Archive for June, 2008

Lawfare nibbles at fundamental rights

It’s the ranchers versus the environmentalists working through government agencies this time. The Washington Times Commentary describes the Huffman case.

Wayne and Jean Hage bought a 7,000 acre Nevada ranch, made some improvements for cattle, and encountered harassment and lawsuit from the government. “Mr. Hage filed a lawsuit in 1991 claiming his property rights had been taken without just compensation in contravention of the Fifth Amendment takings clause.”

There is no mystery why the nation’s leading environmental groups weighed in against the Hages. They find property rights and productive use of the land anathema to their antidevelopment, preservationist agenda. But shouldn’t we expect better of our government?

“It is a fundamental duty of government to protect, rather than to destroy, personal property,” wrote Court of Claims Judge Loren Smith. For good measure, Judge Smith quoted John Locke who wrote that “[w]henever the legislators endeavor to take away, and Destroy the Property of the People … they put themselves into a state of War with the People, who are there upon absolved from any further obedience.”

Seventeen years to judgment is a lifetime fighting for a fundamental right. It is an example of how ideological battles can be fought with a strategy of attrition. You may spend a lifetime trying to establish your claim to your own property if some group is able to swing the government to its view that their ideologies have more right to it than you do.

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Yet more on supreme power and political games.

Kenneth Anderson describes a tactic being implemented by the lawfare brigade at the Pajamas Media:

one way is never to announce an actual policy yourself, something that might in fact be implemented, with measurable results, for better or worse. Better, instead, to force the executive to return to the Court over and over again, and then each time play the spoiler, sending the political branches back to the drawing board, sorrowfully, regretfully, so to avoid responsibility if anything untoward actually happens. … It is hard to resist the conclusion that the real point of this game is to force the executive publicly to dance to the Court’s changing music.

The idea is that of taking the offensive but never being clear about your goals so you cannot be held to account for whether or not you achieve them. It is always easier to criticize and condemn than to create and define. In this case, the offensive means declaring the ‘other side’ as being wrong but not defining what is right. Whatever the ‘other side’ does can be declared wrong and that cannot be contested because there is no clear definition of what is right.

In the Boumediene case the SCOTUS declared the methods it earlier instigated as ‘wrong’ but left open exactly what it would consider proper. That way, anything done could be subject to further examination and criticism.

That is a core tactic of the lawfare brigade – argue but do not define standards or policy or referent. Keep the argument going so you can impugn and denigrate the ‘opposition’ rather than construct a solid basis for judgment.

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Criminalizing those who disagree

The derision. And the take-no-prisoners attitude — the downright hatred, so it often seems — toward “liberals,” suffused throughout.

But reading some ER blogs, unlike any other category in the healthosphere, is like listening to Rush Limbaugh or Ann Coulter. It’s a polemicist’s playground.

I consider George Bush the worst president we’ve ever had (and no, Mr. Bush, history will not vindicate you).

it’s just that the rightward ER docs blog, and the leftward ones go home and tie-dye.

The issue is one of judgment versus opinion. All too often it seems that those who do not see things as they would are perceived to not only disagree but to be wrong or, even worse, criminal. Groups are created and bad behavior assigned to everyone in the group.

Here, the use of polemic implies a negative yet the entire post fits the definition of the word. The choice of people to label with polemicists as an epithet is indicative of significant ignorance of the actual behavior of those people. Seldom do you see the health blogs engage in polemics such as in Dr. Schwab’s own entry and the commentators he cites, while definitely engaging in polemic discourse, do not engage in the sort of dishonesty and detachment from reality he illustrates.

Dr. Schwab sees hatred but does not illustrate what he sees as such. His perception of the prosecution of “liberals” does not fit any rational observation and, as such, indicates that his own perceptions may be suffering some bias from his feelings about things. If there is any hatred to be seen, look no farther than his comments about the President. The pulling in of prognostication about history is quite indicative that emotion is at work and not rational thinking.

What you have here is not a “I disagree” but rather the expression of disagreement as a judgment. This is a confrontational approach that indicates a closed mind driven by emotion. It is an approach that does not indicate a high level of intellectual integrity.

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Boumediene rationalizations

The lawfare brigade of the 5th column is prompted to explain the value of its latest victory. Epstein Etc. About Boumediene is a good resource for information about the ‘explanations’,

One key that appears is that of the identity of the prisoners. Some seem to think the military prisoners are not individuals captured in combat with US military personnel but rather citizens swept up off the street – sometimes even US streets. The idea is that, since the military prisoners are not combatants they should be treated as civilians, therefore the Boumediene decision was correct. This presumption needs to be exposed and qualified but those activies are often not undertaken when they would not support desired outcomes.

Another key is the acceptance of a military justice system as separate and independent of the civilian justice system. This is the idea that the military has its own areas of jurisdiction and its own identity and its own methods.

A third key issue is the separation of powers in the US Constitution. This one gets to the core of the lawfare brigade’s tactics. It is only by erasing lines of authority and responsibilities that controls can be established to achieve strategic objectives. The implications of this activity are subtle and need careful consideration by the ultimate authority.

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Identifying self and its necessity

For any entity to maintain its health and vigor, it must be able to discriminate between self and other. In the bloodstream white blood cells detect what is not ‘self’ and attack it so removing invading disease. Cancer is a case where the body is less able to determine what is self and what is not. If the cancer is not removed, it will grow and invade and cause death.

There have been two high profile court cases recently where the social body has refused to discriminate between self and other. One is a California case that set aside the will of the people as expressed in referendum and law to allow a new definition of marriage. The other is the Boumediene case at the Supreme Court of the United States.

Chief Justice Roberts said this about the now-unconstitutional Detainee Treatment Act (“DTA”):

“The majority rests its decision on abstract and hypothetical concerns. (The Supreme Court Wins, America Loses by Henry Mark Holzer, | Friday, June 13, 2008)

In other words, the words sound comforting and oh-so-nice in their appeal to the sensibilities. They have psychological comfort. They do not deal with the reality on the ground and they hide some things that seem rather ugly.

One of those ugly things is the assertion of the supremacy of the judiciary over the legislative and executive. The Boumediene case sets aside two acts of Congress as well as the precedent of the court and centuries of common practice. The judgment sets the Federal court as above the other branches and as the sole determiner of what the law is or must be. It did so in a matter that clouds the distinction between the US citizen and any other person.

The self to be identified in this case is that of the society. To date, the law has recognized the distinction through delimiters of territory, citizenship, and state of conflict in its view of apprehended persons. The immigration debate has focused on the loss of citizenship as a matter of interest. The Boumediene case attacks the use of territory or state of conflict as matters of interest. The result is that it becomes more and more difficult, in a legal sense, to determine who is a part of the self of society and who is not. The court has reduced that means by which we can determine what belongs and what does not. That is why the decision was narrowly decided and has particularly strong dissent.

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