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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Thursday, November 30, 2006

Supreme Court Dispatch: MA v. EPA

And Also: The Webb incident underlines the guy is an asshole, even when dealing with family members of people current "in country." It simply amazes me sometimes (then I remember how we can lie to ourselves or compartmentalize rather well) how various sorts continue to in effect wonder why people simply dislike the man. In fact, they get attitudes like such people really can't be trusted since they infantilely "hate" Bush. Such self-delusion, or even the ability to fake it, is almost an admirable skill. But, yeah, it also pisses me off.

I discuss my view of the recent orals on the global warning case here. An overall point that some seemed to miss is that the case is about alleged abuse of discretion -- not just trying to get the courts involved in a policy dispute -- saying that assumes the case, in effect. Putting aside standing (as noted by Judge Tatel below, the presence of a state as litigant helps here), which might make the matter moot, my knee-jerk feeling is that the state environmental litigants have a stiff hill to climb, but that it is not some slam-dunk matter. Overall, the matter is important, but should not cloud the law at stake. A rather trivial agency matter could legally fall the same way.

[From the oral argument transcript: "We are not asking the Court to pass judgment on the science of climate change or to order EPA to set emission standards. We simply want EPA to visit the rulemaking petition based upon permissible considerations."]

Having watched the main C-SPAN discussion (not the Q&A) in full, I would just add that such remarks as addressed here seem particularly off-putting. The panel was made up of experts, but did not address the cost/benefit analysis in such a way either. Reading the controlling appellate decision also appears telling in this area. Thus, the now standard "let's bash Dahlia Lithwick as an idiot" meme is overblown, though her flippant tone at times arguably invites such scorn. And, I again think some people expect too much from short generalist non-expert pieces of this sort. [The person replied, admitting a little too much pique, and overall added an interesting perspective to the debate.]

The fray debate includes people dubious about the very problem of global warning. I have read up on the topic somewhat, you know not just watching Gore's movie, and this seems rather dubious. A stronger case can be made on debating how to deal with the problem. But, questioning the issue ... even suggesting "warming" is a good thing, when it often surely is not (common sense examples can be supplied), is unfortunate at best. Finally, some question if carbon dioxide (the petitioners also referenced methane, nitrous oxide, and hydrofluorocarbons, but focused on carbon dioxide) fits the statutory definition. Per Judge Tatel's dissent (one judge focused on uncertainty, the other standing):
The term 'air pollutant' means any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive . . . substance or matter which is emitted into or otherwise enters the ambient air.

Now, maybe, the matter in context is somewhat different, though during the panel discussion someone without rebuttal noted that the argument seemed not to be taken very seriously even by the government. But, this seems rather clear. Is the idea that a "pollutant" can't be something that is in some forms benign? Few things are totally malign. I don't think this argument holds water, but it will take more research than I really care to partake to prove the point. Still, reading the transcript, including attempts to focus on "ambient air," doesn't convince either.

Anyway, Stevens had an interesting comment as too uncertainty: "I find it interesting that the scientists whose worked on that report said there were a good many omissions that would have indicated that there wasn't nearly the uncertainty that the agency described." In a follow-up, he basically suggested the scientists thought there was cherry-picking of the material to cloud the issue. But, hard to prove that in court, especially one that doesn't want to hear.

Again, seems like something best clarified by Congress, who might now be more open to doing so -- the firming of the evidence in the last few years only helped matters.

Wednesday, November 29, 2006

The Inn of the Sixth Happiness etc.

And Also: Nice lede -- "A computer in antiquity would seem to be an anachronism, like Athena ordering takeout on her cellphone. But a century ago, pieces of a strange mechanism with bronze gears and dials were recovered from an ancient shipwreck off the coast of Greece." Interesting article too.

The latest check at the library brought a book about stem cells (Stem Cell Now, which looks to be a fairly good little volume on the subject), a little booklet entitled Poems & Tales Of Edgar Allan Poe At Fordham, and a DVD -- The Inn of the Sixth Happiness ("the sixth happiness" coming from within, one's own path).

The booklet arises from the fact that Poe moved up to a cottage in Fordham (Bronx, NY, which I recall visiting during some school trip) in a (failed) attempt to help out the health of his beloved ill wife. Back in the 1840s, Fordham was still a small community, though a new college (now named Fordham University) and train stop (which I periodically use) made the area more populated. Poe wrote some familiar poems and tales during his few years there, including "Annabel Lee" and "The Cast of Amontillado." The booklet re-prints the poems and "Landor's Cottage," which was basically a take-off of his cottage. The first poem ("Deep in Earth") was really but a verse perhaps meant for a larger work. Still, it is quite touching, fitting for recent events: "Deep in earth my love is lying / And I must weep alone."

As to the movie, I picked it up for the commentary, since I have watched it twice before. It is an Ingrid Bergman affair (with Curt Jurgens and Robert Donat, his last film -- his last line "We shall not see each other again, I think." Donat, "Mr. Chips," died before the movie was released), in effect a theatrical gloss on a true story. It involves a poor English maid c. 1930 suddenly having a calling to go to China for missionary work, though she had no skill in that department, including knowledge of the language or land. In fact, she was around thirty, so even somewhat old for the work. But, she does go, and becomes a beloved figure for her clear love for the people. And, the finale involves her leading children over the mountains during the war with Japan (which started a few years before Europe's WWII).

The commentary helps us understand the changes in the story as well as its overall charms. There in fact were three narrators -- one for Bergman, one for the missionary, and one for the movie studio. This provides a well rounded approach, though at times a bit confused and not fully matching what went on in the movie at the time -- most commentaries basically are a running discussion of the ongoing events, so this was somewhat different. Still, fairly interesting. One rather surprising fact is the locale of the shooting -- Wales was basicially the stand-in for China, and not a bad one to this causal viewer. And, the movie was made rather quickly, especially given the conditions far away from the usual studios.

Also, not surprisingly, the real historical figures were rather different than the movie version, including the lead ... a more brim and hellfire sort, who in fact was no fan of the film (she did tell her story to a journalist, but how dare they have an adulteress play her! and have her kiss someone!). The movie is enjoyable, but it clearly is a sanitized version of events, having various Hollywood-like (though a British production) qualities, including a pleasant older woman (in real life, a mentally troubled brusque sort) teaching her the ropes. This includes the very nature of her calling -- in real life, Gladys Aylward was a true believer, the sort one sometimes hears voicing their creeds in subways (and she did so too, on street corners). This not putting her passion for the people she served (along with her God) in question.

Given her hardships -- including during the war which the film only briefly touches upon -- such surety is necessary. It does put into perspective, though a few movies tried to be a bit more edgy in this respect (from what I saw of it, Barabbas arguably is one such film), the true nature of some of the characters found in various religious pictures. This is suggested by a comment made by Stephen Carter in his book The Culture of Disbelief. The book is upset by the disrespect given to religion, which it feels is treated in a patronizing manner. An example given is the character of Maria in The Sound of Music, another soft-edged version of real life. In life, Maria clearly put her life in God's hands, an act of faith that many would demean. The cute song that represents this act perhaps does not send the same message.

But, what is faith really? Many a secular liberal sort would honor those who have faith in a movement, even though there is little chance of success, and much hardship. Perhaps, the true hard edge of such realities mandates that popular films must soften the edges -- would the viewing audience really want to address the true dark edge to what they are watching? It would be like watching a sob story that overwhelms us with the visceral bodily viscera that often is involved in such cases, in all its disgusting glory. Ah, rather not see all of that, thank you. So, we have Ingrid Bergman. Still, not a bad job, even if the poverty, hardship, and the lot is just not clearly seen.

Heck, Monty Python's The Meaning of Life would tell you all of that is quite prevalent in Wales too.

Tuesday, November 28, 2006

Et tu, House?

And Also: A creative, if somewhat troubling, little parable (fable?) caused the author (a judge) a bit of difficulty. A good piece on the anti-birth control national birth control representative, including the dangers of such people moving the goalposts of the conversation (given a fancy name). My latest, per a Dahlia Lithwick piece, on releasing audio of Supreme Court arguments.

[Update: To underline something, one reason I don't like the story line here is that I find it poorly written -- simplistic with no real nuances. Not totally so, sure -- one good scene involved Dr. Cuddy breakening down, noting how House usually censors himself, but here went of his way to hurt her. But, overall, the story here is badly drawn. And, again, it annoys.]

Sometimes I sort of go off the deep on respecting "little" things. This is best seen during sports contests -- we all need our emotional releases -- but sometimes other things do it as well. For instance, some opinion piece that seems to me asinine, or some fictional plot matter. This last category got me in the "screaming at the television" mode tonight. It involved the "sweeps month" story arc involving a police officer who Dr. House treated with his usual poor bedside manner. The officer called him on it, in effect calling him a bully etc. while questioning his medical judgment (the ultimate sin), and House left a thermometer in his butt. Yeah ... he sometimes is about that infantile.

Well, he targeted the wrong guy -- not paying attention to the chart, House didn't realize the guy is a cop. He refuses to apologize regardless, so the police officer takes it to the next level. Stops him via a traffic stop, searches him and finds the pain drug House is addicted to, and guesses that he broke the rules at some point in getting them. House unwisely challenges on his ability to find such proof, only driving the officer on, and some is found. The officer now feeling justified -- the theme set in that he too is quite sure of his abilities and willing to quite arguably stretch the rules (that stop had a pretextual feel to it) to get his sense of "justice" (he even later says the Houseism that "everyone lies") -- goes into high dungeon mode.

House's one friend (Dr. Wilson) is targeted, especially since he not quite the innocent enabler. His assets frozen, his prescription writing privileges put and hold, and finally he decides that he has to step down from his practice (cancer). House continues to act like an ass, not seeming to care about the depths his friend has fallen -- the last episode had a particularly depressing symbol of that as he waits for a bus (his car seized) while House drives by. Likewise, House's team is targeted, each one's vulnerabilities raised, one told that if he testifies, his criminal brother would get out of jail momentarily. The officer comes off as a self-righteous asshole. The idea that House is an addict is not news, obviously, but helps to give the show its edge. And, most likely, represents reality to some degree.

To the degree this can serve as plot bait, fine, but perhaps with a person who isn't -- in a fashion -- as much of a power hungry "I'm right, so whatever I do is fine" asshole as House. It simply is not enjoyable to watch. Anyway, his usual supply shut off, House is left with asking for prescriptions from his team (no dice) and the chief administer of the hospital (who does so, since the alternative would look suspicious, but rations the dosage). This led to some signs of withdrawal today, which might very well had affected his clinical judgment. Who was affected? Yes, a cute little girl, who he (wrongly) thought required amputation of her limbs. I simply don't like use of cute little children as plot devices. I surely don't like it when it promotes an annoying plot.

What really pissed me off, probably a bit irrationally, was that no one basically called the officer a self-righteous prick, even as he continually acted like one. A good time would have been when he was preaching his gospel to the chief administrator (Cuddy), who came off as a wimp girl. To underline that he was acting just like House -- one even gave a somewhat knowing look when he used the "everyone lies" line. The show was already getting darker of late -- even Dr. Cameron looked like she had continual late nights at the office -- so if they wanted to take things to the next level of "personal interactions suck," I do wish they did a better job than this.

And, by the way, the officer was really in effect, a dangerous prick. See, when someone has a problem, it often is dangerous to cut it off without proper procedures. Thus, someone who starves herself cannot simply be given large amounts of food all at once -- it is liable to be dangerous. What the moron did in effect was to put him in unregulated withdrawal, while he was still doing a dangerous job. This when he -- self-righteously -- "knew" that his fellow doctors could not neutrally handle the situation. And, a cute little girl's life was put at risk in the process.

A doctor sorta knows these things. The episode ended with Dr. Chase pissed that House punched him when his diagnosis was (rightly ... and House knew it) challenged. Wilson apparently figured he was ready to talk, like the Boy Scout he is didn't want him to shoulder the burden, and went to the officer ready to talk. I know this extended discussion is mostly a personal screed, but so be it. It is a good show, so a bad story line that might have serious aftershocks is worthy of some comment. Facing up to his addiction in some serious fashion is fine. Not this way. Sorry, doesn't wash. I simply don't see how assholes, cheap use of a child, making us challenge a key point of the series that gives it an edge without truly good returns, and so forth is a good thing.

Apparently, they want me to recognize that series television is totally gone for me. Not quite there, but with the downfall of Gilmore Girls, this is drawing me nearer. But, hey, I have watched it all my life. I will return. So there! I need to think seriously about not watching the show until this whole subplot has played out though -- stress simply is not something that you should get when watching the show. Leave that for Giants games.


* Oh, and 9PM EST was the show's original time. It was temporarily shifted an hour earlier at the beginning of the season, but was shifted back after baseball. But, we keep on hearing during football games how it is a "new" time.

Wedding Day

And Also: One of the many plays that led to the Giants' ridiculous loss last Sunday was a result of a rookie player being too conscious of a possible roughing the passer penalty (a questionable call [I hate game deciding bad calls] on 4th Down helping the other team earlier). He started to tackle with his head down, and since it was a clear passing situation, he thought the QB had already threw the ball. A bad rookie mistake, but more forgivable than some of those made by others, including the head coach. Not rookies, either. BTW, there was a sprinkling of snow in the field during yesterday's Packers/Seattle game. It was in the 60s here. Ah, typical late November weather.

Over thirty years ago, someone was going on a city bus, and slipped on ice. This led to a broken ankle that was badly set and never properly healed. The injury still lingers, affecting how the person walks, and might get worse as age sets in. Thousands, probably millions, dealt with a similar situation, going the city bus with ice nearby. A few might have fallen, but very few broke their leg in the process. And, the amount of people who actually had chronic lingering effects must be particularly tiny. But, for the person involved, such things are not too important. And, surely, various of the things involved -- badly salted streets, bus not being close enough to the curb, physician error, and so forth -- in many other cases had lesser harmful results, some fairly worthy of concern. Problems that just invite a few more troubling results.

Let's move to a more tragic situation. A trio of friends leaves a club on the day, one about to get married, having a young child as well. The club is under surveillance by undercover police officers, illegal activity to which armed individuals might be drawn. Early reports suggest that someone screams out that "he has a gat [gun]." The friends think the unmarked van is dangerous, so the car runs into it as they attempt to flee the scene. The police inside apparently are reassured that the trio are armed and dangerous and let go fifty shots (in violation of force regulations), killing the groom to be. It is unclear if the police announced themselves before shooting, at least one witness denying they did. At any rate, the trio were not armed, and that rarity -- an innocent civilian killed by police fire -- occurred. In fact, the very use of one's firearm is rather rare for New York City police officers.*

But, police/civilian encounters with negative results, some involving force, are not quite as rare. Statistically, they probably are, depending on what metric you use. This is easier to say if you are a member of a group that has no real reason to worry about any problematic encounters with police officers. If you are, you might be more likely to see grades of wrong quality to it all. A feeling that when something truly tragic happens (e.g., the Diallo killing), it is simply something that was bound to happen. And, there is obviously a racial angle -- look, it's Al Sharpton. I'm personally tired of him -- his reputation is more controversial than it probably deserves, but he is a professional protestor of sorts. A case like this, where even the conservative leaning NY Daily News editorial staff right away is very concerned, is a bit cheapened by such a controversial figure.

Of course, life is complicated -- two of the officers were black, two white, and one Hispanic. And, sad irony, a federal prosecution involving the killing of an undercover Haitian NYPD officer just began, involving a sting against illegal weapon sales. This does not mean the race angle is solved -- assumptions and lack of due care tends to be institutional, something that touches the minorities found there as well. The tendency of the Republican Party to at times be distastefully racial is not suddenly erased as shown by Ohio electoral policies with a black secretary of state in charge. Still, I get the idea that some have this idea that "they" were behind this "fatal shooting of yet another unarmed black man" [per the local paper] with the implication that "they" are whitey.

Life is a bit more complicated, but it remains true that due care during run of the mill police/civilian encounters is relevant here. Just as police know of those rare but still quite possible cases where an innocent looking sort suddenly becomes violent or worse [a matter underlined at Iraqi checkpoints], good police relations with the public helps -- to the degree anything can -- when tragedy occurs, including tragedy that arises from quite human bursts of fear only furthered by mistake. The complications of race and the like only underline the point. Cases like Sean Bell are sad reminds of such truths.


* I received my new World Almanac today and noticed a "surprising facts" feature. One involved 2002 U.S. deaths involving firearms, the total about thirty thousand. Over half involved suicides, only 762 unintentional (sixty involving people under 15), about twelve thousand homicides (this possibly one), three hundred by "legal intervention" (this would be one), and about two hundred and fifty undetermined. The volume is rather informative.

Sunday, November 26, 2006

"Scalia the Civil Libertarian?" Not quite.

And Also: One NY team did their job today; another did not. They underlined the worst of overpriced players of a little boy's game -- playing lazy and messy. The team they played, especially the QB, stepped up. A half effort at stopping a game deciding 4th and 10 play technically only led to life and an eventual tie score. But, many fans probably were like me -- we knew then the game was lost. One of those "donate your money to charity, you didn't earn it" days.

The latest in the "think outside the box" legal article can be found in the NYT Magazine today by Scott Turow (who sorta should know better) entitled "Scalia the Civil Libertarian?" (sounds like a superhero) This is what one powerful dissent in war on terror cases (Hamdi) will get ya, even though he also dissented (for the opposite result) in Rasul and Hamdan, while joining the lame punt job (involving a U.S. citizen, whose rights he so eloquently defended in Hamdi) in Padilla. I can toss in a less well known opinion that follows this theme as well.

The article grows out of the "no one is that knee-jerk" truism that is shown in this case by Scalia's formalism that does have some civil libertarian results (Justice Stevens had some brief remarks that were aired on C-SPAN last night in which he noted how Scalia voted to strike down bans on flag burning, over dissents by Stevens ... dissents of which Stevens was "proud."*) Turow references Scalia's originalism:
Justice Scalia is led to these seemingly divergent positions by his unyielding adherence to a school of constitutional interpretation called originalism. To Scalia, the Bill of Rights means exactly what it did in 1791, no more, no less. The needs of an evolving society, he says, should be addressed by legislation rather than the courts. ...

In adjudicating the war on terror, Scalia has come down strongly on behalf of the administration and its prisoners in a number of cases. The extensive powers claimed by the Bush administration would seem to pose a problem for originalists, because the Bill of Rights was indubitably added to the Constitution to keep the new American executive from repeating the monarchal abuses of King George.

This is thin gruel, and misleading at that. Given the evidence, Turow has to note (though the title and lede teaser suggests otherwise) that Scalia "tends to view executive power expansively, but only when it is applied to the many areas beyond the narrow preserves created by the Bill of Rights." I'm not sure what this means. Many argue that such "narrow preserves" go beyond what Scalia holds true; in fact, are not quite so "narrow." Turow is just plain wrong -- surely not without clarification or backing -- to imply otherwise with such comments like "the Constitution's protections are generally intended for only American citizens." What? Is this why the word "person" is repeatedly used or references to power overall, not over specific individuals?

In fact, to the extent the term has clear meaning, true (truer?) originalists like Thomas hone much more to the "means exactly" test cited. Scalia does not -- he is quite willing to let precedent and policy (his reliance on clear tests and legislative discretion) win out at the end of the day. And, he quite honestly admits to the fact. Listen to his public rhetoric as well -- lots of concern about too powerful courts and so forth, ignoring that when the courts acted in the way he liked, it often was quite anti-majoritarian (in a strict sense) as well. This sort of thing might appeal to the Bushites, but it is not quite "originalism."

Lots of references to "tradition" as well, but not as many Thomas-like originalist appeals. In fact, on things like medical marijuana and anonymous pamphletting, Scalia split with Thomas. Now, Thomas has shown himself to be quite executive friendly [claimed originalists like Yoo are quite creative on the executive power front], as shown by his outlier opinion in Hamdi, but to the degree he is a renegade of sorts, the article could easily been written about him too. He out Apprendi-ed Scalia on the jury issue, one strand cited in the article. Scalia's ultimate failure to supply a majority to free Padilla underlined the softness of his one sign of independence -- Hamdi.

Stevens staid true to his principles on that point. No sale, Scott.


* He opposes a constitutional amendment to overturn the ruling for two basic reasons -- after the ruling, there was no burst of flag burning, and the very act now sends a more "free speech" message. I'd add that both applied beforehand, but maybe he was just trying to be nice. Anyway, he looked nice and healthy, much younger than his age, which is a good sign.

Education and National Citizenship

And Also: I'm not exactly sure why retired Justice O'Connor is a member of the Iraq Study Group. Also, per the weekend marathon, Betty Rubble's maiden name is Betty Jean McBricker, though the second live action movie gives it as something else. Don't know why the marathon wasn't on the History Channel.

Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.

-- Brown v. Bd. of Ed.

IOW, "education is perhaps the most important function of state and local governments." In an unpublished opinion, Justice Jackson noted that once upon a time this would be different -- in the late 19th century, quite arguably, education was not a civil right of such importance. Not in the days when mandatory school laws were often still in their infancy in many locales. And, even the author of "Education, Equality, and National Citizenship" notes that at that time education was not generally held to be a national right of citizenship.

But, as early as 1867, a separate federal department of education was created because "every child of this land is, by natural right, entitled to an education at the hands of somebody, and ... this ought not to be left to the caprice of individuals or of States so far as we have any power to regulate it. At least, every child in the land should receive a sufficient education to qualify him to discharge all the duties that may devolve upon him as an American citizen." Such a department only had a research function, though the Freemen' Bureau and such provided some educational assistance to former slaves, including providing seed money for Howard University.

We heard members of Congress speak of education as a "fundamental civil rights of the citizen," promoting various types of federal funding of education. Thomas Jefferson was perhaps the most famous early promoter of public education as a necessity for educating our citizens, believing one of his three top accomplishments was the founding of the University of Virginia. Education was also an important matter in the Northwest Ordinance, which he too had a role in writing, which created the Old Northwest Territory (Great Lake Area). So, by the 1860s, it was not a great leap to view education as a core part of developing a good citizens.

And, the South seemed particular backward in this respect. Thus, various means in the decades after the Civil War to obtain federal education funding often focused on the South, including by indexing it to illiteracy. Once the fear of integration was avoided by not requiring it for the acceptance of funds, though national control of local concerns was still opposed enough to quash the efforts, there was real bipartisan support for such efforts. President Grant even proposed a constitutional amendment holding that "the States shall be required to afford the opportunity of a good common-school education to every child within their limits." Perhaps its most skilled advocate, Henry W. Blair,* showed the universality of the goal:
I am not willing to stand here and say that the son of a confederate officer or soldier shall not be educated as well as the child of his former slave. Give them both equal privileges in the direction of education, give them both the same chance to prepare for the future of American citizenship.

The aforementioned article saw an important theme in such attempts -- the goal was to secure good citizens, something the national government has the power and duty to legislate upon. This provides a way around San Antonio Independent School District v. Rodriguez, a 1970s ruling that held that education was not a fundamental right, and anyway, it is not the job of the federal courts to guarantee its equal application. "The lesson of these cases in addressing the question now before the Court is plain. It is not the province of this Court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws." Anyway, why stop at education? "Welfare provides the means to obtain essential food, clothing, housing, and medical care."

Justice Brennan noted in a brief dissent that "there can be no doubt that education is inextricably linked to the right to participate in the electoral process and to the rights of free speech and association guaranteed by the First Amendment." Justice White dissented as well, arguing that school funding inequities based on the local tax base is irrational given the supposed aim was local flexibility -- not quite so when some locales did not have the funds to be that flexible. And, Justice Marshall put forth a tome arguing both points in more detail. The ruling was 5-4, but the path was blocked, though later state courts -- using state constitutions -- had some success in this area. [In fact, the majority left open the situation where total denial of education was at issue, a point later relevant.]

First, the Constitution supplies various powers and responsibilities (see, e.g., The Preamble) to Congress that are basically political questions. Thus, though there might be an overriding duty to protect us, the police is given much discretion in determining how to do so. This is seen in the welfare context -- the states and national government does in various respects secure "essential food, clothing, housing, and medical care." Various writers, including Charles L. Black (A New Birth of Freedom) and Cass Sunstein (The Second Bill of Rights), argue that such basic securities are our birthrights.

Second, fundamental rights per se is not the only way to obtain some right to education, in the words of Blair, "commensurate with the character and dignity of the station which [a citizen] occupies by the theory of the government of which [s/he] is a part." The operative word here is citizen. The Fourteenth Amendment clarified national citizenship, which was left somewhat vague by the original Constitution. Such citizenship was now based on birth in the United States or naturalization as long as said person was subject to this country's jurisdiction. State citizenship grows out of state residency. And, such citizenship brings with it various rights and obligations. Blair again:
I say public life with no reference to the incumbency of political office. By the public life of an American citizen I refer to his life as a sovereign; to his constant participation in the active government of his country; to the continual study and decision of political issues which devolve upon him whatever may be his occupation; and to his responsibility for the conduct of national and State affairs as the primary law-making, law-construing, and law-executing power, no matter whether or not he is personally engaged in the public service as policeman or President, as any State official whatever, member of Congress, Chief-Justice of the United States, or a humble justice of the peace. In republics official stations are servitudes. The citizen is king.

And, as suggested by the law article and Brown quote, the role of the public citizen does not just have a political character, but also economic, social, and otherwise. The development of such a citizen, national and state, requires significant education. Not just some minimum amount to learn the three Rs or enough to survive until one graduates. Especially since only about ten percent of the population can afford private tuition or home-schooling (see article), this suggests the responsibility of the government. If the matter is too complicated to be left to the courts, this just leaves the legislature with the duty to formulate the best policy, pushed by the courts in certain cases.

And, given the national citizenship involved, this includes Congress. The power arising out of the "Citizenship Clause" of the 14th Amendment, the fifth section of the amendment which provides enforcement powers (duties?), spending power, and so forth. When a book was written on What Brown v. Board of Education Should Have Said (a worthwhile read), some of the "justices" relied on this very basis -- unequal education violated the privileges and immunities owed to citizens of the United States. There was to be no separate but equal national citizenry. In fact, one conservative legal writer once noted that Brown was wrong, but Congress (per @5) could have mandated its holding.

Congress can help to secure satisfactory education -- not quite the same thing as equal education given the possibility of equality of want -- in various ways. The basic point is that education is an important national issue, arising out of its essential relationship to national citizenship. Of particular note, even the dissenters in Rodriguez had to be limited by state borders. IOW, as with the education bills in the late 19th Century, a national policy would address interstate inequalities. Federal law should also take this issue into mind. Per the law review article:
[T]he federal role in education funding is unguided by any determination of what resources are needed to ensure educational adequacy for equal citizenship. The single largest program of federal education aid - Title I of the Elementary and Secondary Education Act of 1965 - awards funding to each state in proportion to its share of poor children and to its existing level of per-pupil spending. Thus, wealthy, high-spending states receive more Title I aid per eligible child than poor, low-spending states. In 2001, for example, Massachusetts had 33% fewer poor children than Alabama but received 36% more Title I aid; New Jersey had 17% fewer poor children than Arizona but received 52% more aid. The net effect of Title I is to reinforce, not reduce, the wide disparities in educational resources that exist across states, with no formal or informal determination by Congress that the lowest-spending states provide a floor of adequacy. In sum, our current policies treat the nation's school children not as "citizens of the United States" but foremost as "citizens of the state wherein they reside" - an improper inversion of the Fourteenth Amendment guarantee.

There is a clear connection, even though many like to think otherwise for the sake of neatness, to various constitutional commands. Thus, citizenship, equality, and fundamental liberties are all related in the area of education. For instance, various cases show the importance of such things like academic freedom and church/state issues to education. Likewise, the Constitution provides different branches different powers and duties, including in respect to such matters. So, even if the courts have a limited role here, it does not free others of responsibilities. The same applies to acts by state and national governments. Congress surely can concern itself with local control and the like without ignoring the importance of education.

History surely suggests the opposite. As to non-citizens, the author of the piece is working on a separate article covering that, but suffice to say their children would not be deprived as well. A primary reason is that they very well might be future citizens. Likewise, to the extent they too have a role in society, education is essential. And, precedent supports the idea. This too is back up by history, respect for the rights and needs of new immigrants (even Chinese) an ongoing theme. Alienage early on was seen as a sort of "racial" classification worthy of special scrutiny. They might not be treated the same way in all cases, but educational needs must be addressed here as well. See, the opinion of Powell, the author of Rodriguez, here.

And, to the degree there was forces against them -- including Blair-like attempts to keep them out of the country -- it was not truly meeting the spirit of this nation. See, e.g., Lincoln's comments against anti-immigration Know-Nothingism.


* An interesting character: "Besides supporting mainstream Republican policies like high tariffs, the gold standard, and generous pensions for Union war veterans, Blair was an ardent reformer who backed causes such as temperance, the rights of labor, federal aid to education, and women's suffrage." His one problem, however, turned out to be his anti-Chinese protectionism, leading to China rejecting him as our representative to that nation.

A search for books on Blair led me to yet another person of the era, this time related to his women's suffrage interests. Ah well ... onward!

Saturday, November 25, 2006

al-Marri Briefs: Citizenship/Treason Issues

And Also: Stuffing (cooked outside the bird for my benefit) and honey glazed carrots make good leftovers. Also, a passing reference near the end of The Slaveholding Republic led me to an interesting article on how many -- in both parties -- in the late 19th Century saw the importance of federal involvement in education to ensure an intelligent citizenry. This might warrant a separate entry. Henry Blair alone sounds interesting.

But even by the most magnanimous view, our law does not abolish inherent distinctions recognized throughout the civilized world between citizens and aliens, nor between aliens of friendly and of enemy allegiance, nor between resident enemy aliens who have submitted themselves to our laws and non-resident enemy aliens who at all times have remained with, and adhered to, enemy governments. ... The alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society. Mere lawful presence in the country creates an implied assurance of safe conduct and gives him certain rights; they become more extensive and secure when he makes preliminary declaration of intention to become a citizen, and they expand to those of full citizenship upon naturalization.

-- Johnson v. Eisentrager

Some suggest, and the MCA underlines the point, that aliens should be treated differently from citizens, so it is legitimate to label al-Marri an enemy combatant. An important 1950 ruling, the limitations of which recent cases called into question or avoided, comes into play here. The Eisentrager case, however, clearly concerned people held outside of our borders, though arguably in some fashion still under our control. Here, we are talking about residents of the Midwest. And, residents that have "submitted themselves to our laws." Since twenty million, according to one estimate, legal aliens reside in this country, this is a fundamental point. As my paternal grandparents probably knew too after they came ashore after their trip from their homeland in Italy.

[This ruling is especially important given that Justice Kennedy cited it in his concurring opinion in the Rasul case, underlining a possible division in his mind between different levels of residency. Thus, a person picked up overseas would have the least rights (if any?), those in Gitmo and other U.S. jurisdictions still more, and citizenship will also come into play as well. The fact that labeling Illinois residents combatants has clear possibility to affect citizens directly, as noted before, could also affect his judgment. With O'Connor off the Court, this might be deemed the "compromise" position.]

whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States

-- Federal treason statute

This is where the treason brief especially comes into play. I appreciated the brief since it clarified something that I was a bit hazy about -- the application of treason laws to non-citizens. Using history and case law to underline the point, the brief underlines that those who directly or indirectly pledge "allegiance" to our nation can be held to have committed treason. al-Marri did not enter the country for the purpose of causing harm to our shores (cf. the Germans in the Quirin case), and such "lawful presence in the country creates an implied assurance of safe conduct and gives him certain rights." Given the rule of no free lunch, it also supplies him certain obligations. And, treason liability. Again, history bears this out -- such as Brits who were liable for assisting Confederates during the Civil War.

[The lesser fits into the greater here too. al-Marri is liable in other ways, of course, so need not be charged with the hard to prove crime of treason. The point however is that he is not a non-person under our laws, but one with many rights and obligations that underline the illegitimacy of labeling him an enemy combatant. OTOH, people here on brief holiday or especially those already agents of another government (including friendly ones), probably would not be liable. They would be liable for another things, sure enough, unless diplomatic immunity implies.]

The open-ended use of "combatant" here clouds the line between civilian and military power without even being necessary for our safety. The dangers of this path is clear as is to suddenly pervert the law of war that ironically (the theme is by now expected) this country did a lot to develop (see, e.g., Louis Fisher's book on military commissions). The ends simply do not justify the means. A final citation of Hamdi plurality underlines the point -- "we agree that indefinite detention for the purpose of interrogation is not authorized." Yes, we do. Of course, the Supremes also punted in the Padilla case, leaving it to the four justice minority to underline that point. The result was continual mistreatment, including credible claims of torture.

So, again, what matters is what happens when the rubber hits the road ... what should happen is clear though. And, given the basic securities involved here, citizenship alone is not the determining factor. Surely not in this country -- as we honor our origins, are we to forget the idea that Thanksgiving partially concerned respecting the basic needs of newcomers? But, then again, the "true meaning" of such holidays is a bit too often best found only in Charlie Brown holiday specials.

Not always, though.

Friday, November 24, 2006

al-Marri Briefs: Law of War

And Also: A nod to my older sister, who knows a thing or two about cooking a good meal -- yes, even for us vegetarians at Thanksgiving time. BTW, this is when the "vegetarian" thing really kicks in, since we aren't talking vegan foods here. I never promised you a rose garden ... or perfection. Just trying to get closer to the good life, my own way. Meanwhile, already received some gifts that I ordered ... yes, Xmas is already upon us.

It was rightly noted that the ultimate determination will be made by the Supreme Court, but the last election suggests that having a good foundation is important, and basic ideals must be kept throughout.* And, this blog is about principles as much as anything else, the discussion of the matters involved and so forth.

Thus, various briefs in support of Ali Saleh Kahlah al-Marri, the largely forgotten domestic "enemy combatant," caught my eye. The preceding link can provide some background on his case, but it underlines the troubling potential and symbolic value of the case. Both sides know this -- the core issue here is the possibility that the executive will have unbridled power, which he might deign not to use, but that sort of is not the point. We have limits to guard against possible injustice -- there is always the possibility that they won't be necessary in a given case. "Just trust us" is not our motto, even for the people themselves -- we too cannot do anything we want; one of us, the executive, surely should not have such power.

The briefs provide various angles of the issue, again providing various expert testimony on relevant subjects, including the laws of war, prosecutorial possibilities (former prosecutors, including Janet Reno, signed that brief), the law of treason (a pretty interesting discussion), and enemy combatants generally (the most general of the briefs). A summary of the "law of war" brief's argument provides a good summary of the overall themes of all four:
His actions do not qualify him as a military combatant who would be subject to being shot on sight or detained as a prisoner of war. Mr. al-Marri is a lawful resident of the United States. He was arrested on U.S. soil and has at all times been detained here where civilian courts are open and operating. There is no allegation that he is a member of the armed forces of a nation at war with the United States. There is no allegation that he has been on a foreign battlefield where such troops are engaged in combat with the United States. There is no allegation that he directly participated in hostilities against the United States, or that he was poised to imminently engage in an armed attack.

Or, more simply: "The Government's novel redefinition of the term combatant eviscerates the distinction between military and civilian jurisdiction. The Government's position should be rejected." The Hamdi ruling underlines the point though it leaves a ticking time bomb by leaving the definition of "enemy combatant" open for lower court development. [Rasul is equally minimalist, so to speak, by supplying habeas review, but not clarifying what it should entail.] But, the footnote that does so, tell us that "Hamdi was carrying a weapon against American troops on a foreign battlefield; that is, that he was an enemy combatant." Thus, we have perhaps a two part test: battlefield capture and member of the armed forces of another. The latter important or potentially a significant part of a populace could become "combatants" akin to the mentality of terrorists who justify bombing civilian office buildings.

The open-ended nature of the Hamdi plurality** suggests that in this particular conflict, "battlefield" might be something of a hazy line. At the very least, however, it would be a bit absurd to make the entire world a battlefield, and thus, rob the term of any meaning. There is a clear line between domestic and foreign. The "direct" prong of the excerpt is important as well. A veteran is not a "combatant," even though s/he once might have been. Nor is someone who might in the future choose to be one. And, the same applies to someone who might in some fashion assist a conflict. A worker in a factory producing war materiel is not a "combatant," even if the factory might be a legitimate target, or s/he might be liable for criminal prosecution. Hamdi does not really dispute the point, focused on "active combat operations" and the like.

In contrast, the ruling compares Hamdi to Milligan, a case arising from "a resident of Indiana arrested while at home there," from someone ["a bad man" according the opinion] planned domestic terrorism during the Civil War. The prosecutors' brief underlines that "civilian jurisdiction" has worked over the years to target domestic terrorism. Many examples are provided. The very reason al-Marri was made an enemy combatant, Padilla also fell victim to such arbitrariness, is that his lawyers challenged his civil detention. This is not how military confinement -- in a nation where the civil power is supreme -- is supposed to work. A "combatant" under the laws of war can be shot on sight, and if al-Marri was one, this would include "homes in Peoria, Illinois." In fact, the laws of war allow some collateral damage ... yes, potentially the neighbor's home is at risk as well. Rightly, we hear of use of a "verbal sleight of the hand."

Hamdi et. al. relied on "longstanding law-of-war principles." The laws of war brief also relies on treaties and customary international law, see also Hamdan, the latter which a 2004 ruling (Scalia/Thomas separately concurring) noted is "law that (we must assume) Congress ordinarily seeks to follow." Such rules speak of "combatants" and "civilians," the latter obviously perhaps criminally supporting the former. As noted by the United Kingdom, customary international law making such references relevant, terrorism generally is not the same thing as "armed conflict." The troubling WWII Quirin ruling does not change things in many ways, in part because it was assumed the people involved were members of foreign forces. That is the issue in question here. And, to some degree, the 1949 Geneva Conventions changed its meaning of "unlawful combatant" after that ruling was handed down.

A tricky problem here is that arguably the Military Commission Act did alter congressional understanding of "customary international law" to some extent. The technical point that pops up in various briefs is that it did so in less ways than the government suggests, especially respecting those held before its passing. And, to the degree it allegedly does, it could/would cause a slew of problems, including constitutional in nature.

Again, the wariness of bluntness helps, since such a radical move traditionally is deemed to require a clear statement. This is sound given "independent states may of right do" only certain things. Declaration of Independence.

[I will discuss the citizenship issue later.]


* I'm about done with the aforementioned book on the slaveholding republic; it ends with a discussion of the Republicans taking power, including the religious aspects of Lincoln's thought. [In particular he thought our path was compelled from above, so it is not surprising that "under God" was particularly found in his Gettysburg Address.] A reference was made to Proverbs 29:18 for the principle that those without a vision perish. The RSV version: "Where there is no prophecy the people cast off restraint, but blessed is he who keeps the law."

** Souter/Ginsburg agreed, but dissented to the extent the ruling denied the U.S. citizen various rights; Scalia/Stevens dissented given a citizen was denied habeas rights without a clear suspension being in place. To the extent Scalia's dissent relied primarily on Hamdan's citizenship, Stevens clearly did not agree as underlined by Stevens' Rasul opinion vs. Scalia's dissent in that very case. Thus, there was surely more than four votes on the "combatant" issue relevant here.

Thursday, November 23, 2006

Michael Richards Commentary

And Also: Lol. Not a good football day for NY ... even KC winning hurt the Jets' longshot chances. Oh well.

A couple interesting takes on the Michael Richards apology with some responses respecting one as well. The replies are pretty interesting, but I retain overall respect for the column, which reflects my thoughts of the writer generally. I retain my thought that there are different shades of racism, some worse than others. It's a ugly game to play but please -- if I call you "x" is it the same as if I scream it at your kids or in a public arena for all to hear? If I do racist things repeatedly, or promote it in some fashion as a private/public program? Still, clearly the view of the person involved is key, and adds to the complexity of judging such cases. This very well, of course, might add blinders to the judgment.

Also, in response to another post commenting on a Dahlia Lithwick piece on forgiveness (MR is so timely!), I added: "Forgiveness comes from further actions and time. And, ultimate belief in the person involved. Apologies basically have to be done, even if it's theater, but they can make things worse, huh?" I meant here public officials in particular, but it often applies across the board. Still, apologies often are non-verbal ... the "action speaks louder than words" theme is quite true. And, this is why some bad acts are quite different than others -- they cannot be taken in a vacuum. I got in trouble for allegedly suggesting this is a partisan issue, but taken the theme neutrally, that is my ultimate message here.

Anyway, Happy Thanksgiving all. BTW, you don't need to be a vegetarian to see the stupidity of this "pardon a turkey" tradition done by the President. [The perversity was suggested by a West Wing episode, where CJ or Donna had two pick one of two turkeys for the honor. The President refused to go thru with a charade to actually try to imply to a young handler that he really had the power to pardon a turkey.] Still, given his tendencies, it is good to allow Bush to pardon some creature destined to die.

Go Tampa!

Wednesday, November 22, 2006

An Answer ...

And Also: A Good Year is cynically seen in some quarters as Russell Crowe's way of showing he isn't an asshole. As a movie, it is pretty thin -- faux sentiment, but nice to look at -- in a fashion, arguably for both sexes. Better for scenery than for wine lessons, though maybe the book was better in that department.

The last entry clearly has some modern day applications -- including, those caught up in the "war on terror." On this let me attach a somewhat overdue reply to my email to my local congressman (no reply yet from my senators) on the MCA:

Thank you for contacting me regarding the U.S. government's treatment of detainees. I appreciate hearing from you on this issue.

As you know, the Military Commissions Act of 2006 passed both the House and Senate, and became public law on October 17, 2006. This legislation grants the President express authority to convene military commissions to detain and prosecute "alien unlawful enemy combatants." I voted against this legislation, because it does nothing to make the United States safer while ignoring the rights of detainees and the established rule of law.

When we announce to the world our intent to use harsh interrogation tactics and the use of torture on prisoners and detainees, we step closer to inviting more abuses to be perpetrated against our brave servicemen and women in harm's way overseas. This legislation does just that, compromising our values and stature as a world leader at a time when we should be leading by example.

This legislation clearly ignores any respect for due process, denying detainees the most fundamental rights commonly afforded to prisoners. Furthermore, this bill blatantly disregards the Supreme Court decision in the Hamdan v. Rumsfeld case, which stated that it should be a requirement of a "regularly recognized constituted court affording all the judicial guarantees which are recognized as indispensable by civilized people."

I firmly agree with the Supreme Court's decision and that we cannot hold anyone indefinitely, as it is antithetical to the American ideal of due process for all. One of the reasons the United States is the greatest country on Earth is because of the rights we accord not only our own citizens, but all people on American soil. One of these vital rights is the right to a fair trial. We cannot suspend the rights of individuals, hold them indefinitely, and not charge them with a crime.

Regardless of how we feel about detainees, we must treat them humanely and in accordance with our rule of law and the Geneva Conventions. I oppose the use of torture as an interrogation technique, whether in the United States or elsewhere. The terrorists should be pursued, caught and punished, but they should be punished under established international law.

Although the Military Commissions Act has become law, please know that as a member of the House Committee on International Relations, I will continue to oppose torture and indefinite detention of prisoners within our borders and around the world.

Thank you again for your message. Please feel free to contact me again on any issue of importance to you

But, what does a NYC representative know? Bunch of lib tree huggers.

The Slaveholding Republic

And Also: Today is the 43th anniversary of the JFK assassination though a new movie and Air America host (this week) focuses on RFK. This seems a bit off. Meanwhile, the leads on House are getting more and more depressing, especially the situation with Dr. House's one real friend. You know, since all was so cheery before now.

After enjoying his tome on the Dred Scott Case, I read Don Fehrenbacher's final work (completed by a former student) entitled The Slaveholding Republic: An Account of the United States Government’s Relation to Slavery. Though I usually don't do this sort of thing, except for a few favorites, I am re-reading it, since it has been awhile. The theme of the book is that the U.S. Constitution is largely neutral of slavery, but that U.S. policy -- for various reasons -- later made it a slaveholding republic. Thus, when Republicans wanted to change the tone -- even if honestly assured people that they did not want to ban slavery in the states -- it was a serious threat to the South. And, even the path to "the slaveholding republic" was a complicated matter, not just some slave power conspiracy.

This sort of thing is inherently interesting, especially to some people, but still has bite given the place of race in our history and current understanding of our nation. It also has implications in other areas. To deal with that briefly, LGM again took its "absurdity of anti-abortion rights rhetoric" campaign into the federalism question. [I'd think he succeeds more when focusing on the arbitrary and pointless nature of regulations.] Since abortion, like slavery, was once largely a state matter -- even if the national government dealt with it in various respects -- one can see a connection. In fact, before 1973, the states as a whole had individual discretion to regulate/ban abortion. Congress had little to do with the matter. The "throw it back to the states" crowd is not just fantasizing here, right?

[The post starts with a poll number. In it, 39% said that they wanted abortion to be a state issue. This is a significant number and in no way truly suggests the majority thinks federalism is an "unprincipled dodge." They just don't think it is an issue for the states! Surely, that is how I interpret it, and to assume otherwise seems quite questionable.]

The fact that a small subset want to protect fetuses under the national Constitution (with an amendment, if necessary) does not change the fact. Sure, some will then want Congress to do more partial birth abortion deals. Overruling Casey would serve as a wedge, allowing Congress to seriously limit abortion rights. But, this is a subset of the class who want to leave the matter to the states. This is shown in the gay marriage area -- even many conservatives opposed a national amendment. It is not an "all or nothing" deal -- if some national regulation is involved, federalism issues do not disappear. Surely, federalism is often a fair weather ideology, not followed when it would let states do things you don't like. But, the gay marriage deal underlines that this can be overblown. Many subjects are largely left to the states. We are talking fundamental rights here ... that is the bottom line.

Back to the book. The book begins underlining that the pro-slavery nature of the Constitution is overblown. For instance, the 3/5 compromise is not a particularly racist provision. This provision counts five slaves ("other persons") as three persons for purposes of apportionment of the House of Representatives and direct taxes. Direct taxes were never a major source of revenue, though that part of the provision reflects the clause's origins as an earlier proposal to apportion taxes among the states. [As an aside, direct taxes were early on basically seen as those against land and slaves, so the later implication that income taxes were included was dubious.] Taxes were to be a reflection of wealth (shades of progressive taxation), which was hard to determine ... early on, some makeshift land rule was set forth.

Later, a rough determinant was to be population, but what about slave? Didn't slaves produce less? Are we to count them as full persons? This would only help slave states as the second clause of the Fourteenth Amendment suggests by allowing Congress to reduce House delegations in proportion to the blacks disenfranchised. Not count them at all? Count them using a different ratio? The final determination was a compromise, one that if anything spoke of slaves as "persons," complicating things for slave owners. In fact, when a few people petitioned Congress for loss of value to slaves, their claims were rejected ... unlike those connected to clear property. Wood ... yes ... harm to or loss of slave ... no. This was deemed a delicate question -- avoidance of such issues was often the path taken. Or, the path of least resistance ... toss in some united efforts by the slave states, and this had pro-slavery implications as shown by slavery in the national capital -- which early on a majority, if a soft/divided one, wanted somewhere further North.

Slave "property" was an issue. This is shown by the decades long attempts to obtain redress for slavery losses growing out of the wars with Great Britain, plus (failed) attempts to get Canada and Mexico to accept some sort of international fugitive slave law. Relatedly, American foreign policy, including policy affected by dislike of GB, was more important than slavery per se. This had a pro-slavery consequence. It is important to note that there was a clear distaste for the slave trade, involvement in the foreign slave trade partially banned as early as 1794. And, the moment the Constitution allowed it, trade to this country was banned -- this when any suggestion Congress could even regulate slavery was liable to get slave owners very nervous. Illegal importation was not really an issue after 1820.

But, even the likes of John Quincy Adams formally claimed that "freedom of the seas" was more important than a strong united effort with the Royal Navy to stop American involvement in the foreign slave trade. This blocked an attempt to make slave trade a clear violation of international law, one in which any nation had the right to search ships to stop such "piracy." And, attempts to use our own navy for such a purpose were often quite lackluster. This has implications today when cries of “American sovereignty” trump fighting human rights violations. It again is not just, if even primarily, a matter of supporting the promotion of human rights violations, but the assumption other issues are more important. Of course, this often has the same de fault result, sending a message again that we are hypocrites.

The book also discusses the fugitive slave issue plus the troublesome (though not in real numbers) issue of slavery in the territories. The former issue also underlined that the Constitution did not compel the path taken, including the assumed necessity (or even authority) to pass federal fugitive slave laws and the alleged absence of state power to protect their innocent black citizens via "personal liberty laws." [Ah, federalism.] We also see the perils of assumed "original intent," including the compelling "necessity" of a fugitive slave clause that was tossed in late in the game without much thought. And, the almost amusing suggestion that pro forma hearings were not problematic, since the seized putative slaves could appeal to the states where they are taken back to.

Interesting stuff.

Tuesday, November 21, 2006

Sports/Entertainment Edition

Kramer a Racist?: The biggest news is Michael Richards' racist outburst in response to some heckling during a stand-up routine. I was told about this thing last night, video available, and the person was quite shocked by the whole thing. It might be a factor that she is a Seinfeld fan, so the disconnect one feels when a favorite actor does something that seems so out of character (so to speak) kicks in. OTOH, anyone who hears his rant would be shocked at the thing, given it seems to come out of left field. [As an aside, I was not quite aware he was so old -- 57.] The matter goes well with the Dahlia Lithwick article I referenced last time on forgiveness. Sometimes, there is some "there" there. IOW, it's not just about "nothing" (show reference).

The NY Daily News has a few articles on the subject, and as is sometimes their wont, there is some good stuff -- including commentary and a sidebar piece on the real Kramer. It was noted that after his success on NBC, Richards had problems finding his groove again. The star in effect started a family and rested on his well earned millions. George had some success in supporting roles, which is his forte anyway. Elaine has some problems finding a niche, but apparently has some success (won an award) with her latest effort.

Richards had a bit more trouble, though at least two respectable supporting roles (including Trial and Error), that suggested some chance to get some work. The whole matter suggests why the supporting characters were sure to try to get some extra coinage, including as related to the box sets. Anyway, this sort of thing suggests why some hecklers might have set him off -- he's Kramer! he deserves a bit more respect! Or, can't I even do a stand-up routine without some assholes bothering me? Obviously, how exactly he responded is a major problem. As noted in the commentary piece, if you are going to be nasty, racist epithets is not the only way to go.

By doing so, you are being racist. How deep is it? Jerry Seinfeld denies his friend is a racist. He offered to allow Richards apologize via satellite (also available online) during JS' Letterman appearance (it played last night). Richards was apologetic/tearful, but the Daily News article tellingly notes that he promised to apologize last Saturday, after making the comments on Friday night. And, didn't do so, thus the comedy club's spokeswoman said that he will not be welcome there. This is troubling -- it is no proof that deep down he is racist, but it clearly sends a message that he does not understand just how wrong his comments were. It sends a message of lack of respect, which btw is often a core concern in controversial cases (consider discrimination laws -- they don't ban racist thought, they ban racist actions).

I had grown tired of the show last year or so, so stopped watching reruns. This sort of thing really taints the whole affair further, you not wishing to have images of a racist when you seem a beloved character. It might be reading a bit too much into things, but the show did receive some criticisms of its own on this front. This was deemed by some as unwarranted, given the range of the show's targets. But, especially as time went on, there was a cruel edge to the show, especially the lead character. The supporting cast were clearly losers, and they (George/Elaine at least) were willing to admit to themselves that they were nothing to write home about, but Jerry seemed to feel superior to everyone. Kramer was a special case ... you never go the idea there was much self-knowledge there. But, some "above the fray" nihilism was there. And, can be deemed problematic.

Meanwhile, the OJ piece was deemed so controversial -- when Bill O'Reilly and Geraldo Rivera call you scummy, you are in trouble -- it was decided unfit to air. Oh wow, standards! OJ is neutral about the whole thing ... his advance was not refundable. I'm of two minds here -- yes, the whole thing is disgusting etc. But, honestly, I don't know how much more disgusting it is as compared to a lot of what else is out there. We might feel good about ourselves, and the local paper had a lot of moral outrage, about our disgust. But, again, OJ got special treatment -- this time, it just came out a little better. What about all the other tasteless things on the air? Other likely criminals given their time?

Comics: A fine day for comics. "For Better or Worse" has one of its excellently carried out drama story arcs going, this time involving the older daughter testifying about her attack. Yesterday, we heard her thoughts concerning how -- though she wished otherwise -- she did hate her attacker. Today we get a piece of the testimony ... as suggested by earlier panels, reliving the scenes was pretty hard. Meanwhile, "Doonesbury" pointedly addressed students who thought only "them" should volunteer for the military. And "Get Fuzzy" had an amusing, though pointed, bit about voting ... left unsaid was that, um, dogs cannot vote. There even was an amusing bit in the less well known waitress comic, "Tina's Groove," concerning tofu. Love those tofu jokes. [Character was willing to eat tofu flavored meat.]

Sports: I know you are not supposed to blame injuries, they are part of the game etc., but simply put, sometimes they are a factor. If your team is otherwise imperfect, a ton of key injuries to your defense -- including star playmakers -- is going to hurt. Toss in a team like the Jags that play great at home and needed a win, a Dallas upset (even with Phillies done with the QB out ... meanwhile, the back-up on the Packers finally gets some time to shine ... and is out for the season), and a two game lead is gone. And, Dallas is prime to go ahead with a game on Thursday vs. Tampa. Come on bro! Help your brother Tiki out! Sigh.

As to the Mets, how can you risk losing Glavine? Alou is nice, but without Glavine, you have about two and a half starters. Pedro is out for at least a half year, El Duque is injury prone, and Steve T. is likely gone. Perez is still shaky, even with his lovely playoff performance, and the Maine is surely still growing into a starting role -- he was in effect a rookie this year. So, maybe, you can get Zito -- overpaying him probably -- that still results in a hole in the starting staff. And, do we really want Glavine to cement a Braves' starting crew that should have some of their stars healthy again? To get his 300th win there? Please! OTOH, Ted Lilly would make a good edition to the Yankee rotation. I was sorry to see him go, and he can be a steady back-end starter that is not an old man, though he won't be that cheap.

Oh, Lorelai married Christopher ... the show has officially tanked. Still, The Class was good again last night, though it had a sad if touching subplot, so there is hope there.

Monday, November 20, 2006

In Lieu of Further Whining ...

Self-satisfied clueless victimhood annoys me. See comments here and here (toss in here) for what bothered me, including B's failure to respect the legitimacy of a quite reasonable argument and R's failure (repeatedly) to face up to the particular context and realities that suggest Democrats (with their alleged media allies and other "liberal apologists" like myself) are not somehow given particularly special treatment. Better to in effect shoot the messenger. QED indeed.

The Past Should Not Be Forgotten or Necessarily Repeated

And Also: Still have tonight, but quite an eventful football weekend, including various injuries and a Colts loss. The Jets again showed themselves as a work in progress. Vinny Testaverde was around again ... eating up garbage time in the Pats game. And, Arizona finally found someone else to beat.

The newly out in the open guy over at TPM (Josh has help these days plus has a new baby) recently noted:
A number of readers have emailed with their outrage over the comments on torture by TPM Reader CH. So let me clarify a couple of things. As I said, CH was just one of several readers who had emailed to suggest I was living in a bubble. Pointing to the School of the Americas and the dirty wars in Latin America, they noted that U.S.-sanctioned torture has been going on for far longer than I was willing to acknowledge. You might call those the "where have you been?" crowd.

Sure enough. We should recognize such aspects of our history as suggested by ongoing protests respecting the School of the Americas and so forth as discussed recently on Democracy Now!. Our amnesia respecting American imperialism and such in the region is especially galling given the over the top rhetoric used against the likes of Hugo Chavez. There is a sentiment that such anti-American noises are just kneejerk hate America b.s., which is not quite as easy if we are truly aware and honest about our past ... and present in various respects. But, as Naomi Klein notes:
It is this departure from clandestine etiquette, more than the actual crimes, that has so much of the military and intelligence community up in arms: By daring to torture unapologetically and out in the open, Bush has robbed everyone of plausible deniability. ... The Center for American Progress has just launched an advertising campaign called "Torture is not US." The hard truth is that for at least five decades it has been. But it doesn't have to be.

Or as another email to TPM noted:
So even though the United States has been doing shameful things for a long time, the new situation is materially different. We've gone from a nation which claimed to uphold the Geneva Conventions, and only violated them in secret, to a nation which has openly rejected the Geneva Conventions, and which has been caught on camera.

CH is a former interrogator and puts forth a more "realistic" sentiment:
Essentially, this is a microcosm for what has arguably been going on for decades and for what the Bush Administration has used more 'openly' than their predecessors...but only 'openly' because people are finally coming around to the realism that often governs our geopolitical actions and are being exposed one way or another to certain dark truths. We may not like these truths, and we can act to change them if we want. However, so long as people continue to cite things like the Geneva Conventions and argue in ways that pretend as if we live in an ideal world and that 'we' are virtuous actors in said world, well, we are only going to help in perpetuating the bubble that so many of 'us' have been living in for so long.

Yeah, not convinced. Others in the business are much more wary about falling for the line that such "dark" behavior is necessary and not in the long run counterproductive, even if it might be in some fashion useful in various situations. We do not live "in an ideal world" but we do live in one where we can not torture people, or at the very least, not deem it fully acceptable behavior, even if something that might be a distasteful shameful thing that might be justified in certain desperate situations. Quite a different matter in practice.

Meanwhile, Bush's trip to Vietnam resulted in some rather interesting thoughts as well. No "champagne unit" this time around. Some wonder if Bush is aware that we lost over there. [Kevin Kline: "It was a tie!"] Others reaffirm the sentiment that it has something to teach us about Iraq, including the part about not learning from our mistakes ... or wanting to admit we really made any. A comment on "Dick" Nixon is especially amusing/on point. Finally, TPM generally reminds us that Kissinger is still around. Dave Barry once had a running joke on how Nixon's career never quite ended -- he kept rising from the dead like some vampire.

Well, the imagery is ever more true as his people continue to haunt us.

Sunday, November 19, 2006

Legal Thoughts

And Also: Rutgers upset a team that sweated it out the week before; this week, in their first loss, the tables were turned. Not really into college football, but hey, there are a lot of very good one loss teams. Suck it up, win the next two, and be happy you were not a bunch of losers this year. Heck, they are probably already "Whatchamacallit" Bowl eligible. Beware the good enough to bite teams, especially late in the year.

There have been various complaints, not just from judges, about federal judicial salaries. An interesting discussion in part excerpted some choice remarks:
In exchange for accepting their relatively modest salaries, federal judges receive the benefits of life tenure, retirement at full pay, and freedom from the endless pressures of hourly billing, business development, client demands, liability exposure and intrafirm intrigues -- not to mention the prestige of high office and the satisfaction of dispensing justice. Meanwhile, practicing lawyers report extraordinary levels of job dissatisfaction, sometimes bordering on outright despair. Those high salaries come at an equally high cost, exacting their toll in time and stress . . . As a purely empirical matter, there is no pressing need to increase judicial salaries in order to attract or retain first-rate judges.

We are also linked to a discussion suggesting that in some cases higher judicial salaries would perhaps help lower court judges to feel more respected, leading to more loyalty to appellate law. Or something. Anyway, those intangibles suggest this is not just about pay. Consider the older judge -- many regular law sorts might not have such job security in their golden years. And, if the job gets too tedious -- a real possibility for lower court judges -- there are charming retirement packages. Don't cry for me Argentina, I say.

Meanwhile, on the Hamdan/Military Commission Act front, the most recent briefs are worthwhile reading. For instance, there is the "bill of attainder" issue of "unlawful enemy combatants" (basically a fake term pursuant to Geneva etc. -- it's either POW or civilian, who might be an "enemy" pursuant to a proper trial) basically being found guilty before trial, especially in respect to stripping of core habeas relief. It is not an all or nothing deal -- the fact they retain a smidgen of rights does not mean the badge of infamy is therefore suddenly legitimate. OTOH, habeas itself is sort of an all or nothing deal -- watered down does not quite cut it.

The amount of work put into these briefs, especially given who we are allegedly dealing with, is remarkable. An amicus brief from "four retired generals, two retired admirals and a retired Central Intelligence Agency officer"* on the matter of Geneva Convention particular is particularly notable. The "Interest of the Amici":
Amici are retired generals and admirals who have spent their careers commanding troops at home and overseas and protecting the nation from attack, and a retired intelligence officer who ran the CIA's covert operations in Afghanistan during the Soviet occupation. Amici have extensive experience dealing with issues relating to the Geneva Conventions and armed conflict, and more than 200 years of combined service in the military and intelligence branches. Some of the amici filed a brief in this matter in September 2004 urging that the Court ensure that Respondents afford Petitioner the protections of the Geneva Conventions. (Dkt. 25.) The Court did so, and the Supreme Court upheld the Court's decision.

Finally, especially since an important race based secondary school case is in front of the Supremes this term, this discussion of continual failure to honor the principles of Brown is as timely as it is important. Likewise, there is a clear local angle, including continual attempts to determine the best way to settle a New York school funding case, one based on state constitution obligations.


SIS Level 5, retired from the Central Intelligence Agency in 1994 after 30 years of service as an intelligence officer. Mr. Bearden ran the CIA's covert operations in Afghanistan during the Soviet invasion, and he helped train Afghan freedom fighters. During his career, Mr. Bearden was station chief in Pakistan, Nigeria, Germany, and the Sudan, and he was chief of the CIA's Soviet-East European Division during the last days of the Soviet Union. Mr. Bearden received the CIA's highest honor, the Distinguished Intelligence Medal, and is the author of The Main Enemy, a book about the CIA-KGB spy wars.

Bunch of lib tree huggers!

Saturday, November 18, 2006

Political Odds and Ends

And Also: Some new books on the side panel should be forthcoming. [I have two browsers on my home computer, one which has problems with such images of late. So, factor that in.]

Now the election is over and all, perhaps we can tweak some of the more dubious bits of legislation passed over the last few years. As to the Military Commission Act.... Meanwhile, TPM has a striking email contrasting current practice with previous norms and comments from the sadly still relevant Ed Meese.

Meanwhile, I offer some thoughts on the asinine "dump Pelosi" rhetoric here. As to Hoyer see here. Harman is defended here though I agree with the dissenters. Hopefully, the third in line will get a shot there.

John Edwards was a bit lackluster on Dave last night, but Kevin Pollak was funny. Edwards is known for his economic populism, and on that front, TMQ -- who often has questionable political asides in his ESPN football column* -- actually has a "how about that!" passionate defense of a large minimum wage increase in this week's version.

Isn't it '09 yet?! Again, listen boys and girls ... the President makes thousands of appointments. They basically all -- whining about exceptions notwithstanding -- get confirmed. These people have a significant role in running national policy. The fact you might want to have a beer with someone -- who btw supposedly doesn't drink the stuff any more -- is not the only significant reason to vote for someone.

In fact, various other somewhat more relevant, but still pretty paltry, reasons to vote for a person (the alternative is a bit of a dork, etc.) are rather lame too. Oh well, something about "the end of the beginning" comes to mind.


* Yes, forthcoming, it is NY v. Chicago, the sequel. Hopefully, unlike with the Colts, this double action will not lead to similar results (Giants having a shot at winning, Jets even more of one, both losing). This week's excuse in reserve: hey, the Jets already upset the Pats. What more do you expect from them?

Friday, November 17, 2006

Like A Bad Penny ...

And Also: A few weeks ago, I complimented customer service reps. Well ... I never did receive what was promised and when I called to check for an update, I got cut off. Still, the group from the company who could not help me did so well enough, while the person who claimed I would be helped was nice about it. You take what you can get, right?

This OJ deal is beyond parody. I have no desire to read/watch the thing, though obviously it has "guilty pleasure" (the multiple "you slimeballs" pieces in today's paper notwithstanding) written all over it. Appropriately, while flipping through the channels, I noticed a docudrama on the case. And, some people who have seen advances copies apparently have noted that it is uncanny -- it actually sounds like he did it! Very realistic. How about a spin-off? We have various people, both good and bad, explain how they would have killed the two people, leaving two children without a mother, and so forth? The publisher can justify it as an insightful look at human nature, or something, not just a way to make a buck.

From what I understand, the deal was made through a third party, which might be a way around the money I'm sure he still owes the victims' families pursuant to his civil suit. By means of various dodges, he was able to live fairly well without certain moneys being touched. Considering the point, it sends one back to the events themselves. I still remember when the verdict was let out -- I was in a mail room with two people (both blacks, let's say in their 30s). The phones were not answered as the "not guilty" was released, and the two gave each other high fives. The verdict did surprise me some, though looking back, I guess it was not a shock. I don't quite buy Alan D.'s book, but as a "beyond a reasonable doubt" deal (colored by police misconduct), it probably was a defensible decision. Likewise, the civil verdict was sound imho -- I do think he is guilty. And, police misconduct was less an issue there.*

What annoyed me -- and was not focused upon enough in my opinion -- was the change of venue. A jury is supposed to be the conscience of the community. Not his. Talk about a shift -- that jury made Bronx juries look like one from some conservative white suburb. The fact he benefited from police tactics people from the area would not find too offensive is also a bit ironic. The prosecution, among their various questionable decisions, probably tried to rely too much on the domestic violence issue. This very well looked like a good angle -- up to a point -- but honestly, the jury probably was not too sympathetic. The white wife deal probably was a factor; anyway, remarks after the verdict suggested that they did not think the issue too relevant. I think it was, but such is how it played out.

Mark Fuhrman came out of this pretty well. Racist cops are not exactly a rarity in this country, and this particular black person doesn't come off rather well either. Anyway, the general sentiment was that OJ is guilty, so it is not like his police judgment was off by that much. So, it is not surprising that he had some success as an author of true crime books and as a commentator of such subjects. Another racist sort that was given a second chance is Trent Lott, who won the minority leader slot by one vote. At the time, I (basically) seriously wondered if him losing his position to a Bush suck-up sort was really a good thing for my side. Anyway, he is back, McCain providing the edge.

And, pragmatically, it might be a good thing that is back. He is willing to deal, plus provides good fodder by have made the mistake of expressing what many others in the caucus probably believe, but are a bit more circumspect about. [And, they lost Virginia by a hair, which is a bit depressing, when you think about it.] Best of both worlds. BTW, isn't it amusing that Sen. Allen lost his re-election bid by votes coming from the more "blue" (at least purple) northern part of the state? As a Civil War buff, he surely knows about the Army of Northern Virginia, head by one of his idols, Robert E. Lee. How the pendulum swings. But, then, one of Lee's lieutenants did become a Republican.

James Longstreet, the 19th Century Jim Webb?


* Such is life. The police made various mistakes and rich people have the money to take advantage of such things. All the same, I did not find this some sort of justice deal -- the high five was a common sentiment, but something of a misguided one. Do you think a poor black would have received similar benefits? It is akin to poor whites voting for Republicans who cut taxes for the rich -- the "what's the matter with Kansas" false consciousness syndrome.