Triumph of the Rule of Law

Today, the Supreme Court of the United States issued a 5-4 decision stating that:

Petitioners have met their burden of establishing that the DTA review process is, on its face, an inadequate substitute for habeas corpus….[T]he Government has not established that the detainees’ access to the statutory review provisions at issue is an adequate substitute for the writ of habeas corpus. MCA §7 thus effects an unconstitutional suspension of the writ.

[…]

While some delay in fashioning new procedures is unavoidable, the costs of delay can no longer be borne by those who are held in custody. The detainees in these cases are entitled to a prompt habeas corpus hearing.

[…]

It bears repeating that our opinion does not address the content of the law that governs petitioners’ detention. That is a matter yet to be determined. We hold that petitioners may invoke the fundamental procedural protections of habeas corpus. The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law.

The determination by the Court of Appeals that the Suspension Clause and its protections are inapplicable to petitioners was in error. The judgment of the Court of Appeals is reversed. The cases are remanded to the Court of Appeals with instructions that it remand the cases to the District Court for proceedings consistent with this opinion.

It is so ordered.

With those words, the Court declared that at least some of the “unlawful combatants” at Guantanamo Bay have every right to a prompt habeas corpus hearing before Federal courts, striking down previous rulings and declaring the policies of the Administration barring habeas corpus unconstitutional and unlawful.

This day was a triumph for the rule of law.

But let’s be clear about what the triumph is here. It is not the specific decision. If the Court had ruled the other way (which it might well have given the 5-4 nature of the decision), that ruling would have been an equal triumph. No, the triumph here is not that these detainees are finally going to get their day in court.

Rather, it is that they have already gotten their day in Court.

A group of detainees: some of whom are almost certainly enemies of the United States and dedicated to our destruction; some of whom are surely vicious killers guilty of murdering, raping, and torturing innocents whose only crime was daring to differ in matters of politics or religion; and many of whom are probably quite justly imprisoned as deadly threats to our nation and her citizens. These same detainees, imprisoned in a secretive military prison and isolated from all normal contact with society, have successfully brought their case before the highest Court in the United States.

These detainees, imprisoned as deadly threats, have had their pleadings heard, considered, and judged as if they were the pleadings of any upstanding citizen of the United States. Their case was made by lawyers, responded to by the United States government, and heard respectfully by federal judges. Men who the government claims would happily butcher the entire Supreme Court received reasoned judgment from that Court.

That their case prevailed may be just or unjust, good or bad. On that men of goodwill can rightly disagree. But that their case was brought before the Supreme Court in the first place, that the Court had both the will and the power to hear it and render a verdict, and that that verdict has power to effect real change, those things must be acclaimed by all those who treasure the rule of law.

As the Court noted in its Opinion:

Our opinion does not undermine the Executive’s powers as Commander in Chief. On the contrary, the exercise of those powers is vindicated, not eroded, when confirmed by the Judicial Branch….The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law.

It is so ordered.

 

High Times and Misdemeanors, Part II – Must I Breathe Your Pot Reek?

To remember, we Angry Men were in a lively discussion about whether or not to legalize the ganga, when Angry Midwesterner forked the discussion by producing not one, but two distinct arguments:

But it’s much more sensible to regulate things which:

1. Folks sell which is bad for you. Profiteering from misery and
   death is a bad business and is unethical.
2. Folks doing crap which impacts my health. I can have a beer in the same room as you without you suffering any effects. The same is not true for Mary Jane or Tobacco.

In the last rant in this series we demolished, er, discussed AM’s first point. So now, we turn to the second:

Angry Midwesterner
But it’s much more sensible to regulate things which involve folks doing crap which impacts my health. I can have a beer in the same room as you without you suffering any effects. The same is not true for Mary Jane or Tobacco.

Angry Immigrant
Well, maybe not from -smoking- the tobacco or MJ, but chewing and brownies are usually single-person effective.

The resulting stupidity from abuse of any of the three can be multi-person, though…

Mildly Piqued Academician
As AI has pointed out, I could use MJ or tobacco in a way that doesn’t impact you directly. And as anyone who has passed a campus bar on a Saturday night can see quite plainly, alcohol can and often is used in a fashion that directly impacts others.

Angry Midwesterner
I guess I’m more in favor of a smoking ban. I’m not sure I directly oppose these things.

Mildly Piqued Academician
Yes, well you certainly are in favor of that. I guess I find smoking bans to my own personal liking, but not so much philosophically, if you catch my drift. That is to say I like what they do for me personally because I don’t like being around cigarette smoke (or MJ smoke), but don’t feel I’m on particularly strong grounds forcing a ban.

Angry Overeducated Catholic
What about alcohol? In practice, alcohol frequently affects nearby folks. And, in theory the answer for MJ, cocaine, and heroin is no, they don’t necessarily affect those nearby. So?

Angry Midwesterner
With alcohol, I can have a beer and not necessarily effect you. My having a beer at Ruby Tuesdays at a table next to you, forces nothing on you. If you’re smoking next to me, then necessarily, you have negative impact on me.

Mildly Piqued Academician
The whole “smoking ban” is a separate issue from whether a substance like MJ should be legal. One can quite consistently say that smoking bans apply no matter what’s being smoked. Many people who use MJ don’t even smoke it; I wouldn’t be shocked if the majority of heavy users do not (they vaporize it, from what I understand, which is a low temperature extraction method that leaves most of the tar behind).

I can also see a case that cocaine should be illegal and MJ legal. I’m not saying this because I want to use MJ personally. The last time I had any was well over ten years ago and I never qualified as more than an occasional user anyway. I barely drink alcohol, though by the crazy rules put forth these days I probably qualify as a “binge drinker.”

Angry Virginian
For the record, smoking pot does not necessarily get you high or have any perceptible effect whatsoever, besides making you smell funny. It seems to have more of an effect the more you do it – Of course, that could be an illusion resulting from the fact that only people who are affected by it choose to use it again.

With alcohol, I can have a beer and not necessarily affect you.

Yes, but drunk driving and other drunken stupidity does necessarily have a negative impact on me, and prohibiting alcohol could and would reduce both. I don’t want to die in a car accident with a drunk driver, but that still doesn’t mean that Prohibition was a good idea.

Angry Midwesterner
Yes, but again we come to the idea of necessarily. Drinking a beer in a public place does not necessarily lead to drunk driving. Smoking in a public place does necessarily lead to second hand smoke that the rest of us have to deal with.

Angry Overeducated Catholic
Well, strictly speaking, it doesn’t necessarily lead to that. There are lots of filtration systems that would prevent any smoke from being inhaled by those nearby. They’re just usually cost-prohibitive.

This was, of course, another reason why I opposed the fascist Illinois ban. It did not ban the effects, or require means to avoid them, it simply introduced the nanny state to yet another area. And created yet another aspect of life where the elite get one set of rules and everyone else gets another. Liberalism loves that, of course, so I’m not surprised. (Liberty for me but not for thee and all that.) But I’m still saddened.

Mildly Piqued Academician
Conflating the legalization of marijuana with smoking bans strikes me as really effing stupid… a logical road to nowhere except “stuff I find distasteful and therefore should be banned” which is no basis for public policy in a democracy. This is exactly like making laws against driving under the influence substance-specific. It completely, utterly misses the point.

Angry Midwesterner
Except that you forget I am as opposed to Tobacco as I am to MJ. In my opinion it is the same deal. The problem is peeps conflating smoking with crack.

Angry Overeducated Catholic
I think MPA’s point is that being opposed to MJ smoke is no reason to ban MJ in general. The current laws don’t simply forbid smoking a doob in public places, they make possession of more than a tiny amount a serious felony, equivalent to assault, robbery, and other serious crimes.

That’s a pretty harsh step just to prevent some annoying and moderately unhealthy (for one dose) secondhand smoke. It’s also completely and utterly irrational and tyrannical, unless MJ is such a serious threat in and of itself that it warrants it.

Which it clearly isn’t.

Angry Midwesterner
I just argue MPA is viewing it from the wrong mindset. Clearly smoking MJ is not as bad as assault. But I am working from the standpoint that Tobacco is as bad as MJ, and should also be banned. This comes from a two-fold position:

1. From the reasons any sort of smoking ought to be banned.
2. From the fact that drugs in general are a bad thing to have floating in society (see Amsterdam).

 

High Times and Misdemeanors – The Law, Pot, and Potheads

So, recently, inspired by these fine articles sent courtesy of Mildly Piqued Academician: http://hightimes.com/lounge/vaporella/4228 http://www.nerve.com/regulars/datingadvicefrom/misshightimes/

I mused:

Potheads!

A higher class of potheads, perhaps, given that there is at least one room in the house you might not mind hanging out with them regularly in, but potheads none the less…

However, also good arguments for legalization: once again, pot is the drug that doesn’t make you crazy, aggressive, or hyper—just kinda stupid and laid back…

Well, around here, such a statement is viewed by some Angry Folk as tantamount to declaring war on Truth, Justice, and the American Way (or Mom, Baseball, and Apple Pie for you America-hating Lefties out there)!

(Actually, when I say “some”, I really mean “one”, as you might discern from the exchange below. *Ahem*, it’s not really fair that I get to editorialize, but such are the perks of editing, I suppose. Let the games begin!)

Angry Midwesterner
And while we’re at it lets legalize prostitution, and all kinds of other social ills. I mean let’s face it, Amsterdam is a great place to live! High times, high crime, and slavery, FTW!!! And hell while we’re at it, let’s legalize selling rat poison to folks rolled up in cigarettes, let people buy a nice little dose of death for themselves!

Mildly Piqued Academician
Um, right.

It’s simply not sensible(or even ethical, I’d argue) to regulate all things that people do that may be bad for them.

So you need to weigh costs vs. benefits.

I have no problem making crystal meth illegal and marijuana legal, not because I think smoking pot is a good thing—I have consumed enough in the distant past of a quasi-misspent youth to understand personally—but because I think that the current path of criminalization costs way, way more than it benefits. (NB: I was never “into” MJ but I’m man enough to say that I did, in fact, inhale. If Bill Clinton really meant to say “God, pot smoke is some awful stuff”— supposedly he always coughed—he should have been man enough to say that, but as we all know….)

Angry Midwesterner
But it’s much more sensible to regulate things which:

1. Folks sell which is bad for you. Profiteering from misery and death is a bad business and is unethical.
2. Folks doing crap which impacts my health. I can have a beer in the same room as you without you suffering any effects. The same is not true for Mary Jane or Tobacco.

[Editor’s Note: Okay, now things fork off covering both of AM’s points, and the whole debate gets way, way too long for one article, so we’ll just cover the first point above, and get back to the second later!]

Mildly Piqued Academician
Folks sell which is bad for you. Profiteering from misery and death is a bad business and is unethical.

Ah, well it’s back to Prohibition, then: Alcohol kills a lot of people. I wouldn’t be surprised if the rate of serious negative outcomes due to alcohol consumption is on par with MJ, if you adjusted for rate of usage, possibly more.

There are many activities that are more dangerous than MJ usage that are not just allowed, but indeed encouraged and heavily subsidized, by the state, high school football being an example. Sometimes it’s in the public interest to regulate a behavior, but that doesn’t mean that making it illegal is the way to go most of the time.

For instance, I’m quite happy to treat MJ use as a public health problem, but legal prohibition has done more to damage civil liberties in this country than nearly anything over the last forty years. A large chunk of the people in jail are there because of the draconian drug laws. Law enforcement has had major distortions of its incentives over the years because of dubious removal of property: look up forfeiture sometime.

The price of MJ is high not because it’s expensive to grow but because of its prohibition. Much of the violence in that sort of market happen because it’s a black market. If you could buy Philip Morris’ manufactured Rasta Man Ganja down at the Circle K (with a nice big tax funding public health measures) you’d see the prices go down, the violence and criminality sucked out of the market, the cops being able to go back to what they should be doing, etc.

I will leave any religious/ethical arguments to others more qualified to make them.

Angry Midwesterner
Alcohol in moderation improves your health with no ill effects.

Smoking “in moderation” permanently impacts your health negatively.

Mildly Piqued Academician
As I said, so do a lot of things that society actively subsidizes.

My general principle is this: The state has to be very, very careful about what it regulates of the behavior of consenting adults.

Angry Overeducated Catholic
Really, is there any evidence, any at all, that MJ has worse societal effects than alcohol? Given the incredibly lethal effects of drinking and driving, the role of alcohol in domestic abuse, assault, and manslaughter, I suspect the public health case can very easily be made against alcohol.

People can take cocaine, MJ, tobacco, heroin, and a wide variety of other drugs in a way that impacts their health less than contact sports, skiing, or most extreme sports. And some do. Many, of course, abuse those substances and come to a bad end. But far, far more abuse alcohol and destroy their lives.

Along AM’s lines, the Temperance movement was 100% correct, and Prohibition was the correct and proper thing to do. And, in fact, it was successful, in that it massively reduced alcohol consumption and, especially, public drunkeness (which was the point). It also, of course, built criminal and political empires.

In both respects, just like the War on Drugs.

Angry New Mexican
Or, to paraphrase Dennis Leary:

They say marajuana is a gateway drug. As far as I’m concerned, marajuana only leads to one thing: carpentry. Because once you start smoking you want to turn everything into a bong.

Angry Midwesterner
My concern is the following:

• Can it be done in moderation?
• Does its use necessarily impact those around you?

So temperance was wrong.

Mildly Piqued Academician
Given the incredibly lethal effects of drinking and driving, the role of alcohol in domestic abuse, assault, and manslaughter, I suspect the public health case can very easily be made against alcohol.

Of course it can.

Alcohol (like many other drugs) can be used in a totally responsible fashion, but is frequently abused to varying degrees. The question of whether this is something we put up with, treat as a public health issue (education, rehab) or as a legal matter (these are not exclusive, of course) is a different matter.

The cost of legal prohibition, as AOC correctly notes, is a giant increase of the state’s coercive power and a giant increase in criminal enterprise, in fact in a vicious circle. Sure, it reduces consumption…But At What Cost?

Angry Overeducated Catholic
Can it be done in moderation?
For over half of all drinkers, the answer is no. For MJ, cocaine, and heroin the answer is yes (for at least some). So?

So temperance was wrong.
Then how is the anti-drug movement right? MPA is right, the ridiculous efforts to stop drug trafficking have destroyed more lives and done more harm to liberty in this country than any other aspect of the 20th Century, including the Red Scare and the Political Correctness nonsense. They have also doomed many to lives of brutal criminal assault or to lives of crime to support habits. In fact, the effects are far, far worse than Prohibition, which was benign by comparison.

Angry Midwesterner
Taking cocaine and MJ always gets you high, so the answer is no, it cannot be done in moderation. The answer for alcohol is yes, it can be done without getting you high.

Mildly Piqued Academician
Cocaine I won’t comment on—I wasn’t crazy enough to try that and it holds no appeal to me at all—but it is most certainly possible to consume MJ without getting high, very much in the way that one can drinking a few beers.

But this is all beside the point: My primary argument against prohibition of most currently illegal substances has to do with what it’s done to our police forces and how much crime its bred. Whether or not the use of MJ is a dumb idea (I think it is) is separate from whether the state should generally prevent you from doing it. I think joining Scientology is far, far more damaging than most drug use (don’t get me started on those bastards) but don’t think that the state should be able to prevent someone from doing so.

Angry Midwesterner
Here I have to side with Germany. Scientology should be destroyed.

Mildly Piqued Academician
Oh I hate Scientology (and have been personally affected by it quite adversely, as close relatives were early Scientologists) but think that it and other cults of its ilk are the price of the First Amendment.

Angry Overeducated Catholic
Alcohol always has effects, but those effects don’t become pronounced with a small number of doses. So does moderation mean “absolutely no effects at all,” “a small effect,” “a moderate effect,” or “does not impair one’s ability to lead a full human life?”

Angry Midwesterner
Fair enough. We’d need to define this further.

Angry Overeducated Catholic
Agreed. Or simply agree that society should, generally, allow people to engage in moderately self-destructive or risky behavior, if it’s not a great burden on society or others. Otherwise we rule out not only drug use, but also motorcycles, jet skis, high school, college, and professional football, mountain climbing (esp. free climbing), base jumping, skydiving, etc., etc.

After all, even tobacco, nasty as it is, doesn’t reduce lifespan in every case. So, despite its harmful physical effects, one can’t say that it’s always self-destructive, just really, really risky.

Unless the mood-altering effects are themselves opposed by you, but if so, then we’d better ban prayer, meditation, television, and mass assembly as well, as all of those have been known to alter the mood. Hell, I’ve been high from sleep deprivation…though if you wanted to ban that, I wouldn’t object too much…

Of course unrefined cocaine has been used socially for a very long time in South America without ruinous effects, and the refined version has been used by productive, (otherwise) law-abiding members of society. Is it a dangerously addictive drug? Sure, but so is alcohol, and it combines physical dependency and ease of access with psychological addiction, so by that measure it’s probably worse.

Under what conditions should private use of a drug which causes no unwanted effects on other citizens be banned?