Friday, June 27, 2008

The Heller Misdirection

Freedom! Glorious freedom!
A young American celebrates the freedom to pee under the kindly gaze of one of our nation's many fine paramilitary police officers.

"A nation of slaves is always prepared to applaud the clemency of their master, who, in the abuse of absolute power, does not proceed to the last extremes of injustice and oppression." --

Edward Gibbon, Decline and Fall of the Roman Empire

Like the inhabitants of other formerly free societies, Americans are content to define "freedom" in terms of those liberties we are permitted to exercise. Yesterday's Supreme Court ruling in District of Columbia v. Heller (.pdf) is perfectly in harmony with this self-defeating concept of "freedom."

It is entirely appropriate that the decision was written by Antonin Scalia, the most reliably authoritarian and consistently liberty-averse member of the Court. With an air of regal condescension, Scalia allows that the Second Amendment acknowledges and protects an individual right to armed self-defense. He then explicitly limits the extent to which that "right" can be exercised, thereby redefining it as a State-conferred privilege.

We can't really expect a statist creature like Antonin Scalia to embrace the view that the right to keep and bear arms includes the right of citizens, acting either individually or collectively, to kill agents of the state when such action is necessary and morally justified. Any other view of the Second Amendment is worse than useless; this is certainly true of the view that emerges in Scalia's Heller opinion.

"The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home," summarizes Scalia at the beginning of his opinion (emphasis added).

A few paragraphs later Scalia elaborates a bit on the implied limitations of the "right" he describes. Insisting that previous Court rulings effectively limit "the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes," he asserts: "Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.... Miller's holding that the sorts of weapons protected are those `in common use at the time' finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons." (Emphasis added.)

Nothing "dangerous and unusual" here:
Combat-armed occupation troops patrol Katrina-ravaged New Orleans as part of an operation that included disarmament of law-abiding citizens.

When government grants a liberty and then restricts the manner in which it can be used, the result is not a right, but a limited, conditional license. Scalia's passage cited above will inevitably be seen as a license from the court for legislative bodies to enact, or fortify, laws against "dangerous and unusual" weapons -- such as the scary-looking guns ritually denounced as "assault weapons, for example. And other even more troubling portions of his opinion will abet further restrictions on the purposes for which firearms can be used.

At various points in his opinion, Scalia brushes up against the radical origins of the Second Amendment. For example: "The Antifederalists feared that the Federal Government would disarm the people in order to disable [the] citizens' militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens' militia would be preserved." (Pg. 2; see also 22-28)

The clear implication here is that the "ancient right of individuals" to armed self-defense includes the right to organize for the purpose of insurrection against a tyrannical government. Scalia revisits that theme in reviewing efforts by George III's government to disarm American colonists (pg. 21). Discussing the ancient origins of the right, Scalia notes that "the Stuart Kings Charles II and James II succeeded in using select militias loyal to them to suppress political dissidents, in part by disarming their opponents" (pg. 19). He quite usefully admits that "when able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny" (pp. 24-25), without teasing any specific application from that provocative observation.

Although he draws only scantily from the vast corpus of insurrectionary writings by the Founders that deal with the right to armed self-defense (the most notable being Madison's endorsement, in Federalist essay 46, of direct military action against a tyrannical central government), Scalia does cite some interesting literature of that sort from the mid-19th century.

For instance, he quotes John Norton Pomeroy's 1868 book An Introduction to the Constitutional Law of the United States, which stated that the Second Amendment would make no sense unless it enables citizens "to exercise themselves in the use of warlike weapons. To preserve this privilege, and to secure to the people the ability to oppose themselves in military force against the usurpations of government, as well as against enemies from without, that government is forbidden by any law or proceeding to invade or destroy the right to keep and bear arms...." (emphasis added).

Given the chance, they'll grab your guns: A house-to-house gun grab in New Orleans.

From the foregoing it's clear that Scalia is aware of the insurrectionary origins and purpose of the Second Amendment. Passages of that sort are scattered through the 67-page opinion and left without significant elaboration.

What's even odder is the fact that Scalia, drawing on Joseph Story's immensely influential Commentaries, asserts that the "free state" to be defended by the people under arms is not the individual state they inhabit -- as the Founders would have understood -- but rather the unitary nation created as a result of the Union victory in the War Between the States (pg. 24).

Scalia appears to be saying that while the right to bear arms was associated with the colonial and state militias, that right does not exist exclusively to carry out that function. But he also seems to assert that since the modern "militia" is an institution controlled by the central government and devoted to its protection, there's no longer a legitimate right to armed self-defense against the government.

On this point, Scalia's analysis is difficult to distinguish from that offered by the dissenting judges, who would simply dispense with the right to bear arms entirely, rather than paying lip-service to it while denying its chief purpose and encouraging various encumberances on it, as Scalia does.

"Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem," Scalia concludes. "That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct."

Indeed not: Scalia's opinion suggests that the role of the Court is to placate key elements of the Republican coalition while suggesting alternative routes to those who seek the eventual abolition of the right that was once protected by the Second Amendment. While Scalia's ruling reinforces one of the few effective rallying points for the demoralized Republican Party ("This year's election is all about the judges!"), it does nothing of substance to defer the day when some judge or president will be able to pronounce the Second Amendment extinct.

This point simply can't be emphasized too often: The innate right of armed self-defense exists whether any government chooses to recognize it. What made the Second Amendment unique was its recognition of the fact that in the constitutional scheme, the government does not have a monopoly on the legitimate use of force. Scalia, like many statist jurists before him, insists that the permissible civilian uses of firearms are all defined within that government-exercised monopoly on force; they are temporary concessions that can be redefined by our rulers at whim.

In a genuinely free society, citizens would enjoy the unqualified liberty to acquire weapons of any sort, in any quantity they pleased, for the specific purpose of being able to out-gun the government and its agents when such action would be justified.

Your friendly neighborhood stormtrooper on patrol in New Orleans:
If they were really the Good Guys, would they dress like this?

Most Americans, as ignorant of our heritage of principled insurrection as they are well-versed in the ephemera of degenerate pop culture, would find such sentiments abhorrent. In that fact we see that -- whatever may be the status of our current "right" to keep and bear arms -- the intellectual and psychological disarmament of our population is nearly complete.


Please note that the original version of this essay cited Federalist essay 45 rather than 46, although the link was correct. My thanks to reader Brian Martin for catching this error (and many thanks to Lew for republishing this essay on his irreplaceable website).

Also, in the original version of this essay I omitted the word "asserts" following mention of "... Joseph Story's immensely influential Commentaries...."

Ah, the dangers of being one's own copy editor, particularly when the author in question frequently finds himself writing with a youngster clinging to one arm....

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Tuesday, June 24, 2008

The Homeland Security State: Boyz With Lethal Toyz

Everything the State says is a lie, and everything it has it has stolen. --


Terror must be maintained, or the Empire is doomed. It is the logic of history. --

Wise Fictional Character to be named later*

Couldn't the county simply have paid him for the damage to his well?

That's the question that urges itself upon me as I sift through the rubble of last Spring's confrontation in rural Wisconsin between Robert Bayliss and ... well, at last count, roughly two dozen local, county, and state agencies.

The anti-Bayliss coalition included elements from no fewer than six SWAT teams and the prominent use of three BearCat (Ballistic Engineered Armored Response and Rescue Counter Attack Truck) military assault vehicles.

Surely, Mr. Bayliss must have been a singularly fearsome fugitive in order to trigger such a huge deployment. One would think as much. And one would be wrong.

It ain't a Stutz: The BearCat armored assault vehicle, just one of the taxpayer-funded lethal toys being handed out to the army of occupation we call the local police.

Prior to his arrest on April 3, the diminutive and reclusive Mr. Bayliss (either 60 or 61 years old, depending on the media account) lived in a small, ramshackle abode on 18 acres outside Viola, Wisconsin.

We can appreciate just how pathetic and fragile the Bayliss dwelling was by the fact that it was never referred to as an "armed compound" during the police siege.

A former volunteer firefighter who had served as a sonar officer in the Navy, Bayliss had a heart attack about a decade ago. Reputed to be a world-class amateur computer technician, Bayliss had been reduced to grubbing out a meager living by picking apples in the fall and doing whatever other odd jobs he could find.

Press accounts dutifully describe Bayliss (who looks like a much frailer version of Grandpa Walton) as someone who possessed "strong anti-government attitudes," which -- to genuinely intelligent people -- is a bit like being singled out for having a healthy immune system. Unlike the stereotypical anti-social recluse of lore, however, Bayliss is considered to be very personable, outgoing, and generally respectful of the preening, oddly dressed, self-important parasites who insist on being called "the authorities" -- judges, police, and that ilk.

"I like him," commented substitute librarian Judy McConoughey about Bayliss following his arrest. "He is extremely gentle, kind, thoughtful, respectful.... It's only when he is confronted with what he thinks is illegitimate abuse of the Constitution that he gets very upset.... Most [of his neighbors] know him and like him. He is basically a peaceable person, I would take him into my home."

Eugene Winchell, who picked apples with Bayliss in local orchards, allowed that he was "maybe a little eccentric, but he was good to work with ... always with a smile on his face. I don't think there was a bad bone in his body."

"I think he was always poor," says neighbor Al Cutler of Bayliss, "but he wouldn't take money from anybody. He wired my shed in exchange for firewood. He would help just about anybody who needed help."

In his previous court appearances -- which have been plentiful, for someone who has never imposed on anybody, let alone committed an offense against person or property -- Bayliss has displayed tremendous respect for judges and court officials. Given his polite and deferential nature, Bayliss seemed to be the last person who would ever throw a few rounds of lead at local law enforcement officers, as he reportedly did on March 31 when four Sheriff's deputies invaded his property for the purpose of evicting him from his home.

Last November, the clique calling itself the government of Richland County voted to steal Bayliss's 18-acre plot because he had declined to pay $5,737.01 in property taxes between 2000 and 2006. Until 2000, Bayliss had dutifully paid out the protection money demanded by the county Camorra, but found himself in trouble anyway: The County Sheriff sicced his deputies on Bayliss to deliver a tax delinquency notice, despite the fact that he had already paid the first of two installments to the town treasurer.

Bayliss was understandably frustrated by the bureaucratic foul-up, and infuriated by the serene arrogance displayed by the deputies when they trespassed on his posted property. In a nice bit of mimicry, Bayliss had put up a sign announcing that those who entered his land had to pay a $5,000 "land-use fee" to obtain an entry permit. So after the deputies left, Bayliss sent the county a bill demanding payment of the delinquent $5,000 fee.

This is a futile gesture, of course, but I'm trying -- without success -- to identify a moral argument against what Bayliss did. It was his land, owned free and clear since 1979. He was the sole inhabitant and sovereign of his own little polity. In anything other than a strictly positivist sense, why couldn't he charge for access to his land?

Fanciful as Bayliss's demand of the Richland County Government may have been, that government's culpable neglect also handed him a solid, incontestable grievance.

Some time prior to Bayliss's initial property tax conflict in 2000, a construction crew straightened County Highway G, which runs next to Bayliss's land. This involved blasting away a limestone hillside. Part of the collateral damage of the blasting was the loss of Bob Bayliss's well.

According to Al Cutler, Bayliss's neighbor, the blasts left the well's submersible pump irreparably damaged, leaving him with no source of water. Cutler also reports that the county refused to restore the well or provide Bayliss with an alternate source of water. He was forced to fill large, blue, plastic barrels with water from local springs.

So it's no particular surprise when Cutler reports that Bayliss, who was not predisposed toward anti-government sentiment, was "sore at the county."

Once again, I ask: Why the hell didn't the Richland County Government, which committed the initial offense by destroying Bayliss's well, pay for the damage?

The answer, obviously, is: Because they didn't have to. They have armed men in their employ, after all, who are clothed in the supposed authority to commit acts of violence against intransigent people like Robert Bayliss.

So on March 31, the County dispatched four of their armed employees to serve eviction papers on Bayliss. For his part, Mr. Bayliss -- reportedly a "crack shot" -- displayed nearly superhuman forebearance in the face of this aggression by aiming his shots above the head of the invaders.

The deputies withdrew; conferences were held; local police officials contacted their comrades in neighboring jurisdictions to organize a militarized response to Bayliss's defiance.

As described in a press release issued by Richland County Sheriff Darrell Berglin, the operation involved six Sheriff's departments, one local police department, six SWAT/tactical teams, State Police personnel, a bomb squad, two airborne units, three emergency response teams, and representatives of three state agencies.

All of this manpower was mobilized, remember, to conduct an assault on a solitary aging man who owed $5,737.01 in back taxes.

I'll bet that the Richland County Government wastes more than that amount each year in needless purchases of refreshments and office supplies.

Conspicuous in the April 3 assault on Bayliss's home were three BearCat vehicles. Lenco Industries of Penco, Massachusetts, which manufactures the BearCat, proudly reports that the vehicle is fortified with "half-inch hardened steel armor plates, State Department-approved bulletproof windows, blast fragmentation resistant floors, specially designed gunports, roof hatches with rotating turrets, gun mounts and gear storage."

Bayliss flung a few rounds, and a few "grenade-type devices" (most likely Molotov cocktails) at the lead BearCat, slighting damaging its bullet-resistant windows. Two more of the assault vehicles were summoned to the scene. SWAT operators chased Bayliss into his house, firing numerous tear-gas rounds into it before finally using "less-lethal" rounds to subdue him. The house itself burned to the ground.

Scars of a victory nobly won? Nope -- incidental damage inflicted on federally subsidized paramilitary gear by a besieged homeowner valiantly defending his land.

Having conquered such a menacing adversary, the local Homeland Security affiliate took a victory lap.

Fist-jabs and chest-bumps were exchanged; beers were hoisted in triumph; press releases were joyously disseminated. The battle-damaged BearCat itself was put on display in LaCrosse County, whose Sheriff's Department had purchased the vehicle with a federal Homeland Security grant.

You see, the purchase of the BearCat by the LaCrosse Sheriff's Department had been controversial, because it had been arranged without the County Board of Supervisors being notified.

So much for civilian control over the military -- even at the county government level.

Apparently, only the Sheriff and a couple of his cronies were aware of the grant and how it was spent. After the purchase became known, County Supervisor Jill Billings quite sensibly suggested that it be turned over to the local National Guard unit. This provoked a theatrical display of pious outrage from Supervisor Karl Haleverson, a former sheriff.

"Don't we care about these law enforcement officers?" simpered Halverson. "Boy, sometimes I think I'm on Mars."

The Board of Supervisors eventually issued a resolution (.pdf) "authorizing" the purchase after the fact. Of course, the County Sheriff and other local clients of the Homeland Security State believe that the BearCat purchase was entirely validated by the successful siege of Robert Bayliss's home.

Of course, the BearCat acquisition, like the purchase of hundreds of thousands of dollars of hi-tech gear with federal funds, was justified as a counter-terrorist measure -- as if the minions of the omnipotent troglodyte Osama bin Laden regarded rural Wisconsin to be a critical target of the global jihad.

The inaugural use to which that armored assault vehicle was put was much more illustrative of the priorities and function of the Homeland Security State, which is to maintain terror -- not only the politically profitable fear of outsiders, but the tacit fear that commands submission to the State's demands. The amount Bayliss owed was less than trivial, but his defiance -- rooted in a very plausible set of grievances -- could have proven contagious if not properly dealt with.

As helicopters circled Bayliss's besieged property in the distance, and smoke arose from his ruined house, a resident of the nearby town of Viola commented to a reporter: "This could happen to anybody." That's precisely the message the local Homeland Security affiliate meant to send.


*Can anybody identify the character who said this? Chances are it's not who you think.

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Sunday, June 22, 2008

Martial Law: A License to Loot, a Permit to Plunder (Updated)

Breaking and entering:
Where does this fit under the heading "To protect and serve"? A paramilitary "strike team" commits a felonious break-in of a home in the flood-ravaged Midwest.

Digging up the planted axioms that litter our ordinary conversations can be a revealing exercise. We learn how deeply rooted our supposedly free society has become in collectivist and militarist assumptions.

For example: How often do we hear or read language that draws a distinction between "police" and "civilians"?

Our republican framework of government supposedly prohibits the use of the military in domestic law enforcement. Yet if a police officer isn't a civilian, he of necessity must be considered some variety of soldier: He bears arms, belongs to a force organized in a military hierarchy, issues orders, and expects immediate obedience to his demands.

Police are supposedly civilian "peace officers," distinguished from the rest of the citizenry (to paraphrase Robert Peel) only by the fact that they are specially charged to protect the rights and property of the innocent as a permanent assignment, rather than an occasional necessity.

Yet when non-professional police officers are given "law enforcement" duties by local governments -- as in Gilbert, Arizona, where such people are part of a unit that can issue traffic citations and investigate accidents -- they are referred to as "civilian auxiliaries" of police departments. Again we see the critical distinction: The regular police are something other than civilians.

Roughly a year ago, USA Today reported that the wars in Iraq and Afghanistan had created a shortage of ammunition, leaving police and "civilians" at the back of the line. Annual police awards ceremonies across the country routinely honor not only law enforcement officers but "civilians" for various distinguished acts.

Cultivating a new crop of "law enforcement" officers: Teenagers participating in a summer police training program receive instructions from SWAT operators at a firing range.

And, significantly, it is very common for "civilians" to be charged with "disobeying an officer" even when no other alleged offense is involved. That charge makes little sense unless it is assumed not only that police exercise authority akin to military personnel, but that common civilians are at the bottom of the hierarchy. Were this actually a country in which governments and their enforcement agencies derive their just powers from the consent of the governed, wouldn't it be possible to charge a police officer with "disobeying a citizen"?

As I mentioned above, these assumptions are usually buried and carefully ignored. But they are rudely exposed whenever crisis descends on a community and the familiar pretenses are blown away. Catastrophic natural disasters such as Hurricane Katrina or this year's Midwestern floods are eagerly embraced by law enforcement agencies as a pretext for overtly exercising the kind of power that many of them covertly lust to employ all the time -- the power to regiment their communities at gunpoint under a form of martial law.

Think, once again, of the roots of that expression: "Martial" has its origin in the proper name Mars, referring to the pagan deity of -- what activity?

The term unmistakably refers to a military posture, or a state of war. It is the suspension of normal life via force majeure, resulting in rule by unalloyed force. And the capacity for rule of this kind is embedded in every law enforcement body in every community across the country, simply waiting for an excuse to manifest itself.

Many who reside in our flood-ravaged Midwest are learning, as residents of New Orleans did before them, that our paramilitary "protectors" will eagerly exploit disasters in ways that compound the suffering inflicted by a natural disaster. Many citizens in such circumstances prefer to stay in their homes, running their own risks in order to protect what is theirs. But it is
standard operating procedure for police -- aided, at times, by National Guardsmen -- to force such people out of their homes, and to use the force of arms to prevent those who have left from returning.

In the wake of the floodwaters in Iowa came all of the impedimentia of military occupation -- armed guards, checkpoints, detention areas. These strictures were imposed on communities already reeling from a deadly caprice of nature. Rather than permitting people to inspect their own property, "strike teams" that included armed police broke into locked homes, including the occasional occupied dwelling.

One Cedar Rapids homeowner, understandably outraged that a "strike team" had broken into his otherwise undamaged home, confronted them and made his feelings known in forceful but measured terms. This prompted police officer Josh Bell to threaten the homeowner with arrest for "harassing" the "strike team."

The business end of government "compassion": Armed "protectors" arrest Cedar Rapids homeowner Ricky Blazek at gunpoint (left, below).

That aggravated homeowner was relatively fortunate.

Fellow Cedar Rapids resident Ricky Blazek, one of several thousand flood victims reasonably infuriated by "checkpoints" preventing them from returning to their homes, tried to circumnavigate one such roadblock in his automobile. This resulted in Blazek being forced out of his car at gunpoint and arrested.

While the armed "strike teams" had unfettered access to homes of flood victims, and the media was given limited access in order to chronicle the supposed heroism of the government functionaries, homeowners basted in a seething broth of frustrated suspicion.

After all, would any thinking person feel secure knowing that government agents, freed by a natural disaster from the constraints of the pesky Fourth Amendment, had free rein to break into their homes and help themselves to anything they found therein?

Last year, the small town of Greensburg, Kansas was all but obliterated by a tornado of a ferocity not seen in the region since Dorothy Gale's house was rapted away to Oz and deposited rudely on top of Hillary Clinton's long-forgotten sister.

That's certainly more than enough for any town to suffer. However, the police establishment, displaying government's infallible gift for compounding tragedy, made matters immeasurably worse by barring residents from their homes and then selectively looting them for firearms (and, in some cases, jewelry and other valuables).

Gun Week reports that these thefts were made possible because officers "from various agencies" -- local and state police, the Kansas Bureau of Investigation, FEMA, and the ATF -- "allegedly claimed that martial law had been imposed when it had not, and ordered all residents to leave the town."

Those residents who discovered the thefts and demanded the return of their firearms found them, in many cases, damaged to the point of being useless. A few opened gun cases only to discover that their firearms had been replaced with guns of inferior quality.

Bob Martin, an 83-year-old trap shooter, returned to his home the morning after the tornado to discover that several of his guns were missing. Like Ricky Blazek, Martin was originally barred access to his home by officers who claimed, falsely, that martial law had been declared by the municipal or state government. He was forced to take a circuitous route to his home; by the time he got there, his gun safe had been plundered.

After getting back several -- but not all -- of his guns (which had been damaged in police custody, Martin, along with his wife, moved out of Greensburg. He now regrets not shooting his way through the police barricade that kept him from defending his home and property.

"If I'd have known [that the martial law claim was a ruse, and the police were looting his gun collection], I had a gun of my own in the car, and I'd [have] loaded it and gone in," Martin says. "Ain't nobody going to keep me off my property."

Whatever it is that prompts a man in his ninth decade to take such a commendably militant stance toward the looters in blue, I earnestly hope it's contagious.

Provoked by the police crime wave that descended on tornado-ravaged Greenburg, the Kansas state legislature this year enacted HB 2280 (.pdf), a law that (per the official summary) "prohibits officials, during a declared state of emergency, from forcibly dispossessing an owner of any firearm not otherwise prohibited by law, or from requiring registration of firearms not required to be registered under state law."

Now, that bill was pockmarked with troubling qualifications (for instance, no peaceful and law-abiding citizen can properly be "prohibited by law" from owning any weapon he has the means to purchase and the skill to operate, "laws" holding otherwise notwithstanding). But the fundamental point here is of the "Well, duh" variety: Police shouldn't take advantage of natural disasters to steal firearms from citizens, any more than street crooks should capitalize on the opportunity to swipe consumer electronics from undefended retail stores.

Thus it is hugely significant that HB 2280, which only prohibits police from doing something they weren't authorized to do in the first place, was opposed by the Pratt County (Kansas) Sheriff, the Kansas Association of Chiefs of Police, and the Kansas Bureau of Investigation.

From their point of view, it's just not worth the trouble of having a natural disaster if the event can't be exploited to regiment local civilians and confiscate their firearms.

UPDATE: Submit or die....

Justin Raimondo of offers the following capsule summary of the unpunished massacre of dozens of Iraqi civilians by a U.S. Marine unit in Haditha:

"When an IED killed one of his Marines, [SSgt. Frank] Wuterich and company shot everyone in the vicinity – including
five unarmed men who were getting out of a taxi. Wuterich claims that the Iraqis disobeyed orders to stop and raise their hands over their heads, but others on the scene testify that they were complying and were shot anyway. Yet, whatever happened, Wuterich's working assumption – that the five harbored hostile intent toward him and his men – was and is undoubtedly correct. Because that's what imperialism is all about: occupying countries where you're hated by the locals, who are constantly trying to kill you. So naturally you get nervous and trigger-happy, and mistakes are made. That's the sort of war we're fighting and have to fight
as long as we're in Iraq." (Emphasis added.)

Here we see how Iraqis living under an undisguised military occupation are expected -- on pain of summary execution -- to obey the orders of a foreign soldier. A variant of that mindset can be seen anytime an American citizen is arrested and charged with the supposed offense of "disobeying an officer's orders." And during periods of emergency rule, whether or not the condition is referred to as "martial law," those referred to as "civilians" in post-Katrina America can expect that they'll be treated with just a little bit more solicitude than Iraqis -- but not much.

Martial law, after all, is merely a military occupation conducted within our borders, rather than outside them.

And we should entertain no illusions about the fact that police agencies are deliberately re-tooling themselves into overtly military bodies. This can be clearly seen in -- among other things -- recruitment pitches like this one (courtesy of Radley Balko) from a SWAT team in Rome, Georgia.

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Friday, June 20, 2008

SCOTUS Ratifies CPS Childnapping and Blackmail

Taking the children out of the picture: This FLDS couple was able to rescue their children from State-funded kidnappers in Texas. Thanks to the Supreme Court's refusal to hear a case in Illinois, other parents across the nation won't be so fortunate.

James Redlin, a high school teacher from Illinois, will never know the name of the conscientious citizen who disrupted and nearly destroyed his family. All he knows is that when he came home from a brief trip on a train with his six-year-old son his wife Susan, told him that an official from the Department of Child and Family Services had paid a visit.

Using the threat of seizing the son and sending him into foster care, the DCFS official had
extracted from Mrs. Redlin an agreement to sign a family "safety plan." The plan required that James be subject to 24-hour supervision of all contact with his son. A typical household would be hard-pressed to meet that demand. The Redlins confronted the additional difficulty posed by the fact that Mrs. Redlin was confined to a wheelchair.

Mr. Redlin's supposed "offense" was tickling his son during a train ride.

The child "protection" worker determined that the Redlin home was unsafe through the use of a 15-point checklist called the Child Endangerment Risk Assessment Protocol (CERAP).
Checking a box next to any of the 15 "safety factors" is considered sufficient justification for state intervention in the home. No tangible or objective evidence is necessary in order for that threshold to be reached: The subjective and self-ratifying perceptions of a child "protector" are sufficient.

Once a home has been deemed unsafe, the investigator now has the option of imposing a "safety plan" on the household. This can be done through an ex parte communication with a family member who is not a suspected abuser, as was the case when DCFS extracted a "safety plan" agreement with Mrs. Redlin.

And as the Redlin case demonstrates, the preferred method of securing parental agreement is blackmail. The standard "safety plan" document contains language stating that "failure to agree to a plan or to carry out the plan may result in a reassessment of my home and possible protective custody and/or referral to the State's Attorney's Office for a court order to remove my children from my home." (Emphasis added.)

This form of intervention can be triggered by an anonymous hotline call involving either parent, any child residing in a home, or any resident relative or non-relative. Not surprisingly, nearly every parent or caretaker confronted with a "safety plan" backed by the threat of kidnapping the children ends up signing the agreement. To the child "protectors," it is of little moment that more than two-thirds of all investigations conducted in this fashion are determined to be unfounded -- something akin to a miracle, given the expansive and capricious definitions of "abuse" and "evidence" employed by child-snatchers across the country.

It's common for "safety plans" to continue, along with the threat to remove the children from their homes, even after the accused abuser is cleared of all charges. And of course, even when normalcy is restored, parents are left with the formidable task of reconstituting a family that has been torn asunder through state violence -- even when the children are permitted to stay.

Stacey DeLaFont didn't have her children seized by the state, nor was anybody in her household charged with abuse. Instead, the child "protectors" ordered Mrs. DeLaFont to evict her husband Stacey, a pre-school teacher, because he had been anonymously accused of abusing children at school.

Although the DeLaFont children were not taken away, the teenage son (who was never charged with a crime) was initially required to stay outside the home. After being exiled from his home for a few weeks, the son was permitted to return as long as he had no
"unsupervised" contact with the younger children.

This meant, among other things, that Mrs. DeLaFont remain awake all night long to "supervise" her son until he left for school.

How the child-nappers see themselves: A 19th Century illustration depicts a stern but kindly caseworker sheltering a shattered child from his deranged termagant of a mother. The sex roles may have changed, but the conceit remains consistent. For the reality, see the Waco photos below.

Tactics of this kind are familiar to even the most casual students of the ongoing child "protection" atrocity in Texas involving the FLDS Church. But it must be understood that incidents of this kind happen across the country every week, probably every day.

With their children under the threat of being kidnapped and -- perhaps permanently -- sent into foster care, parents are compelled to sign documents that ratify the abduction, legitimize continued state control over the children, and amount to an admission of abuse by the parents. And this is done before a formal investigation of the charges begins; not only are the parents in such situations not guilty of any crimes, they're not even formal suspects.

A week ago, shortly after a divided Supreme Court issued a flawed but necessary decision recognizing the indispensability of the habeas corpus guarantee, the High Court to use the familiar awe-encrusted expression we're expected to apply to that body of unremarkable lawyers) refused to hear an appeal in the case of Dupuy v McEwen, a class action lawsuit filed on behalf of thousands of parents whose children had been kidnapped and used as blackmail leverage by child "protection" officials in Illinois.(.pdf)

This means that the Court left unmolested, as a controlling precedent, a Seventh Circuit Court ruling written by former federal Judge Richard Posner, a reliable exponent of totalitarian State power.

Writing of people confronting demands made by people who can kill to enforce their demands, Posner blithely dismisses the idea that parents given an ultimatum to sign a "safety plan" or lose their children are subject to coercion. In either feigned ignorance or genuine dishonesty -- in his case, it's difficult to tell which of those traits is on display -- Posner professes puzzlement that "giving people more options" is seen to make them worse off:

"We can't see how parents are made worse off by being given the option of accepting the offer of a safety plan. It is rare to be disadvantaged by having more rather than fewer options. If you tell a guest that you will mix him either a Martini or a Manhattan, how is he worse off than if you tell him you'll mix him a Martini?"

How easily disingenuousness degenerates into depraved dishonesty.

A victim of child "protection" zealotry:
These are the charred remains of a two-year-old who died on Mt. Carmel, April 19, 1993 (see below, left).

A genuine host doesn't obtain a "guest" at gunpoint, as the state does when its agents thrust themselves into a home and confront the parents with a "safety plan" ultimatum.

A "guest" isn't forced to select between alcoholic beverages at gunpoint; every demand made by those employed by the state, on the other hand, is accompanied by the threat of lethal force. And of course, it would be a singularly unsuitable host who would compel a teetotaler to choose an alcoholic libation in the first place.

It is the state, not the parents, that has the advantage of "more rather than fewer options" where blackmail is used to extract a "safety plan." This should be obvious to any mind not polluted with incurable dishonesty or irretrievably hostage to statist assumptions.

Posner is regarded by many to be in possession of a subtle legal mind. I've yet to encounter any evidence that he is better educated, or more persuasive, than an unexceptional high school debater. He is the author of a recently published assault on reason entitled Not a Suicide Pact, in which he sets out a doctrine of wartime presidential dictatorship that is, in some ways, more ambitious than that pronounced by the Bush Regime.

Reduced to its evil essence, Posner's view of government power is that the state draws its legitimate authority from necessity -- as perceived by those who execute that power -- rather than the Constitution. Under Posner's variety of positivism, whatever action a government official deems "necessary" must therefore be legitimate.

Posner has written that the president "can do anything if the emergency is dire enough." The Bushi'ites have extended that principle to include the sexual torture of children in order to coerce the parents into confessing terrorism-related crimes, or providing intelligence about the same.

(One imagines Posner protesting that characterization: "How is it `coercing' the parents in that scenario to be offering them more options? They can either confess or inform on their friends, rather than simply refusing to cooperate and thus enduring the anguished screams of their child as his testicles are crushed.")

Under the reign of an administration that claims the power to torture children in order to secure the cooperation of his parents, the use of actual or threatened child abduction to compel parents to surrender their parental rights is hardly a surprising development.

If there is something you value, or someone you love, the State's agents can and will use it, or him, as a hostage against you.

This is particularly true for those who are engaged in the singular adventure of raising a family. For parents, the endeavor is in many ways an unguided tour through the dismal landscape of their personal inadequacies -- a venture laden with those awkward and embarrassing displays of poor judgment and inexperience we can, with sufficient time and distance, recall as "learning experiences."

It's never too early for parents to learn that the State will seize their children on the basis of a single anonymous tip and blackmail them into admitting something as a price of getting them back.

A personal note...

My family just returned from a business trip to Los Angeles that turned into something of an unscheduled vacation: We took a tour of the Eastern Sierra mountains on the way home. Please excuse my lengthy absence, and be sure to check in for new essays over the weekend.

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Friday, June 13, 2008

Habeas Corpus and Bush-bot Bulimics

Swallowing that would hurt, at least twice: Stevie Starr is an illusionist who performs under the stage name "The Regurgitator." Here he prepares to swallow a billiard ball that will (apparently) return via a reciprocal route, which would be the (slightly) less painful alternative.

Thanks to the miracle of YouTube, Scottish illusionist Stevie Starr has been made known to hundreds of thousands of people once tragically ignorant of his existence.

Mr. Starr performs under the stage name "The Regurgitator," which lacks a certain subtlety but displays the virtue of candor: Nobody properly advised of the act has moral standing to protest if offended by the spectacle of someone swallowing and then disgorging large, unpleasant objects -- or at least appearing to.

A typical performance by Mr. Starr (who claims to have refined his gift for selective, on-demand regurgitation as a survival skill at an orphanage) might feature the performer swallowing, and then retrieving from his stomach, a light bulb, nails and coins of various sizes, live fish, and a billiard ball. His routine is embellished by sundry creative sound effects and a winsome line of patter intended to sell the audience on an act that depends on exceptionally cunning sleight of hand, tongue, and

It is important to recognize that Starr is not actually swallowing solid objects much too large to pass through his esophagus, nor does he have the ability to select items from his stomach and evacuate them at will: This is a trick. (If you can stand to, pause the video and play it back very slowly from 2:48-2:50 and you'll see that the billiard ball was stored inside his left cheek.)

Convincing as Starr's act may be, it is humanly impossible to swallow something so big, and regurgitate it on cue. Impossible, that is, to everyone other than devoted Republican apologists, who routinely ingest and throw up falsehoods so large and unpalatable that they would make Stevie Starr retch. And in their case, there's no illusion involved -- ample self-delusion, to be sure, but where Starr is harmlessly fooling people who paid to be fooled, Republican slogan-spewers are engaged in a deadly campaign of public deception -- beginning, in many cases, with themselves. I'll examine one heartrending case study of this condition below.

The most recent outbreak of mass ideological bulimia among Republican apologists was triggered by the June 12 Supreme Court decision
Boumediene v. U.S. (.pdf), which held that Congress had exceeded its constitutional authority by destroying the habeas corpus guarantee through the Military Commissions Act.

was the result of lawsuits filed on behalf of several men detained as "unlawful enemy combatants" at Guantanamo Bay. Counsel on their behalf contended that the Military Commissions Act (MCA) nullified the habeas corpus guarantee in a way not provided for in the "Suspension Clause"(Art. I, sec. 9, clause 2 of the Constitution); that provision allows Congress to suspend the writ of habeas corpus in the event of invasion or insurrection. Those challenging the MCA were involved in neither invasion nor insurrection; Congress has neither declared war nor suspended habeas corpus in constitutionally legitimate fashion. But the MCA was designed to prevent individuals designated "unlawful enemy combatants" by presidential decree from mounting judicial challenges to their detention. That would be true whether or not the person thus designated is a U.S. citizen.

Except for the right to armed self-defense, there is no guarantee of individual liberty more elemental than the habeas corpus guarantee. If the Chief Executive -- be he or she a monarch, dictator, or president -- can summarily imprison
anyone indefinitely without a trial or independent judicial review, then all of us are free only by the grace of our Dear Leader.

"The Framers viewed freedom from unlawful restraint as a fundamental precept of liberty, and they understood the writ of habeas corpus as a vital instrument to secure that freedom," wrote the majority in
Boumediene. They likewise note that "protection for the privilege of habeas corpus was one of the few safeguards of liberty specified in a Constitution that, at the outset, had no Bill of Rights." In the debate over the MCA, Pennsylvania Senator Arlen "Magic Bullet" Specter described the MCA, with its provisions eviscerating that foundational due process guarantee, as a measure that would "set back basic rights by some 900 years." He then voted for the measure.

This must be understood: The MCA was not a counter-terrorism measure. It was an instrument of a claim to absolute executive powers that can only be called dictatorial. This was understood by its supporters in Washington, if not by those who dutifully devoured the relevant soundbites and slavishly spewed on command in defense of Bush's dictatorial ambitions.

The Bush Regime insists that 1) Gitmo, located on Cuba, is outside U.S. jurisdiction, and thus not subject to constitutional due process guarantees; and 2) that foreign "enemy combatants" are not protected by the U.S. Constitution.
The Court dealt with the first objection by demonstrating that the Regime's denial of the Constitution's extra-territorial application was selective and self-serving, and that Gitmo -- a military base under essentially permanent lease to Washington, over which flies the federal flag -- is very much part of U.S. jurisdiction. In answering the second objection, the majority offered a detailed recap of the relevant history -- both in British and American law and practice -- to support its conclusion that "at common law a petitioner's status as an alien was not a categorical bar to habeas corpus relief."

Appeaser! Defeatist! Dhimmi! Thomas Jefferson pointed out that habeas corpus protects everyone within our government's claimed jurisdiction, citizen and alien alike.

Interesting and edifying though the majority's historical tour may have been (they drew comparisons, for instance, between Bush's claims and those of the tyrant Charles I, a theme explored in this space as well), they could have saved themselves some trouble by merely quoting that notorious appeaser and coddler of Islamic radicals, Thomas Jefferson.

It was Jefferson's understanding that the habeas corpus guarantee must apply to everyone wherever our government claims jurisdiction.
Habeas corpus, wrote Jefferson in 1798 (during an earlier war frenzy during which another despotic president was tearing great, gaping holes in the Bill of Rights), "secures the rights of every man here, alien or citizen, against everything which is not law, whatever shape it may assume." (Emphasis added.)

The issue was not the identity of the individual claiming the right, but rather the legitimacy of the government's act in depriving him of liberty. This is why Jefferson, in his first Inaugural Address, described habeas corpus as one of the "essential principles of our government."

The majority opinion in Boumediene repeatedly struck Jeffersonian notes in its demolition of the Bush Regime's claim that the president, in wartime or any time, has supreme, unqualified, and unaccountable power to imprison anyone at his discretion for as long as he sees fit. "The Framers' inherent distrust of governmental power was the driving force behind the constitutional plan that allocated powers among the independent branches," noted the majority decision. "This design serves not only to make Government accountable but also to secure individual liberty.... That the Framers considered the writ [of habeas corpus] a vital instrument for the protection of individual liberty is evident from the care taken to specify the limited grounds for its suspension...." (Like Jefferson, I would prefer that the Constitution not permit the writ to be suspended at any time.)

Anticipating objections that the Court was intruding on the exigent powers of a wartime presidency, and thereby undermining "national security," the majority offered an elegant reminder that true "security" in the American tradition begins with protecting the rights of the individual, rather than the supposed prerogatives of rulers:
"Security subsists, too, in fidelity to freedom's first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to to separation of powers..... Within the Constitution's separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person." So spoke the five-member "liberal" majority of the High Court.

"Don't ask me about that point of law; Jack Bauer hasn't yet shown us the way": Antonin Scalia, reality-challenged voice of neo-fascist "conservatism" on the Supreme Court.

To which the designated spokesthug for the four-member "conservative" minority, Antonin Scalia, replied, his voice thick with ignorance and glazed with contempt: "Yeah, but there are, like, weirdly dressed guys with beards tryin' to kill us and stuff, and have you forgotten 9-11?" Or words to that effect. At one point in his career, Scalia was regarded as a serious jurist with a taste for writing caustic dissents.

In recent years, he has apparently decided to abandon the
Federalist Papers and other original documents as a source of wisdom regarding constitutional questions, choosing instead to consult the wisdom of Jack Bauer regarding the legality of torture, and -- apparently -- Republican-aligned talk radio regarding the open-ended conflict with "Radical Islam."

As a result, Scalia didn't so much write his dissent as regurgitate it, thereby inviting second-generation agitprop bulimics (I'll turn to a suitable specimen of the same anon) to retail selected samples to those within their sphere of influence.
While Chief Justice Roberts wrote a separate dissent, it was written at a level of diction beyond the reach of the intended audience, for whom the statement "Muslims suck!" is a masterpiece of the polemical art.

Pancake makeup artfully applied to the forehead conceals the "vacancy" sign: Sean Hannity, whose unfortunate lack of higher cerebral functions gives him the ironic blessing of being zombie-proof.*

Scalia's dissent, on the other hand, was written in a key that the Hannity set could understand. It is a work of pugnacious sophistry, replete with rallying cries to the dead-ender Bu'uhists who still gather in their Mega-Church madrassas to feast on fear of the "Islamo-Fascists" and marinate in their untutored hatred of those who supposedly live for the sole purpose of hating us "for our freedom" -- while the government purportedly protecting us from the Mohammedan hordes destroys what remains of our liberties and prosperity.

"Today, for the first time in our Nation's history, the Court confers a constitutional right to habeas corpus on alien enemies detained abroad by our military forces in the course of an ongoing war," lied Scalia at the beginning of his dissent.

Every element of that statement is a conscious falsehood: The decision "confers" no right, but recognizes one long guaranteed by Anglo-Saxon law; those affected by the decision include civilians who have never taken up arms against the United States; and the base at Gitmo is as much United States territory as any embassy abroad.

Not content to leave wretched enough alone, Scalia emitted another pre-digested outburst that indicates his clerks have been researching his legal opinions by reading Republican-created chain e-mails (go
here for a representative sample): "America is at war with radical Islamists. The enemy began by killing Americans and American allies abroad: 241 at the Marine barracks in Lebanon, 19 at the Khobar Towers in Daran, 224 at our embassies in Dar es Salaam and Nairobi, and 17 on the USS Cole in Yemen.... On September 11, 2001, the enemy brought the battle to American soil...."

It goes on like this for some time, sentence after sentence of
sententious dicta intended to pre-empt rather than provoke critical thinking. (In reciting the history above, for example, Scalia could have usefully asked why Marines were stationed in Lebanon in 1983, or run the clock back to disastrous U.S. interventions in the Arab world beginning in the 1950s, were he possessed of a molecule of intellectual honesty.)

When he finally gets around to quoting "authorities," one of his first citations is to a brief co-written by John C. Yoo and William J. Haynes III, two of the chief architects of the Bush Regime's torture policies.
After countless paragraphs of adolescent trash-talking and tendentious history, Scalia concludes with another ready-for-Hannity harangue.

After lamenting that the decision will allegedly tie the hands of "our military commanders" on the battlefield, Scalia darkly intones: "The Nation will live to regret what the Court has done today."
Over to you, second-hand bulimics. Tragically typical of that cohort is Bryan Fischer of the Idaho Values Alliance, a man of short acquaintance for whom I have no small amount of respect.

Bryan Fischer of the Idaho Values Alliance: He's just as kindly as this picture would suggest.

In his organization's newsletter, Mr. Fischer -- who in this case was actually a third-hand bulimic, passing along twice-regurgitated soundbites by way of the demented and dishonest Hugh Hewitt -- literally picks up right where Scalia's gorge-casting left off. He refers to the Boumediene decision as an "incomprehensible" ruling "giving constitutional rights to terrorists who have never set foot on U.S. soil"; he recaps a handful of selected soundbites from Scalia and Roberts without so much as citing a syllable from the majority decision, which he apparently didn't deign to read.

In fact, Fischer displays no symptoms of first-hand familiarity with either the majority opinion, the concurring opinion, or the dissents; all he needs to "know" about the matter is what was pre-chewed on his behalf, and then shoved down his eager gullet, by apologists a little higher on the GOP's propaganda food chain.

Mr. Fischer, who yields to nobody in his concern over the distant and diffuse threat of "Islamo-Fascism," offers an unqualified endorsement of the real, immediate, and tangible practice of the all-American variety by way of brazen, dictatorial presidential lawlessness: "The ruling of the majority in this case has no constitutional, legal, rational, ethical or historical legitimacy and could and should properly be ignored by the Commander in Chief."

Once again, let this be understood: What Fischer is endorsing here is the notion that the president is, quite literally, our Living Constitution -- an individual whose word, will, and whim is law, not subject to checks and balances or the limits of any written charter of government. This is, in a precise and unmistakable sense, fascism.

Not surprisingly,
this appears to be the course the Bush Junta will follow; they will proceed with the military "trials" at Gitmo -- which have been denounced as "show trials" in the totalitarian tradition by Col. Morris Davis, the man once assigned to serve as chief prosecutor therein -- and then simply ignore the decision for the rest of term. Their transparent hope is that Bush the Bloody will be succeeded by John "War Without End" McCain, who denounced the Court's decision and would appoint judges determined to kill the Great Writ for good.

That outcome is much to be desired, insists Fischer, because to do otherwise would be to set back "the rule of law beyond my lifetime and perhaps forever."

By "rule of law," Mr. Fischer apparently means the unaccountable, illimitable rule of the "Commander-in-Chief" -- at least this particular one, whose relationship to Mr. Fischer is roughly that of Imam to disciple.
And in this Mr. Fischer is, once again, heartbreakingly representative of millions of genuinely decent Christian people who dutifully swallow any excuse for demolishing constitutional restraints on presidential power as long as the "right" politician is the immediate beneficiary. For such misguided souls, only the prospect of such powers falling into the "wrong" hands can trigger the long-dormant gag reflex.


*This diagnosis and observation comes courtesy of William Wallace Grigg, age 10.

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