Tag: gene healy

House Bill Repeals DADT the Right Way

The House passed a repeal of Don’t Ask, Don’t Tell (DADT) yesterday, and it appears that the Senate will take up the measure sometime next week. Good.

DADT should end. I’ve said so, and debated the issue with repeal opponent Stuart Koehl (posts 1, 2, 3, and 4). Most servicemembers I know (appropriate disclaimer here) already have a mindset of Don’t Ask, Don’t Care, and its time for official policy to catch up.

We should note that a legislative effort is the right way to change the current policy. DADT is based on a law – 10 U.S.C. § 654 – enacted with the FY1994 National Defense Authorization Act.

Some have argued (and here, and here) that President Obama could stop enforcing DADT by executive order. The President does have control over enlisted separations under 10 U.S.C. § 12305 and officer separations under 10 U.S.C. § 123. But, as Gene Healy noted in a recent column, “it would be kinda cool if our representatives got to vote on [policies] before they became the law of the land.” More than kinda cool, it would comply with the Constitution, which gives Congress the authority “To make Rules for the Government and Regulation of the land and naval Forces.”

The repeal legislation also deals with the legal and policy questions that are implicated with DADT repeal. This is important in a couple of ways. First, the policy change is phased in over time, giving the services time to adjust policies.

Second, as I said at this event, the sexual offenses in the Uniform Code of Military Justice (UCMJ) are a mess that Congress needs to untangle along with repeal. Article 125 of the UCMJ criminalizes all sodomy – heterosexual, homosexual, consensual, or otherwise. As this article points out, the Court of Appeals for the Armed Forces’ decision in United States v. Marcum wounded Article 125 in the wake of Lawrence v. Texas, but did not kill it. The definition of “sexual intercourse” in the UCMJ only includes sex between a man and a woman, so the offenses of adultery, prostitution, and patronizing a prostitute under Article 134 of the UCMJ don’t apply when committed in a homosexual manner. The UCMJ should adopt a uniform standard - criminalize sexual behavior that is prejudicial to the good order and discipline of the armed forces, period. The DOD Report takes this into account (see pp. 138-39) and Congress and the military will have a chance to sort things out as repeal is under way.

In short, repeal is the right thing to do, and passing this law is the right way to do it.

Militarizing the Border

President Obama is sending 1,200 National Guard troops to the border with Mexico. This should not be viewed as an innovative solution; Bush sent 1,600 troops to the border under parallel circumstances in 2002. As Ilya Shapiro recently wrote, sending some Guardsmen is no substitute for substantive immigration policy reform.

The National Guard, and the military generally, should not be seen as the go-to solution for domestic problems. Certainly the role they will play on the border will not be as offensive as policing the streets of an Alabama town after a mass shooting (which the Department of Defense found was a violation of the Posse Comitatus Act, but declined to pursue charges) or using a city in Iowa as a rehearsal site for cordon-and-search operations looking for weapons, but politicians from both major parties have at one point or another suggested using the military for domestic operations that range from the absurd to the frightening.

Transportation Secretary Norman Mineta wanted to put Delta Force commandos on airliners after the attacks on September 11, 2001. Air marshals and armed pilots can handle airline counterterrorism; tracking down Al Qaeda organizers in Afghanistan is a better use of Delta’s unique skill-set. Marines conducting counter-drug surveillance near the border shot and killed goat herder Esequiel Hernandez. Something to keep in mind when politicians call for an expanded the role of the military in border security.

Gene Healy’s excellent policy analysis Deployed in the U.S.A.: The Creeping Militarization of the Home Front provides more detail on sensible limits for domestic use of the military. Read the whole thing.

Waking Up at Last

Tony Blankley, former press secretary to Speaker of the House Newt Gingrich, exults in the Washington Times that Americans are waking up “to our heritage of freedom” and to the abuse of the Constitution:

All the following acts have suddenly awakened Americans to their Constitution: (1) The nationalization of car companies and banks; (2) the subordination of the car companies’ legal bondholders to union bosses; (3) the creation of trillion-dollar slush funds (the stimulus package) used for, among other purposes, the corrupt purchase of congressional votes; (4) the mandating of individual health insurance purchase against the will of Americans; (5) the attempt to have Obamacare “deemed” to have been enacted, rather than actually publicly voted on by Congress.

Amazingly, spontaneously, Americans are educating themselves about the details of our Constitution.

He’s absolutely right. All those actions do raise serious questions about whether there are still any constitutional limitations on government, which is to say, whether the Constitution is still in effect, questions that Roger Pilon also raised this week in the Christian Science Monitor. But it would be even better if Americans had noticed the threats to constitutional government a bit earlier, if not during the New Deal or the Great Society, then perhaps during the past decade when, as Gene Healy and Tim Lynch wrote in 2006:

Unfortunately, far from defending the Constitution, President Bush has repeatedly sought to strip out the limits the document places on federal power. In its official legal briefs and public actions, the Bush administration has advanced a view of federal power that is astonishingly broad, a view that includes

  • a federal government empowered to regulate core political speech—and restrict it greatly when it counts the most: in the days before a federal election;
  • a president who cannot be restrained, through validly enacted statutes, from pursuing any tactic he believes to be effective in the war on terror;
  • a president who has the inherent constitutional authority to designate American citizens suspected of terrorist activity as “enemy combatants,” strip them of any constitutional protection, and lock them up without charges for the duration of the war on terror— in other words, perhaps forever; and
  • a federal government with the power to supervise virtually every aspect of American life, from kindergarten, to marriage, to the grave.

President Bush’s constitutional vision is, in short, sharply at odds with the text, history, and structure of our Constitution, which authorizes a government of limited powers.

But better late than never, and we join Tony Blankley in hoping that the Constitution’s limits on the powers of the federal government will once again be an issue in American politics and governance.

Terrorism Is Not an Existential Threat, But Fear Doesn’t Care About That

Last week, coincidence brought together a pair of worthy articles attacking the political adage that terrorism is an “existential” threat.

Gene Healy debunked “existential” in his Examiner column. “Conservatives understand that exaggerated fears of environmental threats make government grow and liberty shrink,” he writes. “They’d do well to recognize that the same dynamic applies to homeland security.”

John Mueller and Mark Stewart, meanwhile, have an article on Foreign Affairs’ web site titled: “Hardly Existential: Thinking Rationally About Terrorism.” They show that conventional assessment methods place terrorism so low on the scale of risks that additional spending to further reduce its likelihood or consequences is probably not justified.

But some readers literally can’t absorb what appears in the two paragraphs above. You might be one of them.

Exquisitely rational arguments like these are “cognitively invisible” in the face of fear, as Priscilla Lewis puts it in the forthcoming Cato book Terrorizing Ourselves. I assume the arguments of Healy, Mueller, and Stewart will be dismissed out of hand by people who view terrorism through their personal lens of fear.

Mueller and Stewart touch on this problem briefly:

Because they are so blatantly intentional, deaths resulting from terrorism do, of course, arouse special emotions. And they often have wide political ramifications, as citizens demand that politicians “do something.” Many people therefore consider them more significant and more painful to endure than deaths by other causes. But quite a few dangers, particularly ones concerning pollution and nuclear power plants, also stir considerable political and emotional feelings, and these have been taken into account by regulators when devising their assessments of risk acceptability.

We know enough to be confident of our security. The questions remaining include: How do we convince others to join the ranks of the indomitable Americans? How do we undercut the political advantage taken of terror fears? And how do we rein in the massive government growth produced by terror politics?

One Nation Under Arrest

Brian Walsh of The Heritage Foundation and Paul Rosenzweig have a new book out, One Nation Under Arrest: How Crazy Laws, Rogue Prosecutors, and Activist Judges Threaten Your Liberty.

For an example of how our federal criminal laws have morphed into a leviathan that threatens the liberty of average citizens, take the case of inventor and entrepreneur Krister Evertson:

In May 2004, FBI agents driving a black Suburban and wearing SWAT gear ran Evertson off the road near his mother’s home in Wasilla, Alaska. When Evertson was face down on the pavement with automatic weapons trained on him, an FBI agent told him he was being arrested because he hadn’t put a federally mandated sticker on a UPS package.

A jury in federal court in Alaska acquitted Evertson, but the feds weren’t finished. They reached into their bag of over 4,500 federal crimes and found another ridiculous crime they could use to prosecute him: supposedly “abandoning” hazardous waste (actually storing, in appropriate containers, valuable materials he was using for the clean-fuel technology he was developing). A second jury convicted him, and he spent 21 months in an Oregon federal prison.

Draconian enforcement of regulatory offenses is just the tip of the iceberg. For additional information on the creep of federal criminal law, check out In the Name of Justice: Leading Experts Reexamine the Classic Article “The Aims of the Criminal Law” by Tim Lynch, Three Felonies a Day: How the Feds Target the Innocent by Harvey Silverglate, and Go Directly to Jail: The Criminalization of Almost Everything by Gene Healy.

Post-State of the Union Links

  • Time for the SOTU fact check:  Cato experts put some of President Obama’s core State of the Union claims to the test. Here’s what they found.
  • During this year’s SOTU, President Obama criticized the Supreme Court decision in the Citizens United case. Today’s podcast examines the Court’s ruling.

Tuesday Links

  • Gene Healy on today’s election in Massachusetts: “If Republican Scott Brown wins the Massachusetts special election Tuesday, the Bay State will have its first GOP senator since the era when disco was king. And Brown will have the much-derided Tea Party legions to thank.”
  • George W. Obama? “Bush’s successor—who actually taught constitutional law at the University of Chicago—is continuing much of the Bush-Cheney parallel government and, in some cases, is going much further in disregarding our laws and the international treaties we’ve signed.”
  • Podcast: “Our America Initiative” featuring former New Mexico Governor Gary Johnson. Johnson discusses out of control government spending, immigration, the Bush years, the drug war, defense policy and more.