Friday, May 7, 2010

Crimes of De-Citizenship




As I am sure you are all aware, a Pakistani born American, Faisal Shahzad, has been arrested for his part in the Time Square bomb plot. An intriguing debate has arisen within conservative circles over the fact that Shahzad was read his Miranda rights. Glenn Beck, of all people, came out in defense of making sure that this Islamic terrorist received his full constitutional rights as an American citizen. Far be it from me to stand to the right of Glenn Beck on an issue, but please bear with me. First off there is my general objection to Miranda rights in that they are creation of an activist Supreme Court and should be overturned. Nowhere in the Constitution does it say or imply that the authorities need to inform people of their rights. It is the responsibility of each citizen to have a basic understanding of their own rights. (If Congress wishes to make such a law as to insist that police inform suspects of their rights I would be all for it.) Moving beyond that, I reject the assumption that Shahzad is an American citizen with constitutionally protected legal rights. I would argue that the very nature of his crime strips him of his citizenship and the legal rights that go with it.

I take it as a given that non-uniformed combatants, such as spies, saboteurs and terrorists, do not have legal rights. Because of this, I reject all legal objections to torture. The United States not only as the right to put Al Qaida combatants in Guantanamo without trial it would also have the right to chop their fingers off one by one, gouge their eyes out, hang they by piano wire and put it all on Youtube. These combatants would be in the Dred Scott situation, without the legal standing to sue the American government in the first place. Not that I think torture is, for the most part, a good idea or that I would wish for torture to be used. The maintenance of limits to war and the bare shred of human rights relies on the willingness to draw a distinction between civilian and military and to respect a certain code of behavior even in the treatment of the enemy. If there are no consequences to violating the laws of war then there is no reason to keep them. Thus not only can one disregard the human rights of those who do not respect them, one must disregard them. There is no moral difference between those who would piously offer rights to those who do not respect them and those who do not believe in them in the first place. Rights can only apply to those who believe in them and respect them in return.

Citizens obviously have rights that protect them. These rights apply even to criminals, from jay-walkers to sadistic murderers. If someone rapes and murders a child, he is still an American citizen and has rights. He cannot be tortured and has the right to a fair trial in front of a jury of his peers. Even if we apply the death penalty, up until the moment the State executes him, he is an American citizen and has the right to a humane death. The reason for this is that throughout this entire process this person has not acted to reject the authority of the State. Whatever sick desires he felt he must give into, he never challenged the right of the State to judge him. Shahzad did not just help park a vehicle full of explosives with the intention that it explode and cause major casualties for which we might wish to convict him of manslaughter, he plotted with a foreign entity to work to undermine this government. By making war against this government he committed treason and rejected the legitimacy of the government. Thus he surrendered his citizenship and all the privileges that come with it. The military has the practice of stripping soldiers of their rank when they commit certain crimes; I see no reason why civilians cannot be similarly stripped of citizenship. It turns out that that Senator Joseph Lieberman is actually sponsoring a bill to strip anyone involved with foreign terrorists of their citizenship. I would of course go so far as to say that as a traitor, a non-citizen and an out of uniformed combatant Shahzad would have no more legal rights and could be tortured and executed at will without a formal trial.

How would this work in practice? Obviously there needs to be some sort of check in place to stop the government from simply accusing citizens of being terrorists and ignore the Constitution. My suggestion would be the following. Once the charge of terrorism went out against our Time Square bomber it immediately became a military operation. Once the authorities had their man they should only have had to offer the opportunity for civil rights groups to come to Shahzad's defense in the equivalent of a preliminary hearing. In the civilian world if a case gets past the preliminary hearing to a full trial the assumption is that the person is guilty. Because he is a citizen, though, he has the right to be presumed innocent until guilt is proven beyond all reasonable doubt. Such rights can be dispensed with for people outside the claims of citizenship of this or any other established state.

Understand this. If I believe that you, my neighbor, have rejected the contract of citizenship and are plotting against me, I can only be expected to reject my contract of citizenship as it applies to you and I will be trying to kill you as the only means left to be able to live in peace. This does not have to be beyond reasonable doubt; I only have to think it is likely and stop trusting you for this contract to break down.

7 comments:

Clarissa said...

I'm not sure I understand this. You suggest that for certain crimes people's rights should be suspended. But how can you know whether these people are guilty of anything before there has been a trial establishing their guilt?

You say Shahzad "plotted with a foreign entity to work to undermine this government". How can you possibly know that? If there hasn't been a trial, how can anybody know for a fact that he plotted with anybody? From newspapers? yeah, those are so reliable.

You say: "I take it as a given that non-uniformed combatants, such as spies, saboteurs and terrorists, do not have legal rights. Because of this, I reject all legal objections to torture. The United States not only as the right to put Al Qaida combatants in Guantanamo without trial it would also have the right to chop their fingers off one by one, gouge their eyes out, hang they by piano wire and put it all on Youtube." Without a trial, how can you know that people in Guantanamo are guilty of anything? Being suspected of something cannnot equal being guilty. How often are people wrongly suspected of crimes? We now know that there were people in Guantanamo who weren't guilty of anything at all.

Removing the presumption of innocence as soon as there is some suspicion (reasonable or not) undermines the very foundations of the American justice system. Declaring a person a terrorist before an actual trial determined that they are, in fact, a terrorist makes absolutely no sense.

Often, fear blinds people to reason. This, I believe, is precisely one of those cases. All you know abot Shahzad comes from TV and newspapers, doesn't it? How come you trust them enough to draw all these conclusions about what he did and why?

As for me, I don't trust the press as far as I can throw them. They are super unreliable. This particular individual might prve to be completely innocent. Or not. But we won't know until there is an actual trial that we can follow. Not some secretive military proceedings that the public can in no way observe and control.

Izgad said...

Clarissa

This is why at the end of the post I argued for some sort of trial, the equivalent of a preliminary hearing. I do not know you Clarissa. For all I know you might be plotting to kill me. The only way I can be completely safe from you is if you are dead. Now this obviously leads to a situation where everyone is shooting at each other, which is not particularly helpful. The solution creating by political theorists down through the ages is that we agree to form some sort of State which will hold the monopoly on violence. The bargain I make with you (as a resident alien here you are in many respects a citizen) and the State is that I will allow the State to be the arbitrator between us and that the State will not come after you without reasonable doubt. Even if I think that you are probably trying to kill me, I have to wait until there is evidence beyond reasonable doubt or for you to actually go for your gun. I agree to this bargain with you even if I assume you are a bloodthirsty Ukrainian, because I assume that you are a bloodthirsty Ukrainian who has also made this bargain with me and the State.
In the case of Shahzad, obviously neither of us has seen the evidence against him and would be able to convict him beyond all reasonable doubt. That being said, we can assume that he probably is guilty not just of trying to kill people but of violating his bargain of citizenship. As such, the bargain is off and he can be killed simply to resolve our doubts as to whether we can trust him.

Clarissa said...

"That being said, we can assume that he probably is guilty not just of trying to kill people but of violating his bargain of citizenship."

-On the basis of what are you willing to assume this? Are there any facts that you have seen - other than some tendentious newspaper articles - that allow you to make such assumptions?

Who is to guarantee that tomorrow somebody doesn't assume I'm a terrorist because I have a weird last name or that you are because you have a beard? How can anybody guarantee that these "assumptions" are based on any kind of reality other than fear and prejudice?

Izgad said...

It is simpler to assume that our suspect is guilty than the still perfectly plausible assumption that the government and the media conspired to frame this guy so I will take it as an operational assumption that he is guilty. Keep in mind how much money this guy could sue for if he were found to be honest and could prove that the government and media conspired to frame him.
You have no guarantee that the bigots in this country will not decide that you are a threat and kill you. For that reason, if you wish to not get killed, you should be spending less time complaining about the very real racism in this country (It may be real but pointing it out is not going to make you any safer) and more time fashioning a public image that can at least satisfy the more moderate bigots among us. (Look I did not invent this world. I am just trying to just die of old age in it.)

Vox Populi said...

>In the case of Shahzad, obviously neither of us has seen the evidence against him and would be able to convict him beyond all reasonable doubt. That being said, we can assume that he probably is guilty not just of trying to kill people but of violating his bargain of citizenship.

Why does terrorism exclusively imply a violation of the citizenship bargain?

If the monopoly on violence bit is determinative, hasn't a psychopath who likes to kill people and goes around cutting them up just as surely rejected the fact that the state has a monopoly on violence? So too has a mugger or someone who beats his wife. Why do we let those people keep their citizenship?

And if it's treasonous behavior, why is plotting against the State with foreign enemies automatically a de-citizenship offense? Why do you assume that if I don't like the government I reject the government's authority? What about a psychopath terrorist - does he get to keep his citizenship because he's diseased?

And how would you determine all this in a preliminary hearing? You would convict a person of the worst possible offense in a preliminary hearing. That violates all sort of constitutional due process standards.

Izgad said...

Vox

In Judaism we recognize a distinction between someone who sins out of an inability to control their desires and someone who sins with the conscious intention of going against God. Otherwise all sins would require the death penalty. In a state of nature (such as the Island on Lost) I am not going to wait around till I know beyond reasonable doubt I can trust my fellow passengers to not slit my throat while I sleep. If I think it is probable that someone wants to kill me I am going to kill that person first. It is only when we sign a covenant of citizenship that we become required to give people the benefit of beyond reasonable doubt. The evidence leans in favor of this man tricking us into making this covenant with him like the Givonim in Joshua. So retroactively we should be free of our obligations to him as a citizen to give him the benefit of beyond reasonable doubt. If we thought that he might be a terrorist we never would have let him in the country let alone to become a citizen.

Clarissa said...

"For that reason, if you wish to not get killed, you should be spending less time complaining about the very real racism in this country (It may be real but pointing it out is not going to make you any safer) and more time fashioning a public image that can at least satisfy the more moderate bigots among us."

-For some reason, I fear for my safety a lot less than you do. So I can't bring myself to care about what bigots might think about me. :-)

As to Shahzad, he is a perfect example of how the immigration system in country is deeply flawed, to say the least, and is in need of serious repair.