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Should trees, parks, rivers, whales, corporations have standing?

Thursday, July 14th, 2016

[ by Charles Cameron — and what about straw men & sovereign citizens? ]
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Tablet DQ Trees standing

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I have long appreciated Mr Justice Douglas‘ dissent in Sierra Club v. Morton, 405 U.S. 727 (1972), and Christopher Stone‘s comment on the same, Should Trees Have Standing? — presented along with other essays in Stone’s book of the same name [upper panel, above].

That takes care of the trees in my title. Parks and rivers are covered by the New York Times piece today, In New Zealand, Lands and Rivers Can Be People (Legally Speaking).

Whales and apes get added to our list, as you can see, in Brighter Green‘s Nature’s Rights: Rivers, Trees, Whales, and Apes — which mentions that under Ecuador’s constitution enshrining the legal rights of nature as a whole::

Ecuador stepped to the forefront of the nature’s rights movement when it became the first country to include the rights of Mother Earth (Pachamama) in its constitution, which was ratified in 2008. The document states, “Nature or Pachamama, where life is reproduced and exists, has the right to exist, persist, maintain, and regenerate its vital cycles, structure, functions, and its processes in evolution.” Nature is a “rights-bearing entity that should be treated with parity under the law.” Citizens are given the power to sue on behalf of nature, now a legal entity

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And corporations?

The irony here, of course, is that those who would like to see Nature get a word in edgewise in the courts as a legal Person, tend to be unhappy with corporations having the same rights as chimpanzees. Eric Posner in Slate, Stop Fussing Over Personhood, catches the irony nicely:

From a legal standpoint, there is nothing remarkable about a chimpanzee claiming to be a person. Indeed, there are a number of cases that have been brought by animals—including a palila, a marbled murrelet, and a spotted owl. All of these animals sought to enforce their rights under the Endangered Species Act, under a provision that gives “persons” the right to bring suit.

In none of these cases was a judge fooled into thinking that an animal possesses all the rights of human beings. The lawyers bringing them were simply ensuring that a judicial remedy was available to address the harm that Congress sought to fix. If the spotted owl had also asked for the right to vote, the request would have been denied. A judge wouldn’t give a hoot that an earlier court had deemed the owl a “person” under the Endangered Species Act. A person for one legal purpose is not necessarily a person for another.

The law also treats various nonhuman, nonsentient entities as “persons” for certain legal purposes. Corporations, estates, trusts, partnerships, and government entities are often defined this way. Walmart, Illinois, and the California Pension Fund can sue, for example, without anyone asking if they have a right to abortion.

The classic case here is the famous and infamous Citizens United v. Federal Election Commission, No. 08-205, 558 U.S. 310 (2010).

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I’d be remiss if I didn’t mention here also the curious notions of personhood invoked by members of the Sovereign Citizens movement. From JM Berger‘s recent report, Without Prejudice: What Sovereign Citizens Believe:

Fictitious Person

Because the UCC provides an interstate standard for things such as driver’s licenses, property ownership, and bank accounts, many sovereigns believe that these documents (and associated laws and financial obligations) do not apply to them, but instead to a fictitious person created by the illegitimate law, sometimes referred to as a “straw man.” Some believe a fictitious person is denoted in legal documents by listing his or her name in all capital letters. The fictitious person is a legal entity akin to a company with the same name as the citizen, sovereigns believe.

Some sovereigns create their own driver’s licenses and license plates because they believe the state-issued documents are inauthentic, as they refer to the fictitious person, and that using or signing these documents exposes them to vulnerabilities under the illegitimate and tyrannical commercial laws, including debt collection, arrest, and prosecution.

The correct use of certain phrases or legal citations can reduce or eliminate these vulnerabilities, however. For instance, some believe that documents used by the illegitimate system, such as contracts or court documents, can be signed safely if the citizen appends the phrase “Without Prejudice UCC 1-308” to the signature, which they believe preserves the sovereign citizen’s common law rights and privileges.

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Let’s return to sanity.

The final word in Sierra Club vs Morton is given to Mr Justice Douglas: in a footnote, he cites John Donne, poet — and thus according to Shelley, one of the “unacknowledged legislators of the world”:

“No man is an Iland, intire of itselfe; every man is a peece of the Continent, a part of the maine; if a Clod bee washed away by the Sea, Europe is the lesse, as well as if a Promontorie were, as well as if a Mannor of thy friends or of thine owne were; any man’s death diminishes me, because I am involved in Mankinde; And therefore never send to know for whom the bell tolls; it tolls for thee.”

Devotions XVII.

And by way of comparison, here’s a Maori expression of the same sense of extended personhood, in context from the NYT article I cited above:

A former national park has been granted personhood, and a river system is expected to receive the same soon.

The unusual designations, something like the legal status that corporations possess, came out of agreements between New Zealand’s government and Maori groups. The two sides have argued for years over guardianship of the country’s natural features.

Chris Finlayson, New Zealand’s attorney general, said the issue was resolved by taking the Maori mind-set into account. “In their worldview, ‘I am the river and the river is me,’” he said. “Their geographic region is part and parcel of who they are.”

Guest Post: Why the United States cannot put Boots on the Ground to Fight ISIS

Saturday, June 18th, 2016

[Mark Safranski / “zen“]

Today, I’m pleased to offer a guest post by LtCol. Bob Weimann, USMC (ret.) .  Weimann is the former Commanding Officer, Kilo Co., 3/1 and Weapons Company 3/1. He also served as a Marine Security Force Company commanding officer, an infantry battalion Operations Officer and the Executive Officer of 1/6 during Desert Storm. A frequent presenter at the Boyd & Beyond Conferences, Bob is on the Board of Directors of UAP (United American Patriots) and a contributing editor to www.defendourmarines.com . UAP is a non-profit charity that aids military service members to help defray expenses for an adequate and fair legal defense. See What UAP Believes here: http://www.unitedpatriots.org/ .

Why the United States Cannot Put Boots on the Ground to Fight ISIS

By Bob Weimann

The expression “boots on the ground” has an extended military-jargon history…The term is used to convey the belief that military success can only be achieved through the direct physical presence of troops in a conflict area … The term is particularly applied currently (2010) to counter-insurgency operations.[1]

The expression “boots on the ground” basically means we need to send in ground troops, grunts, warriors, dog-faces, jarheads, combatants…those shifty eyed fowl mouth two fisted go for broke Soldiers and Marines that close with and destroy the enemy by fire and maneuver in order to kill the enemy. These are the folks that must place the front site of their rifle on an enemy and pull the trigger. These are warriors brave enough to step through the doorway of an enemy occupied house, detect and disarmed an IED, engage a treacherous enemy that does not take prisoners and an enemy that does not hesitate to torturer and murder innocents. Our warriors are the sons, daughters, sisters, brothers, fathers, mothers, neighbors, and acquaintances from every community, town, city and state across this country and one of the greatest representative cross sections of patriotic American citizens in existence.

Our warriors are a different generation but they possess the same spirt America’s warriors have establish and exhibited since the Revolutionary War. For over 240 years these folks have never let us down and have volunteer for the nasty, dirty, immoral, brutalizing effects of combat. You can say we lost in Viet Nam, Somali, Iraq and Afghanistan but the scary truth is we lost those wars strategically after we won them tactically. The unfortunate reality is that the strategic always trumps the tactical. Tactical is all about the troops; strategy is all about the generals.

The other scary fact is that since 2003, we have seen an unprecedented number of courts martial that the media labels “war crimes” … more “war crime” legal cases since 2003 than in all the battle history of all the United States war’s combined. How can this be possible when we have fielded to today’s battles the best trained, best equipped, smartest warriors in this country’s history?

The issue is not the troops, the issue here is the senior military leadership, the general officers that have forgotten they are warriors and exhibit the traits and leadership characteristics of politicians. Today’s general officers understand careerism but do not understand the Laws of War that should be their stock and trade.  They hid behind lawyers and Rule of Law equivocations that cannot co-exist on a battlefield.

For this reason, we cannot put combat boots on the ground because the troops are being used as political cannon fodder. Over and over again we see American combatants thrown under the bus for the sake of justifying a policy objective of executing a bad military strategy.  Names like Lt Ilario Pantano, Sgt Larry Hutchins, SSgt Frank Wuterich, Sgt Michael Williams, Sgt Jose Nazario, 1Sgt John Hatley, Sgt Derrick Miller, Capt Roger Hill, Lt Michael Behenna, Major Fred Galvin, Major Matt Goldsteyn, PFC Corey Clayett, GySgt Timothy Hogan, SPC Franklin Dunn, SSgt Osee Fagan, SPC Michael Wagnon, and Lt Clint Lorance are the more notable cases. You can be certain that the list will continue to grow not only with the recent Afghanistan Kunduz Hospital Airstrike[2] but also any combat actions against the terrorist in Iraq and Syria.

Military campaigns are always based on a “kill or capture” strategy, however, our leadership does not believe in a kill strategy nor do they believe in a capture strategy. Our military leadership believes that our Soldiers and Marines are in combat to die for the “greater good”.[3] Instead of capture, we have a “catch and release” program that continually frees known enemy combatants and terrorist to again kill, not only our service members, but also civilians. “Catch and release” is nothing more than a treachery award program for the enemy. Our generals believe that our combatants have no right to self-defense on the battlefield.[4] The idea that our warriors are there to make the enemy die for their cause is a lost priority in our general officer’s politically correct minds.

We cannot put boots on the ground because our generals do not trust our Soldiers and Marines to show the initiative necessary for successful combat operations. The generals have forgotten how to fight and win. They have forgotten how to support our warriors by setting the correct strategic policies to allow them to fight. We no longer have combat commanders. The Washington DC political cronies continue to dedicate failed policies that undermine and kill our warriors in order to acquire political curry and favoritism.

War is not a moral exercise. There is no morality that can justify the slaughter of war. War is the ultimate competition that is won by killing the bad guys and bringing our warriors home alive. Collateral damage is an unescapable reality. Yes, collateral damage considerations are important but collateral damage must be weighed against military necessity. The Laws of War principle of military necessity allows for a rigorous war; a rigorous war is a short war; and a short war minimizes civilian casualties. Mixed into military necessity is the idea that field commanders have a responsibility to bring home alive as many of our warriors as possible. Sending them to Leavenworth is not part of the “bringing them home” equation.

 

[1] https://en.wikipedia.org/wiki/Boots_on_the_Ground

[2]https://en.wikipedia.org/wiki/Kunduz_hospital_airstrike

[3] http://www.wnd.com/2012/03/sacrifice-marines-for-the-greater-good/

[4] http://newsok.com/article/3690397

Review: The Rule of the Clan

Wednesday, April 20th, 2016

[by Mark Safranski / “zen“]

Rule of the Clan by Mark Weiner

I often review good books. Sometimes I review great ones. The Rule of the Clan: What an Ancient Form of Social Organization Reveals about the Future of Individual Freedom  by Mark S. Weiner gets the highest compliment of all: it is an academic book that is clearly and engagingly written so as to be broadly useful.

Weiner is Professor of Law and Sidney I. Reitman Scholar at Rutgers University whose research interests gravitate to societal evolution of constitutional orders and legal anthropology. Weiner has put his talents to use in examining the constitutional nature of a global phenomena that has plagued IR scholars, COIN theorists, diplomats, counterterrorism experts, unconventional warfare officers, strategists, politicians and judges. The problem they wrestle with goes by many names that capture some aspect of its nature – black globalization, failed states, rogue states, 4GW, hybrid war, non-state actors, criminal insurgency, terrorism and many other terms. What Weiner does in The Rule of the Clan is lay out a historical hypothesis of tension between the models of Societies of Contract – that is Western, liberal democratic, states based upon the rule of law – and the ancient Societies of Status based upon kinship networks from which the modern world emerged and now in places has begun to regress.

Weiner deftly weaves the practical problems of intervention in Libya or counterterrorism against al Qaida with political philosophy, intellectual and legal history, anthropology, sociology and economics. In smooth prose, Weiner illustrates the commonalities and endurance of the values of clan and kinship network lineage systems in societies as diverse as Iceland, Saudi Arabia, Kenya, India and the Scottish highlands, even as the modern state arose around them. The problem of personal security and the dynamic of the feud/vendetta as a social regulator of conduct is examined along with the political difficulties of shifting from systems of socially sanctioned collective vengeance to individual rights based justice systems. Weiner implores liberals (broadly, Westerners) not to underestimate (and ultimately undermine) the degree of delicacy and strategic patience required for non-western states transitioning between Societies of Status to Societies of Contract. The relationship between the state and individualism is complicated because it is inherently paradoxical, argues Weiner: only a state with strong, if limited, powers creates the security and legal structure for individualism and contract to flourish free of the threat of organized private violence and the tyranny of collectivistic identities.

Weiner’s argument is elegant, well supported and concise (258 pages inc. endnotes and index) and he bends over backwards in The Rule of the Clan to stress the universal nature of clannism in the evolution of human societies, however distant that memory may be for a Frenchman, American or Norwegian. If the mores of clan life are still very real and present for a Palestinian supporter (or enemy) of HAMAS in Gaza, they were once equally real to Saxons, Scots and Franks. This posture can also take the rough edges off the crueler aspects of, say, life for a widow and her children in a Pushtun village by glossing over the negative cultural behaviors that Westerners find antagonizing and so difficult to ignore on humanitarian grounds. This is not to argue that Weiner is wrong, I think he is largely correct, but this approach minimizes the friction involved in the domestic politics of foreign policy-making in Western societies which contain elite constituencies for the spread of liberal values by the force of arms.

Strongest recommendation.

Federal Court Rules In Favor Of Today’s Children

Monday, April 11th, 2016

[ by Charles Cameron — further education & elucidation in matters scientific and legal are welcome ]
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Tablet DQ generations

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Full disclosure: Forbes‘ headline in its entirety reads Federal Court Rules On Climate Change In Favor Of Today’s Children — and that’s not a bad intro to the topic of this quite exceptional ruling.

Other reading:

  • Cotchett, Pitre & McCarthy, Victory In Landmark Climate Case
  • US District Court for the District Of Oregon, Kelsey Cascade Rose Juliana, et al v USA, et al
  • Scientific American, Exxon Knew about Climate Change almost 40 years ago
  • Avian Intelligence Ops

    Thursday, February 4th, 2016

    [ by Charles Cameron — with a sideward glance at the rights of dolphins and trees ]
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    For your refreshment and edification:

    — while:

    I fully agree with Ohad Hatzofe who says in that second clip:

    Birds and other aninmals, but especially flying animals, don’t know political boundaries, and if there are fences on the ground, to them it’s not a barrier, and we’re to protect them and to treat them as such. The birds are not Israeli birds or Lebanese birds, or European birds passing over our skies; these are this earth’s birds..

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    Sigh:

    We are asked to decide whether the world’s cetaceans have standing to bring suit in their own name under the Endangered Species Act, the Marine Mammal Protection Act, the National Environmental Protection Act, and the Administrative Procedure Act. We hold that cetaceans do not have standing under these statutes.

    Judge William A. Fletcher

    It looks as though it is past time for birds, dolphins and other creatures to have international legal standing of the kind suggested by Justice Douglas in his dissenting opinion, Sierra Club v. Morton, 405 U.S. 727 (1972):

    The critical question of “standing” would be simplified and also put neatly in focus if we fashioned a federal rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded by roads and bulldozers and where injury is the subject of public outrage.

    —and further discussed by Christopher Stone in what is perhaps the only law book I have found it a pleasure to read, Should Trees Have Standing?


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