Citizen Chen

I have always believed that the citizens of a free society should not be punished for acting, within reasonable bounds, to protect themselves or their property from criminals. When the police are able to deal with the robber or attacker in a timely and effective fashion, the job should indeed be left to them. When this is not the case, individuals who are able to bring the perpetrators to heel in a responsible manner should not flinch from doing so. Nor should the state penalize them for doing what needs to be done, which officers of the peace may be unable—or unwilling—to do.

As an ongoing travesty of justice in Toronto in shows, Canada’s criminal justice system would beg to differ.

It was last May that surveillance cameras at the Lucky Moose market in Toronto’s Chinatown captured a man stealing $60 worth of plants riding away with them on a bicycle. 51-year-old Anthony Bennett, a man with a petty crime rap sheet 33 years long, returned to the same store an hour later, presumably to help himself to some more merchandise. This time, however, he was confronted by the store’s owner, David Chen, and fled on foot. Mr. Chen and several store employees gave chase and caught Bennett, reportedly hog-tying him with twine and trapping him in a delivery truck until police arrived several minutes later.

What happened next boggles the mind and makes a mockery of the very concept of justice. For apprehending the thief and restraining him until the authorities showed up, Mr. Chen was charged by police with unlawful confinement, assault, concealing a weapon (he happened to be carrying a box-cutter at the time), and kidnapping. Worse still, the perpetrator, who was originally supposed to serve a 90-day jail sentence at the prosecution’s request, was able to finagle a mere 30-day bid out of negotiations with the court—in exchange for testifying against Mr. Chen.

I would love to be able to say that the Crown did the “decent” thing by dropping the kidnapping and concealed weapon charges several months later. Unfortunately, decency had little to do with it. For the most serious charge, that of kidnapping, Mr. Chen would have had to be tried before a jury, where he almost certainly would have been acquitted. At any rate, the Crown initially offered to drop the more severe charges if Mr. Chen would plead guilty to assault and unlawful confinement—an offer he promptly refused. This plea bargain suggests that Crown prosecutor Colleen Hepburn’s eventual decision to drop the aforementioned charges anyway was not made as a matter of conscience.

The legal case against Mr. Chen is that in Canada, such “citizen arrests” are lawful only when the perpetrator is in caught in the act of breaking the law. Since Chen ran Bennett down before the latter was able to filch any more goods upon his return to the market, the argument goes, what he did was illegal. Yet it appears that this is less clear than the Crown and its sympathizers would have it. According to University of Alberta criminal-law professor Sanjeev Anand, Canadian legal precedent permits such citizen arrests if there is reason to believe that the perpetrator has committed an indictable offence. The surveillance camera footage of Bennett’s initial theft gave Chen that reason.

Yet even if the Crown is right, Chen’s case raises an important normative question. Should Canada’s laws be amended, as Immigration Minister Jason Kenney recently mused, to protect this sort of citizen’s arrest from prosecution? I, for one, believe so, for I see nothing in Chen’s action that should be considered worthy of punishment under the law.

Did Chen and his employees truly “assault” Mr. Bennett in any meaningful sense of the word? I think not. They applied perfectly reasonable force in stopping him; they did not beat the stuffing out of him, as others would have done. Did they “take the law into their own hands”, as some have alleged? Hardly. They did not try to punish Bennett themselves, as real vigilantes do. They trussed him up—strictly to stop him from escaping—and turned him over to Toronto’s Finest at the first opportunity.

Some argue, as the Globe and Mail columnist Marcus Gee did last month, that Mr. Chen endangered himself in pursuing the larcenous Mr. Bennett. What if the perp had pulled a knife or a gun on him? This flimsy argument, however, is annoyingly paternalistic in its implications. If an individual is willing to risk life and limb to catch a fleeing thief, that is his business. The government should not punish him for doing so in order to shield him from the potential consequences of his own actions. Eyewitnesses who report violent crimes or rescue their victims, or who testify against criminals in court, potentially make themselves targets for the perpetrators’ reprisal as well. Are they to be prosecuted for that?

“In such an encounter, anything can happen,” wrote Mr. Gee. “That’s why we reserve the right of arrest mainly to police…Passions run high when people think they have right on their side, and things can easily get out of hand.” This, of course, overlooks the countless incidents in which things have spun far further out of control than they did in David Chen’s case, despite—and sometimes because of—police involvement. It also ignores the judiciousness Chen exercised by merely restraining Bennett until the police’s arrival. What’s more, since Bennett might have escaped had he not been caught, Mr. Chen, if anything, did the police a favor. Had he handled this situation by the book, calling 911 when he caught the thief without giving chase, Bennett could have made a clean getaway before the police arrived.

Can law-abiding citizens afford to depend so heavily on law enforcement for their safety? In a perfect world, in which cops are irreproachable angels who always arrive in time to collar the crooks, this would be the perfect approach. In the world we actually inhabit, however, that is too often not the case. To require citizens to wait for police to rescue them, even when the latter are unable to do so until it is too late, is nothing short of unjust. In some situations, that could cost a victim his or her life. This is one major reason why the law permits, for example, the use of violence in self-defense: because police are not always well positioned to take care of business. Case in point: as Chen and countless fellow shopkeepers—who have rallied to his defence—have pointed out, Toronto police generally give shoplifting cases short shrift. Store owners’ tax dollars, it would seem, are not so hard at work.

This case relates to the larger issue of whether restricting individuals’ ability to help stop crime discourages them from acting in cases where such courageous intervention could save lives. In the 1989 École Polytechnique massacre in Montreal, the men in a room commandeered by gunman Marc Lépine meekly obeyed his order to leave, allowing him to slaughter fourteen women left behind. Two summers ago, travelers in Western Canada fled a bus after one psychotic passenger savagely butchered another. (The RCMP, for their part, left the murderer alone on the bus for hours before boarding and arresting him, allowing him to decapitate and cannibalize his victim’s body.)

A little retaliation on bystanders’ part might have at least mitigated these tragedies. Consider, for instance, the shooting at Virginia’s Appalachian School of Law in 2002, when a disgruntled student shot six people, killing three, including a school dean. Two other students ran to their cars to retrieve handguns from their glove compartments and confronted and disarmed the shooter. Such bravery need not be expected of all citizens—most of us are not cut out for such impromptu combat—but it is not to be punished either. It is easy to imagine how laws that discourage that kind of intervention could infantilize and enfeeble the citizenry, enabling or exacerbating such crimes in the future.

The case of David Chen revives the age-old question of the proper relationship between the citizen and the state. Free men and women should not have to entrust any aspect of their destinies—their health, safety, prosperity etc.—to the agents of government so slavishly. In most cases, yes, the boys (and girls) in blue should be the ones to bring the bad guys to justice. Yet there are times when John Q. Citizen must do his part—beyond cooperating with investigations, serving on juries or testifying in court—to take a bite out of crime. This includes cases in which John Q.’s livelihood is violated by someone whom he can apprehend with minimal violence and without usurping the legitimate role of the police. Citizen Chen does not deserve to be put on trial. If anything, the rest of us should consider taking a page from his book.

To War or Not to War

In early September, conservative pundit George Will declared in the pages of the Washington Post that Afghanistan’s persistent downward spiral is America’s cue to exit. There soon ensued another Will column urging that US troops be withdrawn from Iraq within the next year. Bucking the trend on the Right, the National Review’s Peter Hesgeth argued that the US cannot remain locked into such nation-building endeavors forever. The conservative wall of silence, if you will, is beginning to show cracks over these latest overseas projections of American power.

The fundamental lesson to be learned from the tortured US missions in Iraq and Afghanistan is the importance of picking one’s fights wisely. There are two main criteria on which the decision to go to war should be based. First of all, is the war necessary? Second of all, is it winnable? In answering these questions, it is instructive to examine how the last counterinsurgent quagmire the US faced, the Vietnam War, became such a drawn-out and futile bloodletting. Notwithstanding the hackneyed use of that war to caution against every new American military adventure, rarely have the correct conclusions been drawn from it.

In the Korean War of the early 1950s, the coalition fighting to reverse communist North Korea’s invasion of the South was ultimately shoved back by a massive Chinese counterattack. This taught US policymakers that China was loath to tolerate any anti-Communist beachheads on its border. A decade later, North Vietnam’s location next door to China enabled Moscow and Beijing to supply the Vietnamese communists with relative impunity. Presidents Lyndon Johnson and Richard Nixon could not sever the enemy’s supply lines without risking another direct—and possibly nuclear—confrontation with China. Hence they settled for carpet-bombing North Vietnam and slaying as many Viet Cong guerrillas as they could until the South Vietnamese army could defend the country independently. Unfortunately, the South Vietnamese army proved incompetent and cowardly, and the regime for which it fought grew autocratic and corrupt. This, and the military havoc wreaked on the country, alienated South Vietnamese civilians in droves, pushing many into the arms of the Viet Cong. Moreover, the North Vietnamese possessed greater patience—and a far higher tolerance for bloodshed—than the American people had. Conclusion: the Vietnam War was unwinnable.

Furthermore, in training its sights on Southeast Asia, the United States had picked a fight with the wrong commies. North Vietnam never served as a bastion of Soviet-sponsored subversion. Like Marshal Tito’s Yugoslavia, Ho Chi Minh’s Vietnam was Marxist, but neutral between the dueling superpowers, fearing Russian and Chinese as well as American domination. In fact, after Hanoi emerged victorious in 1975, Vietnam was at war with its Communist neighbors in Cambodia and China before decade’s end. Conclusion: the Vietnam War was unnecessary.

I see the true lessons of Vietnam as follows. First, do not target enemies that pose no threat, for that leads to unnecessary war. Second, avoid fighting counterinsurgencies in locations where the military cannot choke off the rebels’ supplies at the source, for that leads to unwinnable war. The Bush Administration, in its hegemonic hubris and profound historical ignorance, learned not one of these lessons. The guerilla warfare that followed the toppling of the Taliban and Ba’athist regimes caught Uncle Sam with his striped pants down. Having never seen these insurgencies coming, the Pentagon put too few boots on the ground to grapple effectively with the rebels in either country. Hence the belated troop “surge” implemented by President Bush in Iraq in 2007, and the current surge President Obama has ordered in Afghanistan. These have to be two of the deadliest games of catch-up ever played.

Meanwhile, the Taliban have found supplies and shelter in neighboring Pakistan, while Iraq’s Shi’ite militias benefit from aid from their coreligionists in adjacent Iran. The US military cannot tackle Iran directly, and the Pakistani government has so far proven unable to suppress the Taliban sympathizers within its own borders. Once again, the US has gotten itself—and its NATO allies—into a scrap with guerrillas whose sources of supply are all but untouchable. That US forces have yet to win the hearts and minds of Afghan and Iraqi civilians only compounds these colossal blunders.

Conclusion: the wars in Afghanistan and Iraq may well prove to be unwinnable.

The news that Saddam had no weapons of mass destruction and posed no threat to anyone besides his own people grew stale years ago. At this point, it almost goes without saying that the Iraq War was unnecessary. The casus belli in Afghanistan, however, was virtually unassailable, complicating the question of that war’s necessity. Al-Qaeda had planned the greatest civilian mass slaughter in American history from its caves in Afghanistan; their ruling Taliban allies refused to turn the perpetrators over to the US to be brought to justice; therefore Al-Qaeda, Taliban and all had to go.

Yet the Taliban regime was toppled, and the country cleansed of Al-Qaeda bases, almost eight years ago. The counterinsurgency that ensued has aimed to enable the Afghan government to prevent the Taliban’s return to power on its own. It has also struggled to bequeath to Afghanistan at least the basic framework of a stable, durable democracy. On both counts, the war has thus far gone atrociously. On at least the latter of those two counts, the same can be said for Iraq. Both countries’ new constitutions establish Islam as the state religion and enshrine Islamic sharia in the laws of the land. Have we forgotten the Afghan who was prosecuted for the crime of converting from Islam to Christianity some years ago, and had to leave the country? Has the law recently passed by the government in Kabul making it legal for husbands to rape their wives already slipped our minds? Whatever these laws are, they are not democratic. Clearly, the backward cultures that make such injustices possible are inhospitable to democracy.

Conclusion: the initial military campaign in Afghanistan was necessary; the sanguinary nation-building, democratizing effort that followed it may not be.

So why the reluctance to “bug out” of both conflicts? Once again, a comparison with the ignominious US retreat from Vietnam in 1975 comes in handy. The US withdrawal was indeed followed by a bloodbath; thousands of Vietnamese refugees fled the country’s Communist crackdown in the late 1970s. The disco era also saw Marxist forces gain strength throughout what was then still known as the “Third World”. From Nicaragua to Grenada to Angola to Afghanistan itself, it seemed that America’s defeat in Vietnam had emboldened its enemies to seek ever greater advantage. Nor was it only the Soviets and their clients who concluded that the US was in fact a “paper tiger”. Iran went Islamist in 1979, and has been a persistent thorn in America’s Middle Eastern flank ever since. Shortly before Syria invaded Lebanon in 1976, President Hafez Al-Assad is said to have sneered to Henry Kissinger: “You’ve betrayed Vietnam. Someday you’re going to sell out Taiwan. And we’re going to be around when you get tired of Israel.”

When the US beats a hasty retreat from a conflict to which it has committed immense amounts of blood and treasure, anti-American forces worldwide take note—and take advantage. Osama bin Laden took inspiration from the US pullout from Somalia in 1993, concluding that the Great Satan lacked the belly to quell a protracted insurrection. Thus American war hawks’ insistence on “staying the course” should not be dismissed out of hand. Islamist forces, whether Sunnis sympathetic to al-Qaeda or Shiites allied with Iran, will not be kind to any country the US leaves in the lurch.

President Bush, then, painted the US into a corner by invading Iraq unnecessarily and arguably overstaying America’s welcome in Afghanistan. In so doing, he has left his successor quite the dilemma. President Obama can either soldier on and risk wasting more American lives and dollars to no avail, or begin pulling the troops out and risk allowing both war-torn countries to collapse into even greater mayhem—and strengthening America’s mortal enemies into the bargain. Either outcome would cost the United States, and those who depend on it for their survival, dearly. If the US is to continue to lead the free world, its leaders must learn to avoid plunging into these dead-end conflicts in the first place. Being—and remaining—the world’s greatest power means knowing when to stay off the warpath. An ounce of prevention is worth a pound of cure.