2006 Comes To An End

... with new books on side panel. Elizabeth Edwards ... blogger.

One Death Among Many

I covered a day of the Saddam Hussein trial because I was curious to see the dictator in person. When I returned to the office, none of my Iraqi co-workers asked about their former president. They despise him, to be sure, but they shrugged and declared him yesterday's news, as irrelevant to their lives as the current crop of leaders cloistered in the Green Zone with no control over the anarchic landscape outside.

Survival is their chief concern, and it's reflected even in greetings. Local custom calls for a string of flowery salutations, but these days the response to "Shlonak?" - How are you? - is shortened to one word: "Alive."

-- Reporter returns to Baghdad to find it far different - and worse off*

The bloggist Riverbend has a similar sentiment:

Why make things worse by insisting on Saddam's execution now? Who gains if they hang Saddam? Iran, naturally, but who else? There is a real fear that this execution will be the final blow that will shatter Iraq. Some Sunni and Shia tribes have threatened to arm their members against the Americans if Saddam is executed. Iraqis in general are watching closely to see what happens next, and quietly preparing for the worst.

This is because now, Saddam no longer represents himself or his regime. Through the constant insistence of American war propaganda, Saddam is now representative of all Sunni Arabs (never mind most of his government were Shia). The Americans, through their speeches and news articles and Iraqi Puppets, have made it very clear that they consider him to personify Sunni Arab resistance to the occupation. Basically, with this execution, what the Americans are saying is "Look- Sunni Arabs- this is your man, we all know this. We're hanging him- he symbolizes you." And make no mistake about it, this trial and verdict and execution are 100% American. Some of the actors were Iraqi enough, but the production, direction and montage was pure Hollywood (though low-budget, if you ask me).

She ends with a blunt statement:

3000 Americans dead over nearly four years? Really? That's the number of dead Iraqis in less than a month. The Americans had families? Too bad. So do we. So do the corpses in the streets and the ones waiting for identification in the morgue.

Is the American soldier that died today in Anbar more important than a cousin I have who was shot last month on the night of his engagement to a woman he's wanted to marry for the last six years? I don't think so.

Just because Americans die in smaller numbers, it doesn't make them more significant, does it?

No, it's because our blood is more important. Come on now. All that one person equal under God stuff is so Xmas. [This word is not really secular. The "X" stands for the Greek letter standing for "Christ."] Move on.

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* H/t to BTC News for the first link, a story by Hannah Allam.

Sports

And Also: Saddam dead. Don't think "justice" has been done. But, who thought it really would? [U.S. Pilate move here.] Meanwhile, the NYT had a good editorial on dealing with sex criminals.

Baseball: It is a busy time for sports, especially since December is prime baseball trade season. For instance, the Yanks might just unload Randy Johnson. Along with getting Andy Pettite back, one might even say that they actually did some good -- even keeping some of the old weight. The Mets' major goal was to obtain Barry Zito, the remaining original ace of the original trio over at Oakland. This appeared to many, including myself, as a done deal -- just a matter of finding out how much to pay the guy.

Not quite -- he went over to the Giants via a ridiculous contract, surely years-wise. This allows him to stay in the area, have a seven year contract (too long for the Mets, six being a stretch), and having lots of money to spend in the process. Meanwhile, the Mets have to look elsewhere -- there are a few pretty good starters out there, more #3 quality really, though a few might be sort of a journeyman Zito, who deep down is not that good anyway. This is why all that money/years was ridiculous, except that this is the year where some have been overpaid. With Pedro hurt, the Mets really need another dependable starter, especially if Steve leaves.

Football: First off, this is college bowl season. Not a big fan, though since it has been going on since before Xmas, it does provide some constant (especially with repeats) filler if I need something to watch. Yesterday had some close games, though the Clemson one was a bit artificial since they were down eight with less than a minute left (thanks to two missed field goals and an extra point to boot). Rutgers (a triple OT loss away from a better contest) joined many more mismatches, luckily being on the right end of one. Some are on the new NFL Network -- one of the few benefits of having Dish Network.

Suffice to say, there is not enough football for a 24hr channel, especially since they don't really have football themed movies or special "average guy" stuff like some guys talking fantasy stuff or something. After all, even check some of the stuff on ESPN and other sports channels, including MSG? Not that women's volleyball is exactly unappreciated, but still ... spelling? Meanwhile, Week 17 has a good amount of games with playoff implications, especially for the Jets ... and why not? Their schedule simply was not too difficult, even in the more competitive AFC. Hey, I predicted that nine games was possible. What's one more? Meanwhile, yes, the Giants are not dead yet. I might not even get a chance to see the final game ... which would not necessarily kill them even with a loss.

But, enough whining about the presence of a couple bad teams in the playoffs. This is what happens when you have a lot of slots, plus there really isn't an undeserving AFC team in the mix. Plus, the fact a couple are on the cusp is not unfair either, since the two that will not get there were hit/miss teams as well. IOW, they were great at times, bad at others -- they do not "deserve" anything. I would say this even if the Jets were among those that lost out. This leaves the NFC. A division leader is weak (Seattle), but that happens. The first wild card is either Dallas or the Eagles -- both deserve a shot. This leaves the second wild card, which will be a mediocre team. Do we want the slot to go to the AFC or something? No, it turned out pretty good. It's good to have things to play for (including seeding) to the very end.

Other: Don't look now, the Knicks are close to the top of their lousy division. With low expectations, very low, that mess of a team might just have a chance to consider themselves a success. You know, that meaning not a total failure. I honestly don't care about hockey, but the regional teams apparently are doing pretty well. Still, games are on -- very busy season.

Ghost Plane

[I wrote a brief version of this first on the Slate fray. A book entitled Torture Taxi: On the Trail of the CIA's Rendition Flights will be discussed on C-SPAN in a few days.]

A Mexican citizen was kidnapped in Mexico and charged with a crime committed in Mexico; his offense allegedly violated both Mexican and American law. [He was found not guilty.] Mexico has formally demanded on at least two separate occasions that he be returned to Mexico and has represented that he will be prosecuted and punished for his alleged offense. It is clear that Mexico's demand must be honored if this official abduction violated the 1978 Extradition Treaty between the United States and Mexico. ... It is shocking that a party to an extradition treaty might believe that it has secretly reserved the right to make seizures of citizens in the other party's territory

-- Justice Stevens (with Blackmun and O'Connor), U.S. v. Alvarez-Machain (dissenting opinion)

This was a type of "rendition," bringing back people into custody, traditionally to convict them of some crime. It was not always done following local laws, which made it (legally speaking) kidnapping. [Stevens noted that when governmental officials did this, even when objects were involved, it was traditionally deemed sort of like an exclusionary rule -- not to be used in court.] When the CIA got involved with rendering alleged Islamic terrorists in the 1990s, this general philosophy continued. The people were not usually brought back here, mind you, but they still were wanted in the country where they were "rendered."

A problem tended to be that said countries were likely to torture them, which by the late 1990s made it problematic under our domestic law to send people -- even convicted terrorists -- to such places. Our policy was basically to look the other way. After all, they promised us that they would not torture or mistreat them, right? It was deemed a sort of last resort, since there was no big push domestically to handle the problem in some other way, including use of force. The program was greatly expanded after 9/11, not just numerically, but in that now it was also used for interrogation. This greatly expanded the problem of error and controversy.

Stephen Grey's new book, Ghost Plane: The True Story of the CIA Torture Program, is part expose, part analytic essay, and part detective story. By speaking to dozens of sources -- including former and current CIA operatives, prosecutors, pilots, diplomats, lawyers, journalists, plane-spotters and prisoners -- and by poring over countless flight records, Justice Department memos, and other documents, Grey has managed to piece together a vivid history of the CIA's secret program of interrogation, detention and torture.

-- beginning of Joanne Mariner's review

As Mariner notes: "Rather than follow the law, they rewrote it." We "rendered" prisons to places we knew would torture them. Broke local laws in various cases, even if certain authorities looked the other way. And, other than ignoring our own values (at least the ones warranting respect), it all quite likely often was counterproductive. The information was of questionable value, especially given that we did not directly control its collection, and overall, inhumanity promotes blowback.

As with all good books, there were various interesting tidbits. One respected the use of music as a torture device, something that some fraysters seemed to think was a trivial claim when we had our torture discussions. One victim notes:

The noises [at "Music Prison"] were so horrible and loud that I used to stick anything -- toilet paper if I had some, or parts of the one blanket I got -- in my ears just to minimize the sound. Others tried to do this, but I know at least one who got perforated eardrums from all the noise.

It served its purpose, if said purpose was for the inmate to agree to anything to stop being inflicted with such psychological torture. Yes, though there were physical effects (including to hearing, obviously), the core function here was psychological. Though the recent debate on transsexuals suggests a limited physical mind-set among some, humans are thinking creatures too. The way to break them often is through the mind.*

My one complaint was editorial -- it seemed a bit abruptly put together at some points, perhaps a result of a print reporter putting various stories together into book form. Still, I recommend the book ... it's in the library (my copy came from that lovely resource), so you don't have to buy it or anything

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* Not just for the immediate victims. Our own "disappeared" calls to mind those families who still wonder what happened to those lost in Vietnam. Those taken without notice in the "war on terror" also have families. In reply to someone who does not trust first person testimony of this sort, it is an interesting Catch22 -- take people outside the legal system for the purposes of deniability, yes, you might be able to deny reality. Those on the ground, including the CIA, know better though.

Good for her

Monica Lewinsky ... has received a Master's of Science degree in Social Psychology from the London School of Economics, her publicist has announced. Her academic thesis was titled In Search of the Impartial Juror: An exploration of the third-person effect and pre-trial publicity.

-- AOL News

Edwards Announces

And Also: The critical remarks on Ford generally seem to focus on "the pardon." Did the nation as a whole truly disagree with his choice? Is a forced resignation really "getting off" or anything? Was his crimes not openly exposed in Congress and elsewhere? As Sandy Levinson noted, even Davis and Lee was not charged with a crime. And, even those who disagreed with the handling of the pardon, often seem to respect it was made sincerely. I don't think it alone erases my sentiment. I didn't say I'd vote for the guy, etc. Calls for a Nixon trial is consistent with those who want Bush impeached, though.

I believe it was Atrios who noted that now that the Democrats won control of Congress once more, the media will now focus on the '08 presidential elections. After all, they did wait two years, right? Meanwhile, Democrats have control of Congress, so actually have some ability to pass legislation. Of course, Bush has the veto pen, Lieberman Democrats hold the balance of power in the Senate, and so forth. But, again, immediately, the 2008 Elections are not exactly the most important thing on the political radar. The real importance is ensuring that something is done to give the winner of that election (you know, a Democrat, knock on wood) a chance of not starting from the bottom once more. To supply some potential base to launch off.

Of course, we cannot totally ignore the presidential races. The latest announcement was John Edwards, someone Ezra Klein suggested does a better job convincing to volunteer for his movement than voting for him. OTOH, many (including myself) respect the man (and his wife). This is so even though many (again, including myself) wonder if he really is presidential material. Does he truly have the experience and well-rounded knowledge/ability to fulfill all aspects of the job? No cheating by pointing to someone who does not (Bush). Still, the email announcing his (no surprise) decision to run does appeal. It points to some messages that I want my candidate to promote:

This campaign is about each of us taking responsibility for our country's future -- and ensuring America’s greatness in the 21st century.

It is a campaign not just about what we can do in the White House -- but what we can do on the way.

We all must take responsibility and take action now to:

Provide moral leadership in the world

Strengthen our middle class and end poverty

Guarantee universal health care for every American

Lead the fight against global warming

Get America and other countries off our addiction to oil

If we want to live in a moral and just America tomorrow, we cannot wait until the next President is elected to begin to take action.

Tomorrow begins today. Join us.

Yes, and the Internet announcement was sent out yesterday, though the plan was to announce today. Thus, his motto is immediately put into action.

Power to be wrong

A common belief, like common knowledge, does not require evidence to establish its existence, but may be acted upon without proof by the legislature and the courts.. . . The fact that the belief is not universal is not controlling, for there is scarcely any belief that is accepted by everyone. The possibility that the belief may be wrong, and that science may yet show it to be wrong, is not conclusive; for the legislature has the right to pass laws which, according to the common belief of the people, are adapted to prevent the spread of contagious diseases. In a free country, where the government is by the people, through their chosen representatives, practical legislation admits of no other standard of action, for what the people believe is for the common welfare must be accepted as tending to promote the common welfare, whether it does in fact or not. Any other basis would conflict with the spirit of the Constitution, and would sanction measures opposed to a Republican form of government.

-- JACOBSON v. COM. OF MASSACHUSETTS

Ford

And Also: Slate discussed an issue touching upon a NY case I referenced here involving a kidney that the family thought went to the wrong person. I remark on the article here, concerned some might not understand the narrow nature of the particular ruling. The court decided things narrowly partially because it realized that old common law rules in the touchy field might no longer be applicable given changing times (e.g., organ use makes property interests in remains a trickier issue). Common law allows for such development as well as narrow decisions to avoid unnecessary land mines. Some don't quite realize this, or rather, don't quite like its limitations.

President Ford died sometime yesterday and C-SPAN already was playing clips of examinations of his presidency by the evening. As with Reagan, one knew his time was short, and retrospectives were in the works ... perhaps, even mostly written. This is not crass, since the man was in his nineties and particularly weak for the last few months -- one account today noted that he looked frail at one of his annual staff reunion meetings even a few years back. Though the loved ones might not always think so, at a certain age, my philosophy is that a person can be thankful for whatever time is left (unless, perhaps, the time is particularly hard, health or otherwise), and s/he has not died "too soon" or in some sort of sad matter. This is surely the case once you live to ninety.

I was too young to recall it, my few memories of the time not political, but my basic understanding is that Ford was a good fit for the role he was asked to fill. Consider even his appointment, pursuant to a recently ratified amendment, to fill in as Vice President, after the funny name guy (Spiro Agnew) resigned. Ford was the Republican Minority Leader in the House of Representatives -- if you are going to appoint someone to be Veep, in a fashion, this is arguably the most democratic way to do it -- a representative sample of the President's party selecting him as their leader. Some suggest Ford was too much of a partisan hack/Nixon loyalist, down to the pardon itself. And, some -- though even with the pardon he barely lost in 1976 so talk about it ruining his chances (compared to let's say dropping Rockefeller, who might have brought NY) is a bit overblown -- felt he was unfit for the job.

But, most also agree he was a fair and honest man. I personally am glad (accord) he delegated and gave us John Paul Stevens as his one justice pick. Stevens seems to represent Ford in some ways -- Middle America, WWII vet, moderate Republican (fiscal conservative -- Stevens voiced his doubts about the minimum wage -- social moderate, represented in Ford by his outspoken wife Betty), hard working, and so forth. It is to be recalled that Reagan went after him from the right in '76, leading to the dropping of the sitting v.p. from the ticket in honor of Bob Dole.

Ford gave the country what it needed -- to call him a "caretaker President" might be deemed somewhat dismissive, but this would ignore the importance of the role. The NY Daily News discussion included an essay from a Ford expert who noted Cheney (with Rummy, a Ford man) noted this very fact. The nation was in trouble and needed a bridge to normalcy. I think we need one now -- a President who we can trust and respect, even if not agree with in various respects.*

Ford, again, barely lost in 1976. So, he very well could have been more. But, it was quite enough, and it seems appropriate that he did lose -- not as a party matter either, simply to move on. Unlike Carter, except for a few matters, Ford mostly did move on -- did not use his post-presidency days to try to do great things. He basically retired, fine enough after decades of public service. After he retired from his time on earth, if that doesn't sound too corny, I think it is fair to say the same applies. Great President? No. Helpful one? Quite so. Often, that is much more important.

[Democracy Now! reminds that there are some problems too (there always will be), suggested by the number of Ford people in the Bush Administration alone, but my immediate sentiments holds.]

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* I checked the NYT website to check the latest news, catching this:

Bush Praises Ford As 'Man of Complete Integrity': President Bush delivered a solemn tribute, hailing Gerald R. Ford as a "true gentleman who reflected the best in America’s character."

But, he lost in 1976, thus Bush thought it best to go another route.

Blood Diamond

And Also: Miami helped to give Jets fans one last Christmas present, the game over a little before midnight -- an end of the game field goal, the steadiness of the young kicker making him fit to be trusted with a clutch (if should be gimmee) three. Win and in ... a loss against lowly Oakland would not be necessarily fatal, but not advisable. A muffed extra point attempt at Denver helped the fun on Xmas eve.

I was wary about the options for a Xmas movie this year, especially since we already saw The Holiday (blah). Someone offered Blood Diamond, which did not really seem like a great choice. But, I relented, and half of us did see it, the other half something else.

It was pretty good, but had limitations because of its predictable genre aspects. All the same, within those restraints, it was a good movie. If you check out the comments here by "Margie24" (12/3/06), you will basically get my feelings about the whole thing. The leads, Jennifer Connelly an add-on doing decently well with a something thankless "concerned journalist" role, were very good. Quite powerful, DiCaprio (diamond smuggler/mercenary) turning heads twice this year, Djimon Hounsou great as a heartbroken father desperate to reconnect with all of his family once more. The emotional weight of the film goes to him, the local drawn into "conflict diamonds" -- smuggled diamonds used to fund rebel forces, who toss in the problem of child soldiers.

[As an aside, I do not quite get diamonds. I realize the idea of luxuries, but diamonds simply are not worth the money in my opinion. You can go on a nice vacation for the price of a nice diamond ring and take your wife with you. The money can also be put to many other uses, including a bit to charity really, since you can still buy something nice with the rest. And, for what? A little stone. Surely, something else downright trivial would replace it. Always need pointless luxury items. Still ...]

Bloody civil war (good amount of death in multiple movies this season, including a plane crash in the football movie) and so forth provide a lot of serious real world subject matter, but the reviews that warned us not to forget that this is a Hollywood flick were correct -- this ultimately is a story about our duo trying to find a diamond, DiCaprio clearly the star of the show with Connelly (respectable, not really given room to shine, but has a few good moments) providing some nice on the eyes supporting scenes (no sex, though it is suggested ... interesting choice). The background material is not really exploited, especially with the performances and talent shown (good location shooting and so forth), but deep down this is an action movie.

This is not really a bad thing -- many war movies are that, but they provide more as well ... even when various parts are not surprising. It still provides superior movie making. Such is the case here. For instance, Salon warns that it is a "public-service announcement masquerading as an adventure story." Not true -- it is actually the reverse, if anything. No classic, I would also say "lacks sparkle" is unfair, a case (see first referenced review) perhaps of overexpectation. As I said, the movie had its limitations, and basically cannot be taken too seriously. Still, worth watching.

A fair criticism would be the focus on DiCaprio (one reason why Hotel Rwanda was different -- we saw a local hero, not another cynical white, perhaps one who somehow repents), Hounsou more of a local innocent, who apparently needs outside help (sensibly, perhaps, since outsiders also are helping to make things worse). Still "the other." All the same, when an old local wonders the horrors that would occur if the land had oil, just had to laugh.

Overall, if people will be made to think while being entertained, I am okay with it. And, it seems some of this "too full of itself" stuff is a bit too overly cynical. Anyway, isn't a bit of preaching appropriate this time of year?

Merry Christmas

So it begins. Christmas eve went fine enough. I liked this gift that I gave my younger niece. Fittingly, it is a Mardi Gras doll, on the day the Saints chopped up the Giants. Again, still have a decent shot at the playoffs.

Some Strange Goings On In Palestine

And Also: Joe Conason reminds us that "[d]espite their vote of confidence in Democrats this November, voters doubt Congress' ability to lead. Swift reforms could prove them wrong." The recent embarassment with Rep. Silvestre Reyes underlines the shoals they will need to avoid. Pelosi was right to avoid Harman, but Reyes was not the only option. Live and learn, hopefully. BTW, Little Miss Sunshine is a good movie, fitting for the season, really.

[from "The Very Words of Iosephus," c. 747 AUC*]

Sometimes, it seems like a dubious prospect that we continue to send legions to Palestine. It sounds like a depressing backwater, especially the local religious nuts. The Romans bring civilization to these papers, roads, clean water, administration, the majesty of Caesar, and are they happy? No. Still, we let them practice their strange religion ... one god? What is up with that? And, they aren't happy. Shoot ... they can even be citizens ... Jews! Consider some local resident, let's say some tanner named Saul, which apparently is a common name. This guy can be a Roman citizen, with the right to appeal to the Caesar Augustus himself if charged with a crime! Not bad, is it? And, what do they do? Complain that their taxes are too high, that they have to honor Caesar, and not support a bunch of rabble rousers. Darn religious zealots.

Yes, I know ... we need to protect our borders, especially given Egypt is a major source of food ... how can we have bread and circuses without bread, after all? We move out of Palestine and Syria (wonder how that guy Quirinius is doing), what happens? Some Parthians or whatever will try to seize Egypt. And, we cannot have that ... this is the time of Pax Romana, right? And, peace needs back-up. Now, I know, I'm not a big fan of the local leader there. A Herod, who seems like a typical power hungry local tyrant. But, hey, as long as he supports us. Our man in Palestine, right? Besides, the locals seem to respect him enough ... provides jobs and all with those building projects. And, those people only really respect power and force. Better him than someone who truly takes that strange religion seriously.

Anyway, talking about taxes, the census was a success. It was unpopular, of course, since no one keeps in mind that an empire needs taxes. If you don't keep close watch on people, how will the empire thrive? Darn anti-imperialistic naysayers. I must say that the whole thing underlines the remarkable bureaucracy that makes Rome great. Just think, all those people going back to the towns of their ancestors, and the efforts needed to keep everything running smoothly. Take for instance a place like Palestine. A story was passed to me that times were so tough that often people had to stay in barns because the inns of certain towns were overcrowded. Apparently, in one case, a baby was actually born there, and was placed in a manger! Icky. That's where slop is stored. But, it went smoothly -- wouldn't be surprised if future ages will read about such events and be impressed.

Update: A bit more on that story about the baby. A local soldier told of a story that a shepherd claimed to see some sort of heavenly being proclaiming said baby was destined to be their king, apparently prophesized in the locals' religious writings or something. A passing trio of astrologers got into the fun, dropping off some gifts, saying that a star somehow was involved. The details are hazy and who knows how much you can trust such rumor mongering. Lots of such tales going around these days. Sounds fantastical, like why not also say that Jupiter impregnated the woman, sending Mercury to assure her that her husband will not have her killed? [Seems a local custom is to stone adulterers. Not enough stones in Rome for that here. Lol]

But, there was a serious subplot here -- Herod, apparently an unhinged sort, took the talk seriously, feeling his reign was threatened. And, thus, had all local children under the age of two killed. One would think the Romans would not allow such things to go on -- think of the trouble it might cause -- but it's not like we care too much about what goes on in such backwaters. If the people really thought Herod was a tyrant, they would demand him be overthrown, right? He might be a tyrant, but he's our tyrant. Anyway, a rumor is going around that the baby survived, the couple fleeing the area. That sort of thing always seems to happen ... like they abandon the baby on a rock somewhere, and a local shepherd saves him. Bad planning, I say. Overkill that is in effect underkill ... a bit ironic.

At any rate, maybe, some of the gold that the astrologers gave them could be put to good use. After all, sounds like that baby has a future.

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* aka written around 747 years after the founding of the city (of Rome) [more of this "lost book" here]

Political News: Nation to Locality

And Also: I sometimes am upset that I don't consistently read good neutral news sources, especially since "non-MSM" perspectives worth studying just do not always lean a certain way. Take Democracy Now! It had a neutral story today, interviewing someone who had the same malady that struck the senator recently. I'm watching it a bit more of late, and simply put, this is atypical. But, it was very interesting and informative, not something I saw from those who covered the story. It seems the woman works in the media business, so probably it was serendipity that they found her.

Nation: A telling story noted that a Bush official did the ultimate sin -- spoke freely, saying that he thought the draft could be a good thing, especially if it is done in a fair way. This doesn't mean that the Bush Administration necessarily supported bring it back or something. It just is an opinion from veteran's affairs. But, of course, this might send the wrong message, so there had to be an official announcement that of course they were not considering such a thing, since considering various options would be a truly horrible thing. This is how a credible government would run, but well, enough said.

State: The newly re-elected state comptroller (Alan Hevesi) will admit guilt in a case involving misuse of state funds to help chauffeur around his wife -- misuse of state funds not quite something ideal for that job -- and will resign. This thing was known beforehand, so the thing to do would have been resign before the election. It is not like whoever was tossed out there as a replacement would not be elected any way, but at least the people would have been directly involved. Since there was no credible opponent (the Republican was a nonentity unlike the attorney general option, who was just a lousy candidate), except for protest message options (I took the Green route), Hevesi won fairly easily, though (along with the attorney general candidate) many did not really like the choices. Now, the job will be filled by appointment.

Surely, he thought the election would allow him to move on, but it turned out involve a sizable amount of money (at least 200K), and it snowballed. I personally noted at the time that the crime did not seem something we really needed to worry about, upsetting, but fairly trivial at the end of the day. This sort of thing is how these things snowball -- the only snow we will get around here for Christmas -- little things ignore, and before you know it, real money is involved. Meanwhile, the top Republican, the Senate leader, is under federal investigation related to the now fairly typical influence transgressions the party clearly knows and loves. At least, with Hevesi out, the new Democratic governor could credible speak of starting anew, without having a major party official in effect as a weight around his neck.

City: A federal jury quickly convicted a drug dealer who killed an undercover police officer involved in an illegal gun running sting, a sad parallel (especially given both were black as was part of the team in the second case) to another local story in which a man was killed on his wedding day by undercover police officers. The thing that caught my eye was that Mayor Bloomberg* consistently opposed the death penalty even in this case. One can live with such people though they do enough to remember why voting Republican still tends to be a bad idea.

He also made sure to work with local leaders after the police shooting, allowing a smoother aftermath as compared to his more divisive predecessor, and now possible presidential candidate. Unfortunately, the semi-official leadership of the protest to the undercover police team's barrage of bullets at the innocent group's vehicle is Al Sharpton. I know someone who is traditionally suspicious of inner city minorities, but admits this case crossed the line.

But, she just despises Al Sharpton. Sharpton is a divisive sort that seems to be a counterproductive force in various ways. We can respect what he does to fight discrimination and in support of the needs of his audience, but it would be so much more productive if another face was put on this necessary movement. To have such a divisive figure out there having protest marches involving making a spectacle of themselves during shopping season, which on some level might be a good idea if it has its desired effect, seems a bit stupid.

Borough: One of those "oh!" stories involved a woman who allegedly died in a car crash while fixing her make-up. [Shades of mothers concerned about their sons having ripped underwear when they get to the emergency room?] People she know do not believe the witness reports on the point, saying that she didn't even wear makeup that much, but what really did her in perhaps was not wearing a seat belt. The NY Daily News included a picture of police looking over the crashed car. Not quite how one wants a loved one remembered. The article overall is a bit perverse, including a reference to the victim being "quiet and pretty" ... well, do we really want to emphasize that?

Not quite political, but NYT did have an interesting article on long time Bronx political leader, José Rivera, whose daughter is a local assembly representative.

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* Yes, like the news channel. A nominal Republican, who also helps the party, but a former Democrat who changed parties to avoid the crowded Democrat primary in 2001 ... yes, events helped Giuliani’s candidate to win, but Mark Green also was simply not a good candidate, as shown by him losing the AG primary race to someone arguably unqualified for the job.

Odds and Ends

And Also: "Just how many different ways has the Bush Administration tried to hide once-public information sources from the public record? Help us count the ways." Reminds me of my posts around this time of year about how they selectively edited scientific reports.

I have noted that Luanne on King of the Hill (Texas family) is a charming character. She is a slightly naive niece of Peggy Hill, who went to live with the family when her mother was convicted of attacking a man with a screwdriver or whatnot. But, besides being cute (yes, she is a cartoon character, but she has that Daisy Duke look down pat, and not the movie version), Luanne is deep down a levelheaded sort, who even Hank realizes is something of a kindred spirit. I bring that matter up because Renée Zellweger was on David Letterman yesterday, and darn if she sounds just look her. Not just the accent (she hails from Texas too, the actual voice from Georgia), but the babyish inflection. Uncanny. Oh, and the late episode of the show on last night was focused on L. too. Fitting.

Talking about somewhat cutesy looking/sounding sorts, a tidbit in the paper called to mind Julia Sweeney, who was referenced here a few times for her "letting go of God" efforts. She also has a monologue, "In The Family Way," about her adopting a baby girl from China (Tara Mulan), honestly, a mixed effort. [The monologue, not the adoption.*] Sweeney notes that many adopted from China because of their more lax rules, including no need to be married (they do worry about you being gay). Turns out, however, the rules are a bit stricter now -- the blurb in my paper noted that a recent upswing of adoptions helped push the country to alter the rules, including not letting those unmarried to adopt.

[The NY Daily News blurb also lists those who are obese, over 50, or who take antidepressants.]

On the Xmas front, I went yesterday to pick up the three gifts that I thought were on their way via catalog order. One was a regular -- English toffee. Luckily, I recently passed by a box when checking out a store while killing time before a movie. Hopefully, it is of similar quality. Other replacement options showed themselves as well. Likewise, I was able to pick up a Christmas themed book from the library per personal request, which is fair, since the person also found a book requested by moi. This means that I probably have only one little thing to pick up, which I shall do on Saturday, to leave something open.

Given the timing, Christmas wrapping also might not go quite on schedule. Given how things will work out, it probably will be done on the 23rd, unlike the usual early 24th handling of things. Oh well.

---

* TM is a cutie, much like another Tara that I know. She was there when her mom was holding court after the "Letting Go Of God" show that I went to a couple months back. Another cute Chinese girl was hanging around when I went to get my Chinese food yesterday. This is a takeout place that for some reason sent a stamped envelope out to my address (no name) with a menu. Pretty good General Tso Tofu.

Two Cases

A couple interesting opinions from the NY Court of Appeals (highest court) that do the job in about ten pages total.

The first underlines how a right to confront one's accusers pursuant to the Sixth Amendment (and the state equivalent, here assumed to be equal) involves witnesses, not those whose "excited utterances" arose from police questioning at the scene to determine what happened. Here, the woman was assaulted, he asked what happened, and from this the guilty party was determined. The victim could not appear, would be interesting to know why but apparently not relevant to the case, so the officer's testimony alone was submitted.

The second involved a claimed "ineffective assistance" case, underlined the state rule is somewhat more protective, but the pro se claim here was deemed too weak (one claim was wrong, the other not backed up with sworn testimony).

Nice People Can Be Wrong etc.

And Also: A nice way to promote the arts ... "killing two birds with one stone" might not work in this context, though.

I was looking at a book by some liberal leaning sort that decided to try being a conservative for some set period of time. The introduction led to one of those moments that I'm starting to have more of where the book soon is determined not to be worth my time. He starts off saying he is from some safe lib area, Seattle, but noticed that conservatives seemed to be nice sounding sorts that had something sensible to say. Oh, and had some political debates with his conservative brother-in-law (connected to Cheney), and always seems to lose them. This annoyed me since it simplified the whole thing.

Like those who say that some family member is a really nice person but has some sort of racist side. Surely, they cannot really be racist ... they are sooo nice! Clearly, all slave owners -- though often involved with founding acts of our nation that otherwise seem sort of like good things -- must have been ignorant assholes. Life is a tad bit more complicated. Surely, those who voted for Bush and think abortion should be a crime and homosexuals not worthy of any number of civil rights are often nice people on some core level. You might find this hard to believe from the tone of some of the blogs and so forth out there. The reverse is true, really, from the eyes of the other side of the ideological divide. If they were honest. You can be nice and wrong. A bit too often, this even applies to yours truly.

BTW, I did something today that every right-minded New Yorker has to do at least once ... yes, go to Kinkos. I had them do the copying, so hope that counts. Great service really -- from your home, you can designate the file you want copied, set terms (number, binding, paper, etc.), and so forth with the bottom line charge a dime a page. And, no additional charge for having them do it. Thus, I had over 100 pages (five packs) done for around $13. OTOH, I never took a yellow cab. I did take car services a few times. But, no yellow cab. It seems silly to me ... you have buses and subways for that. Seems more of a Manhattanite sort of thing, really. Since a subway ride is about the same as a minimum fare (go two blocks, let's say), plus city traffic is often a killer, I probably won't be taking one soon either.

I did see the "tree" at Rockefeller Center, of course. Saw it today, actually. No big deal. There are various nice Xmas displays in the city, including the Bronx, that are much more impressive. It is a really really big tree, sure, but all it has is lights. Who cares? Seriously, my mom has an artificial tree, which without decorations by now looks like that tree in the Peanuts Christmas special, but toss all the trimmings, it looks fairly good. More exciting than a big tree with lights. As to Xmas, found out that one of my orders got accidentally cancelled -- they only sent me an email, which was spam-blocked. It was a big enough order to warrant a phone call or something. So, yes, still have a few things to buy. Oh well.

Finally, we have various scenarios for both NY teams to be able to get in to the playoffs. Some teams are really just going through the motions the rest of the season, including one which has home field sewn up already. How boring. Much better to keep track of about half of the teams in the league, all which in some small way factors into your playoff chances. Ah, the world of parity.

Bengals did right yesterday. Now, if the Jets beat two subpar teams, and two of three teams lose at least once in the next two weeks ... and if Libra is in the lower quadrant ...

Copperheads

And Also:Winding down on the Xmas gifts -- picked up a pack of Christmas tic tacs today. One big package yet to come in the mail. And, heck, it is supposed to be less than fifty degrees during the day soon.

Some time ago, I read a history of the Civil War (Battle Cry of Freedom) by James M. McPherson. A very good one volume account of the war, including an extended discussion of the era directly preceding it. JM wrote the forward to Copperheads: The Rise and Fall of Lincoln's Opponents in the North by Jennifer L. Weber.

As a preliminary note, it seems like a questionable subtitle. "Copperheads" (dangerous snakes) aka "Peace Democrats" were really only one part of Lincoln's Northern opposition, which quite arguably included many Republicans. After all, Lincoln's opponent in the 1864 elections -- another symbol of how our basic institutions can continue during wartime -- was George McClellan, who was not really a Copperhead. Second, especially given their appeals to the "Crittenden Compromise" (a hopeless attempt to stave off war by in effect agreeing to the platform of Southern Democrats), there seemed to be a connection to the Constitutional Union Party. The appeal to the old Constitution, or the one they idealized with a racist tinge at that, as a solution to things also seemed like a connection. Unfortunately, the book only briefly referenced this failed attempt to supply another option in 1860.*

[A recent book discussing the Dred Scott Case made the argument that it would have been appropriate for a calculating moderate to vote C-U in 1860. Republicans were too radical and sectional as were Southern Democrats, while Douglas Democrats had their own problems -- including troubling manifest destiny sentiments regarding places like Cuba. Now, one might think -- shudder -- that voting Republican seemed logical to all right minded Yankee sorts. And, all that secessionist talk in the past seemed to be mostly hot air. But, was not 1860 different? Who knew what a war would wrought!

OTOH, the C-U option would have been a moderate path, accepting things as they were, realizing change came slowly. The fact three percent of the North voted for them, however, suggested avoiding the core issue of the day simply was not possible. And, they supported divisive things like a slave code in the territories while campaigning in the South, which also didn't much care for their position. As Lincoln noted at Cooper Union, simple appeals to the Constitution to an almost pabulum degree simply was not workable at the time.]

The book as a whole was a short (a bit over two hundred pages with a good amount of pictures) account, especially tossing in various "meanwhile in the war" segments, which kept us up to date on ongoing military exploits. Obviously, since "peace" Democrats are involved, such things are important. Overall, it was a decent book -- I was a bit disappointed that it was not a bit deeper. Weber clearly made her sentiments known -- PDs were simply not realistic souls, not really supplying a realistic alternative vision of events as compared (though she doesn't really say as much) to War Democrats. Besides, one had a hard time sympathizing with people clearly racist, though obviously, not really much more than the norm, relatively speaking. Many Republicans, after all, wanted to shunt freed slaves to other countries.

It is important to understand the various groups in society, including the dissident ones who seem to go against the norm. Looking at things closely, you start to realize that life is not simplistically divided into two or so groupings. Thus, I probably would look at Peace Democrats somewhat more sympathetically. Besides, you get an idea why the nation was so attracted to their ideology even from reading the book ... consider the horrible death toll, push toward conscription, and major moves toward centralized national power, all quite troubling, especially given the sentiment of the era.

And, dissident movements that force strong opposition to concerns shared beyond their group often are not about "reality" per se ... it's like opposing the war in Iraq, and being expected to have a good alternative. On some level, it is fine to just oppose it -- it serves a purpose on its own. This is especially the case when we are talking about groups within a broader movement. This is not to say such groups must be accepted as reasonable, since they often are not. And, as McPherson himself noted, such opposition helped to unite the Republicans. Cf. The nominally one party Confederate Congress with a one term president, who all the same had plenty of opposition, just not quite as "official."

Still, fairly interesting. To add to the charm, it came via a reserve ... from the Chappaqua Library. Could Bill Clinton have read it while waiting for a plane or something? Next up on the alternate political group list ... Federalists in the 1790s.

---

* The Copperheads saw the Constitution as "a formal set of rules" while Republicans generally saw it more as "a living document that incorporated laws, customs, and practices," though there was some overlap -- after all, Lincoln et. al. did appeal to original understanding respecting not allowing slavery to spread. Copperheads had an idealized view of Jeffersonian democracy, one with a limited national government and weak executive, somewhat ironic given their hero Andrew Jackson's actual sentiments on some matters. Yes, this sounds sort of familiar.

To the degree that the CU Party had shades of Whiggery, the former "second" party in the U.S., perhaps my comparison does not work. IOW, Whigs were more comfortable with an "American system" that involved a somewhat more energetic national government, including respecting internal improvements. Still, they too feared a too powerful executive -- especially King Andrew -- so the comparison works on that end.

Sunday Thoughts

Earlier, I noted that the NYT wasn't too interesting today. Sure enough. A few comments. First, there was something about being an atheist at Christmas time. Silly. Christmas is largely not about believing in a God, surely one whose son in some fashion was born in a manger. Is Santa Claus too related to belief in a God? A former neighbor was Jewish, so was Jesus so they say, but they still put up Xmas directions. And, no specification of the "X." The holiday arose from ancient origins, connected to the solstice surely, and fit into the Christians' worldview. Not the other way around. Think of Thanksgiving -- generally speaking not really deemed a religious holiday, but it harkens back to days of thanksgiving (and humiliation), which do have a religious competent.

Second, a book review of John Yoo's and Bruce Ackerman's latest (two books, mind you) annoyed. Yoo for the usual, Ackerman for his thought that somehow we needed some sort of special emergency Constitution or something the next time some 9/11 deal came. Again, you can go to the website to take a look at the story, but this sort of thing is tedious. The review is pretty dismissive, if trying not to be too much so, of Yoo -- how can "trust us" really warrant anything else, especially when we know the record of "us?" Ackerman was a slightly different matter -- a nod to how at least he is thinking about the problem, etc. But, the conclusion reminded us that those famous German saboteurs in WWII ... the leaders surrendered themselves, more attached to the U.S. (and its values) deep down.

Do we want to surrender them, even temporarily for some "emergency?" BA in a fashion doesn't quite trust the Constitution either. There is no need for some emergency powers ... the emergency situation is taken care of by respecting the basic constitutional principles used the rest of the time. The general idea that a Patriot Act sort of deal (or something more limited) should have a time limit is fine, but at some point, you get a time limited grant of power one rather not obtain, and wonder if it is worth it or will be relinquished after that time is up. Talking about our values, Peter Singer had a piece on the importance and ultimate moral obligation of private charity (not denying the importance of the government too, something many do). It got a bit longwinded too soon, but he's right. One of those things underlining how we are not quite as civilized deep down as we think we are.

As to football, today suggests the value of having two NY teams to root for. The Jets -- who were said to be likely to be about 6-10 (I thought 8-8 was quite possible) -- are more alive these days (middle of the pack, but such is the name of the game across the leagues) than the Giants (losers of five of six, the one win vs. the Panthers, the back-up QB harkening back to the team's 1-15 season). On the subject of back-up QBs, the Eagles are doing pretty good with one (3-1), hmm? I saw enough struggling play from the Giants to turn the game off. Last I checked, it was 14-13, Eagles, late third. Missed the Eagles scoring 22 in the fourth, to the Giants' 9. Darn. Oh, btw ... still not dead. Those last seeds need more than this sort of lackluster play to be eliminated.

The Jets had a good game. So, wanting to leave the day on a good note, it was off to the movies. The Secret Life of Words. Ah, Tim Robbins again. Robbins is having a pretty nice career for himself, when not being called a leftist traitor sort for his political convictions. He already had a movie this year where he played a South African military officer or something whose actions leads a black family man to become a freedom fighter for the cause. He also has that mature/sexy guy thing going for him, perhaps to prove that he isn't that much younger than his wife. Anyway, this time he plays a temporarily blinded oil worker nursed by a mysterious young woman played by Sarah Polley, who doesn't even seem to be a nurse at first. Clearly, though, she suffered some trauma as well.

See here, spoiler, to see the sort of thing at stake. Overall, very good acting work from the two, though I did not quite like the ending. In a fashion, the movie fits the theme of this entry overall. Left me with one more reading to do though.

You

And Also: NYT not too interesting, but did have a few printer-worthy pages (one side blank) discussing subscriptions. So useful to have more scrap pages.

The 2006 "Person of the Year" package hits newsstands Monday. The cover shows a white keyboard with a mirror for a computer screen [and "You." in the center] where buyers can see their reflection. ...

The annual honor for 2006 went to each and every one of us, as Time cited the shift from institutions to individuals -- citizens of the new digital democracy, as the magazine put it. The winners this year were anyone using or creating content on the World Wide Web.

-- AOL News

Oh, I feel so special. Still, I concur -- the Web provides a whole new world with great effects on democracy, including providing information, allowing people new means of coming together, and taking part in the grand messy thing we call "democracy." Not always pretty, but then neither were the days when cheap pamphlets and nights at the pub were core means of democratic action. Besides, again, makes people feel special -- their email forwarding a lame joke to their friends helped to make them a "person of the year!" Others want to ruin it. (h/t Atrios)

Anyway, feels so much like Christmas ... sixty degrees and all is perfect mid-December weather.

Hamdan Only Sorta A "Person": Part II

And Also: Interesting background piece on a recently released Xmas movie. Happy Hanukah (however you spell it).

[continued]

Judge Robertson admits that the third rejoinder, "Hamdan argues that, after several years in a territory within 'the complete jurisdiction and control' of the United States, his relationship with the United States is more extensive than those of petitioners in Eisentrager," merits a bit more discussion. Probably more than offered, though.

United States v. Verdugo-Urquidez (1990) is an important precedent in this respect; Robertson cites it as such. This involved the constitutionality of a search performed in Mexico for property of Mexican nationals held in U.S. custody. The majority opinion noted that the Fourth Amendment "right of the people" did not apply to property outside of our jurisdiction. Note how even here the Fourth Amendment (and rights of "the people") was separated from those given to "persons," including those in the Fifth Amendment. Namely, some of the securities demanded here.

[As a preliminary aside, note the "after several years," and compare it to Justice Kennedy's concurrence in Rasul, that suggests some brief detention -- maybe even months -- might be acceptable in this context, but not one extended too far. Such nuances pop up when you start to think "hmm ... something is different here." They can be papered over more easily, however, when quickie analysis is used.]

Justice Stevens' concurred separatedly. Justice Kennedy, though he joined the majority, also concurred. His concurrence, however, underlined that he did not join all the dicta of the majority, a key matter since Rasul cited his concurrence. And, overall, it helps to reign in excessive use of the majority opinion in contexts not relevant. Justice Kennedy, for instance, did not accept the sentiment that "the people" somehow was a term of art that decided the case against the claimants. Yes, unlike Stevens, he clearly said that searches of foreign residences was not covered. But, this is not really relevant in this context. Gitmo is not a foreign locale. A search of the Mexican nationals in a U.S. jail would surely still involve Fourth Amendment concerns.

Judge Robertson argues that Hamdan's "connection to the United States lacks the geographical and volitional predicates necessary to claim a constitutional right to habeas corpus." As to "geographical," the opinion notes that the "detention facility lies outside the sovereign realm, and only U.S. citizens in such locations may claim entitlement to a constitutionally guaranteed writ." But, Justice Kennedy's controlling opinion (cited as such in the detainee cases) was not so limited. For him, the locale of detention was key ... at least in respect to Gitmo, security is warranted. As he noted in V-U:

I do not mean to imply, and the Court has not decided, that persons in the position of the respondent have no constitutional protection. The United States is prosecuting a foreign national in a court established under Article III, and all of the trial proceedings are governed by the Constitution. All would agree, for instance, that the dictates of the Due Process Clause of the Fifth Amendment protect the defendant.

Again, we are talking about a Mexican national whose only "legal" presence in the U.S. is as a prisoner. As Justice Stevens noted in his concurrence, an "alien lawfully within the sovereign territory of the United States is entitled to the protection of our laws." Gitmo is such a territory, and yes, Hamdan is -- ironically enough -- legally there. Is the fact Hamdan is set to be tried in an Art. I (Art. II?) (military) court supposed to change things? Why? The clear sentiment in Rasul, even if it only had to rely on statutory protection (but focused on the jailer, the government ... as others note ... underlining why jurisdiction should apply -- we have an interest in stopping lawless government officials), was that aliens in his position had rights.

[As an aside, the judge tosses in a passing reference to United States v. Curtiss-Wright Export Corp., a 1930s ruling that many deem an unsound over the top unilateralist view of executive power in foreign relations, one not compelled by other cases. Justice Kennedy in the Mexican drug case cited also has such a passing reference, but still made sure to note that even if we have a fairly open-ended view of executive discretion in foreign affairs, there are constitutional limits.]

Perhaps, though I am rather dubious, Judge Robertson was right ... he surely was not compelled by precedent to decide the way he did. If anything, it seems to go the other way. Robertson sees some need for a "volitional" connection to the U.S. to warrant habeas rights. As I referenced above, he notes that "the majority in Rasul cited several other examples of pre-1789 habeas petitions brought by aliens detained within the sovereign territory or elsewhere within the sovereign's control" only to dismiss its soundness for cases of this sort. [Gitmo deemed a historical anomaly, though it does remind me of the Philippines, once similarly held by the U.S., also the locale of many alleged enemy combatants in custody.]

Instead, we are referred to a WWII case, ironically written by Justice Black -- who dissented in Eisentrager, finding its stripping of habeas even for convicted enemy aliens held on German soil where they could apparently obtain relief from Germany (Hamdan is only accused, held on soil controlled by the U.S., and cannot obtain relief from Cuba) outrageous. Later cases really are more worthy for clarification of this issue. I'd add, see my al-Marri posts, "volitional" connections very well might be relevant in some cases -- such as for treason charges.

But, a ruling upholding the right of a Japanese internee to obtain relief for back pay is not that helpful, is it? Ex parte Kawato concerns someone who is worthy of judicial relief. And, the tone of the opinion is revealing: "The policy of severity toward alien enemies was clearly impossible for a country whose life blood came from an immigrant stream." Also, a rule referenced suggests a low bar: "A lawful residence implies protection, and a capacity to sue and be sued." See above for what "lawful" appears to mean in this context. As to the "sue" prong, basically the fact this case is about just that issue highlights the slim value of the ruling.

And, a reference to those who "seek our shores-a chance to make his home and work in a free country, governed by just laws" would suggest those here on long vacations might be held without hearing, since they had no intention to stay. Justice Black, however, was not concerned about such possibilities -- his later dissent would suggest he would be upset if that was the result -- the claimant here clearly having a right of access to federal court. This was also shown by the opinion's statement that we need not look too closely at treaties when they are not really relevant. Again, this is a different situation. Overall, though hey maybe I'm interpreting it wrong, we see the result here was not compelled by precedent.

Congress is at fault for changing over two hundred years of precedent and stripping aliens of habeas rights. Sure. But, habeas is a common law right that grew in force in English courts, courts being the ultimate security of the rights involved here. So, the courts have a special responsibility as well, especially when upholding stripping people of basic rights, even when case law appears to go the other way. IOW, unnecessarily (and wrongly) holding that "persons in the position of the respondent have no constitutional protection."

BTW, on December 15, 1791, the U.S. adopted the Bill of Rights.

Hamdan Only Sorta A "Person": Part I

And Also: "Should Biological Parents Have More Rights in Adoption? A Hypothetical Conversation" By Sherry F. Colb is interesting enough that her upcoming book might be worth checking out.

Salim Ahmed Hamdan lost on remand, the district court (via a ruling by Judge Robertson, a Clinton appointee) upholding the Military Commission Act, at least to the degree it does not suspend constitutionally secured habeas without there being a rebellion or invasion. The proviso is important since it holds that aliens without a firm connection to the U.S. (even those held in U.S. jurisdiction) are not covered under that security. Their habeas rights are at the sufferance of Congress.

Some suggest this is the best we can hope for, given the situation, and at least limited security ... for people like al-Marri and other residential aliens... is offered by the ruling. The law as to people like Hamdan is unclear and we should ultimately blame Congress. [Glenn Greenwald, who honestly, did not really take time to analyze the ruling, just summarize it.] And, so forth. [Links provide discussion plus links to the ruling plus to a few relevant precedents. See also the comments here.]

After reading the twenty-two page ruling, I share Talk Left's dissenting analysis -- the reasoning is simply thinly supported. A few basic thoughts come to mind. First, as noted below, the core issue (no constitutional habeas security for Hamdan) is summarily addressed in a few pages (in large part, one long paragraph). When this sort of thing was used against the administration, namely the NSA wiretap issue, it was ridiculed as lame. Think about it -- twenty two pages of .pdf file pages simply are not that many, especially when you have to deal with preliminaries, factual background, and other odds and ends. This is not necessarily wrong -- the district courts deals with loads of cases, etc., but it underlines how the matter was selectively dealt with before. Also, as seen below, conclusionary summaries are problematic when they paper over dubious arguments.

Two, the ruling is in no way compelled by precedent, though it selectively uses language to do so. Again, many will not find this conclusionary "activist" technique a problem, especially if they like the result. The judge, for instance, references Justice Breyer's concurrence in Hamdan, which noted that Congress could change the rule and give the executive the power it wants -- namely, a different sort of military commission. The judge uses the language to imply Breyer was suggesting Congress could strip statutory habeas, leaving such "enemy combatants" without relief. Quite a different matter. Also, Rasul cites various old English cases to reaffirm that opinion's argument that habeas should be supplied even to aliens at Gitmo. The judge basically decided the cases were of little use, if one looks at their facts -- in other words, he made an independent analysis rejecting the clear implication of Rasul dicta.

Finally, and most importantly, such techniques naturally lead to his final conclusion -- that Hamdan "lacks the geographical and volitional predicates necessary to claim a constitutional right to habeas corpus." Judge Robertson, see Glenn Greenwald, used a post-WWII case -- one I might add that Rasul et. al. went out of their way to hint should be interpreted warily, so much the dissent noted they were in effect saying it was overruled -- as the key means of deciding this question:

To answer that question, the court relied upon prior Supreme Court rulings -- in particular the 1950 case of Eisentrager v. Johnson [aka Johnson v. Eisentrager], which dismissed habeas corpus petitions brought by German nationals who were convicted of war crimes in China by a post-WWII U.S. military tribunal. Judge Robertson concluded that, under Eisentrager, aliens with no U.S. connections have no constitutional right to bring habeas corpus petitions, and Congress is therefore permitted to strip federal courts of jurisdiction to entertain such petitions.

As TL notes, the cases simply are not equivalent. The district court obviously disagreed, quickly dealing with two rejoinders:

First, [Hamdan] notes that the Eisentrager petitioners admitted that they were enemy aliens, whereas petitioner Hamdan has always objected to his classification as an unlawful enemy combatant. Here, however, as in Eisentrager (where petitioners amended their petitions to assert that they had really been civilian employees) Hamdan's "exact affiliation is . . . for our purposes, immaterial." Eisentrager. Second, Hamdan claims that, unlike the Eisentrager petitioners, he has never been afforded access to a proper tribunal. That observation is obviously true, thus far, but Hamdan is to face a military commission newly designed, because of his efforts, by a Congress that finally stepped up to its responsibility, acting according to guidelines laid down by the Supreme Court. It is difficult to see how continued habeas jurisdiction could make further improvements in his tribunal. ...

As Rasul notes, "the Court in Eisentrager made quite clear that all six of the facts critical to its disposition were relevant only to the question of the prisoners' constitutional entitlement to habeas corpus." IOW, yes, they matter. See TL for the apparent confusion. Thus, the judge needs a bit more discussion than a bare "immaterial" ipse dixit. This is especially appalling given the bill of attainder nature of the whole affair. Second, what? The judge specifically notes in footnote 17 that the ruling "does not address whether and to what extent enemy aliens may invoke other constitutional rights."

In an Orwellian move, however, he apparently has no real means of defending them. At any rate, there are possible "improvements" (guards against unconstitutional action, e.g., bill of attainder) at issue here. This is simply shoddy reasoning.

[To be continued.]

Lethal Injection Problems

Charity: Seedlings Braille Books for Children: "For every $10 received, the organization creates a braille book, which the donor can designate in honor or memory of someone." Also, per recent discussion, see here. BTW, that diamond commercial that uses the "things are more important than money" movie It's A Wonderful Life is a bit tasteless, no?

Sounds like an interesting case:

In case where plaintiff claims he is the specified donee of a kidney, that he acquired a property right in it, and giving rise to claims against defendants for delivering it to someone else, questions certified by the U.S. Court of Appeals for the Second Circuit are answered as follows: plaintiff, as a specified donee of an incompatible kidney, has no common law right to the organ, his cause of action for conversion must fail, and as the kidneys were medically incompatible with him, he has no private right of action under the New York Public Health Law.

More importantly, two states, Florida and California, was told to put their lethal injections on hold until problems are handled. Ironically, it was Florida from which Hill v. McDonough came -- the case the Supreme Court took to underline that trivial lawsuits are a concern, but there is no need to throw the baby out with the bathwater. Hill's case was remanded, quickly disposed of, and he was executed. Hill's concern was proper execution "cocktails" which require care or the prisoner might suffer intense pain if the drugs are injected into a conscious person.

The Supremes held that the principles behind another case involving another foul-up regarding execution proposals should apply here. And, look, another such problem did cause a problem this time -- wrongful placement of the needle led to the inmate appearing "to be moving 24 minutes after the first injection, grimacing, blinking, licking his lips, blowing and appearing to mouth words." This is a problem because "[e]xecutions in Florida normally take no more than about 15 minutes, with the inmate rendered unconscious and motionless within three to five minutes."

The governor put a hold in Florida; a federal judge did so in California, this time because of the protocol issue. The Eighth Amendment requires the state to guard against unnecessary and wanton application of pain. And, the judge here held that though "[n]eedless to say, when properly administered, lethal injection results in a death that is far kinder than that suffered by the victims of capital crimes," all the same, at "the present time ... California's lethal-injection protocol lacks both reliability and transparency." The opinion spelled out some problems as well as suggesting the judge did his fact-finding job with due rigor.

The opinion covers all the ground -- the death penalty is constitutional under current law, the issue at hand is a narrow one of procedure, and the person's whose interests are involved is simply not sympathetic. On this point, the opinion is eloquent and sound:

Nor, finally, does it somehow involve a comparison of the pain that Plaintiff, a condemned inmate at California's San Quentin State Prison, might suffer when he is executed with the horrific suffering of the young woman he raped and murdered. The Court has considered seriously the constitutional issues raised by this case not because of some imagined personal sympathy for Plaintiff but because it is its fundamental duty to do so. As a practical matter, there is no way for a court to address Eighth Amendment issues in the capital context other than in a case raised by a death-row inmate; by definition, the acts of which such an inmate stands convicted are viewed by the law and a majority of the community as so abhorrent as to warrant the ultimate penalty. Lest there be any doubt, this Court has the most profound sympathy for the family and loved ones of Plaintiff's victim.

We continue to tinker with death. The Hill case, if nothing else, allowed lower courts some discretion to deal with the clear problems with this method of execution. Tinker tinker.

Some Further Reading

Various things of interest led to my .02, generally among other worthwhile comments.

Book Review: Michael Kinsley is on a "contrariness" kick, a usual "liberal media" technique, often resulting in stupid comments. I address one here, mainly because this sort of thing annoys me -- a little bit of due diligence can avoid such things. They are paying these people, right? I know, it is likely only a small stipend, but come on!

Transgender Option Rejected: I toss in more like my .10 on this issue here. The other posts are well worth reading too. My main thought here is that the kneejerk feeling comes off as woefully simplistic, thus at times making the more deeper complications harder to address. I really don't know the numbers here, but surely, some people's interests are fundamentally addressed here. The "fake" sentiment, therefore, points to the hill that must be climbed.

Possible Senate Issue: A health scare has put Democratic control of the Senate in question before it even has begun. It is too premature to determine what will happen, especially since the senator is in no way compelled to resign. And, who knows what a popular election -- required in November -- would bring. Still, why not think about the Seventeenth Amendment implications. I commented as well, largely in response to a true believer sort that I admit annoys me with what seems to be wrong-minded one track mindness. These sorts are getting on my nerves these days.

Also: Okay, so the transfat regulation probably is not really a major liberty concern. And, look, it's Elizabeth Edwards again!. Good to see that some think HC won't get there for reasons akin to my own. [She responds in the thread.] The junior senator from the Midwest also had a pretty good announcement about his leanings for the future ... that is, his support for the Chicago Bears. I also hear he wants to keep Rex as QB.

Finally, since my mom's dog has such a sensitive stomach, and doesn't like bones too much, I figured why not donate to a charity in her name? Humane Society, etc. Sure she would approve. Fluffy thinks outside of the box. [Okay, not really.]

Button Case

And Also: Interesting article on NYC's decision not to truly liberate its rules on sex designation. Due diligence, please! But, isn't the term "transsexual?" Also, nice discussion on ways to give charity related gifts. I have been giving a small charity donation (choice of the recipient) as part of birthday gifts this year. This article provides some good ideas on how to further the theme. As someone notes, it's better than just another bottle of wine.

More discussion here, but the Carey v. Musladin ruling was handed down on Monday. It held [Findlaw summary]:

Grant of habeas relief in a first-degree murder case is vacated where the Ninth Circuit erred in concluding that a state appeals court's decision, that buttons displaying the victim's image worn by the victim's family during respondent's trial did not deny respondent his right to a fair trial, was contrary to or an unreasonable application of clearly established federal law as determined by the Supreme Court.

As the summary suggests, the matter at hand was a federal statute that limited the discretion of the lower federal courts to review state rulings by means of habeas (corpus) review. If a certain practice was not clearly barred by Supreme Court precedent, the state ruling should be upheld. Since the Supreme Court often speaks in general terms, the lower courts applying broad rules to fact specific cases, this is a problematic policy, probably with constitutional problems to boot. After all, the fact the Supremes might in theory still take the case at hand really does not supply a practical solution. Thus, the law interferes with a basic constitutional purpose of lower court review in the area of due process.

Due process securities arise from the federal Constitution, so is a national right of citizenship that is rightly secured by the federal courts. The argument is that federal courts are too intrusive, second guessing state courts all too often, and not being compelled to do so by current precedent at that. This obviously is a matter of opinion, but the bottom line stays the same -- the Supreme Court simply is not going to supply any real check over the thousands of criminal cases that come up on habeas review. It is not really their job -- day to day affairs fall to lower courts. So, this federalism measure is far from cost-free. Yes, historically, federal courts have had a smaller role in this area. Turning back the clock pre-1960 or so, however, is not something we necessarily want to do either, however.

But, anyway, the ruling was not about the practice at issue -- the opinion noted the matter had not been clearly decided yet. Three justices (Stevens, Kennedy, and Souter) suggested that, should they decide it, such behavior would interfere with fair trial rights. And, felt "clear" (Stevens particularly addressed the point) should not be interpreted too strictly. They joined the opinion, however, on the basic issue. I sort of thought maybe a couple justices, especially Souter, might dissent. Still, the net result is not surprising, especially since the concurrences parsed the lower court pretty thinly -- the issue is a problem, but not always etc.

Though Justice Thomas wrote the opinion, Robertian minimalism strikes again. No wonder the Court's docket is so small -- they do not do much when actually deciding the case. The net result of cases like this, in effect, is to reduce their docket. Of course, if they let things percolate in the lower courts, the net result might be the same. Nearly every case taken is on discretionary review anyway. Still, the alternative path basically would have sent a message that -- the statute at hand notwithstanding -- the federal courts should have a bigger role than the conservatives in control want. This again underlines that the courts are far from totally unaffected by democratic controls -- a federal statute here limited their discretion as did membership arising from choices made by people we elected.

I admit that I find the former a bit questionable, but even I would probably accept some tinkering with the guidelines of such review. Regulating jurisdiction is sometimes legitimate congressional policy pursuant to Art. III. Oh well ... whole thing reminds me of a song my little brother used to sing in school way back when ... something about Sue in a button factory.

"For Us The Living"

And Also: Someone, whose thoughts generally are worth reading, if not always fully agreeable, has some insider insights on the Seattle school race case. The movie referenced last time was lackluster, but all agreed that the dinner afterwards was pretty good, especially the bread. Love good bread.

[Also: Christopher Hitchens might be an ass in various ways, but sometimes his perspective is not skewered. See here. To underline my point below that some still think Pinochet was a great guy, see here. Anti-american values yet again.]

His reign was rather problematic for various reasons, but Augusto Pinochet did die in a timely fashion. That is, fitting into a theme matching a movie I recently saw, one that actually was well made.* [It is hard not to be darkly flip at times, life appearing to merit it.] Hermanas (Sisters) took place in 1984 Texas with flashbacks ten years before politically troubled Argentina. I have a complimentary promotional postcard in front of me for The Blonds, a documentary of sorts regarding the same general era -- the film created by a woman whose parents vanished, and “victims of the Argentina's brutal military junta." And, I recently saw Isabel Allende promoting her latest book ... she is the niece of the democratically elected leader who Pinochet forces (with Nixon/Kissinger's blessing) killed.

It is fitting to reference fiction and other artistic representations of such events since Latin America has a rich literary condition addressing its long and troubled history. A wonderful book/film entitled Like Water For Chocolate, for instance, is an example of the "magical realism" technique often used in such works. The book tells a story about a woman in turn of the century Mexico (20th Century) who used food to express the passions she is not able to do so because of familial restraints. Allende also uses the technique as well as her own style in books like House of the Spirits, a fictional account that patterns experiences in her own country of Chile. And, we see the father dissident professor character in Hermanas use a fake Russian writer to make points about current events.

[Barbara Kingsolver is another writer who influenced my thoughts of the region, both her fiction and essays. Also, Overthrow: America's Century of Regime Change From Hawaii to Iraq by Stephen Kinzer. Yes, as usual, I lean a certain way. I have read a few neutral accounts of the events, but those at least somewhat dubious about our policies in the region ring true to me. And, overall, honestly.]

We saw the value of deeper truths expressed in fictional terms in the biblical book as well. Thus, the trio was used by later writers for their authority in order to promote a certain vision as well as to address current concerns. In effect, is this not how the Bible is often used in our day? As to the immediate issue, Latin America has long been a concern (think the Monroe Doctrine or not recognizing Haiti, since [eek] it was run by blacks, former slaves at that), even if there was a sort of "sidebar issue" to the whole thing. Along with various not too deeply thought out assumptions about the region. Thus, I have at various times heard the assumption (without much authentication or addressing of unsaid beliefs) that Pinochet in effect had little choice. There was going to be violence there anyway. At least, he "stabilized" (sounds benign, huh?) the region, and provided economic well being for the country.

This is almost amusing. No, it is, it just is one of those "laugh so you cannot cry" moments. Chile at the time had a policy that recognized the value of rotating the different political groups in power. It was time for the social democrats, represented by an erudite scholar sort (the bulky plastic glasses he wears in my newspaper’s photo fits the bill) by the name of Salvador Allende. The country, as I recall, had three main parties, so Allende's government had in effect plurality support. But, he was in no way some dangerous reactionary, the Che of Chile. Such nuances, of course, didn't quite fit U.S. policy at the time (or that of its President, who unconstitutionally in effect delegated such responsibilities, a theme that we still hear as some sort of necessary doctrine).

A legitimate approach would be to have been supported the democratically elected choice, using our connections to ensure the dissident forces would not work against what had some potential to be a troublesome situation. [Or, not get involved.] And, yes, the military and industrial leadership forces were a bit wary about even a soft acceptance of "leftist" thinking. Can't trust those people. So, they set it up to fall, "they" including the U.S. that felt totally justified to assist in the murder of a democratically elected leader of a country that was in effect an ally. Again, this was in no way a compelled by events approach, just one that matched certain political interests. The net result was unrest all the same, including by people who were unsurprisingly horrified at what was going on, as well as a chunk of society who very well might have been better off with more social welfare policies.

Let it be remembered that the income tax was once held to be "socialist" in our country. The word is only horrifying for those who want it to be. And, it simply is ridiculous to assume our social conditions match those of other countries in all respects. It also is useful to remember the size of some of these countries, which also is a factor -- it is like comparing the policies of Vermont or Minnesota with the United States, the latter state much more social welfare friendly than the nation as a whole. But, it really bears mentioning that a not all too ideal history with the power in the North (El Norte), the United States, is a big factor as well. All of this must be kept in mind, and if it is, perhaps so many would not have so simplistic (often troublingly so) sentiments about such places.

I think it is quite telling that the country as a whole has a generally weak understanding of the history of the region, if anything, basically accepting things as unlikely to have gone another way. The Contras serve as a core example of the problems with this viewpoint. Reagan could-- let's be blunt here -- unconstitutionally go along his merry way and Doonesbury is the only place where the general public might fully understand the ridiculous nature of the whole affair. And, in no small part, this was because a general sentiment that "pro-U.S." was a simplistically obvious determinant. Many are refreshingly cynical about assurances that one party or the other is so much more ideal, but such cynical realism only seems to go so far. Other times dubious tropes, resulting in horrible loss of life and human rights violations, are basically accepted. Necessary, you see, to stop the violence and such.

You know, like in Iraq. Kinzer's book suggests the fact that this all is not to be taken in isolation. Life and foreign policy can be compartmentalized only so much. Attempts by Spain to bring Pinochet to account, something Chile itself was wary about doing in promotion of the peace (given its past and likely still troubling forces still having some bite, this is far from surprising ... doesn't necessarily let them off the hook, so to speak), surely has other parallels. But, yes, Latin America -- and individual nations/regions therein -- needs to be examined on its own. And, Hermanas provides an artistically superior way to do this, as does the death of Pinochet at 91.

I might consider this proof of Billy Joel's dictum that only the good die young, but Jimmy Carter is still around, writing books and doing some good. So, see the Gettysburg Address (the source of the quote), perhaps the best case is to use his death for the benefit of the living, in the process, putting the dead into perspective.

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* It played in a charming little theater known as "Two Boots" (for the pizzeria, which can be found next door) in the Lower East Side, which plays such independent/foreign fare. This time, they gave out free popcorn, a reasonable small size. Timely, since I didn't eat much that day, and leaving room for ... yes, a p&b sandwich at a tiny automat that I passed on the way back to the subway. Not quite comparable to the now defunct eatery that was in midtown, but appreciated. Below 14th Street has its charms.