Cox Crow

The
excerpts from, and an interview with the author of, Angler: The Cheney Vice Presidency are disturbing, and reinforce what we already suspected.

In what I hope is not a quixotic exercise, the Electronic Frontier Foundation has brought suit, Jewel v. National Security Agency, et al.

The Electronic Frontier Foundation (EFF) filed a lawsuit against the National Security Agency (NSA) and other government agencies today [September 18, 2008] on behalf of AT&T customers to stop the illegal, unconstitutional, and ongoing dragnet surveillance of their communications and communications records. The five individual plaintiffs are also suing President George W. Bush, Vice President Dick Cheney, Cheney’s chief of staff David Addington, former Attorney General and White House Counsel Alberto Gonzales and other individuals who ordered or participated in the warrantless domestic surveillance.

You know how in the movies, when the cops want to bust in on the mob doing their dirty deeds, first they go wake up the judge in the middle of the night, or drag him out of his poker game or away from his mistress, and have him issue a warrant?

Oh, wait, those aren’t current movies.

In an otherwise interesting post, Jeff Jarvis writes

“It so happens that I agree with Obama on this issue (and I know my view is as unpopular as his). When government forces you do to something then that force must come with immunity. The problem is not the telcos going along but the government making the demand and there being no check on that. But that’s a different debate.”

There was no force. There was willing participation without a warrant. Contrast with Qwest, which refused. The remaining telecommunication providers went along because it was their Patriotic Duty, even though their participation was illegal without a warrant. If there was force, it was a kind peculiar to regulatory regimes: trading dirty deeds for FCC merger approval.

There was a check, even if a pathetic one of Top Secret paperwork known only by handful of amenable judges. The administration ignored it.

The revisions supplant that paperwork check with an even flimsier one, the ipse dixit clause, which lets the Executive do anything as long as the Executive says the Executive says it is ok.

That’s not a check. That’s a blank check.

I am not quite sure how this august panel of nine judges decides what constitutes a cruel and unusual punishment, unless it is by simply following the precedent rather than considering whether the punishment was properly enacted and in conformity with the severity of the crime. The majority’s opinion in Kennedy v. Louisiana relies on Coker v. Georgia, which held that sentence of death is grossly disproportionate and excessive punishment for the crime of rape, and so decides that the death penalty is also excessive here.

While the opinion protests the utter cruelty of the acts in the present case, I suspect that the Court has allowed themselves to be guided too much by care for recent precedent and not considered fully the disparity between the crime and the punishment. Justice Kennedy, writing for the majority, finds “evolving standards of decency” allow the rapist to live because few states passed legislation prescribing death for the crime of rape. As well, because of various institutional features in our system of justice, the prosecution of cases seeking the death penalty for rape might further harm the victim.

In my opinion, the Louisiana statute was not cruel enough. The simple death of modern executions is quick and relatively painless. Better would be if the criminal were hung, drawn, and quartered, with his head impaled on a stake on the city walls to warn others. J. Kennedy would disagree, When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint. And yet, the Court explicitly exempts crimes against the State:

Our concern here is limited to crimes against individual persons. We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State. As it relates to crimes against individuals, though, the death penalty should not be expanded to instances where the victim’s life was not taken.

If the State can punish crimes against itself, then why cannot a rape victim choose the punishment for her assailant?

I fear that our Law has backed itself into a corner over time. By removing all punishments other than fines or length of imprisonment, we find ourselves unable to respond proportionately to crimes. How long should we imprison a rapist? Ten years? One might as well fail to file one’s taxes.

If the State is not willing to act in retribution, then the more humane punishments of confining the criminal to the general population of a prison, while widely publishing the crimes committed, or of declaring the criminal an outlaw, should suffice. In either case, public opinion will devise its own suitable punishment.