Executive Power Can't Just Be Politics

And Also: Pelosi has a great challenge: we will give ya all the money you want, but sorry sonny, you will have some strings. Bush answers with "it's full with pork" (unlike all those other funding bills, huh?) and blaming Dems for not caring about the troops. Such a maroon. Elections have consequences. Don't know how far the Dems will take this, but damn it, the people are on your side. Anyway, Congress as a whole has now said the war can't be an open-ended laissez faire policy. Thanks for that at least.

To a significant degree, our legal and political system seems to be built around the concept of acceptance of responsibility. ...

But admissions of error and rhetorical claims that "the buck stops here" should not be confused with genuine accountability. Genuine accountability requires that serious mistakes lead to serious consequences for the wrongdoers. And I can think of no more overarching problem with government today - whether the issue on the table is Iraq, Katrina, DOJ, or a host of other matters -- than the disappearance of this basic notion.*

-- Edward Lazarus

The dislike of this administration from many quarters is not just a result of ideology. It grows out of a simple belief that it is run by disreputable people, people who simply do not warrant our respect. Their ideology, poisonous and distressing, furthers this fact, but only partially. Ultimately, one can like people whose views you oppose, even love them (Carville/Matalin). But, it is really hard when you don't respect them.

And, this is the reason why the administration and their enables hit a special nerve. This inability to take responsibility, furthered by secrecy to cover their asses, is a core problem. They come out as cowardly assholes. This is furthered by a self-righteous tone. After all, they cannot act in this fashion if there is even a shred of possibility of error. It is just plain obvious, therefore, that the other side is the problem. They are the ones relying on petty matters and politics.

So, Gonzo's former aide speaks of "mistakes" being made, "incomplete" explanations, and past statements "contradicted" by later events. This is akin to tax fraud being defended because the person made "mistakes" on their forms, put in "incomplete" information, information "contradicted" by later events. That is, after they were forced to show their records. Prosecutors don't generally find such things convincing. Cutting through the b.s., we find that Congress was lied to, stonewalled, and not given information that they had every right to demand.

This is why an honestly somewhat lame piece co-written by Clinton's solicitor general, Walter Dellinger, annoyed me -- congressional oversight power was expressed a tad weakly, the possible wrongdoing deemed "plausible," and Rove still off limits. This was the "reasonable" position. Atrios would understand. The idea advisers are a sort of royal privy council and the duty of the President to "take care that the Laws be faithfully executed" is open-ended to the extent that it becomes nearly meaningless of any real content other than politics is suggested by this comment from the former aide:

"In his statement, Sampson says any distinction between performance-related and political reasons is "largely artificial."

"A U.S. attorney who is unsuccessful from a political perspective, either because he or she has alienated the leadership of the department in Washington or cannot work constructively with law enforcement or other governmental constituencies in the district important to effective leadership of the office, is unsuccessful," he says.

This starts to get to the depth of the problem, including my replies to the Dellinger (and co-author) piece. Apparently, we should only really be troubled if the administration interfered with prosecutions in a blatantly illegitimate way. But, things aren't that narrow. We need to underline the fact -- there is a difference between "politics" and professional prosecutors, "politics" and taking care the law is faithfully executed, "politics" and running foreign policy and war. And so on. Likewise, if politics or some other twisted set of priorities is the core concern in such cases, well, damn it, Congress has the right and obligation to know about it.

But, the administration -- full of true cowards -- don't want them to know about it. They don't just want to run some authoritarian form of conservatism -- the depths of which Glenn Greenwald, Thom Hartman (Air America), John Dean and others carefully explain -- but want to deny that they are doing it. We should not take a nihilistic approach that this is what is always done. This is akin to saying we all sin, so let's not focus on the murderers. Thank goodness we have divided government again. Maybe, we can divided government where one side isn't so bad.

[Gonzales adviser Monica Goodling said she would invoke her Fifth Amendment right against self-incrimination rather than appear before congressional committees. Talking Points Memo has a tidbit noting that she has some concerns though the talking point on the left seems to be that it is just to cover the administration's ass. Another tidbit is that she is a graduate of Pat Robertson's university. One of the evangelistic minions in D.C. ... see the book I reviewed recently.]

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* He argues, truthfully but only halfway, that:

Is John Edwards really a better candidate for president than Hillary Clinton because he's apologized for initially supporting the Iraq war, while she has not? I don't think so. Public contrition in these circumstances is just an emotion-laden distraction from meaningful inquiry into exactly why each candidate supported the war, when each candidate recognized his or her error, and what policies each would pursue to ameliorate the consequences of the mistakes already made.

True enough. And, that error in judgement -- he was on the front lines with Joe Lieberman -- rankles. But, I think these questions have been at least partially addressed. The fact that they need to be does not erase the fact that HC has not answered them any more ideally. Anyway, truthfully expressed -- and, yes, I trust his integrity -- contrition of this sort does matter. The cynicism it brings, justly so, should not erase this fact. Nor its empty use by Bushies. Finally, he did not just apologize ... he bluntly admitting he was wrong. No "mistakes were made." "I made a mistake."

Thus, Lazarus at least partially misses the point here.

Baseball

And Also: A Talking Points Memo noted more than once, if you expect the government to be a political cesspool, maybe you don't care. But, if you expect a bit more, you might care that someone ... a prosecutor, that is ... with good performance bona fides was removed to put a Rove guy in Arkansas during the '08 election cycle. With no confirmation required. That sort of thing might be deemed dubious.

A bit more on Pieces of April. One part that I liked was the life that we saw in the seedy looking Manhattan walk-up where much of the action (most of the rest was in the car of the family coming to town) took place. Many different sorts of families thriving inside the apartments therein. A lot to like about the movie, the commentary adding to the experience.*

The movie involved a young black sheep making a Thanksgiving meal for her family, she (and her father) realizing it might be the last of the whole family, the mom suffering from cancer. We learn that though the film is not about him/her exactly, the writer/director's own mother was dying from cancer as he developed the film. Likewise, the idea of the daughter needing to use the ovens of others in her building, after her own conked out, is based on a true story.

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Yes, it is baseball season. Now, some might be focusing on the latter days of basketball and hockey, or March madness. Not I. I am sympathetic to fans of local teams, and still recall rooting for the Knicks in the playoffs back when they had a credible shot (as I recall, this was 1999 or so). But, baseball and football are my games, and the Mets my primary team -- it helps that I don't get YES, the Yankee station, though yes, I live in the Bronx. This makes perfect sense, Dish Network, the network that allowed things to go so far, that CBS was not available for a couple days.

I have caught a few Spring Training games -- it has not be a great one. The norm early on was that they were ahead or in games early, but lost it late (and, not only the minor league and long shot to make team people blew the games, though often they were the ones that did). Likewise, I caught parts -- including yesterday -- of two blowouts ... against the Mets. The hitting doesn't quite to seem to be all there either, while Carlos Delgato was out for much of the time for one reason or the other (now, he is a new dad). The pitching race has really gone down to Pelfrey, the in-house guy who would have been the best bet without all the newbies competing for the shot.

Park pitched three perfect innings Saturday (after a bad performance), but was taken out (to the surprise of him and the announcers), it coming out that he did not make the grade. Maine and especially Perez had good springs, as did El Duque, in limited work. Ditto Glavine, the opening game starter. Bradford's likely replacement also did well. The other long shot starter is Aaron Sele, who I don't recall seeing, but his numbers appear to be mixed. One account suggests he will replace Oliver, the long relief man of last year. Sounds promising. Meanwhile, the Yanks have had problems, mainly ace Wang being declared unfit to start the season ... hamstring. Mussina apparently having scheduling problems (a bit confusing), this leaves Pavano as a top opening day starter option ...

After all, the other options is a rookie, a Japanese guy who never pitched in the MLB, and Andy Pettite, who has a bulky back. Hmmm ... can't they re-arrange Mussina's schedule somehow? BTW, Bernie Williams ala the Mets' manager after his final year, refused to play as a non-roster guy. Willy Randolph noted this made sense -- if it was time to go, why extend it? I think it was handled badly, if only because there were clearly hard feelings on Bernie's side ... he was a classy Yankee lifer, and deserved better.

As to the rest, I have not heard too much, but they seem to be doing well. Oh, can't wait to see the SNY (Mets) announcers as cartoons. Keith Hernandez is halfway there, isn't he?

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* Maybe, a bit on Ophelia as well. The book is sort of a fantasy in that it is an "idealized" view of Ophelia's life, including providing a happy ending. After all, Hamlet was a tragedy, so that didn't quite fit there. Surely, this does not mean everything is happy-go-lucky, surely not given the tragic events around her, but she does come off as a nice little heroine.

Thus, she becomes quite the pharmacist/healer. Still, there are a few moments in particular where she grows, including where her immaturity peeks out, that suggest some of the charms of the work. And, it's an enjoyable book, with a page turning flavor that recommends it. Just noting it is a genre sort of thing, nothing that surprising ... nothing wrong with that per se, and readers generally often expect it as well.

Animal News

And Also: Listening to the commentary track on the Pieces of April DVD. Interesting; good movie too. Likewise, I mostly liked Ophelia by Lisa Klein, a view of "Hamlet" from her point of view. Nice voice and sense of place, including a convent, but the last third probably goes too long. Still, good reading for teens, and adults too.

It was unclear how many deaths would eventually be linked to the "cuts and gravy" style food produced by Menu Foods, but scientists said Friday they expected more would be announced.

The substance in the food was identified as aminopterin, a cancer drug that once was used to induce abortions in the United States and is still used to kill rats in some other countries, state Agriculture Commissioner Patrick Hooker said.

The federal government prohibits using aminopterin for killing rodents in the U.S. State officials would not speculate on how the poison got into the pet food, but said no criminal investigations had been launched.

-- AOL News

This is a troubling case, hitting to the heart of pet owners and animal lovers. As with Fast Food Nation, it also highlights the importance of regulation, which surely does not stop all harms, but does help. To take a turn of phrase, "lax regulation has consequences," and I rather not have people like the current bunch who surely are more on that side of the line than many possible alternatives. Also, if criminal, why no criminal investigation? Are such "accidental" deaths/harms, often involving humans too, not really to be taken seriously?*

I first heard about the cute baby polar bear on the often informative news summary bits on the "Rachel Maddow Show" (Air America), saving cute animals sure to tug heartstrings. But, why of not so cute animals? And, what of the aftermath, after we say our "oohs?" Or, after someone says "Save the Polar Bears, Kill the Polar Bear!!!" as proof animal rights sorts are nuts? From AOL News:

Albrecht told The Associated Press his beliefs were more nuanced than reported by Bild, though he applauded the debate the article had started.

He explained that though he thought it was wrong of the zoo to have saved the cub's life, now that the bear can live on his own, it would be equally wrong to kill him.

"If a polar bear mother rejected the baby, then I believe the zoo must follow the instincts of nature," Albrecht said. "In the wild, it would have been left to die."

The German animal rights organization "Four Paws" argued along similar lines, saying it would not be right to punish the cub for a bad decision made by the zoo.

Other activists have also argued that current treatment of the cub is inhumane and could lead to future difficulties interacting with fellow polar bears.

"They cannot domesticate a wild animal," Ruediger Schmiedel, head of the Foundation for Bears, told Der Spiegel weekly in its Monday edition.

Albrecht cited a similar case of a baby sloth bear that was abandoned by its mother last December in the Leipzig city zoo and killed by lethal injection, rather than being kept alive by humans.

But Knut belongs to the Berlin Zoo, and their veterinarian Andre Schuele, charged with caring for him, disagrees.

"These criticisms make me angry, but you can't take them so seriously," Andre Schuele said. "Polar bears live alone in the wild; I see no logical reason why this bear should be killed."

Schuele also argued that given the increased rarity of polar bears in the wild, it makes sense to keep them alive in captivity so that they can be bred.

"Polar bears are under threat of extinction, and if we feed the bear with a bottle, it has a good chance of growing up and perhaps becoming attractive as a stud for other zoos," Schuele said.

It's actually not a simple matter. Raising animals in captivity is surely not a guilt free enterprise with no problems. "Wild animals" in other words very well might not be best served by living in cages and raised by humans. I'm not sure how we "save" things by raising them in artificial conditions. This might work on some level, but there very well can be problems, especially with certain species. It is especially troubling if they don't have their mother to ease the way.

I know some critics would be wary about our trying to interfere with nature in some other ways, maybe even being a critic of Al Gore (I like him, and it's trivial, but yeah, he did gain some weight). The fact we are dealing with a zoo animal to begin with makes it different than it might be in other cases, but the matter is not as simple as some make it out to be.

Still, as Rachel noted, killing animals might not be the best way for animal rights groups to get donations.

[Lest I leave it at that, some environmental/animal sorts do respect a sort of "circle of life" approach that results in deaths of animals. They aren't just for saving individual animals, which is simply unworkable in the aggregate. I'm not a big fan of hunting and the like in the promotion of such ends, but it is worth thinking about as a general principle.]

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*Also from the same source:

Experts advise owners to call their veterinarian if a pet has eaten recalled food and shows symptoms of possible kidney failure. An animal could be in trouble if it:

· Stops eating
· Appears tired and lifeless
· Seems excessively thirsty
· Urinates much more than usual
· Vomits
· Has diarrhea
· Seems to have abdominal pain

Todays News: Legal Cases

First off, a check of my posts over at the Slate fray showed a reply that re-considered a strong disagreement with my stance on congressional subpoenas etc. here, thanking me for the discussion. I thought said person did not really respond to my arguments before, but perhaps it was in effect a matter of quick replies given shortness of time etc. I don't know, but appreciate my words had some effect. I do hope such fora, including my role in them, provide a useful discussion device that helps both sides.

Anyway, the top legal story in the NYT today might be one discussing the breadth of New York City's efforts to infiltrate and document possible protesters to the 2004 convention. I have on my wall a personal account printed in the NY Daily News from that time entitled "My 47 Hours in hell." It discusses the lousy conditions of the cells (ad hoc sorts of things at Pier 57) where protesters were held. First Amendment lawyer Floyd Abrams' book is but one source where we can understand how the First Amendment was threatened under "American's mayor," Rudy G. Things like that ... not the marriage biography of him and his wife ... is what should concern us. (Again, Rudy v. Hillary scares me.)

Seems that things are only somewhat better now ... a kinder and gentler sort of threat. One which some fear going near certain protests, since one is liable ... outside of "free speech zones" (look at the protesters! oh ... that one got too close to the cage line!) ... to be arrested. The article spells out the increased post-9/11 efforts of the city itself to keep track of possible harms from such events. I am sympathetic, up to a point, since we are dealing with an influx of people, a few of whom do want to commit civil disobedience. But, honestly, these are not the people I fear most these days. And, the efforts against them, including those infamous "files" on people who did nothing illegal, are quite troubling.*

Another important article concerned an upcoming case involving home health workers paid through an agency. The matter involves a statutory interpretation -- again shared by the NY mayor -- that holds that such people are not covered by overtime rules. The concern is that there are only a limited amount of funds available for such workers, often paid by public funds, though the case would not involve those not paid through agencies. These -- like babysitters and the like -- would still not be covered.

The matter eventually goes to statutory interpretation, but it still underlines the number of important non-constitutional issues the federal courts must handle. Likewise, it seems patently unfair that such individuals would not obtain such benefits. As someone who has worked through agencies myself, and obtained time and a half for jobs much less stressful than this type of work, it surely seems a tad bit ridiculous. But, many will tell you that current policies do not properly honor such people, many who are pushed into the work given stricter welfare rules. Like "ordinary" sorts whose spouses suffer thru cancer, their options are less ideal than the likes of the Edwards.

A final story is more of a special interest sort of thing, involving an adult incest prosecution in Ohio. The NYT also covered this story, but this link provides a good summary as well. As the one dissenting vote in the ruling assumed, the ascertained interest of familial unity is not really why this prosecutorial path was taken. As is usual in such "consensual" sex cases (see also fornication, sodomy), it was used "as a means to prosecute a strict-liability, slam-dunk sex offense that does not allow the defendant to present any evidence regarding the consent of the victim."

The woman accused her stepfather (22/44) of rape, but it would have been somewhat hard to prove, so they took this path. The man got a somewhat lax sentence, but also the mark of Cain: "sentenced to 120 days in jail, three years of community control, 250 hours of community service and was designated a sexual offender." He made a statutory and constitutional change. The dissent (it was 6-1) focused on the former, arguing "Imbued in [the statute] is the notion of parental, or quasi-parental, responsibility and control over the victim."

One can imagine, especially with difference in ages between spouses, where the two individuals are about the same age. Is this the intent of such statutes? In the past, probably, though this one was a more modern version updating earlier regulations. I think there is a valid case, not that Lawrence v. Texas would necessarily take you that far given its "rational basis" language would necessarily take you there (its slam dunk nature makes it harder to apply in trickier cases, as it should, but see the sex toy case not covered). This is a closer case, surely, even if the rape allegation technically is not at issue.

"Incest" is one of the bugaboos raised when same sex relationships arise, but the word simply is not a slam dunk scare tactic. This is seen by looking at the breadth of its use in the Bible as well as the second cousin marriage of a top presidential candidate. The majority here noted that: ""traditional family unit has become less and less traditional, * * * the legislature wisely recognized that the parental role can be assumed by persons other than biological parents, and that sexual conduct by someone assuming that role can be just as damaging to a child." But, this surely can be taken only so far, especially when "child" means someone twenty-two.

I think the authorities should have been forced to try it as a rape case. Yes, as the majority noted, he could have divorced his wife and then had a chance to have these relations. (You know, relations without relationship.) It is not exactly a major civil liberty violation or anything (the tragic fire in the Bronx, killing several children, also raised another matter -- the Mali immigrants were practicing polygamy), but it is troubling enough to be worthy of note.

But, as a legal analyst noted in the NYT, we probably shouldn't worry too much until it is used in a clearly consensual case ... still, that assumes guilt. Is that kosher as well?

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* The article online had various links, but apparently ones often automatically generated. Thus, the link to "Under a United States Supreme Court ruling, undercover surveillance of political groups is generally legal" did not go to the ruling itself, but to the paper's general coverage on the Court.

I emailed them suggesting this was problematic. I wanted to know the name of the ruling itself; ditto a case about incest. [STATE OF OHIO, APPELLEE, v. LOWE.] I found simple emails of this sort often received nice replies, though don't quite know how useful they were in the long run.

Big Picture on Purge

And Also: I listened to a CD-ROM recording of For Love of the Game by Michael Shaara, which was later made into a decent, but overstuffed, movie starring Kevin Costner. The book in fact was found in draft form after the author died, and was almost a novella (150 pages). It was therefore more of a condensed work than the film, and mostly better for it. Ruminations on life and baseball on the final day of a pitcher's career. Good prologue to the season.

Griles, the former deputy Interior secretary, pleaded guilty in U.S. District Court in Washington today to lying to Senate investigators when he was asked about the nature of his relationship with disgraced lobbyist Jack Abramoff, who was trying to help clients on matters before the Interior Department. Abramoff, in prison after pleading guilty to felony charges, has been aiding a wider investigation that has netted eight convictions or plea deals for the Justice Department.

A transcript of the Senate interview is what helped get Griles in trouble. (See the plea agreement.) Former White House aide David Safavian found himself in similar hot water, and was convicted earlier this year on charges that included lying to Senate investigators.

-- Wall Street Journal Blog [h/t TPM]

See also, Joe Conason, who notes that we simply can not trust Karl Rove. We really have not reason to trust the Bush Administration generally, and that is using the "politicians are be taken with a grain of salt liable to be bad for your health" standard. Thus, some of the critics of the criticism have a naive or "give me a break" flavor to them. As I noted earlier, they simply don't want to face facts. Reality based community anyone?

This begins with the smoking gun of that Patriot Act provision that in effect made this sort of thing seem possible. Actual investigation shows that the Congress and public were misinformed about various details. This leads even conservative knee-jerk types like Charles Krauthammer to want Alberto Gone-zo for negilence reasons alone. But, only the willingly stupid see not nefarious tendencies here. Surely, not a group usually a bit cynical about human nature. Admit -- as some conservative sorts as the Weekly Standard do -- that this bunch simply do not have a true courage of convictions. They rather not bluntly express their wishes. This requires bullshitting the public, to put it mildly.

Anyway, executive privilege -- at best implied in the Constitution -- is essential, but the clear matter of the appointment power is not? Or not committing illegal acts:

But that opens the way for Congress to ask for a special prosecutor to look into allegations that members of the Administration violated the law because they (1) lied to Congress, (2) tampered with ongoing criminal investigations, (3) tried to remove prosecutors who sought to investigate Republican Congressmen or White House friends for corruption, or (4) tried to remove prosecutors refused to generate trumped up charges against Democrats.

This is important, especially when there is a lot there to refute the "it's all political b.s." party, including those who must continue to hang on to the "well, they are bad and all, but just not as bad as the liberals make them out to be" life line. This sort of thing allows them to support their enablers, who allegedly are really the good ones, notwithstanding a few bad apples or such. But, perhaps the problem is deeper, huh? Suffice to say that even if there was no legal wrongdoing, all is not suddenly well. There is a reason (related in part to the need for confirmation, surely furthered by it) this sort of thing never really happened before. The talking point that it did notwithstanding.

Congressional oversight, so notes the Department of State, does have that end. But, we expect a bit more from our leaders than avoiding criminality. I would hope so. The fact they can politicize the justice department -- which in various cases is a dubious matter, surely given the presidential duty to enforce the laws, which has some meaning other than promoting neoconservative philosophy -- doesn't make it proper. They are allegedly public officials (see Nat's comment). The serve the public. Us.

If they can't defend themselves, don't use us (like those soldier props) as cover. Speaking of the "public interest" in keeping their lies secret. U.S. v. Nixon spoke of the interests of justice trumping absolute executive privilege. This seems to temper a comment in a D.C. ruling the year before, Senate Select Committee on Presidential Campaign Activities v. Nixon, that "concluded that presidential conversations are 'presumptively privileged,' even from the limited intrusion represented by in camera examination of the conversations by a court" even if in camera hearings are involved.

The ruling is important since it is one of the few dealing with congressional subpoenas of executive materials. It was rejected in that case, but the Nixon ruling is but one reason that it doesn't really help the executive. The test: "[W]e think the sufficiency of the Committee's showing must depend solely on whether the subpoenaed evidence is demonstrably critical to the responsible fulfillment of the Committee's functions." And, the material appeared to be held by another committee, by that time preparing impeachment charges. It bears noting that one of the judges thought the whole matter was a political question ... not suitable for the courts.

The evidence sought is not held elsewhere. There is no ongoing judicial process -- as there -- that complicated matters. Likewise, the matters at hand are in part separate from legal concerns per se, but surely "critical to the responsible fulfillment of the [Congress'] functions," including determining if they were lied too or appointment rules were played. In fact, the investigation has led to a movement to require confirmation of mid-term replacements. The ability of a Senate minority to block legislation underlines that this sometimes requires crystal clear evidence to push recalcitrant senators.

The bigger picture is that the purge opened up to public view, like the Plame situation, a crystal clear case of the level to which the executive department has sunk. Life will always leave a bit of deniability, especially for those who want to be misled, but only so much. Ultimately, it is about the sort of government we want to have. To the extend that this is not simply "legal" but "political," what of it? Is not that the nature of self-government?

Who is truly against American values?

Congressional Power

And Also: I noted that this was a test -- the bottom line had to be at least funding with conditions. This was done. Some libs in the House care not to compromise ... but there was just enough room. Bush sees conditions as impossible, so will veto -- blaming Congress for funding the f-ing war for some more time. I respect both groups of Dems, but the President (with soldiers as props at his press conference) deserves just scorn.

[To be read with this thread referenced at the top of the last entry.]

In 1927, the Supreme Court noted:

But there is no provision expressly investing either house with power to make investigations and exact testimony, to the end that it may exercise its legislative function advisedly and effectively. So the question arises whether this power is so far incidental to the legislative function as to be implied.

In actual legislative practice, power to seizure needed information by such means has long been treated as an attribute of the power to legislate. It was so regarded in the British Parliament and in the colonial Legislatures before the American Revolution, and a like view has prevailed and been carried into effect in both houses of Congress and in most of the state Legislatures.

This power was both asserted and exerted by the House of Representatives in 1792, when it appointed a select committee to inquire into the St. Clair expedition and authorized the committee to send for necessary persons, papers and records. Mr. Madison, who had taken an important part in framing the Constitution only five years before, and four of his associates in that work, were members of the House of Representatives at the time, and all voted for the inquiry.

It is questioned however by some because a "subpoena" has a certain judicial flavor, so why not require a judicial intervention? But, so does "testimony," but one testifies under oath/affirmation to Congress as well with no judge overseeing the immediate questioning. The word here means submission of material or testimony under penalty, in particular to Congress.

The Federalist Papers noted that our system is not some artificial set of powers with no overlap. Thus, Congress deals with military regulations, limiting executive discretion in the process in a key 'executive' matter. A judge has power over his/her court, contempt liable to put you in jail, even if not executive official charges you. And, executives make many rules w/o being deemed 'legislators.'

But, even here there are checks. Congress cannot require any testimony under the sun. In reality, this often a matter of political judgment -- though some (one citation of 'bear biting' or the like) suddenly don't like politics when it might harm their side.

But, the courts have repeatedly noted some limits. For instance, a 19th Century case ... seen now as an early security of privacy ... held Congress could not investigate (by subpoena) purely private matters. This was deemed a judicial function. It had to be 'legislative.' Likewise, during the Red Scare, the courts protected privacy and other rights from congressional overreaching.

We deal with public matters here. Thus, Charles Krauthammer - a conservative columnist -- suggests Alberto Gonzalez must go because he negligently let an underlining promote untruths to Congress (this misleading is criminal btw). The executive executes congressional laws. Congress funds it. It handles appointments. It has the ultimate oversight power of impeachment, which often leads to pressure/firing, thus impeachment is a rarity, like the death penalty of sorts.

But, what of executive privilege? First off, this is an implied power, but since congressional investigatory power is as well, that is not enough to damn it. It does seem that the two are not quite the same, since the very idea that material -- even quite relevant to congressional duties -- cannot even be shown is a quite weighty claim. One that even the press does not get to make completely to protect a source. The Congress investigates largely in public. Secrecy can be dangerous.

It has its place, so executive privilege is respected, though one might find it relevant that Clinton opened up his staff to congressional investigations. Others -- see Center for American Progress etc. -- note it is not a rare practice as Bush claims. And, executive privilege is surely not absolute. Per U.S. v. Nixon:

The President's need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets,

Now, the case involved judicial process, but the basic sentiment expressed can apply as well to the legislative branch. In our system, there are many ways to secure the public interest, including our representatives. Thus, the ruling at once pt noted:

In designing the structure of our Government and dividing and allocating the sovereign power among three co-equal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence.

While the Constitution diffuses power the better to secure liberty, it also contemplate that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.

So a balance applies. Such balance again often works outside of the courts with various realities. One reality is that the executive, esp. certain individuals, warrant less respect and trust by this point. Let's say Karl Rove ... whose trouble telling the truth is known. This 'reality' is also expressed thru the political process. "Election has consequences." This includes actual investigations of possible and clear wrongdoing. If strictness is threatened, whose fault is it really?

Finally, back to the subpoena matter. I'm not sure where the demand for judicial subpoenas in this legislative arena will take you. First off, if the President rejects the Congress' demands, it can go to the courts. Second, what test would be required? I assume relevancy to a legislative purpose. A 'crime' is not the test.

It's clearly there, from fears executive officials lied to Congress on down. So, though long practice shows the Congress has the right to subpoena executive officials, court process seems almost pro forma here. So, the executive is left with absolutism and fictional appeals to the unitary executive as some defense of the public good. Yeah, that has met the test of time, hasn't it?

But, fiction has found its place here. Claims that "Clinton did it too," "obviously no crime occurred," "it's all political" (politics a bad word, of course), "nothing special happened here," "no crime happened so what's the deal?" etc. Fiction has its place. Not sure if it's here.

Elizabeth Edwards: Saving Graces

And Also: My thoughts on the "Bong Hits 4 Jesus" case and pro and con stances for the school. And, the constitutional issues to congressional subpoenas v. executive privilege. As usual, John Dean has some good stuff to say. Clearly, see my thread, there are dissents. But, ditto, I just don't think the strongest ones credible. Notice the refusal to focus on the wrongdoing of the President, focusing on fictional absolutism. Annoying.

I recently discussed Elizabeth Edwards' book Saving Graces, a biography that discusses her life with special focus on the '04 campaign, losing her teenage son to a car accident, and dealing with cancer. She found out about it right before the election though the public learnt about it only afterwards. Elizabeth Edwards has received much respect for her efforts in all these causes, including the openness she shows on blogs.

She is smart and passionate, showing the great pain she suffered after her son's death in a public way, and clearly has some of the missionary zeal of her husband. As well as the optimism and strength, if not more ... more than one said they want HER to be President. So, it was not too surprising -- if moving/impressive -- how the couple announced her new diagnosis of incurable cancer. How else to do so but together, staying strong, and continuing their work? The message to supporters:

Elizabeth and I are so grateful for your prayers and wishes. Your support means a great deal to us during this difficult time.

As you may have heard, yesterday we found out that Elizabeth's breast cancer is back, but confined mainly to her bones. Although this isn't the news we wanted to hear, we are very optimistic. Having been through many struggles together in the past, we know that the key is to keep your head up, keep moving and be strong. And that's exactly what we intend to do.

Elizabeth and I have been married for nearly 30 years and we will be in this every step of the way together. We will keep a positive attitude and always look for the silver lining—that's what we do.

Although the cancer is no longer curable, it is treatable, and many patients in similar circumstances have lived full, energetic lives. We expect nothing less for Elizabeth. She expects to do all the things next week that she did last week.

Our campaign goes on and it goes on strongly. We are so proud of the campaign we are running—a campaign based on ideas and reaching out to people. This campaign is not about me or Elizabeth—it's about all the people we have met these past few years and people like them all across America and the world—people worried about feeding and clothing their kids; people without health care; people facing hardships overseas.

Both of us are committed to this campaign. We're committed to this cause and we're committed to changing this country we love so much.

Thank you again for your support and for standing with us.

After Dean stepped down in '04, I noted on these pages that I symbolically voted for Edwards, not being a big fan of "front runner" John Kerry (HC now is given this title, with all its self-fulfilling prophecy flavor). I have spoken as well of my yes distaste with the idea of HC running, since I think it divisive and find her too conservative. Obama (I have taken to calling the black/white cookies I'm eating for snacks this week "Obama cookies") seems a bit too green, though I'm willing to shall we say have some faith in the man. So, I think Edwards stands out now as well.

Good luck and continue your saving graces, Mr. and Mrs. Edwards.

How the Mighty Fail To Meet the Grade

And Also: To add to my movie review, let me focus particularly on the poverty and parents. Major films do not usually highlight poverty, though one in five of the nation or such live under the poverty line (many more families struggle). The boy's need to wear his sister's hand-me down sneakers is an early reminder of the fact, seen in quite personal tones given the status nature of such things. Likewise, the film -- for adults particularly -- provide a sympathetic look at struggling parents, even if the father does not express his love for his son quite as much as the son clearly craves.

The veteran legal analyst at SCOTUSBlog, Lyle Denniston was on Q&A (C-SPAN) yesterday. He noted his distaste of the press coverage (all those 24hr klieg lights) of Bush v. Gore. Then, without prompting, he later notes that he is a rarity among progressives in agreeing with the opinion. There was a "crisis" and they had to deal with it. Tellingly, in that answer, he didn't defend the reasoning. Well, this allows me to have some iota of respect for the man (a good reporter) on the point. I had to shut it off though -- that matter simply still rankles. You know with the whole cheapening of democracy and all. It also is simple stupidity as a matter of constitutional law and reality.

We current have to live under a system wherein a minority in the Senate holds back the will of not only a majority of Congress, but surely in various respects, the majority of the population at large. We accept this system as an outgrowth, one with positives, of our constitutional system. This system includes respect for federalism, a key example being two senators from each state, senators that are treated with special respect vis-a-vis members of the House of Representatives partially for just that reason. There is another aspect of federalism. It is a largely local focus when it comes to presidential electors -- they vote per state delegation, and the Electoral College itself furthers federalism. This is partially why we are supposed to accept the (official) results of 2000, even though the winner of the popular vote has to promote good policy in the private sector.

This local focus, as is common, is selectively honored. Thus, when the Florida Supreme Court required a recount and special care respecting counting votes, people cried bloody murder. Well, certain people. Likewise, usually, such people tell us "progressives" that life is messy. The courts cannot deal with every wrong. So, yeah, sometimes local action is messy, but so it goes. Until such messiness might harm their chance of getting their minority vote getter into office. Then, of course, it is a "crisis." The fact blacks were clearly denied the vote was not a "crisis," apparently. After all, the Supreme Court didn't handle that problem. They surely knew about it -- Justice Ginsburg got in trouble with Scalia by even thinking about referencing the matter.

[Talking about ridiculous, consider the trope that the ruling was in fact 7-2. This is amazing, since Justice Breyer joined Stevens' dissenting opinion! Likewise, a professor who often writes (sympathetically) about abortion rights assumed Justice White supported the right of unmarried people to use contraceptives in a ruling decided shortly before Roe. He did not. He expressly said the matter was not in his opinion necessary to be decided at the end of his concurring opinion in Eisenstadt v. Baird.]

So, I cry b.s. One pet peeve of mine is where professionals who should know better promote something that I know is simply untrue. I find such people embarrassments, especially given they honestly do not respect their craft. This is patently unethical and underlines the alleged difference between a job and a profession -- the latter warrants more respect as well as more responsibility. I can accept ideological differences up to a point, but shoddy reasoning drives me nuts. I mean you too "Douglas W. Kmiec[,] Chair and professor of constitutional law at Pepperdine University ...also the former constitutional legal counsel to Presidents Reagan and George H. W. Bush."

So sorry Doug, not only does your column promote ignorance by implying the current practice matches historical norms, but comments like "the whine of innuendo" works better when the facts are not against you. Ideological firings like these have been rare in current years, and yes, there is clear evidence of executive skulduggery. Boilerplate about executive discretion over firing amounts to trolling not much higher than found on message boards. As a commentator in NYT noted yesterday (h/t Today's Papers in Slate, Monday edition), you deserve a "F."

I slip too, but I am but an educated civilian, not a supposed expert in the field being discussed.

Bridge to Terabithia

And Also: Daily Kos has a good diary on a NYT piece today that seemed to me a bit too supportive of the "failure to fight voter fraud" reason given in removing one of the prosecutors. That is, it seems on some level to take it at face value without context. Context is on some level in the eye of the beholder, but this usually is a bad policy, especially with this bunch.

They are trees, members of the Sumac family, related to the pistachio, cashew, mango and magnolia. A terebinth can live for over a thousand years and grow to more than 20 feet in diameter. Such an impressive tree would certainly be a landmark and a grove of them would provide wonderful shelter, yet Scripture associate them with sacred places. ...

The Terebinth Tree was sacred to the ancient Persians - a healing tree. ...

I thought I'd made up "Terabithia". I realized when the book was nearly done, that there is an island in "The Voyage of the Dawn Treader" by C. S. Lewis called Terebinthia. I'm sure I borrowed that unconsciously, but, then, so would Leslie who loved the Chronicles of Narnia. And, by the way, Lewis got Terebinthia from the Biblical terebinth tree, so it wasn't original with him either.

Bridge to Terabithia is based on a beloved book [I have not read the book, but will now] for children/young adults (the two key characters are in fifth grade), itself based on true events -- events of the author's child (and his friend). A companion book to the movie suggests there were various overlaps, but it is not just a quasi-biography. The final link's FAQ page also notes another book by the author parallels her experience as a foster mother.

This adds some added flavor, but the book/movie is beloved in part since it speaks of truths such as the importance of friendship, the troubles of growing up (especially in poverty and being different), the power of imagination, and dealing with tragedy. One of the hardest things can be growing up, especially in the Hobbesian world known as school. It is useful to have self-confidence, support, and solidarity. And, some imagination. Imagination is key is such cases, since it provides the possibility of another way. Likewise, as the boy notes, reality isn't always so great.

The making of good entertainment is not only good performances/writing, but many good parts. The film has this as well. This includes very good performances by a talented supporting cast, including those who played the parents, and the two teachers ... not just Zooey Deschanel (what boy wouldn't have a crush on her?), but also another one who has a side that doesn't come out until later. Bringing the children's imagination to life is nicely done, not too obtrusively, especially as a story is read and the boy cannot help visualizing it in his head.

And, the movie addresses belief and religion,* which I generally respect since it one thing that too often is pushed aside. Overall, I guess, I respect its values. A well done and touching film. Much recommended, even for older teens and adults.

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* The movie doesn't note where the girl gets the name, and the author notes she herself didn't consciously use it because of the C.S. Lewis reference. It is a bit ironic, given the girl's skepticism, that she used a place favored by Lewis ... he of Christian faith. But, on another level, quite logical.

Odds and Ends

And Also: I have been listening to Rachel Maddow of late since I have not been home (where the reception on my radio stinks at that time -- 1600AM just doesn't do it) 6-8PM these days. She is a good -- smart with a funny side (Kent Jones supplies news, including some strange news, and half the times cracks her up ... she has a loud laugh). She deserved getting out of her 5AM hole, after losing her 9-12AM slot to Jerry Springer (who's gone).

First, Happy St. Patrick's Day. Tomorrow is JP Day. This is the day for Irish/Italian mutts, given Monday is St. Joseph's Day, a patron saint of Italians. I am named after my paternal Irish grandfather ... though my mom (the corn beef and cabbage aside) made it clear she is an "American." Her Irish maiden name notwithstanding. As to religion, a reply to my book review below is on point -- it is how you practice it. Hilzoy discussed the matter in an interesting fashion. A taste:

What is a problem is to have someone in office who claims to care only about what God thinks and how God will judge him, but who doesn't actually take this idea seriously. Someone like that will use the thought that only God's opinion matters simply to dismiss human criticism, without actually worrying about God. He will regard God as a convenient excuse, someone he can assume agrees with him. But to believe in a God who is, in fact, you, or who is so unreal to you that you don't need to bother taking His views seriously, is not faith; it is the opposite of faith.

There is also the issue of guns. Salon had a piece by a hunter responding to the nature/hunter friendly writer that ... up to a point (his wuss retraction has gotten less play) ... got in trouble saying assault weapons don't belong in hunting. I am no fan of the "sport," more in the school addressed by the person referenced here, but the governor of Montana is just one person that underlines that it can very well go hand in hand with environmentalism. Steven Rinella notes that "well regulated" fits in well here, extremists on the other side notwithstanding:

My point is that it's not firearms, or certain types of firearms, that might threaten hunting today; it's the regulations that govern the use of all weapons on our remaining wild lands, whether that weapon is a bow-and-arrow in the hands of a Vermont poacher killing black bears for the illegal market in gall bladder, or a bulldozer in the hands of a Montana developer selling inter-mountain trophy estates with names like Elk Meadows, or a roll of 10-foot fence in the hands of yet another Texan who's looking to enclose a herd of imported exotic species on his own private hunting reserve.

Wildlife management is one of those important things where there is an opening for some across ideological lines unity. Like religion, more than some might think.

Medicinal Marijuana Returns To Court

And Also: Today was Valerie Plame's day in front of Congress, or rather, Waxman's oversight committee. Just one tidbit -- the CIA's official rejection of the lie that she wasn't covert. Oh, and the fact the matter was never officially investigated by the security office tasked to care. Yeah, this administration is soooo concerned about protecting our secrets.

Gov. George Bush said he backs a state's right to decide whether to allow medical use of marijuana, a position that puts him sharply at odds with Republicans on Capitol Hill. "I believe each state can choose that decision as they so choose," the governor said recently in Seattle in response to a reporter's question.

- 1999 news story, cited by the concurrence in U.S. v. Oakland Cannabis Buyers' Cooperative

Well, he also said that if there was a person working for him that broke the law ... suffice to say, that his administration joined the Clintonian effort against the California policy of allowing medicinal use by prescription. A choice chosen by that state's people by a similar means as obtaining the current governor -- popular referendum. The earlier challenge rejected a necessity defense made by distributors with three justices (led by Stevens) rejecting the majority's noises against any necessity defense not expressly found in the statute.

The Supremes rejected a Commerce Clause challenge to Bush's move against the state's policy, one shared in some fashion by many more states (my own was thinking of experimenting, so to speak, but the SC ruling ended things). Ironically, the majority opinion (Stevens) was more sympathetic than the minority (O'Connor) to allowing it to go on. Surely, the two liberal judges who heard the case on remand was as well. If they could, they surely would have granted relief. The "necessity" of it all was cited in a heart wrenching fashion:

If Raich obeys the Controlled Substances Act she will have to endure intolerable pain including severe chronic pain in her face and jaw muscles due to temporomandibular joint dysfunction and bruxism, severe chronic pain and chronic burning from fibromyalgia that forces her to be flat on her back for days, excruciating pain from non-epileptic seizures, heavy bleeding and severely painful menstrual periods due to a uterine fibroid tumor, and acute weight loss resulting possibly in death due to a life-threatening wasting disorder.

This litany of ailments makes no mention of the fact that Raich was confined to a wheelchair before she found effective pain management in marijuana, which restored her ability to walk. The seriousness of her conditions cannot be overemphasized: in 1997, the extreme physical and psychological pain led Raich to attempt suicide. We are mindful that “extreme pain totally occupies the psychic world” and that “in serious pain the claims of the body utterly nullify the claims of the world.” ... Raich has shown remarkable fortitude in pursuing this action to vindicate the rights of the infirm despite her precarious physical condition.

One of her lawyers discusses things here. Anyway, the ruling also didn't quite buy the possibility offered that she might be able to get the drug legally under some federal program: "The program is highly restricted and has not accepted new medical marijuana patients since 1992." Nonetheless, it felt that if a necessity defense is made -- and though one wonders how she would get the stuff without distribution, such a "last resort" method is much more justifiable in her case than for a seller -- an actual prosecution is where to make it. There was also always the chance some other means of pain relief would be possibility before then. The option of Marinol is usually tossed out there, though those in the know suggest it is a poor alternative.

Overall, I don't think the majority (a judge dissented as to the breadth of the necessity defense discussion) really had its heart in such dodges. And, this sounds a bit like not finding standing for birth control clinics in Poe -- the law made it impracticable to start them, so prosecution was not necessity to do the job. Same here. In fact, the ruling tossed in a suggestion that conviction alone might not be what is needed for a "necessity defense." A simply arrest and denial of pain relief resources might as well. And so forth.

With the Commerce Clause argument -- even local use held to affect interstate commerce in marijuana -- failing, that left a liberty interest. This was surely a longshot, and the appellate judges made that clear the first time around. The Ninth Circuit tried a similar route with euthanasia, but the Supremes were wary. [One wonders if even a necessity defense would stand-up, especially with Kennedy's known annoyance for drug claims, see his mention of "druggie schools" at orals for a school drug testing case.] Though a majority recognized some right to refuse treatment and alleviate with pain (notable here), the Court used the ruling to send one of their "don't go too far with substantive due process" messages.

We agree with Raich that medical and conventional wisdom that recognizes the use of marijuana for medical purposes is gaining traction in the law as well. But that legal recognition has not yet reached the point where a conclusion can be drawn that the right to use medical marijuana is “fundamental” and “implicit in the concept of ordered liberty.” ... For now, federal law is blind to the wisdom of a future day when the right to use medical marijuana to alleviate excruciating pain may be deemed fundamental.

So said the judges here with a nod to Justice Kennedy's comments in Lawrence v. Texas about the changing nature of due process as society's opinions change and things developed in state legislatures and such (Brennan looked down, smiled and gave him a "thanks pal"). And, they were pretty much right as a matter of precedent to say as much though it seems rather paltry to view the right here as something akin to the "right to use marijuana" (Lawrence didn't interpret things so narrowly ... it wasn't a right to "have oral sex," but there was more precedent for the sexual privacy there as well). Surely, the Supremes would not likely accept the ruling otherwise ... and the necessity argument was left open as was one made too late in the game.

This is not to say things went as it should in an ideal world. The prosecution should not have gone on in the first place -- the states should have been allowed to work as laboratories here. Likewise, I think there is a right to alleviate pain in this fashion, and the ruling admitted some cases in some sense suggested as much. But, the Supremes cautioned against open-ended rights of that sort ... the euthanasia case a sort of warning. Still, again, a majority among the concurrences seemed to accept rights respecting "personal dignity, medical treatment, and freedom from state inflicted pain." Of course, O'Connor isn't around any more. Still:

Were the legal circumstances different--for example, were state law to prevent the provision of palliative care, including the administration of drugs as needed to avoid pain at the end of life--then the law's impact upon serious and otherwise unavoidable physical pain (accompanying death) would be more directly at issue. And as Justice O'Connor suggests, the Court might have to revisit its conclusions in these cases.

Sounds applicable here at least. There is still the necessity defense for this individual plaintiff, but what of the others? More victims of the "drug war."

Erwin Chemerinsky vs. Second Amendment Ruling

And Also: One last storm before Spring over here -- no problemo, I say.

Erwin Chemerinsky, the liberal law professor who had the responsibility to argue against the Texas Ten Commandments display as designated counsel a few years back, had a fairly predictable response to the D.C. gun ruling. [H/t ScotusBlog.] He surely didn't much care for it, but tried to take a calm approach to the matter. First, he summarized Supreme Court precedent -- without noting that if he was right, the D.C. court was simply wrong (unless the law changed since then, a claim not made), since it was an inferior court:

One approach, adopted by the Supreme Court in 1939 and by most federal courts of appeals, sees the Second Amendment as preventing Congress from regulating firearms in a manner that would keep states from adequately protecting themselves.

I'm not sure if that is exactly what U.S. v. Miller said. The case argued that the purpose of the amendment was to further the efficiency of the militia, particularly in its role for federal service. It noted that there was a sentiment against standing armies, and anyway, states could not constitutionally have "troops" (Art. I, sec. 10). Thus, it did have an instrumental flavor, too much of one actually, since some were led to believe there was no individual component to this "civil" approach. But, protection of the state is not the only purpose. Even Miller spoke of the fear of standing armies etc. The ruling in no fashion implied that states -- if it decided it didn't need a militia to "adequately protect themselves" -- could totally disarm. Such is what some latter day "collective rights" theorists suggest. They see the institution as obsolete.

Then, EC tries to go for an in between approach:

In other words, even if the D.C. Circuit is right in holding that the Second Amendment creates individual rights, that does not answer the question as to the level of scrutiny to be used in evaluating gun control laws. I believe that there is a strong argument that the regulation of guns should be treated the same as other regulation of property under modern constitutional law: The regulation should be allowed so long as it is rationally related to achieving a legitimate government purpose.

In a fashion, the Fifth Circuit -- which also recognized an individual right -- did something like this. It held that the limit respecting those blocked by a domestic protective order was "reasonable" -- thus the person could be disarmed in that instance. Simply put, this is a bit dubious, since the ruling spent some time discussing how the right was so important to individual liberty. If it exists, is it not fundamental? And, excuse me, the comparison to limits allowed in First Amendment cases (to which the ruling, though EC conveniently elides past the fact, compares Second Amendment cases) is misleading. Surely, no "rational related" test exists, at least when the core of free speech rights are threatened. Is not home ownership of a commonly used weapon as "core" as let's say reading romance novels?

And, the issue here is rather blatant -- the right to have a workable weapon in one's own home, one that is not akin to an "assault weapon," but traditionally used for personal defense. The ruling referenced various "reasonable" regulations. And, if we respect what exactly is at stake here -- being part of a militia that is much more regulated than those who speak -- many can be considered. But, if there is an individual right -- as he assumed for the sake of argument -- why exactly should it be only granted rational review? It is particularly expressed, unlike property rights (and given the privacy aspect, they too are given a higher test in select situations) as a general matter.

Nice try, but won't quite give you that cigar. The NYT editors also didn't care for the ruling. It didn't do a good job mentioning how exactly the minority dissented (does it really think the amendment doesn't apply at all to D.C. residents?). Also, again, you can regulate firearms any number of ways, including perhaps requiring handguns to have a trigger lock (if the owner could readily switch it off) or other safety devices without de facto totally banning workable ownership in one's home. Not that the law as written appears to have been too successful anyway -- gun bans of that sort have their problems in practice.

There is a middle ground. Knee-jerk denials or too clever by half avoidance jobs aside.

Common Good: Combined Effort

And Also: An emotional take on the prosecutor purge from a law student. Keep those values and that passion! Remember, Harriet Miers was deemed Supreme Court justice material.

The D.C. gun case underlines some rather usual confusion on the true complexity of the securing our liberty. There often tends to be an individual based focus on rights (e.g., individual rights alone clearly what "the people" in the Second Amendment references) and/or the courts, the legislature apparently a corrupt body best left to things like tax policy. And, "the people" themselves as an organized entity that is in some fashion "well regulated" to promote public good? Well ...

As noted in a link yesterday, I share the sentiment of many others that the Internet provides a fundamentally important resource, a virtual public forum, where the public comes to discuss public affairs. The fact a plurality can be dismissive of such a concept only underlines some have a retrograde understanding of reality. A problem that might have to be addressed one day if the question of bloggers as member of the press or those who use the net to petition the government etc. comes to a head. Thus, it troubled me that a means to provide information on a matter of public importance was blocked (limited time led me not to check how to unblock it ... also a concern for my privacy if I had to ask the clerk).

Of course, blogging provides a good means for the public to be informed of current events while interacting with those who provide it. Thus, even the "grey lady" provides blog links to articles etc. Another way for the public to serve their role as citizens is the jury. The Libby trial underlined the potential here. In fact, some took it as strange that they took their role so seriously. As one sympathetic essay noted: "In sum, this jury's diligence and inquisitiveness evidenced the kind of active learning and processing of information that, frankly, we probably see far too little of, from most juries."

I supplied a quote respecting the importance of not lying to Congress, our representatives, deemed a core means to secure our rights and welfare. Not just the courts. The executive, which Andrew Jackson noted is the one person voted for by the nation as a whole, also has a role. Separation of powers and the like play a factor as well. Thus, that essayist noted:

But the biggest objection to a pardon, to me, is the need for accountability. ... In a system of separation of powers, the last crime we should pardon is a conviction of an Executive official for committing a crime to protect a higher Executive official.

Apparently, "contrarian" Michael Kinsley disagrees at least in part, sharing some sympathy for conservative hacks like Charles Krauthammer who deemed a pardon (which would imply guilt ... let's paper over that, huh?) immediately worthy of editorial comment:

From the left - or at least from the contrarian center - Michael Kinsley in Time takes the view that it makes little sense for Libby to go to prison given that he was lying only to conceal journalistic anonymity, which may in itself have social value, and given that the Bush Administration has lied about worse things, and Libby shouldn't be a fall guy.

As the essayist noted:

There's a point at which this sort of contrarianism becomes too clever by half, however. Does Kinsley really think we should craft a perjury exemption for "lies that help journalists get sources," "lies that aren't as bad as some other lies," and "lies that aren't committed by the guy at the top"? As to the last two categories, we'd have to let an awful lot of mid-level mafia capos go free if the argument "I'm not as bad as the guy running the operation" were sufficient to justify a pardon.

MK -- like his sometimes co-conspirators at Slate -- has an annoying tendency to appear to just want to be contararian. The "you are wrong, just for a different reason" philosophy Lawyers Drugs and Money blog has discussed in the past. For instance, now Shafer (the press critic) suggests Patrick Fitzgerald did a good job. I am dubious of his sudden seeing of the light. Anyway, if we don't go after the chief assistant of the Vice President, who do we go after? The fact is that we need to take an "attack the kings' ministers" approach here. I surely say go for more, but doubt Kinsley is an impeachment supporter.

Likewise, it is stupid to frame the issue as he does here. This is not the "only" reason he lied and obstructed justice. That's asinine. Often, the most important thing is fair process. It might have been in To Kill A Mockingbird, but once a judge noted that a losing litigant was satisfied -- he just wanted a chance to make his case. These days a generally neutral (sure, it cannot be totally neutral) and acceptable process is apparently a bit too much to ask for from some of our public servants. Attacking this reality is of fundamental importance.

The alternative is that people -- with cause -- will have some sympatheties with the likes of Khalid Sheikh Mohammed (a braggart that was tortured), which on some level is simply insane. BTW, I'm not sure how a terrorist mastermind would be an enemy combatant. And, meanwhile another check -- the press -- is kept out. But, we can rely on transcripts, right?

Uh huh.

In A NYPL?!

[Update: I went back to the blocked site. If one scrolls down the "this site is blocked" page, one sees that you can click a button certifying you are over seventeen and such, which lets you view the blocked site for ten minutes. This does give me some faith in the NYPL, though the page is set up as such that this option is not readily apparent. And, a library isn't required to offer such an option. Thusly, overall, mild chilling effect. Still a no no, but less so.]

There were two interesting essays at the Findlaw website (commentary section). One covers a recent German ruling that allows contingency fees in select cases, the country an interesting case study in that it provides some assistance for civil cases and allows third parties to pay for lawsuits in a fee based system (plus has a "loser pays" system). A second one discusses the NSL story, but in a somewhat annoying fashion -- it takes at face value the judgment that the problem was unintentional. Set up a regime with self-checks and a lower standard, and yes, you are taking a risk. It is why the Fourth Amendment has an independent check regime in the first place. Anyway, should we take anything coming out of the administration at face value.

We therefore have to take the statute on the understanding that adults will be denied access to a substantial amount of nonobscene material harmful to children but lawful for adult examination, and a substantial quantity of text and pictures harmful to no one. As the plurality concedes, see ante, at 11, this is the inevitable consequence of the indiscriminate behavior of current filtering mechanisms, which screen out material to an extent known only by the manufacturers of the blocking software [sounds like electronic voting!] ...

-- UNITED STATES V. AMERICAN LIBRARY ASSN., INC. (Souter, J. dissenting)

Anyway, at lunch time, I went to one of the main libraries in Manhattan to use the Internet. It provides over ten computers for the general public, two for about fifteen minutes, the rest (on appointment) for about forty-five. I find the former a good way to check up on things without spending too much time, though it doesn't let me post at Slate. Anyway, I checked a blog piece on Plan B. Reading up on the subject, the general pro-choice argument is that it stops ovulation.* The literature does suggest ovulation "may" happen in some cases, so Plan B might in effect block implantation. Many doubt this actually occurs. If it does, normal birth control pills would have similar effects, since Plan B is related. Likewise, it occurs naturally all the time.

Anyway, the first link [I just used it ... my home computer is not filtered] provided didn't work. I was blocked ... at a computer in the adult section (there is a separate young adult section), one with quite 'R' rated material. I was informed that in order to obtain federal funding, the library had to use filtering. Said filtering, it noted, can tend to be overinclusive. A link was provided to suggest the website not be blocked. When the Supremes dealt with this very issue, mention was made how trivial the whole thing is. Worse comes to worst, the filter can just be turned off. Of course, the ruling also noted the Internet doesn't provide a "public forum," which is also ridiculous.

[I missed it the first time, but the information page notes: "In addition, any user who is 17 years of age or older may disable the filtering software in order to obtain unfiltered Internet access for bona fide research or other lawful purpose by following the instructions provided on the computer screen or such instructions as the Library shall otherwise provide from time to time." I have to try it again and see how it goes -- but I'm with Souter, this serves as a barrier. What are these "instructions?" What is "bona fide research?" If it was on the screen, it wasn't THAT easy to determine. And, should this sort of page be blocked to sexually active teens? Oh, and why is censorship the default in the adult section?!]


The reason the site was blocked is probably related to some explicit photos -- not porn, but oh no, you see breasts -- elsewhere on the site. But, in the process, clearly worthwhile material is also blocked. And, the benefits of blocking mature erotica is unclear as well. Surely, some amount of nudity is allowed to go through, such as works of art and medical related material. We simply are not dealing with crud here. And, if anything, is there not a way to allow certain perfectly fine pages of a website etc. without blocking the whole thing? Guess not. On some level, the inconvenience was trivial -- another link was provided as well -- but there is something wrong with it occurring in the adult section of a New York City public library.

The Brethren cites Douglas' concern that obscenity rulings would lead to censoring in libraries. Well, his fears have come to pass. Given he spent much time bemoaning the illegality of certain sorts of hard core porn, my annoyance seems worthy of a bit of comment, huh? Seriously, this sort of thing is likely to occur if filtering is used badly, and simply should not happen in cases like this.

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* Thus, rhetoric that it disposes of a "fetus" is ridiculous. The term is inappropriate for most abortions, since even then an embryo -- the stage of development quite important generally in personal morality etc. on the topic -- is usually involved. But, even after fertilization -- which appears not to occur in this instance -- it is simply silly to speak of a "fetus." It isn't even an "embryo" at that point.

Liar Liar

Of course, the reason that lying to Congress is a felony is because Congress is composed of the representatives of the American people, and when executive branch officials lie to Congress, they are lying to the country. They subvert the entire constitutional order by preventing the American people from exercising overisight over the executive branch through their representatives in Congress, and it turns the President into an unchecked, unaccountable ruler.

-- Glenn Greenwald

An example of the problem

At least one of the fired prosecutors was replaced by a Republican hack, namely a Karl Rove sort that was involving for instance in "caging" -- the legally dubious, if not clearly illegal, method of targeting specific voters (here blacks) by trying to "prove" (the Florida "felon" scandal underlines the need to use quotes) they are not legimate voters by means of address cards. (If they are returned as not legit addresses, often in error, voter not qualified!) [Air America/Thom Hartman discussed the point last week.] This is the sort of people we have as our public officials, the proverbial "C" team in the words of Dahlia Lithwick (Slate) have its share of dubious characters in general.

This dubious nature is underlined by a guest Findlaw column by "Jeff Breinholt, a member of the State Bar of California, [who] is Deputy Chief, Counterterrorism Section, United States Department of Justice." The column discusses "lawfare," which he defines as "the effort to achieve or defeat military objectives through legal tools." As an aside, one wonders what word he would use for his administration's tactics to use legal means to achieve anti-American Bush-friendly objectives. Such as torture and such. But, I digress.

The column in part supports the habeas ruling that I have referenced a few times of late, respecting stripping habeas rights for those detained in Gitmo. The dissent and others have spelled out how the result very well probably is not "well-supported by precedent," which besides is of questionable value. Simply put, the precedents available do not tell us too much about the current situation. 18th Century English case law and such do not set up apt comparisions to the gaol down in Cuba here. Likewise, precedent changes, especially given the messages of rulings like Rasul.

[To toss something in, Balkanization is among the many blogs covering the gun ruling. See here. This is notable in part because Sandy Levinson had a seminal law review article in the late 1990s on the "embarassing" Second Amendment. The sentiments expressed, including the touch of caution on meaning and mention of "1787 originalism" (even when it hurts one's case), seem generally correct. If the 2A covers personal defense qua personal defense, it is best not to just appeal to 1787, but the Fourteenth Amendment etc. Simply put, the alternative is bad on many levels, including as a sound application of current precedent -- five votes simply are not there to take the Thomasian approach. This applies across the board.*]

Finally, if the precedent says otherwise, it deserves to change. If not, we would take things like "the Constitution does not confer rights on aliens without property or presence within the United States" as just. Under that philosophy, we can set up torture planes and such to deal with such "aliens." Likewise, the argument also misses a point emphasized by the dissent in the habeas ruling -- this is also a matter of restraint on governmental power. An all powerful executive, even one that was not blatantly breaking the law (but impeachment? huh? that was abused once, can't do that again!), is dangerous. The king of England might have arguably been in violation of the common law (and natural law overall), but quite often he surely was not. All the same, the powers practiced were deemed dangerous to our republic. So is entrusting key Department. of Justice positions to people with this menality:

But conversely, when aliens flagrantly break our laws because they are committed to our destruction, we hardly have an obligation to grant them the full benefits of citizenship - and our most cherished individual freedoms - thus assisting them in their efforts against us.

This deserves our scorn. Evidence underlines that we cannot assume guilt until innocence is proven, nor is a basic right of a hearing -- repeatedly shown to be fundamentally necessary for justice -- "the full benefits of citizenship." "Persons" have rights too in this country, moron. Finally, there is the fear of overreaching governmental power, which goes beyond citizenship rights.

Expanding habeas corpus rights to prisoners of war would make warfare involving the United States more difficult, if not impossible. (For example, the U.S. military could, under established rules in the Law of Armed Conflict, legally bomb a building, but then legally be prohibited, based on the Fourth Amendment, from searching the same building without a warrant. While this is an absurd result, it follows directly from the arguments in favor of the detainees.) Other countries would thus gain a military edge over the U.S. if Guantanamo detainees could file habeas corpus petitions.

One is speechless. I wonder ... does this include homes on our soil? Label an al-Masri an 'enemy combatant' -- without judicial oversight -- and you can bomb his home, right? The fact he lives in Peoria, notwithstanding. Anyway, one's home in Africa, and one's confinement in military bases controlled for over a hundred years by the U.S. ... tad different.

Per Atrios, what a wanker. Too bad so many American citizens agree with him.

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* Furthering the 1787 originalism theme, the opinion spent some time focusing on 1790s federal militia acts, including the weapons the members of the militia were required to own, to make its case. Since the acts, especially as to members of the militia bringing their own arms, were soon deemed somewhat unworkable -- especially by 1900 -- this is dubious. Similarly, discussing current events in Gitmo etc. through the eyes of 18th Century English precedent is workable only up to a point though it helps, see John Yoo, if you twist things.

Pol News

Of the 8,200 new troops, 4,700 will head to Iraq, while 3,500 will be sent to Afghanistan, bringing the number of American soldiers in that country to its highest level ever, the Post reports. House Democrats don't much like the idea, nor do they like Bush's request for an additional $3.4 billion to pay for the troops.

See Slate's Today's Papers. This is a test. Congress has the power of the purse, something that cannot be explained away by the problems of filibusters or vetoes. Funding the war is an affirmative act. If Congress, without at least getting an agreement to no veto of their latest timetable proposal (see Talking Points Memo for updates), agrees to such funding they will rightly be deemed hypocrites. Time to do something truly serious to promote reason and the will of the people who put them in power.

Personally, I don't actually see Edwards as feminine, but if he does have feminine qualities, I don't see why that makes him unable to lead our country. Look at a stereotypical feminine qualities of Bill Clinton, for which he was much maligned: the ability to listen to others, make them feel he really felt for them, and an apparent willingness to empathize. Then look at a stereotypically masculine quality of his: unbounded sexual appetite (and, to some, sex appeal). Our current Commander in Chief apparently, or at least to me, has reverse qualities: no ability to empathize or hear others (and a certainty that he is right) and a tight rein over his emotions and sexuality (or at least no visible sensual nature that I can see, but these things are notoriously hard to judge).

-- Foilwoman

I see these things much the same way as I see private morality and religion. I don't think those things ought to be relevant to political choices, but those who make them relevant by constantly injecting them into our discourse have to be subjected to the standards they espouse.

-- GlennGreenwald

I think this a useful expansive look at the broader nature of Ann Coutler's remarks, other than as a reflective of how such poison pills are more "mainstream" parts of the conservative movement than some might wish to admit (ignoring such things is how the "liberal" MSM promotes anti-liberal messages). One excuse for the remark was that it was not meant to be anti-gay, but a taunt on Edwards' toughness. In fact, it reflects the simplistic understanding of sex/gender expressed in this country. GG in fact somewhat wickedly underlines the point by printing the photos of two "manly men" who question Edwards masculinity.

Now, the fact Edwards is "pretty" is not news. His wife joked about his youth and hair in her charming book. The "attractive" nature of candidates, not just in the Obama/Biden broader sense, has long been a draw -- one both sides. And, we even have a new word for that sort of man with it all -- metrosexual. Many think such characters are good in various ways, but surely many men care about their appearance (often as a matter of status) and so forth. Others, sometimes the same ones, are warily about appearing "gay" or "feminine" (deemed similar to many).

So, the outer appearance of masculinity is important. Thus, fake sorts like Bush and Reagan are worshiped. This is related to those who cynically use religion/religious believers, such as those who support movements who think his daughter is going to hell. This is on some level sad, but all to often is quite dangerous -- many people are victims of those who feel weak or thinks (sometimes on some level rightly) that they must defend their image. We can see this writ large in our foreign policy. It is "wimpy" to not mindlessly go to war. Those "pansies" like Kerry who actually did go to war just don't realize such things.

A word also on GG's comment. On some level, it annoys me when people -- yeah I mean you Sam Seder/Randy Rhodes -- sneer at the fact certain people in the Republican hierarchy appear to be gay (SS has a closet door sound effect), that Rudy G. married his second cousin (who cares?), or Libby wrote a disgusting sounding novel involving a child prostitute trained by keeping her trapped with a bear that sodomizes her (really). Oh, and Jeff Gannon made such sorts nearly wet themselves.

But, yes, there is hypocrisy there, and a major draw/danger of the party is the idea that they are the moral ones, and we need to be just like them -- including under the force of law. Bush is an asshole ... but we are supposed to think he is so much classier than Clinton. Yeah right.* So, yeah, if some people who are morally dubious and if anything are pretty wimpy want to sneer at those who they deem feminine reprobates, on some level they have it coming to them.

But, watch out. Laying it on too thick is icky too. Mention the hypocrisy, but watch the childish taunts a bit, okay?

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* Have I said that I really don't want HC running? I am sick of the hatred that poisons things today, and as a Nation piece notes, she is a voice from the past as well. Imagine if it's her against Rudy? What a f-ing poison pill that will be, real debate being an uphill battle.

The early evening host of Air America, who I like, recently promoted Al Gore ... playing a clip from 2002 on Iraq. I doubt he will run, but she's right. Edwards -- see The Nation as well -- is also a good choice. I still think him a bit green, and his vote in 2002 rankles. Since I think Obama even more green in some ways etc., his opposition doesn't quite help. Might want to check out Dodd. Oh well. Early yet ... first primary isn't due to at least September, right?

God and Country: How Evangelicals Have Become America's New Mainstream

And Also: Thanks to "Over the Cliff, Onto the Rocks" for adding me to the blogroll. The reference to "JoeJP" underlines a Slate frayster.

The importance of the "faith community" has been covered from various angles. Amy Sullivan, often from at Washington Monthly along with Kevin Drum, has pushed for more recognition and respect of them by the Democratic Party. [Many have been annoyed at her tone, with reason at times, but she hits a sore point that should not be ignored.]

Atrios recently had an interesting series of posts (more substantive than he tends to be) discussing the matter, including his annoyance that it is not more recognized that a large segment of the public do not express themselves in such a way -- not just atheists and the like -- and assuming somehow that they are particularly troublesome is unfair (yes a few strong atheists -- Richard Dawkins etc. -- are out there pressing their uh beliefs, but Christians do this all the time).

[Some, including myself, had concerns with a speech by Sen. Obama that sort of suggested at points that nonbelievers of the generally accepted monotheistic God sometimes treat members of the faith community -- he was sure to define "religion" but not quite -- unfairly. The evidence was dubious, and he arguably gave the other side pointless fodder for criticism.]

I'd add my general sentiment that it is simply stupid to equivocate "values" with regularly defined religious faith, and if anything, many deemed nonbelievers not only have values, but often have a lot of faith -- just in different things than typical Christian sort of God etc. Many books have honored such traditions along with the value of a secular state, including Susan Jacoby's Freethinkers. Books also have been written about the troublesome nature of the evangelistic and fundamentalist base (e.g., Kingdom Coming: The Rise of Christian Nationalism by Michelle Goldberg), including by those with strong Christian backgrounds (e.g., Chris Hedges; Middle Church by Bob Edgar takes it from a evangelical position himself, while even Jimmy Carter's Endangered Values notes the threat of the darker side of his faith community).

And, books have been written that try to provide a more neutral (or first person) expression of the nature of the community at large. This can be a useful enterprise, since it provides you with a look at the other side without the baggage of trying to promote a message per se. Thus, I found For a "Christian Nation": A History of the Religious Right of interest.

Another book looked promising since it was written by someone who grew up as an evangelical Christian ("people of faith" tend to be a code word for such individuals, again as if they have a special sort of faith worthy of the name), if finding the path not for her during college. Her book is entitled God and Country: How Evangelicals Have Become America's New Mainstream. Monique El-Faizy (her father grew up as a Coptic Christian in Egypt) provides a window into the community -- which she notes has changed in various ways from her childhood in the 1970s and '80s -- generally without judging its beliefs. Since she notes she strongly disagrees with some of them, this is worthy of note.*

I'm not sure if she proves the argument suggested by the subtitle. The underlining theme of the book is more "how evangelicals have become respectable again." Or, a major power broker. This appears to have historical roots -- evangelicals (e.g., the Great Awakenings, a top speaker during the first one honored even by deistic Ben Franklin) tended to have a common touch, including by offering a hopeful message. This she contrasts with the more negative/shape up or you are going to hell message of some fundamentalists (she notes the two groups have similar beliefs, but different tones), one El-Faizy is familiar with during her own childhood.

Evangelicals have an interesting separate track existence. It has been noted that the religious right basically separated themselves from society during the early and middle twentieth century, but this did not mean their numbers somehow severely was reduced. Out of sight, perhaps out of mind, but still going strong in their own communities. One charm of Goldberg's book is that she notes the strength of such communities, even while underlining the dangerous message some promote. This book also underlines the point, respecting the strength of the church communities (a Catholic told me once that her church really should do more to promote religious themed teen events and the like to attract members), while noting some concern with their separateness.

The community, however, cannot truly be isolated. The faith after all honors the promotion of the idea that Jesus is our personal favor. The "personal" nature of this belief -- though changing in some ways (see Middle Church) -- sometimes allows believers to focus on their individual faith. This also suggests a right wing political flavor, one that distrusts government (in certain ways, of course). Thus, there are separate schools, including a strong home school movement, but one where often the aim is to influence society. One major Christian college not only has many homeschoolers, but provides a sort of clearinghouse for interns and other support staff for movers and shakers in Washington and beyond. The aim is not just saving souls, but providing the troops to save society overall.

Also, not only does Christian rock suggest the crossover appeal, the community favors a sort of self-actualization (who knew Dr. Phil was an evangelical? really) that self-help book readers could appreciate. Since religion often is on a personal level much more than creed, this is quite important to attract members. In fact, there tends to be a push to make religion just another interest group, just another message that should not be treated even by the government differently. This has had some success in the religious free speech field, Justice Kennedy being a strong supporter of the path. But, there are problems, not just with the message being sent. Religion is after all different. The fact that these believers do not just want to practice their faith -- private faithlong deemed an important path to societal happiness** -- but push it on others (vs. gay marriage etc.) underlines the point.

Overall, if you wish to learn about the evangelistical community, and the various ways it not only promotes its own faith but is trying to provide a separate but integrated faith community for themselves, this is a pretty good book to check out. I sometimes was waiting for her to go in some detail about why she herself didn't like the religious path, but it is not that sort of book -- look for that elsewhere. In fact, you leave having a good deal of respect for some of these people (it helps when we don't hear them talk about hating gays etc. ... gays referenced in the index about twice), which is a pretty good sentiment to have, even if you don't like chunks of their faith. It is always good to see things from another's point of view, a go-between, like an outsider/insider* like this one, helps.

They are after all members of our community and majority or not, a quite successful/powerful one at that. A tidbit to end on -- many ridicule those who don't believe in evolution, but some polls suggest over forty percent of society do not completely accept the principle.

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* I linked to the Amazon copy of the book and a reader/reviewer provides an intelligent analysis that also honors her efforts toward neutrality. The outsider/insider reference is from there.

** It actually was a handful of cases against laws that limited discretion of parents to send their children to non-public schools in the 1920s that might be deemed the true start of the "right to privacy" that was fully expressed in Griswold. One suggests the Spartan way promoted by a new movie is not quite our own. Another summarizies things nicely in a case involving sending children to a Catholic school:

[R]ights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the State. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.

As Monique El-Faizy notes, the community here sort of speaks out of both sides of their mouths -- they want to live their own way, but also in a society that in some fashion is forced to not live in ways too foreign to their values. Even with their power, they do have some reason to feel like victims -- not only since their power only came fairly recently, but because in many ways their views are not shared by the majority. But, this push for formalization of their religious values is the major rub.