Detainees, Personal Libertarianism, and Vengeance

[Tim May]

As the title says, I'll be talking about a couple of different issues. 
I've been meaning to write an essay on personal libertarianism for a 
while now, but haven't until now worked up the energy. (The fact that so 
many of the Cypherpunks list subscribers are weirdos posting crap from 
Hushmail and other throwaway accounts is also a factor. Perl before 
swine, in a sense.)

Comments below are hastily typed. Don't expect a polished essay. Those 
who get the gist will get it without the polish.

On Wednesday, October 17, 2001, at 11:26 AM, Duncan Frissell wrote:

> At 08:16 PM 10/15/01 -0700, Tim May wrote:
>> On Monday, October 15, 2001, at 07:56 PM, Anonymous wrote:
>>
>>> You all, including Mr. May, missed the subtlety of the point that
>>> due process has NOT been suspended in the case of these detainees.
>>>
>>> They HAVE representation, and I don't THINK the Bill
>>> of Rights says anywhere that you get to see Mommy
>>> if you're arrested, but that you can obtain
>>> representation, you are not required to incriminate
>>> yourself, and so forth.  In theory.
>>
>> Get a clue. The issue is not "get to see Mommy."
>>
>> Rather, the issue is the holding of 600+ various persons, some of whom 
>> are very vaguely claimed to be "material witnesses."
>
>
> Note too that many of the detained may not have lawyers.  Most of them 
> are not being held on criminal charges.  They are held as material 
> witnesses or on immigration holds.  I don't know if a material witness 
> has a right to an attorney but immigration offenses are civil not 
> criminal matters (in most cases) and thus the prisoners have to pay for 
> their own lawyers which means that those who have no money have to find 
> lawyers and convince them to work for free and to spend their own money 
> chasing their clients around the country as they are moved.

And reading about this and similar "material witness" cases, we see 
cases where a bunch of Chinese alleged boat refugees were held as 
material witnesses, but were moved on judge's orders to "relatively 
pleasant" holding areas. The judge acknowledged that the detainees were 
not to be "punished" by holding them in 19th-century dungeons. By 
contrast, the several hundred "A-Rabs" have been held now for about 3-5 
weeks in "Tombs"-like dungeon cells, with no reading material (*), no 
access to families, no phone calls allowed, and, as Duncan points out, 
moved around to other similarly crummy cells. They are also awoken every 
2 hours for a roll call, lights kept on 24/7, the usual treatment that 
is really torture.

(* Giving them a copy of the Koran is the only exception...what rocket 
scientist figured this one out?)

But I want to raise a different issue here.

I've seen several posters comment about the "5000-degree meatgrinder" 
and about how "the terrorists did not respect _our_ rights, so why 
should we respect _theirs_?"

This misses the point completely. The issue is not about some liberal 
coddling of criminals and terrorists. The issue is not even about 
_their_ rights. The issue is about _my_ rights. And about the police 
state we are now quickly expanding.

To understand this issue, it is helpful to think this way:

"How would _you_ react if _you_ were picked up by the cops, not 
presented with any charges, not allowed to call a lawyer of your 
choosing, not allowed to contact family or friends or make arrangements 
for rent payments and the like, and simply held in a maximum security 
cell for 5 weeks?"  (My view, expressed earlier, is that I would seek 
vengeance. I would seek ways to kill the guards, the judges, the cops, 
the bureaucrats, everyone involved in my "kidnapping.")

Or,

"How would _you_ react if you were taken from your land and sent to a 
concentration camp in Nevada because your grandmother was of a 
particular ethnic group? No due process, no court appearance, no 
appeal...just seizure of your property and transport to a KZ."  (I'm 
surprised the Japanese-ancestry persons, hundreds of thousands of them, 
were so meek. I'm surprised that thousands of former guards and judges 
and processing officials were not assassinated during the 1950s as 
payback. The Nuremberg case established, cough cough, that "just 
following orders" is not a defense. Every single one of the guards and 
officials at Manzanar deserved to be killed for his crimes. Even by 
killing a dozen of the guards, and judges, something would have been 
accomplished.)

Or,

"How would _you_ react if black-clad ninja raiders threw flash-bangs 
into your home in a pre-dawn raid, entered your home, and shot and 
killed anything that showed signs of movement? And only later showed you 
a search warrant?"  (Again, my view: Those who survive should kill the 
judges who ordered such a raid without a warrant being properly 
presented, and all of the cops should be killed. If it is necessary to 
kill 50 persons, so be it. Of course, doing it safely and undetectably 
is a challenge. But technology is coming to allow some semblance of this 
kind of justice.)

And so on.

For the past 35 years of my politically awake life, I have found it very 
clarifying to think of _all_ proposed or existing laws in terms of how 
it could apply to _me_. Seen this way, I have no problems supporting 
laws against murder, burglary, or other such crimes. But I look with 
deep suspicion on any laws which are designed to be "social engineering" 
or to accomplish "desirable outcomes."

P.J. O'Rourke puts it this way:  "Would you kill your grandmother over 
this law?"  Valid laws are ones you would even support the punishment of 
your own grandmother over. Most current laws are not like this, because 
most people think the laws will be applied to other people, to "hate 
speakers" and to "smokers" and to "stinking Arabs." (Read his books for 
a fuller exposition.)

Here's a very specific example: Laws requiring key escrow or backdoors. 
The "social engineer"  evaluates these laws and proposals in terms of 
benefits to society, costs of law enforcement, tradeoffs between 
individual liberties and social good, etc. But to the personal 
libertarian, like me, the evaluation is this:

"Let me get this straight. You're saying that if I keep a diary, I need 
to "escrow" a copy with the local police, with supposedly "mandated 
safeguards" so that my diary will only be looked at with "suitable court 
orders"? Well, fuck that. And fuck you, too. I'll write as I wish. You 
fucking snakes."

This "personal" view of liberties happens to be very much what the 
Founders intended. And it motivate the sub-branch of libertarianism I 
call "vengeance libertarianism."

As it applies to the current suspension of habeas corpus (effectively) 
and to the proposals (PATRIOT, USA, etc.) to suspend more civil 
liberties, the issue is NOT whether we are coddling the terrorists or 
excusing criminal behavior.

The issue is the power we are letting the thugs have.

A government which has the power to deport people (citizens, even) to 
concentration camps, to raid houses without proper presentation of 
search warrants, to order all mail searched and scanned without warrant, 
to ban writing in forms the surveillance agencies cannot read, to hold 
several hundred A-Rabs without charges and without plausible evidence 
that they know anything significant, that government is totalitarian. 
Plain and simple, it is totalitarian.

To repeat, the "personal libertarian" looks at _all_ laws in terms of 
what enforcement could mean to _him_.

And he always thinks in terms of vengeance.

--Tim May, Citizen-unit of of the once free United States
" The tree of liberty must be refreshed from time to time with the blood 
of patriots & tyrants. "--Thomas Jefferson, 1787