Tag: law

Trading Washington for Tbilisi?

Alliances often are advanced, as with NATO expansion, as a cheap way of keeping the peace.  After all, it is said, no one would dare challenge America.  But while alliances can deter, deterrence can fail – with catastrophic consequences.  Both World Wars I and II featured failed alliances and security guarantees.  Oops!

If deterence fails, the guaranteeing state either has to retreat ignominously or plunge into war, neither of which is likely to be in America’s interest.  Moreover, promising to defend other nations encourages them to be irresponsible:  after all, why not adopt a risky foreign policy if Washington is willing to back you up, nuclear weapons and all?  It’s a form of moral hazard applied to foreign policy.

That appears to be the case with the country of Georgia.  There’s a lot of disagreement over the character of Mikhail Saakashvili’s government, even among libertarians.  But a new European Union panel has amassed evidence that President Saakashvili is a bit of a foreign policy adventurer.  Reports Spiegel online:

Unpublished documents produced by the European Union commission that investigated the conflict between Georgia and Moscow assign much of the blame to Georgian President Mikhail Saakashvili. But the Kremlin and Ossetian militias are also partly responsible.

From her office on Avenue de la Paix, Swiss diplomat Heidi Tagliavini, 58, looks out onto the botanical gardens in peaceful Geneva. The view offers a welcome respite from the stacks of documents on her desk, which deal exclusively with war and war blame. They contain the responses, from the conflicting parties in the Caucasus region – Russia, Georgia, South Ossetia and Abkhazia – to a European Union investigative commission conducting a probe of the cause of the five-day war last August. The documents also include reports on the EU commission’s trips to Moscow, the Georgian capital Tbilisi and the capitals of Abkhazia and South Ossetia, dossiers assembled by experts and the transcripts of interviews of diplomats, military officials and civilian victims of the war.

The Caucasus expert, nicknamed “Madame Courage” by the Zurich-based Swiss daily Neue Zürcher Zeitung, is considered a specialist on sensitive diplomatic matters. The Caucasus issue is the most difficult challenge she has faced to date. The final report by the commission she heads must be submitted to the EU Council of Ministers by late July. In the report, Tagliavini is expected to explain how, in August 2008, a long-smoldering regional conflict over the breakaway Georgia province of South Ossetia could suddenly have escalated into a war between Georgia and its much more powerful neighbor, Russia. Who is to blame for the most serious confrontation between East and West since the end of the Cold War?

In addition to having a budget of €1.6 million ($2.2 million) at her disposal, Tagliavini can draw on the expertise of two deputies, 10 specialists, military officials, political scientists, historians and international law experts.

Much hinges on the conclusions her commission will reach. Is Georgia, a former Soviet republic, a serious candidate for membership in NATO, or is the country in the hands of a reckless gambler? Did the Russian leadership simply defend South Ossetia, an ally seeking independence from Georgia, against a Georgian attack? Or did Russia spark a global crisis when its troops occupied parts of Georgia for a short period of time?

The confidential investigative commission documents, which SPIEGEL has obtained, show that the task of assigning blame for the conflict has been as much of a challenge for the commission members as it has for the international community. However, a majority of members tend to arrive at the assessment that Georgian President Mikhail Saakashvili started the war by attacking South Ossetia on August 7, 2008. The facts assembled on Tagliavini’s desk refute Saakashvili’s claim that his country became the innocent victim of “Russian aggression” on that day.

In summarizing the military fiasco, commission member Christopher Langton, a retired British Army colonel, claims: “Georgia’s dream is shattered, but the country can only blame itself for that.”

Whatever the justification for President Saakashvili’s conduct, it certainly isn’t the kind of policy to which the U.S. should tie itself.  Yet including Georgia in NATO would in effect make President Saakashvili’s goals those of the American government and, by extension, the American people.

How many Americans should die to ensure that George gets to rule South Ossetia and Abkhazia?  Should we risk Washington for Tbilisi?  These are questions the Obama administration should answer before it joins the Bush administration in pushing NATO membership for Georgia.  The American people deserve to know exactly what risks the Obama administration plans to take with their lives and homelands before adding yet another fragile client state to Washington’s long list of security dependents.

Responses to My Comments About Sotomayor

As might be expected, I have received much email responding to my CNN.com commentary about Obama’s Supreme Court pick. Some of it has been favorable, some less so (and some simply incoherent). One particular email covered most if not all concerns – and quite thoughtfully at that – so I thought I would share this exchange with a reader who emailed me his comments:

I read  your piece “Sotomayor Pick Not Based on Merit”, where you write, “in over 10 years on the Second Circuit, she has not issued any important decisions”.

Granted that I’m a layman, not a legal scholar or anything - this list seems quite impressive, and, as a whole, pretty non-ideological.

In reviewing this list, I found myself disagreeing with her here and there, but I couldn’t find something that really irked me. Can you?

According to the authors, “Since joining the Second Circuit in 1998, Sotomayor has authored over 150 opinions, addressing a wide range of issues, in civil cases.” And that “To date, two of these decisions have been overturned by the Supreme Court; a third is under review and likely to be reversed.” 2 out of over 150, is not a bad record at all.

You also write that she’s “far less qualified for a seat on the Supreme Court than Judges Diane Wood and Merrick Garland or Solicitor General Elena Kagan.”

I did a bit of research on them, and I’m not sure why you reached that conclusion. They are all qualified, in some respects Wood and Kagan are a bit more impressive, but you give the impression that she’s not highly qualified, and I don’t see evidence for that. On the contrary, she seems highly qualified - she has a long judicial and academic record, she has dealt with a myriad of issues, and has authored a vast amount of rulings, which, as far as I’ve seen, don’t appear to be ideological or particularly “activist.” She strikes me as someone balanced and sensible, with a slight tilt to the left.

You also write, “this does not a mean that Sotomayor is unqualified to be a judge — or less qualified to be a Supreme Court justice than, say, Harriet Miers” - but, c’mon, how can you even compare her to Miers? Miers was truly unqualified. She’s hardly intellectually impressive in any way, to put it mildly, and nothing about her record was impressive or even remotely suggesting she’s qualified to serve as a Justice. She was basically a manager of a law firm, with zero qualifications to serve as a SC justice. By even mentioning her name while discussing Sotomayor, you’re giving the impression there’s an analogy there, where there’s really none. Sotomayor is light-years ahead of Miers. You can’t be serious.

You also make a big issue over Ricci v. DeStefano. Well, I personally would side with the firemen, and it’s unfortunate that Sotomayor hasn’t, but to be fair, she hasn’t even written a decision about that.
We don’t know what her reasoning was. She merely signed, along with the rest of the panel, to uphold the lower court’s decision. It’s hard to build an entire case against her based on something like that. She has written over 150 other decisions, why not focus on them? Why pick one, that doesn’t even have any arguments in it, and make it the central issue, when there are over 150 reasoned decisions to analyze?
Why not review them, and give the public a deeper assessment, rather than focusing on ONE, which doesn’t even have any arguments or reasoning in it?

I’m generally a Cato fan, I get the mailings every day, I’m a moderate libertarian by philosophy, I’m just not sure why Cato is opposing her nomination. I like to think of Cato as non-partisan, just as I am, but on this issue your and Pilon’s opposition/criticism smacks from political partisanship and is not based on the evidence. So it seems to me.

Thanks for reading.

Here is my response:

Thanks for writing and for the thoughtful comments. A few points:

1. My argument is explicitly NOT that her opinions are disagreeable. I’ve waded through a fair number and read every public report on them produced thus far (including the very helpful SCOTUSblog summary you cite). Like you, some I agree with – most, actually, because most cases at this intermediate appellate level are not controversial (legally or politically), even if complex – some I don’t. But there’s just not much “there” there – intellectual depth, scholarly merit, etc. – at least by the elevated standards for elevation to the Supreme Court and in comparison to more accomplished jurists like Wood and Garland. She’s a competent judge, but we have 500 of those in the federal judiciary alone. (And none of this is to disparage her tremendous personal story; I write this from Princeton, where she had a truly impressive four years.)

2. Her reversal rate (I think there are six cases now) is a non-issue. The Supreme Court reverses over 60% of cases it hears and hears fewer than 2% of cases it is asked to review. So, statistically, we can say nothing about Sotomayor in that sense. A couple of her reversals are a bit strange, but on technical issues that, again, don’t lend much to the overall debate.

3. Yes, she’s much more qualified than Miers (though it’s a little unfair to say Miers was a mere “law firm manager” – she was White House counsel and apparently a decent lawyer in private practice).  I threw that line in there to show I can pick on Republican nominees too.

4. While Roger, whom I copy here, has discussed suspicions of Sotomayor’s activism or radicalness – and I think it’s clear she has more of those tendencies than Wood or Kagan – this is not the thrust of the my CNN commentary. We just can’t tell from her opinions, which are all over the map – other than the speeches at Berkely and Duke and then the Ricci case.

5. Ricci is important for two reasons: a) on the merits, the decision is blatant racial discrimination – and the Supreme Court looks likely to overturn Sotomayor’s panel; b) perhaps more importantly, the failure to grapple with the complex constitutional and statutory issues is a serious dereliction of judicial duty – as pointed out by Jose Cabranes in his dissent from denial of en banc rehearing. Regardless of the merits of the case, the way it was handled – as a per curiam summary affirmance released late on a Friday, meant to sweep the case under the rug – is outrageous. Sotomayor was 100% complicit in that.

6. In no way are my (or Roger’s) comments partisan. Cato’s interest here isn’t in any particular personality but rather: 1) that official appointments be made irrespective of racial/ethnic/identity politics, and 2) even more importantly, that the Supreme Court interpret the Constitution in a way that treats the judicial enterprise not as one of enforcing social justice or otherwise rewriting the law it when a result is inconvenient. The talk of “empathy” is disturbing precisely because it is the antithesis of the rule of law. And this is why Republican Judiciary Committee members must generate a public debate on judicial philosophy and not merely attempt to tear down this nominee. If they don’t demand substantive answers on serious constitutional questions, they will be complicit in the deterioration of our confirmation processes.

All the best,
Ilya

I look forward to following and commenting further as the confirmation process plays itself out.

Transparency: Good News / Bad News

Last week was an interesting week for transparency, with some good news and some bad news.

On the “good” side of the ledger, the administration rolled out “Data.gov,” a growing set of data feeds provided by U.S. government agencies. These will permit the public to do direct oversight of the kind I discussed at our “Just Give Us the Data!” policy forum back in December.

My metric of whether Data.gov is a success will be when independent users and Web sites use government data to produce new and interesting information and applications. The Sunlight Foundation has a contest underway to promote just that. Get ready for really interesting, cool, direct public oversight of the government.

Also under the White House’s new “Open Government Initiative,” an Open Government Dialogue “brainstorming session” began last week. The public can submit ideas for making the government more transparent, participatory, and collaborative. This is important stuff, an outgrowth of President Obama’s open government directive, issued on his first full day in office.

That directive called for the Office of Management and Budget to require specific actions of agencies “within 120 days,” which meant the final product was due last week. And that missed deadline is where we start to slide into the “bad” on the transparency ledger.

Last week, President Obama gave an important speech on national security (which I blogged about here and here). But you couldn’t find the speech in the “Speeches” section of the Whitehouse.gov Web site. It’s buried elsewhere. That’s “basic Web site malpractice,” I told NextGov.com. And I cautioned my friends in the transparency community not to forget Government 1.0 for all the whiz-bang Gov 2.0 projects flashing before our eyes. Whitehouse.gov should be a useful, informative resource for average Americans.

The current top proposal on the “brainstorming” site referred to above is to require a 72-hour mandatory public review period on major spending bills. This is reminiscent of President Obama’s promise to hold bills five days before signing them. But, as Stephen Dinan reports in the Washington Times, the president signed several more bills last week without holding them the requisite time.

The White House protests that they posted links to bills on the Thomas Web site at the Whitehouse.gov blog. But that does not give the public meaningful review of the bills in their final form, as they have come to the president from Congress. “Posting a link from WhiteHouse.gov to THOMAS of a conference report that is expected to pass doesn’t cut it,” says John Wonderlich at Sunlight.

President Obama signed nine new laws since we last reviewed his record on the “Sunlight Before Signing” promise. Alas, it’s been a case study in pulling defeat from the jaws of victory.

Five of the bills were held by the White House more than five days before the president signed them, but they weren’t posted! Simply posting them on Whitehouse.gov in final form would have satisfied “Sunlight Before Signing.”

President Obama’s average drops to .043, and that’s crediting him one win for the DTV Delay Act, which was posted at Whitehouse.gov in its final form for five days after Congress passed it, but before presentment, which is the logical time to start the five-day clock.

Here is the latest tally of bills passed by Congress, including the date presented, date signed, whether they’ve been posted or linked to at Whitehouse.gov, and whether they’ve been posted for the full five days after presentment. (Corrections welcome - there is no uniform way that the White House is posting bills or links, so I may have missed something.)

Public Law Date Presented Date Signed Posted (Linked) for Comment? Five Days?
P.L. 111-2, The Lilly Ledbetter Fair Pay Act of 2009
1/28/2009
1/29/2009
1/29/2009
No
P.L. 111-3, The Children’s Health Insurance Program Reauthorization Act of 2009
2/4/2009
2/4/2009
2/1/2009
No
P.L. 111-4, The DTV Delay Act
2/9/2009
2/11/2009
2/5/2009
Yes and No
P.L. 111-5, The American Recovery and Reinvestment Act of 2009
2/16/2009
2/17/2009
2/13/2009
No
P.L. 111-6, Making further continuing appropriations for fiscal year 2009, and for other purposes
3/6/2009
3/6/2009
No
n/a
P.L. 111-7, A bill to designate the facility of the United States Postal Service located at 2105 East Cook Street in Springfield, Illinois, as the “Colonel John H. Wilson, Jr. Post Office Building”
2/26/09
3/9/2009
No
n/a
P.L. 111-8, The Omnibus Appropriations Act, 2009
3/11/2009
3/11/2009
3/6/2009
No
P.L. 111-9, To extend certain immigration programs
3/18/2009
3/20/2009
No
n/a
P.L. 111-10, To provide for an additional temporary extension of programs under the Small Business Act and the Small Business Investment Act of 1958, and for other purposes
3/19/2009
3/20/2009
No
n/a
P.L. 111-11, The Omnibus Public Land Management Act of 2009
3/30/2009
3/30/2009
3/30/2009
No
P.L. 111-12, The Federal Aviation Administration Extension Act of 2009
3/24/2009
3/30/2009
No
n/a
P.L. 111-13, The Generations Invigorating Volunteerism and Education Act
4/20/2009
4/21/2009
No
n/a
P.L. 111-14, To designate the United States courthouse under construction at 327 South Church Street, Rockford, Illinois, as the “Stanley J. Roszkowski United States Courthouse”
4/14/2009
4/23/2009
No
n/a
P.L. 111-15, The Special Inspector General for the Troubled Asset Relief Program Act of 2009
4/14/2009
4/24/2009
No
n/a
P.L. 111-16, The Statutory Time-Periods Technical Amendments Act of 2009
4/30/2009
5/7/2009
No
n/a
P.L. 111-17, A joint resolution providing for the appointment of David M. Rubenstein as a citizen regent of the Board of Regents of the Smithsonian Institution
4/28/2009
5/7/2009
No
n/a
P.L. 111-18, A bill to repeal section 10(f) of Public Law 93-531, commonly known as the “Bennett Freeze”
4/28/2009
5/8/2009
No
n/a
P.L. 111-19, The Civil Rights History Project Act of 2009
4/30/2009
5/12/2009
No
n/a
P.L. 111-20, The Protecting Incentives for the Adoption of Children with Special Needs Act of 2009
5/5/2009
5/15/2009
No
n/a
P.L. 111-21, The FERA
5/19/2009
5/22/2009
No
n/a
P.L. 111-22, The Helping Families Save Their Homes Act of 2009
5/20/2009
5/22/2009
No
n/a
P.L. 111-23, The Weapon Systems Acquisition Reform Act of 2009
5/21/2009
5/22/2009
5/14/2009
No
P.L. 111-24, The Credit Cardholders’ Bill of Rights Act of 2009
5/20/2009
5/22/2009
5/14/2009
No

Richard Epstein on Sotomayor

Cato adjunct scholar Richard Epstein of the University of Chicago and New York University, finds much to worry about in Judge Sonia Sotomayor’s nomination to the Supreme Court:

The treatment of the compensation packages of key AIG executives (which eventually led to the indecorous resignation of Edward Liddy), and the massive insinuation of the executive branch into the (current) Chrysler and (looming) General Motors bankruptcies are sure to generate many a spirited struggle over two issues that are likely to define our future Supreme Court’s jurisprudence. The level of property rights protection against government intervention on the one hand, and the permissible scope of unilateral action by the president in a system that is (or at least should be) characterized by a system of separation of powers and checks and balances on the other.

Here is one straw in the wind that does not bode well for a Sotomayor appointment. Justice Stevens of the current court came in for a fair share of criticism (all justified in my view) for his expansive reading in Kelo v. City of New London (2005) of the “public use language.” Of course, the takings clause of the Fifth Amendment is as complex as it is short: “Nor shall private property be taken for public use, without just compensation.” But he was surely done one better in the Summary Order in Didden v. Village of Port Chester issued by the Second Circuit in 2006. Judge Sotomayor was on the panel that issued the unsigned opinion–one that makes Justice Stevens look like a paradigmatic defender of strong property rights.

I have written about Didden in Forbes. The case involved about as naked an abuse of government power as could be imagined. Bart Didden came up with an idea to build a pharmacy on land he owned in a redevelopment district in Port Chester over which the town of Port Chester had given Greg Wasser control. Wasser told Didden that he would approve the project only if Didden paid him $800,000 or gave him a partnership interest. The “or else” was that the land would be promptly condemned by the village, and Wasser would put up a pharmacy himself. Just that came to pass. But the Second Circuit panel on which Sotomayor sat did not raise an eyebrow. Its entire analysis reads as follows: “We agree with the district court that [Wasser’s] voluntary attempt to resolve appellants’ demands was neither an unconstitutional exaction in the form of extortion nor an equal protection violation.”

Maybe I am missing something, but American business should shudder in its boots if Judge Sotomayor takes this attitude to the Supreme Court. 

Cheney vs. Obama: Tale of the Tape

In case you missed it, President Obama and former Vice President Dick Cheney spoke separately today on terrorism and national security. Like two boxers at a pre-fight press conference, they each touted their strength over their opponent. They espoused deep differences in their views on national counterterrorism strategy.

The Thrilla in Manilla it ain’t. As Gene Healy has pointed out, they agree on a lot more than they admit to. Harvard Law professor and former Bush Office of Legal Counsel head Jack Goldsmith makes the same point at the New Republic. Glenn Greenwald made a similar observation.

However, the areas where they differ are important: torture, closing Guantanamo, criminal prosecution, and messaging. In these key areas, Obama edges out Cheney.

Torture

Cheney:

I was and remain a strong proponent of our enhanced interrogation program. The interrogations were used on hardened terrorists after other efforts failed. They were legal, essential, justified, successful, and the right thing to do.

Obama:

I reject the assertion that these are the most effective means of interrogation. What’s more, they undermine the rule of law. They alienate us in the world. They serve as a recruitment tool for terrorists, and increase the will of our enemies to fight us, while decreasing the will of others to work with America. They risk the lives of our troops by making it less likely that others will surrender to them in battle, and more likely that Americans will be mistreated if they are captured.

Torture is incompatible with our values and our national security interests. When we break our own rules (read: laws) against torture, we erode everyone’s faith that America is the good guy in this global fight.

Torture has been embraced by politicians, but the people who are fighting terrorists on the ground want none of it. As former FBI agent Ali Soufan made clear in Senate hearings last week, it is not an effective interrogation technique. Senior military leaders such as General Petraeus, former CENTCOM commanders Joseph Hoar and Anthony Zinni, and former Commandant of the Marine Corps Charles Krulak all denounce the use of torture.

If we captured Al Qaeda operatives who had tortured one of our soldiers in pursuit of information, we would be prosecuting them. Torture is no different and no more justifiable because we are doing it.

Closing Guantanamo

Cheney:

I think the President will find, upon reflection, that to bring the worst of the worst terrorists inside the United States would be cause for great danger and regret in the years to come.

Obama:

[I]nstead of serving as a tool to counter-terrorism, Guantanamo became a symbol that helped al Qaeda recruit terrorists to its cause. Indeed, the existence of Guantanamo likely created more terrorists around the world than it ever detained.

This is an area where Cheney is disagreeing not just with Obama but with John McCain. We would be having this debate regardless of who won the last Presidential election. Get over it.

The current political climate gives you the impression that we are going to let detainees loose in the Midwest with bus fare and a gift certificate for a free gun at the local sporting goods store. Let’s be realistic about this.

We held hundreds of thousands of prisoners of war in America during World War II. The detainees we have now are not ten feet tall and bulletproof, and federal supermax prisons hold the same perfect record of keeping prisoners inside their walls as the detainment facility in Guantanamo Bay.

Criminal Prosecution

Obama basically said that we will try those we can, release those who we believe pose no future threat, and detain those that fit in neither of the first two categories. That’s not a change in policy and that pesky third category isn’t going away.

Obama and Cheney do have some sharp differences as to the reach of war powers versus criminal prosecution.

Cheney:

And when you hear that there are no more, quote, “enemy combatants,” as there were back in the days of that scary war on terror, at first that sounds like progress. The only problem is that the phrase is gone, but the same assortment of killers and would-be mass murderers are still there.

Obama:

Recently, we prosecuted and received a guilty plea from a detainee - al-Marri - in federal court after years of legal confusion. We are preparing to transfer another detainee to the Southern District of New York, where he will face trial on charges related to the 1998 bombings of our embassies in Kenya and Tanzania - bombings that killed over 200 people.

I have written extensively on al-Marri, the last person to be detained domestically as an enemy combatant. The FBI did everything right when it investigated and indicted this Al Qaeda sleeper agent masquerading as an exchange student, only to have the Bush administration remove those charges in order to preserve the possibility of detaining domestic criminals under wartime powers. This claim of governmental power is a perversion of executive authority that Obama was right to repudiate.

The man being indicted in New York is Ahmed Gailani. If he is convicted for his role in the bombing of American embassies in Kenya and Tanzania, he will join his co-conspirators Wadih El-Hage, Mohammed Odeh, Mohammed al-Owhali, and Khalfan Mohammed in a supermax.

This is also where we hold 1993 World Trade Center bombers Ramzi Yousef, Sheikh Omar Abdel Rahman (the “Blind Sheikh”), Mohammed Salameh, Sayyid Nosair, Mahmud Abouhalima, and Ahmed Ajaj.

Not to mention would-be trans-pacific airline bombers Wali Khan Amin Shah and Abdul Hakim Murad.

Al Qaeda operatives Mohammed Jabarah, Jose Padilla, and Abu Ali will share his mailing address.

Let’s not forget American Taliban Johnny Walker Lindh, Shoe Bomber Richard Reid, Al Qaeda and Hamas financier Mohammed Ali Hassan Al-Moayad, Oregon terrorist training camp organizer Ernest James Ujaama, and would-be Millenium Bomber Ahmed Ressam.

That’s a lot of bad guys. It’s almost like we’re checking names off a list or something.

Messaging

Cheney:

Behind the overwrought reaction to enhanced interrogations is a broader misconception about the threats that still face our country. You can sense the problem in the emergence of euphemisms that strive to put an imaginary distance between the American people and the terrorist enemy. Apparently using the term “war” where terrorists are concerned is starting to feel a bit dated.

Obama: no quote is necessary here. The differences in narrative between Obama and Cheney are clear and woven into what Obama says.

Terrorism is about messaging. America finds herself in the unenviable position of fighting an international terrorist group, Al Qaeda, that is trying to convince local insurgents to join its cause. Calling this a “War on Terror” can create a war on everybody if we use large-scale military solutions for intelligence, law enforcement, and diplomatic problems.

We have to tie every use of force or governmental power to a message: drop leaflets whenever we drop a bomb, hold a press conference whenever we conduct a raid, and publish a court decision whenever we detain someone. Giving the enemy the initiative in messaging gives them the initiative in the big picture.

Conclusion

Once we get past the rhetoric, the differences are few but worth noting. I take Obama in the third round by TKO.

Gun Free School Zone Follies

As I have noted before, “gun free” zones are an exercise in fantasy. To some, a place without guns sounds like a great place to live.  Unfortunately, others think they sound like a great place to plunder.

Some recent developments highlight the ability of armed citizens to defend themselves and how localized gun bans near schools or on universities make victims of law-abiding citizens.

A group of Georgia college students at a birthday party owe their lives to the fact that one of them had a gun. (H/T Of Arms & the Law) Two gunmen burst in to the apartment and separated males and females into different rooms. The gunmen began discussing whether they had enough bullets to kill everyone at the party. One of the students pulled a gun from his backpack and shot at the home invader holding the men, chasing the gunman out of the apartment. The armed student went to the next room, where the other gunman was preparing to rape his girlfriend. The student shot the second gunman, killing him.

If the birthday party had been in a dorm, the student probably would have left his gun at home because of the Georgia statute that bans guns on campus.  The students would likely be dead as a result.

A second story comes from Wisconsin, one of the two states with no provision allowing for concealed carry. A man on a bicycle was hit and thrown to the ground by four young men. The bicyclist was carrying a handgun openly, a practice approved by the Wisconsin Attorney General. The bicyclist drew his revolver, pointed it in the air and yelled, “gun!” The four assailants fled. The bicyclist flagged down a police officer to report the incident.

The positive outcome to this story is countered by the fact that the bicyclist was accosted within 1,000 feet of a school. His possession of a gun is criminalized by both Wisconsin and federal statutes.

Although the local district attorney said that the bicyclist will not be prosecuted, the Milwaukee police chief and other Wisconsin law enforcement officials have promised to focus additional scrutiny on persons who openly carry a firearm.

All of this highlights the folly of “gun free” school zones. Using the law to target citizens who will not be protected by the police is a perverse policy. It gives thugs every incentive to focus their criminal activities in the areas around the schools the legislation intends to protect.

Obama’s Military Commissions

President Obama is expected to announce how his administration is going to prosecute prisoners for war crimes and perhaps other terrorist offenses.  Instead of civilian court, courts-martial, or new “national security courts,” Obama has apparently decided to embrace George W. Bush’s system of special military tribunals, but with some “modifications.”

Glenn Greenwald slams Obama for seeking to create a “gentler” tribunal system and urges liberals to hold Obama to the same standards that were applied to Bush:

What makes military commissions so pernicious is that they signal that anytime the government wants to imprison people but can’t obtain convictions under our normal system of justice, we’ll just create a brand new system that diminishes due process just enough to ensure that the government wins.  It tells the world that we don’t trust our own justice system, that we’re willing to use sham trials to imprison people for life or even execute them, and that what Bush did in perverting American justice was not fundamentally or radically wrong, but just was in need of a little tweaking.  Along with warrantless eavesdropping, indefinite detention, extreme secrecy doctrines, concealment of torture evidence, rendition, and blocking judicial review of executive lawbreaking, one can now add Bush’s military commission system, albeit in modified form, to the growing list of despised Bush Terrorism policies that are now policies of Barack Obama.

Greenwald is right.  The primary issue is not due process.  The tribunals might ultimately be “fair” and “unbiased” in some broad sense, but where in the Constitution does it say that the president (or Congress) can create a newfangled court system to prosecute, incarcerate, and execute prisoners?

For more about how Bush’s prisoner policies ought to be ravamped, see my chapter “Civil Liberties and Terrorism” (pdf) in the Cato Handbook for Policymakers.