American Liberty, RIP

Yesterday, the United States' Senate voted to approve new legislation which would circumscribe the right to habeas corpus for terrorism suspects, put their cases before military tribunals rather than civilian courts, and authorize interrogation of those suspects using techniques defined by the President. Particularly chilling was that several Democractic Senators voted for this legislation.

Essentially, if you are arbitrarily detained under this legislation, you do not have the right for a civilian court to determine whether your detention is lawful. You do not have the right to trial in a civilian court - assuming you are ever charged with a crime. You may also be interrogated by people who use methods which you, I and most rational people would define as torture. The Bush Administration is already on record as saying that non-life threatening interrogation methods such as "waterboarding" would not be defined as torture. For those of you who never spent any time among the Khmer Rouge, "waterboarding" means being tied to a door and lowered into a pool of water, repeatedly, as a means of breaking down your will to resist questioning.

Particularly chilling is the idea that the Republican Senator John McCain - who was actually tortured while a prisoner of the North Vietnamese during the Vietnam War - supported this legislation. Until recently, he was a vocal opponent of the use of torture, and on the record for his inveterate hostility towards any legislation which would authorize the practice. Now, he seems to have had a change of heart. He was joined by 12 Democrats.

For the record, Ted Kennedy, Hillary Clinton and John Kerry voted against the legislation, along with 29 of their Democrat colleagues, the Senate's one independent senator, and one principled Republican, Lincoln Chaffee. These 34 senators were almost immediately condemned by the White House as de facto allies of the terrorists.

Earlier in the day, the House of Representatives approved identical legislation by 232 to 191.

By such margins, 230 years of constitutional history and 800 years of the rule of law are swept aside in the interests of political expediency and in order to win "the War on Terror". The latter is, of course, becoming the touchstone justification for almost every travesty of logic or law that the United States Government wishes to enact. Forget the fact that not one terrorist attack has taken place in the United States since September 11, 2001. Forget the fact that the CIA itself recently stated that American foreign policy in Iraq and the Middle East is contributing to the wave of anti-American fanaticism around the world. Forget the fact that the United States survived the War of 1812, the Civil War, the First World War, the Second World War, Vietnam and the Cold War without once suspending habeas corpus or officially using torture as a technique of law enforcement.

One Republican senator, Arlen Spector, who had earlier said he opposed the legislation, changed his position and voted for it anyway, explaining afterwards that "the Supreme Court will strike down the habeas corpus provision anyway."

One hopes that none of the people detained have any pressing engagements between the time of their arrest and the time the Supreme Court has a crack at the new law. One also hopes that the Supreme Court has the moral decency to follow the rule of law and strike down this legislation without hesitation or qualification.

Several months ago, I asked the question whether George Bush is the worst president the United States ever had. Without hesitation, I can now say that the answer is yes.

Where do we go from here?

Two interesting pieces of news this week. Firstly, a National Intelligence Assessment confirms that the presence of the United States in Iraq is exacerbating the terrorist threat. Secondly, the United States Coast Guard is conducting live fire exercises with machine guns on its boats in the Great Lakes.

A National Intelligence Assessment is a position paper which identifies long term trends affecting American interests worldwide or in a particular region. It is supposed to provide the United States' Government with the background to the policies it sets. For instance, an assessment that a particular region is becoming more volatile will prompt the State Department to issue travel advisories and the Department of Homeland Security to keep a watchful eye on people arriving at airports from that region.

This particular Assessment reveals a dichotomy in the United States' Government. For the first time, the intelligence services are on the record as saying that the Bush Administration's policy in Iraq is counterproductive to the Bush Administration's War on Terror. Of course, one suspects that the CIA and the other intelligence services have been saying this for years. This time, the intelligence communities are throwing down the gauntlet by going on the record.

It is interesting that, very recently, both President Bush and Vice President Cheney went on the record saying that they did not believe that the situation in Iraq was counterproductive to the War on Terror. One wonders about the prescience of the interviewers who asked just the right question. Perhaps they knew something about the NIA before it was released. Perhaps they were just very lucky.

In any event, the NIA triggers the question, where do we go from here? Is the Bush Administration going to be a lame duck for the last two years of its mandate since it is pursuing two contradictory policies which fewer and fewer people agree with? Is the Bush Administration going to pull off a coup and keep control of the House and Senate after the mid-term elections? Is there going to be a rational discourse in Congress or the American media over choosing new strategies. Or is it going to be two more years of the same nonsense?

Which brings me to the machine-guns on the Great Lakes. As I mentioned in a recent post to the Globe and Mail, there are lots of security threats one can imagine if one takes the time to consider them. There are many responsible, decent public servants in the United States who do little more than analyze terrorist risks to American interests. Many of these people have access to top level intelligence. Most do not. They are analyzing risks in an information vacuum. When one does that, one is in the uncomfortable position of being able to perceive a risk without being able to assess how realistic it may be. Add to this the fact that no one wants to be the person who had a chance to prevent the next September 11th attack. Under these circumstances, perfectly reasonable people may become a little paranoid.

Bearing in mind that the September 11th terrorists were all in the United States legally, with student visas, and (mostly) under the sponsorship of the Saudi Arabian government, and bearing in mind that there has been no terrorist attack in the United States since then, just why are Coast Guard boats running around the Great Lakes with machine guns? Military officers know that putting fully-armed aircraft, ships or other weapons in close proximity to other aircraft, ships or other weapons is inherently dangerous because the risk of accident increases exponentially. If I were an amateur boater or sailor on the Great Lakes, I would be very worried about becoming the next collateral casualty in the War on Terror.

Vic Toews, Scourge of the Criminal World

The Vic Toews brain trust was in the news again, this week. Not content with their efforts to prosecute the War on Youth with their proposals to raise the age of consent and lower the age of criminal liability, Toews' Justice Department now wishes to introduce "three strikes and you're out" sentencing for violent offenders.

You may be familiar with the concept already in its American form. After three convictions, a criminal goes to jail for life. In Toews' proposal, this would be limited to "violent offenders", whatever that means. I recently had a client prosecuted for assault for throwing the contents of a glass of Coca-Cola at her common law partner. Not the glass, just the beverage. I am not sure if this would count as one strike under Toews' new rules, but it seemed a ridiculous waste of police and judicial resources to me, but I digress.

In the United States, the prison system is full of these "three strikes" people. I believe down there, the three strikes refers mainly to drug offences. As a result of the overcroweded prisons, the parole authorities have been compelled to grant parole to convicted rapists, murderers, and paedophiles because they were eligible for parole, the three strikes people were not, and there was not enough room in the prisons for both. The Canadian prisons are not nearly so busy, but already the head of the union for Corrections Canada staff is complaining that there is no room for all these new "three strikes" offenders to serve life sentences in Canada's prison system.

Of course, all rational experience suggests that you can make sentences as harsh as you like but it will not deter criminals from committing crimes. In the United States, where there is not just a "three strikes" system but also the death penalty in many states, the crime rate as conspicuously higher than it is in Canada. For that matter, states which have no death penalty or three strikes sytem generally have a lower crime rate than states that do have a death penalty or a three strikes system or both. In short, there is no rational reason for Vic Toews to want to implement a three strikes rule in Canada.

Now I know that this sounds counterintuitive, but sentences do not deter criminals. As Dr. Johnson once pointed out, the most dangerous place for pickpockets in eighteenth century London was during the public hangings of criminals at Tyburn. There is a simple reason for this that good police officers and justice ministers appreciate: criminals are generally stupid and do not think that they will be caught. Consequently, they do not worry about the sentence they might face.

What really deters criminals is effective policing and a high conviction rate. Many Canadians do not appreciate that our police have a very high conviction rate for the charges they lay. For offences like impaired driving, it is over 90 per cent. For murder, it is even higher. I have long argued that this is the main reason why Canadians are less criminally inclined than Americans.

If Mr. Toews wants to replace an effective system with a system which does not work, that is his business as justice minister. That does not mean that I have to respect his intellect.

In the words of the Ulster Division on 1 July, 1916

Today, the Pope criticized Canadian law for permitting same sex marriages and abortions. He also criticized Roman Catholic politicians who did not follow their religious beliefs when making decisions about government policy.

At the time of writing, the "national newspaper, The Globe and Mail, had on its website 96 comments posted by readers on the subject. The overwhelming majority of these were contemptuous of the Pope's presumption in criticizing Canadian law and Canadian politicians.

This is good news. When my father was a boy, Roman Catholic kids and Protestant kids did not attend the same schools and beat each other up on the way home from them. Many of my ancestors were Orangemen, members of an organization which barely survives in Canada, thank goodness.

I would not have thought it possible for a Pope to take himself so seriously as to criticize the government of a secular country like Canada on such an issue. Forget about all of the good work that the Government of Canada has done to end child poverty, sexual and racial inequality, and to improve the lives of Canadians. Forget about the work it has done around the world in the form of foreign aid, peacekeeping, and economic development. For a religious leader to criticize Canadian law when most of the rest of the world is abandoning the rule of law is the height of hypocrisy. Would he rather that Canadians lived as ignorant, God-fearing, peasants?

I have a lot of respect for the concept of the separation of church and state. I was raised an Anglican but have become deeply agnostic. Notwithstanding this, I would be offended if the Government of Canada suppressed religion in Canadian society. However, when the Pope says things like this, you wonder if perhaps our secular society needs to start emphasizing its secularity more and tolerating religious fanaticism less.

Perhaps "freedom of religion" should mean "believe whatever you like, but leave me out of it."