New Constitution?

by Gerard Emershaw

“You say you'll change the constitution
Well, you know
We all want to change your head”

Lennon/McCartney

“I'll tip my hat to the new constitution
Take a bow for the new revolution
Smile and grin at the change all around”

Townshend

Retired Supreme Court Justice John Paul Stevens wants to amend the Constitution. Among the tweaks to “the law of the land” that the elderly jurist wishes to make are major changes to the First and Second amendments. In his latest book Six Amendments: How and Why We Should Change the Constitution, Justice Stevens argues for the following amendments to the Constitution. He wants the First Amendment to remove protection against “reasonable” campaign spending limits at both the federal and state levels. He wants the Second Amendment to be rewritten to state that only members of the state militia have the right to bear arms. He wants an amendment to prohibit political gerrymandering to create “safe” Congressional seats. He wants to eliminate the anti-commandeering rule by which the federal government may not force the states to carry out federal government activities. He wants to eliminate sovereign immunity for violations of constitutional rights. He wants to amend the Eighth Amendment to state that the death penalty is “cruel and unusual punishment.”

In general, Justice Stevens’ suggestions would lead to fewer rather than greater rights. Americans would have their natural rights greatly diminished by his suggested changes to the First and Second Amendments. Campaign finance contribution limits are unnecessary and violate the natural right to free speech. The natural right to bear arms is a necessary safeguard against tyranny which cannot be infringed without inviting inevitable totalitarianism. States would come dangerously close to becoming slaves of the federal government if the anti-commandeering rule were eliminated. Eliminating sovereign immunity is a good idea, but it ought to be unnecessary since that concept is not enumerated within the Constitution. Limiting the use of political gerrymandering would be a good idea, but certainly not at the cost of the other rights that Justice Stevens wishes to eliminate. Furthermore, a Constitution-sized government is one in which political parties would have less reason to gerrymander, and the gerrymandering they did do would have less of a practical effect. Stevens is also likely correct about wishing for Eighth Amendment clarification. The government should not have more rights than the people. If a citizen can only kill in the defense of self or others from imminent harm, then the same is true of the government. Therefore, capital punishment should be eliminated.

Many individuals all over the political spectrum have suggested that the United States ought to have a new Constitutional Convention. The question is whether this would be an improvement. Would this be likely to lead to more rights being protected or fewer? Activists of all stripes would bitterly contest one another in the crafting of a new constitution. Would civil libertarians be able to win the day or would statists? Any compromise concerning natural rights is unacceptable. If civil libertarians wish Americans to be completely free while statists wish Americans to be complete slaves of the state, how would a compromise in which Americans wind up being merely half enslaved by the state be a positive outcome? The major political machines of both party have become hopelessly statist. On the Democratic Party side, the Blue Dogs and fiscal conservatives—of which the unfairly economically maligned Presidents Carter and Clinton were good exemplars—are gone. Neo-progressives rule the party roost. These Wilsonians are the architects of the Nanny state, fascistic wars of aggression, the Social Security Ponzi scheme, and Obamacare. These are the individuals who champion FDR’s collectivist “Second Bill of Rights.” On the Republican side, true conservatives have long been dominated by progressive RINOs and Trotskyite warmongering neoconservatives who care not about deficits or sane fiscal policy as long as the military-industrial complex, oil companies, and U.S.-friendly Middle East governments benefit. Is there any doubt that if these two nasty political machines began compromising, the only true losers would be the American people?

Even if the Constitution were changed to fit the will of the people, it is not clear that natural rights would not be lost. A poll taken in 2000 found that only about half of the American public would vote for the United States Constitution. A 2013 poll found that 34% of Americans believe that the First Amendment goes too far in guaranteeing freedom. According to Gallup, nearly half of all Americans believe that gun control laws should be more strict than they are now.

A new Constitution would inevitably wind up being a legal version of New Coke. What is the point of that when the United States Constitution is Classic Coke? The problem with the Constitution is that it is being obeyed less and less by the government. Time and again, when there is a problem, it is not due to a deficiency in the document but a deficiency in the government’s willingness to be bound by the document. What is the point of either a New Constitution or the current Constitution if the government refuses to obey it?

The true answer is for the American people to hold their elected leaders accountable. The voters must hold their elected representatives’ feet to the fire. Primary them and vote them out if they do not obey the Constitution. Deny support to candidates and political parties which are not true to the letter and spirit of the Constitution. The problem is with our elected officials and with us for putting up with them. There is no significant problem with the Constitution.

On Abu Anas al-Libi

by Gerard Emershaw

On October 5, American commandos in Tripoli captured Abu Anas-al Libi. Al-Libi had been on the FBI most wanted list and was indicted for his alleged involvement in the bombings of the United States Embassies in Dar es Salaam, Tanzania, and Nairobi, Kenya, on August 7, 1998.

Commando raids are a far preferable way of dealing with terrorists than “shock and awe” military campaigns, invasions, or drone attacks which induce dread in civilian populations and often produce collateral damage. Capturing terrorists is also far preferable to killing for both reasons of justice and intelligence.

Unfortunately, the Obama administration has taken one step forward and two steps back with al-Libi. The operation and the decisions which followed it have been illegal and likely to cause blowback.

1. Violation of Libyan Sovereignty

The Tripoli commando raid was conducted without the permission or knowledge of the Libyan government. Immediately after the raid occurred, the Libyan government issued a statement indicating that the raid was conducted without its permission and seeking “clarifications” about the operation. The Libyan government declared the capture to be the kidnapping of a Libyan citizen. Given that the United States is not at war with Libya, it was illegal under international law for the United States to capture al-Libi without the consent of local and national authorities in Libya. In essence, the action was an illegal kidnapping and not an arrest. Given that it was NATO air support led by the United States which enabled the current Libyan government to overthrow Qaddafi, it is likely that had the United States dealt openly and honestly with the Zeidan government, al-Libi could have been arrested legally and extradited. If the Libyan government is unwilling to cooperate with the United States on such matters, then it raises the question of why President Obama got involved militarily in the Libyan Civil War in the first place.

2. Blowback Against Weak Libyan Government

Furthermore, such an action makes the struggling Libyan government look even weaker than it really is. Thanks to President Obama’s kinetic military action, the victorious rebels have many radical elements with connections to al Qaeda. If the current regime falls, then it is likely that Libya will become a terrorist Islamic fundamentalist state. If there was any question of how weak the current Libyan government is, this was answered when Libyan Prime Minister Ali Zeidan was kidnapped briefly in what he later called an attempted coup.

A government that cannot protect its own leader is incredibly weak, but things may soon become even worse for the Zeidan government. In the wake of the al-Libi kidnapping, several Jihadist groups in Libya vowed to seek revenge by carrying out attacks against the Libyan government, which these groups see as being a willing collaborator in the al-Libi raid. It is unclear whether the Zeidan government can withstand such attacks, and it is likely that should the current regime fall, it will be replaced by a fundamentalist Islamic government. This is the kind of blowback that Zeidan does not need right now.

3. Blowback Against the United States

President Obama could have arranged to help the Zeidan government quietly arrest al-Libi and extradite him to the United States. This would have made the capture a legal arrest while still providing the Zeidan regime with enough plausible deniability to protect itself from Jihadist blowback. Instead, President Obama is courting not only blowback against the Libyan government, but against the United States. Violating the sovereignty of an Islamic nation is just the sort of thing that infuriates Muslims and causes them to commit acts of terrorism. A more cautious approach would have allowed for far less righteous indignation on the part of Islamic extremists. In fact, a cooperative effort between the United States and Libya followed by a fair and public trial would have been more likely to reduce the possibility of blowback than increase it. Instead, the United States is beginning to rile up Islamic extremists once again.

4. Torture

Abu Anas al-Libi was placed on board a Navy warship where he was subjected to interrogation by “an FBI-led team with intelligence experts from the CIA and other agencies.” Al-Libi is not a prisoner of war, and if he were, it would be illegal under the Geneva Conventions to house him on the high seas. Is there any doubt that the government will be using “enhanced interrogation” in order to loosen al-Libi’s lips? Even if the FBI and CIA interrogators do not waterboard al-Libi—or worse—it is certain that al-Libi’s constitutional rights will not be honored. Al-Libi is likely to be brought to trial in a federal court in New York, so he deserves the very same rights that any other criminal defendant would have in federal court. This includes the right to be brought before a federal judge within 48 hours of his arrest. In addition to the Eighth Amendment right against torture, al-Libi has the Fifth Amendment right to due process.

Respecting the natural rights of even the worst terrorist suspects is necessary in order to allow the United States to keep the moral high ground. The federal government has had little trouble in getting terrorism convictions in criminal courts. It is simply unnecessary to use torture or any other illegal means. The more fairly the federal government treats Islamic terrorism suspects, the less likely it is to create blowback. When a Muslim is tortured and mistreated, many Muslims will be angered. When a Muslim is treated fairly and humanely and revealed to be a criminal, only the most radical Jihadists will be angered. This makes a big difference.

Cruel and Unusual: The Torture of Bradley Manning

by Gerard Emershaw

Private First Class Bradley Manning was found guilty of 19 of 21 charges at his court martial. While he was acquitted of aiding the enemy by knowingly giving out intelligence through indirect means, he was convicted of many serious charges including six counts of espionage. The sentencing phase of Manning's court martial began on July 31, and his punishment will be known very soon. While it is obvious that Manning is a hero and not a traitor, this is not about that issue. What is even more obvious is that Bradley Manning was subjected to cruel and unusual punishment in violation of the Eighth Amendment while he was detained at Marine Corps Base Quantico, Virginia. 

In late January of 2011, Manning was placed on suicide watch. This decision was punitive rather than therapeutic. Manning had protested against being issued conflicting commands by guards and being castigated for responding to commands with "yes" instead of "aye," and the guards decided to arbitrarily strike back. The guards removed Manning's clothing and eyeglasses and forced him to remain in his 6 x 12 foot windowless solitary confinement cell for 24 hours a day. Later, in March of 2011, after being removed from suicide watch, Manning was again arbitrarily punished in the name of psychiatric welfare after he made a sarcastic comment. Manning had been under the Prevention of Injury (POI) status during his time in the brig at Quantico. POI status entails being forced to sleep wearing only boxer shorts. After Manning dared to exercise freedom of speech and make a sarcastic quip about suicide, he was punished by again having his boxer shorts removed and forced to sleep naked and present himself naked for inspection in the morning by his guards. 

The Eighth Amendment states: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

What exactly constitutes "cruel and unusual punishment?" Much of the debate concerning the Eighth Amendment has centered around capital punishment, but the issue here is whether Manning's treatment while in pre-trial detention at Quantico constitutes "cruel and unusual punishment." 

In Furman v. Georgia (1972), a case concerning the constitutionality of the death penalty, JusticeBrennan wrote a concurring opinion—there were five concurring opinions in the case but no controlling majority opinion—providing providing plausible criteria for determining whether a punishment is "cruel and unusual": 

There are, then, four principles by which we may determine whether a particular punishment is "cruel and unusual." The primary principle, which I believe supplies the essential predicate for the application of the others, is that a punishment must not, by its severity, be degrading to human dignity. The paradigm violation of this principle would be the infliction of a torturous punishment of the type that the Clause has always prohibited. Yet "[i]t is unlikely that any State at this moment in history," Robinson v. California, 370 U.S. at 666, would pass a law providing for the infliction of such a punishment. Indeed, no such punishment has ever been before this Court. The same may be said of the other principles. It is unlikely that this Court will confront a severe punishment that is obviously inflicted in wholly arbitrary fashion; no State would engage in a reign of blind terror. Nor is it likely that this Court will be called upon to review a severe punishment that is clearly and totally rejected throughout society; no legislature would be able even to authorize the infliction of such a punishment. Nor, finally, is it likely that this Court will have to consider a severe punishment that is patently unnecessary; no State today would inflict a severe punishment knowing that there was no reason whatever for doing so. In short, we are unlikely to have occasion to determine that a punishment is fatally offensive under any one principle. 

After listing the few cases where the Supreme Court held a punishment to be unconstitutional as "cruel and unusual" under the Eighth Amendment, Brennan continues: 

The function of these principles, after all, is simply to provide means by which a court can determine whether a challenged punishment comports with human dignity. They are, therefore, interrelated, and, in most cases, it will be their convergence that will justify the conclusion that a punishment is "cruel and unusual." The test, then, will ordinarily be a cumulative one: if a punishment is unusually severe, if there is a strong probability that it is inflicted arbitrarily, if it is substantially rejected by contemporary society, and if there is no reason to believe that it serves any penal purpose more effectively than some less severe punishment, then the continued infliction of that punishment violates the command of the Clause that the State may not inflict inhuman and uncivilized punishments upon those convicted of crimes. 

One may object that Manning's treatment at Quantico was not technically a punishment because he had yet to be convicted of any crime and because his ill treatment was carried out by guards on the order of a superior officer rather on the order of a legally sanctioned sentencing judge. However, why must a punishment be an official, legally sanctioned punishment in order to be a punishment? To exempt prison guards or the like from the Eighth Amendment is to invite the most barbarous of torture. The cornerstone of the American criminal justice system is that a defendant is innocent until proven guilty beyond a reasonable doubt. The ill treatment of detainees who have yet to be convicted of any crime is, in many important ways, even more problematic than the ill treatment of convicted criminals. Therefore, the Eighth Amendment must protect both the presumed innocent and the guilty from cruel and unusual punishment. 

Was Manning's punishment unusually severe? What was his "offense?" He made a sarcastic comment regarding suicide to his jailers. When did gallows humor become a crime rather than an exercise of the natural right to free speech? Free speech should not be punished at all, and it should especially not be punished in the cynical guise of psychiatric care. 

Was Manning's punishment arbitrary? It certainly seemed to be based upon nothing other than the whim of Quantico brig commander Chief Warrant Officer 2 Denise Barnes. There was no due process of any kind. Furthermore, there is no indication that Barnes is a physician or has any medical training at all. What gives her the credentials to decide that Manning was a suicide risk? 

Is Manning's punishment substantially rejected by contemporary society? Despite having more relaxed mores concerning nudity, contemporary American society regards forced nudity as an unacceptable form of punishment. If a parent were to punish his or her child by such means, we would likely call it abuse. If a school were to punish a student with forced nudity, his or her parents would rightfully seek to sue the school and press criminal charges against the school officials responsible. The Nazis employed forced nudity in concentration camps and the Soviets did the same in the Gulags, and this is not lost on Americans today. Humiliation in the form of forced nudity is not issued as a punishment by any American court of law. This is no coincidence. 

If—for the sake of argument—Manning did deserve punishment for his sarcastic quip, is there any reason to believe that it serves any penal purpose more effectively than some less severe punishment? If Manning deserved punishment, it is obvious that something like a stern verbal chastisement or a loss of some privilege would have been just as effective in curbing his sarcasm as the depraved psycho-sexual torture that his jailers employed. Therefore, it is obvious that according to Justice Brennan's criteria, Manning was in fact subjected to cruel and unusual punishment, and therefore, his natural rights under the Eighth Amendment were violated. 

Manning is not alone in such treatment. Many prisoners—who have yet to be convicted of any crime—held in American jails are subjected to cruel and unusual punishment. For example, notorious Maricopa County Sheriff Joe Arpaio proudly punishes his prisoners—many of whom have yet to have their day in court—by humiliating them with striped jail uniforms and pink underwear and treating them worse than the county's police dogs by feeding them dubious bologna sandwiches and forcing them to endure stiflingly hot temperatures in the "tent city" jail in Phoenix. In such cases, the cruel and unusual pre-trial punishments arbitrarily imposed by jailers can be viewed as akin to torture during the Inquisition. Such torture makes it far more likely that even an innocent defendant will accept a plea bargain in order to put an end to the cruel treatment. Therefore, such ill treatment of prisoners in jails -- whether military or civilian -- cannot be accepted by a civilized society.