A letter to the Iranian leadership written by Senator Tom Cotton has offered the opportunity to revisit some of his past statements. This particular gem stands out, referenced in an Op-Ed in the Nation: Meet Tom Cotton, the Senator Behind the Republicans’ Letter to Iran
When, in 2013, a new Iran sanctions bill came before the lower chamber, Cotton introduced an amendment that would “automatically” punish family members of sanctions violators. “There would be no investigation,” Cotton explained during the mark-up. “It’d be very hard to demonstrate and investigate to conclusive proof.” Cotton wanted to punish innocent people; he called it “corruption of blood,” and extended the category to include “parents, children, aunts, uncles, nephews, nieces, grandparents, great grandparents, grandkids, great grandkids.”
There was a Huffington Post story at the time: Tom Cotton ‘Corruption Of Blood’ Bill Would Convict Family Members Of Iran Sanctions Violators
The amendment immediately sparked objections from several members of the Foreign Affairs Committee, who noted that the Fifth Amendment to the U.S. Constitution guarantees due process rights to anyone charged with a crime under American law.”An amendment is being offered literally to allow the sins of the uncles to descend on the nephews,” Rep. Alan Grayson (D-Fla.) said. “The amendment that’s being offered doesn’t even indicate a requirement of knowing violation. … I really question the constitutionality of a provision that punishes nephews for the sins of the uncles.”
Now, this should give everyone the heebie-jeebies. A duly elected member of the Congress of these United States (who went to law school) is proposing we jettison hundreds of years of legal precedent and the bill of rights, to implement collective punishment in a form we have not known since nations were run by feuding families.
What was representative Cotton talking about? And why did virtually everyone think he’d lost whatever marbles he may have had? Why does what he proposed sound so wrong?
One problem is the “automatic” punishment and “no investigation” proposals, which run rough-shod over the rights of due process, habeas corpus, etc, etc. Some would say we crossed that Rubicon with Gitmo and renditions. But that isn’t all Mr. Cotton is referring to here, he’s actually bringing up something else as old as Habeas Corpus when he talks about “corruption of blood”.
When Cotton says there would be “no investigation” and proposes punishing “parents, children, aunts….” via legislative action, he is proposing a Bill of Attainder, an instrument with a particularly bloody history in English law:
Medieval and Renaissance English kings and queens used acts of attainder to deprive nobles of their lands and often their lives. Once attainted, the descendants of the noble could no longer inherit his lands or income. Attainder essentially amounted to the legal death of the attainted’s family.
Attainder (or tainted) was reserved (mostly) for crimes of treason against the state as embodied in the monarch. It just happened to be a convenient way to get rid of enemies and their descendants. Enriching the treasury was another welcome side-effect, call it trickle up theory? The Brits haven’t passed a Bill of Attainder for over two hundred years and passed a prohibition against them a century and a half ago.
As you can imagine, this kingly privilege was not particularly popular with the nobles. In fact, it was so unpopular that some of the said nobles (or their younger, poorer relatives in the colonies) when fomenting rebellion against their monarch and forming these United States, inserted into their brand spanking new “Constitution” a provision to specifically prohibit bills of attainder by either Congress, or a state. It’s in Article I, section 9, and is a model of brevity and clarity:
No Bill of Attainder or ex post facto Law shall be passed.
Many of the founders were notoriously prickly when it came to issues of property (including the kind that could walk and talk), and confiscation of such by the state. That may have played a role in firming up their views. But they also believed in individual, personal responsibility. Or perhaps it was self-preservation. Which reminds me of something Lincoln once said that may apply:
This is a world of compensations; and he who would be no slave, must consent to have no slave. Those who deny freedom to others, deserve it not for themselves; and, under a just God, can not long retain it.
The prohibition against attainder is so firm that I wonder where Senator Cotton managed to form such positive views of attainder. And why is it that these strange claims about latent Congressional powers (to conduct foreign policy or engage in collective punishment) seem to revolve around Iran?
The US does have an ally whose nominally democratic institutions have found a way to practice collective punishment. Our freshly minted Senator Cotton seems to have swallowed whole this ally’s current PM’s view on our dealings with Iran, and memorialized them in an open letter to the Iranian government signed by most of his Republican colleagues.
Then Representative Cotton defended his proposal at the time (Arkansas Times) by saying it would apply only to non-citizens.
The Israeli government’s policy of home demolitions, land seizures and assassination of entire families are all variations on attainder: the punishment of people for the supposed crimes of their relatives. Collective guilt, collective punishment. To get there requires having photogenic demagogues repeat things like this:
Behind every terrorist stand dozens of men and women, without whom he could not engage in terrorism. They are all enemy combatants, and their blood shall be on all their heads. Now this also includes the mothers of the martyrs, who send them to hell with flowers and kisses. They should follow their sons, nothing would be more just. They should go, as should the physical homes in which they raised the snakes. Otherwise, more little snakes will be raised there.
every so often, till they begin to sound reasonable.
That is from an article in the Independent: Why I’m on the brink of burning my Israeli passport quoting an Israeli Member of the Knesset whose party was in the governing coalition. The Israeli MK in question (Ayelet Shaked of the Naftali Bennett’s Jewish Home settler party) says her words (she’s actually quoting someone else) were taken out of context and responded in the Jerusalem Post: Exposing militant leftist propaganda. The clarification though, is as bad as the original statement:
A call for the indiscriminate killing of children is a terrible thing. But what if the statement was that any time you kill our children, you’re exposing your own children to the same fate? Still unsettling, but rational when you consider that they purposely use their kids as human shields. It’s not a call for indiscriminate murder.
I believe this is the logic Netanyahu used to arrive at the conclusion that the army he commanded last year was the most moral in the world. I wonder how this logic is applied in the honorable MK’s view of the world. Should the children of someone who kills a child in a traffic accident meet the same fate? Or is it reserved solely for murder, or politically motivated murder, or terrorism, or war? I’m not sure, but it dredges up an even older legal argument over the law of “An Eye for an Eye, a Tooth for a Tooth”. Or perhaps all is fair in love and war?
But why should we look elsewhere if the fault (or mote) is in ourselves. If we are honest with ourselves, we will admit that the US prohibition on attainder did not extend to American Indians. Our history is rife with episodes where entire peoples were dispossessed of their lives and frequently massacred to avenge some act of a few (or sometimes by caprice). We engaged in every manner of collective punishment during the colonization of these lands. So maybe Representative Cotton was simply yearning for a more Jacksonian stance.
It seems to me that Senator Cotton is so enthralled by neo-con rhetoric that he is blind to the very same constitution for which he professes much love and reverence. Does that make him a “conservative” or a radical?
PS. Unlike Senator Cotton, I Am Not A Lawyer. But I do know morally repugnant ideas when I see them.