Don't Be Stupid

Instead of just taking a knee or not being reckless, Dallas fumbled deep at the end of the First Half. 10-0. A long FG made it 13-7, but on the last play, a score. Oh wait. A hold. End of Game. Awww.

Be Less Messy Than Your Opponent

Such was the idea with the NYG today in a messy win that was cemented by a relatively strong second half. See also, the Eagles losing to the Packers, their strong second half ending with a whimper when Michael "catch me if you can" Vick could not get one yard.

Message: "Everything DIDN'T Change"

9/11 was a seminal moment, but the sky remained blue. I still took the subway home from Manhattan. The "war on terror" is not a unique conflict except that many conflicts have unique qualities. And, it doesn't justify the hate and cheapening of rights. IMHO.

9/11 Message

The goal of any organized terrorist attack is to goad a vastly more powerful enemy into an excessive response. And over the past nine years, the United States has blundered into the 9/11 snare with one overreaction after another.

-- Ted Koppel (read it all)

Quote Me On That

Taking a break from Friday Night Lights (btw, Slate had a weekly discussion about it for the last two seasons), I borrowed a copy of the first season of Drop Dead Diva for a re-watch and special features.

The show concerning a model who came back to life as a frumpy lawyer. The character stuff tends to be better than the legal, but overall, especially with the benefit of ff, a good watch. And, the source of a few choice quotes, not only some amusing comments by Stacy! Grayson tells Deb how the "law never stands still ... it's a reflection of society." Ah, like a mirror! A "smart mirror." Also, "law is the wisdom of the ages wrapped in the opinion of the moment." Clearly, a living constitutionalist!

I note in my profile that I'm not an expert in the subjects for which I write, just an educated civilian. Still, there is some truth to this:

A “layman” who reads the text of the Constitution, and studies the law, and understands the interplay of precedent with the text, and learns how the different parts of the text fit together, and works to challenge their pre-conceptions as opposed to just finding the parts of the Constitution that agree with their a priori beliefs... well, they’re the equal of any constitutional scholar. Of course, at that point, they’re no longer a layman. They are a constitutional scholar.

Well, use a different word, to keep the humility in there, but a good point is made there. The average person often does not look at law (or various other subjects) in a nuanced fashion. Some retain their average bona fides, but have done enough reading and analysis on their own -- it need not be professional or anything -- to take themselves to another level. Again, this can be true in other areas, like let's say car repair or so forth. At some point, a person has a certain skill-set, one they should be modest about given they still are not a true expert, but aware enough that they know more all the same.

Meanwhile, a few interesting lower court rulings concerning Second Amendment rights while being found to illegally possess marijuana (though not quite addressing the medicinal possession issue) and First Amendment protections for tattoo parlors.

DADT Struck Down

[Update: A comment to a somewhat confused Balkinization analysis cites this interesting discussion of when Presidents (or SGs) don't defend statutes. The various interests involved make it more than a matter of a single President thinking said law is unconstitutional. So, Obama warily defending DADT in court has some justification. It's hard though -- DADT and DOMA is based on sand, and trying to defend it without looking like a tool is tricky.]

A federal judge, in a trial set to begin Sept. 13, will apply a new standard to the military’s “don’t ask, don’t tell” policy. This time, the burden will be on the military to prove not that Witt is a lesbian – her sexual orientation is not in dispute – but that her homosexuality is harmful to her unit’s cohesiveness.

-- Recent News Item (More here)

Right before the remand of Witt v. Department of Air Force (9CA) was due to be tried, another federal judge struck down DADT under its standard as well as under the First Amendment. Witt held that Lawrence v. Texas had implications in the military, setting up an intermediate level of scrutiny that put the burden on the government. The government would have to show that unit cohesion required the policy. This is notable since Lawrence was a criminal case, one that surely had civil implications, but how would it apply in the military context? And, what level of scrutiny was required? The First Amendment was not dealt with in that case.

[Update: Via a comment here, I see that Witt actually cited a military court of appeals ruling that applied Lawrence to the military context using heightened scrutiny. The case involved sex between people of a different rank, so the "consent" exception to Lawrence applied. But, the fact the "UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES" applied such careful review underlines the legitimacy of the review in this context.]

Witt split the baby, noting its language and citation of fundamental rights precedent suggests at the very least more than rational basis review. En banc review was denied, a few judges dissenting, Kozinksi doing so since he felt it warranted close and careful review. Note that Kozinski joined the unjust ruling discussed yesterday. Here his concern was probably warranted, the matter just the sort of thing full review is there for. He also suggested that the policy might change in the meanwhile. That was December 2008; since then by the data cited in this opinion, hundreds more were kicked out.

[The case at issue here was brought by the Log Cabin Republicans, officially a non-profit corporation. Yes, a corporation. The horror! Yes, it had standing to defend various members, but such is the case for other corporations too. This is why just citing that a "corporation" is involved (e.g., NYT or NAACP) is not enough as some sort of scare tactic.]

As to the immediate case, the discussion notes that the policy does not meet the test; instead, it burdens the military in various respects. Thousands of people, many trained in necessary skills, are lost as "moral waivers" are necessary to fill needs. The usual "meritocracy" is not followed. Distrust is promoted in the ranks because of the resulting secrecy. It is not needed for unit cohesion. And, even in respect to privacy, other than basic training, there is enough separation for that not to be a problem. [Rachel Maddow in an interview with a witness Friday night notes that government actually cross-examined him about this issue. So, even if the government didn't put on their own witnesses, it still acted like tools here.] The delay in many cases until people came back from overseas underlines the lack of necessity.*

Overall:

The Don't Ask, Don't Tell Act infringes the fundamental rights of United States servicemembers in many ways, some described above. The Act denies homosexuals serving in the Armed Forces the right to enjoy "intimate conduct" in their personal relationships. The Act denies them the right to speak about their loved ones while serving their country in uniform; it punishes them with discharge for writing a personal letter, in a foreign language, to a person of the same sex with whom they shared an intimate relationship before entering military service; it discharges them for including information in a personal communication from which an unauthorized reader might discern their homosexuality. In order to justify the encroachment on these rights, Defendants faced the burden at trial of showing the Don't Ask, Don't Tell Act was necessary to significantly further the Government's important interests in military readiness and unit cohesion. Defendants failed to meet that burden. Thus, Plaintiff, on behalf of its members, is entitled to judgment in its favor on the first claim in its First Amended Complaint for violation of the substantive due process rights guaranteed under the Fifth Amendment.

The policy also violates the First Amendment. It is an illegitimate content based regulation -- "distinguishes between speech regarding sexual orientation, and inevitably, family relationships and daily activities, by and about gay and lesbian servicemembers, which is banned, and speech on those subjects by and about heterosexual servicemembers, which is permitted." The military has more discretion to regulate speech, but the policy still is "far greater than necessary to protect the Government's substantial interests." And, again, as suggested above, the policy not only interferes with sexual privacy overall, but general freedom of expression.

The very name of the policy underlines the speech aspect, even if conduct is also involved. When the policy was first proposed, (then chairman of the Joint Chiefs of Staff) Colin Powell differentiated it from racial integration of the military: "skin color is a benign nonbehavioral characteristic, while sexual orientation is perhaps the most profound of human behavioral characteristics." The use of "benign" is telling; also, as the Supreme Court recently noted: "Our decisions have declined to distinguish between status and conduct in this context." Resting on the law and legislative action itself ["it again must be noted that Defendants called no witnesses, put on no affirmative case, and only entered into evidence the legislative history of the Act"] did not do the trick here.

The Obama Administration is clearly just trying to run out the clock here. But, meanwhile, federal judges have to do their job. Unlike in the last case, they are not supposed to pass the buck. As Rachel Maddow notes, meanwhile people continue to lose their job.

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* Some discussion:

Among those discharged were many with critically needed skills. According to the Government's own data, many of those discharged pursuant to the Act had education, training, or specialization in so-called "critical skills," including Arabic, Chinese, Farsi, or Korean language fluency; military intelligence; counterterrorism; weapons development; and medicine. (Trial Tr. 199:24-200:5, 204:23-24, July 13, 2010; Trial Ex. 9.) Far from furthering the military's readiness, the discharge of these service men and women had a direct and deleterious effect on this governmental interest. [critical skills]

Citing a Pentagon study, he opined that for every person discharged after ten years of service, six new servicemembers would need to be recruited to recover the level of experience lost by that discharge. (Trial Tr. 1029:6-23, July 20, 2010.) With that background, Dr. Korb opined the Don't Ask, Don't Tell Act negatively affects military recruiting in two ways: its existence discourages those who would otherwise enlist from doing so, and many colleges and universities will not permit military recruiting or Army ROTC programs on campus because the Act's requirements violate their employment nondiscrimination policies. [skilled lost]

In addition to the increased numbers of convicted felons and misdemeanants allowed to join the ranks of the military forces, Professor Frank testified that increased numbers of recruits lacking the required level of education and physical fitness were allowed to enlist because of troop shortages during the years following 2001. ['moral waiver']

He described the military as a meritocracy, but testified that the Don't Ask, Don't Tell Act detracts from the merit-based nature of the organization, because discharges under the Act are not based on the servicemember's failure to perform his or her duties properly, or on the effect of the soldier's presence on the unit's morale or cohesion. [merit]

Judges as Umpires?

Various times when they said "no way." Meanwhile, the appeals court has granted a temporary stay on the stem cell ruling.

"Don’t Be A Dick"

One thing that some atheists promote is the "don't be a dick" aka "edgy yet friendly" principle. This is a good principle for advocacy, one not shared by all. A dick is annoying and often counterproductive, sometimes especially those with good overall views. So, DBAD!

Abdulrahman Zeitoun et. al.

[Update: As expected, even in his flu weakened state, Glenn Greenwald has a post up about this and will add more later. And, he rubs it in about Obama. Fine. But, the alternative is still worse. People might need more to care about the next election, but that alone is a reason to care. No matter how aggravating it is. Not that I don't get the anger. Well deserved that. More commentary/background.]

Arbitrary imprisonment and torture under any circumstance is a “ ‘gross and notorious . . . act of despotism.’ ” Hamdi v. Rumsfeld, 542 U.S. 507, 556 (2004) (Scalia, J., dissenting) (quoting 1 Blackstone 131-33 (1765)). But “ ‘confinement [and abuse] of the person, by secretly hurrying him to [prison], where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.’ ”

-- Mohamed v. Jeppensen Dataplan Inc. (dissenting opinion)

Zeitoun is an award winning book concerning a Syrian immigrant with a successful contracting business (and a native American convert for a wife) stays behind to keep an eye on things during Katrina and gets caught in a Kafka-esque nightmare (the last 1/3 of the book). A powerful page turner. An innocent man, trusted by many to protect their property, was seized with three others, not allowed a phone call and kept in prison for weeks while his wife started to believe he was dead.

This was the result of the anarchy in the midst of the storm, though it is hard to justify not finding some means to set up some sort of system where someone like him could not even have contact with the outside world for around three weeks. Even if he was guilty, which he was not, his treatment was cruel and unusual. A basic violation of rights. But, this for some is too much to expect. As the majority in a 6-5 ruling, overruling the panel regarding a civil suit to obtain some relief in a case of extraordinary rendition, just ruled in respect to the anti-American "state secrecy" doctrine in place now:

“This case requires us to address the difficult balance the state secrets doctrine strikes between fundamental principles of our liberty, including justice, transparency, accountability and national security,” Judge Fisher wrote. “Although as judges we strive to honor all of these principles, there are times when exceptional circumstances create an irreconcilable conflict between them.”

Somewhat different facts, same results -- for some people, when it comes to our basic values, actually enjoying them all is too much to ask. Yet another excuse is found, so that:

“To this date, not a single victim of the Bush administration’s torture program has had his day in court,”

As the dissent -- again it's 6-5 and the majority admits they are troubled by the result -- notes: "The majority dismisses the case in its entirety before Jeppesen has even filed an answer to Plaintiffs’ complaint." This is sham justice. It gives aid and comfort to those who say that President Obama (to be generous) in effect b.s. us when he said he would change Bush's policies. As Charlie Savage, who joined the NYT and is an expert in this field notes in the article, in rather harsh language:

The decision bolstered an array of ways in which the Obama administration has pressed forward with broad counter-terrorism policies after taking over from the Bush team, a degree of continuity that has departed from the expectations fostered by President Obama’s campaign rhetoric, which was often sharply critical of President Bush’s approach.

The absurdity of it all is underlined by the fact that the majority blocks even a chance for judicial relief, a chance to show the district judge that there is enough there without the secret evidence. Tying the district court's hands is unjust, but some middle ground might bring forth some semblance of a fair hearing. The majority however -- akin to raising the chance of a pardon to some wrongly accused -- counsels executive and/or legislative relief. If only! What do they think we are, Canada? This besides ignoring the proper role of the courts:

Permitting the executive to police its own errors and determine the remedy dispensed would not only deprive the judiciary of its role, but also deprive Plaintiffs of a fair assessment of their claims by a neutral arbiter. The majority’s suggestion of payment of reparations to the victims of extraordinary rendition, such as those paid to Japanese Latin Americans for the injustices suffered under Internment during World War II, over fifty years after those injustices were suffered [Maj. Op. at 13554], elevates the impractical to the point of absurdity. Similarly, a congressional investigation, private bill, or enacting of “remedial legislation,” [Maj. Op. at 13556], leaves to the legislative branch claims which the federal courts are better equipped to handle.

Given the shoddy basis* (with three no nonsense FDR appointees dissenting) of the start of all of this, it is not too surprising, sadly. This lawsuit shouldn't be occurring. A means should be present to obtain relief. If the U.S. government wants the shield of state secrets, there is a way to balance all those American values without sacrificing one or more. The most obvious is to provide fiscal relief to those wrongly treated. This is akin to use of wrongly seized evidence: pay the piper, if you want to play a wrongful tune. But, that's too much to ask. The majority claims this is met:

In September 2009, Attorney General Eric H. Holder Jr. issued a new policy about future invocations of the state-secrets power, requiring higher-level review before it could be invoked in a lawsuit and promising that it would never be used for the purpose of covering up illegal activity or preventing official embarrassment.

B.S.! What is this lawsuit if not a means to prevent such cover-up, to prevent injustice and un-American behavior from occurring once again? If the government wants to claim that the lawsuit is just about revealing secrets, pay the people the money and/or provide some means of reparation. Provide some relief. But, as with Maher Arar, it does not want to do this. Meanwhile, relief in the courts are repeatedly blocked. Promises that we will not do such things again are made, but the government continues to act in ways that are shameful.

[And More: As noted by a NYT op-ed today, the majority acted as it did "even though it is public knowledge that Jeppesen arranged the torture flights," ensuring us that this was a special case. But, I don't believe it, especially given the overuse of secrecy in the past. Why should I trust the an administration who promised change on the point and gave too much of the same? More "trust us" b.s., when "doubt us" is more appropriate, more American. More appropriate when the government has given us no very good reason to give them the benefit of the doubt. Give them a default judgment. Then, maybe.]

And, without safeguards, what about when a new regime comes into power? When the next 9/11 or Katrina will come? Who will be the next Abdulrahman Zeitoun to be lost in the system, to use a comparison found in the book, like a stray caught in a fishnet, a dolphin or other animal caught by mistake or basically an unfortunate victim of the process? Such as some civilian killed in a drone attack, who all too often are assumed to be somewhat guilty by many people anyhow?

It's all very depressing. I think the courts can manage here, but fine, let's say they cannot. The executive and legislature then should do something. Such is the appeal of the majority here. But, where's the true legislative reform of the state secrets doctrine that was in the works? The Obama Administration doesn't really want one, since it feels their hands will be tied too tightly. Yes, such is what occurs with checks and balances. The travesty is that such things underline how moderate Obama is overall, push comes to shove, such moderation these days supporting conservative things. But, not enough apparently: we need to make things worse!

And, if you aren't going to show any real desire to bring people to justice, provide fiscal reparations or even provide a full airing of what occurred ("let's look forward"), trusting them to take basic power away from the courts to secure justice. 6-5 splits also should go the way of liberty. If it is that close, what the majority allowed here should not be done. If you are so uncomfortable, one or more of the judges should have joined the minority, which again, didn't want to give away the store or anything. Finally, those who think Obama just did this as some sort of thirteen dimensional chess move to test it in court are really kidding themselves.

Can't ask for too much liberty in these times, I guess.

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* Lest we forget, the original state secrets ruling -- discussed here -- had three dissents, the hard-nosed FDR appointees Black, Frankfurter and Jackson. They notably merely cited the decision below, one written in the midst of the Cold War. The opinion by Judge Maris in part noted:

The Government presses upon us the contrary conclusion of the Britich House of Lords in Duncan v. Cammell, Laird & Co., (1942) A.C. 624. The case is distinguishable in that the plans of the submarine Thetis there involved were obviously military secrets and the suit was between private parties. But we do not regard the case as controlling in any event. For whatever may be true in Great Britain 22 the Government of the United States is one of checks and balances. One of the principal checks is furnished by the independent judiciary which the Constitution established. Neither the executive nor the legislative branch of the Government may constitutionally encroach upon the field which the Constitution has reserved for the judiciary by transferring to itself the power to decide justiciable questions which arise in cases or controversies submitted to the judicial branch for decision. 23 Nor is there any [**27] danger to the public interest in submitting the question of privilege to the decision of the courts. The judges of the United States are public officers whose responsibility under the Constitution is just as great as that of the heads of the executive departments. When Government documents are submitted to them in camera under a claim of privilege the judges may be depended upon to protect with the greatest of care the public interest in preventing the disclosure of matters which may fairly be characterized as privileged. 24 And if, as [*998] the Government asserts is sometimes the case, a knowledge of background facts is necessary to enable one properly to pass on the claim of privilege those facts also may be presented to the judge in camera.

Any superiority cited to the U.K. or Canada on these matters are a tad ironic these days. But, the sentiment holds true.

Luca Duda?

"Lucas Duda was 0-for-2, knocking his average to .045." Yes, but unlike Mike Hessman, he showed some life on the field.

Gee, Not Bad

Pitched well, got a RBI on his first hit and wasn't kept in long enough to blow it (as happened once to PM) -- not a bad rookie outing. But, tacking on would have made things easier late! Hessman doing nothing again didn't help. Seriously, the guy is dead weight.

Stem Cell Ruling Update

Update on the embryonic stem cell ruling helps Bush's policy look different (and allow some research to continue hopefully), but perhaps not in a very convincing fashion. Time for legislative action still.

"Adult Movies" (Not Porn)

I agree -- "adult movies" should be defined better, just like ratings shouldn't just be a matter of curse words or body parts. Flashback to my high school intro to letters to the editor: the silliness of giving a film like this an "R" rating.

My .02

GG brings to mind my recent praise of a guest Balkinization contributor here in his respect for comments. The failure of back/forth is one reason I don't like the new Slate comment system. I give my .02 on "errors" here: if they helped, they helped that way too!

Vegan Cupcake Queen

As a vegetarian who tries to be as vegan as possible, this is much appreciated, though I'm not a cook. I bought a kettle since boiling water without one didn't quite work. Vegan alternatives often are quite tasty; the problem is having them easily available!

Now Pitching Oliver Perez ... This Can't Be Good

The OF that usually kills the Mets actually missed a catch, but Pelfry collapsed early. So, it's yet another bad game against the Nats. Those "let's go Mets" Citibank (they play at Citifield) commercials with the mascot are unfortunately timed, besides being a tad annoying.

Christmas: A Candid History

This provides a nice bite sized discussion of another holiday.

Ronald C. Den Otter

With comments closed off or troll dominated discussions, a recent discussion by a guest blogger regarding his new book on judicial review at Balkinization is a nice diversion. If only the book wasn't so damn expensive -- overpriced college textbook price.

27 Runs, Three Games, One Win

More Mets fun. 6-3-18. [Not 6*3=18] Admittedly the last is a laugher, but the other two warrant at least one win, right? And, the last one looked like it was going to be another nailbiter until someone finally had a clutch two out hit and they really added on late.

"Interesting Freedom of Religion Case from Israel"

H/t David Bernstein, who avoids the kneejerk this time around. Basically, a private school is allowed to require neutral dress, even if a teacher submits a religious reason. A fictional account sorta similar, Does My Head Look Big In This? has a different result.