Law & Justice: December 2003 Archives

I just noticed that the debate I started is continuing on blogs I've never been to. (HT: Kevin at The Smallest Minority.)

Judges have already taken over the jobs of legislators, so why not generals as well?

WASHINGTON (AP) - The Pentagon must stop forcing servicemen and women to take the anthrax vaccination against their will, unless President Bush signs a special order, a judge ruled Monday. ...

The judge ruled that the anthrax vaccinations fell under a 1998 law prohibiting the use of certain experimental drugs unless people being given the drug consent or the president waives the consent requirement. ...

Sullivan [the judge] rejected the government concern that military discipline would be harmed if courts intervene between soldiers and their military superiors.

Anthrax vaccinations hardly seem "experimental" to me, but at least the judge referred to an actual law rather than just making up some new "right" on the fly. Presumably the point of the law is to put the President on the hook for any subsequent negative effects of the treatment... but isn't that implicit if the President, as commander-in-chief, has his officers administer the vaccines? Maybe my problem is more with the law than with the judge, come to think of it.

If the President has the power to order soldiers to their deaths in combat, and we trust his officers' judgements on that, shouldn't we also trust his officers to administer potentially dangerous medical treatments? I guess we do -- we just want an explicit authorization from the President so we can hang him later if we want to.

GeekWithA.45 rants against complacent gun owners who "don't vote like they own guns". He has a lot to say about gun politics in New Jersey, but his most significant statement is something that I've thought myself on several occasions:

The problem is that "gun crime" is on the verge of undergoing a sea change from predators using guns to take what they want, be it life, limb or property, to "gun crime" being defined as any of a myriad of minor violations of rules that have no real bearing on anything beyond themselves. In some corners of the USA, the level of discipline and awareness required to lawfully retain your arms and stay out of jail far, far exceeds what is natural and just.

I don't consider myself a "gun nut", but I do believe that the right to keep and bear arms is fundamental to liberty; my recent experiences with Hawthorne Police Chief Stephen Port have raised my level of awareness on the issue.

Heed my words: over-legislation will be the downfall of democratic government. When there are too many ineffective laws people (rightly) begin to lose respect for their government. God's purpose for governments is simple: punish those who do evil, and encourage those who do good.

[HT: reader S3, who sends me lots of great links.]

I've written about creative punishments before, and Florida is implementing what appears to be a useful program requiring DUI convicts to install breath-alcohol recognition devices in their cars that prevent them from driving while intoxicated.

The penalty will be imposed on drivers convicted of multiple DUIs, as well as first-time offenders with a blood-alcohol level of 0.20 percent or more or with a child in the vehicle at the time of the offense. ...

Offenders will pick up the tab for the device: $75 for installation and $67.50 for monthly monitoring and calibration of the machine.

Apparently many states have similar programs -- which is great -- but I'm not too keen on federal involvement in what appears to be a purely local matter.

All 50 states are required by a 2000 federal law to have similar programs in place or risk losing some of their highway construction money.

I particularly like the fact that the offender has to foot the bill himself. I don't know how effective the programs are, but since the state isn't paying for it I'm not too concerned.

I think a similar principle could be used to craft punishments for other crimes. For instance, people convicted of violent sexual assault could be castrated. If that's too grusome to mandate, perhaps allow lighter prison sentences for offenders willing to accept alternative punishments that are cheaper for society, and more effective in preventing recidivism.

Some may argue that such an approach to justice could create a slipperly slope leading towards Saddam-style torture, but I don't think that would be a large concern as long as the right to a public trial-by-jury is preserved.

Donald Sensing is entirely correct in writing:

I'll add a thought that I have not seen anywhere. In all the discussions about how Saddam's trial must be fair and the outcome just, surely I am not the only one who thinks that justice cannot be served by any verdict except guilty.

Saddam must be found guilty and there must not be any possibility of finding otherwise. Yes, I know this sounds repulsive to tradtional American virtues of law and courts. But Saddam's case is truly unique. before you hastily rush to comment, stop and really think through what a "not guilty" verdict would mean, and what it would engender.

Saddam's guilt is absolutely unquestionable, and the verdict, to be just, must be foregone from the beginning. So reaching a verdict is not the real issue of the trial. Fully exposing Saddam's deeds to the Iraqi people and the world is the point. Enabling the Iraqi people to face their horrors so they may grow out of them is the point. Discovering the truth of Saddam's ties to nations and international agencies that propped him up is the point.

The trick, though, is in getting Saddam to give us the information we want, and it's hard to imagine him spilling all the beans if he knows there's a guaranteed noose after the 20 questions, no matter what. Part of the trial will revolve around all sorts of "international law" issues that won't add up to much, and the rest will be bargaining between the Iraqis (and the CPA) and Saddam over how much info he'll give them.

I expect he'll be forced -- through mild forms of torture -- to incriminate himself, and his captors will probably hang the life-in-prison carrot in front of him the whole way to give him some incentive to cooperate. I don't think the CPA will let the Iraqis use hard-core torture techniques, and I don't think the Iraqis will let him escape execution (not that the CPA would want him to).

Maybe I'm overly bloodthirsty, but I think just about everyone we can find from Saddam's family should be rounded up and handed over to the Iraqis. Even though I can imagine a thousand ways in which, for instance, Saddam's daughters may have been victims of his brutality, it's pretty hard for me to fathom that they weren't also accomplices in his evil. His sons certainly were.

Saddam Hussein's oldest daughter told Al-Arabiya television network Tuesday the family of the former dictator will hire the best attorneys it can find to fight for her father.

In a phone interview, Raghad Hussein, 35, told the Arabic-language channel that the family believes Saddam was drugged after he surrendered to American troops.

"This is not our father," she said. "This is not how he would act."

Raghad said the family hopes that there will be a government in Iraq that is fair and not under the domination of the United States.

I hope there's a fair government in Iraq, too, and I can't wait till they get their hands on you.

(HT: Bill Hobbs.)

I was just reading through the transcript of Howard Dean's December 1st appearance on Hardball, and some (more) of his answers caught my attention.

MATTHEWS: Who should try Osama bin Laden if we catch him? We or the World Court?

DEAN: I don’t think it makes a lot of difference. I’m happy...

MATTHEWS: But who would you like to, if you were president of the United States, would you insist on us trying him, since he was involved in blowing up the World Trade Center, or would you let The Hague do it?

DEAN: You know, the truth is it doesn’t make a lot of difference to me as long as he is brought to justice. I think that’s the critical part of that.

Somehow, I don't think letting the UN try Osama Bin Laden for 9/11 would prove to be very popular, which is probably why Dean tries to dodge the question. Even the dodge -- that he doesn't care what happens -- is pretty repulsive to me.

MATTHEWS: How about Saddam Hussein? Should we try him in criminal and execute him...

DEAN: Again, we are allowing the Bosnian war criminals to be tried at The International Court in The Hague. That suits me fine. As long as they’re brought to justice and tried, and so far we haven’t had to have that discussion because the president has not been able to find either one of them.

MATTHEWS: Is the president as commander in chief-is the president as commander in chief responsible for other failure to catch bin Laden? I mean, he is six foot eight. He’s on dialysis and he’s riding a mule. Why can’t we catch-why can’t we catch this guy?

DEAN: I think there are some real problems in our intelligence community, and I think there have been for a long time. And I also think that something went terribly wrong on our way into Iraq. Whether it was the president not being candid or whether it was his advisers misinforming him or whether it was information from the intelligence community that wasn’t complete. But there are some really serious problems in the United States government’s ability to process intelligence, and I wish I could answer that question. We need to fix that. That’s where the problems are in finding bin Laden.

We can't catch Bin Laden because he's probably dead; kidney dialysis and hiding in snowy caves don't mix. As for Saddam Hussein and our pitiful intelligence community... oh yeah.

The Hawthorne Chief of Police Stephen Port has denied my application for a permit to carry a concealed weapon, and I'm going to deliver a Public Records Act Request this afternoon to gather information for a possible lawsuit. According to the text of the law, it looks like the Hawthorne Police Department will have ten days to make the records available (or at least to make a determination as to their availability). Ten calendar days from now is Christmas, but as you can imagine I'm eager to see that my rights as protected under the national Constitution and the constitution of the State of California are enforced.

Update:
I submitted the PRAR without much fanfare, and had my brother go with me to witness it. Now we'll see what happens....

Although I believe people do have a right to provide for their own defense -- and thus have a right to keep and carry some sorts of weapons -- I'm not opposed to all weapons restrictions. For instance, an argument that may support my right to carry a concealed handgun may not have much weight when I start building a nuclear device next-door. But why not? If my neighbor has a nuclear device of his own, I'll need one too to deter him. Right?

Well, I don't think so, and here's why. As fine a job as many police forces do, their primary purpose isn't to prevent all crime, but to increase the cost of committing crimes. In contrast, an individual's (rightful) primary purpose (if they so desire) is to completely prevent all crimes against their person and their family. The police simply cannot be everywhere all the time, ready to prevent every conceivable crime, and it's not even their job to do so. Most police are under no legal obligation to intervene if they see a crime in progress (link anyone?). Their job is to reduce aggregate crime; although they do that by catching specific criminals, police very rarely actually stop a crime in progress.

Extrapolate those thoughts about the police to the government as a whole, and I think you'll see where I'm going. We as individuals grant some of our right to use force to the government and entrust it with the authority to reduce crime (and even fight wars) on the large scale. It's more efficient and more effective to field an Army division than to field 20,000 individuals. When it comes to large scale violence, the government always knows where, when, what, who, &c., and is generally able to respond within a useful timeframe.

Howver, when it comes to small-scale violence, the police are generally nowhere to be found till after the fact, and it's impossible to envision any alternative system. For that reason, individuals must retain the power and authority to protect themselves from small-scale violence. I know what's happening to me, because I'm there.

Of course, crime-prevention is only half the story behind the 2d Amendment -- the right to keep and bear arms is also important because the populace should have the power to protect itself from a tyrannical government, by force if necessary. So should I have the right to own a nuclear weapon to deter the feds? Well, considering the massive infrastructure that would be required to maintain a useful weapon and delivery system, this option is probably entirely impractical (except perhaps for Bill Gates).

A decent argument might be made for arming state troops with nuclear weapons, but is there really a point? When it comes down to it, the American military is made up of common citizens from all parts of the country, not tribe-or ethnic-based conscript units as are found elsewhere in the world. Our best protection from a military coup or a tyrannical government is the simple fact that our soldiers and officers wouldn't obey an order to nuke their own city. Unlike in many parts of the world, the government is made of us, and there is no real them. Sure, there are ideological differences, but none of them are fixed across time, and most families have members from just about every side of the spectrum.

So-called "liberals" who want to restrict individuals from owning small-arms are living in a fantasyland in which an omnipresent, omnipotent, benevolent government solves all our problems. On the other hand, some libertarians I know who advocate completely unrestricted weapon rights are missing the point of liberty also: are you less free now than you'd be if all your neighbors had nuclear weapons?