Squaring the Culture

Thursday the US Supreme Court decided the President was out of bounds to establish a military tribunal for a captured al Qaeda operative. The decision turned largely on whether this man, bin Laden’s personal driver, violated “the rules of war;” without that clear indicator, they could not find justification for a tribunal. And they claimed the government made no attempt to prove he’d violated the rules of war.

They were wrong; they were looking only at the man, not at the war.

Al Qaeda, by its very existence, violates the rules of war — so every member of that group, no matter how inconsequential, violates the rules of war by joining.

Al Qaeda is an army without a country. Its announced purpose is to create a pan-Islamic Caliphate by overthrowing non-Islamic governments. It further announced that its purpose, and the purpose of every Muslim, is to kill all US citizens, whether civilian or military, and their allies everywhere (see the US State Dept’s comments on terror organizations.) Their purpose is a declared war against civilians. The World Trade Center attack was merely the last in an escalating series of violent acts directed against civilians.

War against civilians is a violation of the rules of war, plain and simple. It is defined as a war crime by the UN War Crimes Commission, which allowed the formation of military tribunals in 1947 for “devastation, destruction or damage of public or private property not justified by military necessity… murder, extermination, enslavement, deportation or other inhumane acts committed against any civilian population….”

Thus, al Qaeda’s very existence is a violation of the rules of war. And like the guards at concentration camps in Nazi Germany, the driver of bin Laden’s car is a participant along with bin Laden himself in waging illegal war. (See notes concerning the American Military Tribunals at Dachau for relevant parallels.)

If we’re looking for a precedent to apply, to determine exactly what legal category al Qaeda falls into, consider piracy. Pirates are combatants not aligned with any particular nation, who endanger travelers by committing thefts and murders on the sea. Pirates are considered universally by sovereign states to be “hostis humani generis” (enemies of humanity). (Wikipedia defines piracy here.) Typically, when caught, they’re executed.

The major differences between al Qaeda and ordinary pirates are 1) al Qaeda commits its murders on land as well as on the sea; and 2) their goal is more political than financial. Neither difference changes the diagnosis. The consequence of murdering on land is simply that they’re in violation of the laws of specific nations when they commit their crimes, whereas pirates on the sea often commit crimes where jurisdiction is hazy. The consequence of political motivation is nothing at all. The acts are the same — combatants not aligned with any nation commit acts in violation of the rules of war.

Anything we do to al Qaeda detainees, short of hanging them, is leniency not required by international law. If we executed them after a brief military review, we would be perfectly within universally recognized international law.

Watch for Congress to quickly correct the Supreme Court’s mistake… and to keep doing so until it’s in a form the Court cannot overturn.

We love Superman. We love Spiderman. We love Batman. We’ll watch Superman returning. We’ll watch Batman beginning. We’ll watch Spiderman… I don’t know, spidering. Channeling inner peace in an existential state. Oming merrily.

We love superheros because we’re programmed to love that story. We’re genetically predetermined to love the idea of a Great One swooping into the trauma and tragedy and unpredictability of our lives and setting things right. It’s in our bones; it’s in our blood. It makes us feel good to dream about it.

It’s in our bones because it’s in our universe. God created us to expect the Savior, Jesus, who does all that Superheros do. We were created to hope for a rescuer; and then, Applause! the rescuer actually appears. He’s the one who actually sets all things right; he’s the one who punishes the bad guys, rewards the good guys, and rescues the innocent from falling off buildings. He’s real, He’s active, He’s present, and He’s available on call.

So enjoy your summer movies; but when you’re done enjoying Superman, make a note to pray the next time you need rescuing. You have your own direct line to the Bat-cave; you have Superman’s private cell phone number. Call Him up. Tell Him what you need. Be part of the story you enjoy so much; you have no idea how good it will make you feel, to know there’s a real Superman watching out for you.

If we allow the government to prosecute reporters for exposing classified programs, will freedom of the press suffer?

Bill Keller of the New York Times argues that only a free press can restrain a government that’s out of control. He’s right; that is the reason offered by the Constitution’s authors.

So why do I feel such contempt for his argument?

Freedom of the press belongs to everybody, not just to professional news organizations. The US Constitution did not create an elite professional class, “reporters,” who have a unique and protected role in government. Instead, it created a protected liberty among a free citizenry, any member of which could act on their own to restrain government.

In order for a citizen — any citizen — to successfully restrain government, that citizen must have more than access to a printing press (these days, an internet portal). He must have trust; trust from other citizens who hear, so they will be moved to action by his words. If enough voices with enough credibility sound the alarm, citizens will take action to defend themselves and address whatever danger.

The problem with the news moguls’ argument is not that they’re wrong; it’s that they’re the wrong people to be making the argument. We simply don’t trust them.

The New York Times, at one time in US history, had the respect not only of the American public, but of the entire world. Under Punch Salzberger, the New York Times was the newspaper of record for anybody wanting an accurate account. A stern commitment to objectivity and integrity earned that label.

But as so often happens with large inheritances, the substance of the father has been squandered by the son. In this case, what’s been squandered is a reputation. The American public no longer believes that the New York Times stands for objectivity and integrity; most of us know better. It’s not just that we’ve been Jason Blaired too many times, although that’s part of it. Freelance writer and former liberal (now moderate) Harry Stein says it fairly:

“…many of us who have read the paper most of our lives, including some who would never call themselves conservative, know that something has happened to the Times in recent years that is deeply distressing. For on the most contentious social issues of the day — multiculturalism, feminism, gay rights — today’s Times is highly unreliable, scarcely even bothering to pretend to neutrality. Indeed, having chosen sides, the paper itself often seems as interested in reshaping society as the most committed activists.”

Harry Stein, “How I Accidentally Joined the Vast Right-Wing Conspiracy (and Found Inner Peace)”, New York, Delacorte Press, 2000, p 98.

We’re not talking about editorial slant, here; we expect the editorial page to carry a bias. We’re talking about how the NEWS is reported. It’s supposed to be objective. It isn’t. There’s a clear intent, not just in the opinions, but in the stories that are chosen (or not chosen), the details that are reported (or not reported), the impact that is intended (or avoided).

There was a time in US history when newspapers were expected to be slanted in this fashion; we appear to be returning to such a time. The danger of our particular moment in history is that, having for a while earned a place in the American mind as “objective reporting,” the Times — and nearly every other news outlet — is deliberately using that perception as a deceptive front for hard-core political and social activism. It’s just, plain dishonest.

And it’s with this in mind that we note that we have been Jason Blaired, in increasing frequency and with an all-too-clear agenda. Last year, it was Katrina. Last week, Haditha. Even more relevant to the point at hand, just a few months ago The Times lectured us on the sober necessity of protecting classified information while defending Judith Miller; and barely a week later exposed its first classified anti-terror program. The juxtaposition of the two incidents was too glaring to miss. They don’t care about privacy or secrecy; they just want to undercut the administration. That’s their criterion.

Well, no, that’s not their criterion; it’s too narrow. They want to achieve the social goals consistent with neo-Marxism — radical egalitarianism, radical moral relativism, radical environmentalism, anti-capitalism. But, hey, if we can’t achieve the Dictatorship of the Proletariat this week, let’s at least bash the Republicans.

The problem is, most Americans can figure this out for themselves, and they don’t approve. The Times has shown contempt for the vast bulk of the American public; and as they should have expected, the public is returning the sentiment.

So, now the Times is sounding the trumpet on the mountain: “The enemy approaches! The government encroaches!” If we trusted the Times, we’d rally ’round the reporters and defend them from prosecution for the clear violations of law that took place; even today, the Attorney General thinks twice, and thinks opinion polls, before indicting a reporter. But we don’t trust the Times. If a reporter gets indicted this time, 30% of the American public will mutter “It’s about freakin’ time,” and another 40% will say “This bothers me, but it has to be done.” They’ve blown it, and they’re going to pay.

Freedom of the press will not be harmed in the least. Freedom of the press remains in the hands of the citizenry. We still have access to our printing presses and internet portals. The alarm can still be sounded, by those whose voices the public trusts. The New York Times has only itself to blame for the fact that it no longer speaks with one of those voices. We’re providing new guards for our future security.

There is no reason that members of the press may not be prosecuted for releasing classified information.

A little history:

In 1971, as the Nixon administration was winding down the Vietnam war, Daniel Ellsberg, a disgruntled military analyst at the Pentagon for the Rand Corporation, released about 7,000 pages of a classified study on the history of the Vietnam war to the New York Times and the Washington Post. These documents, collectively called The Pentagon Papers, identified several activities that the government had previously denied, including bombing in Laos, raids along the coast of North Vietnam, and expansion of the war at a time when the President (Johnson) had denied that expansion was taking place. Exposure of the papers undercut the public’s support for the war effort, and increased the sense that the government’s word could not be trusted.

The government attempted first to restrain the newspapers from publishing the classified information; the Supreme Court denied them the right to prior restraint, declaring freedom of the press to supersede the need for secrecy. However, Justices Potter Stewart, Byron White, Harry Blackmun and Warren Burger, in their consenting opinions in the case (New York Times Co v United States) made it clear that the government did retain the right to prosecute Ellsberg for releasing classified information.

Freedom of the press does not anoint a special class of professionals to a status above that of ordinary citizens. The freedom of the press belongs to all citizens; we all are to remain free to publish our ideas. But we’re also responsible for whatever laws we break. The Pentagon Papers case was clear: the government can’t force the New York Times to stop publishing what it likes, but it can prosecute them for violations of law.

Ellsberg never did pay for his crime. G Gordon Liddy and E Howard Hunt broke into the office of Ellsberg’s psychiatrist in order to gather information that might be used against him, and were found out during the Watergate break-in investigation. White House Special Counsel Chuck Colson was later jailed for obstruction of justice, for leaking the contents of FBI files about Ellsberg to the press. Because of the government’s flagrant misconduct in the case, Ellsberg’s trial was thrown out of court.

There’s no gross misconduct of that sort today. The Bush administration doesn’t employ “plumbers” to attack its critics. They need to identify the sources of the leaks, and they need to prosecute to the fullest extent of the law.

(Acting Lieutenant and Harvard Law graduate Tom Cotton, from his combat post in Baghdad, agrees, courtesy of PowerLineBlog.)

(Gabriel Shoenfeld, senior editor of Commentary, agrees, courtesy of Commentary magazine online, in a detailed legal analysis.)

From www.slublog.com.

The New York Times’ publication of details of a legal operation to trace terrorist financing through international bank records generated a firestorm of internet commentary. In response, New York Times editor Bill Keller wrote an opinion piece defending his choice to publish the story. You can find the editorial here, at the New York Times web site, but you have to register to see it. The editorial is also displayed in its entirety here, at Riehl World View, although you’ll have to scroll down a bit to find it.

Here are my thoughts:

Bill Keller is offering disingenuous pap that I would not accept from one of my teenagers.

His rebuttal of the argument that terrorists could use the information was “But that argument was made in a half-hearted way.” It’s the lame rationalization offered by someone who knows perfectly well that they’ve stepped over the line. I can just hear my 14-year-old whining, “I didn’t think you really meant it…” It’s on the order of “I forgot.” Children do this. Adults shouldn’t.

Worse was his discussion of how the press and the government line up on opposite sides:

“The government would like us to publish only the official line, and some of our elected leaders tend to view anything else as harmful to the national interest. For example, some members of the Administration have argued over the past three years that when our reporters describe sectarian violence and insurgency in Iraq, we risk demoralizing the nation and giving comfort to the enemy.”

It’s not an honest characterization of the argument. The government has never, under any circumstances or at any time in recent US history, said they want the press to publish only the official line. And the objection to NYT’s reporting was never, ever, that they reported sectarian violence and insurgency; it was that they published only that, omitting all other factors, in a blatant attempt to turn public opinion by selective reporting of the facts. Again, exaggeration of another’s behavior in defense of one’s own is typical rationalization for teenagers, but not acceptable in adults.

It’s hardly a surprise that a New York Times editor offers rationalizations we might expect from an undisciplined child. It’s a symptom of that dismaying characteristic of the Boomer generation, adult bodies housing unresolved teenage angst and rebellion. We’re watching rage at ineffective parents being acted out as rage against constraining morals, responsible government, and a free people. Bill Keller is a whiny child in an adult’s body, but this time, his immature tantrum could hurt real people very badly. It’s time we administer discipline.

I thought I would write a thoughtful piece about freedom of the press in today’s contentious environment, but blog artists have jumped on it for me. If the New York Times seriously wanted to destroy freedom of the press single-handedly, they could hardly have done better: their incredibly self-centered publishing of classified details of perfectly legal anti-terrorism measures guarantees public outcry against unbridled press license.

Michelle Malkin has collected all the best web art about this, in one place.

Credit for the above art goes to “Rick A.” Ms. Malkin had no more revealing attribution. If I find out where it came from, I’ll let y’all know.

The goal for Iraq has always been an independent government for a free, prosperous, democratic nation. It was hoped that a free Iraq would create pressure on middle easterners to change, to stop blaming the US for its poverty and misery and refocus their anger onto the elements at home that are the real cause of their misery.

It’s working. Bret Stephens of the Wall Street Journal gives us the bigger picture, by way of Israpundit. Read about it here.

Excerpt:

The Arab intelligentsia’s stale litany of complaint against imperial America, perfidious Zion, the legacy of colonialism and so on — what Bernard Lewis described as the habit of asking, “who did this to us?” — is giving way to a new mentality. Now the question is: “What did we do wrong?”

Short version: the world really is safer. Ten years ago, Muslim violence was directed against non-Muslims; today, it’s all focused on other Muslims, and they’re re-evaluating their own culture of violence.

Here’s a fascinating cultural artifact from Michael Yon’s latest dispatch. Apparently armed guerrillas are becoming accountant-friendly:

The guerrillas in Nepal were sometimes robbing trekkers but were said to be giving receipts for cash or cameras so that victims could recover insurance money.

Probably easier for them than ordering from The Sharper Image catalog…

Last Thursday the US Supreme Court gave the nation hope that the cloud of judicial activism might be lifting for real.

A Michigan defendant, Booker Hudson, appealed his conviction on weapons and drug possession charges by claiming the police entered too soon after announcing their presence at his door, violating his 4th Amendment rights to a reasonable time to respond to the police. Michigan rejected his appeal, so he appealed to the Supreme Court. The Supreme Court decided against him, and police everywhere smiled.

At issue is one of the silliest and most destructive policies ever inflicted on a free society by a leftward-leaning court, the Exclusionary Rule. The Exclusionary Rule says basically that evidence gathered in violation of the 4th Amendment cannot be used in court. (See Mapp v Ohio, 1961, http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=367&…)

Even when I was young, ignorant, and liberal, the Exclusionary Rule seemed insane to me. You want to discourage illegal searches, of course, so there ought to be penalties for them; small penalties for technical flubs, huge penalties for deliberate violations. But letting the accused go free? Making it impossible for the state to prosecute violations of the law that we KNOW occurred? That doesn’t punish the policeman who violated someone’s rights; that punishes the entire nation. The Exclusionary Rule broke the system.

Hudson v Michigan (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=04-1360) doesn’t fix the system, but it at least tells us the Court has stopped marching away from sanity, and has taken a wee step back towards it.

Simply, Justice Scalia observed that the purpose of a K&A rule (”Knock and Announce”) is NOT to give the individual time to flush the stash; it’s to give him time to throw on a robe. Sure, mused Scalia, the police broke the rule, but the evidence is still the evidence. He’s free to sue for damages caused by the broken rule (which are … well … nothing.) But we’re not throwing out the evidence.

Justice Breyer, writing the dissenting opinion, warns that the Court may be poised to demolish the entire Exclusionary Rule. O, be still, my beating heart! Let it be so! Let it be today! Justice Breyer is seldom right, of course, but we can hope.

True civil libertarians, like me, can be calmed by observing that individual liberty survived the first 172 years of our nation’s life (1789 – 1961) without the Exclusionary Rule hampering police and releasing felons into the public unpunished. The faux civil libertarians of the Left, who defend only those liberties that don’t hinder the advance of “Justice” (read “World Marxism”), will not be calmed. Let’s buy them a few bottles of Mylanta; I perceive stressful times coming for the Lefties.

Unsurprisingly, the Court was apparently ready to overturn Michigan’s decision. When Justice O’Connor (like Justice Breyer, Often Wrong) resigned, the court announced it would rehear Hudson; apparently there was a 4-4 deadlock. The 5-4 majority for upholding Michigan’s decision included the shiny, new face of Justice Alito. An unaccustomed sanity has dawned on the Court.

May God grant us the swift replacement of Marx’s Myrmidon, Justice Ruth Ginzberg, with yet another sane Jurist! And may the chains Liberalism wrapped around the arms of the police fall, impotent, to the ground!