Law

Said The Red Queen

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by Gary Farber

First, we don't kill all the lawyers.  

Let's continue the examination of the lawfulness of the killings of American citizens Anwar al-Awlaki and Samir Khan I began in my post, Off With Their Heads!

(That various other non-citizens, including Muhammad Salme al-Naaj and Abdul-Rahman bin Arfaj, and another several Yemenis, were killed is another debate, but they should not be forgotten, either.)

Consider the justifications presented for these killings:

#1: Did they commit "treason"?  Possibly so!  

Sticking point: the U.S. Constitution says very clearly:  

Section 3 - Treason 

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

It's almost as if the drafters of the Constitution considered this!  

Our Constitution specifically defines "treason" and the only way someone can be convicted of it.  As You Know, Bob (everyone), the U.S. Constitution is superior to U.S. laws, which can't violate the Constitution.  So al-Awlaki and Khan can't have been put to death because they committed "treason."  

The President has taken an oath to uphold the Constitution.

#2: It was justified to kill them because of their propaganda and speech.  

Unfortunately for this argument, the Constitution also rules it out with the little-known, obscure, First Amendment freedom of speech. 

Let's move on to more serious arguments.

But first let's jump to the White House presenting its official response as press secretary Jay Carney explains, and is questioned by Jake Tapper (!) of ABC News: 


video platformvideo managementvideo solutionsvideo player
 

Some quotes: 

TAPPER: You said that al-Awlaki was “demonstrably and provably involved” in operations. Do you plan on demonstrating or proving –

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Off With Their Heads!

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by Gary Farber

I say we just kill all accused murderers from now on.

Think of the money saved, the deficit, and, of course, the children.

Now that we've established that the courts and Constitution don't matter, let's just jail all the accused criminals, too. Why lose sleep? They're murderers and criminals! The state says so. 

All Presidents need the power to assassinate people simply because they say so. What could go wrong? 

This matters not.

Amendment 5 – Trial and Punishment, Compensation for Takings.

Ratified 12/15/1791.

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 offense 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.

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You Have The Right To Freeze And Be Utterly Silent

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by Gary Farber

The Fourth Amendment continues to be onion-peeled into nothingness.  KENTUCKY v. KING puts another nail in the coffin as police gain the right to kick in your door simply because they hear movement within your dwelling.

Obviously that's probable cause, because noise indicates a crime. 

Does that make sense to you?  It does to 8 out of 9 members of the Supreme Court.

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, THOMAS, BREYER, SOTOMAYOR,  and KAGAN,  JJ., joined. GINSBURG, J., filed a dissenting opinion.

Here's the gist: 

[…] 

Justice Samuel A. Alito Jr., writing for the majority, said police officers do not violate the Fourth Amendment’s ban on unreasonable searches by kicking down a door after the occupants of an apartment react to hearing that officers are there by seeming to destroy evidence.

In dissent, Justice Ruth Bader Ginsburg wrote that the majority had handed the police an important new tool.

“The court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases,” Justice Ginsburg wrote. “In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, never mind that they had ample time to obtain a warrant.”

The case, Kentucky v. King, No. 09-1272, arose from a mistake. After seeing a drug deal in a parking lot, police officers in Lexington, Ky., rushed into an apartment complex looking for a suspect who had sold cocaine to an informant.

But the smell of burning marijuana led them to the wrong apartment. After knocking and announcing themselves, they heard sounds from inside the apartment that they said made them fear that evidence was being destroyed. They kicked the door in and found marijuana and cocaine but not the original suspect, who was in a different apartment.

The Kentucky Supreme Court suppressed the evidence, saying that any risk of drugs being destroyed was the result of the decision by the police to knock and announce themselves rather than obtain a warrant.

The United States Supreme Court reversed that decision on Monday, saying the police had acted lawfully and that was all that mattered. The defendant, Hollis D. King, had choices other than destroying evidence, Justice Alito wrote.

He could have chosen not to respond to the knocking in any fashion, Justice Alito wrote. Or he could have come to the door and declined to let the officers enter without a warrant.

“Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame,” Justice Alito wrote. 

Right.  Let's get more detail.

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at night we ride through mansions of glory in suicide machines

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by fiddler

Sen. Kirsten Gillibrand (D-NY) is taking aim at the single biggest killer of teenagers — car crashes. For the second year she’s sponsoring a bill to require all states to make 18 the minimum age for an unrestricted driver’s license. At this point only a few states and DC keep teen drivers from unrestricted licenses until age 18; the others are divided between 16 and 17-1/2. States that let a driver have an unrestricted license at 18, according to the Governors Highway Safety Association, include Arkansas, Florida, Georgia, Maryland, Missouri, New Jersey and Virginia. Connecticut, Illinois, Massachusetts and Ohio requires drivers to be 18 to drive at night. The article above, from Congress.org, said 12 states plus DC, which means they’re including Pennsylvania. In Pennsylvania, when young drivers turns 18 their licenses automatically become unrestricted; otherwise, restrictions are removed after a year of driving without a crash or conviction if the driver has completed a driver’s education course.

There are good statistical, practical reasons for this change. ‘Motor Vehicle Traffic’ accounts for 39.98 percent of fatalities for people age 16-19, according to the National Center for Health Statistics.

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do as I say, not as I do

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by fiddler

(not an April Fool’s post, despite the date)

Richard A. Clarke, former counter-terrorism czar for both the Clinton and Bush administrations, had some strong words about the US Chamber of Commerce’s aborted plans for discrediting its critics, which included spying on families, using malware to steal information, faking documents to embarrass its liberal opponents, and creating and using ‘sock puppet’ personas to infiltrate their targets.*

Clarke said of the US Chamber’s plans to hack, impersonate, spy upon and steal from its perceived opponents:

“I think it’s a violation of 10USC. I think it’s a felony, and I think they should go to jail. You call them a large trade association, I call them a large political action group that took foreign money in the last election. But be that as it may, if you in the United States, if any American citizen anywhere in the world, because this is an extraterritorial law, so don’t think you can go to Bermuda and do it, if any American citizen anywhere in the world engages in unauthorized penetration, or identity theft, accessing a number through identity theft purposes, that’s a felony and if the Chamber of Commerce wants to try that, that’s fine with me because the FBI will be on their doorstep in a matter of hours.”

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Their urge to betray – and ours

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WRITTEN BY Thomas Nephew, of Newsrack, NOT BY Gary Farber

Until recently, Peter Benjamin was the chairman of the Washington, D.C. area Metro transit system's Board of Directors. A former mayor of Garrett Park, he brought an avuncular personality and long experience with Metro affairs to the table. While in correspondence with us about the bag search issue I've written about before, he dismissed some of our assertions about the program's drawbacks — for example, he didn't believe it would cause much decline in ridership. But he seemed to take seriously the civil liberties issues involved.

Still, sometimes I think if I had a dollar for every time I've heard or read "I'm a supporter of the ACLU, but…" I could afford the richer, more refined lifestyle I truly deserve.


 

And sure enough, when push came to shove at a February 10 discussion of the bag search issue, Mr. Benjamin delivered what may be the new low standard in that genre. Beginning with the heart-sinking words "I am a long term member of the American Civil Liberties Union. Many of my friends consider me a civil liberties nut," Benjamin was giving the lie to those words within roughly twenty seconds. Even though asserting that the rights we have as citizens are "why we are the great country that we are" and personally believing that "bag checks are a violation of those rights, and …the beginning of a process that moves towards us having fewer and fewer and fewer of those rights," Mr. Benjamin continued:

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till the landslide brings it down

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by fiddler

Following up on previous posts (here, here, here, here, and here):

HBGary Federal, Team Themis, Hunton & Williams and the US Chamber of Commerce:

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Self-Evident

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Guest post by Amezuki, not by Gary Farber

You all know me by a different pseudonym, and I'll reintroduce myself properly later.

But in the meantime, a word from our Founders:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.

The Declaration of Independence stands, in my mind, as one of the greatest political documents in history.

Like our Constitution, it stands on the shoulders of many other exalted works, and my opinion is not in any way intended to denigrate those works–but what makes it stand out in my mind is not just the role it had in the birth of our nation, but in the simple, unequivocal and straightforward statements of first principles it contains.

Foremost among these is the well-known passage I quoted above. Its evocative power was such that Martin Luther King, one of the most eloquent speakers and users of language our nation has known, had no need to embellish it further when quoting it, save to correctly note that it was a promise our country had yet to fully honor. "All men are created equal."

Think about that for a moment. All men. You will notice a distinct lack of footnotes, equivocation, qualifications or exceptions to the word "all".

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how do you like living in Omelas?

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by fiddler

Despite eastern Virginia’s steamy summers, the temperature can drop close to or below freezing at night in late fall, winter and spring. Concrete is not a good insulator against the chill in the ground, or in the air. And in a concrete cell in the brig at the Marine base in Quantico, VA, US Army Pfc. Bradley Manning is being forced to go without clothing for hours at a time, including sleeping at night and for inspections.

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Metro’s random bag searches (I)

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by Guest/incoming-front-pager Thomas Nephew

(I): Taborn's bombshell:

In mid-December, the Washington Metropolitan Area Transit Authority, or WMATA — better known as "Metro" — and its police force announced a new random bag search policy:

…police will randomly select bags or packages to check for hazardous materials using ionization technology as well as K-9 units trained to detect explosive materials. Carry on items will generally not be opened and physically inspected unless the equipment indicates a need for further inspection.

The randomness of the program is implemented by choosing some secret number N for each site and date, and selecting every Nth person with a bag. As described, the policy allows people approaching a station to decide to refuse the screening — they just can't then bring their bags with them:

Anyone who is randomly selected and refuses to submit their carry-on items for inspection will be prohibited from bringing those items into the station. Customers who encounter a baggage checkpoint at a station entrance may choose not to enter the station if they would prefer not to submit their carry-ons for inspection.

Opponents of the policy (including myself) deemed the policy unconstitutional, ineffective, and misguided — security theater that demands public acceptance of routine, suspicionless, unaudited (and therefore possibly profiling-based) searches for zero security in return.

Thanks in part to a good deal of mobilizing by opponents — including an online petition and an evening of nearly unanimous public opposition — WMATA's "Riders Advisory Council" (RAC), the institutional voice of Metro users, overwhelmingly passed a resolution in early January calling on the Board to halt the program, and require their police department to consider alternatives in consultation with civil liberties advocates.

Be observed… be watched As welcome as the 15-1-1 RAC vote was on January 5th, the real news may have happened earlier in the same meeting.

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