Confessions of a Shopaholic

Confessions of a Shopaholic is a predictable fantasy with serious connotations (surely in this economy!) that relies on the charms of its star (Isla Fisher, looking like pink bubblegum at times) and supporting cast such as Krysten Ritter in the best friend role and the likes of Julie Hagerty (of Airplaine!) in small roles. The guy is pretty bland. Overall, its stock plot and ending (having its cake and eating it too) remains, plus it's too broad at times. Doesn't quite work, but it's okay escapist fare. Still, we can expect more even there.

Quick Takes

The Dred Scott to Roe substantive due process connection b.s. tossed out there by Bork et. al. is attacked from the right here and here. Meanwhile, Obama will rescind the uh late term overbroad conscience clause regulation of the Bush Administration. But, all is not good on the privacy front. But, al-Marri has been moved to the civilian system. Great news. Let's see if the SC case is moot.

Kirsten and Smoking In Films

And Also: To toss one more thing about Dawn Johnsen, the fact she is a mother of two and a Sunday School teacher itself is notable. Amy Sullivan alone would recognize the stereotype breaking nature of such a person being an advocate for liberal causes.

NYT has another personal interest piece on our new senator, Kristen Gillibrand, the one whose fellow Democratic colleague does not want to resign (contra the guy from Illinois). It is curious that she herself did not wish to respond to a mostly positive representation, though perhaps she did, but her representative (who did submit a comment) found it too long. After all:

The exchange at the press conference was “vintage Kirsten,” explained Elaine Bartley, one of the senator’s lifelong friends. She recalled that when Ms. Gillibrand returned from studying abroad in China and Taiwan in college, she invited about 50 friends and relatives to her mother’s house to hear a narrative of her experiences that lasted several hours, complete with a slide show.

She sometimes has problems shutting up. For instance, during her long speech after being introduced by our governor (something that many might think would call for some short remarks), she didn't even stop to take a call from the President. I personally find this desire to provide in depth answers charming, if something that must be reined in somewhat (see, e.g., John Kerry). Overall, the article expresses a general sentiment that she is doing good job introducing herself to the state, even some critics finding her personable and open to compromise. Particularly, now that she has a state-wide office.

I think she is showing herself a good choice for senator. In his biography, another former senator -- Barack Obama -- referenced his smoking. Another article caught my eye today, one on the growing argument that smoking in movies should be deemed to make the relevant movies 'R' rated material. The problem in this case is a current lame rom-com in which smoking in fact is put in a bad light, sorry, but (horrors) there is a decent amount of it going around. It is rated 'PG-13,' so is suggested to be deemed acceptable teenage fare.

This is somewhat true, though such a rating could often involve movies only adults would watch, but is not explicit enough under our somewhat arbitrary movie rating system. Are we to believe that if there is smoking, a movie should be rated so that only those who go with adults can see it? Will this be applied to all those B&W films that had smoking? For instance, Clint Eastwood smokes a lot in his films, so perhaps movies like Coogan's Bluff etc. should be rated 'R.' And, of course, the ratings will be selective. Premarital sex among teenagers, violence that is not explicitly shown, and so forth will not have a 'R' rating. Though other groups may want them.

Just things one sees every day in public places. So absurd.

The 13A Argument, Since I'm Not Up For OLC Head

And Also: The Defense Department plans to change the "no photographing of coffins" policy with perhaps an exception of the families of those involved dissent. The exception sounds okay unless we are talking some absolute rule that would apply not to specific ceremonies, but a plane coming in or something, which is simply not much of a privacy violation at all.

Dahlia Lithwick, one of the few Slate regulars I don't find to be assholes* (contra Kaus, Saletan, Shafer, Hitchens, etc.), has a new piece up on the Dawn Johnsen's entitled "Obama's OLC nominee discovers the perils of "blogging, advocating, and speeching." To wit:

The diminutive university professor, mother of two, and Methodist Sunday-school teacher speaks in tones just this side of "whispery." And with armies of cousins, aunts, and preteen sons arrayed beyond her today, it's tough to see her as anybody's zealot. Still, Jeff Sessions, R-Ala., accuses her outright of "blogging, advocating, and speeching for the opposite side."

The gentle lady from California (not the Lieberman lover, the other one) feared she would be too left wing. The horror! Of course, see a link to a National Review piece linked there, abortion provides a useful place to tag her as too liberal:

The low point comes when Sen. Arlen Specter, R-Pa., begins to question Johnsen on a position she has allegedly taken, declaring that abortion bans are a violation of the 13th Amendment ban on slavery. Johnsen responds that she was shocked to see this analysis in a piece in the National Review, which pulled a footnote out of a brief written 20 years ago, tore it out of context, then baldly misstated Johnsen's position as concluding that "forced pregnancy" somehow "violates the Thirteenth Amendment, which prohibits slavery."

Whatever she allegedly did, the argument is reasonable. Justice Ginsburg in Gonzales v. Carhart (dissent) noted for four justices:

Thus, legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.

Reproductive autonomy is a basic aspect of freedom. In an earlier case, Justice Stevens cited a member of the Reagan Administration:

What a person is, what he wants, the determination of his life plan, of his concept of the good, are the most intimate expressions of self-determination, and, by asserting a person's responsibility for the results of this self-determination, we give substance to the concept of liberty.

C. Fried, Right and Wrong, 146-147 (1978). See also Fried, Correspondence, 6 Phil. & Pub.Aff. 288-289 (1977) (the concept of privacy embodies the "moral fact that a person belongs to himself, and not others nor to society as a whole").

What does "belonging to oneself" mean if not freedom from slavery? Control of reproduction was a major wrong of slavery. In areas where "slavery" and "involuntary servitude" were illegal prior to the 13A, abortion was at times illegal much earlier than it is today. The terms were not originally in so many words thought to cover abortion. But, we apply equal protection to women etc. in ways that would surprise many of the time. Constitutional understandings change.

A full understanding of those terms could quite reasonably apply to forcing women to have children against their will. You cannot force someone to be a doctor or ball player against their will, even if they sign a contract (monetary damages might be possible, but you cannot force the labor). The same applies here, particularly given the specific nature of the issue. As Justice Blackmun noted in his separate opinion in Casey:

By restricting the right to terminate pregnancies, the State conscripts women's bodies into its service, forcing women to continue their pregnancies, suffer the pains of childbirth, and in most instances, provide years of maternal care. The State does not compensate women for their services; instead, it assumes that they owe this duty as a matter of course.

He used this to show the equal protection issue at hand as did Justice Ginsburg, but it also sounds like a 13A argument too. It is not an either/or proposition, necessarily, because what the 14A does is to add force to the 13A, to make clear that full freedom -- particularly in areas where slavery served as clear evidence as to what the negation of that meant -- must be secured by the state. Still, if forced pregnancy is not a form of "involuntary servitude," what truly is?**

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* Others can just be lame -- the movie review columnist is not an asshole as such but has enough lame reviews not to be worth my time. You know how precious that is. Seriously, Slate has gone downhill. I do find the Today's Papers feature useful to get a quick thumbnail sketch though it has a somewhat limited focus. But, generally, Salon is more read worthy in any consistent way (not just for GG).

** The 13A is special because it applies to private action -- the government cannot uphold privately agreed upon slavery contracts. [OTOH, freedom of the press only applies against the government, not private parties.] This makes sense in this context too. A woman, for example, cannot be forced to have a child against her will to carry out a surrogate contract.

Use Your Discretion To Look to the Future This Way ...

Count me in ...

We urge Attorney General Eric Holder to appoint a non-partisan independent Special Counsel to immediately commence a prosecutorial investigation into the most serious alleged crimes of former President George W. Bush, former Vice President Richard B. Cheney, the attorneys formerly employed by the Department of Justice whose memos sought to justify torture, and other former top officials of the Bush Administration.

Our laws, and treaties that under Article VI of our Constitution are the supreme law of the land, require the prosecution of crimes that strong evidence suggests these individuals have committed. Both the former president and the former vice president have confessed to authorizing a torture procedure that is illegal under our law and treaty obligations. The former president has confessed to violating the Foreign Intelligence Surveillance Act.

We see no need for these prosecutions to be extraordinarily lengthy or costly, and no need to wait for the recommendations of a panel or "truth" commission when substantial evidence of the crimes is already in the public domain. We believe the most effective investigation can be conducted by a prosecutor, and we believe such an investigation should begin immediately.

If only because we must: "Expand the playing field, and do not let the White House be the most left-leaning force in the capital." "Don in Texas" also has the right idea:

Eric Holder, Esquire
Attorney General of the United States
U. S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001

Dear Mr. Attorney General:

"For the good of the nation," Gerald R. Ford pardoned Richard Nixon for his Watergate crimes and engendered the Iran-Contra scandal. "For the good of the nation," George H. W. Bush pardoned the Iran-Contra perpetrators and invited the criminality of the past eight years by the George W. Bush administration.

It is time to end this pernicious poisoning of American governance and to hold accountable those who have violated the laws of the United States.

In his stirring dissent in Olmstead v. U.S. , 277 U.S. 438 (1928), Justice Louis Brandeis declared:

“Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. . . .”

The oath you took to defend our Constitution imposes upon you a paramount duty to restore the rule of law in America.

For the good of the nation, all of those in the Bush administration who committed crimes against the United States must be brought to justice without delay.

In the strongest possible terms, I urge you to appoint a Special Prosecutor at once to investigate and prosecute those against whom credible evidence of criminality exists.

I'd also like to see him for once be pushed in a direction he rather not go that is to the left of his comfort zone.

Obama Quickies

Dreams from My Father, read by the author, is good so far -- this guy is President, right? GG notes the problems with Obama signing on (via a brief late Friday action) "Bush's position that detainees imprisoned by the U.S. in Bagram." Hint: It is not just about POWs. And, if anything, it should have been balanced with some statement of good faith. Solis is in as Labor Secretary. Delay on Rove was ****. Shock!

Insensitive Compromise on Same Sex Marriage

In a Dharma and Greg episode, Greg was running for Congress in San Francisco, but knew he was going to lose when his opponent came out. Maybe, though MR was seen as a favorite by many, that explained by Sean Penn won as Best Actor -- in the business, playing a gay martyr is kind of like being in a Holocaust movie. Besides, he had a nice speech, funny and respectful to his peers. A few lesser awards -- as is often the case -- brought some nice speeches too. The Japanese Best Foreign Film looks like it might be interesting (it's quirky subject matter also favored it) and the English as second language sounding speech was charming too.

In politics, as in marriage, moments come along when sensitive compromise can avert a major conflict down the road. The two of us believe that the issue of same-sex marriage has reached such a point now.

-- A Reconciliation on Gay Marriage by DAVID BLANKENHORN and JONATHAN RAUCH

Sean Penn, of course, spoke out against Prop 8. Two conservatives, one for and one against same sex marriage, joined together to provide "workable compromise" to federal recognition of the same via a NYT op-ed. That is, they want to compromise constitutional rights (of course, at least one doesn't that way at all, the other very well might think the most important thing is extra-constitutional), and do so in such a way that very well might be counterproductive to one of them in the process. In fact, from some reading I have done from those arguing for same sex marriage from the conservative side (including Rauch himself), this is actually rather apparent. Some might see the "compromise" as a good thing, but we compromise basic rights at our peril.

Let us look at the proposal at hand:

It would work like this: Congress would bestow the status of federal civil unions on same-sex marriages and civil unions granted at the state level, thereby conferring upon them most or all of the federal benefits and rights of marriage. But there would be a condition: Washington would recognize only those unions licensed in states with robust religious-conscience exceptions, which provide that religious organizations need not recognize same-sex unions against their will. The federal government would also enact religious-conscience protections of its own. All of these changes would be enacted in the same bill.

This is a slanted "compromise." The first provision is phrased as if it is pro-same sex marriage. The editorial is entitled "A Reconciliation on Gay Marriage," which reflects the subject matter, not just editorial labeling outside their control.* But, even if a state allows same sex marriage, the "compromise" will label them as civil unions. This puts a federal imprimatur** on inequality. Commissions in New Jersey and Vermont found civil unions, to the unsurprise of any heterosexual who is honest about it, as not the same thing as marriage. So, before compromising, the "gay marriage" side has to give something up. How very reasonable. This is reasonable, says the duo, because the federal DOMA (sic) law underlines just how unlikely equality truly is.

Why it doesn't therefore make sense for the federal government to accept what each state decides -- as it does if first cousins are married or divorce is liberally construed -- is unclear. Personally, I think the Constitution compels federal benefits be applied equally, not in a discriminatory way based on sex, sexual orientation, or some other invidious way. But, for the sake of "compromise," an honest proposal could be made to use a federalism approach. Certain conservatives who find same sex marriage as immoral opposed a federal marriage amendment on this ground, though many of them would not carry the courage of their convictions all the day as to (per a conservative on West Wing) oppose a federal DOMA.

And, even with DOMA, it is quite reasonable to think certain federal rights in the reasonable future will be applied in such a way to benefit same sex couples. It did per survival benefits after 9/11 in one newsworthy case and currently a lower court felt they did as applied to benefits for workers in a federal department. Areas such as bankruptcy and federal employment rules (Secretary Clinton was asked to address the matter for State Department employees) also are potential matters for true equality to be recognized even if our President selectively wants his moral beliefs to deprive certain people true equality. (In a very reasonable way, of course!) And, suddenly those conservatives -- like you know who -- who warn that allowing less strict alternatives to couples will encourage less restraints aren't so wary.

Further sharpening the conflict is the potential interaction of same-sex marriage with antidiscrimination laws. The First Amendment may make it unlikely that a church, say, would ever be coerced by law into performing same-sex wedding rites in its sanctuary. But religious organizations are also involved in many activities outside the sanctuary. What if a church auxiliary or charity is told it must grant spousal benefits to a secretary who marries her same-sex partner or else face legal penalties for discrimination based on sexual orientation or marital status? What if a faith-based nonprofit is told it will lose its tax-exempt status if it refuses to allow a same-sex wedding on its property?

Next, even this "compromise" might only apply to "most" rights. I do not know what "most" means, but doubt if it would only apply to the one area that they address, namely the second prong of the "compromise." The concern addressed in part arises because of scare tactics like those used in promotion of Prop 8. Some, including alleged serious people, raise the specter of churches having to carry out same sex marriages. Do churches have to carry out marriages if they think a couple is not truly "divorced" because of what the Bible says? Those of different faiths? The claim is absurd. To make it not ("may" be "unlikely" even if a "rite" is involved) only instigates the other side, confuses those who are honestly worried, even if they have no right to let it interfere with the rights of others. How dare someone who supports equality do that.

What the "compromise" wants to do is to favor anti-same sex marriage bigots. The word sounds harsh, but let's be clear here -- private bigotry is constitutionally protected in various ways, and this includes religiously motivated bigotry. And, this is what is at hand here, even if it is pragmatic to cushion the blow. Phrase it how you like, but what the compromise requires is that the religious concerns of some be favored over others. The federal government already has a religious freedom restoration act (RFRA) that provides a broad meaning to religious freedom, more than it is constitutionally compelled to do so under current doctrine. What this proposal would do is single out one religious belief for additional protection. Dubious broad based rules concerning "property" not used for religious rites per se or treatment of secular secretaries would be selectively allowed for anti-gay purposes, plus tax benefits would still be given too!

This dishonors true freedom of conscience in favor of selective benefit of those concerned about homosexuals. Many worried about the sanctity of marriage are more concerned about the Elizabeth Taylors of the world (multiple divorces) or those who marry without the right judgment of the sacrament involved. This includes match-ups that might seem uneven for some reason, perhaps one that the state itself could not block. Litigation covers them too. Some local anti-discrimination laws prohibit certain landlords from not renting to divorced couples or those who live together unmarried. But, this compromise will not address some (dubious) across the board concern, singling out those concerned about homosexuals. And, to add more insult, Obama supports anti-discrimination rules for faith based initiatives. Except if the secretary is gay?

It is noted that various state laws (and other nations) have exceptions in their anti-discrimination laws that cover same sex couples honoring religious concerns. And, in another context, "statutes allow Catholic hospitals to refuse to provide abortions." The breadth suggested here is more like those who want such hospitals to be able to avoid supplying morning after pills. Refusing to provide abortions is simply not the same thing as needing to pay insurance benefits for the secretary, who need not be a member of the religion in question or follow any number of its precepts. To the degree the states weigh religious freedom with equality in an across the board matter, that's fine. A federal law could do the same thing. But, the compromise here suggests singling out gays. This is wrong.

The suggestion that my opposition is misguided "maximalism" that lacks the "courage" necessary for required compromise is quite honestly annoying. Among other things. The duo wants to stack the deck out of some assumed need, dishonoring the alleged concerned parties in the process. Second class citizenship not based on good principle or very likely sound pragmatism either is not the type of "reasonable accommodation" we should take. It is not even the only first step we can take, the only compromise that forces each side to give something up.

I'm not sure how "sensitive" this lop-sided compromise truly is.

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* The op-ed talks about "same sex" marriage, which is a better term, since you need not be gay to marry someone the same sex, and the term often tends to be imply men alone. But, we later learn that Jonathan Rauch wrote “Gay Marriage: Why It Is Good for Gays, Good for Straights and Good for America,” which I assume is not just applicable to men.

** As referenced here, governmental marriage rights have three main purposes. There is the clearly illegitimate recognition that singling out heterosexual marriages reflects the religious traditions of the majority. This special pleading of what "marriage" means should be abolished in its current guise.

Second, it provides state benefits, which can be quite neutral in scope. Three, it provides a general blessing to the relationship. This means that even if all of the other many privileges and immunities of marriage are given to same sex couples, calling their relationship a "civil union" will still send a message that their union is separate, and yes, somehow unequal and probably inferior. Thus, an important benefit will be left out, which is separate and unequal by design.

Academy Awards

Missed the first hour or so, but rest sorta blah. Some better moments: a cute one for Man On Wire (e.g., a coin trick), touching (Heath Ledger's family, makeup), nice (documentary short feature) and a real surprise -- Sean Penn winning. Good speech. The intro of the best actors and actresses was a bit much, if sorta touching. The host did not do much. Still don't want to see Slumdog. The Joaquin Phoenix bit worked well. And, now with previews!

Saturday Quickies (Now With More Quick)

Not a big fan, but apropos yesterday, Jack Shafer's latest is a new low. [Even if you sorta agree with his annoyance.] Tired of hearing about A-Rod. By now, the Yanks aren't really fun any more, though continual collapses don't make Mets necessarily fun city. Still, happy we can see a bit of Spring Training later this week. Month gone, Obama has failed. Oh well. (Seriously, get a grip!) BTW, iCarly needs its energy back. Where is the lib blog coverage of Shafer?

Complete Reporting

And Also: Saw Being Erica. It is a Canadian import that is now on Thursday nights at 10 on Soap Opera Channel, but would also fit on Lifetime. It concerns a somewhat annoying thirty-something whose new therapist enables her to go back in time (only saw the first episode, so don't know all the "rules") to try to fix disappointments. Has promise but also too cute elements.

Some people like essay tests because they provide a chance to provide general information mixed with tidbits that one recalls, which can be easier than dealing with figuring out specific answers. Good writing (or even a sort of filibuster to fill up the space) can in some fashion compensate for the lack of certain key points or details. It also provides a chance for the grader to determine if you truly understand the subject matter at hand, did not just remember facts. Of course, for those with bad handwriting, this is a way to particularly punish the teacher. Finally, it might provide some training for blog posts.

The blog post can be most anything that the blogger -- more prevelant than reality programming -- but this one often works around a particular story or stories that in some fashion can be interconnected in some fashion. A particular event, let's say, can provide a chance to discuss some hobbyhorse or insert some favored quotation. The good blog post does more than cite and put forth some opinion on a particular matter. It plays off it, provides some context and nuance. And/or expresses itself in a particularly powerful way.

For instance, Keith Olbermann covered an offensive NY Post editorial cartoon, bringing in a Rupert Murdoch biographer to discuss the inner workers of the paper.* Likewise, Al Sharpton came on, given its racist connotations. But, unlike this blog, he did not show that the offensiveness of the cartoon fit a trend. [Melissa Harris Lacewell co-writes that blog; she was on Rachel last night. Good commentary, different hairstyle. Seems to be her norm.] Singling out one cartoon in a vacuum would not be as useful or convincing. Context can be key, which is why singling out "liberal" news stories as such is of only limited value. This includes in depth coverage, but letting us know about past offensive cartoons ... that's basic detail stuff.

I'd add that the NY Daily News, its liberal component not as apparent on the opinion pages (Charles Krauthammer dominates the page today, another a-hole does some other days, the editors lean center right as a general matter), has also have some more offensive (if not racist) editorial cartoons of late. Often of a conservative cast, I have seen more than one complaint about them in the letters to the editors. This did not use to be the norm at all. Less movie reviews, mildly annoying; this, tad bit more ugly. Still offers a lot more than the NY Post, on the regular comic page alone.

I often skip over the op-ed material in the center of the paper all the same.

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* The guest firmly said that the matter will not be addressed openly by the paper, though it was leaked that one editor made it clear she opposed the cartoon and was not aware that it was going ot be printed beforehand. The show ended with a news update noting the paper apologized to anyone offended, not that it had any intention to do so, except to those who are only complaining to get on their anti-Post hobbyhorses ("this means you Al Sharpton!" thinly implied).

Charming apology for a cartoon, given loads of free publicity, about the stimulus package involving the police shooting a chimp (not Obama! no!) ala a recent horrible news story.

TV Quickies

Tempus fugit -- Conan is ending his 12:35 run this Friday. Repeats and 11:35 in a few months. Uh ... Hallmark felt the word "butt" on 7th Heaven was too explicit. Nice to see Bonnie Hunt on Dave recently; clearly, the two respect each other, their business connections coming out too. Clicked thru the channels and caught a bit of the star of this (hilarious) show on her regular gig. Being Erica next.

Vicki Iseman Ends Her NYT Lawsuit

And Also: Glen Greenwald hits hard, particularly on the Binyam Mohamed case, why the Obama Administration should not get away with "looking to the future" alone. In fact, in the BM case, that is simply crap.

Julie Hilden is a strong believer in the First Amendment, including in matters involving sexual subject matter. Therefore, it was striking for her to argue the NYT had a weak case, and therefore should settle high, in a case that allegedly implied lobbyist Vicki Iseman had a sexual relationship with John McCain. I personally saw it as more as a matter of his lax concern for appearance of impropriety. It turns out that she has dropped her lawsuit, the paper providing a brief statement and allowing her lawyers to make a statement as well.

A statement to the staff:

In Friday's paper we are publishing a note to readers that repeats what we had already said in countless interviews, that the article did not state or intend to conclude that Ms. Iseman had engaged in a romantic relationship with Mr. McCain.

We let Ms. Iseman's lawyers have their say in a commentary on the Web, with a response from Bill Keller. Why? Because that's what we do. We let people we write about have their say.

Actually, the paper does not generally promise to publish op-eds by the lawyers of subjects of stories in this fashion. It might be a useful to device to regularly do something like this, but it isn't common practice. The lawyers' (including top First Amendment lawyer Rod Smolla) statement summarized the facts, but focused on the reasons for the suit in the first place. Some key excerpts:

The suit alleged that the published article communicated by carefully drawn implication that Ms. Iseman and Senator John McCain had an illicit romantic relationship in 1999. Senator McCain was at that time Chairman of the United States Senate Committee on Commerce, Science, and Transportation, and Ms. Iseman was representing clients as a lobbyist on matters relating to the business of the Committee. The suit further alleged that the article also communicated by implication that Ms. Iseman had unethically capitalized on the implied illicit relationship to obtain favorable action by Senator McCain on behalf of clients she represented. ...

Defamation suits such as this serve three essential purposes: to redress the injury to reputation and human dignity, to demarcate the line between public and private life, and to advance the integrity of the public record and the quality of political discourse. ...

Ms. Iseman, however, is not a government or public official, and in our view, not even a public figure. Had this case proceeded to trial, the judicial determination of whether she is entitled to the protections afforded a private citizen would have been the subject of a ferocious, pivotal battle, with Ms. Iseman insisting on her status as a private person and The New York Times asserting that she had entered the public arena, and was therefore fair game. That judicial contest has now been concluded in this instance, but the issue deserves ongoing scrutiny, certainly in our schools of law and journalism, but also in the arena of public debate.

A 1970s ruling entitled Gertz v. Robert Welch, Inc. is basic to this arena. The case allowed a much lower standard of fault to be shown in libel cases when a public official or figure is not involved. There was some suggestion earlier that the true test was "all discussion and communication involving matters of public or general concern," but this was deemed too broad to secure the essential interest of personal privacy and good name, the "essential dignity and worth of every human being." Freedom of speech even in the case of private persons require some breathing room, but there is a balance.

I am wary about opening up the press to expensive litigation, especially in cases like this where (Hilden aside) we are dealing more with debatable implication than clear allegations of fact, especially when matters of public concern are involved. Looking at her own lawyers' summary of the facts, this surely is such a case, concerns about the close (not in that way) relationship between politicians and lobbyists surely an essential public matter to investigate. Hilden is doubtful that Iseman is a public figure:

Did Iseman inject herself into the controversy about lobbyists' influence? Most limited-purpose public figures gain their status by what they say: They join a debate. One reason courts deem them public figures, and afford them less defamation protection, is that even when they bring suit, it's clear that they already have access to the First-Amendment forum in which they need to defend themselves; after all they've used it before.

But the only way Iseman could be deemed to have injected herself into this controversy is through her friendship with McCain – that is, by what she did by spending time with him, not by anything she said to the press. Can a plaintiff inject herself into a debate with actions, not words? It's not completely clear from the law, but the justification that the plaintiff plainly has access to a forum (other than the court itself) because she has already used it, is not present here.

Using the negative, as the SC did in the case, can we say (changing the pronouns): "He plainly did not thrust himself into the vortex of this public issue, nor did he engage the public's attention in an attempt to influence its outcome." Not enough to let her off. Iseman is a lobbyist. She opened herself up to criticism and reporting of this nature by making it her business to have a special role with a public figure. The case does not only focus upon the nature of the individual in all contexts, but also "for the purpose of this litigation." And, here particularly, she has a significant role to play.

She did "thrust [herself] to the forefront of particular public controversies in order to influence the resolution of the issues involved." What does lobbyists do if not try to influence things? A lobbyist also has some means that more private individuals do not have to provide their side of the story, to respond to the press coverage. The combination of influence and perils of the job (put yourself out there, you will sometimes get burned) provides enough that her lawyers might have found the judge was leaning toward making her a "public figure." The discovery might have gone badly or some other factor might have been involved in her decision too.

Either way, it is a tad absurd to suggest the influence of lobbyists, including the appearance of impropriety as a result of meetings in public locales (not a private dinner), is for First Amendment purposes "private." But, yes, politicians are involved with totally private individuals as much as the next person, and some connection does not suddenly make the person (let's say a baker who sells him bread, who turns out to have a sister allegedly with a drinking problem) a public figure. Nor, per Gertz, would some sort of public role in the community alone do the trick.

BTW, Justice White's Gertz dissent (fearing the lack of protection for private figures) is well worth reading. He is not really known for his opinions, but he has some gems, including those providing a point of view not accepted by the majority. White's look at the historical background of libel law belies some of the doctrinal simplicity that Douglas and Black argued history compelled. A complexity that as a general principle can apply across the board.

I prefer Brennan's take, see particularly his footnotes, but White provides useful input.

Personal Stories: Sex and Reproduction Issues

And Also: Petty annoyance of the day: local supermarkets which have only certain items. It's like when there was a takeout place right near me, but it didn't have what I liked and the service was lousy.

The value of directly dealing with certain religious groups that Democrats might think simply "not into you" (to reference a lame new movie) was addressed last time. This is a good policy as a whole, even if I do not fully apply it (e.g., by not reading conservative news sources on any consistent basis*). This is suggested by -- of all places Glamour -- a current feature that addresses abortion by talking to women who had one. Here's an excerpt (h/t Salon):

In the end there’s little drama to the procedure, but that doesn’t make it a simple experience. How could it be, when abortion inspires culture-quaking political and religious debates and feels too charged to discuss, even woman to woman? “No one talks about abortion on a personal level—there’s too much stigma attached,” says Aspen Baker, the cofounder of Exhale, an after-abortion counseling help line.

In a perfect world, no woman would ever need to end a pregnancy. But in reality, one in three women will have at least one abortion by the time she is 45, and these women run the gamut of ages, races, backgrounds and beliefs. “I’ve seen every type of woman in my office, from Catholics to Muslims to mothers with three kids,” says Dr. Oyer. “I’ve even treated someone I recognized—because I’d seen her before, protesting right outside my clinic.”

The pictures really hit home. These are real people, not faceless talking points. See also, Abortion & Life by Jennifer Baumgardner. Likewise, and again connected to yesterday's post, we have an interview with Bristol Palin. The source leaves something to be desired, but again, this often applies overall. I have referenced the point that "our" news sources also have one-note interview structures. Still, the very act of watching the "other side" talk is useful. It also helps to cut through stereotypes and sometimes is rather useful to your point of view too.** For instance:

Yes, Bristol insisted, it was her choice to have Tripp. "In terms of the ... whole issue of the right to life and choice and things like that ... this is your decision?" Van Susteren asked. "Yeah," repeated Bristol. "It doesn't matter what my mom's views are on it. It was my decision. And I wish people would realize that, too."

Now, the "spin" on Bristol's actions and words depends on the person. But, this and other comments (including on the lameness of relying on abstinence alone) do promote the pro-choice side of things. One part of Amy Sullivan's book that annoyed me was when she found a certain answer Kerry gave in a debate lame. The answer in effect was that "I'm against abortion, but cannot legislate the moral choices of others." You know, with a bit of Kerry speak (though not much in the quote supplied) tossed in. What is so hard about that? Catholics are also morally against easy divorce. The Church opposes divorce in most cases and even there re-marriage might not be allowed, unless the word "marriage" somehow can be avoided. Do Catholic politicians therefore have to oppose legalization of divorce? Marriage is a sacrament, right?

Bristol had a choice here. She was annoyed by those who suggested it truly was not her own. It was, and as I said before, the fact she had one made her actions more open to respect. After all, if it was illegal, that alone could have been the deciding factor. Here, it was up to her own moral judgment, leading some to be rightly proud of the courage of her convictions. To flow into another story referenced by Salon, kudos for their wealth of material on a consistent basis (I get a daily email to help me out here), this is the value of allowing school newspapers some broad discretion to cover sensitive topics. Many parents agree, as discussed in this story on the censorship of coverage on the "hooking up" culture. As noted in the comments, it also is a bit pointless, given the stuff will get out there in most cases at any rate.

This is not just a matter of requirements, but also policy. Hazelwood School District vs Kuhlmeier allows censorship of school papers per a rather easy to meet school pedagogical interest ground. Not too surprising -- the owner of a publication often has much editorial control. I'm inclined to agree with the dissent in that case, but can also do so on narrower grounds. For instance, some of the principal's concerns could have been addressed if there was a full give and take before publication and/or censoring of the story as a whole. In the latest case, as a comment to the Salon piece notes, the stance of the school (e.g., the story is one-sided) also is open to debate. As to trying to avoid sensitive stories, "out of sight, out of mind" will not work in the end. This includes avoiding teens sharing personal details.

Is it not better to do so in a way that can be moderated in some fashion? As the out of school paper noted, the fact the school has discretion does not mean it used it well here. A lesson that should be remembered in many contexts -- the courts these days might allow more discretion in various contexts, but this just tosses the ball to the another "court." The people with discretion still have the responsibility to uphold the principles at hand. Consider this tidbit on a Gitmo matter, or the Supreme Court giving habeas rights, but leaving the rules to lower courts and congressional action.

A responsibility too often left in breach.

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* I raised the point in the past and it is mitigated by having an open mind, viewpoints that cross usual simplistic lines, reading sources that address the other side in a fair fashion including by quoting them (comments apply here too), and so forth. Likewise, I find it hard enough keeping abreast with all that interests me as it is, choosing not to know much about certain subjects such as economics. But, yes, it would pay to read at least one conservative news source on a consistent basis. Mea culpa.

** Keith Olberman [2/17] had Laura Flanders on to discuss the matter -- good to see her giving her p.o.v. Thom Hartman popped up in an earlier show. Giving such individuals a place at the table -- cf. their likely presence on many Sunday Talk Shows -- is one value of shows like Keith and Rachel. Maddow herself got her own show in part by her success as a "left" talking head. Found it fun really, and it probably helped her relations with the other side, plus her arguments were strengthened in the process.

OTOH, Keith's show is hurt by not having an opposing viewpoint on as a foil. Maddow has this problem as well, but not as completely. She had a Republican on last night, and has a partial excuse -- they seem not to want to come on, though I'm sure she can get some representative from that side for face time. Why not try to have at least one segment a day providing a voice from the other side? And, when they repeat three times the canard that the stimulus could have been "bipartisan" if the Dems somehow just compromised a bit more, ask about some proof! Follow-up questions aren't that hard, are they?

Religion, Here and Abroad

The government announced Monday that it would accept a system of Islamic law in the Swat valley and agreed to a truce, effectively conceding the area as a Taliban sanctuary and suspending a faltering effort by the army to crush the insurgents. ...

Many of the poor who have stayed in Swat, which until the late 1960s was ruled by a prince, were calling for the Shariah courts as a way of achieving quick justice and dispensing with the long delays and corruption of the civil courts. The authorities in the North-West Frontier Province, which includes Swat, argued that the Shariah courts were not the same as strict Islamic law. The new laws, for instance, would not ban education of females or impose other strict tenets espoused by the Taliban in Pakistan and Afghanistan.

-- "Pakistan Makes a Taliban Truce, Creating a Haven"

As I note here, we should not let "Islamic law" or such necessarily scare us. In fact, it can be quite progressive, particularly when there are the proper safeguards. It is also a bit naive (or worse) to think all areas can jump directly to our system of separation of church and state, imperfect as our system might be. Note also the power of mosaic law in Israel. And, sometimes when the alternative is worse, compromises can (or must) be made. We saw the danger of not letting "Islamic courts" keep the peace in East Africa.

On a related subject, Amy Sullivan is part of a group that want Democrats to be more friendly to religious groups. The Party Faithful: How and Why Democrats Are Closing the God Gap is a fairly good book in this regard. Her overall message, though her mode as shown by her writings at Washington Monthly etc. at times turned some off, holds true. The libel that Democrats and/or liberals are not "value voters" and are anti-religious underlines the problem. Her chapter on Clinton alone suggests how fictional this really is.

And, it is not just a one way street. More can be done to bring in groups some deem not worth the trouble. This is a lesson we can learn by looking within. Blacks are often socially conservative in various ways, but Republicans cannot take advantage because the party as a whole mistreats them, leading most blacks to vote Democrat. Lack of respect is often key here; the same applies to "religious" voters, here focusing on evangelicals and Catholics. They too have a progressive side, or another not to be so much of a prime Republican voting block. And, respect is also part of the issue. Voting is not just about positions; it is also about values.

My problem with the book is that every ten to twenty pages or so, Sullivan says something stupid. We learn, for instance, that "in the early days of the republic, religion was hardly a partisan affair." The "partisan" religious debates of the Election of 1800 (Jefferson = Antichrist etc.) are not even mentioned, nor the Know Nothing Party and other aspects of anti-Catholicism (a major issue for some, including in the public school funding arena). Maybe, she needs to read Forrest Church's book -- nearby on the library shelf -- So Help Me God: The Founding Fathers and the First Great Battle Over Church and State.

[That is simply shoddy writing. A more venal, but still annoying sin, is not being able to handle simple facts. For instance, she got the result of Board of Education v. Allen, which upheld lending books, wrong. She said it said just the opposite! Meanwhile, she ignored all the rulings that upheld such aid.]

Talk about the value of focusing on abortion reduction and how the issue overall caused problems was a useful discussion. But, again, she left things out. Clinton's veto of the partial birth abortion ban does not include his reason -- no health exception -- or that fact that it fit in with his "safe, legal and rare" message. The procedure is "rare" and without it, abortions later in the pregnancy still will be "legal," but just less "safe." The fact Catholic justices voted to upheld abortion rights, as well as the division of Court Catholics on such issues, also would have been a useful detail. Other "aggrh!" moments existed.*

But, the book on the whole is worth reading, especially how Kerry mishandled the religious issue in 2004. Finally, to end a religious themed post, here's a cute 7th Heaven episode, focusing on a more grown-up Ruthie. The "kiss me" song near the end is sung by a Christian pop rock band. ruthieluver77 does a nice job here spelling out the episode's charm.

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* Rick Warren popped up too. Turns out that John Edwards is a fan. She also notes that he relented from an earlier statement that abortion, gay marriage and such were lines in the sand that would make supporting a candidate on the wrong side impossible. His support of AIDS research, global warming, and inviting Obama to speak was noted. But, the fact he still holds many distasteful views was glossed over. We are stuck with strange bedfellows in other contexts, sure, but this should be noted all the same.

Blondes (Blonds?)

And Also: It is "President's Day," even if the focus is on Washington and Lincoln. I have cited his Cooper Union speech in the past (love that Sam Waterson performance of it), but in a few words here, also talk about another one that highlights his concern for labor and education. [Update: iCarly was bland again. Sigh.]

Lucy: I did it because YOU talked me into it!

Simon: Oh yeah? Well, you were smart to listen, because it looks great. With blonde hair, you can be a whole new you. A you who doesn't care what other people think, a you who has more fun.

Lucy: I'm not having any fun!

Simon: Well, maybe that's because you're still in a brunette mindset!

-- 7th Heaven ("Dangerous Liaisons")

Lot's of 7th Heaven, especially with a mini-marathon yesterday. Like that "brunette mindset" quote! Reminds me of another, found in the more lame book version of the below book/film/musical:

True blondes, whether natural or not, could be identified by their inner light of buoyant, charmed confidence.

-- Amanda Brown, Legally Blonde

Notice the spelling, which did make me curious with spell checks always finding it improper; we learn here that "blond" is the masculine form, which means I'm a "brunet." Notice any redheads lately (at least natural ones)? No? Not too surprising.

Friday the 13th Again

The undying “Friday the 13th” franchise gets a surprisingly decent reboot in this stylish, playful example of the decapitated hottie genre.

-- NYT Online Review Summary

Of course douche bag Trent will eventually get his, courtesy of Jason, but I don't remember anything about how it happens, which seems like a major failing.

-- Part of sardonic Salon review

One pet peeve is the lazy movie review. The NY Daily News has saved time in this department by cutting back on some of the lesser movies, including no longer (at least in the print section) generally including "no preview" reviews that used to pop up (of the 1.5 star variety) on Saturdays. But, there remain a lot of them, including from stars like Roger Ebert.

Nothing is as sneer worthy as people like that turning their lips down on what they deem crap, which turns out to be rather selective (compare Last House On the Left with I Spit On Your Grave, and sorry Rog, I don't see one as a classic, the other as uniquely horrible trash*). This includes forgetting details of films (don't they have interns to serve as fact checkers?) and lazily sneering at lesser films. Yes, this includes some junk, but there is a ton of film out there. There was back in the day too. Some is junk. Some pretty lazy.

You can say this, but still let us know if it is worth watching for those who are looking for that sort of thing. Escapism comes in various forms, after all. And, this sort of film can also be a way for the reviewer (or that intern) to have some fun. Some do, not all apparently being annoyed they are being paid for watching the same trash others just watch to pass some time late at night, or have some reason to pay for those extra cable stations. It must be said, however, that ticket prices are a bit high these days for this sort of thing; $8 even for afternoons sometimes.

Some, like a person trolling at a bar, accept the film for what it is, not that great, but maybe enough. Toss in a cheap afternoon price, like there still is around here (I believe the theater has the same seats as it had when I was a kid), and the latest Friday the 13th movie might be your thing. It does help if, as do I, have a soft spot for this sort of thing. It helps that I saw a few of the original series back when they came out, most of the rest on t.v. or video. You know, for completeness.

And, sorry, if you were actually a bit serious about the movie (admittedly a bit hard), you'd remember a bit about how the guy died. It's useful to keep track, btw, since (spoiler!) the plot is not really too surprising. Think of it like a Greek play -- it's how it gets there that counts. Along with the WB guest stars in the cast (and gratuitous nudity), we actually have someone with a modicum of talent (if the same degree of cheesecake) is Jared Padalecki (Dean from the Gilmore Girls). He provides some useful ballast for the film overall. The mostly forgettable supporting cast, however, do their jobs. Got to respect that.

And, overall, the film is put together with some degree of skill. A prologue and three basic parts keeps you interested. A somewhat new shade of Jason can allow some debate (the Salon piece addresses the point). But, no, this isn't rocket science. Quite workman-like though, and you do not see slasher films for nuance, do you? The Saw movies suggests some of these films are simply depressing (without the depth to warrant that meaning much). Some will be depressed by the genre, but some reviews underline this is not a bad representation of it.

With Scream movies treating this sort of thing as worthy of satire, I can respect a film that goes back to basics. The slasher film leaves something to be desired (how about a trick ending where the "slut" actually lives?) and not everyone will like laughing at people getting cut up (some will also note that other films have more creative kills, for those who like that sort of thing**). But, we are talking about depth here. It's time for cheap fun with a modicum of style. This film delivers.

There is a place for more quality fare, but this sort of this works too. After all, there is a reason a silly movie about a mall security guard was a top film for a number of weeks.

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* To be fair, Ebert can be quite good, even recognizing not good is not the same thing as necessarily lousy. And, he actually thinks the technical credits here are good and the kills scary. But, he lazily notes: "Assuming he was a camper aged 12, he would have been 32 in 1980, and in 2009, he is 61." Well, no, in this film it is suggested that he might have been a kid in 1980. And, in the old series, he rose from the dead, was said to actually be an alien, and was frozen. So, did not simply age even then. And, the lead actually does act. But, if he gave this film too much cred, he might lose some, I guess.

** Consider the Child Play series. The first film, the only one with the mom from 7th Heaven, was a mostly serious thriller with the dark humor of a killer doll. The sequels got more and more silly with humor (for some, this includes the type of kill) much of the point. FWIW, putting aside the third one, they all were worthwhile on some level. Jennifer Tilly rules, obviously.

I have seen less slasher than many fans, but I must say that the second and third sequels to the Sleepaway Camp also has this going for them (Angela Baker is of the fun nutcase variety), here gratuitous nudity (see also Tiffany Shepis in this film, a star of the genre, also found in PG Porn) somewhat more prevalent. For some reason, teenage guys like this sort of thing.

Congress Stuff

And Also: More on indulgences. Those new Kashi commercials are cute -- helped that I got that free cookie in the mail a few months back. Those new Playtex bra ads also seem woman friendly -- of course, the breast stuff might be seen differently if you are a guy.

[Update: Sadly, it is not surprising that it was not made clear -- including btw on shows like Rachel Maddow -- why exactly sixty votes were needed in the Senate. Truthfully, it was a de facto filibuster rule, but technically it was a special budget rule for deficit spending. One that had Democratic support actually, which underlines my support for some form of a supermajority requirement. So, I oppose ending it, but am quite open to the ideas in comments here as to limiting it somehow.]

The NYT fronts and the WP teases the revelation that before Sen. Roland Burris, D-Ill., was appointed to President Barack Obama's old Senate seat, former governor Rod Blagojevich's brother asked Burris to help Blagojevich raise campaign funds. Burris declined to do any fundraising and no one's charging him with wrong doing on that score. The trouble is that this is now the third distinct version of Burris' recollection of his contacts with the former governor. In fact, Burris' new story pretty plainly contradicts what he told the Illinois House of Representatives impeachment committee while he was under oath. Illinois lawmakers are now calling for a formal investigation.

Let me be fair here. There is an argument that there is nothing to see here and/or we need to wait and see. But, it's hard. And, some people on the left know it. It would have been better to have waited until the governor was removed before seating the guy. We are talking about a matter of weeks. Now, there is still more doubt as to the legitimacy of the appointment. The Senate had and would have had some reason to -- via its election judging authority -- delay seating. In a close case, even having Blagojevich's successor appoint Burris would have helped.

LGM thought there was no real case to avoid seating Burris; we also disagree on the filibuster rule. [See comments, including Brien] One thing that annoys me in particular is the claim that nothing would have been differently in the Bush years without a filibuster rule. Putting aside that changing a basic rule like that would probably change the balance of things, especially in the long term, there is a basic problem -- the Democrats could have done more. If they had the will and true Democrat votes.

In a sad way, perhaps this shows how majority rule (or some form of it) really won out. But, it also is a reflection of the differences between how the parties are currently constituted. It also is the true problem, imho, of how the stimulus bill worked out. I think is fair that when 47% or so of the country voted against Obama that their representatives, or some rough form of them, would have something to say about the stimulus package. In the real world, entrusting them with virtual representation of the politicians voted by the other 53% (or so) is not really enough.

So, we have some -- probably open to tinkering -- means to give the minority to check things in a limited fashion. To think, as some comments at the link suggest, that things like the courts of the Constitution alone will protect the interests of such a significant majority -- when much is left to the political processes (how does the courts protect minority economic interests these days, again?) -- is dubious. Yes, the Senate is already slanted because of representation of small states, but that is a separate issue. The problem is when one party acts in lockstep. The Dems simply have not done this, sometimes to its (and our) detriment. The Republicans have ... ditto.

And, it is the lockstep (including following Bush, even in lieu of congressional duties) that is the real problem. The fact that a significant amount of the country, even now, disagree with Obama suggests that it is fair to temper major economic measures to some degree. It's somewhat you learn in kindergarten -- learn how to share, don't let the wishes of the three overwhelm the desires of all the five. The two have a partial veto, but must realize they are in the minority.

This includes accepting that when the three compromises, that they should recognize the fact, and not try abuse the fairness of the three. The true line here is the filibuster rule. It is a bit absurd that after Republicans were given clear respect by the President (contra to how Bush treated the Democrats on judges, e.g.) and compromises were made, that the Republicans in effect acted as a block to try to prevent the measure from even coming up to a vote. This simply gives too much power to three or so Republicans. The lockstep in the House doesn't help any.

OTOH, to require the working together and some compromise, I think institutional checks are legitimate. This does require both sides to play fair, and one side does not want to -- has not for years. But, the other side (and the people) have ways to stop that. And, how things turned out is not as bad as some suggest. As to the House, as Atrios notes, it is okay that there are differences, and one party strongly supports a measure, not letting the other water down its principles in the interest of "centrism" or whatever. Still, it is hard to believe that every single member of the party, especially given everything involved, opposed the measure in the House. No dissents?

Admirable on some level, I guess, but again, the rules sort of assumes more individual judgment than that. I will stick with the possibility of a filibuster, but sure, I understand why some would be dubious these days.

A Bit More ... (and Indulgences)

And Also: The Oyez Project provides audio of Supreme Court orals, though it is still far from complete as to past years. But, it still provides much interesting material, including multiple examples of how David Souter is pretty tough in questioning when he wants to be.

Just now, I referenced some comments I made about Nadya Suleman at a blog generally matching my p.o.v. about things.

One immediate reply was that it was really none of my business. This to me is absurd. First off, her case involves at risk young children, the public fisc, rules on medical care, media reporting, and more, that simply cannot be deemed totally private. Second, we can have an opinion on things that ultimately are the choice of others. In fact, our "private" choices are in part a response to our judgment that grows from such discussion. We cannot let this extreme case serve as a representation of IVF or whatever, but perspective clearly needs to be shown on both sides. It's useful to remember that sometimes.

According to church teaching, even after sinners are absolved in the confessional and say their Our Fathers or Hail Marys as penance, they still face punishment after death, in Purgatory, before they can enter heaven. In exchange for certain prayers, devotions or pilgrimages in special years, a Catholic can receive an indulgence, which reduces or erases that punishment instantly, with no formal ceremony or sacrament.

The NYT followed its article on indulgences with an interesting discussion among some religious talking heads, such discussions a useful resource in general. Given the medieval flavor of the practice, some might find the whole thing rather ridiculous. But, the discussion (and article itself) suggests things are a bit more nuanced. I found Colleen Carroll Campbell's comments concerning "a connection between the renewed emphasis on indulgences and a growing hunger among Catholics for deeper understanding of the mysteries of sin, grace and repentance" particularly interesting.

Amy Sullivan's writings (see, e.g., The Party Faithful) underlines this "hunger" is not just the realm of conservatives such as Ms. Carroll-Campbell here. One might not accept the obviousness of "original sin" (she argues that we "can see it in the street" -- what? harm to others? or, that the harm is a result of innate guilt present in babies?) and still see a need to address repentance and grace. The words to some have a conservative religious flavor to them, so they are loathe to talk about them.

But, many wary of former Bush speechwriters will still have things to repent, with or without using God per se to do so. The logic behind indulgences ultimately might be seen as a tad ridiculous if we take all of its baggage (including the afterlife stuff) into consideration. But, the more general concern remains, even if you do not agree with the specific mode of doctrine being used. And, quite often, even the firm believer in let's say the Christian faith is not really concerned about the nuances of the doctrine.

Their basic concerns, even if the specific expression is not yours, have broad appeal. This includes repenting and how one way our overall sense of grace is reached is by doing little things toward the end. Does not this theme seem logical on Valentine Day, one concerned with relationships in which various wrongs will be "indulged" by a partner via various acts that amount to repentance? We need not think there is some strict scoreboard we can follow here (act "x" erased by reaching a certain amount of points via doing "a,b,c.") or something.

The core of a practice might be wrong, but it just might be that the problem is the less important means to that end. Let's not miss the forest for the trees.

Saturday Quickies

Don't like his replacement over at TPM, but Greg Sargent is still doing his thing, such as this account of "the mouse." A b.s. talking point on many levels, especially since stimulus that might in some way help animals is still stimulus. The bill btw was passed by Congress by President Day Weekend. I spoke about Nadya Suleman here (as "Joe" in comments) -- single moms and poor people? Oh yeah, THAT'S her problem. Come on! Some deaths are especially cruel. Happy VD!

Odds and Ends

Pitchers and catchers are reporting, baseball season has officially begun, so here's an article on Daniel Murphy. Meanwhile, is it okay I linked that? Good piece on how sometimes, patently wrongly, one just might not know. Lincoln's 200th yesterday. He's being overplayed. One theory on Joaquin Phoenix's weird outing on Letterman a few days back. McCain is a boob. Coleman lingers on.

Do Not What I Do -- You Ordinary People

And Also: I am avoiding watching a few films these days by reading the source books. Currently, I'm reading David Frost's Frost/Nixon (a sort of updated look back, that mixes a summary of events, the aftermath, and some transcripts). A play/movie is a different animal, but this would be a useful companion piece. Likewise, I'm sure the DVD will have some clips of the interviews on a bonus track.

nobody is above the law and if there are clear instances of wrongdoing, people should be prosecuted just like ordinary citizens. But generally speaking, I'm more interested in looking forward than I am in looking backwards

-- President Obama

There are various "clear instances of wrongdoing" where "people" (members of the government) will not be prosecuted "just like ordinary citizens" (us little people). The net result, in reality, is that such people are above the law. I made this point here, but was pointed to prosecutorial discretion. When the state selectively favors certain classes of people -- call it what you like -- they are in fact above the law.

Likewise, "ordinary citizens" (what the hell is that? some sort of de facto title of nobility for the rest?) are not treated this way. "Ordinary citizens," for instance, are not let off when they break the law, even if their superiors give illegal orders. And, again, since there are many "clear" cases are wrongdoing not to be addressed here (one so blatantly done that a bipartisan group of Senate leaders responded with legislation against abuse of the states secrets doctrine), qualified immunity isn't even a question. Even truly "clear" violations will result in no charge or penalty. The word comes off as b.s.

There are reasons for this. For instance, as my opposite number at the link above noted: "What we are clearly seeing here is a political decision to avoid rekindling of partisan hostilities in the hope of making progress on other fronts." But, "partisan hostilities" is not the only issue. There are also foreign policy concerns, the desire for discretion (even illegitimate in scope) and so forth. Whatever. I don't find such a heavy-handed "it's off the table" pre-emptive strike necessary all the same. Some sort of independent "truth" commission, even of an investigatory type, might work. I might think it too wimpy, but I can respect it. But, if you stack the deck like this, it will look like a sham.

Dangers still exist. First, if you don't face up to your past, including punishing wrongdoing, repetition is quite possible. Some opposed a similar theory for pardoning Nixon for such reasons. Second, it might be counterproductive as foreign policy at the very least, in part because it might be illegal. Hmm. Well, does the U.N. Convention Against Torture, which we signed and ratified, mandate otherwise? Or, does it just require reporting alleged events to the executive authority? Let's see. Glenn Greenwald today cited four relevant articles in this context: 2, 4, 7 and 15.

Article 2

1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
2. No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

When it comes to wrongdoing here, there are various means used to "prevent" such as fines, criminal penalties, and not allowing the conduct to be used in a criminal case (the Exclusionary Rule). This is not only done in "clear" (hint hint) cases. The second clause deals with the "but was right after 9/11 and ..." justifications. The third clause deals with the "just following orders" defense. How did "looking forward" work during the Iran Contra days? Should we have not charged the Nixon co-conspirators for political peace?

Article 4

1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.
2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.

The statute of limitations, except in select cases, should in effect be the end of the term of office of the President when the acts were committed. Sorta implied.

Article 7 [in relevant part]

1. The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.
2. These authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State.

The first clause does not say "for the purpose of investigation." The spirit if not the text implies prosecution, and discretion that is so across the board to make it null is simply not legitimate under a reasonable reading. A heinous dictator could similarly make mincemeat of the provision in that fashion. Likewise, "ordinary" cases of serious crimes in this country does not work in the way Obama wants these crimes to be treated. In effect, certain types of heinous crimes will (for policy reasons) be treated differently, less harshly in fact.

Article 15

Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.

This is not as relevant in the particular discussion at hand but overuse of the states secrets doctrine, resisting a full-fledged investigation (for fear of partisan results or whatever) and not "looking backward" in various case will inhibit determining if the statements at hand were made as a result of torture. Or, again, putting in place the measures to deal with the matter.

I understand his reasons, but he is treading on thin ice here, and I fear it has broken.

Sausage making

For instance, even as negotiators accepted many of the Senate’s reduced spending provisions, they were careful to maintain an additional $6.5 billion for medical research that was inserted at the insistence of Senator Arlen Specter, Republican of Pennsylvania, who is a cancer survivor.

Neat trick that the conference committee resulted in a less expensive bill. More sausage making included perks and dubious provisions for "centrists." But, a win is a win, for someone. To be continued.

Let's Remember

And Also: I cite the lousy decision by Obama to follow in Bush's footsteps today regarding the states secrets doctrine in an extraordinary rendition lawsuit. One of ten cases a new Slate piece ironically suggested he do the exact opposite. More here.

Publius at OB* has had a few good posts on the stimulus bill. This is one of those areas where I mostly am left with being inclined to trust the people who over time have seemed more right than not on issues, balancing the levels of possibility in a certain direction. That is, secondhand judgments, which is fine, since it is a common way of handling things outside of those few areas one might have some expertise over.

Anyway, this underlines the problem with a handful of "centrists" (e.g., those who often voted with simply wrong Republican leadership) have such an important role. It's like averaging out tests you take and having to deal with a 40. Which probably gives the Republicans too much credit -- more like a 25, matching Bush's approval ratings. Either way, a quick AP piece entitled "Obama executive order favors union labor" underlines why elections matter, even if we have to deal with imperfections. IOW, the "new boss, same as old boss" stuff is b.s. Your friend can be a pain (or simply, baldly, wrong); doesn't make him/her your enemy:

President Barack Obama has issued an executive order backing the use of union labor for large-scale federal construction projects.

The order encourages federal agencies to have construction contractors enter project labor agreements. Those agreements require contractors to negotiate with union officials, recognize union wages and benefits and abide by collective bargaining agreements.

Obama's order restores a Clinton administration rule that was rescinded by President George W. Bush.

It is the fourth union-friendly executive order that Obama has signed since he's been in office.

You build off that, re-frame the "center," and continue to push in part because they have the ability to listen to reason (and will need your fiscal and other support sometimes too). Seems about as easy as filling an inside straight, but so be it.

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* Sometimes, I simply don't agree with Publius (Hilzoy is more consistently worthwhile), but he hits home other times, like his recent post noting tax "cuts" generally translates to burdens on the poor, police/school funds, etc., the money needing to come from somewhere. The net result is basically a "tax" on other people. As with the "death tax" stuff etc., framing helps prevent us from quite understanding the point. Obama has a responsibility to get people to truly understand this point. I think he has a shot.

Crooks and Liars also ala Glenn Greenwald in other contexts does a good job reminding us of how the past is different from the present, when the shoe's on the other foot. Bush in 2001, after getting a minority of the vote ("mandate"), pushed for a tax cut that over time would be bigger than this stimulus package. Without the emergency. He didn't feel compelled to have a "bipartisan" vote, though various Dems (not just two or three) helped him out. Remind remind!!

TV Quickies

Another lame iCarly episode -- will the show find its way again? Caught a few episodes of Seventh Heaven recently -- has something, if too safe. But, still, it deals with real people and problems, and the characters are likable. NFC got the booby prize with the Pro Bowl win. GG on Moyers (see Update II for links).

Saturday Quickies

The Senate stimulus "compromise" is something of a joke. RIP James Whitmore. Not much promotion of "National Wear Red Day," even if my Tylenol calendar noted it. What was with the octuplet interview promotion at the end of Rachel Maddow yesterday? (okay, the mom is cute, if nuts) Couple new blogroll links.

We Were Just Following Orders!

The Obama administration will not prosecute CIA officers who participated in harsh interrogations that critics say crossed the line into torture, CIA Director-nominee Leon Panetta said Friday. ...

It was the clearest statement yet on what Panetta and other Democratic officials had only strongly suggested: CIA officers who acted on legal orders from the Bush administration would not be held responsible for those policies. On Thursday, he told senators that the Obama administration had no intention of seeking prosecutions for that reason.

As noted here, this is b.s. I put aside the "critics" framing. The "critics" per se don't matter. "Critics" who say the moon is made of blue cheese are not the concern here. The concern is what the LAW including international law "says." I also don't like the use of a weenie term like "harsh interrogations." What the hell does that mean? "Harsh" interrogations in various respects are legal. Just ask various people who were interrogated by members of a U.S. police department. We are talking torture and the like here. Laura Penny fits again:

Bullshit distracts with exaggeration, omission, obfuscation, stock phrases, pretentious jargon, faux-folksiness, feigned ignorance, and sloganeering homilities. When Dubya speaks of freedom and liberation, and claims to be praying for peace as the army disgorges load after load of bombs, he is not lying. He is bullshitting. A lie would be easier to disprove. Bullshit is a committee-drafted simpleton's sermon about evildoers and terra and freedom being God's gift to all men.

-- Laura Penny, Your Call Is Important To Us: The Truth About Bullshit

There is a certain curious nature to this story. Some readers might wonder about the proviso that "legal orders" would be involved. Now, some would think this means "orders that are legal," that is, orders that followed laws against cruel, degrading and inhumane (not "harsh") interrogations. The last link provides clarification, the "just following orders" defense:

In an obvious effort to avoid fouling the nest he is about to occupy at CIA, he tried mightily to argue that individuals who were told that torture techniques like waterboarding were legal “ought not to be prosecuted or investigated” for following the guidelines from the Attorney General and the Justice Department.

Ah yes. We have an amendment to the business about the law being what the Supreme Court says it is. Now, if the underlinings of the President says something is "legal," it is. Neat trick! Torture is wrong. But, the Bush Justice Department says "x" is not torture. Thus, it is not. Such alchemy was sort of which medieval scientists (perhaps who read about the "water torture") only dreamed. Unfortunately, oh too bad, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment says early on (not being written by fools) that:

An order from a superior officer or a public authority may not be invoked as a justification of torture.

Nuremberg suggests that even judges (dare we say the Supreme Court?!) would fit into this principle. To avoid complex discussion, I put that aside, and simply note that clearly policy makers in the executive department are covered here. We are left with a policy concern:

"It was my opinion we just can't operate if people feel even if they are following the legal opinions of the Justice Department" they could be in danger of prosecution, he said.

We are left with nice but largely empty without more words that "no one is above the law" (patently false in reality) and that those that deliberately violated the law would be prosecuted. What does that mean? It apparently doesn't mean, again, what the treaty we signed says it means: those that tortured should be liable. It seems to leave open (fwiw, and in the last few years, not much in many cases) the possibility that some extreme and/or blatant example would in some fashion be targeted.

And, even this, at times, seems to be something only made crystal clear via a pulling teeth with pliers technique. It isn't enough. You cannot upfront, before there is time for any investigation, stack the deck like this. In reality, I have little hope of much being done against such people. But, it is much worse to as matter of policy take it off the table. The police cannot always protect us, and as a matter of practice, might selectively protect certain people over others. This is different from them blatantly saying it is their policy to do so.

Finally, more enabling. "Panetta formally retracted a statement he made Thursday that the Bush administration transferred prisoners for the purpose of torture." Mistakes were made, but their heart was in the right place. It is aggravating enough that sizable majorities in both houses of Congress and control of the presidency is not enough, no, we have to rely on the (often forlorn) hope of Republican sanity on the issues. Clear majority in the House, presidential support, and high 50s in the Senate? Not enough! I reckon with blue dogs and the like, we can be safe with about 70 Dems there.

Until then, we have to provide CYA to the Bush Administration, make it policy of the Obama Administration, that following orders is an excuse for torture. OTOH, we can try this path cited by Obama's hero:

Neither let us be slandered from our duty by false accusations against us, nor frightened from it by menaces of destruction to the Government nor of dungeons to ourselves. LET US HAVE FAITH THAT RIGHT MAKES MIGHT, AND IN THAT FAITH, LET US, TO THE END, DARE TO DO OUR DUTY AS WE UNDERSTAND IT.

After all, isn't Obama a person of faith?

Obama at National Prayer Breakfast

In this way, the particular faith that motivates each of us can promote a greater good for all of us. Instead of driving us apart, our varied beliefs can bring us together to feed the hungry and comfort the afflicted; to make peace where there is strife and rebuild what has broken; to lift up those who have fallen on hard times. This is not only our call as people of faith, but our duty as citizens of America, and it will be the purpose of the White House Office of Faith-Based and Neighborhood Partnerships that I'm announcing later today.

-- Remarks of President Barack Obama at National Prayer Breakfast

As FFRF notes, though Obama is to be honored for remembering those who "subscribe to no faith at all," his nice words (and they are) are not without problems. When Obama speaks of "a living, breathing, active faith," he implies a religious faith. And, that word is not universal, as I sometimes suggest it might be by giving it a broad reach, since he is sure to reference unbelievers. But, everyone "believes" in something. They have "faith" in something. Not necessary God, though. Assumptions like this follow:

"But no matter what we choose to believe, let us remember that there is no religion whose central tenet is hate. There is no God who condones taking the life of an innocent human being. This much we know."

Oh really? What planet is he on? In fact, this sort of thing -- as noted in the panel discussion on C-SPAN last weekend on reporting on religion -- can be dangerous. It is akin to saying that Islam is a religion of peace. Sure, for many or most (as a portion of the whole), but not all. Hyperbole that suggests otherwise causes people to not trust such rosy-eyed accounts at all, some tossing the baby out with the bathwater. Who is to say no "religion" can have a central tenet of hate? That "no God" condones the taking of innocent life? I rather not my President do so, let me tell you. This is not what should be; it is what is.

As Marci Hamilton, a conservative strong believer in the separation of church and state argues, promotion of governmentally supported faith based funding is problematic. All the same, as she notes: "he also opposed a regulation that gives entities that receive such funding the right to hire only co-religionist to provide the services at issue." Important correction. Some are upset, since this might interfere with the mission of the group involved, but we are dealing with government involvement too. Strings necessarily follow. Can't have your cake and eat it too.

But, why is "faith-based" favored in particular? Why not just "neighborhood partnerships," some being religious groups providing secular services? The favoritism simply is inherent in the program. This puts aside the likelihood that not all faiths will get equal time here, even if the new executive order is sure to include this proviso:

to ensure that services paid for with Federal Government funds are provided in a manner consistent with fundamental constitutional commitments guaranteeing the equal protection of the laws and the free exercise of religion and prohibiting laws respecting an establishment of religion

So be it. We knew Obama was a believer in this sort of thing, especially given his Christian faith grew from his own community activism days. Let us still remember the dangers in mixing church and state, as noted by the dissent here in a case involving the sensitive area of abstinence education:

There is a very real and important difference between running a soup kitchen or a hospital, and counseling pregnant teenagers on how to make the difficult decisions facing them. The risk of advancing religion at public expense, and of creating an appearance that the government is endorsing the medium and the message, is much greater when the religious organization is directly engaged in pedagogy, with the express intent of shaping belief and changing behavior, than where it is neutrally dispensing medication, food, or shelter.

Certain programs, even if they seem to promote benign ends, should not be promoted using public funds. In fact, as the same dissent notes, the other path (given the strings) might even be anti-religious in effect:

By enlisting its aid in combating certain social ills, while imposing the restrictions required by the First Amendment on the use of public funds to promote religion, we risk secularizing and demeaning the sacred enterprise.

So, it's a tricky wicket. Unlike a prayer at the start of a governmental meeting, the prayer breakfast is a "privately run" affair. This doesn't make Obama's stupid statement as to what "all" religions believe as to the nature of God (not what he does) much better. Putting aside the special care he should have given his position, Obama has every right to take part in such affairs. But, federally funded faith based initiatives are not. And, though in theory, the practice can be handled on an equitable basis, I fear that is basically impossible.

Still, perfection will never be the rule here. We have more reason to entrust the likes of Obama with the system than various other sorts. Be on guard though.