Legal Precedent and the Subroutine

It's a long story, but part of my job is teaching law in a very low level sense (as a tutor focusing on other subjects).

Thus I have thrown myself into the Law, English and American.

I find a curious phenomenon similar to researching existing software. I was trying to understand Rasul v. Bush, a recent Supreme Court decision in which the SC asserted that yes indeed it does have jurisdiction as regards "enemy combatants" at Guantanamo.

Turns out that the government used a real turkey of a case, Eisentrager, concerning the treatment of German POWs captured in Nanking here in China, tried for war crimes in Germany, and sent to occupied Germany for punishment.

Like a bad programmer, they used the wrong tool.

Gubmint said by gum, since the SC had no jurisdiction in Eisentrager, in that the trial took place in a postwar Guomindang China, it doesn't have this in Gitmo.

Which pissed the SC off, since unlike Nanking, Gitmo is under US sovereignity. Limited to be sure, conditional to be sure: if we don't pay the laughable sum promised to Cuba in 1898 over to Beard Papa Fidel, it reverts to Cuban sovereignity, likewise were we to simply abandon Gitmo and sail home.

Nonetheless, for the SC, this was a critical difference between Rasul and Eisentrager.

Now, in software, managers tear their hair when they ax about projects to do XYZ, only to learn that the programmer is focusing on a "different" sub-problem.

"I can't give you your mailing list programme until I write a compiler to compile the user requests using Build Your Own .Net Language and Compiler".

Lawyers bug non-lawyers for the same reason because on the face of it Eisentrager was completely different. VALID precedents are also Monty Pythonesque: "and now for something completely different".

Validly, lawyers point to a 1954 decision by means of which Harry Truman could NOT, as commander in chief, force a labor union to end a strike because this shows that the executive's war powers are limited to the "theater of war".

Give 'em hell Harry would have LIKED to say that America was in a total war with the gooks and that his theater was the world, including the USA. The problem was, as Harry knew, this makes the President an el Maximo with unlimited powers.

To be such contradicts separation of powers. It sounds to certain personalities (like Monkey Boy) like a sweet deal, because these clowns don't understand that a logical system that can prove everything (win any case) is a bad, self-contradictory system. Harry accepted the 1954 decision because he wanted to be President under the American plan, in which the President doesn't have unlimited power, a power which in the hands of traditional conquerors has come to ruin and thence to dust.

In response to the 1954 decision, pro-Bush attorneys have come up with an astonishing bit of fantasy, this being that (1) the US is at war and (2) the theater is the US itself...all of it. In claiming (2), the pro-Bush shysters admit that no part of the US is occupied by the invader's boot, except perhaps for certain 7-11s with Hamas posters in Queens.

Or something.

Programming creativity is at odds with "getting it done" just as legal pettifogging can be similarly at odds: the Navy counsel that objected to Bush's overbroad interpretation of the government's right to torture suspects (or, in a polite phrasing, the parsing of torture: what constitutes torture) is NO LONGER in this man's Navy, he is working at Wal-Mart. As their counsel for international relations, to be sure.

He was viewed as a speed bump by Rumsfeld who like a visionary CIO declared a new "vision" of a new "world" in which a country can be invaded without occupation and in which, I suppose, being forced to listen to Judas Priest is not torture...even though being forced to listen to Chinese Opera, as a POW in Korea, WAS torture.

[Rumsfeld exhibited astonishing regression to near idiocy when he said that because he stands at his desk like Julius frigging Caesar, making a suspect stand is not torture: earth to Don: torture is the violation of humanity implicit in forcing somebody extralegally to do something without due process: if my girlfriend drags me to Chinese opera, it's not torture as long as she uses due process, yeah baby: in North Korea, forcing POWs to listen to Sunlight on Flower Mountain AGAINST THEIR WILL in place of Brenda Lee was torture, both in language and in law.]

The analytic, factoring programmer considers precedent as deeply as the lawyer, with the difference being that sometimes he writes the precedent himself. But as embedded within a system addicted to power and to control, he is no more master of his fate than vice-admiral Mora was and just as likely to get the boot. Of course, the programmer winds up working in the gun shop at Walmart, not corporate HQ.