Rule of Law

A couple of legal issues are on my mind right now, one at the law enforcement level, and one at the legislative level.

I have been seeing a series of photos and videos from around the country of unprovoked assaults by police against unarmed and entirely peaceful demonstrators. An 84 year old woman got maced out in Oakland and students at U.C. Davis, seated and passive, were maced in a calculating, unhurried manner by a campus police officer. Unresisting protesters have been beaten with clubs and teargassed. An officer in Oakland fired a tear gas canister into the head of a man at point blank range, fracturing his skull. When other people clustered around the fallen man to administer first aid, an officer tossed a tear gas grenade into the center of the group, scattering them.

This bothers me, of course, because of the unnecessary violence and sheer sadism of it. It also bothers me because of the damage it does to the idea of rule of law.

We should expect laws to be enforced fairly, evenly, and with techniques proportional to the seriousness of the crime. We should expect law enforcement personnel to do their jobs with the minimum force required for their own safety and the safety of those around them. But we can’t. It seems that peaceably assembling in order to petition the government for redress of grievances, while admittedly becoming a public nuisance, is grounds for violent assault.

What the police themselves fail to realize is the two types of power they wield, and the relationship between the two. Their most obvious type of power is that of the gun, the mace, and the club. This is their small power. With all that weaponry and armor, an individual police officer is no more powerful than any other person so armed and armored. A police officer’s great power is the power of respect, both for the rule of law and for the officer as a just enforcer of that law. When the general populace has that respect for law enforcement, a single officer can walk safely among a thousand people. The people will assist that officer, obey all reasonable commands, warn of danger, and offer useful information. When the police arbitrarily use violence, they lose that respect. Without that respect, the officer is merely the member of a uniformed gang.

As a positive example, consider the Vermont State Police. They are one of the best trained and most thoroughly professional police forces in the country. They patrol the highways and back roads of Vermont alone. They rely on respect. They have a solid reputation. In my few interactions with them they have been uniformly polite, helpful, and professional, even when my personal appearance was not such as inspires the affection of a police officer. They are not perfect as individuals or professionals, but I can easily see 98% of Vermonters on their side. Can the police officers of New York City or Oakland expect the same from their citizens?

The police forces that are using violence against peaceful protesters are weakening themselves. And yet, this is a common theme in history. As a government loses legitimacy in the minds of its people it resorts to force, which hastens the decline. The relative immunity of millionaire bankers to arrest and prosecution is an aggravating factor. Apparently trespassing on Wall Street is a more pressing concern to the authorities than defrauding investors of billions of dollars on Wall Street.

As if the militarization of the police wasn’t bad enough, now Congress is turning the military into the police, prosecutor, judge, jury, and jail. The Senate just passed the National Defense Authorization Act, S.1867. Stuck in there is a nightmare provision, Subtitle D – Detainee Matters. It authorizes the U.S. military to detain any terrorism suspect indefinitely, without trial. That includes U.S. citizens detained on U.S. soil, as in you, on your street. A false accusation or a case of mistaken identity is as good as a life sentence. There is a feeble and vague insertion about not affecting existing law or authorities. That means that after the military whisks you away into secret indefinite detention you can hope that the courts work it out before something even more unpleasant happens to you.

Specifically (as highlighted below):

Under Section 1031 c (1), you can be detained until the end of the “War on Terror,” whenever that might be.

Under Section 1031 c (2), you can be tried in a military tribunal, lacking basic rights or rules of evidence, and including the use of confessions obtained under torture.

Under Section 1031 c (4), you can be shipped off to a foreign country of the government’s choice.

Well, there go all the good parts of the Constitution.

President Obama says he wants to veto it, albeit for all the wrong reasons. The House of Representatives still has to work it over. Apparently even the top military brass and the various branches of the intelligence services don’t want it to pass. It’s time to write the White House and your members of Congress. And call them. And raise hell in general.

Subtitle D—Detainee Matters

SEC. 1031. AFFIRMATION OF AUTHORITY OF THE ARMED

FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE.

 (a) IN GENERAL.—Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military

Force (Public Law 107–40) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition

under the law of war.

 (b) COVERED PERSONS.—A covered person under this section is any person as follows:

 (1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.

 (2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly

supported such hostilities in aid of such enemy forces.

 (c) DISPOSITION UNDER LAW OF WAR.—The disposition of a person under the law of war as described in subsection (a) may include the following:

 (1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.

 (2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111–25 84)).

 (3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.

 (4) Transfer to the custody or control of the person’s country of origin, any other foreign country, or any other foreign entity.

 (d) CONSTRUCTION.—Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.

 (e) AUTHORITIES.—Nothing in this section shall be construed to affect existing law or authorities, relating to the detention of United States citizens, lawful resident aliens of the United States or any other persons who are captured or arrested in the United States.

 (f) REQUIREMENT FOR BRIEFINGS OF CONGRESS.—

The Secretary of Defense shall regularly brief Congress regarding the application of the authority described in this section, including the organizations, entities, and individuals considered to be ‘‘covered persons’’ for purposes of subsection (b)(2).

Comments

[G3]

Well said as always. This was a post I made on FaceBook on 11/22 after the UC Davis stunt.
"Wow am I ashamed. I'm ashamed I spent a year of my life in a combat zone protecting the American Constitution so that these tough guy cops can victimize peaceful protesters exercising the Constitutional rights I've risked my life for."