21 January 2010

Who Gives What to Whom?

I read an article by Andrew McCarthy (may be restricted) in a recent issue of National Review where he takes Attorney General Eric Holder to task for bringing the 9/11 masterminds to New York for a jury trial. As is usually the case, Mr. McCarthy is tendentious and very fond of recalling that he worked on the first World Trade Center bombing case (I've yet to see a piece written by him that doesn't mention this in one way or another). Also he faults Mr. Holder for being overly political (!) in the AGs office.

I'm not going to address McCarthy's bromides against Holder, some of which have merit (the dropping of the investigation/prosecution of the Black Panthers harassing voters in Philadelphia is an embarrassment), others don't. But McCarthy repeats a meme I've heard over and over from all sorts of sources and political directions that I'd like to address. At one point he writes:

"In November, Holder announced what he insists is his own decision to vest
Khalid Sheikh Mohammed and four other jihadists with the constitutional rights
once enjoyed by Mark Bingham and the nearly 3,000 other Americans they

Again, let's leave aside the stridency of the statement and focus on, "to vest ... with constitutional rights."

Eric Holder can't give anyone constitutional rights. No one can. The constitution doesn't "give" rights to anyone, foreign or domestic, and the government that is established by the constitution and it's myriad bureaucrats and lackeys can do no such thing either. The constitution establishes, defines and limits our federal government. It separates three general functions of government into three co-equal branches and says what they are and can or can't do. Vaguely and with heaping doses of ambiguity to be sure, but that's really all it does. Now, the government doesn't give you, me or him the right to free speech or press or religion or guns, it merely specifies a few that the founders thought necessary to clarify. Otherwise it is understood then, as it should be now, that they set up a powerful but limited federal government saying that any powers not given to the government by the people herein are reserved to the states or the people.

You see, we are the sovereigns. The assumption should be, should always be, that we have all of the rights necessary to secure our life, liberty and pursuit of happiness. We are free to do whatever we damn well please so long as we don't harm another or his property and are willing to accept any and all consequences for our actions. And the laws that we are to obey, such as they are, are to be promulgated and enforced by the states unless there is compelling federal interest and constitutional authority for the feds to be involved at all. The feds establishing rules for ingress and naturalization of foreigners would be a prime example of legitimate federal authority (being run quite poorly at the time being, by the way, but legitimate nonetheless). The feds telling the states what the speed limit or legal definition of drunk driving, say, isn't.

How do we treat foreigners held by our government? Well that depends. Are they here and did they violate any of our laws? Well then the appropriate authorities should detain them until the penalty is served and then, if here illegally or with a visa, they should be tossed home. What about those picked up overseas? Now we get into some murky areas. Are they picked up in the theater of war? If so, then they should be held pursuant to military rules and customs and under the auspices of any binding treaties. What about nasty people like the guys the CIA picked up in Italy that may or may not have been thinking about doing nasty things to us? Well, they shouldn't do that. No agent of our government has any authority to detain anyone in the world not on sovereign soil (except in the theater or war exception above).

Would that put Americans more at risk? Who knows? The job our security and intelligence agencies have done over the last few decades has shown, if nothing else, that we've pissed away a whole bunch of money and haven't been any safer or more secure, just less free. There is also some implied risk in living in a free and just society (see David Foster Wallace here).

I just wanted to get that off my chest. So now you know. Anytime you hear about the US giving rights to anyone, you'll know I just got a little bit more aggravated. I hope you will, too.

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