Laws Are Like Cobwebs


New at Reason: Swift's maxim about the law still applies. The U.S. government remains sovereign, even if the U.S. constitution doesn't. Judge Andrew P. Napolitano explains.

NEXT: Hook and Lateral

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  1. “The translator accused of spying for Syria is a military man, thus subject to military courts and a different set of rights and criminal procedures.”

    This argument would make sense if he were being charged in his capacity as a soldier before a court-martial, but this is not the case. True, the U.C.M.J. applies to him regardless of his location. He is not, however, charged under a provision thereof. He is instead charged with violations of the International Emergency Economic Powers Act, which applies to all American citizens.

    I do not accept the argument that all of United States Code applies to him regardless of his physical location by virtue of his status as a soldier. From my understanding, neither United States Code nor the Uniform Code of Military Justice state that every provision of U.S.C. applies extraterritorially to members of the armed forces.

    Thus, the theory based on his status as a member of the military would only be valid if he were charged before a court martial under either the U.C.M.J. or a provision of U.S.C. that explicitly applies only to members of the armed forces. Thus, his status as an officer is irrelevant in this regard because he is charged in the United States District Court for the Eastern District of Virginia.

    An easier argument that you could make in response to the article would be that he is charged under a law that is extraterritorial in nature. That is, the government can prohibit its citizens from doing things while it is under the jurisdiction of completely different countries. It is generally illegal, for example, for me to fly from Cunc?n to La Habana and spend several nights at a hotel there. It would also be illegal for me to sell U.S. secrets to Fidel Castro there, even though I am sure as hell not protected by the U.S. Constitution while in Cuba and under its jurisdiction.

    While I consider it unreasonable to state that the U.S. Constitution does not apply to American actions at U.S. military bases, the charges against al-Halibi are not based on any kind of sovereignty that presuposes territorial jurisdiction of any kind of American law to where the crime was committed.

    Napolitano has simply misinterpreted a law that asserts extraterritorial jurisdiction. The fact that extraterritorial jurisdiction is claimed in this case even supports the administration on the claim that they are contradicting itself, since he could be charged regardless of whether he committed his alleged crimes in New York, Guant?namo Bay, Demascus, or downtown London.

    The U.S. Constitution applies wherever the U.S. government has any sovereignty, which should include American bases. This is why the Constitution should apply to Guant?namo Bay. The issue of jurisdiction is not relevant because it is not dependent upon territorial sovereignty.

  2. The Military has the power to prosecute its servicemen no matter where their infractions take place.

  3. The Military has the power to prosecute its servicemen no matter where their infractions take place.

    At issue is not so much what they can do to the individuals who work in the military, but rather what they can do to civilians on account of blunders like the powers act. If they want to turn into a monarchy and toss habeas corpus out the window, fine, just don’t wave the flag and pretend it’s still the same “freedom,” because it’s not. It’s bullshit, and everybody who’s typing in this forum knows it.

    the only institution that can protect an individual from an all-powerful government is…

    The only person who can ultimately protect you from an all-powerful government is yourself. When the all-powerful government comes for you, fight back and kill them, and continue to kill them until you have spent either your last bullet or your last breath.

    I think we’re still pretty far away from that point, however. There is yet some hope for the carnival of idiots currently polluting the beltway. If anything it’s fun to watch them opine on freedom fries and abortions.

  4. Ouch. That first link is a nasty blinking mess.

  5. I agree with erf. I have permanent eye damage. 🙂

  6. Tim,

    You might also wish to link to this article in your write-up:

  7. Near the end of his article Napolitano writes of the constitution

    “No court has ever seriously suggested that the rights it guarantees are discretionary.”

    Apparently he doesn’t follow the Supreme Court very closely. The SCOTUS declare that a compelling interest of the state in maintianing campus diversity outweighs equal protection gauranteed by the Consitition, but only for 25 more years. That seems rather discretionary to me.

  8. Looks like he’s in the Air Force and therefore covered by the military code of “justice”, meaning his butt belongs to the government to do whatever they feel like.

  9. To all those having in the past on these pages bemoaned “judicial activism subverting the will of the people”, can you now see that the only institution that can protect an individual from an all-powerful government is indeed an independent judiciary? At times that judiciary will come down with unpopular rulings. Call it activism, call it what wou like, imho it is well worth the price, as a dependent judiciary most certainly leads to dictatorship.

  10. “the only institution that can protect an individual from an all-powerful government…”

    Oh yeah? What about a “well-regulated militia?”

  11. Is this Napolitano guy from the same gene pool that gave us our wanna-be tax and spend governor out here in Arizona?

  12. StMack,

    “That seems rather discretionary to me.”

    But they couldn’t have been “serious”!! 🙂

  13. Much as I bemoan the increasingly dangerous infringement of Constitutional protections which I believe has occurred in recent years, I can’t say I see what the author’s legal or Constitutional point is. If the defendant was, in fact, serving in the military, then it is an undisputed fact of (Constitutional) law that he was (and is) subject to the Uniform Code of Military Justice and, by extention, the U.S. Criminal Code *regardless* of the venue of the alleged crimes.

    One can, of course, make the political case that that should not be the law (a difficult case to make on moral grounds, however, given that the military is all-volunteer), but the law (right or wrong) is clear on the extraterritorial applicability of the UCMJ.

  14. These words must apply to everyone! Or they mean nothing! Do you understand, Cloud William?

  15. I think DA Ridgely is right about Napolitano’s reasoning. The translator accused of spying for Syria is a military man, thus subject to military courts and a different set of rights and criminal procedures.

    I also find Napolitano’s estoppel argument overly simplistic.

    And not how Napolitano phrases his article. The government “persuaded” four courts to hold that the Guantanamo detainees were not entitled to Constitutional rights like habeus and due process (not to mention right to an attorney, speedy trial, searches and seizures, etc.). One could just as easily characterize this as “four courts have held” and thus to be a judicial stamp of approval on what the administration is doing down in Cuba.

    Lastly, Napolitano makes some alarming conclusions at the end, stating that rights are trampled in the Moussaoui, Padilla, and Hamdi cases. Well, what rights are they? And Napolitano writes “successfully threatened to strip Americans of all rights in order to get confessions and guilty pleas in the Lackawanna Six case. ” Well that is a load of crap. How did the federal prosecutors and agents threaten to strip Americans of all rights in order to get confessions from the Lackawanna six? Those gents pled guilty. I saw the Frontline story on the FBI post-9/11 and it went into depth about the Buffalo al Quaeda link and the Lackawanna Six. One of them was interviewed on Frontline and he actually met with Osama bin Ladin months before 9/11. Went to afganistan, trained in a terrorist camp, and met the dude. Now how the hell can this guy claim he isn’t a terrorist? He didn’t go to afganistan for the weather, and he didn’t meet OBL out of journalistic interest. He was a terrorist, saw the gov’ts evidence, and then pled guilty. I see no violation of anyone’s constitutional rights.

  16. I don’t think Napolitano is actually suggesting that military personnel in Guantanamo shouldn’t be subject to federal law (which includes the military law that members of the Air Force consent to when they voluntarily enlist). His point is that if US law applies in Guantanamo for military personnel, then it should apply to anybody in Guantanamo under the authority of the US gov’t. In other words, the Taliban and Al Qaeda prisoners should be charged with crimes and tried, not just kept in limbo.

  17. And the IRS expects every US citizen to pay income taxes on whatever income they earn, whether it is inside the US, outside the US, on the moon, or on a far-away solar system, even if you never keep any funds inside the US, or even in US dollars. The authority of the IRS with regard to US citizens knows no boundaries…

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