This was sent to us for posting by Judge Jim Gray. This article was posted to the Los Angeles Daily Journal
Friday, January 2, 2015
By James P Gray
Repeal laws that violate our constitutional, human rights
Millions of people all around the world still love America – and Americans.
They may not always be wild about some of the actions our government takes,
but many of us here are not either. But what is it that makes our country so
special – even exceptional? The soul of our great country is our liberty and
our freedoms. And today our very soul is under attack by our own government.
As legal professionals, we cannot allow this to continue.
The temptation to deprive people of their liberties in the name of their own
security goes back throughout history to Ancient Greece and before. The
Founding Fathers of our country (and Mothers, because women like Abigail
Adams must be included) were keenly aware of this tradeoff. This caused them
to try to combat it by drafting our Constitution and Bill of Rights, so our
country would be a bastion of individual freedom from government
encroachment. Tragically those protections have been eroded substantially
since that time – mostly by keeping our country in a constant state of war.
James Madison’s warned us that “No nation can preserve its freedom in the
midst of continual warfare … If tyranny and oppression come to this land,
it will be in the guise of fighting a foreign power.” We should keep his
warnings forefront in our minds, because that is what we are now facing.
The justifications for the main present attacks upon our liberty by our
government come from several statutes passed by Congress in the name of
keeping us safe, with the largest impetus being from the so-called War on
Terror. In its name Congress passed the National Defense Authorization Act,
which allows our government to detain (i.e., arrest) any of us, citizens or
not, and hold us indefinitely without charges or a trial, merely by the
executive department labeling us as suspected terrorists. This statute has
turned our traditional concept of due process on its head.
The same rationale was also used for Congress to pass the so-called PATRIOT
Act, which has been used to justify government snooping upon our private
telephone calls, email messages, and bank records. That same legislation was
also used to justify the torture (often labeled as “enhanced interrogation”)
of people in our custody. And yes, that includes waterboarding. Did you ever
think that our country would even debate whether we should waterboard
someone in our custody? Acts like these were seen by George Washington as
such a blight upon the honor of our country that he threatened death during
the Revolutionary War to any of our troops who mistreated British prisoners
of war.
When it comes down to it, there probably is no power more complete than the
ability to torture captive human beings, or more despicable. So these laws
must be repealed. Why? Because we are better than this. Sen. John McCain,
who was tortured continually while being held captive in North Vietnam, put
it best when he said torture “compromises that which most distinguishes us
from our enemies.” And our country officially recognized this reality in the
1980s when we joined most of the civilized world in signing a treaty
committing us to refrain from torture under any circumstances, and to
prosecute any of us that did so.
An additional reason to repeal these laws is practical. The goal of most
terrorist organizations is to show the world that, contrary to its
preaching, the government of the United States of America is no better than
any other. So every time our government acts to violate anyone’s human or
constitutional rights, it is helping the terrorists to achieve their goal.
The same analysis and reality should keep our government from killing people
with missiles launched from drones. This is not only a violation of our
principles, but, at least in countries like Pakistan and the Sudan where we
don’t even claim we are at war, is probably also a violation of
international law. And besides, just like with torture, it probably doesn’t
work. Put yourself in the place of a son or brother of someone killed by one
of our drones, you would probably vow revenge. We are almost surely
recruiting more terrorists than we are killing.
Without a doubt radical groups in the world today are doing monstrous things
to innocent people, like shooting students in their schools, bombing devout
people while in prayer, and kidnapping and executing women and children. But
the scenario that there is a “ticking time bomb” about to explode, and the
only way to keep innocent people from being killed is to torture the
information out of a terrorist, basically only happens in Hollywood.
Furthermore, as if we needed any other reason but the moral one, tortured
information is typically unreliable.
There is also another important reason for repeal: Requiring government
agents to procure a judicial warrant based upon probable cause will not
compromise our security. Federal judges are fully as concerned about
terrorist threats as the rest of us are, and they will surely sign arrest
and search warrants as the circumstances and the law allow to enable
government agents to keep us safe. But enforcing the constitutional
requirement of procuring those warrants will seriously reduce the risks of
abuses in the process itself.
Finally, when it comes down to it, we, as adults, must be realistic enough
to realize there is only so much that our government can do to keep us safe
from wanton acts of terrorism. Yes, we can concentrate our security forces
on airline terminals, but what about train stations or bus terminals? Or
bridges or tunnels on our nation’s highways? Movie theaters, sports stadiums
or crowded beaches? We should take a lesson from the people of London during
World War II’s Battle of Britain when hell was literally reigning down from
the skies during the frequent German Luftwaffe bomber attacks. When the air
raid sirens went off, people did what was necessary to protect themselves by
going down into bomb shelters. But after the all-clear was sounded, they
went back to their regular lives without living in fear. We should do the
same.
So let us all stand up and work actively to repeal all of our country’s laws
that allow human and constitutional rights to be violated. It is the right
thing to do for simple justice. More importantly, our country’s soul is at
stake.
James P. Gray is a retired judge of the Orange County Superior Court, the
author of “A Voter’s Handbook: Effective Solutions to America’s Problems”
(The Forum Press, 2010), and was the 2012 Libertarian candidate for vice
president, along with Gov. Gary Johnson as the candidate for president.
I looked it up. It was missing my picture….
I’ll look it up too. I love to carry a new word around until I find some opportunity to “dazzle” people with it! đ
I’ll need to look it up too then…
JK – Ah, I misunderstood what you were saying. Yeah, I agree that some element of sacrifice, or at least risk, is normally necessary to qualify as heroic. The only person I can think of who might disagree would be Lew Rockwell, who loves the word “heroic” and seems to apply it to basically anyone he likes. đ
Oh, and as a side note, I had never seen the word “supererogatory” before, but after looking it up, I find it quite useful and will probably use it pretty often, so thanks for introducing me to it.
Not to the patient? I don’t understand the distinction you draw here.
Langa – the righteousness of the cause matters, but doesn’t, so far as I can tell, qualify in standard everyday language as heroic, even if it’s supererogatory. Consider two firefighters, both of whom save a person from a burning building. One does it in a circumstance where the victim would die if not saved, but where the firefighter is in little danger. Another does it in a basement nearing collapse. Is the second more heroic, and if so, why?
If Snowden knew he’d never face any consequences, his actions would be righteous, and commendable, but it would be unusual, I think, to say they were heroic.
I did speak unclearly before though – the danger seems necessary for heroism, but of course is not sufficient.
Exactly.
@AndyCraig: People used to take my sarcasm literally. Libertarians, in particular, then to be sarcasm-challenged. That is why I try never to be sarcastic online without a disclosure = ****Warning: Sarcasm Below****. It is unusual for me to be accused of sarcasm when there was really none there. Lawyers and physicians are different. A lawyer has a fiduciary responsibility to his or her client. A physician has a primary responsibility to his or her profession. This is not to say that one is better or worse, that is just the way it is. I think most of the problems in this world are not due to “bad guys” but to bad systems of education, motivation, and reward. Listen to what people say are their ideals and ethics, but also look carefully at where they get their money and their power. Often the latter is better at predicting and understanding what they do.
…what becomes of civil disobedience in the absence of the threat of punishment?
It becomes unnecessary.
Arenât [Snowden’s] actions heroic precisely because he faces punishment for them (and the fact that theyâre good?)
No. Martyrdom is not inherently commendable. It’s the righteousness of the cause that matters.
AC – great points. Adversarial justice, in my opinion, is key to a strong system of protection of the accused (if we are to have government) and I believe that one of the major issues we face today is the loss of that adversarial system and its replacement by a scenario in which 98% of cases get pled out.
On the article – I’ve been critical of the Judge before, but I’m very happy to acknowledge when he writes something I agree with (largely.) I’m not a fan of Constitutional rights, but the 9th amendment seems to make just about all rights Constitutional in a sense.
I obviously disagree strongly with the Judge on Snowden, but one point worth raising is: what becomes of civil disobedience in the absence of the threat of punishment? Aren’t his actions heroic precisely because he faces punishment for them (and the fact that they’re good?)
Consider:
âAn individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for the lawâ
– MLK Jr.
In other Judge Gray news, I may have forgotten to mention here that the DLC conference Judge Gray planned to speak at Jan 3, which at one time was going to include Sen. Webb before he cancelled, ended up being cancelled by the DLC. He hopes to be at future events the group will have. It probably doesn’t merit a separate article, unless someone thinks it does.
Perry> “Iâm guessing you would also claim itâs ânaive in the extremeâ to call for the immediate repeal of all drug laws, the enforcement of which contributes greatly to the United States having the highest percentage of prisoners in the world.”
Non sequitur! The first follows from the premise that those who owned slaves were dejure law abiding citizens and, in many cases, were pillars of the community and the legislation in THIS case is making criminals were there weren’t before.
On the other hand those that are currently considered criminals for dealing and/or using drugs
benefit from the decriminalization of selling, buying or using drugs and can become responsible
citizens.
These are examples of the opposite sides of the coin.
In the case of the drug users and dealers, they still have the option of getting a job or starting another business.
Such options were NOT available for emancipated slaves.
Don’t you think that there were better options than 90 years of Jim Crow?
Good points, Andy Craig!
“Lawyers act in the best interest of their clients.” isn’t some sick twisted undermining of America. That’s exactly how that’s supposed to work. Yes, it’s part of a lawyer’s code of ethics, their “code of honor” as you sarcastically-but-accurately call it. Just like the same principle (adapted to the different circumstance) is part of your medical code of ethics as a physician.
Remember, Shakespeare’s famous “First thing we do, let’s kill all the lawyers.” line was uttered by a *bad guy* plotting to make himself a *tyrant*. Lawyers are not the problem. Many, maybe most, of the greatest victories for individual liberty in the past centuries wouldn’t have been won without them.
Bad laws are the problem. The overlap between the two is not nearly so great as some people think. Blaming the problem on “legal professionals” writ large is missing the point and unfairly maligning work that we desperately need *more* of, not less of (remember the legal profession is a state-run cartel not much different from taxis or, to pick a more obvious analogy, medical professionals, that has the effect or deliberately reducing supply and increasing cost, putting legal services out of reach for those who often need them the most). Legal professionals, legal academia, and the current body of legal thought and debate on the whole also have a bigger percentage of libertarians among them than perhaps any other profession except economists. Libertarians can, and have, won in the courts far more often than we’ve won in the legislature.
“Legal professionals are the main ones who got us in to this mess, and legal professionals should stand up and take responsibility. ”
This is true.
“As American citizens, WE cannot allow this to continue. Legal professionals (with a very few honorable and heroic exceptions) will do whatever they get paid to do in the best interests of their clients. That is their code of honor.”
Also true – and again, not something Judge Gray has disputed here. All he said was exactly what you said in the first section of your reply quoted above.
Stand alone criticism.
“As legal professionals, we cannot allow this to continue.”
Legal professionals are the main ones who got us in to this mess, and legal professionals should stand up and take responsibility. Legal professionals will not change their ways. As American citizens, WE cannot allow this to continue. Legal professionals (with a very few honorable and heroic exceptions) will do whatever they get paid to do in the best interests of their clients. That is their code of honor.
We have to have different approaches for different audiences. Judge Gray is good at reaching people coming from where he came from, even if it sometimes galls those of us who are more extreme in the libertarian direction….on balance, he is doing a lot more to shift them in our direction than anything else.
I like the article, I also like the fact that he seems to be talking to other people in the justice department. Repealing laws must be a completely shocking idea to many of them.
I can certainly understand why many people here aren’t fans of some of Judge Gray’s past articles, but the criticism of this one offered here so far seems to rest on an “only” (when it comes to) constitutional rights that is not actually there, plus on other columns he wrote. Can anyone here criticize this particular column, standing on its own without the context of the author’s other articles, and without reading things into it?
@Dave “Whereas slavery was in existence LONG before the Constitution” Nowhere did I claim that the Constitution created the institution of slavery
“AND a considerable amount of personal wealth was vested in human property” I didn’t claim otherwise
“itâs naive in the extreme to imagine, much less advocate the immediate emancipation of slaves”
I’m guessing you would also claim it’s “naive in the extreme” to call for the immediate repeal of all drug laws, the enforcement of which contributes greatly to the United States having the highest percentage of prisoners in the world.
Expanding the number of people who understand, care about, and get active on making government at least follow its own constitution and its own laws by no means should stand in the way of those of us who want to go further and challenge the premeses of territorial monopoly government. Quite the opposite: the more we expand the number of constitutionalist/libertarian activists, the more we expand a highly targeted group to make anarchist arguments to.
Similarly, on a multi-lane superhighway, while there are a small number of people who will cross multiple lanes all at once in traffic, most people will switch multiple lanes one at a time until they get from one side of the road to the other. More people in a lane closest to ours is a good thing if we are trying to get them to come over our way. Someone trying to get more people from lanes that are farther away from us into that lane is a good thing for us, not a bad thing.
I love the United States of America. Our constitutional republic form of government is a great advance for the organization of the human community and remains a great blessing for humanity. At the same time, when I think hard about which Federal laws violate our constitutional and human rights and should be repealed – my conclusion is that it is pretty much all of them.
“Is he trying to say that only those rights that are mentioned in the constitution are worth protecting?”
Where did you get the “only” part from? I am not seeing that in the article at all.
@ Darryl Perry, nothing happens in a vacuum! Whereas slavery was in existence LONG before the Constitution AND a considerable amount of personal wealth was vested in human property;
it’s naive in the extreme to imagine, much less advocate the immediate emancipation of slaves
The idea even precludes the possibility of a “United” States of America. Our founders were wise, brave and dedicated; NOT omnipotent!
Great article by Judge Gray. I haven’t always been as happy with some of his articles but I love this one.
@Dave Terry, at one time the Constitution allowed one person to own another person. That’s certainly a violation of human rights.
The President claims the right to indefinitely detain people without charge, and to kill people who have not been found guilty of any crime with drones. Congress claims the authority to use eminent domain (i.e. depriving someone of their property).
Those are three that jump out at me.
As to the ‘prosecution” of Snowden, THAT would be political suicide for the fascists in the federal government; As Abe Lincoln said, “”The best way to get a bad law repealed is to enforce it strictly”. So, the ‘powers that be’ will NOT prosecute him while continuing to “persecute” him.
Mr. Perry, PLEASE enumerate which laws that violate human rights are, (in fact) endorsed by the Constitution? You are becoming the resident expert on “picking nits”!
I’m curious about his use of the term “constitutional, human rights”. Is he trying to say that only those rights that are mentioned in the constitution are worth protecting?
The 9th Amendment says “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
So which is it, Jim, should laws that violate human rights be allowed if the constitution says they can be? Or should human rights be protected regardless of the wording of the constitution?
So the guy who praises TR, calls the police noble servants, and believes John Snowden should be prosecuted is now telling us that we have to repeal laws that violate our constitutional, human rights. Call me crazy, but Jim Gray should just stay out of the public eye for a good long while, like until 2017. Publishing this kind of stuff doesn’t excuse any of the more controversial things he’s said, and actually begs the question of why he didn’t say anything like this in 2012. Anybody but Jim Gray (and Johnson) in 2016.