Do We Have a Right to Marry?

Do we have a right to marry? It depends on what we mean by marry. If we mean making a contract with another consenting adult setting up a arrangement we'd want to call marriage, then the answer is yes.

But if we mean participation in the specific government-fostered institution characterized by marriage licenses, then the answer must be no.

Here's why: if the government-fostered institution were abolished tomorrow, as libertarians favor, no one's rights or freedom would be violated. (Justice Clarence Thomas seems to recognize this in his dissenting opinion.)

We have the inherent right to make contracts but we have no right to anything provided by the state, an inherently coercive organization. That's why the best argument for legal recognition of same-sex marriage is an equal-protection argument, not a liberty argument. It's not so much that we have a right to equal protection; it's that equal protection limits the discretion of government officials -- and that tends to be a good thing. The exception to this equality-but-not-liberty principle would be in those states that both forbid same-sex marriage and refuse to recognize private marriage contracts -- which seems to be all the states affected by the Obergefell ruling. As Ilya Somin writes:

In most states that banned same-sex marriage before today, a same-sex couple could not sign an enforceable marriage contract, even if its content was limited to purely private marital obligations between the two parties.

Thus such couples were not only denied equal protection; they were also denied liberty.

TGIF: The Libertarian Case for Legalizing Same-Sex Marriage

I tried to come up with a solid libertarian argument for why the Supreme Court should not have struck down state bans on same-sex marriage (SSM). (By a 5-4 vote, the court this morning declared those bans unconstitutional.)

I couldn’t do it. 

Charleston and Gun Rights

Dylann Roof’s racially motivated murders of nine black churchgoers have brought predictable calls for new restrictions on the right to keep and bear arms.

How ironic this is we shall soon see.

TGIF: Another Silly Jab at Libertarianism

The problem with responding to Alan Wolfe’s feeble attempt to critique libertarianism is that one might appear to be defending the particular people he targets: namely, Rand Paul and Ayn Rand. (Rand Paul was not named after Ayn Rand. At least Wolfe avoided that error.) I want to defend the libertarian philosophy without defending Rand Paul or Ayn Rand because:

Drone War Delusions

We are constantly told that US drones are surgically precise. But any weapon – especially a remote-controlled one – is only as accurate as the intelligence behind it. At least 38 people died before a CIA strike finally killed this man [al-Qaeda #2, Nasir al-Wuhayshi, in Yemen]. Who were the rest? How many lives did we take in the effort to assassinate al-Wuhayshi? How many have we driven into the arms of militants with the 38 others we killed? The secret drone war conceals a mountain of hidden costs, and the idea we can bomb our way out of the problem of terrorism is short-sighted and, ultimately, false.

--Cori Crider of Reprieve, quoted in The Guardian

King John Might Envy President Obama

King John of England, who 800 years ago this week was forced at Runnymede to affix his Great Seal to Magna Carta -- which at least in theory subordinated his power to law -- might have envied President Obama.

Sure, Obama also pays lip service to idea that the executive is subject to law. But what happens when he acts like an autocrat? Nothing. King John had to contend with rebellious barons who resisted his taxes to finance losing wars and other impositions. Obama has no effective opposition to contend with. He is free to fight wars as he pleases, never worrying that he might be deprived of the revenues he needs to engage in his far-flung killing.

We like to believe we’ve come a long way in those 800 years, but in important respects we have not. We’ve regressed, not the least in the sense that people no longer show an interest in resisting tyranny even through nonviolent noncooperation.

Observe what Obama is up to in the Middle East.

Marissa Taylor and Jonathan Landay of McClatchy recently noted, “As U.S. military operations against the Islamic State approach the one-year mark, the White House has failed to give Congress and the public a comprehensive written analysis setting out the legal powers that President Barack Obama is using to put U.S. personnel in harm’s way in Iraq and Syria.”

That’s right. Obama has been at war with the Islamic State for a year, and his administration won’t even do us the courtesy of spelling out his legal authority in detail. Lately, Obama has been intensifying his intervention in the areas that were formerly part of Syria and Iraq. He’s setting up a new base in Iraq’s Anbar province, which the Islamic State largely holds, and he’s increased the number of so-called advisers and trainers. The force that we know of is up to about 3,500.

Obama has not been totally silent about his legal authority. “The only document the White House has provided to a few key lawmakers comprises four pages of what are essentially talking points, described by those who’ve read them as shallow and based on disputed assertions of presidential authority,” Taylor and Landay write (emphasis added). Note: "to a few key lawmakers" -- not to the public. I suppose the administration doesn’t want us to worry our little heads over this.

Taylor and Landay speculate that “by not setting out its legal case in public documents, Obama may be trying to preserve his flexibility to authorize new operations against the Islamic State or other extremist groups elsewhere, unfettered by constraints that could be imposed by Congress.”

Yet again, Obama sinks beneath George W. Bush. At first Obama invoked the allegedly inherent war powers of the presidency, ignoring the Constitution’s delegation of the war power to Congress. (Important figures in early American history, notably John Quincy Adams, regretted that clause.) Then Obama claimed the 2001 and 2002 resolutions authorizing military force in Afghanistan (against those who carried out the 9/11 attacks) and Iraq as authority. But this has been ably rebutted by various people, who point out that the Islamic State is an enemy of, not associated with, al-Qaeda; had nothing to do with Iraq’s Saddam Hussein; and did not even emerge until long after those resolutions were passed.

To complicate things, while Obama asked for congressional affirmation, he claimed he could legally fight his war without it. Congress’s ineptitude in getting itself together on the question, with Democrats and Republicans having different reasons for not coalescing, suits Obama just fine.

Of course, what the country needs is not a declaration of war from Congress, but a demand that Obama stop fighting wars without it. Fat chance of that happening, though. Few members of Congress want the responsibility of blocking a war.

Obama’s rationalization for autocratic military action is a license for unchecked global war. And that’s what we’ve seen throughout his tenure in the White House. His administration brags that airstrikes recently killed terrorist leaders in Libya (maybe), where Obama helped overthrow a government four years ago, and Yemen, where Obama ordered even American citizens killed.

Where are the protests? Where are the organized tax strikes? King John would be green with envy.

Sheldon Richman keeps the blog "Free Association" and is a senior fellow and chair of the trustees of the Center for a Stateless Society.

TGIF: Looking Back at Magna Carta

Monday is the 800th anniversary of the day in 1215 that rotten King John put his seal to the sheet of parchment called the Articles of the Barons -- later to be known as Magna Carta -- at Runnymede in England. It wasn’t the first charter issued by an English monarch pledging to subordinate his power to the law (custom), yet it has had a staying power like no other in the imagination of people worldwide. This is especially ironic when you consider that at John’s request, Pope Innocent III nullified the charter just 11 days later and excommunicated the rebellious barons who forced it on him. (Further ironies: the charter had been drafted by the learned archbishop of Canterbury, Stephen Langton, whom the Pope had selected over John’s objection, and the charter affirmed the autonomy of the church.)

Abolish Special Ops Forces

It’s time to disband the Navy’s SEAL Team 6 and all other secretive, unaccountable units of the U.S. imperial military. As is said about lawyers, if we didn’t have these units, we wouldn’t need them.

The New York Times reported recently:

While fighting grinding wars of attrition in Afghanistan and Iraq, Team 6 performed missions elsewhere that blurred the traditional lines between soldier and spy. The team’s sniper unit was remade to carry out clandestine intelligence operations, and the SEALs joined Central Intelligence Agency operatives in an initiative called the Omega Program, which offered greater latitude in hunting adversaries.

Team 6 has successfully carried out thousands of dangerous raids that military leaders credit with weakening militant networks, but its activities have also spurred recurring concerns about excessive killing and civilian deaths.

Afghan villagers and a British commander accused SEALs of indiscriminately killing men in one hamlet; in 2009, team members joined C.I.A. and Afghan paramilitary forces in a raid that left a group of youths dead and inflamed tensions between Afghan and NATO officials. Even an American hostage freed in a dramatic rescue has questioned why the SEALs killed all his captors.

We are expected to trust the government that those operations kill bad guys only. But why should we, when it has done so much to earn our distrust? It has long downplayed the civilian deaths inflicted by drones, bombers, and ground operations.

The Times writes,

When suspicions have been raised about misconduct, outside oversight has been limited. Joint Special Operations Command, which oversees SEAL Team 6 missions, conducted its own inquiries into more than a half-dozen episodes, but seldom referred them to Navy investigators. “JSOC investigates JSOC, and that’s part of the problem,” said one former senior military officer experienced in special operations, who like many others interviewed for this article spoke on the condition of anonymity because Team 6’s activities are classified.

Even the military’s civilian overseers do not regularly examine the unit’s operations. “This is an area where Congress notoriously doesn’t want to know too much,” said Harold Koh, the State Department’s former top legal adviser, who provided guidance to the Obama administration on clandestine war.

Here we have a super-secretive unit of killers that is protected from accountability by its own. William C. Banks, a Syracuse University expert on national-security law, told the Times, “If you’re unacknowledged on the battlefield, you’re not accountable.”

Members of Congress pretend to keep an eye on the military to prevent criminal behavior -- but in fact they are integral to the corrupt system: with eyes turned away, they keep it going with large sums of money.

“Waves of money have sluiced through SEAL Team 6 since 2001,” the Times writes, “allowing it to significantly expand its ranks — reaching roughly 300 assault troops, called operators, and 1,500 support personnel — to meet new demands.”

And this is just one unit, though it is the most glamorized, having conducted the raid that reportedly killed Osama bin Laden in Abbottabad, Pakistan, in 2011.

The Times quotes James G. Stavridis, retired admiral and former NATO Supreme Allied Commander, who said, “If you want these forces to do things that occasionally bend the rules of international law, you certainly don’t want that out in public.” By “bend the rules,” Stavridis means, in the Times’ words, “going into undeclared war zones.”

So politicians need secretive military units to fight undeclared wars -- which would seem to violate the Constitution.

The existence of secretive military units conducting private lethal operations should bother anyone who aspires to live in a free society. Their very nature offends common decency. Yet a propagandized population takes for granted that secrecy is legitimate and necessary for our safety in a terrorism-plagued world.

Beyond the obvious objections to secretive military units, there is also this: U.S. intervention in the Muslim world makes people want to kill Americans, as government officials widely acknowledge. Secretive military units allow the national-security elite to engage in actions that provoke violence against Americans confident that Team 6 and the Army’s Delta Force will neutralize any retaliatory threat.

For our own safety, we must disband these squads of killers.

Sheldon Richman keeps the blog "Free Association" and is a senior fellow and chair of the trustees of the Center for a Stateless Society.

Reason.com Subpoenaed over Anonymous Comments

The U.S. Justice Department has issued a grand jury subpoena to Reason.com in an attempt to identify anonymous commenters at the website who allegedly threatened the judge who sentenced Silk Road operator Ross Ulbricht. According to Wired:

The subpoena calls for Reason.com to hand over data about the six users, including their IP addresses, account information, phone numbers, email addresses, billing information, and devices associated with them. And it cites a section of the United States criminal code that forbids “mailing threatening communications.” When those communications threaten a federal judge, they constitute a felony punishable by as much as 10 years in prison. (The average internet user has no such protection.)

The DOJ letter that went along with the subpoena said:

The Government hereby requests that you voluntarily refrain from disclosing the existence of the subpoena to any third party.

Is that a request or a gag order?

Wired notes that the "subpoena letter [was] obtained and published by blogger Ken White."

Reason.com has no comment.

The comments at issue, which have apparently been removed, suggested that the judge, Katherine Forrest, be shot for sentencing Ulbricht, 31, to life in prison without parole for operating a black-market website at which illegal drugs allegedly were bought and sold.

Will the government get away with this?

See Ilya Somin's comment here.

The Attack on the Liberty, 48 Years Later

Monday was the 48th anniversary of the infamous Israeli attack on the USS Liberty, an intelligence-gathering ship, during Israel's 1967 war against Egypt, Jordan, and Syria. Read Phil Giraldi's excellent article about the Liberty here.

TGIF: Power Thrives in Complexity

In a democracy citizens prevent the government from abusing them by staying informed and exercising their “rights” under the system. They monitor the politicians’ and bureaucrats’ conduct, and when citizens see what they consider misbehavior, they act to stop it either by communicating to their “representatives” or by voting for better people at the next election.

That’s the theory. 

The National-Security State Lives

Sen. Rand Paul accomplished something worthwhile when, almost single-handedly, he saw to it that Section 215 of the Patriot Act expired. For that he deserves our heartfelt thanks.

But where does the expiration now leave us opponents of indiscriminate government spying on innocent people ? Not in such a great place. Shortly after 215 disappeared, the Senate passed the House’s watered-down USA Freedom Act, which perhaps puts some meaningful, though modest restrictions on the government’s access to our communications data, but about which the civil-liberties community properly has decidedly mixed feelings. With or without the so-called Freedom Act, however, the government’s ability to conduct mass surveillance, unrestrained by the “probable cause” standard in the Constitution, lives on. The NSA and kindred agencies have had many more arrows in their quiver than Section 215. An appeals court had already ruled that what the government was doing -- collecting everyone’s “metadata” -- exceeded what 215 appeared to permit. Yet the NSA proceeded anyway.

Thanks, Rand Paul

I'm pretty sure the NSA will continue to spy on us one way or another, but that should not detract from Rand Paul's unswerving efforts to block reauthorization of the section of the PATRIOT Act that the government used (illegally) to collect bulk data about our phone calls. For now, that section is expired.

Keep up the good work!