Extras: More on the driving licenses and Obama.
To follow-up on the Charles Fried post, GG (see also Balkinization) has a post on Sen. Rockefeller's justification of supplying immunity to telecoms for breaking the law ... NATIONAL SECURITY!!!! Ack!!!! It would be unfair given how they uh broke the law to PROTECT US YOU IDIOTS to penalize them. [The Fourth Amendment does that too, of course, as well as providing a means to protect both order and liberty. But, it's too much to ask for our representatives to know and respect the law.*] Sure, concern concern (nod to Sen. Specter), we should be concerned with the lawlessness of the mean old Bushies. Let's provide a symbolic means that in real life won't do anything, but might CYA.
Finally, importantly, let's forget that the lawlessness was not only in a time of emergency, but both months and years after 9/11. This is the key point, conveniently elided by Fried in his Moyers appearance, that referenced the actions of the likes of FDR and Lincoln. Lincoln, e.g., suspended habeas corpus after the Civil War began, an act that was very possibly unconstitutional (see, e.g, the dissent of Scalia/Stevens in Hamdi,** but an extreme case. Congress was out of session, so could not suspend habeas, and people were targeting bridges that troops were passing over and the like. Though an emergency does not create power, it might already be there in such situations -- see also, the President's power to expel attacks, from implication, even with a clear congressional power (habeas is not so clearly defined) to declare war.
And, most important, Lincoln not only argued its need/legitimacy openly, but asap asked and received authorization from Congress. This simply is not the case in many Bushie situations, though (to reference a point in Thom Hartmann's new book) they were pretty good at convincing many people that the scary world made it legitimate. One might add that some ongoing litigation was not involved, nor was there a crystal clear law involving just that situation (FISA foresaw the need of a short window after a war began to pass new legislation) or providing a very easy way (a secret FISA warrant) to do the desired action. Compare this to the likelihood of getting an indictment from secession friendly locals.
Meanwhile, Sen. Obama is trying to cement my vote for Edwards:
Part of the reason that we have had a faith outreach in our campaigns is precisely because I don't think the LGBT community or the Democratic Party is served by being hermetically sealed from the faith community and not in dialogue with a substantial portion of the electorate, even though we may disagree with them.
As Atrios notes, this is offensive on various levels. Times like this remind why the lack of some religious war or blunt discrimination like banning Catholic mass (holy day of obligation today) does not mean religious freedom is totally alive and well these days. There is this assumption that the "faith" community involves a certain type of belief. One cannot have "faith" really (implications of atheistic thoughts) if you aren't an evangelistic sort or are very comfortable with such "religious" talk as expressed by that "faith community." See also, this guest host post for GG last week. Sorry, senator, but many people of faith ARE members of the LGBT community, including those that (as noted in various NYT marriage announcements) sanctify commitment ceremonies for members.
Why is this so hard to understand? It's like the inability of various Democrats to stick up for some basic principles, even after they are targeted by the likely suspects. Too many weenies, especially those labeled by some as the "sensible" ones. This sadly has been shown by the new Democratic governor of New York, Elliot Spitzer, best known for his prosecutorial campaigns against corporate malfeasance and the like (a sort of liberal leaning Rudy). First, we had the specter of some of his staff getting in trouble for the way they investigated and made known the misuse of transportation resources for his own private use (this is not really in dispute, but darn he spun it well) of the Republican head of the state Senate.
This wasted a lot of goodwill and the usual honeymoon period of incoming politicians. And, now he could not stick to his guns -- and helped the other side again in the process -- on the issue of driver's licenses for non-documented immigrants. An issue raised in California and other states, the governor announced that he would stick to a campaign promise, and replace an old executive policy of not allowing such people from having driver's licenses. This was deemed as pro-immigrant and good on safety grounds. It was a good target for the "I'm scared" and anti-immigrant brigade, however, and the Republican led Senate in a lopsided sort of vote noted its displeasure; but the Democrat led House ... at some risk for those up for re-election ... prevented a similar move via a procedural vote.
The governor, however, decided to partially change gears -- you know, sorta of Sen. Clinton's desire at times of having it both ways. To make matters worse, he failed to mention this fact -- including discussions with the federal Homeland Security Secretary (no need for a Halloween costume there) -- with key Democrats/immigration supporters in the legislature. So, he looks doubly bad -- politically unsavvy and failing on principle. This is bad, even if you like his "solution" to the whole thing -- three ids! One would meet Real Id standards (the controversial new federal id that various states, including some conservative ones, find troublesome), one would allow you to drive to Canada, and a last could be used by all. You know, unless he changes his mind again.
Now, a few might not want the first two (privacy concerns? maybe cost?), but the idea is the last would be like a scarlet letter. And, acceptance of still up in the air Real ID standards is a serious matter too ... one that again should not have been done alone. We again have talk about how a Democrat "retreats" or some other loser word. Can't anyone act smart and on principle? Heck, these days just one sometimes is way too much to ask.
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* See here and surrounding posts. Yeah, it's feigned really, but deep down, the guy thinks he is doing the right thing. He thinks it is acting constitutionally ... he just doesn't want to admit it too bluntly, since darn it would be troublesome for various practical reasons. So, ultimately he simply doesn't know and/or respect the law.
** Our Federal Constitution contains a provision explicitly permitting suspension, but limiting the situations in which it may be invoked: “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Art. I, §9, cl. 2. Although this provision does not state that suspension must be effected by, or authorized by, a legislative act, it has been so understood, consistent with English practice and the Clause’s placement in Article I. See Ex parte Bollman, 4 Cranch 75, 101 (1807); Ex parte Merryman, 17 F. Cas. 144, 151—152 (CD Md. 1861) (Taney, C. J., rejecting Lincoln’s unauthorized suspension); 3 Story §1336, at 208—209.
Suspension was to be used in "a crisis." And, "During the Civil War, Congress passed its first Act authorizing Executive suspension of the writ of habeas corpus, see Act of Mar. 3, 1863, 12 Stat. 755, to the relief of those many who thought President Lincoln’s unauthorized proclamations of suspension (e.g., Proclamation No. 1, 13 Stat. 730 (1862)) unconstitutional."