Some Thoughts on Procedure

 

Courtesy of Memegenerator.net and JPB.

"Procedure" is a word that evokes banality. It is the stuff of bureaucracy and litigiousness. It's the word we use to describe colonoscopies in polite company. And, if my Twitter feed is any indication, it is the last refuge of political scoundrels trying to make a point.

But procedure is also the bulwark of rights in our judicial system. (ie, Due Process) Those in power must follow procedure to exercise that power in a way consistent with law and custom. Presidents, Congressmen, police officers, prosecutors, and bureaucrats all most follow procedure to maintain their legitimacy.

I happen to agree with many on the Left, and a few on the Right, that Obama's executive orders relating to immigration were within the laws and customs currently on the books. Whether those laws should have exceptions that one libertarian friend said "you could drive a truck through" is another story entirely, but that's the law Congress gave him to work with.

(dis?)Courtesy of the White House

The Right's sky-is-falling narrative is overblown and off-base, at least in this context. Their references to a King or Emperor skirting procedure would be laughable if not so tragic, given what most of them are conveniently ignoring.

Obama has not once, but twice unilaterally sent troops to fight in civil wars that pose no existential threat to the United States nor could be construed (with a straight face) to be in line with the AUMF --lest we understand the text to mean the Authorization to Unilaterally Murder Foreigners. (See also: the Kill List.)

But you see, it's much easier to rile up the Right's base by helping millions of brown people here at home than blowing up different brown people half-way across the globe.

Take a moment to process that.

bellum medicamenti delenda est

Are Justice and Vengeance Compatible?

As my Mood Music Monday made clear, as well as my several tweets after bin Laden's death was confirmed Sunday night, I'm glad he's dead. Not jubilant, not ecstatic, not giddy--just glad.

Like most Americans who were adults or close to it ten years ago, I immediately thought back what September 11, 2001 felt like...and how awful it was.

I worked nights and actually went to bed around 7 AM that morning, having just received a used computer from one of my cousins in California that weekend and been tooling around on it til I couldn't keep my eyes open. My then-girlfriend and I were asleep when it all went down and, as usual, we turned the phone off in our upstairs bedroom so that random phone calls wouldn't disturb us while we slept. She got up to walk the dog early that afternoon and said 'Heff left several messages on the answering machine. He said just turn on the television...any channel.'

So curious and confused, I groggily obliged and saw B-roll of one of the smoking towers. I started reading the scroll at the bottom of the page. I thought to myself "Oh, so a plane hit a skyscraper. That's sad, but hardly...OH MY GOD."

We sat in stunned shock as the news went through everything that they knew to that point. The rest of the afternoon is just a fog, really. I went in to my restaurant job to see my friends--it was my day off--and everything in town was eerily quiet on the way in. We talked a bit, and then I left to go home and try to wrap my head around all of it. I remember an enveloping dazed numbness--sort of like a concussion.

That night, my girlfriend and I went to her job--she was a bartender at the 'Townie' bar down the street from my job. It's your typical Midwestern bar--country music dominated the jukebox, regular karaoke nights similarly dominated by country songs; it was staffed by flirty, sassy women and patronized by restaurant workers and good ol' boys. While I'm sure other songs came on, all I remember is Lee Greenwood's "God Bless the USA" and Bruce Springsteen's anti-war classic "Born in the USA." People were singing and crying and just plain angry. There were several vets there that night as well as some guys who knew they were going to get a call very soon from their Reserve battalions. Others, I'm sure, signed up the next day. War--and much more death--was imminent.

So I stood at the end of the bar, talking to a lot of the old men standing around, and I heard racist invective that made the hair on the back of my neck stand up. I understand the rage and pain of that day--I felt it too--but mine was focused on the Taliban and al Qaeda, not Arabs generally. The hatred and contempt that so many felt made me fear for every Arab (and Arab-looking) person in America. They talked about the Muslims like animals--like vermin that had to be exterminated. The old men weren't talking genocide per se, but it was clear to them that Arabs and Muslims had to pay for what so very few of them believed and what just a handful of them did.

Don't get me wrong, I wanted it to rain unholy hell down upon Afghanistan. I wanted Chuck Norris Delta Force-style action where our guys swoop in and kill every 'bad guy' they see by any means necessary. Guns, knives, garrote, whatever. There was (apparently unrelated) fighting going on in Kabul that night, if I recall correctly, and we all watched hoping the explosions and small arms fire we saw were Americans going in and exacting righteous vengeance upon our enemies. It wasn't, but 'Death to the terrorists, dammit!'

But when I heard the words of the old men at the bar--and some of the younger ones too--I snapped out of the numb anger and thought "Oh, God. What is going to happen? How many are going to die?" I thought of our soldiers. I thought of Afghan civilians. And I feared so much for Arab Americans. I spoke up, briefly, countering with the absurdity of blaming white Christians for McVeigh and Nichols. Unsurprisingly, they were not persuaded.

Fast forward: Years later, a friend pointed out to me Glenn Beck's "9/12 Project"--to recapture the common cause and American unity that 9/11 had elicited. People tend to remember the touching photos, the crying embraces, and that New Yorkers actually acted like civilized people in public. (I kid.) Long forgotten by so many was the unfiltered hate and rage; that innocent people were yelled at, spit on, beaten up, and that their houses and mosques were damaged or defaced in the days following the attacks for acts that affected them as deeply as any other American. The vile, hateful bloodlust that sprang up in so many of us was like nothing I'd experienced before, nor would I like to feel again.

But when I heard the news Sunday night, I smiled and was happy that OBL was dead. My reaction was part relief,  part vengeance, and part justice. I was relieved that while terror will survive him, he personally will no longer be responsible; our national bogeyman is dead. The vengeance, I think, is just a natural albeit unpleasant side to me (and many other people). I don't think vengeance makes good policy, but neither will I deny the feeling when the two coincide. And yes, it was wholly justified to kill him, whether he put up a fight or not.

Now, you may ask, how is a committed libertarian, wary of state power and a proponent of due process, backing this? Because in this extraordinary case, post-mortem desire for incarceration and trial confuse procedure for justice.

Procedure is important when administering criminal law. Procedure is important when determining guilt or innocence, or severity of punishment. Procedure, as used in the Nuremberg trials--which, I think were important despite their many flaws--is important when trying to rebuild a nation state and separate the punishment of criminals from perceived retribution upon an entire citizenry. Procedure is important to keep the enforcers of policy in check: for all those held in Guantanamo, Bagram, and whatever black sites the CIA still have running, and I will continue to call for that. But let's not pretend that putting OBL in a courtroom in order to show all of his videos inciting death to America and claiming responsibility for murders, financing terror here and around the world, and organizing the training of murderers--to all of which there is no substantive contested fact from any quarter--would amount in "more" justice than he got on Sunday.

I am not swayed by the arguments that his capture and trial would be too dangerous for American courts. I surely would not be against a trial, had it worked out that way--but he was a figurehead and titular leader of a terrorist organization and, as such, is a legitimate military target. That the government used a SEAL team instead of a cruise missile--sparing the lives of 17 others or so who were in his compound--is hardly a miscarriage of justice.

Does this mean that others should get similar treatment? Not really. OBL was a titular figure of the highest order, unambiguously guilty of acts and war and terror against the United States, and a strategic target. On the other hand, Anwar al-Awlaki should be taken alive, if at all possible, to guarantee his due process rights, no matter how despicable he is. The breadth of his crimes are not widely known--indeed, they are classified--and his citizenship is a legal protection that must be respected until or unless he resists capture in a manner that imminently threatens the life of his would-be captors or others. That the administration has marked him for death by saying, essentially, "trust us, he's a bad guy" is not remotely satisfactory to subvert his constitutional rights.

So yes, I'm glad Osama bin Laden is dead--as a policy and personal matter. I don't think it's cause to "celebrate"--indeed, a very serious reassessment of our policy, both our presence in Afghanistan and our support of Pakistan should be in the forefront of our minds--but neither do I think it's appropriate to complain about some fictional justice for OBL lost. He is dead, and that is not a bad thing. It was vengeance. And it was justice.


bellum medicamenti delenda est

Perhaps the Most Preposterous Thought Ever Printed in the New York Times

And that is saying something.

But, without further ado, I present to you the unfathomable Thomas Friedman:

There is only one thing worse than one-party autocracy, and that is one-party democracy, which is what we have in America today.

One-party autocracy certainly has its drawbacks. But when it is led by a reasonably enlightened group of people, as China is today, it can also have great advantages.That one party can just impose the politically difficult but critically important policies needed to move a society forward in the 21st century. It is not an accident that China is committed to overtaking us in electric cars, solar power, energy efficiency, batteries, nuclear power and wind power. China's leaders understand that in a world of exploding populations and rising emerging-market middle classes, demand for clean power and energy efficiency is going to soar. Beijing wants to make sure that it owns that industry and is ordering the policies to do that, including boosting gasoline prices, from the top down...Our one-party democracy is worse.

For some reason, when I think of China and green automobiles, I think of this:


'Benevolent' dictatorship/autocracy beats the deliberative process of democratic republics because, dammit, those people can get things done!

Just don't look at the man behind the curtain jailing, censoring, beating, and executing untold numbers of dissenters, choking-off less desirable political content on the internet, forcing abortions on families, and only allowing markets to flourish in certain geographic locations while so many people still live in the countryside without basic amenities those contemptible and inefficient free nations have had for, oh, about 100 years.

There aren't words in our language strong enough to describe the abject imbecility of this column.

H/T: John Tabin and Matt Welch

more on this by Will Wilkinson and Kenneth Anderson.

'By Any Means Necessary' Does NOT Apply to Prosecutions

Some disturbing news I just read in WaPo:

RICHMOND, Va. (AP) -- Lawyers for sniper mastermind John Allen Muhammad are asking a federal appeals court in Virginia to toss out his conviction and death sentence.

...

On appeal, Muhammad claims prosecutors withheld crucial evidence. He also alleges errors by his court-appointed attorneys and the trial judge.

I'm less concerned with the errors by his attorneys and, from the cases I've read, judges are loath to overturn judges on procedural grounds in all but the most egregious cases. Prosecutorial misconduct, however, is in the news right now thanks to the nitwits who botched Sen. Ted Stevens' case.

I'm not familiar with the Muhammad/Malvo proceedings, but hopefully charges from other murders can be pursued if he gets off. That said, he should be freed (on this charge) if his allegations are true.

Without the spectre of convictions being overturned for violating defendants' rights, prosecutors have little incentive to abide by the rules.

John Allen Muhammad deserves to die, but only after being convicted at a fair trial. To many, this distinction may seem unimportant or even insulting, but the rights of defendants--even guilty ones--must be respected. Proper prosecutorial procedure is essential to a fair criminal justice system.

"Way, Way" Jurisprudence

No arrest. No charges. No money.:

FORT WAYNE--Going 62 in a 50-mph zone, a Jeep barreled west on a slippery, snow-covered Airport Expressway on Valentine’s Day and blew past an Allen County sheriff’s squad car.

One traffic stop later, two men inside the Jeep were outside being patted down by officers. They acted nervous, according to a police report. At one point they looked as if they wanted to fight; at another they looked as if they wanted to flee.

In the Jeep’s back seat, police found more than $26,000 in cash wrapped in a stocking cap.

Though officers held the two men for a short time in squad cars, they were eventually released without charges, save for the driver receiving a citation for driving with a suspended license.

And the money? The police kept it.

Yep. Whole thing. All of it. Legalized theft.

“If it’s way, way over and above what a normal person will carry, and if things don’t add up (on how it was acquired), we take the money,” said Lt. Art Barile, head of the sheriff department’s vice and narcotics unit and the Allen County Drug Task Force, a multiagency unit run out of the sheriff’s department.

How often money is confiscated from people not charged with crimes is hard to determine, Barile said, but his best guess for his department is that it happens “maybe 10 percent of the time” his department performs a seizure.(emphasis mine)

Now what would make a police outfit do something like that?

Most of the money seized comes from drug cases and can then be used by various law enforcement agencies.

Which, invariably, leads to this:

And at least one local agency, the Allen County Prosecutor’s Office, has taken a more aggressive approach in forfeiture cases, with the amount of money in its state seizure fund growing from more than $53,000 in 2004 to more than $105,000 in 2008, according to Allen County’s Chief Deputy Prosecutor Michael McAlexander.

Where have you gone, 5th Amendment?

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or PROPERTY, without due process of law; nor shall private property be taken for public use, without just compensation.

Because it's "way, way" more than a normal person would carry should not pass the laugh test as substantive or procedural due process. But, when police funding is on the line, all bets are off.

H/T The Agitator