Dead letter office

>> Thursday, March 07, 2013

I will speak until I can no longer speak. I will speak as long as it takes, until the alarm is sounded from coast to coast that our Constitution is important, that your rights to trial by jury are precious, that no American should be killed by a drone on American soil without first being charged with a crime, without first being found to be guilty by a court.

Senator Rand Paul's filibuster ended after thirteen hours, and credit to him for doing it the right way, yammering for thirteen hours (with occasional ceding the floor to other yammerers), instead of trying to do it one of the Bizarro World ways the Senate sabotages itself procedurally (not that I'm sure he had a choice--I understand he may not have had the cloture votes, or someone else had them, or however that works).

I don't have much of an opinion on John Brennan's nomination for CIA head.  Or maybe it's more accurate to say that my opinion is that I just don't care.  I have to confess I'm not even sure why I should care: how much difference is there likely to be between one prospective nominee for that particular job and another?  It's not like the Department Of The Interior, where the wrong nominee is going to try to gut the environment for Jesus or something.  What's the difference between a liberal spymaster and a conservative official-keeper-of-secrets, and how would you know?  Isn't the nature of the job that anyone, idealist or realist, extremist or moderate, optimist or cynic, is going to ultimately have to stick their arms in up to the elbows in the nation's official cloak-and-dagger shitpile with-or-without their sleeves rolled up first, to fish around in there and bob-for-apples if god-and-country so require?

But I digress.  I heard Senator Paul's comments on NPR this morning, and it was a reminder of something that's been bothering me for several weeks now.  And this is that while I agree with the Senator on principle--and fancy that, I agree with the neo-Randian Republican on something (see, it happens!)--I also have to wonder if he's right.

See, what I've been thinking of is the obvious elephant in the corner that nobody seems to be talking about for some reason: that would be those four lost airplanes in the air on the morning of September 11th, 2001, and the questions that floated around in the days after re: the Air Force response to the hijackings.  For various reasons, the FAA and Air Force responses that Tuesday morning were chaotic and ineffective--I don't mean that as a criticism, merely an observation (I'm not sure what they really might have done differently, given the policies in effect at the time, which were subsequently amended; indeed, that sort of relates to the whole point of this post).  But one of the obvious questions you have to ask is, if a military jet fighter had the opportunity to down one of the hijacked planes before it was flown into a building, should the pilot have opened fire?  Could the pilot have opened fire?

It's kind of obvious to me that downing a hijacked airplane with sixty people on board (e.g. United Air 175) before it downs a building with six hundred and thirty people in it (e.g. the South Tower of the World Trade Center) deprives the sixty people on the airplane of their lives, possibly without due process.  If the President gives the order and an Air Force pilot executes it, it seems pretty self-evidently a Fifth Amendment violation.  At least sixty violations, not even counting the destruction of United Air's property without due process, any lost freight and luggage, etc.  You might think I'm being facetious, but absolutely not: shooting down an airplane to save ten times as many lives is simply unconstitutional.  And it could be completely necessary.  A trade of dozens of lives for hundreds, of two hundred and forty-six for two thousand, seven hundred and thirty-one is tragic but not obscene.

I'm not defending the incoherence of Attorney General Eric Holder's "defense" (if you can call it that) of the Obama Administration's disturbingly obscure policy (or lack thereof).  It doesn't fill me with any confidence in the Administration that they're simultaneously willing to bluntly state that they'll retain the option of killing Americans anywhere but unwilling to give any particulars on the hows and the whys of it.  "Trust us" is inherently an unstable and awful policy statement even if you're inclined to trust someone, because there's always the next guy.  (The problem with Tyranny--Tyranny in the sense of governance by a Tyrant, not the sad degradation of the term to mean "policies we don't like"--isn't that Julius and Augustus are such bad fellows and people you wouldn't want in charge of things; it's that their heirs are dudes like Caligula and Nero, holy crap can you believe it?)

I think I'm just trying to ask a question I don't have a real answer to, to point out that this is, in fact, an issue and a concern.  A problem.  A big problem, actually.

Our Constitution being antiquated and screwy has been bugging me a whole lot lately.  This is one of the reasons I've been thinking about this whole "killing Americans at home" issue the past few weeks even outside the scope of the outrage expressed by liberals and libertarians over the past several weeks.  Senator Paul's not alone in the concerns he expressed in his filibuster--I heard he cited Glenn Greenwald, and how often do you think that's ever going to happen?  Paul et al. are on the side of the angels on this one, I think, I'm just not sure the angels know what the hell they're doing or are... I don't know if I want to use the word "right", considering that I don't really think they're wrong.

I'm just wondering what you do when an airplane with sixty people on it is about to smite a big tall building on a busy work day morning.

And while I'd cite this as being yet another thing those original authors of the Constitution couldn't get their minds around--what's the Eighteenth Century analogue for weaponized mass transit, anyway?--it isn't like I have an answer.  I want to be clear on this: I have absolutely no idea what could possibly be suggested by way of a mechanism that protects the civil liberties of the doomed few against the might-be-saved many when you maybe have a few minutes before shooting down an airplane over an urban neighborhood becomes just as bad as simply letting it murder everyone who can't make it down a stairwell before the pancaking happens.  It doesn't seem like you really want to make this kind of thing one guy's snap decision, and it doesn't seem you have much of a choice about it.

I'm trying to think of what might have been analogous in the Eighteenth Century to a hijacked plane hurtling towards a building in the Twenty-First.  So, the best I can come up with is a quarantine situation: you have one (or a few) people whose individual rights to freedom have to be balanced against the public safety; it's a lousy analogy.  There's usually time in these sorts of situations to evaluate and diagnose the carrier, and the carrier has opportunity to appeal his decision, and at the worst you're locking him up in a hospital or sanitarium as opposed to depriving him of his life; oh, and by the way, this kind of thing is, so far as I can tell, broadly Constitutional.  I haven't done tons of research, but a quick survey suggests this is (unsurprisingly, seeing as you're probably not dying of smallpox or tuberculosis as you read this) routinely put down to "a valid exercise of the state's police power".  Sometimes, when we're talking about quarantining diseased livestock, the government has to buy a bunch of dead poultry or cattle, but that hardly sounds unreasonable when the issue comes up.  All of which seems commonsense when you're talking about sequestering someone so they don't cough it around on everybody, and seems wrong when you're talking about, let's face it, killing a bunch of people.

And if it is a good analogy, haven't we just sided with Holder and the President, which isn't exactly what I wanted to do here?  I mean, if it's a valid exercise of governmental power to confine a plague bearer before he or she bears the plague around, is it such a far stretch to conclude that it's a valid exercise of governmental power to trade the lives of a few for the many (it certainly sounds like the kind of thing Mr. Spock would do, and Mr. Spock is very sound when he's not in heat)?  (And what's the difference between a pilot opening fire and a drone operator doing it?  I think the answer in this context is "none", with none of the policy concerns that might make the use of drones overseas problematic--which somehow seems a little ironic, no?)

This really doesn't seem correct, does it?

I want to be clear for the nth time that this isn't an apologia for the Administration's drone policy or what can only really be called their assassination policy--policies that have to stick in your craw even if you think they're necessary or required by circumstances (or are at least the lesser of evils).  I just don't have a particularly satisfactory answer to this, and I think the questions are necessary.  I don't think we should trust anybody with the kind of authority over life and death the Administration seems to be staking out for itself; on the other hand, I think--and I can't believe I think this--that the principles staked out by a number of people on the left and right, including (of all people) Senator Rand Paul, are principled, moral, and incorrect.  Which I think means we end up deciding what's worse for ourselves, making the Constitution (or whatever we'd replace it with in our imaginations) a literal suicide pact, or making it a dead letter?


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