrinisically limiting their scope for abuse.
You said-
“I agree that practical measures do need to be taken to deal with the terrorist threat. However, I see no reason why these should be any more than we already have – present the evidence in court and put the matter to trial. I repeat – and I think this is the most important thing in this whole discussion – you CANNOT imprison people for fear of what they MIGHT do, when you have NO credible evidence to suggest they were conspiring to actually do anything.”
Agree with your last part, we should have credible evidence etc. to imprison someone- but with a terrorist organisation you are involved in a continuous espionage effort, so what you absolutely CANNOT do is release the evidence in to the public domain. Still less to the defendants. A very bad situation, I agree, but one we are forced in to. Hence why I said there should be independant judicial oversight, “in camera” . A second-best solution, but the only one available- and exactly what the UK did for years in NI, and the US does to deal with the Mafia.
I would absolutely want public trials at the end, provided we reach a point where the evidence involved can be safely released without either increasing the risk of a succesful terrorist attack, or putting the lives of our agents at danger- which can be a very long time.
Mary Contrary said- “SC, you almost convinced me, but there’s still on fundamental problem with your plan: how do you know whether a person is a member of such a group, and so liable to such treatment? On the mere say-so of the Security Services, without evidence?”
Absolutely NOT on the mere say-so of the security services, but on strong evidence. The trouble is, for the reasons above, it often can’t be released into the public domain for me and you to judge. Hence the need for judicial oversight. (Yes, I know I’m placing a lot of trust on that, but if anyone has a better idea- say citizens randomly selected by lottery- I’m open to it).
In answer to other points, you recognise a terrorist because your security services amass a large amount of evidence to show he/she is part of a terrorist organisation. I’m sure everyone here understands how this may be done. I am perfectly happy that Gerry Adams is a terrorist (and I mean is, not was) without needing a court case to prove it. That’s largely because I am certain that a court case would prove it- albeit at the cost of revealing sensitive sources.
I included “shoot to kill” to cover areas where a terrorist may be about to detonate a bomb, and we need to stop them (and because I have absolutely no problem with killing terrorists. If I’m prepared to shoot an enemy conscript, which I am, how much more so a deliberate terrorist?) However, I again assume that everyone here is smart enough to know that the security services will always prefer to monitor, interrogate or best of all “turn” a terrorist rather than kill them.
Finally, the UK’s existing anti-terror legislation is neither tough nor all that effective. We got (a very dubious) peace in NI by selling out the law-abiding people and more decent politicians to the terrorists on the one hand, whilst squeezing them with very effective anti-terrorist operations on the other. Based upon intelligence operations that did NOT, in practise, treat terrorists just like other criminals.
Unfortunately AQ are a fundamentally different threat to the IRA in any case. UK security services were never worried about the IRA using a small nuke in London, not because they lacked the money or technology, but because the IRA never considered it. It was never in their interest. However, the IRA did learn that to really put pressure on a Western government, you go after not human lives, but economic targets (economic terrorism, the very real fear that we will lose our jobs). Therefore “Canary Wharf = UK government climb-down”. I simplify, but this is the lesson learned by other terrorist groups, especially AQ.
Remember, the 9/11 attacks weren’t really aimed at the World Trade Towers or the Pentagon- the real target was the US airline industry, and hence the US open economy. (Our enemies recognise the centrality of capitalism to our strength and freedoms rather better than most of our own people do). AQ is a loose franchise if you like, but they do have very smart people at the top directing their “spectaculars” from the “parent company”. The difference is that they are perfectly prepared to nuke London, (or anywhere else) if only they could.
The 9/11 attacks demonstrated that AQ are the most effective terrorists ever (outside of terrorist states such as the USSR) because they have the will to do anything they can think off. They are also going to be the least effective terrorists ever, because (unlike the IRA) their aims are completely unachievable to any degree. It is more likely that the West will exterminate all of Islam than convert to it, and that isn’t at all likely.
It’s not often I agree with Michael Moore, but for once he was right when he pointed out that you remain more likely to be hit by a meteorite than killed by a terrorist. But in the meantime AQ can, to put it bluntly, fuck up our lives, and destroy our freedoms. Whether the threat is real I believe was settled a little over 3 years ago. We now need to find the best way to deal with it, with the least damage to our own freedoms. Which brings me back to my original post….
Mrs du Toit seems to be in favour of any amount of infractions of laws of the land in order to preserve security. Does that include use of torture? Another question I would like to put is this: at what point could or should the folk thus incarcerated be released in Mrs du Toit’s opinion? Never? Is there no “sunset” provision that she would favour?
Well, since we’ve entered the realm of mind reading and assumption, can I play there, too?
Wait.. hold on… nevermind. First step: Attack the messenger. Step Two: Create a straw man. Step Three: Call her a Nazi.
OK, let’s just skip to step three and move on, shall we? Consider it a pre-emptive action. 😉
Regarding an actual argument, rather than wacky posts like the one above, on the issue of International Law:
A law, in order to be moral or proper, must have been created or established by the people who would have to comply with it. Since 100% agreement is impossible, we determine these things by simple or super majority votes.
To suggest that there is “International Law” it would require that individual citizens have surrendered to an unelected body, a legislative body, to which they had no decision on electing, and no say in the matter at all.
I haven’t surrendered bm sovereignty to an International Legislative Body. Maybe you have, so you’ll comply with what you refer to as “International Law.” Since I haven’t, while I’m in the U.S. as a U.S. citizen, I comply with one set of laws: The ones made here.
Second, in order for a law to be meaningful, it must be enforceable. Since in the U.S. we recognize no court other than our own, and no law enforcement agency other than our own, with a clearly articulated and understandable passage in the Constitution prohibiting the recognition of any other court, no American can be extradited to stand trial for a “crime” which is not a “crime” in the U.S. So to claims that there is “International Law” I respond, “Come and TRY to get me.”
In conclusion then, “International Law” is a fantasy… an illusion, because it is not applicable to anyone, unless they choose to believe in it. Which I don’t.
Mrs du Toit, Thank you; this is what I was getting at in my previous very brief post.
With all due respect to EG, I have come to the conclusion that rule of law is a fraud, designed by the powerful to fool the weak into believing that the weak and the strong play by the same rules. They don’t. There is no “equality under the law” anywhere. Those with power do as they please, provided they can control or bribe the correct people, usually state functionaries. This is true in the US, England, Japan, India, China, Iraq.
What differs between these countries is that the countries with more capitalism tend to have greater equality (!) so that the power imbalance between rich and poor is diminished. The middle class in the US is large enough that they can all pretend that the super-rich and elected high officials can be held to account just as they can.
EG seems to be a great admirer of constitutional law. I also used to be a fan of the US Constitution and supporter of CATO. I would advise him to check out Lysander Spooner’s No Treason and explain to me what is wrong with Spooner’s reasoning.
Mrs du Toit:
As regards international law being created or established by those who would have to comply with it – this is entirely true. It is established by treaty between governments and they agree to abide by it. Your argument seems tantamount to suggesting that if the US signs a treaty it isn’t bound by it ?
Moreover, for international laws that have implications on citizen behaviour, you will find that they only have that impact by virtue of countries writing them into their own statutes. The US has not maintained that the law creating the ICC is unenforceable in the US – they have just declined to sign up to it. When an international law affects you in the US, it is because your elected representatives or their predecessors have agreed to it by treaty.
“and you need not comment that there is no such thing as international law – there is, and this is beyond debate).”
Wrong again EG. You keep making your position worse with all these clever manuvers in retrograde. Name for me ONE International Law and give me the number. ALL laws are numbered, so Lawyers & Judges can keep track of them.
You are confusing Treaty with Law. There is nothing voluntary about the Law. Disagree with a Law and some very serious professionals will come to get you. Treaties are by mutual consent and the Parties can withdraw when the treaty says, or at their discretion if there is no formal period in the treaty. I can see a slight conection between Contract Law and Treaties, but there no enforcement mechanism, except War.
Maybe you are thinking rules are the same as Law? Not in the free world. Your picture of Law gives the same authority to the dictates of some tyrant as it does to the deliberations of a duly elected body. You are wrong. Not much you can do about it, that war was fought and your side lost.
Law Must come from a consensus of citizens, or it is not Law, but the rules of a tyrant. So who makes your ‘international Laws’ and how big was the margin of victory in their election? Did they have a Mandate? How will they enforce this law?
Law REQUIRES ENFORCEMENT. without enforcement, there is no Law.
Here is a natural law that applies to international affairs;
We have no eternal allies,” Lord Palmerston famously observed, “and we have no perpetual enemies.” “Our interests are eternal and perpetual,” Britain’s 19th-century foreign secretary added, “and those interests it is our duty to follow.”
International Law is a socialist con job, And it isn’t working! Nobody is buying your crackpot theories.
Terror tactics have been used by military, does that make them terrorists? No, because military is an arm of government.
Terrorists are organizations outside of government (although they may be funded by govt) and are not recognized as a body politic. If these organizations are at all violent, then they are terrorists, even if all they did was to kidnapp someone for a while and then let them go. Why? Because recognized governments will label any violent or law-breaking organization as terrorist.
So, we have defined terrorist organizations. But just because 3 out of the 1000 members of an organization commits a terrorist act, doesn’t mean all members are guilty. Just those three. We also can’t condemn the whole organization unless the organization officially announces their support. Then we can go after every member. But until then, we can’t because it would violate our right to freely assemble.
So, I don’t think we can lock up all members of organizations that may have a few terrorist members just because they might commit terrorism. We need to live by our own laws that are based on liberty. Yes, even though it may hinder our efforts. If we do anything less, then we become the terrorists as we are kidnapping people without any evidence of a crime.
On international law:
A treaty is entered into by two or more nations, all of which agree to abide by the provisions of the treaty. Some treaties have defined time limits, others are open-ended. Each nation in principle has a sovereign right to withdraw from a treaty. Therefore it is a consensual process.
As John Gray (no relation) said, where treaties affect the individual citizen, it is because the treaty is given legal force by legislation enacted by the state. This again is a consensual thing (at least in democratic states), since there is no reason why an alternative government could not be elected which could repeal the law (and presumably withdraw from the treaty). Of course, this also applies to other laws.
I already gave an example – the European Convention on Human Rights is essentially a treaty which the UK signed up to, and therefore at a state level obeys. It also affects individual citizens, and this happens through the Human Rights Act, which gives the Convention legal force within the UK. The UK government can in principle reverse all this by repealing the HRA and by withdrawing from the Convention.
Closer to the US, you might want to look at the various UN treaties America has signed. The Library of Congress has an exhaustive list of treaties signed by the US and ratified by Congress. It also (obviously) lists all of the laws in force in the US, and in some cases these laws give legal effect to the provisions of treaties insofar as they affect private citizens. In other cases, legal force is implicit in that the treaty does not directly affect the citizen but rather the state and the organs thereof.
Treaties can be enforced. For example, failure to abide by the provisions of a treaty can attract penalties in the form or diplomatic, economic or military sanctions – although of course this does not apply to all treaties.
In general, there is no fundamental difference in principle between the law of a state and the law between states. The enforcement mechanism is naturally different, since you cannot for example jail a state if it breaks the law, but the principle is the same.
EG
On Lysander Spooner:
Spooner is perfectly correct to say that ‘the people’ did not consent to the constitution, since large sections of the population were not asked their opinion, and of those asked it is impossible to say how many agreed.
Spooner gives the example of a town ‘agreeing’ to fund a school or hospital, etc., and states that extracting funding from those who really do agree is all very well, but it is robbery to take it from those who don’t agree. True enough in theory, and it is patent that this strand of thought informs a good deal of libertarian discourse of the more swivel-eyed variety. In practice, it is absurd.
Obviously, the question is really not whether the constitution (or indeed any other law) can be valid since not everyone subject to it consents to their subjection. It is rather a question of whether or not we should have government at all. For a variety of reasons I am not going to rehearse here, but which I have stated before, I think that some form of government is in practice necessary. I do not say this is self-evident, but I do say it can be justified, and therefore I am assuming that a government will exist.
Given this, we have to consider the practical form a sound government should take. We also have to bear in mind the question of consent.
In all, the best – or at a minimum the least worst – method of providing some form of government which avoids arbitrary caprice, which maximises popular consent, which minimises intrusion and which promotes cooperation among the people, is some form of representative democracy limited by a constitution. I would say, though, that the constitution does not need to be a single written document.
In such a situation, it is inevitable that some people will have to obey rules they don’t like, but which the majority of others do. Equally, those same people who don’t like some rules will like others, and still other people who do like the first set of rules won’t like the second but if a majority does then they need to obey them. Limiting the kind and extent of law the government may make is a balance between the government’s right to govern and the people’s right not to be unduly compelled, and the constitution is the thing which must regulate this balance. Obviously, this only works if the government can be compelled to obey the constitutional limits on its power, and if the people can be compelled to obey constitutionally valid law, and hence the need for a system of courts.
No system of government is perfect, nor is any given constitutional arrangement perfect. However, it is not unreasonable to say that the liberal Anglo-Saxon idea of constitutionally limited government with due respect for the rights of the citizen has served well. It can be improved, and now and again it needs overhauled, but it is not really a bad way of doing things.
I really should get a blog of my own…
EG
Treaties are ratified by the Congress. That means that I have input since We The People get to vote on who sits in the Congressional chairs.
If the Congress doesn’t sign the treaty then it does not impact American laws.
If those treaties are agreed to and they require a change in laws, then those changes in laws are made in AMERICAN laws.
It is STILL an American law, on American law books, not an international one.
I see you’re beginning to understand the principle now.
It is perfectly correct to say that international law affecting US citizens is also US law since it must be passed by Congress (both the treaty and any required domestic legislation). The fact remains, however, that the treaty is also international law.
[Although this isn’t ‘international law,’ it’s worth pointing out that US citizens residing in a foreign country, although they enjoy some degree of assistance from the US authorities, are nevertheless subject to the law of that foreign country, even if the offence with which they are charged is not an offence under US law. In the same way, foreign citizens resident in the US are subject to US law.]
But not all law is criminal law, and not all law means that individual citizens are subject to the jurisdiction of a given court. Just because the US does not recognise any international criminal court does not mean there is no international law per se.
EG
>>In all, the best – or at a minimum the least worst – method of providing some form of government which avoids arbitrary caprice, which maximises popular consent, which minimises intrusion and which promotes cooperation among the people, is some form of representative democracy limited by a constitution.
The problem here is that in practice, keeping the representative democracy limited by the constitution is impossible. The constitution is open to “interpretation” by people with power and influence. These people will shred the constitution when it is convenient for them. Once the general population understands that the government can be used for mutual plunder through democratic action, the end of limited government is assured.
Look at the sorry state of the Constitution in the US. It’s been rendered totally ineffective in limiting government power, especially in recent years.
EG, I once thought just as you do, and it is refreshing to find someone else with a similar understanding of how the text of the constitution allocates war powers. You might be interested in a series of events which changed my thinking.
You may have heard of Tom G. Palmer, a senior fellow at the CATO institute — he runs CATO university. He’s an excellent guy who fights the good fight for liberty all the time. He has a blog. He’s also suspicious of the Iraq war for all the usual reasons.
One day Dr. Palmer put up a blog entry with some boilerplate “support the troops by sending them things to make them feel better” stuff. This struck me as rather odd. As someone fairly well read in the constitution, surely he knows that the Iraq war, whatever its strategic merits, was unconstitutional since it lacked proper congressional authorization. This means that USG forces in Iraq are rogue agents who have violated their service oath to protect the Constitution against domestic as well as foreign enemies. Why was Dr. Palmer suggesting that we support these rogue agents in their treason?
After an email exchange and some more blog posts the situation became clearer. It seems Dr. Palmer’s nephew was over in Iraq fighting. At this point I did something rather rude and ill-considered. I wrote to Palmer explaining that I could understand how a normal grunt could become confused and follow illegal deployment orders, but that officers and nephews of constitutional scholars had no such excuse. Furthermore, I suggested that men who had willingly broken their oaths in such a manner were not to be trusted and that we in the US might be better off if the desert swallowed them up so that they did not return home to threaten our liberty.
Quite naturally, Dr. Palmer explained in no uncertain terms that I was a rotten bastard and that he never wanted to hear from me again. Now Dr. Palmer is normally a reasonable guy who can’t be easily dismissed, so I spent a lot of time thinking the situation over. I concluded that Dr. Palmer was correct in one important respect: it was totally unreasonable for me to expect individual soldiers to sacrifice their careers for the constitution. Were they to stand up to their illegal orders they would at the least be fired and likely jailed. And the war would continue regardless — their principled sacrifice would mean nothing.
And therein lies the problem. If we can’t count on soldiers to uphold their oath to the Constitution because of institutional pressures, then the document is useless. (Senators, congressmen, judges, presidents, and bureaucrats are under even harsher institutional pressure.)
We should discuss this more later.
Over time, this is true. Then again, many things have changed since the creation of the US Constitution. Politically, probably the most signifcant change is the rise of socialism. Socialists existed in the 18th century and before – in the form of the Levellers and Diggers they were a factor in the English revolution in the 1640s. However, the beginning of industrialisation (also not a factor in late 18th C. America) resulted in the spread of a more thought-out socialist philosophy, not least the variant of it espoused by people like Marx and Engels.
This in turn has led to the widespread acceptance of the principles of redistributive taxation, large scale state welfare programmes and, as a logical consequence, the instrusive regulatory state. This was not anticipated by the Founding Fathers, although it is fair to say that the potential problems of democracy were, to some extent.
The advantage of democracy is that it is a reasonable means of ensuring the government remains within limits. The problem with democracy is that an unrestricted franchise will inevitably result in idle people voting to enrich themselves at the expense of others, with no effort on their own part. Even so, compared to the alternatives, it is still the least worst system.
I suspect the answer is to restrict the franchise, although this is in itself a problem identified by Spooner. No representation without taxation, sort of thing.
The Constitution does not prohibit a welfare state, and much of the intrusion, regulation and petty bureaucracy results from having a redistributive welfare system. Another major factor is the litigious nature of contemporary US culture – again, the Constitution does not prohibit this. Privatising all of the welfare system, imposing restrictions on the tort system and prohibiting lawyers from advertising their services or taking on ‘no win, no fee’ cases would make much of the regulation superfluous overnight.
EG
To respond to the general thrust of your argument, I’m not at all convinced that the invasion of Iraq was unconstitutional, but although I know a bit about it I’m not an expert on the subject. I suspect that even if it was unconstitutional, this would depend on a pedantically hair-splitting approach to a subjective interpretation of the text.
What is the oath sworn by US servicemen? In the UK, one swears an oath to the Queen and her lawful heirs and successors. Don’t Americans swear to the President as their commander-in-chief? In any case, I doubt very much that a professional all-volunteer military like the American one is remotely a threat to the liberties of the American people.
Although I sympathise with your argument and understand from where it comes, I can’t agree with it. The reality is that the US is bound by its interests and strategic obligations to intervene around the world. Whilst the Constitution did not foresee this, it does not prohibit it either. If the action in Iraq really was unconstitutional, and given the level of public disquiet over the matter, I would have thought that the President would have been impeached faster than you can say Osama bin Laden.
America is not at this time a nation able to sit back and content itself with domestic issues, and nor can it afford to adopt a pedantically legalistic approach to its dealings in the world. What was in the late 18th century an unregarded and unimportant new nation is now a global power – the global power, in fact – and the same constitution has to deal with it. Inevitably, it will get pushed and squeezed here and there, but all in all it has withstood the passage of time and change remarkably well.
If I may indulge in a little patriotic chauvinism, I’d venture that the much more flexible British constitutional arrangements are better suited to radically changing circumstances like this.
EG
US Officer Service Oath:
“I (insert name), having been appointed a (insert rank) in the U.S. Army under the conditions indicated in this document, do accept such appointment and do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic, that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter, so help me God.”
Not a lot of wiggle room here. Note especially that the loyalty is to the constitution directly, not the nation or the president. The service oath for grunts is different, and includes some chain-of-command and code of military justice stuff after the loyalty to the constitution bit.
>>Although I sympathise with your argument and understand from where it comes, I can’t agree with it. The reality is that the US is bound by its interests and strategic obligations to intervene around the world.
The constitutional issue is totally separate from the strategic utility of prosecuting these wars. There exist legal mechanisms within the Constitution for dealing with both enemy nations and bands of air pirates like bin Laden. These mechanisms were not used.
As for the Iraq war, Rep. Ron Paul attempted to amend the act delegating the decision on whether or not war was to be made so as to make it a formal declaration of war against Iraq. This amendment was rejected. The legislation that was actually passed was particularly dangerous in that Congress essentially absolved itself of any responsiblity for what happened next. If things went badly, Congress could claim, “We allowed the president to make the decision, but he made the WRONG decision. It’s not our fault.” If things went well, Congress could claim to have authorized the President’s wise decision.
Getting a formal declaration of war against Iraq and Afghanistan should have been straightforward. But it DIDN’T HAPPEN. That tells me much about the seriousness with which the USG takes the constitution these days.
>>If the action in Iraq really was unconstitutional, and given the level of public disquiet over the matter, I would have thought that the President would have been impeached faster than you can say Osama bin Laden.
The Congress was complicit in this breach of the constitutional order. Why would they impeach the President over it (unless it looked like it would be politically advantageous)?
>>If I may indulge in a little patriotic chauvinism, I’d venture that the much more flexible British constitutional arrangements are better suited to radically changing circumstances like this.
From what Perry & Co. have stated, things over there seem to be going into the can even faster than they are here. At least people seem to be somewhat more honest about it, and that’s important.
I suspect the non-declaration of war has nothing to do with the Constitution or with Presidential or Congressional disdain for it. I believe it is rather more to do with the United Nations, and the fact that UN members are not really supposed to go to war since, by signing up, they eschew war as a means of solving international disputes. I suppose, but I don’t know for sure, that formally declaring war on another UN state (and I think all states are in the UN) would be a gross violation of the various UN treaties and would no doubt attract various sanctions and penalties. A legalistic point, but since that’s how the UN operates, possibly a valid one.
America has, AFAIK, never declared war on any state since WW2. Neither, again AFAIK, has Britain. In that time, the US has been involved in war against North Vietnam, North Korea and Iraq, together with a host of smaller scale incursions, and has invaded and occupied at least two sovereign nations (Grenada and Iraq). Britain, in the same time frame, was also heavily involved in Korea and Iraq, took on a sovereign nation over the Falkland Islands and was involved in God knows how many colonial police actions and “interventions” in nominally independent states. All without ever declaring war on anyone.
EG
“Treaties can be enforced. For example, failure to abide by the provisions of a treaty can attract penalties in the form or diplomatic, economic or military sanctions – although of course this does not apply to all treaties.”
Treaties can be enforced to the extent that another state, or coalition of states, is powerful enough to enforce them. In the same way, a simple order by one state to another can be enforced if the first state is powerful enough to enforce it. Except to the extent that a treaty is embodied in domestic law, by domestic legal processes, it cannot be enforced other than by the law of the jungle.
“In general, there is no fundamental difference in principle between the law of a state and the law between states. The enforcement mechanism is naturally different, since you cannot for example jail a state if it breaks the law, but the principle is the same.”
No, this is very misleading. The fundamental difference between the law of a state and the law between states is that the former is one imposed on its subjects by a sovereign, and the latter is an agreement between sovereigns, who being sovereign are free to resile from their agreements as they please. International law is fundamentally different from domestic law, and should really be called International Convention to avoid confusing people. It is a set of conventions that sovereigns have agreed to abide by. The sanctions are the same sort of sanctions that apply when individuals resile from non legally binding agreements. Refusal to co-operate in future, a punch on the nose etc. That’s not to say that it isn’t valuable to have a set of International Conventions for the sovereigns to abide by – without them there would be far more states punching each other on the nose. But law in the same sense as domestic law, they ain’t.