I seem to be, anyway. Some of you may have noticed that I take a dim view of the People’s Republic of China’s aggression and acquisitiveness in the East and South China Seas.
So, apparently, do the folks of the PRC government take a dim view of my dim view. For the last several days, this blog has been getting hit by spam comments from a series of IP addresses owned by Chinanet, which is headquartered in Jiangsu Province in the PRC.
Hmm….
…on the Apple case in New York. The Wall Street Journal‘s Law Blog has some notes on Orenstein’s ruling.
In a discussion of why the 1994 Communications Assistance for Law Enforcement Act (which in the context of this discussion authorized things like pen registers in telecommunications companies’ landline telephone switching centers to be attached to specific telephone circuits in response to a search warrant) wasn’t applicable to the New York case, Orenstein wrote
The absence from that comprehensive scheme of any requirement that Apple provide the assistance sought here implies a legislative decision to prohibit the imposition of such a duty. Thus, even under the government’s reading of the [All Writs Act], I would conclude that while the matter is a close call, the Application seeks an order that is not “agreeable to the usages and principles of law.”
And (here as summarized by the Law Blog) in answering a hypothetical in which the President proposed a bill requiring [Apple] to submit to the government in similar cases and the Congress unanimously rejected it:
Under the government’s reading of the All Writs Act, he says, the Justice Department could still seek an order compelling Apple’s assistance “because Congress had merely rejected the bill—however emphatically, and however clear its reasons for doing so—rather than affirmatively passing legislation to prohibit the executive branch’s proposal.” He describes that reading of the All Writs Act as “absurd.”
“Absurd” understates the case. Here’s what the Constitution says about what the government is permitted [sic] to do:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
And
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
If it’s not a specifically named capacity of the government to do, it is expressly forbidden the government. Full stop.
Here’s another cynical decision to bypass the legislative branch of our republican government design, this time by DoJ. Given the behavior of the Obama administration, though, this attitude is unsurprising.
A Federal judge in a New York drug case has ruled that Apple cannot be forced by the government to help crack a cell phone held by prosecutors and claimed by those prosecutors to have critical, if encrypted, information.
The judge wrote, in part,
How best to balance those interests [between privacy and security] is a matter of critical importance to our society, and the need for an answer becomes more pressing daily, as the tide of technological advance flows ever farther past the boundaries of what seemed possible even a few decades ago. But that debate must happen today, and it must take place among legislators who are equipped to consider the technological and cultural realities of a world their predecessors could not begin to conceive.
Indeed. That balance, where to draw the line, and how is a political decision, to be determined solely by us citizens through our elected representatives in Congress. Political decisions cannot be reached by judges; their role is strictly limited by our Constitution to determining the constitutionality of a law and if constitutional to applying it as written. Judges can not, may not, adjust a law to suit the government’s wishes.
Nevertheless, Justice will stay within the judicial system. A carefully unnamed (at least by the AP, whose article is at the link above) insisted on this:
We are disappointed in the Magistrate’s ruling and plan to ask the District Judge to review the matter in the coming days…. This phone may contain evidence that will assist us in an active criminal investigation and we will continue to use the judicial system in our attempt to obtain it.
We will continue to use the judicial system…. DoJ will continue deliberately to bypass Congress. DoJ will continue to seek to impose its own political will on us.
…hit you in the fanny on the way out.
A University of Texas Dean [Fritz Steiner, Dean of the Texas School of Architecture] said Thursday he’s leaving the school to pursue a different job in large part because of the new Texas law that will allow concealed firearms in public college classrooms.
And
Steiner said he’s not anti-guns, but doesn’t want them in the halls of higher education. Texas faculty have worried allowing guns could have a chilling effect on academic freedom and frank discussions in classrooms.
Because he and his special snowflakes are zealously opposed to opposing, even merely differing, opinions, and they project their own response techniques to disagreements onto others. After all, academic freedom and frank discussions mean “do it my way” and “think like I do.” Just look at all the faculty-supported “safe spaces” and “free speech zones” Academia have sprouted all over our colleges and universities. See, also, the Melissa Clicks of academe. That Click ultimately was fired for her abuses is newsworthy only because of the unusualness of such abuses being recognized.
Mark Lilla’s essay in the New York Review of Books regarding France’s response to the series of Islamic terrorist attacks against the Republic carried out on Metropolitan French soil has sparked a thought in me regarding the nature of “citizen” for a nation. The passage in question is this [via Power Line; the full essay is behind the NYRB‘s paywall]:
The Hollande government responded in kind [to public Islamist threats]…. Most controversially he called for binationals convicted of terrorist crimes to be stripped of French nationality, a proposal that runs up against current constitutional and European jurisprudence but has been Hollande’s most popular move since being elected.
Withdraw the terrorist’s citizenship and throw him out of the country. What’s wrong with that? International law makes it illegal to create a stateless person, hence the Hollande administration’s decision to limit withdrawal of French citizenship to those already possessing another nation’s citizenship status also—a binational.
American citizenship under existing domestic statutes and case law also cannot be withdrawn; see, for instance, Afroyim v Rusk, a 1967 Supreme Court ruling which denied the ability of the government to rescind the citizenship of an established citizen. There is a constitutional question attached.
However. The underlying philosophy of our political nation, our concept of social compact, is very much a Lockean philosophy, and our Constitution is steeped in that view: a consensual government, yes, but also very much a matter of discriminating between those within our social compact and abiding by our compact’s rules—those who are members of the compact and those only resident here with the compact’s permission (and by whose residence have agreed to abide by our compact’s rules)—and those outside out social compact, whether physically or otherwise.
Herein lies my thought. An earlier definition of “outlaw” is in Locke’s Second Treatise of Government: a man who is within a social compact but who by his criminal actions has placed himself outside the compact. In Locke’s view, any criminal act, whether directed particularly against an individual member of the compact or against the compact as an entity, was an attack on the compact as a whole; hence the criminal’s outlaw status. That outlaw status had an important outcome apart from his simple eligibility for suitable punishment for his actions: outlaw status also placed the criminal outside the protections of the social compact; the outlaw had no recourse to the compact’s laws or courts or anything else.
We Americans, though, have parsed criminal acts into two key categories, attacks against individuals and attacks against government or society. Only criminality directed at our society or government are attacks against our compact as a whole. Clearly, though, terrorist attacks against Americans—individually or in groups—are attacks against our society, are attacks against our social compact. American citizens who are terrorists, by their actions, place themselves outside our social compact and thereby lose the protections of our compact.
We should acknowledge that wholly voluntary self-placement: withdraw citizenship from such an erstwhile American in addition to the existing sanctions against his terrorism. After the terrorist has served out that sanction, he should be ejected from our nation.
Obviously, there are some mechanics that would need to be grunted through to enact this sort of thing, not least of which is that constitutionality question. But that doesn’t refute the principle; it’s only a barrier on the path to be corrected and overcome. One expression of the barrier, from Afroyim v Rusk, was expressed by Justice Hugo Black, writing for the Court, said in part
In our country the people are sovereign and the Government cannot sever its relationship to the people by taking away their citizenship.
Certainly. But We the People can instruct our employee government to enact a law that severs our relationship with an outlaw by taking away his citizenship, his right to be among us and to enjoy the protections of our compact. If it’s cleaner for us to make our instruction via the Constitution’s Article V, then so be it. Again, though, the means is a speed bump, not an impenetrable barrier.
International law? That enjoins against creating a stateless person. It does not, though, obligate us in any way to find this outlaw a place to be somewhere else before we acknowledge his decision to stop being a member of our compact. In addition to enjoining us, it obligates other nations to find a place within them for him to be. That’s a moral obligation, to be sure, and not a legal one. Thus, international law needs to be corrected and updated to deal with terrorists as outlaws. Or we need to withdraw from this law.