Democracy And The Net etc.

Some people are suggesting Sen. Kerry should do more to attract the religious believer vote ... or certain sorts of religious believers, that is, since his four wins included many people in that category. I sneer at one such article here.

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A reply to one of my posts on the complexity of the votes of the current Supreme Court noted that this is as it should be. The Supreme Court did it's job [but see here and here], overturned some troubling acts of governmental power, and the fact it didn't just split along predictable political lines is how the system is meant to work. The system does work sometimes, flawed as it might be. Other times, such as the pre-emption of a state patient rights law and the enemy detainee decisions, it requires additional help from the other branches. Sometimes, such as COPA, requires help from the people themselves.

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I received a letter yesterday from someone I met online a few years back. I first experienced the joys of the web before there really was a web like we have now in the early '90s via local bulletin boards and a political bulletin board. From the start, it was notable how the medium opens up various methods of communication and attachment, some that might be called "pretty personal." This is why I try to be polite and considerate when I talk to people, though there are some outlets for those who want to let loose a bit.

I have a personal hope that in some small way all of this helps the sense of community overall, allowing us to talk and understand other people a bit better. Democracy is not just voting and donating time to campaigns. It is about a public conversation, equal respect, concern about the issues in our everyday life, and so forth. These are things everyone can take part in, things everyone in some way should take part in. Perhaps, the online community can help this aspect of democracy. You know, besides providing porn, sports scores, and email spam.

As COPA Turns

My basic views on the policy matters raised by the case discussed below can be found in Not In Front of The Children by Majorie Heins and Harmful To Minors by Judith Levine. Another thing is that such material is often called "smut," a value judgment that is quite debatable in many instances. Furthermore, the right of adults to view "crude" material is often as present as their right to do the acts portrayed. Finally, let's recall that ultimately the law at issue burdens adults, not just children. I feel minors should have a certain right to view sexual material, but effects on adults is the ultimate damning issue.

Congress wants to protect children from Internet "smut." So, first they pass a broad criminal law covering indecent material, even if it's nonprofit. The Supreme Court says no dice, while discussing the importance of the Internet -- it is only right that one of the major uses of the net is used as a means to honor its overall importance. Seriously, sexually explicit speech often is quite valuable, teenagers have free speech rights, and the rules are just too vague to pass a smell test.

Congress tried again. This time it stuck to commercial sites that are "harmful to minors" with credit card or other methods to block access as a way around such a prohibition. The Court splits over what standard should be used (the main opinion accepted the local standards rule used in obscenity even though the Internet is a [inter]national entity) but overall agreed the lower court should have held hearings before overturning the new law. Justice Stevens would have overturned the law right away.

Meanwhile, the Court allowed a law that based federal funding on the use of filters in libraries. Boo. Anyway, the "Child Online Protection Act" is back again. And, the Court ... sent it back again. In a 5-4 decision, the majority suggested that filtering -- though inexact -- might very well provide a "less restrictive means" to serve the state interests here. So, the lower court (who rejected it on other grounds) should determine if the current state of technology would do the trick. Other techniques such as a "kids friendly" domain name and a provision against misleading domain names also were noted.

I heard this case discussed today and a few parents voiced concern about the Internet. One argued parents have the responsibility to tell their children "no," which is a bit naive, since they are not always around. Another voiced concern of spam emails and such, but this suggests the ability of some narrow focusing. For instance, emails meant to mislead the reader is a special matter. Ditto spam in general. Perhaps, we can also have special "kids emails," and parental controls provided by most Internet providers is yet another option. None completely successful, but neither is this law, the nature of which is so crass that it's either overkill or not likely to be applied except in select instances.

Justice Breyer (in dissent) rightly notes that the slow water torture on this matter is getting ridiculous, but his acceptance of the law is troubling. Those like himself that want to provide a "middle way" at times ignore the fact that our liberties are not just things to be balanced. Yes, it's better than Justice Scalia who apparently thinks "speech" somehow has a "commercial pornography" exception, but only as a matter of degree.

Justice Stevens (with Ginsburg) in his concurrence that would do away with the law right away explains why. First, if we are going to outlaw obscenity at all, a national medium must be tested by a national standard. Second, given obscenity is such a nebulous concept that threatens freedom of speech, a criminal ban is just too harsh. Third, the use of filters provides a less harsh means. Again he eloquently puts forth what is at stake here:

COPA's criminal penalties are, moreover, strong medicine for the ill that the statute seeks to remedy. To be sure, our cases have recognized a compelling interest in protecting minors from exposure to sexually explicit materials. As a parent, grandparent, and great-grandparent, I endorse that goal without reservation. As a judge, however, I must confess to a growing sense of unease when the interest in protecting children from prurient materials is invoked as a justification for using criminal regulation of speech as a substitute for, or a simple backup to, adult oversight of children's viewing habits.

The ability of the next President to be largely responsible in the selection of Justice Stevens' replacement is enough of a reason not to trust the presidency with someone whose track record in judicial picks are suspect. The complex divisions of recent cases suggest the calculus we use in such judgments are not as simple as some might suggest. The fact Justice Thomas (who is a strong believer in freedom of speech in various ways) joined the majority might not make people like him a great choice, but it does select simplistic litmus tests might be foolhardy in certain contexts. After all, did not his own selection process make this oh so clear?

Upheld: The Rule Of Law

Two interesting cases the Supremes accepted for argument included the one I recently noted in my introduction here and a case from the Ninth Circuit which upheld a state medical marijuana rights law on federalism grounds. It remains to be seen how both are handled. The same might be suggested as to the lower courts for a case that was recently handed down. See here.

The court also decided two Miranda (coerced confession) cases today or rather decided (in Justice Kennedy's words in the case held to so violate) when "The interrogation technique used in this case is designed to circumvent Miranda v. Arizona." A hazy middle ground where Miranda is violated but coercion is not shown was introduced in one case, allowing introduction of evidence. Justice Souter's dissent was suspicious overall and in general sneers at the legal acrobatics used to encourage police wrongdoing a bit more.

"We hold that although Congress authorized the detention of combatants in the narrow circumstances alleged here, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker. ... History and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat."

-- Justice O'Connor, HAMDI et al. v. RUMSFELD

"Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it."
-- Justice Scalia (with Justice Stevens), Hamdi et. al. v. Rumsfeld, dissenting.

The enemy detainee cases were handed down today -- basic rule of law was upheld. The clear-cut necessity of this result as compared to what the government demanded was damn clear, unless your name is Justice Thomas (or one of three that bought the Guantanamo Bay dodge). The problem, and the realities of the situation must be noted even if it is deemed petty, is that civil liberties only were partial victors.

There was a sense of "we can only do so much today," and when Chief Justice Rehnquist joins the plurality in one enemy detainee/citizenship case and authors another, you say "uh ok," even if it is a partial win. Likewise, Jose Padilla (5-4) was punted on technical grounds, leaving Hamdi, the toughest case in a way (picked up in Afghanistan vs. in Chicago) as the standing precedent. Anyway, a discussion of the cases can be found here and here, and the links there supplied. I will discuss some of my overall thoughts.

Justice O'Connor's plurality uses a balancing test first set forth in a security disability benefits to determine that Hamdi deserves a hearing, the contours of which are unclear. There is a certain distaste to using such a test given what is at stake. Justice Thomas' solo opinion says that executive discretion in war time and the inability of court to judge the issues would swing thing the other way. There is a certain amount of truth to that, given the test used, but the other opinions (one labeled a dissent, the other a concurrence, but largely in form only) with crystal clarity lay down the gauntlet of the rule of law. If only Justice Breyer joined one of them!

Justice Scalia (with Stevens) suggests "formalism" (following the "forms" or rules set forth in the Constitution) often has a liberating effect. At least when we are dealing with citizens under the control of domestic courts, Justice Scalia offers two main choices: use of the Treason Clause to try or suspension of habeas corpus by Congress. Justice Souter (with Ginsburg) attacks the suggestion put forth by the plurality (joined by Thomas) that the "enemy combatant" designation was justified by law. Furthermore, not only did Congress not suspend habeas, a law passed with the Japanese detainees in mind clearly applies here, as does perhaps the Geneva Conventions.

Justice Scalia passionately sets forth the fundamental nature of these rights as well as the pragmatic (a pragmatism he finds in the Constitution) of letting Congress suspend habeas (or water it down), if it finds it necessary to do so. "A view of the Constitution that gives the Executive authority to use military force rather than the force of law against citizens on American soil flies in the face of the mistrust that engendered these provisions." A sentiment that gets clear support by four justices, somewhat opaque but clear enough support by four more.

One of the opaque four, however, confuses things a bit by joining Justice Stevens' dissent of the Padilla punt with Justice Scalia this time going along with the majority. Sheesh. Justice Stevens suggests the basic pragmatic nature of the majority's opinion avoidance, which tosses it back to the conservative Fourth Circuit to interpret things via Hamdi. His dissent via a footnote appears to give Justice Souter's Hamdi opinion four votes on key issues, five on a hearing if we include Scalia. It also briefly (and passionately) deals with the merits that warrants quoting at length:

At stake in this case is nothing less than the essence of a free society. Even more important than the method of selecting the people's rulers and their successors is the character of the constraints imposed on the Executive by the rule of law. Unconstrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber. Access to counsel for the purpose of protecting the citizen from official mistakes and mistreatment is the hallmark of due process.

Executive detention of subversive citizens, like detention of enemy soldiers to keep them off the battlefield, may sometimes be justified to prevent persons from launching or becoming missiles of destruction. It may not, however, be justified by the naked interest in using unlawful procedures to extract information. Incommunicado detention for months on end is such a procedure. Whether the information so procured is more or less reliable than that acquired by more extreme forms of torture is of no consequence. For if this Nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny.

Justice Stevens wrote the opinion in the Guantanamo Bay Case, an opinion he arguably has waited over fifty years to write. Justice Kennedy provides the sixth vote by reading things more narrowly, but brings to the fore the obvious:

Guantanamo Bay is in every practical respect a United States territory, and it is one far removed from any hostilities. ... The second critical set of facts is that the detainees at Guantanamo Bay are being held indefinitely, and without benefit of any legal proceeding to determine their status.

The ultimate stake of the detainees is up in the air. The rule of law, even in wartime, is a lot more secure. Justice Scalia in the GB case suggests Congress could have made things clear by legislation. Unfortunately, as with the resolution that gave us this bloody war, it didn't fulfill all of its responsibilities. The Supreme Court today went a good way, if not all the way, in fulfilling theirs.

Why We Fight

Update: I'd add that the film is in wide release, I myself seeing it in a suburban multiplex, which should give it a wide audience. It got a round of applause and mixed emotions (laughter and somber quiet). Perhaps appropriately, I'm reading a "complete" biography of Sen. Kerry put forth by The Boston Globe. A bio that skips from 1996 to 2001 is not quite "complete," especially with the important Balkans issue. I'm learning some more about the man, but the bio on Howard Dean was more well-rounded.

I do not really care for Michael Moore. I consider him a bit of a blowhard, who likes to act out, and use theater more than reasoned discourse. This results in a sort of "preaching to the converted" style of business that is worsened in his case by some questionable use of the facts in promotion of the higher truth. I don't care for the strategy when the other side does it, and even if the spirit of the message appeals, I don't like when "my" side does it. I had mixed feelings about Roger and Me, was no big fan of his t.v. show, and was annoyed at his antics at the Oscars.

Therefore, I was dubious about his newest documentary, Fahrenheit 9/11. The credits montage of Bushies getting made-up and looking stupid didn't help. The opening about Florida, including "was this all a dream" (did Gore really win?) was clever, if predictable. I didn't care for his suggestions that Afghanistan was quite possibly just about oil. Shots at war profiting also can be taken too far -- if the war is just, profits sadly will still a consequence. The wars weren't just fought to make money. And, some of his annoying "Michael Moore" touches were in the film. Still, the movie is worth seeing. It is not just for those who "hate" Bush. It might be for those who want to know why so many oppose his administration so strongly. It isn't just, you know, because we are emotional sorts with infantile petty grudges.

An early example of memorable scenes that send an important message or raise points that should be kept in mind was one that particularly struck me. It made be particularly angry, though it did not get as much notice as the weeks beforehand. This lack of notice was as symbolic and telling as the event itself. President (of the Senate) Gore, doing his constitutional duty, was chairing the joint committee of Congress in place to officially declare the winning of the electoral vote. Pursuant to congressional rules, any challenges had to have support from both houses, even if just one vote. Many in the black caucus challenged the results ... black caucus of the House that is, since the Senate had no blacks. And also not one senator who would sign on. The Constitution aside, Congress would not get involved in the investigation ... the Supremes had spoken.

The facts of the film are mostly known, though their collection and packaging sends a powerful reminder of what is at stake. President Bush going to a photo op at a grade school after the first attack, continuing it after the second, and us being told about what was done in the months before (cuts in terrorist fighting budgets, 42% of his time on vacation, Powell and Rice telling the public that Saddam is not much of a threat, especially as to WMDs, etc.). The Saudi connections, including one involved with the other grounded Texas guardsman that summer back then, who don't you know not only had his name redacted from the President's records, but was involved in his oil dealings. That final tidbit, btw, is not particularly damning per se, but is a nice throw in when you address more substantive concerns are included as well.

The Patriot Act, including it not being read by many who signed it, was obviously raised. Michael Moore had a cutesy little bit of taking an ice cream truck in Washington and reading it aloud. The bit, happily, was not too drawn out. It was more valuable that he provided an interview with a member of Congress who also is a psychologist discussing how fears were raised, but vaguely with little information or apparent logic to the whole process. Or, a NY congressman telling him to sit down a bit and listen about how Congress all the time doesn't read what they pass. And, a look at the lack of funding in Oregon for state troops involved in coastal defense. The use of a government agent (outed because he was victim to a non-related homicide) to monitor a granola sort of peace group also was interesting.

The documentary also had some emotional moments that would have been well placed in a more neutral film. The faces of those in downtown Manhattan on that day. The war footage was particularly hard to take at times ... this film is rated "R" for a reason. There is a scene with a gung ho fight song that uses Cheney's favorite "f" word, which would probably have to be edited out for the film to get a PG-13 rating anyway. The scenes of bodies, including of women and children is probably too much. Besides, when you document an obscenity, you have to show obscene things. This doesn't make it easier to explain to one woman from Moore's hometown just why her son died. Her scenes are particularly hard to take. Not that scenes such as an Iraqi woman crying and lashing out at our troops for attacking her neighbor or of amputees and other wounded U.S. soldiers were much better.

Of course, they should be. Senator Kerry read from Johnny Got His Gun during his speech before the first Gulf War, suggesting the horrors of war, and why he was voting against that one. A few hundred of our troops died, many from friendly fire.* Many, many more Iraqis died, including many of those in the mass graves used for justification of Gulf War II. Graves filled with people who heard Bush's father make the same sort of Hitler references, but then let helicopters fly by as they killed resistors that thought we were on their side. President Bush didn't want us to get into a quagmire. You know something like the bloody mess of the last year or so. When people are angry at Bush, when they cannot speak of the administration without a certain degree of vitriol, perhaps recalling what is at stake helps. Perhaps, recalling how our interests were improperly secured might help.

I don't know if anyone's mind would change by seeing this film, and some might be turned off by some of its tone. Still, to turn around an old saying, "this is why we [the opponents of the administration] fight." And, for that, it is worth seeing.

* I checked the stats in 2004 World Almanac. It speaks of 148 "battle deaths," 151 "other deaths," and 467 "wounds not fatal." [updated stats]

Who will be this war's John Kerry? And FU Too!

"How do you ask a man to be the last man to die in Vietnam. How do you ask a man to be the last man to die for a mistake?"

-- John Kerry

Given a recent poll that said that a majority of people think the Iraq excursion was a mistake, who will be the soldier who testifies in Congress this time? Who will the one who asks "how do you ask a man (or woman) to be the last one to die for a mistake?" Who will say like John Kerry did in his class oration in 1966:

"And this [war] has found our policy makers forcing Americans into a strange corner ... that if victory escapes us it would not be the fault of those who lead, but of the doubters who stabbed them in the back ... We have not really lost the desire to serve. We question the very roots of what we are serving."

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To Freeman, concerns about one's honor and reputation led early American politicians to create a highly charged political culture that involved shifting political alliances, gossip, "paper wars," and even, at times, duels.

-- from a review of Affairs of Honor: National Politics in the New Republic by Joanne B. Freeman

I really don't care if Cheney told Leahy "fuck you" ... unless, you know, the sorts he hangs with insists in being all hypocritical about the thing. For instance, Tucker Carlson, the bow tie wearing conservative commentator, noted in his book how Karen Hughes refused to admit, truth notwithstanding, her boss had a little potty in his interview with Carlson. Giving the moralistic sorts that make up his base, and the hypocritical nature of the country, she rightly felt this would be looked upon badly by various sorts.

It's of course hypocritical, but that is our way ... we are such a moralistic country, notwithstanding we are far from moral much of the time. So we worry about a bit of boob on the t.v. or some profanity on the airwaves -- Congress falling over themselves to up the available fines if a Howard Stern crosses some imaginary line.

Hypocrites ... but so are we ... so they continue doing it. It is somewhat refreshing to have such a s.o.b. like Cheney out there. So curse like a sailor, uh Dick,* it's okay.

* Their very names are obscene ... what do you expect from them? Like really.

More On Thursday's Rulings

Feeling a bit like Elaine Bennis, I was a bit disconcerted today passing a woman walking down the street in my residential neighborhood (no liberal bastion) who was wearing only a bikini like top. A worker above her was pretty interested, unless he was looking to see if a co-worker's car was coming. Now, don't infer I'm complaining about such summer sights. I'm just wondering what is running through the minds of the women wearing such outfits. I'm supposing they don't want people to stare or anything. This not being the beach, this might be asking a tad much. Ah summer.

The notion that the government is too busy even to work with the district court at narrowing discovery is part and parcel of this larger claim to blanket authority and secrecy. Which leads me to one small practical point: Why does releasing the mere names of the participants in those discussions squelch the openness and candor of the advice given the president? I understand that there is good reason not to turn over the minutes of meetings. But the distinction between who gives advice to the president and what advice is given still strikes me as a valid one. Can't we protect both candor and the public's right to know? Of course the president has a "right to huddle," as you put it. But doesn't the public have at least some interest in knowing whose hand is on his rear?

- Dahlia Lithwick, responding to Walter Dellinger

Other good posts on "F-You" Cheney's Energy Task Force Case can be found here (broad protection of executive power and weakening of open government laws), here (big win in Cheney's ongoing mission to strengthen executive power), and here (GAO lawsuit). I expand on the themes in my last post, including discussing the true constitutional role of the jury, here.

Ah, rain ... no Subway Series tonight.

Supremes' Criminal Justice Rulings: Mixed Bag

Edward Lazarus discusses a troubling application of a Supreme Court ruling on suspicious exclusion of black jurors, sharing concerns I voiced a few months ago upon reading the lower court opinion.

The Supreme Court handed down various criminal justice decisions handed down by the Supreme Court today. The cases concern such matters as factfinding by juries, application of a controversial Rehnquist ruling concerning retroactive application of "new rules," and the death penalty. They genearlly continue the recent trend of deciding matters narrowly, showing a respect for certain libertarian themes, but in various cases ignoring them. [This case, which is not directly mentioned below, follows the trend.]

SCHRIRO V. SUMMERLIN, for instance, refused to retroactively apply a recent rule holding that if the death penalty (the rule, strictly upheld today over strident dissents, also applies to general crimes) depends on finding of certain facts [such as "heinous" crimes], a jury (not a judge) must do the factfinding pursuant to the Sixth Amendment. Relying on a controversial [as suggested by the 5-4 split on its application in another case handed down today] Rehnquist Court ruling that narrowed the range of application of "new rules" on pending cases, it held it is debatable that judicial factfinding seriously diminishes accuracy.

The opinion was 5-4, and the dissent clearly shows that in this context (accurately determining if death is deserved, not usual factfinding) the opposite is true. 110 people on death row were affected by the opinion. Justice Scalia wrote the majority opinion, but it wasn't particularly snarky.

The opinion did start with a blunt account of the facts and comment on the "protracted" nature of the appeals. The dissent did not provide a balancing statement as to possible reasons why a jury might not apply the death penalty in this particular case. [The dissent by Justice Breyer is also an example of the general trend of well written and relatively short opinions.] It is useful to remember the facts, but also that in appellate decisions, it is the law that is ultimately the issue. The two intermix in a complex fashion so things do turn out to be rather complex.

[I discuss the Cheney Energy Case here]

"Hi! I'm Stupid!"

Mark Kleiman has a good post discussion the "two kinds of suicide." He also links moderate conservative Dan Drezner's latest on how people across party lines feel that the administration puts ideology and loyalty over competence. At what point do they say "enough!" and support regime change?

What's the coherent critique of Bush that will resonate will voters? ... So what to do? Here's my nomination: George Bush doesn't play by the rules. From the Iraq war, to the South Carolina primary against McCain, to the outing of Valerie Plame, to putting political hacks into career civil service positions, to not holding enough press conferences, to refusing to release records, to his National Guard service ... all of these are examples of not playing by the rules.

- Unfogged [see comments to his post for other possibilities, e.g., "phony," "buck stops where?," and "nice guy but incompetent."]

"I accept the legal conclusion of the attorney general and the Department of Justice that I have the authority under the Constitution to suspend Geneva as between the United States and Afghanistan, but I decline to exercise that authority at this time,"

-- President Bush [general info; see also here]

Hi. I'm stupid.

I don't think I am ... oh, sometimes ... you know, like when you are asked something and you are totally clueless? Now, that is a moment when I really feel stupid. Still, overall, I don't think I'm stupid. The President appears to think I am though.

See his administration just released a document saying that he agrees with various memoranda putting forth what many are calling a "royalist" view of the presidency. As commander-in-chief, he has broad powers, including not obeying various treaties, laws, and amendments to the Constitution [especially the Eighth, involving "cruel and unusual punishments," ironically one that grew out of an English protection enacted partly as a result of executive abuses during religious troubles and threats of rebellion in the 1680s] in these perpetual times of war.

Likewise, logical applications aside, the Geneva Convention didn't apply in many situations one might think it would. Still, he will basically follow them, except when "military necessity" would prevent it. Or, when he "chooses" not to. It is unclear if the document applied to the CIA, who were involved in some of the controversial interrogations. I say "basically" since I don't know if that loophole really follows the spirit. As you can see, the President believes certain laws (except for parts of Art. II ... "commander-in-chief" vs. "he shall take care that the [not "some"] laws be faithfully enforced") are optional.

Also, a key requirement is something known as a "Article V" hearing, which would determine if the detainee was correctly held. Not to worry ... again, the administration had its own procedures. As noted, the Constitution is mostly a advisory document to them (e.g. the Fifth speaks of "due process of law," which is legally mandated procedures, not whatever the executive thinks is fair -- which would somewhat miss the point). These procedures do tend to be slow, though interestingly, after the current controversy began, many more suddenly were processed out.

Anyway, like a teenage boy who agrees he has the right to have sex with your daughter but assures you he will not (but lets his pal get his hands on her, though bad mouths him afterwards), just how much is the President's word worth? It is to be noted that Secretary Rumsfeld signed off on guidelines for interrogations many would consider torture, guidelines documentation suggests were seen as applicable to Iraq as well. The administration also has a somewhat um creative definition of "necessity" as well as "imminent threats" that require special action.

There is also rhetoric used that demonized and dehumanized the people interrogated. Clearly the people on the ground "didn't get the memo" about how their superiors was against this sort of thing. This is not too surprising, since it seems that now and again pretty important information doesn't reach the President. And when it was reported, it took awhile for much to be done about it. This, lest we forget, is why the photos were probably leaked by an insider. So, again internal investigations suggest some concern, but the net value is somewhat open to debate.

Actually, Congress also still didn't get the memoranda either ... perhaps, the Justice Department are waiting until they are examined and updated (reports are out that the memoranda the President accepted, but didn't apply ... no really ... are now being reviewed). Now, call me paranoid, but if you have nothing to hide, why do you refuse to supply the documentation? Perhaps, you are afraid they will be misinterpreted ... darn Congress! Such a pain in the ass. And the courts. And the people. Can't they just trust us?

Apparently, we are stupid sheep. Baa!!!!

[One final thing ... Why can't the guy pronounce the name of the prison camp correctly? The height of embarrassment was when he pronounced it three ways in the space of a few minutes. Maybe I'm being petty, but this is a pretty damn serious matter, and perhaps he can learn how to say the word ... Abu Ghraib. This sort of thing, my President basically sounding like a freaking idiot, is supposed to not matter. Sorry, it does to me. But, hey, I'm stupid ... What do I know?]

Hiibel or Gephardt: Who Would Be A Better VP?

Michael Dorf's analysis of the Hiibel decision is dubious on various grounds. Simply put, the statement that it "does not threaten civil liberties," is just plain too broad. Requiring identification, here oral, is forced involvement with the authorities. The importance of written id will soon be noted, especially if weeding out fake names was required. The "reasonable" suspicion supplied here was a tip, little more. Certain sorts of (innocent) individuals know how easy that can be supplied.

Once the police has your name, they can search their database, and a lot more incriminating stuff can pop up. And, yes, certain places "deserve special protection," such as government offices, private buildings, and sports stadiums. It is quite another matter for people in and around parked cars on public streets to be required to have identification. The threat to civil liberties might be justified, but it is there. How can we properly make a cost/benefit analysis when all costs seem slim, all benefits obvious?

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The buzz continues that Rep. Richard Gephardt is on Kerry's short list, perhaps more likely to be picked than the likes of Sen. Edwards or Gen. Clark. Why must you torture me, John? Old school when we need new blood [which is why he was replaced as minority leader!], two time loser as a presidential candidate, easily tarred as a liberal on various issues, and going out of his way to support the President (behind the back of the Senate Majority Leader of his own party) in the War Resolution.

If you aren't going to go for someone to give you some Southern (Edwards/Clark) or Southwestern (Richardson) flavor, fine ... but does this work on a cost/benefit basis? Don't quite see it. I hope the buzz is wrong and/or another pick is found. He's not a clear disaster (though the negatives are rather troubling), but many agree that Gephardt is far from ideal. So far, I do not see how they are wrong.

2004 Is Important, So Fight Right

Casablanca is still on my mind. First, wouldn't the Germans just shoot the resistance leader? It's like Batman or something ... giving him a chance to escape because of the "rules" and a "get out of jail free card." The fact everyone spoke English so well was interesting too. Also, when the leader told the German commander that killing him won't matter in the end because others will rise in his place, it made me think of the resistance we are facing now.

Various blogs [including Balkanization, 6/22] has cited a recent Washington Post piece by Jonathan Chait that argues that 2000 was the election that truly mattered, though he focuses on economic policy. The problem partly is a result of Sen. Kerry's decision to focus his campaign somewhat narrowly for strategic (assumed successful message) and practical (likelihood of success) reasons. Chait in fact argues that Kerry's message is (to be blunt) somewhat fake. For instance, President Bush did not have too much power to affect job numbers and gas prices, especially vis-à-vis a President Gore/Kerry.

I share Chait's concerns though partly because economic matters will not really be the most important factor in my decision in November. Economic talking points do tend to sound better than they actually are, a fact Gov. Bush took advantage of in 2000. Also, I do sometimes wish Kerry had a more general and emotionally exciting message (akin to Dean and Edwards) than his usual political nuanced style. All the same, if Chait's thesis is that 2004 overall will not be as important as 2000, I would disagree.

The basic issue is that re-election will in fact or in effect be a clear mandate for the President. This is in some important ways more important than the fact that President Kerry will in various ways be stuck with the policies he inherits, only able to tinker with many of them. "This too shall pass" ... will it be in a few months or four plus years? Furthermore, the power to select federal employees alone will be very important, including the likely duty to nominate a few key justices to the Supreme Court.

On that subject, an important Supreme Court opinion was handed down yesterday concerning HMOs, though we should be a bit careful about determing why. The opinion itself was unanimous, so the result per se might not have been illegitimate (the justices themselves have had problems with this area of law, so I'm not going to try to parse it). The judgment held that a Texan law allowing patients to sue in various instances in state courts was pre-empted by federal law.

Justice Ginsburg (along with Breyer) concurred, basically pleading with Congress to clarify the law, which for years various justices have noted is confused and often led to unjust results. So, arguably, the Supremes had little choice in the matter ... the decision itself might have been sound. We should turn our focus to Congress and the President. Blaming the courts for validly interpreting laws that one disagrees with on policy grounds is often a bad, if easy, policy.

Who has put forth a more comprehensive policy to protect patients’ rights? The question is largely rhetorical, of course. The players in this lawsuit are particularly revealing ... our old friend, filibustered to death federal judge nominee Miguel Estrada, defended the insurance company. The Bush Administration put forth a brief supporting them as well. This is not surprising, though those in the know saw the hypocrisy -- Bush opposed the law when he was governor, vetoing it once, but took credit for it ("we") when he was running for President. The spin is that he does support it, really he does, but just not in this case.

Again, how you attack your opponent is important ... you can get harmed with a thousand cuts by a wily opponent, even if you are armed with a lot more firepower, if you don't know how to use it.

Casablanca

Ilsa: But what about us?
Rick: We'll always have Paris. We didn't have, we, we lost it until you came to Casablanca. We got it back last night.
Ilsa: When I said I would never leave you.
Rick: And you never will. But I've got a job to do, too. Where I'm going, you can't follow. What I've got to do, you can't be any part of. Ilsa, I'm no good at being noble, but it doesn't take much to see that the problems of three little people don't amount to a hill of beans in this crazy world. Someday you'll understand that. Now, now... Here's looking at you kid.

Ingrid Bergman in Casablanca is simply magnificent. When someone says that the "camera loves her," it must has started with this role. I recently watched the movie again, and how Bergman shines in every shot, especially her close-ups, was breathtaking. Seriously, it was amazing to watch ... perhaps, it was just my mood, one that might have made me particularly open to it. All the same, she has such a wonderful screen presence. I recently re-watched a few scenes of her with Cary Grant in Notorious, and it was a similar experience. This was particularly remarkable though.

The movie itself is obviously a screen classic. There is a lot that goes into such an animal, and often it involves a basic melodramatic quality. A particular favorite is the dramatic kisses between Ilsa and Rick (the line goes "and Bogie and Bacall," and guess who provided narration to the "making of" featurette ... but these two are pretty good together too). How her head must hurt from being so dramatic! The audience though eats it up, as do I, including the dueling patriotic songs scene and many others.

Another quality is overall setting and flavor. It might surprise some to note* that the film was not filmed in wartime Casablanca, but on a set. The ability to make it all seem so realistic and flow so well (the quality that lets two hours go quicker than eighty minutes, depending on the film) is notable in itself. The thing that makes the film though is the supporting cast. Claude Rains (who Bergman along with the rest of us sees again in Notorious), Peter Lorre and Syndey Greenstreet (who often played roles together, though here acted separately), Dooley Wilson, and all the rest. These qualities together often alone make a film, lame script or not. It helped make this one great.

A great film also often has small scenes that further the story, but are special on their own. I think my favorite might be with a young married woman from Bulgaria goes to Rick to see if she could trust the police chief. The young actress made the best of her moment in the sun, suggesting the responsibility and maturity found in those we might just write off as innocents. It is notable as well that the clear implication of adultery was an example of carefully dodging the Code of the era.

A couple more things. Obviously, the song is a highlight of the film, and raises emotions early on, even for those who are watching the film for the first time. [As compared to the couple in When Harry Met Sally, who saw it many more times than that.] Another special part of the film is the Paris montage, Rick's drunken remembrance of their time together. Just watching Humphrey Bogart look happy is probably worth watching, but it is altogether an excellent sequence. These days, montages are a dime a dozen, and often a cheap way to fill up time and get another song on the soundtrack. This one was special and the exercise perhaps not as trite in 1942 as it is now.

It was said that this was at first but one of fifty-two films made by the company that year, another film off the assembly line of mass produced films of the era. The cast of characters might have been much different; for instance, Ronald Reagan was up for a key role. Still, three academy awards aside, there must have been some notice from early on that this film was special. The cast, story, song, and everything else just wrapped together so well.

And it was the true introduction of Ingrid Bergman to American cinema. Three people might not mean a hill of beans, but when they are played by the likes of Bogart, Henreid, and Bergman, I wouldn't be shocked if there are exceptions to the general rule.

* a joke

Sports Update

Over in the Slate, they have undergone various changes over the last couple years, stylistic and otherwise [recently they arbitrarily ended their "star" system on the fray, or at least it is in limbo], but never did fix their fray search engine. I don't quite know how it works, but only certain hits are picked up. This is annoying for those who want to search among the thousands of posts, including to see if anything was written about themselves.

I find search engines in general have this problem in some fashion. For instance, at various times I do a search to determine if my blog was mentioned. A few times, long past the time of the citation, I found such a mention. For instance, this is a January hit I just found, a the brief note that it is an "political, legal, sports blog I found randomly. Fairly interesting." I appreciate it and return the favor.

I originally listed "sports" as part of the subject matter that I would discuss, though political stuff turned out to be the main focus. A sports break might be warranted. The Tampa Bay Devil Rays are in the midst of an eleven game winning streak ... apparently the "every dog has its day" nature of football is currently being applied to baseball (over the last couple years, Kansas City, Detroit, Milwaukee, and San Diego all had their months in the sun).

The NY Mets are this year's yo yo. Up and down, winning/losing, on toward a c. 80 win season. This being a fifteen game improvement, it wouldn't be that bad. Still, perhaps after firing their hitting coach, they can fire their infield and health and conditioning coach too. So many errors (including by their ten year veteran Japanese shortstop who apparently has vision problems?!) and injuries! Anyway, they now have a twelve game stretch vs the Reds (a better payroll might put them over the hump) and the Yanks (didn't break Gagne's closer streak, though an error helped LA), the second (or third) dangerous stream of games of the year.

LA Lakers ... a better team to lose the finals in quick fashion would be hard to find. Golf ... even if I played the game, I probably wouldn't be too interesting in watching the current tournament. Darts ... yes, this is one of the sports on to fill up time on sports channels that just don't have enough material. Beach Volleyball ... ditto ... but more worthwhile.

---

[Update: As to today's Supreme Court rulings, see here (summary) and here (my comments). I'd add a couple things. Though the decision only applies to requests when there is cause for suspicion, the evidence supplied here was a phone tip and little more than signs an argument might have occurred. Also, determining if the person questioned committed other offenses was put forth as one possible reason for the request for identification. Therefore, though the opinion was somewhat narrow, my fears are not without cause.]

My Dad

David Brooks on Saturday provided another example of why people think he is horrible addition to the NYT editorial staff. His criticism of Sen. Kerry's position on the Varela Project is credible [see linked story's comments as well] to be sure. The problem is that use of one example to suggest Kerry is some cold realist as compared to the current administration is totally lame. Has Brooks been reading the papers lately? And Kevin Drum (in the comments) suggests Brooks bashers just want to silence conservatives? Heck, people like me appreciate reasoned criticism, including of Sen. Kerry. How lame.

My father was an American success story. A second generation Italian (with a name no one can pronounce or spell properly), he did his part as the family's only boy: serving (stateside) in the navy, getting a good city job while working a second job in the "trades" (he helped build the house I grew up in, though he couldn't set a VCR ... didn't quite "get" the idea of cable either), married, and had some kids whom he provided for quite well.

Oh, maybe the family would have been happier with an Italian daughter-in-law, but one can forgive such transgressions. After all, he supplied a home for his mother in her golden years, providing good opportunities to favor the oldest child and suggest how her daughter-in-law was not properly caring for her little princess. Fair trade.

Sometimes, it is hard for me to see myself in my parents -- after all, they are not political sorts, I got one of them into sports not the other way around, and we have differences of opinions on various matters. Then, I think, and determine the important stuff. For instance, as noted, my dad worked hard to provide for his family ... probably too hard ... and supplied an example of the duty to work hard and provide for yourself and your family.

He along with my mother also had a simple rule, or so it seemed in my case -- if you were a good person, it was enough. Oh my mom might think I'm going to hell for some of what I think, but deep down she seems to think I'm a good person all the same. I was able to build my own opinions and beliefs for drilling such things in you wasn't quite what my parents were all about, even if they wouldn't agree with at least half of what I figured to be the truth.

There is a certain simplicity to that. So, I worked hard in school, didn't cause trouble at home, and returned the favor of those who provided for me. My father also had great integrity, I can't seem him lying or not doing something he said he would do on anything of importance. Again, simple, not drilled into me per se, just something that I saw and copied without thinking. Oh, he was very mechanical ... some of that rubbed on me, so I am able to set a VCR.

He was pretty old fashioned and on that we did not agree, though it never really came up in my case. In hindsight, one sees that the duty that guided his life also left something out. This is unfortunate. You work all your life and I think you should get something more than he was able to get in the end. For one thing, he deserved to have the awareness that his children was thankful for the life he provided all of us, and I don't know if he quite was aware of that. Perhaps he was ... either way, he deserved a happier end. At the end of the day, I guess if I had one thing to say today, it would be ...

Thanks dad.

Problems of God and Family

I find the chance that Rep. Gephardt might be on the short list quite upsetting. I think for various reasons he would be a lousy choice. See here for some suggestions why this is so. This article on the confirmation hearings of Judge Bybee, involved in the torture memoranda, is interesting on various levels. Of particular concern: matters clearly relevant to his nomination apparently aren't the business of those examining it (the Senate) and his philosophy that likely effects of counsel to the President really doesn't matter. [Credit]

According to CJ Rehnquist's opinion in the Pledge Case, President Washington said: "Whereas it is the duty of all Nations to acknowledge the problems of Almighty God, to obey His will, to be grateful for his benefits, and humbly to implore his protection and favor. . . ." I think that works pretty well in a way, though "problems" apparently should be "providence." Anyway, fret not -- spell check problems exist at the highest levels.

Michael Newdow himself has an interesting, and admirably above the fray, article on the rights of parents in family courts in Slate. His milking the cow example suggests the problem -- many feel he is looking at things too impersonally, putting his rights over his child. I comment on this concern here; see also here.

Overall, I remained throughout respectful of those worried about the little girl in this case, but could not deny he as a father had an important interest as well. And lest we forget, the right exists in part because the connection he has to the child is important for her interests as well. Criticize him, in some way you criticize a part of the child as well.

"With Moral Clarity"

Some dream about a Kerry/McCain ticket ... others a Bush/McCain ticket. This latter match-up seems unbelievable to some people because they feel that Sen. McCain (especially after the 2000 campaign) surely hates the guy! I had some of the same feelings when reading an editorial by Sidney Zion today suggesting this possibility.

Yes, they both have conservative views, but politics is more than that, right? There is a degree of integrity in Sen. McCain's career that just isn't there in this administration. It is true that he is the head of the President's campaign in Arizona, but that's what you have to do in politics -- oppose the re-election of the head of your party, you cross a certain line. Still, it rankles when we hear Sen. McCain say that the president "has led this country with moral clarity." And, "It's [Iraq/war on terror] a fight between right and wrong, good and evil. ... It's no more ambiguous than that."

Well, Democrats and others have something else to be wary about other than his opposition to abortion -- someone who is able to talk about the President and "with moral clarity" in the same sentence is a bit suspect in my mind. Is this the same President who opposed and then stonewalled the 9/11 Commission, which allowed the people in general the additional clarity it provided? Sen. McCain might do a lot of things in his public career that people across party lines respect, but this cheapens him, even if it is a political necessity on his part.

I read a local account of that morning today with a mixture of sadness and anger -- the latter emotion arising because of those who spit at the commission, considering it as some worthless partisan effort that threatens the administration. Anything that allows us to better understand that day, including the possible errors and missteps (how in the hell do we make sure that we can do better in the future if we don't do this? or is ass covering more important?) is essential. The person with "moral clarity" doesn't quite think so.

It is useful, as well, to know how to fight the administration. Timothy Noah, who has referenced Sen. Kerry's alleged "wont" to lie, today uses the President's letter to Congress justifying the Iraq War as proof that he lied when he said that the administration never said Saddam Hussein help to "orchestrate" the 9/11 attacks. As I discuss here, it really doesn't do this. The letter is troubling, all the same, given it supplies such a broad justification for executive action, thus I entitled my post "Orchestrating A Power Grab."

Overwrought and often hysterical, filled with distracting montages and portentous drumbeats, the documentary feels as cheesy as its subject or its smiling villain, Witchfinder-General Kenneth Starr. Still, the film makes one essential point. By recalling the nature of the media pile-on (with everyone hoping for another career-making Watergate), it demonstrates the way tabloid story trumps truth. (It also suggests the guilt behind the passivity in reporting the actual putsch that brought George W. Bush to power in 2000.)

-- Village Voice review of The Hunting of The President

This movie also is an example of how not to fight the powers that be. I have not read the book it was based on, but it does seem that it was overly condensed. Also, especially early on, it had cheesy touches that made it seem like a low rent John Grisham novel or as tabloidish as the stories that it rebelled against. The title suggests the tone, a conspiracy that might lead those notconvincedd to question the film's balance. For instance, Susan McDougal was clearly the heroine of the piece and her experiences in prison was truly hard to listen to, but I felt like I was only getting her side of the story.

It did well to not justify the President's actions (my problem was not with his private morality but his public morality -- a lack of public integrity was as troubling as his shift to the right on various issues). Also, once McDougal and Kenneth Starr got on the scene, the movie's more cheesy tone and bells and whistles (such as public domain clips from old movies) were pulled back, and the story spoke for itself. It might have been better if Joe Conason, the co-author of the book, didn't get F.O.B. and producer of Designing Women to work on the movie. Conason himself in Salon and the NY Observer is the antithesis of that, and it's unfortunate the documentary felt a need to use such techniques.

Such things as the imperial presidency friendly Federalist Society (including now Solicitor General Ted Olson; Cheney was also shown at a meeting of the society) helping to bring down the President by any means necessary (including weakening the presidency itself) speaks for itself without all the background cheesiness. On that note, and referring back to my concern for public integrity, I offer this final thought:

In the Bush Administration, ambition and syncophancy have triumphed over professionalism, sound judgment and moral seriousness. The corruptions of power have brought us to a sorry spectacle in which intelligent lawyers, many with impeccable credentials, have argued vigorously for an Imperial Presidency that is above the law and for the right to abuse and torture fellow human beings. This failure of moral imagination and professional scruple makes the participants unfit for judicial office, and no one should hesitate in saying so.

-- Prof. Jack Balkin (6/17)

Foreign Affairs and More Religious Stuff

Gaza Strip: Sean Rocha over in Slate has an interesting and well balanced article on Israel's plan to withdraw from Gaza. Of particular note is the role of organizations such as the Hamas that "has a long history of running social welfare, health, and other quasi-governmental organizations in its territory," so have some degree of legitimacy. The only problem is many of them also are dangerous terrorists. This makes people understandably wary about working with them, but true peace often requires it. The tendency of governments like us to support similarly nasty sorts with less legitimacy with the people at large also leads to some degree of cynicism.

UNITED NATIONS (Reuters) - U.N. Secretary-General Kofi Annan sharply criticized the United States on Thursday for seeking another exemption from the International Criminal Court, particularly in light of the Iraqi prisoner scandal.

Right ... and now, as the world looks on and sneers, we are left to looking toward countries like Romania and China to insure that we are left to our flawed devices. This might be a good thing, since the ICC only excepts those countries that provide a reasonable effort to investigate and charge alleged violators themselves.

---

Pledge Case: I referenced a column yesterday that suggested the opinion might have confused domestic family law. Did it really threaten the enforcement of parental rights when federal constitutional issues are involved? The answer seems to be ... depends on who you ask. You can hear a discussion with the plaintiff and Freethinkers author Susan Jacoby here.

For those dubious about the majority opinion, there is some reason to ratchet it down a notch (at least regarding the author). Justice Stevens voiced his hesitance (in a dissent) to inject the federal courts into domestic law before, even when constitutional rights were involved, including in a parental rights (vs. grandparents rights) case known as Troxel v. Granville. Justice Kennedy also dissented on somewhat different grounds.

It suggests my basic philosophy: life is not always run on idealistic grounds, but some sort of principle is around somewhat more often than one might think. The question is: what wins out in that particular case?

How Not To Argue: Another good article concerns the danger of mixing religion with politics, even when the program (faith based initiatives) might be a good idea per se. I replied to a criticism of the article, and the critic uses just the sort of argument that we should be wary of.

RIP Rosemary Breslin and Other News

Marci Hamilton had a good column on the Pledge Case with a viewpoint that is mostly the same as mine (a bit more supportive of Justice O'Connor) with the added warning that the majority's comments on domestic law will likely have unintended consequences. She also expanded on my historical disagreement with Justice Thomas' opinion. Worth reading.

Public mourning: it turns out the US government can do it after all. Not for a day but for a whole week, official America mourned Ronald Reagan. I'll give it to you: we needed to grieve. Public mourning, I'm for it. Close the Congress, the banks, the malls for a day; call it quits on the gambling on Wall Street. We need to grieve, but surely not just for one man.

Imagine a state funeral for every US service person who has died. Eulogies and honor guards for all those killed carrying out US policy, or opposing it, and all those others, who've fallen victim of the same policy. How about Amazing Grace for all who grieve. For those who've lost lovers to disease while we spent money on war; whose parents died of overwork, or whose kids were cut down early. Their tears are made of the same stuff as Nancy Reagan's.

-- Laura Flanders

Someone was telling me how she felt Nancy Reagan was very courageous and brave to be able to take care of an ailing husband and handle public funerals. I was sympathetic, but noted that quite a few did the same thing (including in fact the person doing the talking, though her husband only had one not so public funeral) with a lot less resources and notice. Not to be too stingy, but I think that should be recalled.

She isn't quite such a person, but the author of Not Exactly What I Had in Mind: An Incurable Love Story, Rosemary Breslin, just died of a long mysterious blood disease. She was forty-seven, and if her book is anything to go to by, she loved life to the end. Her more famous father, Jimmy Breslin, got ill himself after she was diagnosed. She noted: "Of course, he doesn't get some wimpy thing like me. He goes for the gold. I'd always known he was going to steal the attention away from me in this whole illness thing." A word in remembrance to all like her -- gone before their time, but whose lives blessed those that knew them as long as they was on this earth.

My local paper actually had a lot of interesting news. I see that Britney Spears had to delay her concert because of an old war ... dance injury. A pair of malcontents had the ill luck of trying to steal a cell phone near where Jenna Bush was vacationing in Spain ... her Secret Service agents acted swiftly, punching one in the mouth. No one was arrested.

Encouraged by his physician daughter, the ageless Manhattan prosecutor (who outlasted the guy who played his role on Law and Order) noted he supported the use of medicinal pot. Debra Norville, Georgia native, is also a Mets fan, winning tickets to one of their Detroit games. Finally, Helen Hunt turned forty-one on Wednesday.

Pledge of Allegiance Case -- Punt!

Updated Interesting Articles: Set your weapons on stun! Sherry F. Colb has an interesting column on victim impact statements and the Terry Nichols trial. Information concerning power problems after a zombie attack can be found here.

The Newdow/Under God case ended with a whimper -- not surprisingly really, the Supreme Court decided to find it "prudent" to not accept his right to sue (standing). Justice Stevens, the justice most likely to vote on his side on the merits, wrote the opinion. The core issue, in language that sounded like Justice Kennedy's concerns during oral argument:

"This case concerns not merely Newdow's interest in inculcating his child with his views on religion, but also the rights of the child's mother as a parent generally and under the Superior Court orders specifically. And most important, it implicates the interests of a young child who finds herself at the center of a highly public debate over her custody, the propriety of a widespread national ritual, and the meaning of our Constitution."

And, since the mother has custody, it is she who has the right and duty to challenge the daughter's expose to the allegedly religious Pledge, if she finds it appropriate. The Court held that mere exposure does not hinder the father's rights to communicate with his child concerning religious beliefs, but I do think his parental rights are strong enough that he can challenge state action that interferes with it by slanted religious doctrine. [See also here on the importance of not confusing what is at stake as being a mere private action among parents.] All the same, it is just a matter of time before atheist parents bring suit and avoid this dodge, but at the very least, the Court bought itself a few years.

[Courts do often avoid controversial decisions by finding some reason, perhaps not totally credible, to not have to face the touchy issue. The ruling can be defended on these grounds without the belittling Dahlia Lithwick provides of the father's claim when she made a form of this argument when she suggested that "the three-judge 9th Circuit panel weirdly concluded that noncustodial parents have some kind of affirmative right to run roughshod over the other parents' choices." Well yes, as even the majority implies in passing when saying he didn't have a strong enough claim here regarding his constitutional rights as a parent, but might have if the facts were different.]

Chief Justice Rehnquist with Justices O'Connor and Thomas would have went to the merits. Justice Rehnquist (joined with O'Connor) defended the inclusion of "under God" with a stream of public statements of presidents and our national anthem that suggests our "national culture allows public recognition of our Nation's religious history and character." It is not a religious exercise but "a declaration of belief in allegiance and loyalty to the United States flag and the Republic that it represents."

His penchant for mixing public officials speaking with official public school programs is as long lasting as it is misguided. And, the First Amendment does not allow the state to dictate that belief in God is part of what the flag and republic stands for. This, not just a recognition of the religious beliefs of the nation at large, is what is at stake here. If Justice Scalia would have took part, he probably would have shared the Chief Justice's sentiments.

Justice O'Connor repeats her endorsement test, which bars state action that : "sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community." Well, sure. This sounds exactly what happened to atheists and others who oppose this practice.

So, why isn't it applied here? "History and Ubiquity" -- in other words, belief in God is so broadly accepted, and rarely challenged, the few who are upset about the program are basically out of luck. Not convinced? Let's see. "Absence of worship or prayer" -- it's secular really, mainly descriptive of our community, some of the intent of the legislators aside. This ignores clear evidence otherwise, including public understanding of its religious character. Claims that there is here an "absence of reference to particular religion" (or is it "minimal religious content?") also doesn't exactly hold up to scrutiny. Particular religions honor God in this particular way, others do not, and one amici brief in particular was concerned with believers in God who opposed the practice.

Thus, "any coercion that persuades an onlooker to participate in an act of ceremonial deism is inconsequential, as an Establishment Clause matter, because such acts are simply not religious in character." And, in general, the coercion here of the support of the uh secular "under God" message is too mild to be a matter of concern. Unless you are, you "well-intentioned" misguided one.

Justice Thomas accepts that the practice would fall under current doctrine: "Adherence to Lee would require us to strike down the Pledge policy, which, in most respects, poses more serious difficulties than the prayer at issue in Lee. A prayer at graduation is a one-time event, the graduating students are almost (if not already) adults, and their parents are usually present. By contrast, very young students, removed from the protection of their parents, are exposed to the Pledge each and every day." Likewise, "the Court has said, in my view questionably, that the Establishment Clause 'prohibits government from appearing to take a position on questions of religious belief.'" True.

Don't be fooled -- Justice Thomas is just building it up to knock it down. Justice Thomas is dubious about even applying the Establishment Clause to the states, a clause that "does not purport to protect individual rights." This is a truly dubious reading, ignoring that not mixing government with religion was in large part seen as a way to protect religion. Ignoring the Fourteenth Amendment, considering it as a federalism matter ("Congress shall make no law") also avoids the issue of federal territories and other national actions -- as applied to them, how is it protective of states? In fact, doesn't a religiously slanted national motto in some fashion violate the very principle?

Justice Thomas respects free exercise and has spoken about his strong support of religion per se. He does support the idea of non-preference, ignoring that the law violates it by choosing to endorse one way to acknowledge (honor?) a particular deity. Finally, he argues that the practice does not provide legal coercion that prohibits free exercise. Peer pressure and the like is not state mandated, the likely effect of the state's action not relevant for constitutional purposes. Justice Thomas in the long run dishonors religious liberty, a somewhat surprising thing for a religious conservative to do.

[As an aside, he cites a book by Philip Hamburger entitled Separation of Church and State. I found it a slanted incomplete history as did many others. The decision as a whole suggests the imperfect nature of originalism as a jurisprudence philosophy.]

Saved! ... and Damned

A Film Whose Heart Is Kinda In The Right Place: Saved! is a satire concerning evangelistic Christian high school students. One of them has a vision telling her that she has to sacrifice her virginity to save her gay boyfriend, resulting in her getting pregnant instead. This provides a launching board for a lesson of tolerance, provided in a heavy-handed way (Mandy Moore plays the villain as basically a sad sanctimonious bitch), ending with a much too bland message. The film is also not really fair to the religion involved, starting with the vision (an important aspect of many religions) influenced by head trauma to not providing one true believer of the faith not totally mixed up. Those upset about "bias" probably have a case here. The movie on the whole is commendable for trying to deal with the issue of religious intolerance and is mildly enjoyable overall, but it stacks its deck a wee too much to be totally successful.

A group of 26 former senior diplomats and military officials, several appointed to key positions by Republican Presidents Ronald Reagan and George H.W. Bush, plans to issue a joint statement this week arguing that President George W. Bush has damaged America's national security and should be defeated in November.

The group, which calls itself Diplomats and Military Commanders for Change, will explicitly condemn Bush's foreign policy, according to several of those who signed the document.

-- LAT Article

Our Iraqi Adventure was motivated by at best troubling motives, sold in a fraudulent way with an assist from a supine Congress (Sen. Kerry sharing some of the blame), and carried forth in a more reckless way than was necessary (e.g., delaying elections [6/11], interrogation techniques [my local paper's disgusting defense, notwithstanding], and general war planning). This along with the expected bloodshed adds up to a bit of a mess.

Supporters of the administration agree with many of these things. Therefore, it is not surprising that many government veterans, actual adults who are long time professionals in this area, oppose the administration. This should be a bloody red flag to the public at large. Damn, I wish this election was over ... I'm just so tired of all of this shit.

And, then, you take a deep breath, take the fact that the need for change is more clear than usual as a positive, try to do your part, and go back to your everyday life. Hmm ... interesting article on the death penalty regarding the arbitrary nature of determining future danger to society. Or, isn't Tofutti Vanilla Almond Bark quite tasty?

You know, things like that.

Labor and Corporations -- A New Paradigm?

I recently was given the first three seasons of Family Guy on DVD. It's a twisted cartoon, due to be back on the air, about a lovable loser, his slightly twisted wife, three children (including a genius baby out to kill his mom .. this last part suggests some of the twisted humor on the show), and talking dog. The quality of the episodes are mixed, but there usually are enough smart jokes and visuals to make even the less than hilarious episodes (a few are priceless, including the one when Brian, the talking dog, becomes a narc) worthwhile.

[A few musings of mine from about a year ago. See here and here for the original thread concerning changing the contours of the political debate.]

"Labor, I'm not so sure about...that implies unions, and I really do think we ought to be looking towards a post-union Democratic party: not turning our backs on labor, but focusing our future efforts on improving conditions for ALL American workers"

Perhaps, this is a game of semantics ... surely there still will be large chunks of "labor" out there, namely ordinary workers that traditionally fit the term "labor." Likewise, as the conditions of "labor" improved from the early 1900s on, the conditions of all workers did too. For instance, OSHA standards apply to all, not just to "labor." Your typical low level white collar computer operator might not want to consider herself part of the "laboring" class, but she is.

I think the idea is to make "labor" a respectable term again, to show that the Democratic Party honors them. Currently, all too often it is Republicans who are said to protect the "ordinary worker." There still is a chunk of voters out there that considers themselves "labor," but if the term seems out of date, the ultimately class of people surely are not. There still is a separation between "upper and professional" and "working and middle class," the latter closer to "labor" than anything else.

Also, as long as employers will continue to have organizations and lobbyists on their side, employees will need them too ... that is, some form of "unions" to protect their interests. The Republican ideal arguably is that each worker is a type of individual contractor, free of union control, able to move from job to job on his own. This group is bigger now, but "unions" surely aren't out of date. Perhaps, like with "labor" the term needs development, but surely still few workers are truly islands ... quite a few still have or need organizations to protect their interests.

The old style top heavy unions* might be out of date, but unions don't seem quite there yet. This applies even if gov't protects workers more than they do now ... in fact, with more gov't protection, a bigger need for some organization to help them might also exist. For instance, if a worker has more health care options, there is but a bigger need for worker organizations to help protect and distribute them. As unions traditionally did.

* As I originally noted, I come from a union family, and some members still are members of important unions. They also often are upset that the unions are not protecting their interests, thus my suggestion of the need to reform the "old style" unions has a personal tinge to it.

The fact, as Joe stipulated, that corporations are run by "real people" is not relevant to this argument as far as I can see. Those "real people" are already self-representing in their capacity as individual citizens/voters/campaign donors.

"[A corporations] is essentially but an association of individuals, to which is given certain rights and privileges, and in which is vested the legal title. The beneficial ownership is in the individuals, the corporation being simply an instrumentality by which the powers granted to these associated individuals may be exercised."

-- Justice Brewer

Exactly. "Certain rights and privileges" are given to "an association" to promote certain "beneficial" ends. So, yes, since the ultimate alleged end is for individuals and society itself to benefit (not some artificial entity, which is but a means to that end), the fact that corporations are run by real people do matter. It behooves us to remember that corporations have some good ends, that is why they exist in the first place. All the same, when these good ends are ignored, that is the real people corporations are made of and are meant to aid are hidden from view, we are in trouble.

If "real people" in their individual capacity is enough, why the need of "associations" of any sort to represent them? Churches, charitable organizations, public interest groups often are corporations. Small businesses are often incorporated. At times, even single individuals basically are. All have some rights, including some constitutional rights (not just 1A related), and at times liberals are quite happy about it. When rights of corporations are not properly limited, when the reasons for the rights (and the responsibilities they bring) are ignored, that is when trouble arises.

Defending The Indefensible

Local Tidbits: I had the occasion to be around Union Square in Manhattan [right above Greenwich Village] a few times lately and found its recent improvements add to the charm of a little piece of flavor in the midst of urban life. It is a lovely place to have your lunch with many local restaurants, stores, and kiosks providing possible options. There is a dog run, mini-playground, fountain, and various statues. Plenty of shaded areas to sit as well as open air locations if you don't mind the weather. An open air farmer/nature market is often ongoing as are other sales [of the legal kind!]. Movies (multiplex and art/foreign), a Barnes and Nobles megastore, coffee places, and Foodtown supermarket (and other specialty stores) are nearby. Likewise, a strip of low price stores to buy any number of items. Small protests add to the flavor at various times. It all combines into to a rather nice whole.

Asked whether torture is ever justified, Bush replied, "Look, I'm going to say it one more time. ... The instructions went out to our people to adhere to law. That ought to comfort you."

-- President Bush

"Ultimately, the administration's policy is consistent with the law. If the American people disagree with that policy, they have options: Congress can change the law, or the electorate can change the administration."

-- Professor Yoo, one of the "how to get away with torture" memoranda authors

"Let us not fool ourselves. The law itself provides no moral compass. Hitler had lawyers too. And let us not kid ourselves. At the end of the day, our role as lawyers provides no moral justification if we collaborate or stand idly by in the face of evil. It is our job to stand up. It is our job to speak out. We have chosen this path. We have been trained for this path. And if we don't do it, who will?"

Prof. Linda Krieger, Commencement Speech to the Boalt Hall Graduating Class of 2004

My little paean to the "rule of law" aside, law is but a word. It is currently legal to throw personal users of marijuana in jail for any number of years. Bush v. Gore is "law" too. So is any number of (other) misguided and blatantly wrong court decisions and prosecutorial actions. The more important thing to reflect upon is how the law is being defended and carried out -- is it reasonable? Or is it just being twisted for corrupt ends? If so, it is not very "comforting." A good example of this is Prof. Yoo's editorial in the LAT today.

An actual lawyer delves into this editorial here, part of his yeoman work in addressing this issue. Thanks to Mere Dicta, involved in the protest of Prof. Yoo, for the link and other info. I shall provide a few additional comments regarding stuff that particularly struck me.

The editorial starts off quite tellingly: "Official Washington has been struck by a paroxysm of leaking." Sure, that's the problem! Of course, given the Boalt Hall law school protests against him personally, California was "struck" as well. It's little facts like this that are helpful to know when we read editorials; sort of useful background information respecting the mind-set of the authors that might help understand their tone.

Next, Prof. Yoo notes how we care for the Guantanamo Bay detainees pretty well, though he leaves out the part about not including basic hearings to determine if they belong there in the first place. "Detainees receive shelter, food, clothing, healthcare and the right to worship. This policy is more generous than required." So, "the law" doesn't require us to shelter, feed, and clothed our detainees? Except perhaps the right to worship, which is limited in various ways in our own domestic prisons, these are all basic acts of a civilized nation. We are supposed to be proud that we aren't just starving people, many of whom let's remember might not even be guilty of anything?

But, he notes, the Geneva Convention (its use here akin to Adam trying to cover up his nakedness) does not apply in the war against terror, "only to conflicts between its signatory nations." The war against terror, however, include various actions in which said nations, their citizens, and at times their very agents are involved. He also notes that the "very purpose" of the Al Qaeda is "inflicting civilian casualties through surprise attack." Not only does this assume everyone being questioned is actually a member, many who actually are will turn out to be minor players not directly involved in such activities or involved in some rather small way. We mistreat small fry like this at our peril. Likewise, the most despicable murderers caught in this country warrant minimum civilized treatment, treatment repeatedly not supplied to the detainees.

Likewise, his overly narrow reading of basic rules of war aside, humane treatment of forces like the Taliban [again, recalling the possibility of mistaken capture] is a good policy per se. The "legalistic" way the memoranda tried to get around such basic truths is at the core of their corruption. As are snide comments, especially after the torture videos and such, like "the U.S. is not required to treat captured terrorists as if they were guests at a hotel or suspects held at an American police station." Don't you worry though: "[T]he 1994 statute isn't being evaded, because the president's policy is to treat the detainees humanely." How very comforting. This is the sort of attitude that Mere Dicta and others felt made the atrocities sadly predictable.

Prof. Yoo notes that "Congress has authorized the president to use 'all necessary and appropriate force'." Yes ... appropriate. The commander-in-chief role of the president doesn't put him above the law, which clearly set forth limits to his authority. Sen. Schumer deserves many verbal lashings himself for suggesting it is pretty reasonable to use torture if "thousands of lives" might be at stake. Prof. Yoo, however, didn't include his comment that at the very least the policy making should have been more public. If so, perhaps Congress might comprehend a need to change it without the need of "a paroxysm of leaking" happening first?

Prof. Yoo is right about one thing ... the ultimate solution is to vote this administration out of office. For, if it acted in a way "consistent with the law," [though perhaps the courts will have something to say about that] we can't really trust the law in their hands. To paraphrase Prof. Linda Krieger, it is time to raise our collective voice, confident, in unison, strong enough, and loud enough, and committed enough. "Enough!"

Reagan, Troops, and Political Realignment

A good analysis of the "terror memo" can be found here.

Legal Fiction had a good post today about Reagan and race. The move of many media sources to examine "Reagan America" is a commendable effort, a lot better than empty coverage of his funeral and so forth. For instance, Democracy Now! today examined his Grenada excursion among other things. Slate and others also provided mixed accounts.

An overriding lesson, I'd think, is that it's valuable to strongly believe in a cause, boil it down to its essentials, honestly carry it out (various exceptions aside), and know how to express the basic ideals to the masses. On the other hand, since life is not that simple and the cause in its particulars might not be so great, taking such things to an extreme is dangerous. Likewise, a happy exterior should not be allowed to hide underlining ugliness, even if it is just the ugliness of neglect or acceptance of rhetoric and politics that opens you up to charges of hypocrisy.

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An article today discussed a forthcoming book concerning a look at the war in Iraq from the soldiers' perspective. I believe this aspect of the war has been woefully underreported, both the good and bad. The men and women who serve this country are to be greatly respected, which is not the case when we basically ignore how our policies truly affects them.

Likewise, all the criticism of the treatment of the detainees, violence against Iraqi civilians, and so forth might be seen as ignoring the good are forces have been doing. I think there is some truth to this, but the underlining principle is that war is inherently hellish, so must only be done as a last resort. Likewise, seriously, I doubt a majority of the public do not respect our troops ... the sentiment would tend to be to believe they are doing right. Thus, the focus on the wrongs, which is a lot harder to accept.

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It's appalling, it's absurd, and it's totally unacceptable. There simply aren't any obvious solutions to things like health, energy, and education policy so it would be really useful if we could have some debates about these things. But nowadays we can't. Unless Bush and DeLay are given sufficiently solid defeats to utterly discredit their approach and lead the Republicans to put some good-faith ideas forward in the future, the country is not going to do well at all. I'm congenitally inclined to believe in the merits of pragmatic compromise, but there's no sense compromising with people who are fundamentally uninterested in accomplishing things during their time in office.

-- Matthew Yglesias

Some might Yglesias' argument that the Republican domestic policy is based not on principle but pure political expediency is a tad extreme. All the same, there is clearly enough truth to it for the nonpartisan pragmatist to be worried. Yes, the problems in the current political system is partly the fault of both sides -- the de facto surrender for so many years of the executive branch to the Republicans, and a Democratic Party that has not properly adapted to a changing political world. Likewise, President Clinton brought many of his problems on himself, including being hung by his own lowering of the dignity of the office (going on Arsenio, anyone?) petard.

All the same, a lot of the blame must be put in the current leadership, which is not Democratic in nature, is it? Leadership that is particular cynical and heavyhanded in trying to amass power, violating the principles of many of their rank and fire in the process. Government under one party only aggravates the trend. A new administration is needed as part of a move toward necessary change and reform of the system at large. It is time.