Balkinization  

Friday, June 08, 2007

"Necessity" v. "self-defense"

Sandy Levinson

Marty's post below on detaining children and using them as bargaining levers illustrates an important difference between the logics of "necessity" and "self-defense." (I might add that this is the subject of an excellent piece by Miriam Gur-Arye in the book I edited, Torture: A Collection, and I draw much of what follows from her analysis.) Whatever one thinks of the "ticking time-bomb" scenario--and I agree with Kim Scheppele, David Luban, and others that it is remarkably unilluminating with regard to our present "war on terror"--at least its canonical form always involves someone who is plausibly regarded as the perpetrator or someone in a conspiratorial relationship with the perpetrator. This is what gives credence to a "self-defense" rationale for interrogation--that the person being interrogated, even if not a threat to the life of the interrogator him/herself, is a threat to the lives of persons that the interrogator has a duty to be protecting. (It is this latter rationale that licenses the police to use deadly force against certain fleeing felons even though, precisely because they are fleeing, they can't be said to be threatening the police officer him/herself.) Quite obviously, a "self-defense" rationale offers no license whatsoever, under any conceivable circumstances, for detaining and threatening or doing anything else amiss to the innocent child of an alleged perpetrator, because, by definition, the child is in no plausible sense a "cause" of the threat.

Only a "necessity" argument can justify going after the child, because its basis is ultimately the kind of argument that has always given utilitarianism a bad name: i.e., if the gains of an expected act are high enough, then one can indeed engage in any action whatsoever to procure those gains, including detaining (and, for that matter, torturing) innocent children. Nothing is viewed as per se illegitimate. (A "self-defense" rationale can be used to justify "severe" forms of interrogation--some would even say torture--but only against someone who is legitimately thought to be the source of the threat. To that extent, there are inherent limits, based on the identity of the person being interrogated.)

If these allegations about the US are true--and I agree with the quoted posting in Marty's posting from Hilzoy that one of the truly awful things about the Bush Administration is that such allegations have become all too plausible instead of being instantly dismissable on the grounds that "we don't do that sort of thing"--then we (i.e., all members of the political community for whom the current administration purports to speak) have taken a step further down the road to barbarism, since, as noted above, there are truly no limits to what can be defended if one embraces a "necessity" rationale with regard to gaining intelligence. No doubt, many in the Administration would describe themselves as opposed to a view that "the end justifies the means." But no other philosophy is available to justify what the US is accused of doing. Jesus may be George W. Bush's favorite philosopher, but the behavior of his administration is a crude parody of Benthamite utilitarianism.

Comments:

Oddly enough, does this train of events lend credence to Justice Scalia's defense of an originalist interpretation of prohibitions against cruel and unusual punishment under the Eighth Amendment? Because whereas Scalia's Constitution does not evolve towards a higher evolving standard of decency, it also does not (at least in theory) allow the political community to sink below the standards of decency exhibited at the time the amendment was promulgated. Of course this elides entirely the problem of the total lack of rights for aliens, particularly those held outside U.S. territory (or areas with more murky status, such as Guantanamo). But if there is a coursening of what is contemplated as acceptable (or thinkable) by public, why would this not seep into the domestic arena, even if not in as extreme a form as occurs off U.S. shores (but don't tell this to Padilla's lawyers [I would say Padilla but he is apparently no longer coherent]). Scholars of American Political Development have recently explored the notion that our politics do not necessarily just develop (or progress). Rather they see periods of retrogression and complicated interweaving of contests between reactionary and progressive interests and factions. Sometimes things regress (assuming we have a roughly identifiable definition of "progress"). In which case Scalia's defense of cruel and unusual has some merit, because we can, and are, apparently, regressing.
 

I would like to see this slightly altered hypothetical posed in the next GOP candidate debate:

The questions in this round will be premised on a fictional, but we think plausible scenario involving domestic terrorism and the response to it. Here is the premise: Three shopping centers near major U.S. cities have been hit by bombers from a domestic anti-government militia. Hundreds are dead, thousands injured. A fourth attack has been averted when the attackers, sympathizers of Timothy McVeigh, were captured in the Midwest and taken to an FBI field office in St. Louis, where they are being questioned. The FBI believes that another larger attack is planned and could come at any time.

First question to you, Mayor Giuliani. How aggressively would you interrogate those being held in St. Louis for information about where the next attack might be? Would you instruct FBI interrogators to employ "every method they could think of?"

 

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Seymour Hersh speaking at an ACLU event. He says the US government has videotapes of children being raped at Abu Ghraib prison in Iraq.

"Some of the worst things that happened you don't know about, okay? Videos, um, there are women there. Some of you may have read that they were passing letters out, communications out to their men. This is at Abu Ghraib ... The women were passing messages out saying 'Please come and kill me, because of what's happened' and basically what happened is that those women who were arrested with young boys, children in cases that have been recorded. The boys were sodomized with the cameras rolling. And the worst above all of that is the soundtrack of the boys shrieking that your government has. They are in total terror. It's going to come out."

Are Dick Cheney, George Bush, Donald Rumsfeld et. al. war criminals if this is true?

Can they be prosecuted criminally?
 

With regard to JAO's altered hypothetical, why not change "shopping malls" to "abortion and family planning centers" and include, among those rounded up, the young children of those who are suspected of planning yet more attacks?
 

Prof Levinson,

I was just trying to transplant Brit Hume's hypothetical directly to a domestic context. Of course, as you suggest, the hypothetical can be altered further.

It is also interesting, once one adopts the ticking scenario and the principle that the end justifies the means, to bring it down to a conventional law enforcement situation of locating a single kidnap victim. In a such a law-enforcement context, our society has long foresworn torturing even suspected kidnappers. I hope that is still true, but I do wonder where Giuliani, Romney and their companions would draw a new legal and moral line now that they have erased it for "Guantanamo."
 

Professor,

The self-defense rationale as you describe it collapses easily into either the necessity rationale or an excuse to punish. The suspect is detained and interrogated only if it is necessary to do so to defend the public. Assuming the terror suspect refuses to answer questions under either conventional interrogation or "enhanced interrogation," the threat to the public remains viable. The "cause" of the threat in this scenario is not the suspect himself, but his refusal to answer questions. The means to removing that cause may be abduction of the suspect's children or family. And thus the self-defense rationale merges with the necessity rationale. To argue otherwise would be to admit that the torture is applied to the suspect because the suspect is morally culpable--i.e., the torture is a form of punishment. If interrogation/torture of the suspect do not in fact protect the public by yielding actionable intelligence, then the only reason to continue interrogating him in this manner is to punish (of course, "self-defense" may justify continued detention.). That is inconsistent with the stated purpose of "enhanced interrigation procedures"--the collection of intelligence. Under the logic of torture, it would be more justifiable to torture the family members--though they are entirely innocent--than to torture the suspect if doing so would yield more effective intelligence.
 

"because its basis is ultimately the kind of argument that has always given utilitarianism a bad name:"

And rightfully so, I might add.
 

JaO:

I would like to see this slightly altered hypothetical posed in the next GOP candidate debate:

"The questions in this round will be premised on a fictional, but we think plausible scenario involving domestic terrorism and the response to it. Here is the premise: Three shopping centers near major U.S. cities have been hit by bombers from a domestic anti-government militia....


Such a think would never happen. Not possible. We're not like those Islamofascists who have no respect for human life, the laws of war, Amur'kah itself, or even their own lives. You suffer from Bush Derangement Syndrome with your paranoid fantasies about RW plots against your freedoms and your life. RWers are the people that most uphold Amer'kun ideals and it's commie-lib symps like you that would have us surrender and not fight back in any way possible ... oh ... <*reading one a bit*>:

... Hundreds are dead, thousands injured. A fourth attack has been averted when the attackers, sympathizers of Timothy McVeigh, were captured ...

Nevermind. Can't we just move on?
-- "Bart"

Cheers,
 

While such scenarios are not strictly impossible, (No violations of physical law being required by them...) thinking them at all plausible requires a serious failure to understand the nature of the militia movement.
 

Seymour Hersh speaking at an ACLU event. He says the US government has videotapes of children being raped at Abu Ghraib prison in Iraq.

"Some of the worst things that happened you don't know about, okay? Videos, um, there are women there. Some of you may have read that they were passing letters out, communications out to their men. This is at Abu Ghraib ... The women were passing messages out saying 'Please come and kill me, because of what's happened' and basically what happened is that those women who were arrested with young boys, children in cases that have been recorded. The boys were sodomized with the cameras rolling. And the worst above all of that is the soundtrack of the boys shrieking that your government has. They are in total terror. It's going to come out."

Are Dick Cheney, George Bush, Donald Rumsfeld et. al. war criminals if this is true?

Can they be prosecuted criminally?

I think it is fair to assume that this would not have occurred without the use of the Bush's so-called enhanced interrogation techniques and the encouragement of "turning on the information" no matter how polluted.

Our troops in the past have not committed atrocities on a systemic scale before on POWs, detainees, enemey combatants... NO ONE!

We don't condone torture (yes, it's happened, but never on this scale under such authority) because it is morally wrong. Simply because our enemies did it, AMERICANS prided themselves on their sense of justice, fairness and humanity. At least that's what we strive for in our actions.

BUT, if Hersh is correct, and we have ZERO reason to think he's not, AMERICA has committed systemic violations of human rights, committed acts of torture and wrongful detention and forever stained our reputation.

Bush has REPUDIATED everything that America values. Freedom, fairness, tolerance and reason.

If we don't investigate our own war crimes can we cry foul when others do?

Under what construction of these facts are Bush, Cheney, Rumsfeld, et al. war criminals?
 

brett,

why is it so hard to imagine that if Timothy McVeigh were pulled over in his truck with a map of court houses on it that he might be subject to a little enhanced interrogation?

c'mon... you watch 24 don't ya?
 

or say the local gun merchant sold a bunch of guns to a militia outfit and the FEDS want to know where they're holed up?

it's Guliani Time!
 

"why is it so hard to imagine that if Timothy McVeigh were pulled over in his truck with a map of court houses on it that he might be subject to a little enhanced interrogation?"

I'd have to say that's quite plausible. However, Timothy McVeigh wasn't a member of the militia movement. (He tried to join the Michigan Milita, and got rejected.) And it was the militia movement I said Arne's hypothetical betrayed a serious lack of understanding of, not Timothy McVeigh.

McVeigh was not, when I last had any dealings with the militia movement, seen as a particularly sympathetic figure. And this would come as no suprise to anyone who actually understood that movement, rather than swallowing the SPLC's lurid portrayal of it.

The militia movement originated from a fear that the federal government was destined to become sufficiently totalitarian that an armed resistance would be needed to win back our liberty. And that, metaphorically, the time to buy your fire extinguisher is before the house catches fire.

While McVeigh's outrage over Waco and Ruby Ridge were considered understandable, his actions were thought an evil on a par with the the atrocities he was protesting. (BTW, this was, in fact, the point of McVeigh's actions. He set out to replicate Waco with the BATF in the place of the Davidians, innocent children being burned to death and all. His way of saying, "How do you like being on the recieving end of it for once?" to the BATF.)

If anything, rather than being sympathetic towards him, militia members tended to suspect that the OK bombing was some kind of Reichstag fire, intended to provide political cover for... A crackdown on the militia movement. McVeigh was seen as, at best, a morally and politically obtuse nutcase, at worst an agent provocateur.

Further, even if militia members were interested in committing some kind of terrorist strike, attacking shopping malls makes no sense from the perspective of a movement that sees itself as defending the people against a hostile government.

Now, if you subtituted the white supremist movement for the miltia movement, and made it a shopping mall in a racially mixed neighborhood, the hypothetical starts to make at least a little sense...
 

I don't agree with your characterization of utilitarianism. In this example, one might place a very high value on preserving standards of behaviour, making a decision to use the innocent as hostages unacceptable under any conceivable circumstances. The problem is not with utilitarianism per se (which in my opinion is a laudable attempt to put ethics into a logical framework) but rather the values that one chooses to assign within it.
 

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Brett,

Whether the hypothetical bad actors in custody are called "militia" or something else is really immaterial. The important element is that they are acting, and held in custody, in a domestic context.

(I really don't care whether you think the scenario is plausible or not. I thought Brit Hume's original hypothetical was a stretch. But that's the thing about posing hypotheticals in such a political "debate" -- the questioner gets to make stuff up.)
 

Just because your particular militia movement would not have been involved in something like this while you were there, it is not unreasonable to imagine other militia movements taking the action McVeigh did.

McVeigh may have been rejected by the Michigan Militia movement, although I am not sure about that fact or the surrounding context, but he was a familiar figure at gun shows, self-identified with parts of the militia movement's aims and beliefs.

My question to the Republican Candidates is whether or not, upon his capture... its... Guiliani Time!
 

The militia movement originated from a fear that the federal government was destined to become sufficiently totalitarian that an armed resistance would be needed to win back our liberty. - Brett

I think McVeigh would agree with you and to that extent agree with a main tenet of the militia movement.
 

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anyone who spent as much time at gunshows as McVeigh was bound to pick up militia movement ideology.

and in fact he believes it and accepts these basic tenets as fact.

that the government is out of control and repressing its own citizens.

it is the duty of patriot to fight back.

really he is no different than George Bush trying to bring freedom to Iraq. except he was trying to bring it to America.

which founding father said every now and then the tree of liberty must be sprinkled with the blood of patriots?

consider for the moment that the collateral damages in Iraq have totalled over 500,000 including woman and children and other innocents.

it's only a question of power.

and a willingness to ignore the law,

for a "higher" purpose.
 

All of which brings us back to the (well deserved) odious reputation utilitarianism has earned as being willing to embrace ANY means which will advance a sufficiently important end.

The difference between McVeigh and the militia movement is one of means. It's means which make terrorists, not ends.
 

Brett,

One of the hallmarks of a MILITIA Movement is their willingness to use violence as a means.

It is only a question of under what provocation will they resort to it.

For McVeigh, it was Ruby Ridge and Waco that fed his alienations and affinities. While not all militia movement members will publicly laud McVeigh, i would bet my last dollar he finds more support on the militia movement and its periphery than he does in the general population.
 

While such scenarios are not strictly impossible, (No violations of physical law being required by them...) thinking them at all plausible requires a serious failure to understand the nature of the militia movement.

# posted by Brett : 9:11 PM

Excuse me!? At the time, the _fake_ "militia" bowell movement immediately praised McVeigh, as they anticipated that most Americans would "rise up" and overthrow the gum'mint. When that didn't happen, and the world came down on their lying, anti-American heads, they attempted to distance themselves from McVeigh, going so far as to claim he wasn't part of the "militia".

Problem being their unequivocal assertions to that point that every [white] male 16 to 45 years of age, is, without exception, a member of the "militia". At the time, McVeigh was in his 30s.

And, as those who actually followed the case, in its finest details, knew and know he was affiliated with one or more _fake_ "militia" gangs. And with extreme right-wing underground gun-runnings.

Though I dealt face-to-face and toe-to-toe with those right-wing lunatic fringe nutballs, don't take my word alone for it. Check with the various websites who not only track that an other hate movements, but also that which successfully prosecuted numerous such hate groups, the Southern Poverty Law Center. Or look up the decision in _South Vietnamese Fishermen_.
 

For McVeigh, it was Ruby Ridge and Waco that fed his alienations and affinities. While not all militia movement members will publicly laud McVeigh, i would bet my last dollar he finds more support on the militia movement and its periphery than he does in the general population.

# posted by Garth : 1:15 PM

Those were his excuses, the motivating evens. McVeigh's ultimate protest was against the Assault Weapons Ban, which he erroneously believed, thanks to the gun industry-front propaganda of the NRA liars, to be unconstitutional.

And see my prior about the fact that the _fake_ "militia" movement initially praised McVeigh -- only ceasing to do so, and attempting without success to distance themselves from him, when "the majority of Americans" did not, despite the _fake_ "militia" movement's unequivocal True Belever pronouncements, "rise up" and overthrow the gum'mint.
 

JNagarya,

i agree that many other radical groups and events influenced McVeigh's views.

his early life contains some eerie parallels to the kleebolds and other school shooters.

like John Brown, he was a radical righteous American who was willing to take on the government when he thought they had gone too far (or not far enough in Brown's case)

thanks for the posts.
 

I see what the problem is now, JN; You're talking about the "fake militia movement", and I'm only aquainted with the real one.

Not to hijack the thread any further, it seems clear that, from any but a crude act-utilitarian standpoint, torturing innocents to secure the cooperation of the guilty is out of the question. And in any event, it certainly can't be termed "self defense".
 

". . . . Timothy McVeigh wasn't a member of the militia movement."

That's not what the _fake_ "militia" movement said, under the tutelage of Atty. Linda Thompson, in her role as self-appointed "Acting Adjutant-General of the Unorganized Militia of the United States of America".

Until, that is, they learned that the vast majority of US citizens, and people around the world, didn't look upon McVeigh's action as justified or laudable.

"(He tried to join the Michigan Milita, and got rejected.)"

Acccording to the _fake_ "militia" "Michigan Militia"? The _fake_ "militia" movement considers it their anti-American "patriotic" "duty" to lie about their intents and against the gum'mint. That's why the _fake_ "militia" movement initially expected the American masses to "rise up" and overthrow the gum'mint.

"And it was the militia movement I said Arne's hypothetical betrayed a serious lack of understanding of, not Timothy McVeigh."

I followed the _fake_ "militia" movement in the minutest of detail from before McVeigh committed his mass murder. The _fake_ "militia" movement had been talking for many months about the "Reichstag" and the "need" for an "incident"; which "incident" would cause the mass of Americans to 'rise up" and overthrow the gum'mint. When McVeigh committed his mass murder, that was the "incident" for which the _fake_ "militia" movement was hopin, and which they initially praised.

The _fake_ "militia" movement based its false claim of legitimacy upon their insistence that all males from 16 to 45, without exception, are automagically members of the "unorganized" "militia". McVeigh was, at the time, in his 30s.

"McVeigh was not, when I last had any dealings with the militia movement, seen as a particularly sympathetic figure."

He was praised as a hero -- until the _fake_ "militia" realized their twisted view of mass murder was not the opinion of the vast majority of people in the US and around the world. Only then did they endeavor to distance themselves from him by asserting the claim that he wasn't a member of the militia. Their problem was the petard they'd lied into being and urged upon the world as being the fact: that all males, 16 to 45, without exception, were automagically members of the "unorganized" "militia". Which obviously included McVeigh.

To this day they've not resolved the contradiction -- hypocrisy -- from which arises those mutually exclusive claims.

"And this would come as no suprise to anyone who actually understood that movement, rather than swallowing the SPLC's lurid portrayal of it."

I understood the _fake_ "militia" movement as result of confronting it face-to-face and toe-to-toe -- with, without, and through Atty. Linda Thompson, self-appointed "Acting-Adjutant General of the Unorganized Militia of the United States of America".

"The militia movement originated from a fear that the federal government was destined to become sufficiently totalitarian that an armed resistance would be needed to win back our liberty."

The _falke_ "militia" movement begins with white-supermacist paranoids who hold a criminal's vison of their relation to the rule of law.

Were they honest and sane, they'd recognize and admit that the Federal gov't doesn't fea and couldn't care less about their pop-guns. The issue is not "tyranny"; it is public safety.

"And that, metaphorically, the time to buy your fire extinguisher is before the house catches fire."

They have pop-guns. The Federal gov't has tanks, bazookas, bombers . . .

"While McVeigh's outrage over Waco and Ruby Ridge were considered understandable, . . . ."

Only by those who bought the lies abput those caes. Ruby Ridge was about a criminal who declared that he wouldn't be taken alive. And law enforcement person knows what thet means: such a person will take others with him.

The lie about Waco was that Koresh jogged every day outside the compound, so there was no reason to "invade" the compound in effort to arrest him.

The facts were these: the warrant was not for arrest of Koreshl it was for search of the compound based upon credible reports of multiple statutory rapes by him.

And the place to contest the warrant was in court, not in the streets "bushit cowboy" style.

"his actions were thought an evil on a par with the the atrocities he was protesting."

Only when the _fake_ "militia" learned the proper non-sociopathic view to hold of McVeigh's mass murder, which they then adopted as cover for their actual view.

"(BTW, this was, in fact, the point of McVeigh's actions. He set out to replicate Waco with the BATF in the place of the Davidians, innocent children being burned to death and all. His way of saying, "How do you like being on the recieving end of it for once?" to the BATF.)"

Those on the receiving end, Mr. Blindness, were, among others, the children he held hostage, then murdered.

"If anything, rather than being sympathetic towards him, militia members tended to suspect that the OK bombing was some kind of Reichstag fire, intended to provide political cover for... A crackdown on the militia movement."

The were predicting a "reichstag" -- but as the needed "incident" to cause the American people to "rise up" and overthrow the gum'mint. It was only after they learned that their predicted and hoped-for "revolution" was not going to result, and that the vast majority of people in the world didn't view McVeigh's mass murder as a good thing, that they endeavored to distract from their actual view, and themselves, by confabulating the conspirabunk that the Hurrah Federal Boldg, bombing was actually an "inside job" by the "gum'mint," and that the building was actually blown up and brought down by planned demolition -- a conspirabunk which was recycled about 9/11.

"McVeigh was seen as, at best, a morally and politically obtuse nutcase, at worst an agent provocateur."

McVeigh was seen as a hero striking the first blow for "liberty" -- from the rule of law -- until the _fake_ "militia" crackpots learned that the world didn't share their view. Only then did they start pointing their fingers away from themselves -- but only at McVeigh as a conduit to smear the Federal gum'mint.

"Further, even if militia members were interested in committing some kind of terrorist strike, attacking shopping malls makes no sense from the perspective of a movement that sees itself as defending the people against a hostile government."

There is no right to "defend against" the rule of law with violence -- except in the criminal view of the world. The _fake_ "militia" move,ment is no different in that regard from the Bushit criminal enterprize.

"Now, if you subtituted the white supremist movement for the miltia movement, and made it a shopping mall in a racially mixed neighborhood, the hypothetical starts to make at least a little sense..."

White supreamacists such as Bo Gritz and Randy Weaver?

# posted by Brett : 7:15 AM

Among the children, little ones, and infants murdered by McVeigh was Baylee Almon, on the day after her first birthday. Atty. Linda Thompson thereafter added this tagline to her emails: "Those weren't babies; those were Feds."

And that is the admission, and tutelage, by Atty. Linda Thompson as to the intents of the "unorganized" "militia" as led by her as self-appointed "Acting-Adjutant-General of the Unorganized Militia of the United States of America": lying that the victims, the very youngest of them, were not private citizens (Baylee Almon's mother worked for a private insurance firm down the street from the Murrah Federal Bldg.) in order to make their deaths acceptable as "collateral damage" from the "higher" motives of the _fake_ "militia" movement in defense of private citizens against the rule of law.
 

I see what the problem is now, JN; You're talking about the "fake militia movement", and I'm only aquainted with the real one.

Not to hijack the thread any further, it seems clear that, from any but a crude act-utilitarian standpoint, torturing innocents to secure the cooperation of the guilty is out of the question. And in any event, it certainly can't be termed "self defense".

# posted by Brett : 5:10 PM

We are speaking about the smae "militia" movement. You simply ignore the fact that the militia has always been regulated -- a term for _law_ -- _under_ the law, from the earliest beginnings of the colonies on this continent. The "Minutemen" at Lexington-Concord, as example, were not volunteers who happened to show up out of simple gung-ho patriotism. They were enlisted in the militia under the law, and trained under military discipline -- with penalities for not obeying the requirements of that law -- the command of which was in the hands of selectmen, judges, and other such public officials.

Exactly as the militia has always on this continent, from the very beginnings of the colonies, had as its commander-in-chief the head of the gov't -- the governor -- who, as is obvious, has never had as legitimate role that of "defending against" the gov't of which he is head.

The concept and legal construct of "unorganized militia" had its inception during the 19th century during a period when militia duty was exceedingly unpopular as a generalized exemption from militia duty. These matters happen to be, and have been for over fifteen years, my core focus; and on them go all the way back in the law. There was no "unorganized militia" before the 19th century; and there were drafts of the unwilling into the militia, even during the Founding era. See as examples Shays's Rebellion, and the Whiskey Rebellion -- the former on the state level, and the latter on the Federal.
 

Ah, you mistake my somewhat joking point: Movements are entitled to, within rather broad limits, name themselves. We do not, for instance, refer to the "pro-choice movement" as the fake pro-choice movement, despite the fact that they want to force medical students to learn abortion procedures, and force hospitals to provide them, and force taxpayers to pay for them.

And, of course, the militia movement organizations ARE "militia", even if they aren't the militia of the Constitution. The term does, after all, encompass military organizations unaffiliated with the government.

BTW, I always thought the feds missed a great opportunity with the militia movement: Rather than pursuing a pogrom against them under the pretext of fighting domestic terrorism, (Your average group in the militia movement was about as terrorist as a Boy Scout troop.) they should have just assigned their officers for them, and coopted them. It's a move they couldn't have raised a single constitutional objection to.
 

"Ah, you mistake my somewhat joking point: Movements are entitled to, within rather broad limits, name themselves."

Not in all instances. The term "militia" has been defined in law since the beginnings of the colonies. There is a distinction made between those who are militia -- their purpose being defense of the community; ultimately defense of the gov't/system of laws -- and those who are not. See _Presser_ for an example.

"We do not, for instance, refer to the "pro-choice movement" as the fake pro-choice movement, despite the fact that they want to force medical students to learn abortion procedures, and force hospitals to provide them, and force taxpayers to pay for them."

Inapt analogy. Unlike the pro-choice movement, "militia" has a distinct legal definition. It isn't all that complicated; putting aside laws on treason -- levying war against the gov't -- it is a matter of public safety: No sane society leaves dangerous substances and objects lying around unregulated.

"And, of course, the militia movement organizations ARE "militia", even if they aren't the militia of the Constitution. The term does, after all, encompass military organizations unaffiliated with the government."

Not in colonial, and not in US law. Even Jefferson, widely misunderstood as being opposed to gov't, included the principle in the "Declaration": "[King George III] has affected to render the Military independent of and superior to the Civil Power."

That principle was not new with the Founders. It was the tradition from the beginnings of the colony. Obviously, the militia was prohibited attacking -- "defending against" -- the community and gov't of which they were and extension, under law.

"BTW, I always thought the feds missed a great opportunity with the militia movement: Rather than pursuing a pogrom against them under the pretext of fighting domestic terrorism,"

Let me know when you read the Federal Constitution for the first time.

"(Your average group in the militia movement was about as terrorist as a Boy Scout troop.)"

That's why, leading up to the OK City bombing, the "harmless" _fake_ "militia" couldn't wait for their "Reichstag" -- the "incident" which would cause the masses to "rise up" and overthrow the gum'mint. And why, until the learned it was a stupid poistion, they praised McVeigh as having initiated that "incident".

"they should have just assigned their officers for them, and coopted them."

As I noted, there has been militia law since the earliest days of the colonies on this continent. Militia law continued to exist to and through and beyond the "revolution". And they were incorporated in the first state constitutions, with stipulations as to who would appoint the officers -- governor/legislative body together. It was never the informal armed gang outside the law the _fake_ "militia" movement fantasizes. See for detail in those regards _Presser_.

Or read the Federal Constitution, and our state constitution, for the stipulations concerning militia -- which stipulations were and are implemented in the form of stautes.

Neither the colonists nor the Founders/Framers were idiots; they did not tolerate armed gangs running around outside and shooting at the rule of law/their gov'ts.

"It's a move they couldn't have raised a single constitutional objection to."

Let me know when you read at minimum your state constitution for the first time. And, from there, your state's Militia Act.

"# posted by Brett : 7:50 AM"

"The military power is always in exact subordination to the Civil Power." -- Sam Adams. The "civil power" is the gov't; and the gov't is a system of laws. I guarantee you that Sam Adams didn't take Shays's rebellion kindly. It was defined in law as treason; and some who were to be hanged were pardoned in exchange for two things: (1) oath of allegiance to the state; and (2) handing in their guns.

The militia was never an informal, spontaneous "gathering"; as said, the "Minutemen" of Lexington-Concord was operating _under_ the law; they were trained, and were the elite of the day. The so-called "volunteerism" ended when the recruit signed on the dotted line and thus was added to the "list". And with that came disciplines and penalties, including courts martial.

Militia, and militia DUTY was not a boy's game; it has always been as serious as a heart attack, and thoroughly well-regulated _under law_. And it is the same in every state: the commander-in-chief is the governor -- not your local wannabe John Wayne or weekend warrior who is utterly and self-servingly ignorant of the actual history.
 

Brett, you'll have to tell me about this "pogrom" against the militia movement. As I recall, it consisted of a whopping two indictments (against Timothy McVeigh and Terry Nichols) and one execution.
 

I can see my effort to unhijack the thread was in vain. What the heck;

1. The OK Bombing prosecutions were not part of any anti-militia pogrom, in as much as the OK bombers were not members of a militia.

2. From Merriam-Webster:

"Main Entry: mi·li·tia
Pronunciation: m&-'li-sh&
Function: noun
Etymology: Latin, military service, from milit-, miles
1 a : a part of the organized armed forces of a country liable to call only in emergency b : a body of citizens organized for military service
2 : the whole body of able-bodied male citizens declared by law as being subject to call to military service "


Groups in the militia movement meet definition 1b, if not 1a, while their members generally qualify under definition 2.

While the government is, of course, entitled to define by legislation the meaning of words in the context of the law, it would smack of Newspeak to empower the government to define words, period.

3. Ever heard of the "Viper militia"? It was a gun club which jokingly called itself a militia, and got taken down by the government. After the OK city bombing, the feds went after all sorts of militia groups, even if it wasn't as high a profile as McVeigh and his partner. And they did quite a bit of infiltration and entrapment.

Indeed, it became something of a joke in the militia movement that you could identify the FBI informer in your group, just by looking to see who was advocating that you break the law...
 

WFT is this arguing about the legal definition of "militias"?

There's these nutcase groups that go by the name of "<XXX> militia" that are certifiably insane and/or dangerous. McVeigh is of like mind with these nutcase organisations, and if he was tossed by the 'Michigan militia', it's not because what he was saying was at odds with their program.

These are not people organising to defend the United States in times of peril. They're collecting guns, explosives, and whatnot, because they think the "United States" (in the form of the constitutionally prescribed and elected form) is the "peril".

Needless to say, that's not what the founders had in mind when they said "militia".

OKC was a natural consequence of that.

Cheers,
 

Brett:

Indeed, it became something of a joke in the militia movement that you could identify the FBI informer in your group, just by looking to see who was advocating that you break the law...

And you know this how?!?!?

I don't dispute it; look at the recent 'terrrism' cases, like Miami, and the Fort Dix folks. I disagree with "entrapment"; I think the gummint has no business encouraging people to break the law.

But, just to bring us back to reality: Timothy McVeigh, the most successful domestic terrorist so far, was not encouraged in any way by any law enforcement agency.

He's your baby, Brett. Deal with it.

Cheers,
 

Brett, you'll have to tell me about this "pogrom" against the militia movement. As I recall, it consisted of a whopping two indictments (against Timothy McVeigh and Terry Nichols) and one execution.

# posted by Enlightened Layperson : 12:44 PM

The _fake_ "pogrom" to which Brett refers is this fact --

Various _fake_ "militia" have been busted for stockpiling illegal weapons and related materiel. Several of those were about attacking the Southern Poverty Law Center for targetting, especially, KKK and white supremacist gangs. A particularly insightful decision resulting from one of their cases is _Vietnamese Fishermen_, based upon the fact that a _fake_ "militia" in Tejas was engaged in racist harrassment and intimidation.

_Presser_, though, is particularly insightful. The _fake_ "militia" in that instance was confronted with the inconvenient fact (among others) that the Illinois Militia Act stipulated the maximum number of militia "members" there could be. _Presser_'s gang was over and above that number.
 

"1. The OK Bombing prosecutions were not part of any anti-militia pogrom, in as much as the OK bombers were not members of a militia."

Again: according to your _fake_ "militia" gangs, seeking cover under law, and citing to Title 10, _all_ (white) (males) able-bodied between the ages of 16 and 45, with no exceptions, are members of the (unorganized) militia.

At the time McVeigh bombed the Murrah Federal Bldg. he was in his 30s. "30s" is between 16 and 45. _Ergo_, according to your _fake_ "militia" gangs, McVeigh was without question a member of the militia.

"2. From Merriam-Webster:

"Main Entry: mi·li·tia
Pronunciation: m&-'li-sh&
Function: noun
Etymology: Latin, military service, from milit-, miles
1 a : a part of the organized armed forces of a country liable to call only in emergency b : a body of citizens organized for military service
2 : the whole body of able-bodied male citizens declared by law as being subject to call to military service ""

We don't use general non-law dictionaries in effort to sidestep and avoid the law. See if you can find a (non-law) legal dictionary which might support your view. Meanwhile, legitimate militia is defined in law. And at latest, the MA-Bay Militia Act stipulated what a militia should do if confronted by an unidentified armed group of men. It was not that of sending an invite to have tea.

"Groups in the militia movement meet definition 1b, if not 1a, while their members generally qualify under definition 2."

No, they do not. There are state laws in many states which expressly prohibit such organizations. One of those is MA-Bay -- with the longest history and tradition of militia -- and militia law -- and militia of the former colonies. So specific is the law on the matter that there is a single exception to the prohibition against "parading with arms": The Anciet & Honourable Artillery Company" -- and their guns aren't loaded when they parade.

And see _Vietnamese Fishermen_ for the state law under which the _fake_ "militia" in that instance was successfully prosecuted. That "militia" made all the same claims you and your _fake_ "militia" make, and all failed.

"While the government is, of course, entitled to define by legislation the meaning of words in the context of the law, it would smack of Newspeak to empower the government to define words, period."

There is non-law; and there is law. Law is the province of "terms of art" -- "ordinary" words which, subject to litigation as to meaning over centuries, come to have a particular meaing in the context of law. Thus, yes, the gov't does have the power to "define" words in keeping with the law. And as concerns the regulation of dangerous and substnaces as a matter of public safety, I've already stated the objections from two Founders to the idea that an armed force be allowed to roam around outside the law, and to shoot at _their_ govt's.

Merriam-Webster is not the law. Nor is it the actual history of the "revolution" and its legal and governmental context.

"3. Ever heard of the "Viper militia"? It was a gun club which jokingly called itself a militia, and got taken down by the government."

No, they weren't "joking". They were stupid in their belief -- despite it being repeatedly refuted before then -- that their claim to be a "militia" as defined in law, and their pseduo-legal and ahistorical "defense" thereof would be swallowed by the informed.

"After the OK city bombing, the feds went after all sorts of militia groups, even if it wasn't as high a profile as McVeigh and his partner. And they did quite a bit of infiltration and entrapment."

No, they did not. The Feds have all along -- before and after OK City -- busted criminal gangs, including those who focused their criminality on illegal weaponry.

"Indeed, it became something of a joke in the militia movement that you could identify the FBI informer in your group, just by looking to see who was advocating that you break the law..."

McVeigh and Nichols were encouraged not by the FBI but by the distortions of law, lies, and false propaganda of such as Wayne LaPierre and Atty. Linda Thompson.

It was also Thompson who both (1) posted the Waco warrant, and (2) lied about its contents -- which lie was as easy to determine as reading the warrent. The _fake_ "militia" ain't got no time fer readin', so they believed her instead of reading the warrant. Or for intellectual honesty: thus the claim that Weaver and Ruby Ridge was about "right to bear arms" when instead it was about a criminal who declared he wouldn't be taken alive -- which latter means, and in the context meant, "I will shoot to kill law enforcement agents who attempt to arrest me for failing to appear in court as ordered."

# posted by Brett : 8:24 PM

If the _fake_ "militia" were legitimate, it would not engage in illegal activities intended to further their claim that they have a "right" to "defend against" the gov't, the express terms in the Constitution itself notwithstanding.
 

"Meanwhile, legitimate militia is defined in law."

Right. Never said that they were legal militias. Just that they WERE militias. You don't have to legally be something to actually be it.

"And you know this how?!?!?"

How do you think, Arne? Don't be oblivious; I live about 20 miles from James Nichol's farm, right in the middle of Michigan militia territory. Back in '94 I was seriously considering joining the Michigan militia, attended gatherings, spoke with members, that sort of thing. They were very politically active here, organizing opposition to Congressmen who'd voted for the 'assault weapon' ban.

Ulitimately I decided that, while I did like most of their politics, and some of their constitutional arguments were sound, (Not accepted by the judiciary, just sound.) that it was a foolish move. Assuming for the sake of argument that the day did come when armed resistance to the government was actually justified, who the hell wanted to have a guaranteed spot on the list of people whose doors would be kicked down in the middle of the night? We KNEW the government was keeping track of who was a member, after all; You could see the unmarked cop car going around the parking lot when we had public gatherings, filming the license plates!

In retrospect, I was right, all the feds needed was a good excuse to crack down, and a movement that was becoming mainstream got whittled down to the fringe nutcases again. A real pity, the government would have been better off responding to that movement by reestablishing the militia system.
 

"Meanwhile, legitimate militia is defined in law."

"Right. Never said that they were legal militias. Just that they WERE militias. You don't have to legally be something to actually be it."

If one is going to claim not only that one is a "militia" but also that one is a _legal_ "militia," as did and do your _fake_ "militia," operatng in accordance with law, then it certainly matters. It also matters when the legal claim is false, yet one continues to call oneself "militia".

"And you know this how?!?!?"

"How do you think, Arne? Don't be oblivious; I live about 20 miles from James Nichol's farm, right in the middle of Michigan militia territory. Back in '94 I was seriously considering joining the Michigan militia, attended gatherings, spoke with members, that sort of thing. They were very politically active here, organizing opposition to Congressmen who'd voted for the 'assault weapon' ban."

And doing so on false grounds. While claiming to be that which they wree not: A "militia" as defined in the Second Amendment -- the only part of the Constitution of which they were and are aware, and distorting also of that.

And then there's Norm Olson, of the _fake_ Michigan "militia" making claims as to the nature and purpose of "militia" which were and are refuted by Michigan's own constitution.

"Ulitimately I decided that, while I did like most of their politics, and some of their constitutional arguments were sound, (Not accepted by the judiciary, just sound.) that it was a foolish move."

None of their "constutional arguments" were other than self-serving pseudo-law and ahistorical gibberish. See above re. Norm Olson's/_fake_ Michigan "militia" arguments which not only didn't square with the Federal Constitution, or the actual history of the colonies, the Founders, and the "revolution," but also didn't square with the Michigan constitution on the issue.

If any of such "constitutional arguments" were in any detail correct, it was by sheer accident. I dealt directly with Norm Olson, and any number of other _fake_ "militia" members, from Michigan and elsewhere in the country. None of them had a lick of actual education in actual law (or history); and every one of them, without exception, believed they knew more about law than those with such actual education. All they proved was that arrogance is invariably based upon ignorance.

"Assuming for the sake of argument that the day did come when armed resistance to the government was actually justified, who the hell wanted to have a guaranteed spot on the list of people whose doors would be kicked down in the middle of the night?"

The Federal gov't isn't afraid of or worried about your pop-guns. They have bazookas, tanks, bombers . . .

"We KNEW the government was keeping track of who was a member, after all; You could see the unmarked cop car going around the parking lot when we had public gatherings, filming the license plates!"

It is wise for a gov't, from a public safety point of view, to keep track of those who promise and or threaten violence against the rule of law. It had already happened, with deadly consequences, at Ruby Ridge, and in Waco.

"In retrospect, I was right, all the feds needed was a good excuse to crack down, and a movement that was becoming mainstream got whittled down to the fringe nutcases again."

It wasn't becomeing mainstream because others, including myself, were shredding the "constitutional arguments" which were the product of crackpots and nutcases. The sane, and the sufficiently informed, did not buy into the non-existent "constitutional argument," which, if it could be said to have a premise, was that the Constitution authorizes the destruction of the Constitution.

"A real pity, the government would have been better off responding to that movement by reestablishing the militia system."

There is no need or, quite obviously, reason to "reestablish" that which already exists. The purpose of the National Guard is the same as that stipulated in the Constitution (Art. I., Sec. 8., Cl. 15), with the additional responsibility of dealing with natural disasters.

# posted by Brett : 7:22 AM

The political environment prior to and leading up to the OK City bombing was exceedingly volitile as result not so much of Ruby Ridge and Waco but because of the thug's rhetoric and distortions of law from no-class Wayne LaPierre, and Atty. Linda Thompson. That hate-filled, lunatic swamp, along with the repeated mantra of a need for a "Reichstag," and "incident" to cause the people to "rise up" and overthrow the gov't, are what eventuated in the bombing.

Meanwhile, in reality, the Assault Weapons ban was not unconstitutional or in conflict with the Second Amendment because that Amendment is irreleant to the issue of gn control/regulation. You'd know that if you knew the legal history, especially that generated by the Founders beginning in roughly 1774, which, variously, included not only the regulation of gun ownership -- which has existed since the advent of guns -- but also, specifically, confiscation/"gun-grabbing" and outright prohibitions against ownership thereof. Such were enacted, from Continental Congress on down, before, during, and after the "revolution" because no sane society leaves dangerous substances or objects lying around unregulated -- a principle wholly rejected by not only the gun industry-front NRA but also your _fake_ "militia" crackpots.
 

JN, you wouldn't happen to be related to one Gilbert Eyclesheimer Ernst, would you?
 

JN, you wouldn't happen to be related to one Gilbert Eyclesheimer Ernst, would you?

# posted by Brett : 11:15 AM

Not to my knowledge. Never heard the name before. Is he another person who is sane as concerns rule of actual law and public safety in the face of the "Libertarian"/criminal world view?
 

Enjoy a like mind's work:

http://www.potowmack.org/
 

Brett:

"And you know this how?!?!?"

"How do you think, Arne? Don't be oblivious; I live about 20 miles from James Nichol's farm, right in the middle of Michigan militia territory. Back in '94 I was seriously considering joining the Michigan militia, attended gatherings, spoke with members, that sort of thing. They were very politically active here, organizing opposition to Congressmen who'd voted for the 'assault weapon' ban."


<adopting a Claude Raines voice>"I'm shocked ... shocked!"

Cheers,
 

Enjoy a like mind's work:

http://www.potowmack.org/

# posted by Brett : 2:43 PM

First, I distinguish between law and non-law -- one of the first basics essential to actual education in actual law.

Second, I read the law -- not the theories about it speculated up by those who don't even know those laws exist/ed.

Only rarely do I step outside the law to the local history. Or even the legislative history. But on the latter I'll pound your _fake_ "militia" crackpottery into the ground.

Most writers on the issue of, as example, militia, and "gun rights," begin somewhere in the 1700s, with unexamined assumptions about the Founders. Then they go backward from there to English common law and English Bill of Rights and Magna Carta, etc.

They miss the point. Colonial law, and the Federal Constitution and Bill of Rights did not come from, and were not based upon, English common law, etc. There were several hundred years of evolved -- and relevant -- colonial law on this continent which were the actual foundations for the Constitution and Bill of Rights (etc).

If you don't know that, and the particulars thereof, you hold and assert a view wholly irrelevant -- the best that can be said of it.

But it's easier, isn't it, to uninformedly swallow the false propaganda peddled by the special-interest gun industry-front NRA.

What is to be preferred? The discomfort of truth? Or the solace of horseshit?

All else either misses the point, or deliberately avoids the issue.

The NRA is lying to you, sucker.
 

Brett:

"And you know this how?!?!?"

"How do you think, Arne? Don't be oblivious; I live about 20 miles from James Nichol's farm, right in the middle of Michigan militia territory. Back in '94 I was seriously considering joining the Michigan militia, attended gatherings, spoke with members, that sort of thing. They were very politically active here, organizing opposition to Congressmen who'd voted for the 'assault weapon' ban."

(adopting a Claude Raines voice) "I'm shocked ... shocked!"

Cheers,

# posted by Arne Langsetmo : 6:39 PM

"Common sense is much too common." -- Ralph Waldo Emerson.
 

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