Rights Infringed

I recently put up a post laughing at the ridiculous notion that requiring identification for voting amounts to vote suppression, or some sort of attack on voting rights. This is accusation is particularly funny coming from Democrats, who in certain states have been in the forefront of suppressing constitutional rights. This is definitely the case in my state of New Jersey.

We had an incident at our house where gas was stolen from one of our vehicles late at night, even though we live in a reasonably nice area. Since I currently work at night, my wife, who is disabled and not that mobile, is home with our son. The thought occurred to me that it would not be good if she were to go outside after hearing some noise, and surprise a criminal. I decided to look into purchasing a handgun, primarily for my wife's protection, and secondarily to take to a range and do some target shooting for family recreation. Although we have various weapons in the house, none of them are of the type that my wife could reasonably take outside just in case. The area is rural, but not rural enough that walking outside with a shotgun wouldn't alarm a neighbor.

After looking into it, I have determined that buying a handgun in New Jersey is probably more trouble than it is worth. Before I can buy anything, I first have to go to my local police station, and submit a detailed form. Among other things, the form requires my employer information, and two references from non-family members. You must also be fingerprinted, pay multiple fees which appear to total at least a hundred dollars, and wait anywhere from one to five months, depending on your local police department and state processing. Separate forms must be filled out for each handgun purchase, each of which requires new fees. There is a blog post here that relates the details of that blogger's experience with buying a handgun in New Jersey.

Since buying handguns out of state is illegal, I will not be getting one without jumping through all those hoops. That's because I don't want to get an illegal weapon, something I doubt criminals are too concerned with. It certainly seems to me that my 2nd amendment right to keep and bear arms is at the very least being "infringed" by all of these requirements. But somehow this must be constitutional. I haven't decided whether or not I'm going to apply to purchase. If I do I will probably post my own experience.

American Citizens, Even Terrorists, Have Rights

There's no one more outspoken than I against terrorist rights supporters, those who claim that alien terror suspects are entitled to U.S. constitutional rights. Extending the rights of Americans to foreign enemies is not only idiotic, it degrades and weakens the protections of individual liberty that we enjoy in this country, and cheapens the entire concept of U.S. citizenship. But when an American -- naturalized citizen or not -- is charged with a crime, even an act of terrorism in support of foreign enemies of the U.S., that person is still entitled to the rights specified under the constitution.

Senator John McCain asserted today that we shouldn't give the NYC car bomber his Miranda rights "until we find out what it's all about." McCain is wrong. Faisal Shahzad is an American citizen and should be treated as such. If the government can take away the constitutional rights of a U.S. citizen because they aren't convenient  in investigating an act of terrorism, then our rights are essentially worthless, subject to being suspended whenever the government decides that an act we are accused of is heinous enough to warrant ignoring the normal constitutional process. American citizenship should mean something. I know it doesn't mean much to terrorist rights supporters, but I'm disappointed to see that John McCain is willing to set it aside as an inconvenient obstacle to investigation. 

Protecting Second Amendment Rights

According to the Wall Street Journal, the Supreme Court could hand down another pro-gun ruling as it considers whether or not Chicago's handgun ban violates the second amendment.

The Supreme Court seemed ready to rule that gun possession is fundamental to American freedom, a move that for the first time would give federal judges power to strike down state and local weapons laws for infringing Second Amendment rights.

I was listening an NPR recap of today's arguments, and they agreed that the court seemed to be leaning in favor of gun rights. The anti-gun New York Times emphasizes that the court is divided, but even its report concedes that the arguments

suggested that the five-justice majority in the 2008 decision that first identified an individual right to keep and bear arms was prepared to take another major step in subjecting gun control laws to constitutional scrutiny.

The main argument of the gun banners seems to be that guns are different because they can be used to harm or kill people. Therefore states can freely ignore the second amendment and regulate guns however they wish. There's an obvious problem with this argument -- it's completely illogical. What is the point of having a right specifically stated in the Bill of Rights, if it can be utterly negated by state action? A right that supposedly only protects individuals against federal government action is no right at all. 

The Chicago handgun ban is a clear violation of the second amendment and should be overturned by the Supreme Court. We already accept that constitutional rights are subject to certain regulations. For example, free assembly doesn't mean you are free to assemble 50,000 people and block traffic in the middle of a major city -- without getting permits and permission. Likewise, even most gun rights advocates recognize that government can regulate aspects of firearms possession. But the key is whether or not regulation is reasonable and justifiable, rather than an attempt to remove the right entirely. A complete ban on handguns, an entire category of the most popular & handy firearm used for self-defense, is not reasonable regulation. It is a sweeping attack on the right to bear arms itself. Hopefully the articles above are correct, and the court will move to protect and expand individual freedom, by striking down Chicago's unconstitutional gun ban.

Majority Rejects Terrorist Rights

That's according to the latest Rasmussen poll. A solid majority of 58% support the use of "waterboarding and other aggressive interrogation techniques" to get information out of the underwear bomber. Only 30% oppose. And a full 71% oppose treating the terrorist bombing attempt as a normal civilian crime, as the Obama administration is doing.

It's funny, when you hear the self-righteous moralizing of terrorist rights supporters, and their contemptuous disgust of those who don't share their fanatical belief that U.S. constitutional rights apply even to alien terrorists. You might think think they were in the majority, condemning some fringe extremists -- barbarians who support the use of torture. Whereas in fact, they are actually a minority. Whenever terrorist threats gain the attention of the public, minority support for terrorist rights drops even further. That's what happens when foolish utopian ideas run up against harsh reality. Pretending that foreign terrorists are just common criminals who should have rights and normal access to the legal system is fine with many, as long as they aren't paying too much attention to terrorism, and the threat seems pretty abstract and remote. 

Are the supposed "rights" of a known foreign terrorist more important than gaining information that might prevent future acts of terrorism? When that question is framed against the backdrop of a real terrorist threat, most people will rightly reject terrorist rights.

Elements of the Left Actually Defend Free Speech

Far too often, much of the left is in favor of free speech only if they agree with the speech in question. This was demonstrated yet again when Full Equality Now DC, a pro-gay marriage activist group, demanded that ads from an anti-gay marriage organization be removed from Washington DC public metro transit. Their basic argument, typical of the left, was that the message was "offensive," and therefore should be banned. Nevermind that the whole idea of free speech is to protect expression that others might find offensive. 

But, since I bash the left on a regular basis for its attitude toward free speech, credit must be given when due. And in this case, other organizations and individuals on the left, including Colbert King, author of the article I'm quoting from, stepped up in support of the right for opposing views to be heard.

The group includes Mitch Wood, president of the Gay and Lesbian Activists Alliance; Arthur B. Spitzer, legal director of the ACLU of the Nation's Capital; Jeffrey D. Richardson, president of the Gertrude Stein Democratic Club; Aisha C. Mills, president of Campaign for All D.C. Families; and activist Richard J. Rosendall

As King writes,

Speaking not only for themselves but also for people like me, they said: "Free speech is not only for those whose beliefs we find acceptable. The proper response to offensive speech is more speech. Your proper response to Full Equality Now DC, therefore, is that those who object to ads by Stand For Marriage DC are free to place their own.

King also notes,

So it was heartening to see how some citizens reacted to the issue raised by the Metrobus advertisements. The conflict provided a good -- but rare -- example of citizens standing up for the principle of protecting despised speech of a disagreeable speaker.

It's particularly rare when it comes from the left, and is therefore especially noteworthy.

Obama & Human Rights

Bret Stephens has an article in today's Wall Street Journal called, "Does Obama Believe in Human Rights?" In it he makes the argument that the president is basically unconcerned with advancing human rights, and sees that issue as interfering with his policy of engagement. I've been extremely critical of Obama's foreign policy. In my view, engagement appears to be a euphemism for naivety, pointless talk, wishful thinking, and appeasement. But I have to take issue with the logic behind Stephen's criticism of Obama on the human rights front, particularly this assertion,

It also takes a remarkable degree of cynicism—or perhaps cowardice—to treat human rights as something that "interferes" with America's purposes in the world, rather than as the very thing that ought to define them.

I find that position remarkably obtuse. The primary purpose of the U.S. government is, or should be, to advance the interests of the United States and its people, not to promote human rights for the rest of the world. I'm not sure how Stephens can deny that promoting human rights could sometimes interfere with American interests. There are numerous examples, of which China is an obvious one. How does it serve U.S. purposes to attack China on human rights at the possible expense of valuable economic ties? Is it the primary purpose of the U.S. to help people in China achieve more rights? If it is, it shouldn't be. I don't want a president who thinks helping the people of China is more important than maintaining relations that benefit America.

I have no problem with the U.S. promoting human rights when it makes sense to do so. Often such an emphasis correlates with our foreign policy goals, and is therefore a worthy aim. But the U.S. government shouldn't be a purely altruistic entity that puts human rights above all else. It's a national government, not a human rights organization. If the promotion of human rights clashes with American interests in a particular case, then the issue of rights should take a back seat. Bret Stephen's notion that human rights should "define" America's purpose in the world, is every bit as naive and dangerous as any of President Obama's ill-conceived foreign policy ideas.

Defending Goat Sacrifice?

Eric Rassbach, National Litigation Director at The Becket Fund for Religious Liberty, has an article in today's Wall Street Journal called, "Why I Defend Goat Sacrifice." Rassbach represents a Santeria priest in Texas, and defends his client's " religious practice of killing goats in his home in the Dallas suburbs." Here's the crux of Rassbach's argument:

freedom of religion doesn’t mean much if it protects only those beliefs that the government, or the general populace, decides it likes. It is first and foremost unpopular beliefs that need the protections afforded by the First Amendment and international human rights treaties like the Universal Declaration of Human Rights.

But religious freedom is not the exact equivalent of free speech rights. Religious practices go far beyond mere speech and can involve things that are otherwise unacceptable for various  good reasons.  Suppose someone decides to become a worshipper of Moloch, and feels obligated to sacrifice his first-born child. That would be an unpopular belief. Is it protected by the First Amendment? What about religious beliefs that advocate the marriage of adult men to underage children? Do we have to tolerate those practices on behalf of religious freedom? There is no absolute right to religious freedom as Rassbach seems to argue. 

One Step Forward, Two Steps Back

That's the Obama administration. Every time the Obama administration does something positive, such as recognizing the necessity for indefinite detentions in certain cases, it turns right around and does something contrary to U.S. interests. According to the Wall Street Journal,

The Justice Department has determined that detainees tried by military commissions in the U.S. can claim at least some constitutional rights, particularly protection against the use of statements taken through coercive interrogations, officials said.

Unlike the Bush administration, which despite its many faults, at least understood that hostile aliens have no constitutional rights, the Obama administration seems determined to pretend that they are somehow entitled to them -- even if it wants to pick and choose which ones they get.

If we are going to grant foreign terror suspects constitutional rights, there is no point in using military commissions at all. Just try them in regular court, watch them go free, pay out their lawsuits against the U.S. government, and wait to see what new terrorist activities they get involved with. That's the preferred option of terrorist rights proponents. 

Indefinite detention would not be necessary if the Obama administration simply recognized that hostile aliens neither have nor deserve rights of any kind -- let alone during wartime. Military tribunals should simply be able to weigh the evidence against each prisoner, come to a determination of guilt or innocence, set the innocent free, and hand down sentences to the guilty. We are making things way more complicated than necessary.

DNA Database Expansion

The New York Times reports that starting this month, the FBI will massively expand its DNA databases to include the genetic information of people who haven't been convicted of anything.

the Federal Bureau of Investigation will join 15 states that collect DNA samples from those awaiting trial and will collect DNA from detained immigrants — the vanguard of a growing class of genetic registrants.

Essentially this means that if you are arrested and charged with a crime, your  DNA could be recorded by the FBI and stored in a database.  As an expert quoted by the Times said,

“Over time more and more crimes of decreasing severity have been added to the database. Cops and prosecutors like it because it gives everybody more information and creates a new suspect pool.”

It expands the "suspect pool" to include many more innocent people. If you were charged with a crime but completely innocent, it won't matter. You will be a possible suspect in future crimes, because your DNA will be sitting in a database along with actual convicts. Hopefully the ACLU will find the time to act against this disturbing expansion of police power, in between defending terrorists and trying to cripple the CIA.    

Aim the State at Our Enemies Abroad

Safety in general and national security specifically are probably the two main justifications for the state reducing the liberty of its citizens -- especially here in the U.S. Much of the right accepts expanded state power in the interests of national security and protection against crime, while the left often supports it on the basis of economic safety & security. Times of crisis exacerbate these tendencies, as we saw after 9/11, and we are now seeing because of the economic meltdown. The problem with any expansion of state power, no matter how justified it seems at the time, is that the liberty lost is almost never regained. Many small things that seem almost trivial and certainly not worth worrying about, become taken for granted. This is particularly true of any measures taken in the name of safety and security. Regulations for airline passengers are an obvious example. 

Like most threats, the state has two main strategies for dealing with terrorism: offense and defense. If one of these strategies fails, it is almost axiomatic that the other one will gain increased precedence. Our defenses against terrorism failed on 9/11. That failure produced an unprecedented surge of offensive efforts to stamp out terrorism, to the point that we even engaged in a so-called "War On Terror." There were also increases in defensive measures of course, such as the Patriot Act, the creation of the Department of Homeland Security, and so forth. But an offensive strategy dominated.

Anyone that cares about freedom, and favors a minimum of state reduction of liberty in the name of security needs to ask one question: Which strategy is less damaging to to the rights and freedoms we enjoy here in the U.S.? In my opinion an offensive strategy that aims the power of the state at disrupting our enemies abroad, is far preferable to more defensive measures at home that invariably impact the liberty of Americans. This is a major reason why the blind legalism of the terrorist rights movement is so dangerous.

The anti-terrorist actions taken by the CIA and other arms of the U.S. government abroad, do not affect the rights of Americans here at home, and they may help prevent attacks on the U.S. But another successful attack on the U.S. will inevitably lead to defensive measures that reduce the liberty of our citizens. There will be more surveillance, more police powers, and more domestic security efforts of all types. Secret CIA torture of someone like Al-Nashiri at a secret location, has zero impact on the liberty of U.S. citizens. Zero. But the attempt to provide terrorists with rights, and to cripple the clandestine operations of the CIA with legal restrictions, is a direct assault on one of our main offensive weapons against terrorism. And if offense fails, increased defensive efforts are inevitable.

Military force is a clumsy, blunt instrument against terrorism, as our efforts in Iraq and Afghanistan demonstrate. Intelligence is the key to any offensive strategy that aims to disrupt terrorists abroad before they can attack. In order for intelligence efforts to be successful they need two things: secrecy & flexibility. Misguided attacks on the CIA which expose its cloak of secrecy and attempt to impose legalistic restrictions on its operations abroad have no benefit to American freedom and liberty, and may instead help undermine it by reducing our ability to prevent attacks.

The Wages of Incompetence

Stuart Taylor at National Journal has an article up called, "A Judicial Decision That Plagues Obama." It's a great analysis of how the incompetence and overreach of the Bush administration led to the judicial backlash that hampers our ability to deal with hostile aliens.  I've argued that hostile aliens have no rights and should have none. Taylor shows that this isn't a particularly radical view, but was instead the standard legal interpretation until recently. He quotes the 1950 decision Johnson v. Eisentrager:

"We are cited to no instance where a court, in this or any other country where the writ [of habeas corpus] is known, has issued it on behalf of an alien enemy who at no relevant time and in no stage of his captivity has been within its territorial jurisdiction. Nothing in the text of the Constitution extends such a right, nor does anything in our statutes."

So what changed? As Taylor explains,

the Bush team seized on its presumed freedom from judicial oversight, spurned the advice of military lawyers, and denied the detainees any semblance of due process, while subjecting some of them to brutal interrogations.

Rather than taking care to separate the innocent or various categories of suspects from the confirmed terrorists, the Bush administration acted in a clumsy and incompetent manner, with the result that innocent victims were subjected to the same interrogation procedures as the guilty. And it failed to provide "a fair opportunity" for anyone seized by mistake to plead their case and possibly secure release.  By failing to create a system to sort the innocent from the guilty, asserting the authority to lock detainees up forever, and using questionable (at best) interrogation techniques on captives regardless of innocence or guilt, it created a backlash that has led to the current situation --where people are actually arguing that hostile aliens should have similar rights to U.S. citizens.

Although I strongly support the option to use extreme measures, including torture, on unmistakably known terrorists like Khalid Sheikh Mohammed, the rest of the Bush administration's record in dealing with detainees is a legacy of incompetence & failure. As Taylor argues, the resulting judicial backlash will hamper the Obama administration in fighting terrorism, and depending on what happens

The potential for disruptive and even dangerous judicial intrusions into military matters is considerable.

Just because the Bush administration's incompetence caused all sorts of problems, doesn't mean the situation can't be made even worse by misguided efforts that go too far in the other direction.

No Rights for Hostile Aliens - Part II

Part II - Rights for Hostile Aliens are Dangerous

In part one of this post, I argued that granting rights to hostile aliens is unnecessary, because such individuals are more properly represented by their home countries, and do not need or deserve access to the U.S. court system. But a more important case against such rights is that they are extremely dangerous. The creation of such rights damages the United State far beyond anything the Bush administration is supposed to have done.

Let's consider the obvious dangers first. Restricting flexibility in handling and holding prisoners will hamper our intelligence gathering and lead to the release of dangerous individuals, because of legal rules that were never meant to apply to such situations. Since intelligence is critical in stopping terrorist attacks before they get underway, the effort to grant hostile aliens legal rights automatically makes a such an attack more likely. In addition, this will be used as a weapon against the U.S. By granting active enemies access to our court system during times of war and conflict, we allow them to manipulate our own laws and legal processes to their advantage. And it goes without saying -- or it should -- that this is not in the interests of the U.S. When a hostile is captured, the fact that he will soon have legal representation and standing in U.S. court will need to be taken into account, as will the possibility that his release could be ordered by some civilian judge back in the U.S.. These calculations will almost certainly have a negative impact across the board on military and intelligence operations. In some cases they could lead to potential prisoners being killed instead of captured, in order to avoid legal entanglements.

But there are far more dangerous implications that may not be immediately obvious. The creation of new rights, or the extension of existing rights is a momentous step and should not be undertaken lightly -- as a form of backlash against the policies of an unpopular president. Executive branch methods of operation can be reversed by a new president. Congress can make new laws and throw out old ones. But once rights are created, along with the legal precedents that support them, they can almost never be taken away -- except by constitutional amendment. U.S. constitutional rights are critical to American freedom, and make the U.S. what it is today. Regardless of whether you think rights have independent existence through natural law, from God, or by way of other sources, in practice U.S. citizens have the rights that they do because our political system recognizes and supports them. In other words, our rights form a critical component of our nation which sets it apart.

Organizations such as the ACLU, most on the left, and many libertarians, have embraced an extreme concept of rights that completely ignores the benefits of American exceptionalism. They would have you believe that we need to extend our rights not just to legal alien residents of the United States -- which itself is highly debatable -- but to hostile aliens captured abroad during times of conflict. They like to claim they are just supporting the "rule of law," instead of pushing a radical new concept which includes an extension of judicial power into areas rightly governed by the executive. By the traditional and customary rule of law for much of history, many of the individuals in question are subject to summary execution without trial as illegal combatants. If these enemies have the same or similar rights as U.S. citizens, how much are U.S. rights worth? This entire concept is an attack on the fundamental nature of America and the value of U.S. constitutional rights.

Many Americans have already forgotten 9/11 for all practical purposes. They are apathetic or even mildly supportive of changes that seem to reverse the policies of an unpopular president. But what will happen if there is another major attack on the U.S.? Although it is extremely difficult to undo rights during peacetime, it is an unfortunate fact that rights suffer during wartime emergency situations. When the government, backed by massive public support, decides to infringe upon or even suspend certain rights, will it be a good thing that the constitutional rights of Americans are no longer anything special? Would it then be useful to have a clear & sharp distinction between the rights of American citizens and hostile aliens such as known terrorists?

No Rights for Hostile Aliens - Part I

Part I - Rights for Hostile Aliens are Unnecessary

Many felt that the Bush administration's assertion of executive branch power went too far. Some cases justified this view, such as when Jose Padilla, a U.S. citizen, was labeled an enemy combatant, stripped of his constitutional rights and imprisoned without charge. The courts rightly intervened and acted as a check on an overly broad assertion of executive power that potentially threatened the rights of all Americans. But the backlash caused by the Bush administration has gone far beyond a check on executive power, and instead has greatly expanded judicial power into areas that have traditionally been the prerogative of the executive branch. This trend is both unnecessary and dangerous. In my opinion, it is far more dangerous than any of the questionable actions taken by the Bush administration.

Even if it were a rational and desirable thing to grant rights to hostile aliens, it would be unnecessary, because they already have adequate protection. Any alien dealing with the U.S. can and should be represented by his/her home state. This has long been the primary means by which states deal with citizens of other countries in times of conflict or war. If an alien is captured and detained by the U.S., his home state is free to demand an explanation for his capture and imprisonment, and if not satisfied, to request his release or other measures. In some cases states can even intervene on behalf of their resident aliens, as the U.K. did for Binyim Mohamed. If the state representing the alien and the U.S. government cannot come to a resolution, then, and 
only then, should the matter end up in court -- if the alien government sues on behalf of the captive. Cutting out the foreign governments, and allowing each individual detainee representation in U.S. court is not only incredibly stupid, unmanageable and dangerous, it is also a radical change from customary & traditional practice, especially in time of war. 

It should be obvious, but the aliens in question are not peaceful residents or visitors to the U.S.. They are presumed hostile individuals captured overseas. In some cases they are actual known enemies, caught in acts of war or positively identified by clear & undeniable evidence. They are not and should not be entitled to any rights whatsoever, except the right to have the U.S. notify their home country that they have been captured. If their home country declines to intervene on their behalf, it is not for the U.S. to make up for the deficiencies of every other country.

Part II of this post will cover the dangers of extending rights to hostile aliens.

The Non-existent Right to Privacy

The Miami Herald ran a story on Saturday which gives another example of why I laugh whenever anyone cites the non-existent "right" to privacy. Apparently insurance companies deny applicants based on the medications they are taking, even if those applying don't reveal that information. If you thought your medical information was private, think again. The Herald found that data-mining operations harvest information from pharmacies and other drug suppliers, and then sell that information to insurance companies, which use it to deny applications. If someone knows what drugs you are on, they know your medical conditions. 

As a default position I assume that any information that passes through electronic media of any form, including the telephone, is not private. If someone wants it bad enough they can get it.

Releasing Terror Suspects on Bail

Suspected terrorist Ali al-Marri has a bond hearing today. That's right, the so-called "Al Qaeda sleeper agent" is being considered for bail. It's kind of funny in an unbelievably stupid sort of way. Here we have an individual, a Qatari national, who has been deemed a great enough threat (apparently based on substantial evidence) that he's been held in military prison for five years as an enemy combatant. But now we are actually considering letting him walk free on bail while awaiting trial. What possible risk could come from letting a suspected terrorist loose in the U.S.?

Now granted, the fact that this situation exists at all is the fault of the Bush administration, who simply decided to lock people away indefinitely with no effective plan for what to do with them. In my opinion the obvious known terrorists should have been condemned by military tribunal and executed. This includes Al Marri, if we know for a fact that he trained at an Al Qaeda camp, as the Washington Post timeline I linked indicates. Any suspects facing charges in other countries, where we were sure they would be imprisoned or executed, should have been deported and disposed of that way. Those with no real evidence against them should have been deported to anyone willing to take them and held in protective, but much more lenient confinement in the meantime. The questionable cases should have been tried by military tribunal. If any country interceded on the behalf of a suspect (such as Britain with Binyam Mohamed), we could have treated those cases on an individual basis.

But as we are now seeing, the worst idea of all is to treat foreign terrorist suspects as criminals, allow them access to civilian lawyers, and provide them with undeserved rights under the criminal justice system.  We now face the ridiculous situation where a lawyer is arguing that a suspected Al Qaeda terrorist from Qatar should be free to roam around the U.S. while awaiting trial. And we actually have to take that argument seriously, instead of dismissing it out of hand with the derision that it clearly deserves. Putting foreign terror suspects into the U.S. criminal justice system isn't a victory for civil liberties, American values, or the rule of law, it's a triumph of stupidity over reason.

No Constitutional Rights for Enemy Aliens

From CBS News:

President Barack Obama's Justice Department sided with the former Bush administration on Friday, saying detainees in Afghanistan have no constitutional rights.

The Obama administration maintains that Bagram prison is located in

an overseas war zone and the prisoners there are being held as part of a continuing military action.

No doubt the usual suspects will be outraged by this action. It doesn't look like Obama buys into their excessive concern for the imaginary rights of presumed enemy aliens. And those on the right who are already engaging in over-the-top criticism of Obama's foreign policy might want to tone it down a bit. This and other actions are positive signs that the Obama administration takes a more realistic attitude toward foreign policy and national security than many of us feared.

Religious Freedom & Guantanamo

The Washington Post  "On Faith" section has a daily column called "Under God." The latest article looks at a court case involving four British Muslims, held for two years and released uncharged, who claim that they were tortured and denied "their rights to practice their religion." They assert that

during their detention their beards were shaved, their daily prayers were banned or interrupted, copies of the Koran and prayer mats were denied to them, and one copy of the Koran was thrown in a toilet bucket in their presence.

Their case was unanimously rejected by the federal appeals court, but the Supreme Court is giving them another chance to make their case.  The appeals court, among other things, ruled that foreign non-resident detainees are not entitled to the same rights as U.S. citizens and legal resident aliens.

The Post writers are highly sympathetic to the former prisoners, are incredulous about the appeals court reasoning, and tout the fact that various religious groups share their position.

I don't share their views.  Let's pretend that the former prisoners even have a case based on something other than their own unsubstantiated assertions -- a big assumption.  And let's exclude the torture part of their claim, since this article only deals with the religious freedom aspect.  This case is still a complete waste of time and should be dismissed.

First, the appeals court was correct. Non-U.S. citizens do not and should not have the same rights as U.S. citizens.  The idea that they do, because the constitution refers to "people" or "persons" is simply ridiculous.  That notion is even more absurd when applied to presumed hostile aliens captured during wartime.

Then there are the specifics of the claim about being denied the rights to practice their religion. When you are in custody, even if you are a U.S. citizen, your full ability to practice your religion is going to be restricted.  There are dress and hygiene requirements in prison.  You don't get to have all the ceremonial implements you might think you need.  If your religion requires you to sacrifice a goat every Tuesday morning, is the prison going to provide you with a goat and a knife? Prisons have schedules, and prisoners aren't free to do whatever they want.  If you think you need to pray at a fixed time, it's likely that you might be interrupted occasionally.  If your prayers are loud, disruptive or otherwise irritating, they might be banned.  

All of the allegations in the claim can be easily understood as reasonable restrictions on religious practice based on prison conditions.  The Koran in the toilet incident, if it even occurred, was a an alleged trivial single occurence in a two year span and is therefore irrelevant -- especially since we don't know the circumstances. This "religious freedom" case is a frivolous suit based on shaky claims of constitutional rights that don't even exist for the persons in question.

As an aside, there is a hilarious quotation in the article by J. Brent Walker, executive director of the Baptist Joint Committee, and one of the Washington Post's "On Faith" panelists.  

When anyone's God-given religious freedom is denied, everyone's is threatened

Religious freedom is "God-given"?  Really?  Which god is in favor of religious freedom? Mr. Walker might want to read back through the bible and see what his god has to say about the practice of other religions.  He can start witih "Thou shalt have no other gods before me." Exodus 20:3.  

Gay Marriage & the Creation of Rights

The proposition eight situation in California illustrates the dangers inherent in judicial creation of pretend "rights."  I support the legalization of gay marriage.  The U.S. has been moving steadily in a direction that is more tolerant of homosexuals, and we are slowly getting to the point where gays have all the same rights as heterosexuals.  But it is a slow process.  Gay rights activists, and the left in general. are unwilling to wait on the Democratic process to change the laws,  let alone the constitutions of states, or of the nation.  Instead they prefer to use the judiciary in order to find imaginary rights to gay marriage, thereby legalizing it against the wishes of the majority. 

Judicial activism designed to create "rights" has a number of problems.  Most importantly, these rights are imaginary.  They are clearly & obviously not found in either the U.S. constitution, or state constitutions,  and are supported by nothing other than the opinion of a few judges. Whether or not they should be rights is irrelevant, since they do not have the force either of majority opinion as with a law, or of the supermajority necessary for a constitutional right.  Using this tactic risks antagonizing the majority, creating a weak right, and causing a backlash that can result in the majority removing that right by legislative action.  This is what happened in California.  Even such a liberal state is not yet ready to legalize gay marriage.  The country has moved far, but not far enough.  Look at Barack Obama.  He is arguably one of the most liberal Democrats ever elected president.  But even he is on record opposing gay marriage.

Gay rights activists argue that it isn't fair that gays should have to wait to achieve the same rights as heterosexuals.  They want their rights now.  I agree, it isn't fair that they have to wait. But life isn't fair.  The U.S. has a legal process involved in changing the laws, and amending constitutions.  If you use the courts to go outside this process, against the wishes of the majority, you not only undermine our Democratic institutions, you create antagonism toward your cause, or even open hostility.  And your newly created "right" is a weak reed supported by nothing.  It was put in place against the wishes of the public, and exists only as long as it is tolerated by the majority.