July 03, 2004
One more kissing-related post for now:
Article III groupie-- whose blog is something like Wonkette for Federal Judiciary Nerds-- has a clip of 9th Circuit Judge Alex Kozinski, kissing a girl on the dating game back in 1968. No, really.
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Well, I spent some more quality time (about nine hours) in my Neon yesterday traveling to my parents' home on the East Coast, where I will sojourn for the holiday weekend. And it doesn't seem proper to spend the weekend holed up in the study, so I'll graciously (I hope) end my stint as an honorary Crescat now.
Many, many thanks to Will for give me some space on the soapbox this week. Crescat Sententia has quickly become a must-read for those who love the great legal, political, and philosophical debates of our time (or for those who just love kissing). I'll admit, though, that I'm not sure what I look forward to more when I point my browser over here, though, Will's latest thoughts on [insert your favorite subject here] or Amanda's dispatches from the Peace Corps. (I know, they aren't the only two bloggers here; they're just the ones who seem to most with the most frequency.)
For those of you who didn't hate my writing, I'm hoping that my own blog will be up and running within the next week. I've promised to take Will to a Bad News Bears marathon if he plugs it for me.
Happy Fourth of July, everyone!!!
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What follows is a loose collection of thoughts that have been running around in my head for some time. They are probably not terribly original, but it seems that any who voice them run the risk of being shouted down in hyper-patriotic displays of anger.
For some time, we've been throwing around the phrase "the war on terror." All sorts of things are justified in the name of this "war," from the indefinite detention of those whom the Executive has declared to be our enemy to Americans' willingness to tolerate nearly any intrusion of the protections once provided by the Fourth Amendment.
The problems with the "war on terror" have been summed by others, but let's look briefly at them. First, of course, is that from a constitutional standpoint, we're not really "at war." The power to declare war is one reserved to the Congress. U.S. Const., Article I, Section 8, Clause 11. While Congress has authorized the use of military force by the President, it hasn't issued a formal declaration of war.
Second, what are the criteria for declaring victory in this "war?" A 100% guarantee that our country will never fall victim to a terrorist attack? A notice of surrender by each and every international terrorist organization? A period of time in which there are no terrorist attacks on our nation (there have been none for nearly three years)?
Third, how do we fight this "war"? Never before have domestic law enforcement agencies been so involved in a "war effort." Shortly after Senator Kerry had secured the Democratic nomination, it looked as if he and President Bush might start engaging in debates over the proper characterization of the fight against terrorism. Senator Kerry had been advocating that we're really talking about a comprehensive plan of criminal law enforcement, while President Bush was adamant that this is really a war that requires the use of the military and the increased powers expected to be utilized by the Executive during war-time. Senator Kerry seems to have backed down in recent weeks. I'm not arguing that either candidate is correct. But I think the nation would have benefited from the debate.
Certainly one problem is the manner in which we've used the word "war" over the past several decades. We have fought, for instance, the "war on drugs" and the "war on poverty." Some believe that the 1980s saw something called the "culture wars" play out. So maybe we've lost sight of what a "war" really is. Certainly the individual, military actions in Iraq and Afghanistan are "wars" (based on a dictionary definition rather than a constitutional one). But somehow, we need to define as a nation the scope of and rules of engagement for a "war on terror." We need to know how we're succeeding and how we're failing. We need to know when it will be over. And if it'll never be over (like the "war on drugs,") then we need to differentiate between what front of the war is to be fought by the military, and what front is the focus of criminal law enforcement. And we need to differentiate between generalized law enforcement and efforts directed towards combatting terrorism, as the latter can no doubt properly invoke exeptions to some constitutional guarantees (the "special needs" doctrine that provides an exception to the warrant requirement comes to mind) while the former should not serve as the basis to create loopholes to those protections created by the Framers.
We need to be able to debate these issues without resorting to personal attacks or questioning the motives of our opponents. Someone who questions how much power the Executive should have isn't a terrorist sympathizer or seeking to provide aid and comfort to our nation's enemies. Likewise, someone who argues that the Executive should have a great deal of power in the "post-9/11 world" is simply high on machismo or merely seeking the consolidation of political power. I was hoping these issues might be addressed in the recent detainee cases, but the Court was notably silent on the question of whether we're currently engaged in a war or a law enforcement effort. Someone, somewhere, will have to address these questions. And sooner rather than later.
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As I have requested, people smarter than me (I? myself? I always forget) have weighed in on the potential barriers to an Iraqi prosecution of Saddam Hussein. Tim Sandefur cites natural law as a source of authority for the ongoing criminal case. Appeals to "natural law" to justify sanctioning conduct always strike me as tantamount to saying "We can't point to anything in our positive law that outlaws your conduct, but darn it, everyone knows that what you did was wrong, and you should have, too!" Mr. Sandefur also analogizes to the seventeenth century trial of Charles I. Setting aside the questions that were raised at that time about the legitimacy of that trial, that situation would seem inapposite to the present one, as Charles I's trial was undertaken by Parliament. There seems to exist a great preference for actions against the head of state to be undertaken by such a body, rather than by a single member of the judiciary. And as importantly, Charles I was "tried" by the same government in existence at the time of his conduct. Saddam, on the other hand, faces charges in a "new" nation, as it were.
Professor Rowe provides a very sound argument as to the legitimacy of a prosecution of Saddam by an international tribunal. With respect to sources of authority for that prosecution by the current Iraqi government, he writes:
I'd have to look further into Iraq's constitution and other laws as they existed at that time in order to see if they at that time of the attack had jurisdiction to hear such cases. But then again, what Hussein did clearly violated international law as it existed at that time. Why shouldn't this Iraqi court be able to apply international law? That is, there is nothing special about international law that demands that a cohort of nations acting under the auspices of the "International Community" have the exclusive right to hear such cases. Even if the authority of these Iraqi courts to hear cases that violate the law of nations is newly granted, that is, it didn't exist under domestic Iraqi law at the time of the attack, I don't think it would qualify as an expost facto law, because the norms themselves, and hence Iraq's violation of them, clearly existed at the time of Iraq's action.(emphasis added). My question: Did these norms indeed exist at the time of Iraq's invasion of Kuwait?
At his trial, Saddam will likely point to some justification for the invasion of Kuwait. Now he could be wrong, either from a factual standpoint (i.e., the Kuwaitis weren't planning to turn Iraqi women into prostitutes) or from an international legal standpoint (i.e., he's correct about the facts, but those facts do not justify war under international norms). But don't branches of government that are not vested with authority to make war or foreign policy (the judiciary) owe deference to the decisions of those branches (the executive) that do? Do we want to encourage the Iraqi government to create precedent for its new nation by which the judiciary is able to second-guess decisions of an executive through the imposition of criminal sanctions? We'd never stand for such principles in our country; why impose them on nation struggling to bring about a constitutional order? If prosecution of a leader for the invasion of another country is to take place (at least in a domestic setting), the burden of proof on the prosecution ought to be quite high; the prosecutor should have to prove that no basis for war at all, no matter how ephemeral or disagreeable, existed at the time of the invasion of Kuwait.
Of course, perhaps an argument can be made that Saddam was never the legitimate leader of Iraq. (No doubt there's a good argument for that based on principles of natural law, but I'm not convinced one could find positive law justification for that stance.) If that were the case, then Saddam never should have made any decisions regarding the use of the military; his conduct would have therefore been illicit ab initio and properly subject to prosecution once the Iraqi people were able to depose him and restore a legitimate leader to rule. But that doesn't seem to be the argument that will be raised.
Please note: I'm not arguing that Saddam should not be held to account for his actions. I just question whether it wouldn't be less tricky to try him before an international body.
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(Apropos International Kissing Day, July 6th)
[It's the weekend, so my blogging will be even less substantive than usual. Perhaps my more earnest co-bloggers will pick up the slack.]
Sonnet XCIII, Pablo Neruda
If sometime your breast pauses,
if something ceases to go burning through your veins,
if the voice in your mouth leaves you wordlessly,
if your hands forget to fly and fall asleep,
Matilde, love, leave your lips half-open
because that final kiss should last with me,
should stay unmoving forever in your mouth
so that it joins me, too, in death.
I will die kissing your crazy cold mouth,
holding the lost cluster of your body,
and searching for the light of your closed eyes.
And so when the earth receives our embrace,
we will go blended in a single death,
to live forever the eternity of a kiss.
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