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Filibuster

A remark­able per­for­mance demon­strat­ing the unre­mark­able prin­ci­ple that Amer­i­cans can­not be put to death with­out due process.

Per­haps this is a remark­able con­cept: the his­tory of the world is rife with tyrants who slaugh­ter those who can be slaugh­tered, threaten with death those who would rise up against them, and imprison or enslave those whom it chooses. Dr. Rand Paul’s solil­o­quy demon­strated just how remark­able our coun­try is, for it is but one CIA appoint­ment away from extinction.

The Founders under­stood the ten­dency of those with power to abuse it, and those who would abuse power to seek it. They lim­ited the power of gov­ern­ment and divided gov­ern­men­tal pow­ers, such that no one per­son or branch could be “judge, jury, and exe­cu­tioner all in one.” For the record, that’s not what the Founders said; that is what Rand Paul said last night. It is these restraints that Obama laments not yet “hav­ing bro­ken free” of.

Most (but not all) vio­la­tions of essen­tial free­doms have some sort of rem­edy. Cops ille­gally search you or your pri­vate effects? Sup­press evi­dence at trial. Don’t like the pun­ish­ment imposed? An appeals court can over­turn it. State doesn’t want you writ­ing about some­thing? Write about it and then bring a First Amend­ment defence at trial. Didn’t get coun­sel at trial? Have another trial. Judge posts exces­sive bail? Appeal that decision.

Even the right to a speedy trial, the quin­tes­sen­tial right with­out a real rem­edy, has a rem­edy — start a trial. Cap­i­tal pun­ish­ment is not imposed with­out an indict­ment, trial (usu­ally by jury), con­vic­tion after the pros­e­cu­tion demon­strates its case beyond a rea­son­able doubt, and appeals courts have upheld the ver­dict. The accused may present an array of defences. or sim­ply sit there and enjoy the right to be acquit­ted if the pros­e­cu­tion does not prove its case.

Drone strikes against Amer­i­cans are fun­da­men­tally dif­fer­ent. There is no rem­edy for those killed by drones, nor are there checks on power, no way for a sec­ond, inde­pen­dent body to step in and say, “No, this per­son will not die.” We can only imag­ine the futil­ity of launch­ing a law­suit against the Pres­i­dent on behalf of the deceased and the deceased’s fam­ily. There is no right to present excul­pat­ing evi­dence, to show that you do not deserve the death penalty. For as much as lib­er­als malign pro­ce­dural due process, it is that fun­da­men­tal pro­ce­dural check that invests such heavy decision-​making with mul­ti­ple, inde­pen­dent bod­ies — first a grand jury, then a petit jury, a judge, and an appeals court. Such a check is totally absent with drone strikes.

What of the death penalty? Where are those who pray, hold can­dle­light vig­ils, and decry the vio­lence of cap­i­tal pun­ish­ment? Where were they last night, when Amer­i­cans could be given the death penalty for any crime or no crime at all? I’ve noted this before and will say it again: Sad­dam Hus­sein was tried, cap­tured, and put to death. KSM may be put to death. There are peo­ple who think that is wrong, but nary a peep was heard from them when Osama bin Laden was killed (no trial), Gaddafi was killed (no trial), or when snipers take out mur­der­ers. There’s a cer­tain steril­ity to those deaths that is absent in the cap­ture, trial, con­vic­tion, and exe­cu­tion of Hus­sein, Tim­o­thy McVeigh, Ted Bundy, and all others.

I think that Obama knows this, knows that dead peo­ple are just more dead peo­ple and don’t run around mak­ing noise, get­ting fol­low­ers, inspir­ing prayer vig­ils out­side of courts, or oth­er­wise muck­ing up the works. But effi­ciency is no rea­son to end someone’s life — if it were, the Bill of Rights would be irrational.

Update DTG: Rox­eanne had this post in draft for a day but I was unable to get ahold of her to con­firm it was done, It looked good to me so I wanted to make sure her words made it up while the story is still fresh.

A remarkable performance demonstrating the unremarkable principle that Americans cannot be put to death without due process.

Perhaps this is a remarkable concept: the history of the world is rife with tyrants who slaughter those who can be slaughtered, threaten with death those who would rise up against them, and imprison or enslave those whom it chooses.  Dr. Rand Paul’s soliloquy demonstrated just how remarkable our country is, for it is but one CIA appointment away from extinction.

The Founders understood the tendency of those with power to abuse it, and those who would abuse power to seek it.  They limited the power of government and divided governmental powers, such that no one person or branch could be “judge, jury, and executioner all in one.”  For the record, that’s not what the Founders said; that is what Rand Paul said last night.  It is these restraints that Obama laments not yet “having broken free” of.

Most (but not all) violations of essential freedoms have some sort of remedy.  Cops illegally search you or your private effects?  Suppress evidence at trial.  Don’t like the punishment imposed?  An appeals court can overturn it.  State doesn’t want you writing about something?  Write about it and then bring a First Amendment defence at trial. Didn’t get counsel at trial?  Have another trial. Judge posts excessive bail?  Appeal that decision.

Even the right to a speedy trial, the quintessential right without a real remedy, has a remedy – start a trial.  Capital punishment is not imposed without an indictment, trial (usually by jury), conviction after the prosecution demonstrates its case beyond a reasonable doubt, and appeals courts have upheld the verdict.  The accused may present an array of defences. or simply sit there and enjoy the right to be acquitted if the prosecution does not prove its case.

Drone strikes against Americans are fundamentally different.  There is no remedy for those killed by drones, nor are there checks on power, no way for a second, independent body to step in and say, “No, this person will not die.”  We can only imagine the futility of launching a lawsuit against the President on behalf of the deceased and the deceased’s family.  There is no right to present exculpating evidence, to show that you do not deserve the death penalty.   For as much as liberals malign procedural due process, it is that fundamental procedural check that invests such heavy decision-making with multiple, independent bodies – first a grand jury, then a petit jury, a judge, and an appeals court. Such a check is totally absent with drone strikes.

What of the death penalty?  Where are those who pray, hold candlelight vigils, and decry the violence of capital punishment?  Where were they last night, when Americans could be given the death penalty for any crime or no crime at all? I’ve noted this before and will say it again: Saddam Hussein was tried, captured, and put to death.  KSM may be put to death.  There are people who think that is wrong, but nary a peep was heard from them when Osama bin Laden was killed (no trial), Gaddafi was killed (no trial), or when snipers take out murderers.  There’s a certain sterility to those deaths that is absent in the capture, trial, conviction, and execution of Hussein, Timothy McVeigh, Ted Bundy, and all others.

I think that Obama knows this, knows that dead people are just more dead people and don’t run around making noise, getting followers, inspiring prayer vigils outside of courts, or otherwise mucking up the works.  But efficiency is no reason to end someone’s life – if it were, the Bill of Rights would be irrational.

Update DTG:  Roxeanne had this post in draft for a day but I was unable to get ahold of her to confirm it was done, It looked good to me so I wanted to make sure her words made it up while the story is still fresh.