Robert Higgs makes the same point on facebook:
"The discussion related to Sen. Rand Paul's recent filibuster seems in nearly every case to be premised on a misunderstanding of the U.S. Constitution, the ostensible basis for any powers the president or his subordinates may lawfully exercise. The Constitution's Fifth Amendment states, "No person shall be . . . deprived of life, liberty, or property, without due process of law." This provision obviously prohibits the president or anyone else in the government from peremptorily killing anyone without due process of law. Note that this part of the Bill of Rights, like all of the others, does not apply only to U.S. citizens or, as Sen. Paul and others repeatedly put it, to "American citizens on U.S. soil." The Bill of Rights constrains the government across the board and provides areas in which all persons subject to its authority are to have freedom of action -- or, at least, it purports to do so. Nothing in these provisions restricts them to U.S. citizens."Whatever you think "due process" defensibly means when it comes to dealing with an enemy combatant (I don't think it means bringing them in front of a court - it never has meant that unless of course hostilities are over, in which case they're not a combatant anymore), you need to apply these principles to citizens and non-citizens alike. No special priveleges for Americans. We believe due process is a human right.
This constant reference to Americans and al-Awlaki is more emotional/national appeal than argument.
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This is what I wrote two years ago:
"Who cares if al-Awlaki was an American?
He was a person.
And in my government class, we were taught that the use of the word "person" in the Constitution was deliberate. The fifth amendment refers to "persons". Other portions refer to "citizens". I don't understand the contrast between the killing of al-Awlaki and the killing of bin Laden and it's disconcerting to me that people think rights like due process only matter for citizens. That should be disconcerting for you too.
Due process is of course dependent on circumstance. Due process on the battlefield is different from due process regarding prisoners of war. Due process for a criminal pointing a gun at a cop is different from due process for a criminal in hand-cuffs. Who the hell cares about "citizenship". Due process is a right that attaches to persons.
I don't personally know the ins and outs of combatants vs. soldiers, etc. But I do know one thing - I don't see this killing of al-Awlaki as any different from the killing of bin Laden. But I'm bothered by the fact that (1.) some people seem to think that non-citizens somehow ought to be treated differently when it comes to the rights of persons, and that seems dangerous, (2.) people are talking about totalitarianism with regards to this, which to me trivializes totalitarianism, and (3.) that people still talk as if radical Islamic terrorism is a criminal issue is really baffling to me."
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I made this point long ago, that it sent the wrong message to distinguish between citizens and non-citizens.
ReplyDelete"First time I've seen a libertarian make a point of this w.r.t. Paul's filibuster"
ReplyDeleteThen you're obviously not paying attention.
You're constantly braying about this and that with regards to libertarians without being able to pass an ideological Turing test in the process.
I've paid attention to most of the prominent libertarian bloggers commenting on this on their pages and on facebook, as well as lots of others that aren't famous that I'm friends with.
DeleteI have not been on twitter... just the blogosphere and facebook.
Higgs is the first one I've seen say this since Paul's filibuster.
I think I'm paying pretty decent attention, but this is something I've been saying for years so obviously I'd like to promote other people who have made this point and criticized the focus on American citizens. So please, point me to the other people that have talked about this since Paul's filibuster.
And if you can't, stop trolling.
Disagreeing with your assessment and your constant framing is not trolling.
DeleteNo trolling is making stuff up like this and telling me I'm not paying attention.
DeleteTell me who I have missed? Who else has said this. I am happy to share. I LIKE this status update by Higgs, after all.
Tell me who else said this that I wasn't paying attention to or stop grandstanding like that.
Someone contending with a particular school of thought is not necessarily a sign that they fail an "ideological Turing test". It could just be that he or she rejects the conclusion after becoming familiar with the reasoning behind that school of thought.
DeleteI've been reading this blog for about a year, it's my opinion that DK is quite conversant with ideas against which he contends.
Anyway, to address your comments:
ReplyDelete"...and it's disconcerting to me that people think rights like due process only matter for citizens. That should be disconcerting for you too."
Frankly all nation states (as we think of them today) do this. Who is in and who is out has been a critical process in the development of these entities (compare and contrast citizenship and subjecthood - that found in the traditional empires of Imperial Russia, the Ottoman Empire, monarchical France and England, etc. - to see what I mean) and that process over time has been honed down to a rather fine point. So yes, for better or worse, the sort of due process that you get actually hinges in part on your citizenship status in a number of policy areas (particularly those associated with say immigration law, national security, etc.) and the courts have been alright with that. Just as the courts have been alright with differentiating between acts committed by the government within U.S. territory (which is itself a tough nut to crack) with those committed by it outside U.S. territory.
"Who the hell cares about 'citizenship'."
The courts clearly do and they lower due process standards for non-citizens - if you don't believe me see Demore v. Kim (2003).
Daniel,
DeleteThis is really the kind of disingenuous stuff that you get out of libertarians.
LSB writes, "The courts clearly do and they lower due process standards for non-citizens - if you don't believe me see Demore v. Kim (2003)," but that statement is totally untrue.
Demore was a deportation case. Citizens cannot be deported. Therefore, there is no lower standard for non-citizens. Demore argued that being held in detention until deported, in effect, denied him the right to bail or release pending detention. However, the right to bail applies only to being charged with a crime.
If the question were asked honestly, the question would be, does the right to bail apply to a non-citizen charged with a crime and we all know the answer is, "Yes."
Actually, you can be stripped of your citizenship and deported. Doh again!!!
DeleteExample: I become a cabinet minister in the Republic of X country; I hide my role by taking on a false name; I return to the U.S. and the American government discovers what I have done. I can then, with all the due process rights afforded a citizen, be stripped of my citizenship and deported. The fact that you do not know these basic facts tells me any conversation with you is pointless (particularly when you're not only ignorant in your commentary you're also incredibly insulting in the process).
DeleteAlso, we even make distinctions between types of citizens; some things, like refusing to testify about certain matters before Congress within the ten year period after naturalization (activities with the state considers "subversive" being one example), can get you stripped of citizenship when that would not be the case for a non-naturalized citizen. That right there of course clashes - IMO - with the Fifth Amendment guarantee against self-incrimination but it has been upheld.
DeleteIf you're curious, the courts have allowed the government (either at the state or federal level) to bar employment of foreign nationals without an individualized hearing on the matter, to bar the ownership of land by foreign nationals (as well as allowed for the uncompensated seizure of land owned by foreign nationals), it has allowed for the indefinite detention of foreign nationals entering the U.S. without recourse to a tribunal, it has allowed the U.S. government to reach out and simply take foreign nationals from their place of residence (where they are citizens) without any individualized hearing on the matter (the sort of thing that the federal government wouldn't be allowed to do if a citizen were to fight say extradition from one state to another or from a state to a federal facility), and the litany goes on and on from there. Each of these examples have not been overturned and none of them come from prior to the close of WWII.
ReplyDeleteI don't agree with these but the law of the land allows for citizenship by itself to lower due process standards.
Or I should say lack of citizenship.
DeleteOh, and it has allowed, based solely on the lack of citizenship, for the government to keep such foreign nationals entering the U.S. detained without recourse and based on evidence which the government has been allowed to keep secret from the legal representatives who has been detained.
ReplyDeleteThere is this vast array of national security law, custom, procedures, etc. where your citizenship means a huge difference as to how the government is allowed to treat you. That was the case prior to 9/11 and has only accelerated since then.
Anyway, from what I saw of Rand Paul's thirteen hours of filibustering he mentioned the plight of those who are killed overseas by drones who are not citizens and quite a bit and how such determinations were made. So Paul would be the first libertarian (if we want to call him that) who made that point w.r.t. Paul's filibuster.
A non-citizen has no liberty interest in entering the United States, as I recall, so the denial of the right to enter is not a denial of any liberty.
DeleteA non-citizen has a liberty interest in entering the United States, so the denial of the right to enter is a denial of a liberty.
DeleteWhether that is the case or not they do have a liberty interest in not being detained and in being detained without recourse and in being detained without access to evidence against them for their detention. Doh!
ReplyDelete""...and it's disconcerting to me that people think rights like due process only matter for citizens. That should be disconcerting for you too."
ReplyDeleteSorry, who exactly has said or claimed that due process matters only for citizens? has Rand said that Obama's policies would be fine with him if directed at non-citizens?
(and no, simply not talking about or focusing on the plight of non-citizens under Obama's "kill at will" policies doesn't mean claiming that such policies are fine with respect to non-citizens)
"This constant reference to Americans and al-Awlaki is more emotional/national appeal than argument."
Yes, that's politics, eh. American politicians appeal to Americans. And Americans are on average more concerned about other Americans than about foreigners. It is as it is.
But saying that critics of Obama's "kill at will" policies should focus on more than just the plight of Americans as the potential victims of those policies doesn;t actually constitute an argument against the critics' objection that those policies are not Constitutional and/or not a very good idea.
" But I do know one thing - I don't see this killing of al-Awlaki as any different from the killing of bin Laden. "
I take it you mean this solely in terms of the nationality of the person and not in terms of the culpability of the person. I mean, Obama committed mass murder (and I think also confessed to it). What murder did al-Awlaki commit or help to commit?
"that people still talk as if radical Islamic terrorism is a criminal issue is really baffling to me"
as baffling or more baffling than thinking that killing innocent people in 6 (or even more) Muslim countries is a good way to address the problem of radical Islamic terrorism?
also, "(1.) some people seem to think that non-citizens somehow ought to be treated differently when it comes to the rights of persons, and that seems dangerous,"
ReplyDeleteand "No special priveleges for Americans. We believe due process is a human right."
This of course also raises the question whether the same standards for taking out a suspected bad guy would apply in the US as they do in say Pakistan. I mean, if some suspected bad guy in for example Virginia is perhaps hard to catch, can Obama then also just decide to bomb the building (a church, a restaurant, a home, whatever) he's in to pieces, taking out a bunch of innocent people at the same time?
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I guess the general question is: you seem to object to people making a difference (although who exactly makes that difference and insists that one group does have certain rights while the other doesn't) between killing people without due process if those people are citizens and when those people are not citizens.
Does your moral concern also apply to the question how much the US government should try to avoid killing innocent people when taking out suspected bad guys without due process? Is killing innocent Pakistani's as objectionable (when circumstances are similar in some relevant way) as killing innocent Americans? (or even, is arresting and without a trial indefinitely detaining Iraqi's as morally objectionable (when circumstances are similar in some relevant way) as arresting and withoutn a trial indefinitely detaining Americans?
If so, do you think then that
a) Obama should try to be more careful to avoid killing innocent people *abroad* when taking out suspected bad guys without due process, or
B) that it is okay for Obama to use in the US (or re Americans abroad) the same level of concern for the lives of innocent people when taking out suspected bad guys (without due process) as he currently does when he takes out suspected bad guys (without due process) in say Pakistan?
A far more interesting question is the technical one of what we will do when drones become cheap and ubiquitous, employed by terrorists and murderers alike.
ReplyDeleteSo the issue is whether there is an implicit heightened protection of U.S. citizens provided by the 5th Amendment that does not protect “non-citizens,” despite the fact that the 5th Amendment explicitly refers to “persons” as opposed to the more specific “Citizens.” There are a few things to keep in mind. First, the fact that “persons” is used instead of “Citizens” does not entail equal status. A third option is that including “persons” indicates that non-citizens are not entirely excluded. Or it could mean that non-traditional entities are meant to fall within the scope of the protections. For example, “persons” is commonly meant to include corporations. This should be kept in mind because the 5th Amendment is not only about due process; it also includes, e.g., the Takings Clause and the requirement of “just compensation.” Interestingly, I recall a Supreme Court case that narrowed the scope of “persons” to “natural persons” in the context of corporations and the self-incrimination protections also provided by the 5th. Although this might be taken to contradict what I said above, it does the opposite, for it indicates that 5th Amendment jurisprudence includes a willingness to narrow the scope of “persons.”
ReplyDeleteSecond, we are dealing with the 5th Amendment, so Pre-Civil War cases are relevant to the discussion. A good research project, if you are interested in acquiring a deeper understanding of the issue, would be to find out whether slaves and Native Americans were protected by the 5th Amendment, keeping in mind the Takings Clause and the requirement of just compensation. Along similar lines, the treatment of “illegal aliens” would provide insight into the protections provided. I have not done this research myself, so I cannot come down one way or the other. My gut tells me that 5th Amendment constitutional jurisprudence would indicate a greater protection of citizens, particularly in the property cases (I cant imagine just compensation was given to NA's), but I really don’t know.
[Of course, this says nothing about how a court *ought* to rule and how all persons *ought* to be treated.]
Along similar lines, even if all persons - in a non-narrow sense - are accorded due process it may not be the case that what "due process" means for citizens and non-citizens is the same in all cases (just as I've pointed out here that "due process" doesn't really have an identical meaning for soldiers and for criminals).
DeleteThe most relevant point for this is what if al Awlaki were picked up on the streets of the United States vs. another non-citizen terrorist.
He could be treated like any other terrorist - held as an enemy combatant. Or we could also try him for treason (and presumably any number of other crimes - but treason seems to be the citizenship-specific one). What constitutes due process is different for citizens potentially even if due process is extended due process.
See this is great - I know EXACTLY what you think on this ;-)
DeleteAlso, in response to Daniel's "that people still talk as if radical Islamic terrorism is a criminal issue is really baffling to me" this bit that I just happened to come across yesterday when reading Michael Hastings' "The Operators" seems relevant:
ReplyDelete"A RAND study, “How Terrorist Groups End,” commissioned in 2008, explicitly points out that the best way to defeat terrorist networks is not through military force, but through law enforcement. The authors looked at 648 terrorist groups that were active from 1968 to 2006. In 40 percent of the cases, policing is “the most effective strategy,” with local intelligence and police agencies able to able to penetrate and disrupt the terror groups, while 43 percent reached a political accommodation with the government.
The study states: “Military force led to the end terrorist groups in 7 [seven. TN] percent of the cases,” and that military force has not “significantly undermined [Al-Qaeda’s] capabilities."
I agree. The concern is with people who don't consider it a military issue, not those who think law enforcement should be used. I agree it should be used.
DeleteTerrorism comes in lots of shapes and sizes. I guarantee you the 7 percent and the 40 percent are very different types of groups and the 7 percent we send the military after are more substantial anyway and therefore harder to dislodge. In other words, there's huge selection bias here, and from my read of the description of the regression absolutely no attempt to correct for it (if the author had talked to the health economists at Rand they wouldn't let him get away with it).
Now the date of this report is interesting too - in 2008 remember we had not been focusing on al Qaeda at all - we had been focusing on Iraq (so in fact we had spent the last five years giving al Qaeda a new breeding ground. That was one of the big reasons I voted for Obama, because he was going to flip that arrangement around.
Hume suggested a research project above - I'll offer one here. Somebody take his data and run a selection-corretion model and see if it still holds up. I'm kind of doubting it.
DeleteDK writes: "I agree. The concern is with people who don't consider it a military issue, not those who think law enforcement should be used. I agree it should be used."
ReplyDeleteOkay, so you seem to say then that it's both a criminal and a military issue, but if that is what you mean then I'm not sure what you meant when you wrote "that people still talk as if radical Islamic terrorism is a criminal issue is really baffling to me".
did you mean "that people still talk as if radical Islamic terrorism is ONLY a criminal issue is really baffling to me"?
or is the question whether something is a criminal issue unrelated to the question whether law enforcement (potentially in combination with other methods, such as military ones) should be used?
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DK wrote: "Terrorism comes in lots of shapes and sizes. I guarantee you the 7 percent and the 40 percent are very different types of groups"
No doubt
"and the 7 percent we send the military after are more substantial anyway and therefore harder to dislodge."
May be. But considering that in 2009 there were 150,000 NATO troops in Afghanistan against an estimated fewer than 100 (hundred) Al Qaeda fighters (so the NATO troops outnumbered the Al Qaeda fighters 1500 to 1) one might wonder whether military action was a better strategy than police action.
Also because the military tends to kill a lot of innocent people which tends to drive their families, friends and neighbors to become more sympathetic to people who hate and fight the military and the people who sent the military.
"Now the date of this report is interesting too - in 2008 remember we had not been focusing on al Qaeda at all - we had been focusing on Iraq (so in fact we had spent the last five years giving al Qaeda a new breeding ground. That was one of the big reasons I voted for Obama, because he was going to flip that arrangement around."
1. Please stop saying 'we'. It's just weird and embarrassing.
2. "in 2008 remember we had not been focusing on al Qaeda at all" a) What do you mean? (specifics), b) where?, c) how do you know this?
"(so in fact we had spent the last five years giving al Qaeda a new breeding ground. That was one of the big reasons I voted for Obama, because he was going to flip that arrangement around."
yep, by having 150,000 troops trying to fight 100 Al Qaeda fighters?