Habeas Corpus in America

Adobe Photoshop PDFReview of The Power of Habeas Corpus in America: From the King’s Prerogative to the War on Terror by Anthony Gregory. Cambridge University Press and the Independent Institute, 2013.

Anthony Gregory is a great friend of mine, and I am honored to have the opportunity to review briefly his splendid new book, Habeas Corpus in America.

A few comments about the book itself are in order before sojourning through the content. First, it is a beautiful volume. I suppose we can thank Cambridge University Press for that. The cover itself contains the text of Abraham Lincoln’s order to suspend habeas during the Civil War – a very nice visual touch. The forward is written by the erudite constitutional scholar Kevin Gutzman. The book is written in three parts: history of habeas corpus, application of habeas corpus after 9/11, and a section titled “Custody and Liberty” exploring the future of habeas. Multiple appendices then analyze various habeas cases, and the customary selected bibliography and historical term explanations follow. It is long, thorough, sweeping, and powerful – but also pretty expensive. I suppose we can thank Cambridge University Press for that as well.

Habeas corpus is generally understood as the legal right not to be detained arbitrarily by the government. It is considered a foundational principle of Western legal systems, even of natural law itself. Still, habeas corpus is widely misunderstood, especially on a historical level. Anthony Gregory’s work on the history of habeas corpus and its application in America levels a damning charge against the American federal government and challenges the reader to reconsider the common assumption that the federal government protects liberty by showing how and why they abridge this fundamental right.

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The martyrdom of Aaron Swartz

A little over a year ago, a 26-year-old programmer and activist was murdered. His name was Aaron Swartz, and although he was found hanged in his Brooklyn apartment, and his death ruled a suicide, there is little question whose hands are stained with his blood. He was pursued mercilessly by a bullying prosecutor with a long track record of ruining the lives of brilliant (and perhaps naive) young men who didn’t play by the state’s rules. And he was betrayed by an educational institution that once prided itself on not playing by the rules, either.

Those are some of the heartbreaking and infuriating insights from a story in this month’s edition of Boston magazine about Aaron Swartz’ arrest and indictment, his father Bob’s attempts to extricate his son from the legal mess, and the relentless pressure by federal prosecutors to make an example of him. The punishment they sought for Aaron was draconian even by the feds’ standards: 13 felony counts under the Computer Fraud and Abuse Act (CFAA), with a possible prison term of 35 years, and a $1 million fine. Bank robbers and terrorists have received more lenient sentences. But U. S. Attorney Carmen Ortiz declared that Swartz’ prosecution would serve as a warning to other “hackers” about “stealing” from computers.

Aaron SwartzWhat did Swartz “steal”, exactly? Nothing. He downloaded files from JSTOR, an online archive for academic journals. Swartz used the network at MIT, where his father served as an adviser, under its “open access” policy, which included its subscription to JSTOR. Swartz had long held the view that scientific research should be freely available and not locked away behind a paywall. This wasn’t even the first time Swartz had performed such a download; in 2008 he grabbed 2.7 million documents from PACER, a federal court document system that usually charged for such access, even though they were public records. That attracted the FBI’s attention, but they found Swartz had committed no crime.

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The Freedom of Rose Wilder Lane

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People schooled in the libertarian idea are prepared for the thesis that freedom is productive and protective of human rights, whereas despotism is neither. Many years ago, I first glanced through Rose Wilder Lane’s The Discovery of Freedom and assumed that it was an eloquent statement of known truths, so surely there was nothing much to learn here. Maybe it was right for beginners.

In my second reading, some ten years later, I was struck by the depth and sweep of her argument and how it goes far beyond conventions. The problem, as she sees it, is not just the state, but rather, the universal penchant for repressing the human spirit. The state is only the most egregious form of authority.

Finally, on my third reading, I got it. This is a supremely radical and challenging work, one that essentially turns the world upside down. Nearly every expert on the topic of the history of civilization will tell you that the regime is what makes the difference between whether a nation rises or falls.

Lane takes another view entirely. She says it is not the regime but the absence of the regime that sets the human spirit in flight and permits it to create and make beautiful things out of the uncivilized world of the state of nature. She pictures the whole history of humanity as a struggle to be free of authority — not just this or that authority but all authority.

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Dallas Buyers Club

dallas-buyers-club-poster-570x844A recent post by Jeffrey Tucker identifies a common theme in many of today’s movies: “powerful people are not our friends but our enemies – so if we want to have a free and flourishing life, we are going to have to get busy and figure out how to make it happen.”

One movie in theaters now that reflects this message as much as any is Dallas Buyers Club, which is based on the true story of Ron Woodruff, an electrician and rodeo enthusiast diagnosed with AIDS and given 30 days to live in 1985.

Soon after his diagnosis, Woodruff (Matthew McConaughey) learns that there’s a drug for treating AIDS, AZT, but it’s still in FDA trials. He can participate in a trial, but he won’t know whether he’s getting the real drug or a placebo. Understandably, he doesn’t find this satisfactory.

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Ted Cruz mad at Obama for not throwing more pot users in cages

Senator Ted Cruz (R-Alberta Texas), a “Tea Party” Republican and ostensibly a champion of states’ rights, is unhappy with President Obama’s decision to not round up marijuana users in Washington and Colorado:

“A whole lot of folks now are talking about legalizing pot. The brownies you had this morning, provided by the state of Colorado,” he jokingly said during his keynote speech at Texas Public Policy Foundation’s Policy Orientation.

Oh Ted, what a knee-slapper!

“And you can make arguments on that issue,” Cruz continued. “You can make reasonable arguments on that issue. The president earlier this past year announced the Department of Justice is going to stop prosecuting certain drug crimes. Didn’t change the law.”

The problem, as Cruz sees it, isn’t just limited to Obama’s decision to not interfere with Washington’s and Colorado’s legalization of marijuana. The president is running the government like a “corrupt dictator” and only enforcing the laws that suit him. And perhaps Cruz has a point. But let’s look at a list of Cruz’ complaints:

Cruz is on solid ground when criticizing Obama’s unilateral delay of the ACA employer mandate. He simply doesn’t have the executive authority to make such a decision, as a lawsuit filed in October to block the delay argued. But it all falls apart when Cruz goes after Obama on immigration and drug policy.

For one, discretion in law enforcement is not the same thing as suspending a law. Prosecutors have always had substantial leeway in choosing which cases to pursue and what evidence to present, so Obama’s directives to immigration and Justice officials on relaxing deportation rules and drug offense indictments is not flouting the law but simply changing the enforcement strategy. This is not uncommon.

But more to the point, Cruz is attacking Obama for not strictly enforcing immoral laws. No government has moral authority to use violence against people, especially so when those people have violated no one’s rights. Smoking a plant and crossing imaginary political borders are crimes only because the state has declared them so. It’s blindingly clear that the federal government has no compelling interest in criminalizing drugs nor does it have a constitutional mandate to do so. And arguably it need not have jurisdiction over immigration enforcement — the constitution provides for federal authority over naturalization, or the laws and process by which one becomes a citizen. A states’ rights advocate, as Tea Party Republicans purport to be, might argue that border enforcement is the domain of border states.

Cruz seems to be repudiating both a cornerstone of the new Republican grassroots platform, and arguing for more federal infrastructure to maintain policies any true conservative should oppose. This is the sort of cognitive dissonance, not to mention rank hypocrisy, that keeps Republicans so woefully out of step with much of the nation.