View 695 Tuesday, October 04, 2011

My program for prosperity: Congress suspends all federal regulations for ten years. All of them. All such matters are now left to the states. The suspension will take place in 180 days. During those 180 days Congress can reinstate those deemed necessary and affordable. One would expect them to keep the Department of Agriculture meat inspection programs, and I suspect that the Bunny Inspectors would not even be considered. Programs like Americans with Disabilities are gone unless Congress votes to keep them. Minimum wages are now a state matter. I am sure there would be heavy lobbying in favor of some regulations and against others. It would be frantic, but if Congress doesn’t vote to keep the regulations they are gone, their enforcement ceases, and those involved in it are redundant under civil service rules.

The result is likely to be an economic miracle. Meanwhile the states would have to decide what to do about a lot of those regulations: adopt them or not. The economic miracle would probably not extend to states that kept a lot of regulations.

The alternative is probably another great depression.

Am I serious? I think so. The economy is in bad shape, manufacturing is in bad shape, regulations strangle everything. This is no longer the land of the free. The theory of all that regulation is that it makes life better for everyone. Perhaps so in times of great prosperity. It is not true now. The American people want opportunity. They want work, preferably steady work. For some that means a life of opportunities and change, but for others what is wanted it a lifetime of employment at the lower middle class level. We achieved that once until greed destroyed that system and it was replaced by union greed on the one hand, corporate greed on the other, and an attempt to change it all by regulation. That has not worked. Greed is not attractive; but the Iron Law makes it certain that regulations won’t end it, and it won’t be absent from the regulators who look for more reasons to justify their jobs and power.

We need an economic miracle.

Jerry,

Yesterday, you said "The US needs a bureau whose task is to show the cost of the other bureaus. Maybe if everyone understood what government costs there would be less of it?" More importantly, if everyone paid a portion of that cost, they would feel the pain as the cost went up.

Russ Armstrong

And if we had freedom again we might decide that it was valuable.

Electric Plane Wows NASA | NBC Bay Area

Jerry,

X-prizes work!

http://www.nbcbayarea.com/news/tech/Electric-Plane-Wows-NASA-131038118.html

If we can build an electric plane that flies 200 miles at 100 mph, we can build viable electric cars. Now all we need is a primary energy source other than fossil fuels to charge the battery.

Jim Crawford

Yes; prizes work much better than trying to pick winners and subsidize them. Stop regulating and start awarding prizes. Bring back prosperity.

There will comments and discussions of the Proscription issue in today’s mail.

View 695 Monday, October 03, 2011

The latest Presidential flap is just that, much ado about not very much, but perhaps it ought to be a matter of concern. The concern is not whether Rick Perry and his father were insufficiently zealous in obliterating the word “Niggerhead” on a rock outside a hunting site they leased rights to in 1983, but that any serious person would think that this is relevant to his qualification to be President of the United States. Note that it is not alleged that Perry had anti-black sentiments, then or now. He hadn’t joined the Klan or expressed pro-Klan sentiments. He wasn’t the last Kleagle. He or his father painted over the word “Niggerhead” but apparently they weren’t diligent enough in applying the paint.

And that disqualifies him from being President of the United States. It rates pages and pages of print space.

Disturbing. Not the “Niggerhead” label which was I am sure offensive and is now long gone, but that anyone cares about a faded nameplace from a long time ago.

When I was a kid we used to say things like “Sticks and stones may break my bones, but names will never harm me,” an appropriate answer to someone calling you names (and which generally discouraged them from doing it in the first place). Now, apparently, it is more outrageous to have once hunted on property given the name Niggerhead than to – what? Denounce female circumcision (thus insulting cultures that practice it)? Imply that Scots are miserly? Imply that some other group is stingy? Doubt AGW? Wish bad cess to someone of a different political party? Ah well.

Mission for NASA: Become the national Space Prize organization. Congress appropriates $2 billion a year, relatively trivial amounts; NASA sets up prize committees, stores up the money, and gives it away as prizes. It doesn’t fund anything, it doesn’t need large staffs, it needs some bright people to come up with prize objectives and definitions, judges to determine that the prize objectives have been met, and someone to sign the checks for winners. Nothing else.

Now some of the NASA centers may be worth preserving. JPL is one of them, and I am sure there are still some good facilities at Ames. The launch facility at Canaveral needs to be kept operational. It may even be that some NASA research should be funded directly. X Projects still make sense. But for the most part NASA should operate as NACA did, not as an operational agency.

The US needs a bureau whose task is to show the cost of the other bureaus. Maybe if everyone understood what government costs there would be less of it?

View 694 Sunday, October 2, 2011

I spent the afternoon at the West Hollywood Book Fair, and it’s late so this will be short.

Apparently I have not made myself clear on this matter of proscription lists.

Of course the justification for the missile attacks on two American citizens in Yemen is that this was an act of war against those who have publicly declared themselves to be enemies of the United States. They considered themselves at war with us, and we with them. This is war.

We can accept this, but questions remain.

First, this wasn’t an act of war against someone engaged in actions against the United States. At the time they were travelling from one town to another, and whether they were armed or not is not relevant. It was a missile strike without warning on specific and named individuals, and one presumes there is a list of others who merit the same deadly attention, all of them persons who are at war with the United States. Let us assume all those persons on that list deserve to be there; that they have in fact engaged in war against the United States, and hitting them with missiles, or a sniper’s bullet, is no more than they deserve.

Questions still remain.

The first question is, how do you get on that list? It surely isn’t automatic. Just because the press reports that you have publicly declared yourself an enemy of the United States doesn’t necessarily make it true. Newspapers have been known to get such things wrong. But assuming that we have good intelligence reports, how do you get on the list? Is this a power that lies with the President alone, or must he have the acquiescence of someone else? Who? We are well beyond the law or the constitution here. We have to presume that this is a war power and resides in the President and that he can delegate that power.

To whom is he responsible, and how must he convey this command? Presume that the President in a fit of pique shouts some to the effect of “Damn that Rush Limbaugh! He’s an enemy of the people!” is that sufficient to place El Rushbo on a conscription list? Surely not. Suppose the President becomes sufficiently exasperated with El Rushbo to inscribe his name on whatever instrument is used to convey the proscription list to the military officers in Nevada who control the cruise missiles. Limbaugh has announce a trip to the Middle East, to Egypt or to Israel or Lebanon, and the President has determined that he will seriously compromise the national security and must be stopped. Is that sufficient?

Of course that could never happen. Not this year. Possibly not this decade, Surely.

Another question: if either of these American citizens had returned to the United States and come to Kennedy International where they presented their US passports at the entry booth, could they have been arrested? On what charge? Were there outstanding warrants? In the case of Samir Khan it is not clear what he could be charged with. He ran a blog, an Internet magazine – I do not know of any other involvement other than that he associated with Al Awaki who associated on line with Major Hassan. Perhaps either or both could be charged with conspiracy and with levying war against the US, but I don’t think that has been done. So: we establish that they could be killed out of hand while travelling from one place to another, neither carrying arms or engaged in any act of war, while in a foreign country: but could they have been shot down by a US Marshall while still in the part of the airport that is not yet in the United States? On international territory? Or after they stepped into the United States?

They can be killed but not arrested: it would take convening a grand jury or a warrant from a magistrate before they could be arrested at Kennedy?

I do not here seek to make life difficult for our military; but I do seek to ask questions. If American citizens can be put on a proscription list and those on that list can be killed on sight by launching high explosives as them, is it proper to ask the procedures required to get on that list? Could immoderate talk show hosts be put on it? Glenn Beck? Rush Limbaugh? So far it only applies to persons not in the United States. Could someone be on the list and be safe while in the US, but the rest of the world is death row?

Clearly I am rambling here and do not have any final answers. Perhaps the questions are frivolous? Perhaps as one reader says “It’s war and all’s fair in love and war.” Of course that statement is not true. And I do not seek to condemn Mr. Obama for ordering the strike. I do question whether we have sufficiently thought this through. Surely before American citizens can be put on a proscription list there must be some conditions: an act of war, a determination by the President, and surely there needs to be a declaration of war. We assume that the War on Terror establishes a state of war (although I believe Mr. Obama rejected that during the campaign; perhaps he has changed his mind, as he has changed his mind regarding Guantanamo, and trials of the inmates of Guantanamo by military tribunals (note that here there is to be a trial: the President does not seem to assert the right simply to order the execution of those held in Guantanamo without those military tribunals). Would it be good to write down the procedures for establishing the proscription list?

Well, enough. Had Mr. Clinton acted positively when Delta had Bin Laden in their sights, it might be that 911 would not have happened. Mr. Obama did not shirk the responsibility. We give him credit for that. But I do think it is worth discussing how we regularize the procedure for getting on the proscription list, and specify how one might appeal to get off it – perhaps by coming home to the United States and engaging a lawyer?

Enough. It has been a long day.

Monday morning’s Wall Street Journal has an article by John Yoo http://online.wsj.com/article/SB10001424052970204226204576603114226847494.html that is intended to address this issue. His conclusion is:

Simply because the Obama administration has the legal right to use force to kill members of the enemy does not mean it must always pull the trigger. It should have good reasons to believe an American has joined al Qaeda.

I don’t question this, but I do think it worth thinking about what those “good reasons” are. To the best of my knowledge a prisoner at Guantanamo cannot be summarily executed by a simple order from the White House. That requires a trial by a military tribunal. Under the Supreme Court precedent of the World War II German saboteurs executed after they were smuggled into the US, that would be sufficient for both citizens and non-citizens.

After the RB-47 incident in which the USSR shot down an unarmed US reconnaissance airplane over international waters, President Eisenhower is said to have ordered the assassination of an equivalent number of Soviet military troops of similar rank to those killed in the RB-47. By “is said to” I mean that this authorization is widely rumored, and I have a number of reasons (none of them official and none of my reasons subject to the official secrets laws) to believe this is true. It was neither officially admitted or denied by Eisenhower, who refused to discuss the matter. He neither asserted nor denied a right to to take this action.

Mr. Yoo argues that it is meet and right, and every expedient to use all means at our disposal to strike down the enemies of the nation, citizen or not. I think that if we accept that principle we may very much regret it. I may be mistaken in that. I do not think I ma mistaken in saying that if we are to accept such a principle we ought to be careful to define just who has the right to designate citizens as national enemies to be killed on sight, and to declare just who has the authority to execute this death warrant, and where it applies: is it strictly applicable to overseas, or may the President order the FBI to kill, say, Mexican drug lords on sight on either side of the US border? Are there limits, and should we not declare them?

Cicero’s last words continue to haunt: “There is nothing proper about what you are doing, soldier.” The Tribune who struck off the head of the former Consul of Rome believed otherwise. He was doing his duty to Marc Anthony.

View 694 Monday, September 26, 2011

In the old Roman Republic before the wars of Marius and Sulla it was considered sacrilege to put to death a Roman Citizen without trial. The Civil Wars changed that, and when one faction won it would publish lists of enemies who could be killed without trial or mercy if found within Roman jurisdiction. Most lists of proscription also carried rewards to those who found and executed the proscribed enemy of the people. Proscriptions also carried confiscation of property, and were used by Sulla to replenish the treasury.

After Sulla the practice was used by other factions. Julius Caesar refused to employ such a device on his election as Consul and elevation to dictatorship, but when Caesar was assassinated

Plutarch, Life of Cicero, 46.3-6:

3 The proscription of Cicero, however, caused most strife in their debates, Antony consenting to no terms unless Cicero should be the first man to be put to death, Lepidus siding with Antony, and [Octavius] Caesar holding out against them both. 4 They held secret meetings by themselves near the city of Bononia for three days, coming together in a place at some distance from the camps and surrounded by a river. 5 It is said that for the first two days Caesar kept up his struggle to save Cicero, but yielded on the third and gave him up. The terms of their mutual concessions were as follows. Caesar was to abandon Cicero, Lepidus his brother Paulus, and Antony Lucius Caesar, who was his uncle on the mother’s side.

Cicero was murdered on December 7, 43 BC. His last words were “There is nothing proper about what you are doing, soldier, but do try to kill me properly.” His head was struck off and exhibited in the Forum. Marc Anthony’s wife pierced Cicero’s tongue with a hatpin as retaliation for the effective speeches Cicero had made against Anthony during the period when Cicero sided with Octavius against Anthony. The proscription lists were negotiated when Octavius, Anthony, and Lepidus formed an alliance. Cicero’s crime was his eloquent speeches.

President Barack Obama says the killing of American-born cleric Anwar al-Awlaki in Yemen "is a major blow to al-Qaida’s most active operational affiliate."

Obama also says it "marks another significant milestone in the broader effort to defeat al’Qaida."

Al-Awlaki, a prominent figure in al-Qaida in the Arabian Peninsula said to have direct involvement in plots against the U.S., was killed early Friday in a strike on his convoy carried out by a joint operation of the CIA and the U.S. Joint Special Operations Command, according to counterterrorism officials.

Officials also said that a second American, Samir Khan, who edited an online magazine that spread the word on ways to carry out attacks inside the United States, also was killed in the strike.

Obama spoke Friday at a retirement ceremony at Fort Myer, Va. for Adm. Mike Mullen, chairman of the Joint Chiefs of Staff.

http://www.forbes.com/feeds/ap/2011/09/30/general-us-cleric-killed_8709986.html

It is not clear how one gets on the American Proscription List, nor do I know if there are two separate lists, one for citizens and one for others. The official policy seems to be that proscription only applies to citizens not in the United States, but that is an inference: the President so far as I know has not cited any act under which Americans resident in Nevada are authorized to carry out proscriptions in Oman and other foreign countries. It is widely understood that President Bush sent US armed forces teams to “Kill Bin Laden” shortly after 9-11, but there were no American citizens on the target list they were given. Those were acts of war, and carried out under the war powers.

Constitutionally the Congress is explicitly prohibited from Acts of Attainder, which is a form of Proscription adopted as an actual Act of Parliament still in theory allowable under English law, but not employed for a century or so. Under an attainder, a law is passed pronouncing a named individual or members of a particular organization or group, or possibly a named family, guilty of a capital crime and authorizing their execution without trial. No such act has been passed for more than two centuries.

However, according to popular legend and the novels of Ian Fleming the British Security Services have proscription lists but the executions are performed only by certain authorized operatives (the double-naught agents). It is not clear who is authorized to place people on the list. In American fiction, particularly the novels of Donald Hamilton, there is a US civil service agency which maintains lists of people to be executed if found; one may infer from Hamilton’s novels that “Mac”, a senior executive holding no constitutional office, has rules which can be applied, and in some cases assassination operatives to were sent to deal with American citizens both domestic and abroad. The US agents of execution know only that they have been ordered to perform the actions; they never know by whom the action was requested, although in some stories Mac drops hints about DEA and CIA.

The obvious question for discussion is whether this activity – summary execution of citizens without trial – is permissible or desirable under Constitutional Government as part of the discretionary war powers of the President, and if so, do they apply within the United States as well as in foreign nations? It is not a simple question. What acts must a citizen perform to earn a place on the proscription list? One of those killed was “Samir Khan, who edited an online magazine that spread the word on ways to carry out attacks inside the United States”, but is that the totality of his acts that made him an enemy of the people? (I say enemy of the people, but I don’t know what designation is given to people who may be killed on sight without trial.) What agents of the Republic are authorized to carry out the act of proscription?

Could a private citizen who somehow got wind of the fact that a given person was on the list plead that as a defense? I killed him because he is proscribed. You cannot prosecute me. (As we certainly cannot prosecute the members of Seal Team Six for the execution of Osama, although I suspect the government of Pakistan would do just that if they could get custody of the team. As for example, suppose that one of the operators of an armed drone, told to kill a certain American citizen on sight if found in Oman or Pakistan, sees that person coming out of a casino in Las Vegas and takes the opportunity to gun him down. Would that be a valid plea in Nevada? Or suppose he follows this proscribed American to federal property and shoots him the instant he sets foot on federal soil? Improbable, or course. Probably impossible, although it might make for a good novel.

Yes, I thoroughly understand that “Reasons of State” apply here. I understand that many believe the two were indeed enemies of the United States, traitors, and deserving of their faith, and that many lives may have been saved by their deaths. I understand that the Imam was probably the person who persuaded the army Major to fire on his comrades. Note that the actual shooter in that act of war against the US is still being held for trial, while the person said to have recruited him for that act was killed by proscription.

Reasons of State can be very broad, and can hide a wide range of actions. Are there any limits to such? How are the limits to be applied? At what level does this ultimate authority rest? Is it discretionary with the President? Must he take counsel (and from whom?), or is it his decision alone? We now have the President specifically taking credit for bagging Bin Laden as well as these two US citizens, all of them self-admitted members of an organization at war with the United States; can we infer a policy (and limits) from that? It may well be that we need a proscriptive power, but surely it needs definition and the ultimate authority should be specified? Would it be in order to place the chairman of Wikileaks on the proscription list to be blown up if seen on screen? Could we send a drone into England where he now resides? Who should make that decision?

During the Cold War the United States was threatened by a very large army that wielded thousands of nuclear weapons that could be delivered to the United States in hours to days. The United States employed a number of clandestine services, and some of them are said to have carried out fairly drastic operations, as when Eisenhower authorized the assassination of certain Russian military officers in retaliation for the US officers lost in the Soviet downing of the RB-47. That was long ago. One result was a sort of unofficial truce, which gave a measure of protection to US CIA agents and Russian KGB operatives both at home and abroad, and made political assassination a fairly rare event. Rare, but not zero.

This discussion is not likely to end. Nor do I claim to have answers. Do not take this as a diatribe against President Obama. I mean to raise the question of just where are the limits of authority in a republic whose government has specific and limited powers. And if the President can infer certain powers, can the Governor of Arizona hire an assassination of, say, the head of a major drug cartel? For that matter, can the US President? Should they?

For a very interesting story of the twilight days of the Cold War:

http://turcopolier.typepad.com/sic_semper_tyrannis/2011/09/unter-vier-augen-by-basilisk.html 

I remember the tire store and the liquor store nearby, but from well before this story, back when there were no bars in Virginia, and the Marriott Twin Bridge boasted a private club on the top floor.