Posts tagged ‘Great Britain’

The New Gold Standard in Zero-Tolerance Insanity

From Great Britain, which really seems to be losing its mind of late, via Daniel Mitchell of Cato

A former soldier who handed a discarded shotgun in to police faces at least five years imprisonment for "doing his duty". Paul Clarke, 27, was found guilty of possessing a firearm at Guildford Crown Court on Tuesday "“ after finding the gun and handing it personally to police officers on March 20 this year. The jury took 20 minutes to make its conviction, and Mr Clarke now faces a minimum of five year's imprisonment for handing in the weapon. In a statement read out in court, Mr Clarke said: "I didn't think for one moment I would be arrested."

"¦ The court heard how Mr Clarke was on the balcony of his home in Nailsworth Crescent, Merstham, when he spotted a black bin liner at the bottom of his garden. In his statement, he said: "I took it indoors and inside found a shorn-off shotgun and two cartridges. "I didn't know what to do, so the next morning I rang the Chief Superintendent, Adrian Harper, and asked if I could pop in and see him. "At the police station, I took the gun out of the bag and placed it on the table so it was pointing towards the wall." Mr Clarke was then arrested immediately for possession of a firearm at Reigate police station, and taken to the cells.

"¦ Prosecuting, Brian Stalk, explained to the jury that possession of a firearm was a "strict liability" charge "“ therefore Mr Clarke's allegedly honest intent was irrelevant. Just by having the gun in his possession he was guilty of the charge, and has no defence in law against it, he added.

"¦ Judge Christopher Critchlow said: "This is an unusual case, but in law there is no dispute that Mr Clarke has no defence to this charge. "The intention of anybody possessing a firearm is irrelevant."

Can I Get My Copy of this Contract

Apparently I have entered into a contract, which keeps getting amended, but no one ever sends me a copy or asks for my signature.

I heard an angry town-hall participant in Texas claim health insurance was not a right. If you could not pay for it, you should not have it. That's neither realistic nor desirable. Everyone requires certain goods and services, such as food and shelter. There exists an implicit social contract that people who cannot afford these goods will get them from the state.

The last time I understood that we entered into a social contract was in the late 18th century, when we exited our old relationship with Great Britain and entered a new one defined by the Constitution.  But I am pretty sure that government provision of food, shelter, and health care were not in this contract.

Then, in the 1930s, we were told"food" is in the contract.  Then, in the 1960's, we were told "shelter" is on the list.  Now apparently health care is on the list.  Can someone send me a copy of this contract, so I can know what else is on it?

Isn't it ironic that the only "contract" the Left respects is the kind that I don't sign, don't consent to, and don't enter of my own free will?   Of course, a contract that one party doesn't consent to and only enters into by force is not a contract at all.  As Wikipedia puts it for the definition of a contract, "Agreement [to a contract] is said to be reached when an offer capable of immediate acceptance is met with a 'mirror image' acceptance (ie, an unqualified acceptance)."

Civil Liberties in Britain

I am always ready to criticize the US and our steady slide into police state tactics against our own citizens.  But I think that those who have some rosy picture of European countries being some sort of civil liberties ideal towards which we should aspire are mis-informed.  Granted that a number of these countries have more sensible attitudes both towards drugs as well as sexual relationships that don't fit a biblical script, but their state police forces have powers over their citizenry we (at least not yet) don't tolerate.

Today's object lesson is Britain:

For the past couple of years the British government has been extremely aggressive in installing surveillance cameras "” CCTV on high streets, speeding cameras on highways, and so on. If you are a typical British citizen, your actions are captured on camera hundreds of times a day, and you can be watched with suspicion even without the government having any probable cause reason to suspect you of anything. Relatedly, they have also been challenging people taking pictures in public, and have recently essentially made it illegal to take pictures of police officers (with the justification being the possibility of terrorist abduction of officers). The erosion of civil liberties in Britain has been short and sharp.

Now some local authorities are witholding liquor licences from pub owners unless they agree to install CCTV inside the pub. One striking recent example is The Draper's Arms in Islington, a borough of London. As the Londonist notes:

Nick Gibson is attempting to re-open The Draper's Arms on Barnsbury Street, a former Evening Standard pub of the year winner that shut its doors last August. But to regain a licence, he's been told he must fit CCTV cameras that capture the head and shoulders of everyone entering the pub, and be willing to hand over footage whenever the police ask for it.

Gibson is furious at what he sees as erosion of civil liberties. However, his local MP and the Metropolitan Police keep blithely citing "Ëœpublic safety'. We find that a bit rich, considering studies have shown CCTV is less effective than increased street lighting at cutting crime, and CCTV footage is used to help solve just 3% of London robberies.

Neptunists and the Vulcanists

I like reading about the history of science, and one of its more famous chapters is the debate between the Neptunists and the Vulcanists in early 19th century Great Britain.  At the risk of oversimplifying, the debate was over whether the earth's features (and life on it) were formed slowly over long periods, or relatively quickly through catastrophes.  Secondarily, it was about heat and fire vs. water as forces shaping the Earth (thus the names).  Eventually a consensus  (an actual consensus, not a declared one) developed that they were both right in some ways and both wrong in others. 

What struck me reading about this again over the weekend was that it took decades, and sometimes centuries, for this to sort out.  Take the part of this debate over extinction.  The initial consensus was that extinction was due to catastrophes, ala the Biblical flood.  Then Darwin came along and shifted the consensus away from catastrophes, showing that extinctions occurred in the normal order of species action-reaction to threats and opportunities.  And then in the 20th century, revisiting the K-T geologic layer we have come around to dinosaur extinction being catastrophic as a result of a big meteor.  Except nowadays there are scientists who think this is too simplistic.  Geology, in turn, made it all the way until the 1960's before anyone was even talking about plate tectonics, something that was still being derided in the 1970's but is fundamental to our understanding of numerous aspects of the earth today.

And so it goes in normal scientific inquiry.   Scientists expect it to take decades and generations to really shake out new theories and areas of inquiry.  Sometimes, as with Newton's laws of motion, we still accept the theory, though even here we have tweaked at the edges (e.g. relativity when things are moving fast) and exempted certain regions (e.g. quantum mechanics and the very small).  Other times, we have thrown theories that were cherished for decades completely away (e.g phlogistan).   After decades of work, string theory in physics could easily be thrown out completely and looked upon as the 20th century's phlogistan, or it could really be the theory of everything Einstein searched for in vain.

Which is all fine and expected, except when governments are standing by to make trillion-dollar choices, as they are in global warming, a scientific body of inquiry that is barely 20 years old.  Go back to any new scientific theory in its first 20-years, and think about the governments of the world betting the entire global economy on scientific understanding of that theory at that point in time.  It's pretty scary.  We'd probably have a 5-trillion dollar government controlled medical leach industry.

More on Surveillance & Detention

I've gotten mail and comments on some of my surveillance- and detention-related posts, particularly this one here, that boil down to "but warrant-less national security eavesdropping is legal". John Hinderaker at Powerline makes this argument fairly compellingly.  To which I can answer, fine, but whether it is narrowly legal or illegal is a topic for partisan blogs who want to score points for or against Bush.  As one of those weird libertarian guys, my intention was to stand aside from the question of legality and instead pose the question of "yes, but is it right?"

Foreigners are People Too

It is interesting that I have to make this point more and more nowadays: Foreignors are human beings too.  For example, this idea that non-US citizens have (or should have) the same rights we do was one I highlighted in my defense of open immigration:

The individual rights we hold dear are our rights as human beings, NOT
as citizens.  They flow from our very existence, not from our
government. As human beings, we have the right to assemble with
whomever we want and to speak our minds.  We have the right to live
free of force or physical coercion from other men.  We have the right
to make mutually beneficial arrangements with other men, arrangements
that might involve exchanging goods, purchasing shelter, or paying
another man an agreed upon rate for his work.  We have these rights and
more in nature, and have therefore chosen to form governments not to be
the source of these rights (for they already existed in advance of
governments) but to provide protection of these rights against other
men who might try to violate these rights through force or fraud

Speech, commerce, property, association, and yes, privacy -- these are all rights we have as human beings, so that the fact of citizenship in the US should not have any bearing on whether our government should respect these rights (except in the case of war, which we get into in a while).

These issues are oh-so-much clearer when we flip our perspective.  For Americans reading this, ask yourself:

  • Does the government of Great Britain (or Russia, or Iran) have the right to wiretap your phone calls at will without warrant or review just because you are not a citizen of their country?
  • Does the government of Great Britain (or Russia, or Iran) have the right to detain you indefinitely without access to a lawyer or embassy if a powerful person in their government declares you an enemy combatant?

If you answered "yes", then recognize that the 1979 capture of the US embassy staff in Iran was probably legal by your rules, as was nearly every other detention of American citizens by another country.  If you answered "no", then you need to be worried about what the US is doing in the name of national security, for certainly both Bush and Clinton, among others, claim(ed) these rights.  And if you answered "no" for all other countries but "yes" for us, presumably because you trust our guys but not theirs, I will admit you have some historical precedent, since the US for all its faults has generally acted more honorably than 99% of the other nations of the world over the last 100 years.  But you do need to think about the meaning of the rule of law, and why its always a bad idea to give good men power that you don't want bad men to have.

By saying this, I realize that am I not only out of step with the US appellate courts (as Hinderaker points out) and with the Supreme Court (at least on the detention issue, since they haven't ruled on the warrant-less search powers) but also perhaps with the founding fathers.  While most of the folks who wrote the Constitution understood the notion of rights that are derived from nature rather than from the state, the Constitution is mute on the laws of the US vis a vis foreign citizens (excepts where it comes to war).  It is interesting to note that the Bill of Rights doesn't make any distinctions between citizens and non-citizens - there is nothing, for example, that modifies the prescriptions of the fourth amendment to apply only to searches of US citizens.  One could easily interpret the Bill of Rights as proscribing the actions of the US government against any person of any nationality.  Anyway, if I am in conflict with the founding fathers, so be it -- the Constitution is a fabulous document as totally ahead of its time as would be having 19th century India put a man on the moon, but it was not perfect.

The Magic Words: National Security

You may notice that defenders of these presidential powers tend to play a little verbal slight of hand (in addition to the one discussed here):  They translate the president's powers as CinC to mean "carte blanch for national security issues".  You hear this slight-of-hand so often, one starts to think its written that way in the Constitution, so it is probably good to remind ourselves what that document actually says:

The President shall be commander in chief of the Army and Navy of the
United States, and of the militia of the several states, when called
into the actual service of the United States

That's it.  The president can give orders to the military  -- whether that means he can do anything he wants in the name of national security is a whole other issue.  Folks also seem to want to argue that this CinC power cannot be modified or limited in any way, but that's silly.  The third amendment is aimed solely at the limiting the power of the military.   And certainly the folks who first adopted the constitution and the Bill of Rights believed that the 4th amendment applied to the military as well.  In fact, they would have said especially the military.

The Right Way to do Searches

Here is how we have generally interpreted the 4th amendment:  The legislative branch sets the ground rules, as followed by the Administration.  The administrations selection of targets is reviewed by the Judiciary (warrants) and is also subject to later review at trial (via the admissibility of evidence).  What we try to avoid is allowing the same person to set the rules, choose the target, and perform the surveillance, all in secret and without outside review.  The problems with the NSA wiretapping program is not that it is wrong per se, but that it may violate this process.  The administration is claiming the right to choose the target and perform the surveillance under the own rules and in secret with no possibility of review.   

Declaration of War Needs to Mean Something Again

If there is any part of the constitution that has really gone by the wayside in the last 50 years it is the provisions around declaration of war.  Over the past decades, president's have claimed the power to move forces into action, not just defensively but offensively, without a Congressional declaration of war.  And Hinderaker sees the declaration of war, or the Authorization to Use Military Force
(AUMF) as irrelevant to the legality of warrant-less national security
searches.  He is arguing that the President in his CinC power may search without warrant if it is substantially to fight an enemy.  And, absent an AUMF or a declaration of war, who decides if a group or nation or person is an enemy?  why, the President does.  And, who determines if a surveillance is necessary to fight this enemy? Why, yes, the President does as well.  And who reviews these decisions to make sure the President hasn't chosen to search or wiretap, under the pretext of national security, communists in Hollywood, Martin Luther King, or a self-generated "enemies list" -- no one, I mean, no Administration official in this country would ever do those things, would they?

I have increasingly come to the belief that the AUMF, or declaration of war, is supposed to mean something. (I am not a Constitutional scholar, and don't want to hear about how I don't understand such and such precedent* -- this is my own interpretation).  If one goes back to my first argument above, that all people, not just citizens, are constitutionally protected from our government searching or detaining them without warrant, then the declaration of war is that formal step that is necessary to free the CinC from these restrictions vis a vis a certain named and defined enemy.  The declaration of war, or AUMF, is effectively then the mass warrant, that gives the president the right in his role as CinC to attack those folks with our troops and detain them and spy on them, etc.  And even then, this is not without limit, since none of us are very happy with the Japanese detention precedent in WWII.  This view of the declaration of war is more consistent with the original notion of separation of powers than is the "administration can do anything to protect national security" view.  It allows the President pretty free reign to fight an enemy, including the types of tactics under dispute, but only after the body the founders considered the most sober had approved the war and the enemy (by sober I mean as envisioned by the founding fathers, and not as demonstrated in recent supreme court nomination hearings).

This obviously makes a declaration of war a BIG DEAL, which it should be, rather than just a set piece vote ratifying what the president seems hellbent to do anyway or a statement of moral support, along the lines of a "we support the troops" resolution.  It means that the Congress, god forbid, actually needs to treat the vote with some responsibility and understand the implications of what they are voting for, or else modify the AUMF or articles of war with specific limitations of scope.  And it means Congress needs to think twice and maybe three times before authorizing war against something as nebulous as "A Qaeda" or "terrorism".  And it means that GWB probably is doing nothing illegal, at least in the programs as discovered, but it doesn't mean that the courts or Congress can't change that in the future.

* Constitutional scholars live and die by the great god "precedent", and certainly the legal system would be thrown into disarray if court decisions did not provide precedents for later decisions.  All predictability in the system would vanish.  However, it is more than OK from time to time to go back to the original words of the Constitution to see if the march of serial precedent has somehow taken us off course.  I often liken this to a copier machine.  If you take a plain piece of paper, and copy it, and then copy the copy, and then copy that copy, etc. through twenty or thirty generations, you will end up with a paper that is supposed to be a copy of the original, but in fact is covered with spots and other artifacts that were not on the original.  A series of court precedents can also create such artifacts that can only really be identified not from looking at the last precedent it was built on, but going all the way back to the original Constitution.