Back Dated Seniority

This answers a question I had: where does Specter fit in the seniority, given the recently appointed senators have been in the caucus longer? It seems, to the (rightful) annoyance of many, Reid agree to full seniority. This can change after 2010, but probably some middle path would make the most sense. If only the change comes when a real Democrat from PA is elected!

Supreme Court Quickie

The last day for oral arguments at the Supreme Court included a case involving a trifling matter on one hand -- a tiny area wanting to bail out of federal control of their voting -- and the whole "preclearance" policy as a whole. I discuss it here (with links to expert opinions), including how some middle ground might very well be the right way. The nature of the litigation helps the government here too. More.

Quickies

Bybee stands by his opinions, but thinks maybe he could have done a better job, upset at how they were used. Former law clerk et. al. not quite sympathetic. Scalia poo poos privacy, law professor uses him as a case study about the dangers of aggregation of "private" info, Scalia is upset. Mets bullpen blows it again.

Supreme Court Round-Up

And Also: I recently discussed the book A Claim of Privilege, which concerns the Reynolds secrecy case, and the attempt years later of family members to make clear that the government in effect falsely used secrecy (the relevant facts weren't really secret) to cover up their negligence. Cases like this suggest they are making some headway, here involving rendition flights.*

A couple of interesting Supreme Court cases were handed down today. The first, which Roberts joined while Alito concurred on narrow grounds, set forth an important principle: the "sovereign obligation" of the state to provide a fair trial. It also underlined the importance of judicial review (a theme for all three cases cited here, actually), even if it involved matters that occurred years ago (here the person didn't find out the evidence was not supplied until a decade later), including criminal cases that were litigated in various ways:

In the 27 years since Gary Cone was convicted of murder and sentenced to death, no Tennessee court has reached the merits of his claim that state prosecutors withheld evidence that would have bolstered his defense and rebutted the State's attempts to cast doubt on his alleged drug addiction.

If he was interview on television, Cohen might have more authority than Cher did to say "f*** 'em." OTOH, the station who airs such remarks should be careful if they were said between 6 A.M. and 10 P.M. on a non-cable station. The FCC a few years back suddenly changed a long standing policy to hold that "fleeting expletives" could be deemed indecent if aired during those times, replacing an old policy that required more than single uses of such words, particularly those used in a non-sexual fashion. The Supreme Court, 5-4, avoiding constitutional questions, held this was a justifiable agency decision.

The ruling specifically noted that the First Amendment issue, which in this context is hard to avoid, was not decided yet below, so it would not decide it now. All the same, various justices wrote about it. Justice Thomas concurred, but noted that former cases upholding the fairness doctrine on scarcity principle grounds (limited outlets justified a right to reply rule that no longer is in place these days) and limits on indecent speech on public airwaves were dubious.

Justice Kennedy had a concurrence to reaffirm the importance of some judicial checks on powerful agencies, but joined most of the majority opinion as well. The agency issue led to a Scalia/Stevens dispute, including Stevens referencing his "unitary executive" theory and suggesting Scalia suddenly cared about a few statements of individual members of Congress. Scalia also alleged independent agencies were intended to guard against executive interference, not political or congressional pressures. He spoke of "increased subservience to congressional direction," citing various conservative commentary on the point. Lots of inside baseball here.

Justice Ginsburg dissented separately to note the later, aka the Pacifica case (Stevens baby, involving the "Seven Dirty Words" speech by George Carlin), should at best be interpreted narrowly. Breyer's primary dissent agreed, thus noting the broad rule change was particularly indefensible on the record here. Breyer is an expert at administrative law, so it is not surprising he provided one of his more expansive dissents here. Stevens also dissented separately, as noted, providing this charming tidbit among others:

It is ironic, to say the least, that while the FCC patrols the airwaves for words that have a tenuous relationship with sex or excrement, commercials broadcast during prime-time hours frequently ask viewers whether they too are battling erectile dysfunction or are having trouble going to the bathroom.

The justices furthered the mentality of the government here by not actually writing "fuck" and "shit," leaving us with things like "use of the F- and S-Words." Stop being weenies. Not that the NYT is any better -- when talking about cases like this, including in editorials, they don't either. Oh, LGM has another charming phony cheap shot Scalia makes comparing "foul-mouthed glitteratae from Hollywood" to small town folks.

Like the one referenced in my earlier post who made death threats when a college student bad-mouthed her town on her MySpace page?

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* To get a taste of what is at stake here, we might look at one of the alleged victims in question:

Plaintiff Agiza, an Egyptian national who had been seeking asylum in Sweden, was captured by Swedish authorities, transferred to American custody, and flown to Egypt. In Egypt, he was held for five weeks "in a squalid, windowless, and frigid cell," where he was "severely and repeatedly beaten" and subjected to electric shock through electrodes attached to his ear lobes, nipples, and genitals. Agiza was held in detention for two and a half years, after which he was given a six-hour trial before a military court, convicted, and sentenced to fifteen years in Egyptian prison. According to plaintiffs, "[v]irtually every aspect of Agiza’s rendition, including his torture in Egypt, has been publicly acknowledged by the Swedish government."

Obama wants to block litigation in this area, even though there is much public information on what happened, because the very "subject" is secret. The appellate court here said this does not bar use of the "underlying facts," noting the dangers of excessive secrecy claims and the role of the courts to protect against government violations of liberty.

Will they have en banc review? Will Judge Bybee be on the panel?

Interesting Privacy Case

I think the woman here has a hard case to win, including on the emotional distress ground, since the material was not private (she posted it online) and printing what she said should not be "emotional distress" except perhaps in some very narrow case. Still, the principal's actions along with the violent response reaffirms her original sentiments about her hometown. Meanwhile, this is funny.

Arlen

I'm probably as dubious as Atrios and as unimpressed as Glenn Greenwald on Arlen's move to the Democrats now that there is a good chance he'd lose the '10 Republican primary and can't run as an independent ala his pal Joe. This and this doesn't help. Wasn't there a real chance a real Dem would have won his seat in 2010? With the Bayhs of the world, let's see how "filibuster proof" things will be. Does make the Repubs look even less credible.

No "legal judgment rendered," NYT?

And Also: I found a book on the origins of "reasonable doubt" interesting, including its focus on how the rule helped jurors deal with their own moral concerns with judging others. But, as a certain Bronx book guy notes here, the conclusions didn't quite work for me.

Bullshit distracts with exaggeration, omission, obfuscation, stock phrases, pretentious jargon, faux-folksiness, feigned ignorance, and sloganeering homilies.

-- Laura Penny

I have been in the online debate world for years now, and it is as addictive as it can be tiresome, but one thing that repeatedly strikes me is how much b.s. there is out there. Of course, this is not only present online, but the strident tone can be found there in particular. For instance, how many more people will claim that Roe v. Wade is some risible opinion that no one should take seriously? Or, that it is so obvious that there is no constitutional right to possess a firearm. Not that the first opinion has problems or the second can be a reasonable (imho, weak) theory. No, it's all bloody obvious.

I admit I'm starting to get some torture overload.* I got Janet Mayer's book out of the library, but sort of don't feel like reading the damn thing -- the essentials, if not the details, were addressed in articles and blog posts. Shall see. But, then, via Slate's "Today's Papers" feature (and the hard copy), I saw this in today's NYT public editor column:

Exactly what constitutes torture continues to be a matter of debate and hasn’t been resolved by a court. This president and this attorney general say waterboarding is torture, but the previous president and attorney general said it is not. On what basis should a newspaper render its own verdict, short of charges being filed or a legal judgment rendered?

A major concern is that the previous administration provided a weak and perverted interpretation of said legal judgments. I'm left to checking out blogs and so forth to understand just how much, newspapers promoting a line that this is mostly some "policy" dispute as if Eric Holder said waterboarding is torture not as someone due to be Attorney General putting forth a legal judgment but as if he was citing his opinion on tax policy. No wonder people cry that giving "legal advice"** is not a problem.

It would not take much to -- repeatedly -- provide some context to why waterboarding is called torture (past prosecutions might be cited, for instance) or how other courts, torture experts (such as the person in charge of the matter at the UN), and so forth repeatedly "rendered" (ironic term in this context) a "legal judgment" on the matter. For instance, the Israel Supreme Court might be cited, or legal judgments from law lords in Great Britain. Or, something like this:

The state offered . . . testimony of confessions made by the appellant, Fisher. . . [who], after the state had rested, introduced the sheriff, who testified that, he was sent for one night to come and receive a confession of the appellant in the jail; that he went there for that purpose; that when he reached the jail he found a number of parties in the jail; that they had the appellant down upon the floor, tied, and were administering the water cure, a specie of torture well known to the bench and bar of the country.

Fisher v. State, 110 So. 361, 362 (Miss. 1926). Those first two nations have some experience dealing with terrorists, but perhaps a domestic cite -- this just one of many -- will be better for the more patriotic sort among us. The free press should educate, not promote ignorance.

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* To further expand on the bs point, here's an article that suggests that we should not impeach Judge Bybee; in fact, arguing it probably would be constitutionally improper to do so. I respond here and here. Remember, this is not that it won't work, or that it is a bad idea pragmatically, but that we cannot do it. Or, we should not using lame ass reasons like it is just "political" (partisan) in nature.

** Aka "slipshod advocacy"

Us v. Them, Them & Us?

And Also: One of many criticisms of the appointment of Sen. Gillibrand is that it would mean a loss to the Dems since she was from a conservative district. Instead, in a race the Republicans gave some emphasis to, the Dem won the election in a nail-biter. Also out of NY: interesting 2A case not involving guns. Wonder what KG thinks!

Nothing has yet repealed Nature’s dictates. We eat to live and kill to eat. So do all the world’s other creatures. At rock bottom, we are Them and they are US. There is no basic difference in our capacities for suffering and pleasure. But we have opportunities that they do not: the ability to reflect on what we do, the power to act humanely, the obligation not to waste a whit of what we take, and the grace to be thankful.

“All animals engage in purposeful action … seeking food, mates [and seek to protect our offspring], and the company of others. … Animals investigate novel and biologically significant stimuli as we do, ignore old and uninteresting events just as we do, and share our limited capacity for incoming information. We are not the only conscious beings on earth.”

-- Janet Lembke, Because The Cat Purrs: How We Relate to Other Species and Why It Matters (also quoting Bernard J. Baars, neuroscientist)

Quickies

Being Erica reviewed at Feministing. Shepherd Smith is pissed about torture. Jimmy Breslin finds life is a bit too unfair. Mets lose again.

Plan B News

And Also: As part of Earth Day, there were special iCarly and True Jackson episodes last night. The former was decent, which is good given its recent decline, the latter another pretty good episode. The Lulu bf subplot was particularly cute, while the little life lessons TJ learns are handled nicely as well. The show is not gold, but is fun fare, which is fine enough. The minute to turn lights off, I guess, was okay symbolism, but don't many watch t.v. with the lights off anyway? It's not like you need that for the computer either!

To expand a bit on something referenced yesterday:

Seventeen-year-olds will soon be allowed to buy morning-after contraceptive pills without a doctor's prescription after federal drug regulators complied with a judge’s order and lowered the age limit by a year. The decision on Wednesday by the Food and Drug Administration, which overturns one of the most controversial health rulings of the Bush administration, was scorned by abortion opponents and hailed by their abortion rights counterparts.

Also in the news, a sign of what a new administration, judicial review, and advocacy organizations will wrought, "Plan B" will not be available to 17 year-olds without a prescription. Plan B was a partisan/moral football by the Bush Administration, allowing this pill that needs to be taken within 72 hours (or even 24 for best efficiency) to be sold over the counter even for adults a drawn out process, a process the judge in this case deemed unreasonable, and in part politically motivated. Controversy also arose because some saw this as an abortion drug, even though it generally works before fertilization, and even when (if) it does not, regular birth control pills do as well.

What the new policy can mean, and why it very well can be expanded to younger teens is discussed here, a taste:

My first trip for a Plan B pill was a cold, dreary bus ride up Lake Shore Drive to the Planned Parenthood in downtown Chicago. I remember looking out over the frozen lake, wondering what would happen if I couldn't get the pill that afternoon. I was 15, and not ready to deal with making the decision between pregnancy and abortion. (At 22, I can confidently say that I'm still not.)

Luckily, as a teen I was informed enough to know what to do. It took me two attempts to make it to the center when it was open—closed every other Sunday—and the longer I waited, the less effective I knew the pills would be. I can't imagine how much terror would have been avoided had I been able to stop into the 24 hour Walgreens with my boyfriend immediately after the condom broke.

But increasing access of emergency contraception for teens is not just about making a girl feel less anxious about taking the pills; it’s about preventing pregnancies.

Holding it back from teens is counterproductive and irrational:

Russell Turk, M.D., an OB/GYN in Connecticut, made the argument to make it available to girls as young as 13. According to some individuals, giving EC to young teens is outrageous. Therefore, to get a pill they need a prescription—but this doesn’t make any sense, he says, because the pill is safer than the alternative. "Widespread availability of the morning-after pill has the potential to prevent unplanned pregnancy and abortion – both of which pose far greater risk and hardship to teen girls."

Bristol Palin* and others can tell us the value of a sound reproductive health policy, including the dubious nature of federal funding of abstinence only education, and the imperfect use of protection during teenage sex. This is a step in the right direction.

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* Is that a good reference? There is a type of "man bites dog" flavor to BP as well as a making of a "gotcha," but it doesn't really change that it has bite. She was seen as a hero by some for having the baby, so let's see what she thinks as a whole.

I guess the possible blowback suggests references of this type are a bit dubious, though oh come on -- people are thinking about certain individuals in the news, and putting them in context is not bad pool. Feigning insult or being insulted in a conveniently selective fashion does not change that.

"We do not need these techniques to keep America safe"

And Also: Because the Cat Purrs: How We Relate to Other Species and Why It Matters by Janet Lembkeis a charming read, written with a nice slightly off-kilter tone. Level-headed article on the FDA accepting a judicial ruling (holding the alternative had no reasonable basis) allowing 17 year olds to Plan B without a prescription. Sounds like earlier can work too.

Dennis Blair, national intelligence director, had the correct message:

"We do not need these techniques to keep America safe," said Mr. Blair, who added: “The information gained from these techniques was valuable in some instances, but there is no way of knowing whether the same information could have been obtained through other means. The bottom line is these techniques have hurt our image around the world, the damage they have done to our interests far outweighed whatever benefit they gave us, and they are not essential to our national security.”

Punching a member of a person's family, breaking their nose in the process, is against the law, even if it is deemed necessary, or shown to be useful, in getting information about ongoing crimes in which the lives of others are at stake in some fashion.

The fact something "worked," which is deemed by some alleged intelligent sorts as compelling news, is of limited value here. Certain actions are just plain off the table because they are deemed against the law, against the law in significant part because they are inhumane. The fact, as discussed in news stories, the techniques also are of questionable merit, and have pragmatic difficulties involving foreign policy and so forth, likewise suggest how their "benefit" is outweighed by their costs. The simplistic mind-set that avoids the fact is dangerous.*

One aspect, raised now after the cow has left the barn, is how the misguided priorities -- the debatable logic underlining why such total secrecy is/was so dangerous -- showed “a perfect storm of ignorance and enthusiasm." Again, simplistic mind-sets fail to admit to this even now, as shown on Katie Couric's news broadcast last night where one regular analyst spoke about differences in "policy" that are unlike trying to go after "bribery" or the like. Criminal negligence is not just a matter of "policy," nor is the promotion and actual acts of torture and inhumane treatment. And, it is not just a matter of partisan differences. Stop with the BS. Yet another example came out recently:

Philip D. Zelikow, who worked on interrogation issues as counselor to Secretary of State Condoleezza Rice in 2005 and 2006, said the flawed decision-making badly served Mr. Bush and the country.

Yet another member of the "left," I guess. But, wasn't Congress informed? Not in any real sense of the word. A few members, in some fashion, were informed. In secret. Without the ability to get analysis from experts or staff to help them decide the right path to do. As one such congressional expert on the field in question noted (per a NYT article cited in "Today's Papers" over at Slate, also the source of the opening quote):

"The very programs that are among the most risky and controversial, and that therefore should get the greatest congressional oversight,” she said, "in fact get the least."

One thing I don't quite understand is that members of Congress, pursuant to the Constitution, have a right to "speech and debate" in Congress, and cannot be questioned in any other place. Thus, when a member released parts of the Pentagon Papers in this fashion, even though they were secret, Mike Gravel could not be prosecuted. As the Supreme Court noted:

The Speech or Debate Clause was designed to assure a co-equal branch of the government wide freedom of speech, debate, and deliberation without intimidation or threats from the Executive Branch. It thus protects Members against prosecutions that directly impinge upon or threaten the legislative process. We have no doubt that Senator Gravel may not be made to answer either in terms of questions or in terms of defending himself from prosecution -- for the events that occurred at the subcommittee meeting.

Given that some of the matters at hand involved possible war crimes, at some point, it is unclear why various members of Congress felt compelled to continually hold back discussing such matters, even in general terms. Philip D. Zelikow's appearance on Rachel Maddow last night was powerful, including RM asking him why he did not resign. Failure of will, really, a belief that the system suggests certain things need not be done. So, Powell didn't resign to protest the decision to invade Iraq. Members of Congress had similar failures of will. But, congressional enabling does not take others more directly involved off the hook, obviously. This includes not only regarding the policy but for the half-assed way they went about -- over years, not just the days after 9/11 -- to carry it out.

It shames those who -- everyday -- make hard calls, often under very stressful conditions, with honor and care to suggest they could be left off the hook because of the times, that their heart was in the right place, or any other reason. Hopefully, we will live and learn a bit.

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* We can repeat (no weasel words!) this until it truly sticks, since we knew something was wrong for a long time:

This is what happens when we stop demanding minimal competence in our Presidents; when we start caring more about who we would rather have a beer with than, oh, who would be most likely to seek out the best advice and listen to all sides of an argument before making an important decision, or whose judgment we can trust. We end up with people who toss aside our most fundamental values because someone who has never conducted an interrogation before thinks it might be a good idea, and no one bothers to do the basic background research on what he proposes.

-- Hilzoy

Another thing -- the release of the memoranda etc. apparently is stressing them out. Why should we care that much? They are being stressed out because it has become clear that they were involved in badly carried out mistreatment and torture of prisoners. The fact they might have, uh, had their hearts in the right place when they did it does not help me much.

Again, the utility of it all is very questionable. And, if they have to over-compensate somewhat, look what happened when they were not so restrained. We need to upset that apple cart! This article, for instance, suggests SERE training as currently done is counterproductive.

Court Watch

And Also: A good summary of Obama's foreign policy platform.

The Ninth Circuit, upholding the immediate regulation per the "sensitive places" exception found in Heller itself, held that the Second Amendment should be deemed incorporated into the Fourteenth. A judge appointed by Clinton provided a strong concurrence. The law a gun show on public property (parade grounds) with the distributors wanting to have the guns available for demonstration. Not just a simple sale akin to cases tying sale of contraceptives to the right to use them in the first place. Not quite an "assault weapon" ban case, but the incorporation part is utterly logical.

When Savana Redding was just 13 years old, she was strip-searched by school officials for allegedly possessing prescription-strength ibuprofen. This traumatizing search was based solely on the false and uncorroborated accusation of a classmate who was caught with similar pills.

-- ACLU Email Update (video here)

Dahlia Lithwick over at Slate has more, agreeing with Scotusblog that even in this blatant case, the SC might decide relatively narrowly. Contra, Sandy Levinson providing a broader point that this suggests a certain mentality that can be applied to the torture cases too. I commented more over there, but Charles Gittings's point on basic rights for all suits me just fine. Others also thought such a line was "self-evident," but others were somewhat more selective.

Meanwhile, the Supremes today decided Arizona v. Gant, that actually strengthened the privacy rights of those stopped in automobiles, even when drugs are involved. Breyer dissented because of precedent, even though he agreed with the reasoning of the majority on the basics, and five other justices a few years back in Thornton v. United States (O'Connor and four justices in the majority here) also argued the current law in the area was taken too far. Justice Stevens wary about the taking the underlining precedent, New York v. Belton, too far from its inception in 1981.

As suggested by both Stevens and more strongly by Scalia (Thomas joining the majority opinion alone), this is not a great reason to stick with precedent, particularly precedent in lower courts that went further than Belton requires. The majority held that if you are arrested during an automobile stop that your car can only be searched for two reasons: safety, when you can seize the item in the area searched; and evidence collection, when the search is reasonably pursuant to the reason you were arrested in the first place. Scalia disagreed with Stevens' interpretation of precedent and didn't think the safety rationale generally is necessary in practice.*

Here the guy was stopped for driving with a suspended license and was in custody. No reason to search the car. Given privacy concerns, doing so would be particularly egregious. As Scalia notes, joining an opinion whose reasoning he found questionable at spots just for that reason, it also can be unconstitutional. And, given the Supreme Court is in place to decide broad questions, not simply individual cases, it was perfectly correct to reach out to clarify the rule in question here for the reasons given in the opinion. The opinion also noted, applying a principle relevant in other cases, that a "reasonable reliance" on the broader rule in place before would warrant qualified immunity for officers involved.

Alito (jointed by CJ and Kennedy in full, Breyer mostly) dissented. In Thornton, O'Connor voiced support with Scalia's stance, but Alito's alternate view provided Scalia a chance to challenge the stance of the "O'Connor seat." Meanwhile, the main opinion noted that "Justice Stevens concurred in the judgment in Belton," you know, the writer of the opinion here. Talk in third person much? No problem. If you are going to help defend privacy, you can speak in whatever person you want!

But, Thomas and other justices are less gung ho about defending the rights of schoolchildren, so let's see how the strip search case goes. And, what is up next? A federal law against dogfight videos? The lower court struck it down on First Amendment grounds.

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* Here Scalia's jurisprudence had a libertarian result and his opinion has a satisfactory feel to it:

To determine what is an "unreasonable" search within the meaning of the Fourth Amendment, we look first to the historical practices the Framers sought to preserve; if those provide inadequate guidance, we apply traditional standards of reasonableness

In the case that provided the path to this one, he sounded almost like Brennan or Marshall in determining those standards. A Scalia/Ginsburg opinion is unique enough to note by itself. Compared to his playing around with facts in the no knock warrant case, of course, this underlines a certain uh subjectivity to his judging at times.

Deja Vu?

Mixing politics with Justice Department business is bad no matter who does it. Good reports on Rachel last night too. GG's clip etc. shows it is in flux and a long haul, but we need to understand principles now. Meanwhile, today was election day, for me at least, since a local pol went to the Obama Administration. Democracy in action via 19th Century lever machines!

420 -- In Honor of a Sane Drug Policy

And Also: Watching the excellent follow-up to Half Nelson (not a sports film), Sugar (on one level a baseball film) adds some gravitas to the baseball season. The unknowns, from the lead down, are as good as the flavor. And, one last chance to see the old Yankee stadium.

Even if the right belongs to the individual user (whether of contraceptives or medical marijuana), the distributor is an essential prerequisite to the exercise of that right, and one who is also well situated to go to court and vindicate it. In this case in particular, it was obviously easier for the Cannabis Cooperative to go to Court, than for terminally ill patients to devote their limited energies to doing so.

-- Sherry Colb

This time of year provides various opportunities to comment on anniversaries and the like, including Justice John Paul Stevens 89th birthday being today, but today will focus on "420" -- the marijuana symbol. Of course, there is some overlap -- Stevens wrote a concurring (referenced above) and main opinion for two major pot cases that reached the Supreme Court. One involved a necessity offense, the other the direct question if Congress has power under the Commerce Clause to ban even medicinal use of marijuana.*

Obama's discomfort with a popular online question involving marijuana aside, a change in our drug policy is something that has bipartisan appeal. Here are three views from people some might be surprised about:

Well, my next guest knows what it’s like to be on the frontlines of fighting the war on drugs in this country and doesn’t think marijuana is a laughing matter. Norm Stamper is a thirty-four-year police officer who retired as Seattle’s chief of police in 2000. His successor, Gil Kerlikowske, has just been nominated to be President Obama’s drug czar. But Norm Stamper supports legalization of marijuana. He’s an advisory board member of the National Organization for the Reform of Marijuana Laws, known as NORML. He is a speaker for the 10,000-member Law Enforcement Against Prohibition.

-- Amy Goodman

At about the time the [National Institute of Medicine of the National Academy of Sciences] study got underway, the British House of Lords - a body not known for its wild and crazy views - opened public hearings on the medical benefits and drawbacks of cannabis. Like the IOM, the Lords concluded that "cannabis almost certainly does have genuine medical applications, especially in treating the painful muscular spasms and other symptoms of MS and in the control of other forms of pain."

-- Judge Kozinski

I have not spoken of the cost to our society of the astonishing legal weapons available now to policemen and prosecutors; of the penalty of forfeiture of one's home and property for violation of laws which, though designed to advance the war against drugs, could legally be used -- I am told by learned counsel -- as penalties for the neglect of one's pets. I leave it at this, that it is outrageous to live in a society whose laws tolerate sending young people to life in prison because they grew, or distributed, a dozen ounces of marijuana. I would hope that the good offices of your vital profession would mobilize at least to protest such excesses of wartime zeal, the legal equivalent of a My Lai massacre. And perhaps proceed to recommend the legalization of the sale of most drugs, except to minors.

-- William F. Buckley

Attorney General Holder announced a policy of respecting state medicinal marijuana laws. But, see here. That would be a small first step. As suggested by the footnote, there is chance for some play in the joints, but also some real policy change will be necessary to really fix things. As GG discusses here and elsewhere, the Portugal de-criminalization policy is working. And, that would leave open civil penalties and actions, plus still leave open criminal penalties against sale.

Obama's main man said on the Sunday talk shows last weekend that even those behind the torture memoranda will not be targeted. Will people who smoke pot?

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* In the first, Stevens concurred separately to promote a more narrow ruling, one that left open a necessity claim for users, the case concerning distribution. But, again, how does one get such a product? And, distributors for contraceptives and abortion had standing to defend users, so why is this area different?

Colb elides past the argument -- that Stevens shared on that question -- that the federal statute itself made a clear policy choice to ban distribution for this drug in particular. OTOH, if so, Stevens concurring opinion has less force -- why would such a policy not apply to individuals too? Allegedly, it is after all in part for their medicinal benefit.

Stevens heart can be in the right place -- see his concurrence here -- but the dissent in that case suggests sometimes the middle path is not only unaccepted, but unacceptable.

US To Boycott UN Conference On Racism

The Obama administration will boycott "with regret" a U.N. conference on racism next week over objectionable language in the meeting's final document that could single out Israel for criticism and restrict free speech

Some changes were made, helped by U.S. pressure, but just meeting with people, not signing on to anything, still is verboten.

9th Circuit Window Into A Few Things

And Also: Yanks had an embarrassing 22-4 loss yesterday while the Mets had a now typical Santana nail-biter, this time a 1-0 win. The bloom is off the rose for me regarding the Yanks, but Wang's troubles give me little pleasure -- he's no hired gun, just a young pitcher that is coming off an injury who is struggling.

Among those involved in writing the infamous legal memoranda recently released by the Obama Administration is the now Honorable Jay Bybee, federal appellate judge of the Ninth Circuit of Appeals. As a LAT article on the rising conservative nature of the Ninth Circuit [or is it lessening liberal nature?] referenced by "Today's Papers" in Slate today notes:

One of the conservatives, Judge Jay S. Bybee, when he was an assistant attorney general, helped write memos guiding the CIA on how far it could go in using extreme torture while interrogating prisoners, according to Justice Department documents Obama released last week.

That is a damning summary -- "extreme torture" is a conclusion. Bybee, I'm sure, would have argued that it was not torture. Torture, after all, is illegal in this country. One of his many colorful who might find the legal gymnastics he used is this effort is Judge Kozinski. As he noted in an interview, his job is to rule on the law. The OLC apparently also has this job. As its website notes, it is "imperative that our opinions be clear, accurate, thoroughly researched, and soundly reasoned." It is not just a spin job factory; in fact, "candid, independent, and principled advice—even when that advice may be inconsistent with the desires of policymakers" is its watchword.

Judge Kozinski is a libertarian, someone who is on record in saying that both the First and Second Amendment are fundamental to our liberty. He supports the constitutionality of death penalty and did not think the Kelo ruling was a big deal,* but was disappointed with the Supreme Court ruling on medicinal marijuana. [Another interesting point of view is that of a former police chief and supporter of drug legalization.] Kozinkski got in a bit of trouble a few years back after he visited death row:

As for the inmate I visited, he was housed on death row but he was no longer subject to the death penalty. I saw the gas chamber when I was there. I saw what people look like on death row and how they’re treated. It just sort of informs one, makes one more aware of what people are dealing with.

I think that the attorney general doesn’t like it that I’m supposedly a conservative judge who often goes against him. I have ruled against the death penalty in about half of the cases that have come to me

Kozinksi labels himself something of a strict constructionist, but not as much as Scalia and Thomas. [He has supported some forms of race conscious programs, particularly as applied to private institutions.] This sort of thing suggests why:

Words are cultural references. They’re proxies for ideas that people share, and the ideas that we share are different in material respects from those of the Founding Fathers. We view the world in different ways even when we use the same words as they did.

Those who know him and have seen him [e.g., if you go to the American and the Courts page of C-SPAN, there is footage of a case he presided over involving airport watchlists] respect his wit and brains, he is like Scalia with less sarcasm and rancor. One dissent included a dialogue between a lawyer and his client. A piece:

Lawyer: Juan, I have good news and bad news.
Ramirez-Lopez: OK, I’m ready. Give me the bad news first.
Lawyer: The bad news is that the Ninth Circuit affirmed your conviction and you’re going to spend many years in federal prison.
Ramirez-Lopez: Oh, man, that’s terrible. I’m so disappointed. But you said there’s good news too, right?
Lawyer: Yes, excellent news! I’m very excited.
Ramirez-Lopez: OK, I’m ready for some good news, let me have it.
Lawyer: Well, here it goes: You’ll be happy to know that you had a perfect trial. They got you fair and square.

As we are on the road [link to a couple good essays on the issue] to more confirmation battles, Judge Kozinski is evidence that we need not see everyone through a knee-jerk partisan lens. For instance, Judge Bates, a Bush appointee, recently upheld habeas rights for some detainees in Bagram prison. A recent debate I had with someone [on Obama's global warming policy] who often agrees with me also underlines that single-mindedness is hard to uphold. After all, often conservative Andrew Sullivan has provided some of the most eloquent responses to the torture papers.

Finding good members of the judiciary is a tricky business, and many factors are involved in the pursuit including ideology, but both sides also have to be on the look out for the complete picture. The LAT article underlines that the process leads to real results, but also that -- especially if done right -- the results can be of a nuanced character.

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* I disagree on both, particularly on his suggestion the death penalty is clearly constitutional. As to Kelo, a major concern for many, I view it as much as a Fourth Amendment case as one involving taking of property as a whole. Taking of a home is specifically a problem in my eyes, since in that case monetary compensation can be of particularly limited value.

A Bit More ...

Andrew Sullivan (h/t Hilzoy) has a powerful discussion. This includes concerning those memoranda released in 2005, after the 2004 elections, after El Jefe said he was horrified at Abu Ghraib. But, if AS thinks "no one is above the law," the Obama quote is a bit curious. Investigations etc. involve some "spending [of] our time and energy laying blame for the past." And, we will be in "wartime" for years. Will people be above the law for all that time? Painful indeed.

New Boss, Not the Same As Old Boss

The memos’ matter-of-fact clinical descriptions belie the harsh tactics to which they gave a green light. They set the C.I.A. loose to slam suspects’ heads into walls up to 30 times in a row, to deprive suspects of sleep for more than a week straight, to confine them to small dark boxes for hours at a time, to slap them repeatedly in the face and abdomen, and to suffocate them with water to induce the perception that they are drowning.

Good to remember what is at stake here, no matter how some that appear to be on the right side want to parse things (comments). I comment on Dahlia Lithwick's recent article on the memoranda release here. The fact this administration should be honored for what it is doing -- particularly given how far we are from the ideal -- does not mean we also should not note what it is not. Particularly, since pressure from miscreants like the ACLU actually mean something these days.

There is much to say here, but I want to emphasize a few things. First, it is outrageous to take investigation of agents off the table. How do we know what happened without investigations? Second, as with the military, many in the intelligence field were horrified by the policies. Some are on record knowing what seems relatively obvious: they broke our obligations, legal and moral.* Third, if I thought there was a chance in hell Obama would investigate or target higher-ups, I would be less cynical. Finally, prosecutions of everyone is not the way to go, pragmatically or morally. But, it might be in some cases, and full disclosure and assistance should be required to get immunity or a token punishment. There is a big difference between doing nothing and prosecution, a lot in between.

More change:

Two years ago this month, the Supreme Court, in Massachusetts v. E.P.A., ordered the agency to determine whether greenhouse gases harm the environment and public health and, if not, to explain why. Agency scientists were virtually unanimous in determining that they do, but top officials of the George W. Bush administration suppressed the finding and took no action.

New boss, not the same as old boss. More here particularly on how "so much policy-making gets delegated to the executive branch." Who would you rather control it? Again, it suggests the long haul as well as the results of advocacy group efforts plus court review, even if the results are only partially successful. Food for thought for the leads in Born Yesterday, either version, though the original was on recently. I'll end on a quote:

Billie: This country and its institutions belong to the people who inhibit it.
Paul Verrall: inHABit.
Billie Dawn: InHABit it.

She was right both times.

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* Why this bending over backward to protect the ones who did not or to add further justification to those who promote the idea that the mentality behind the memoranda was necessary and proper? We are supposed to be horrified that these people might be upset? Act differently? The people who aided and abetted the poisoning of our good name? Why exactly? How can we move on, if the same people are involved and making policy? What incentive do they have?

Then, there is the reliance on assumed to be legal orders defense generally. One top case in this area is U.S. v. Barker, involving the break-in to the office of Daniel Ellsberg's psychiatrist. Not waterboarding, breaking and entering. Also, the case fell on failure of letting them raise the offense. One of the two judges in the majority noted that a jury might determine that a "fairly outrageous" order could not be relied upon. Furthermore, the dissent was quite persuasive:

To the extent appellants are deemed worthy of sympathy, that has been provided by the probation. To give them not only sympathy but exoneration, and absolution, is to stand the law upside down, in my view, and to sack legal principle instead of relying on the elements of humane administration that are available to buffer any grinding edge of law. That this tolerance of unlawful official action is a defense available for selective undermining of civil rights laws leads me to shake my head both in wonder and despair.

Me too.

Mets Announcer Yet Again Annoy Me

Mid-game, fan interference prevented Reyes from having a chance to score. Keith H. noted he didn't mind that sort of thing, it was natural for the fan to try to get the ball. To be selfish and not let Reyes run? If he was playing, would Keith not care if a fan robbed them of a run? Final score: 6-5, SD. FU Keith. Why don't these guys call games on ESPN? They are oh so neutral, after all.

A Claim Of Privilege Lingers On

And Also: GG et. al. discuss release of more evidence that our government is guilty of war crimes and torture. But, it is only "retribution" (bad!) to actually want to investigate and punish that. The preachy tone, the calm reference to "respect the strong views and emotions" [tax policy?], is offensive. But, maybe there is an opening for targeting higher-ups? There is that hope. Show me some evidence he actually supports it. [Comments edited.]

Glenn Greenwald today discusses a NYT article concerning the fact that "N.S.A.’s Intercepts Exceed Limits Set by Congress." It is in part a depressing story, but there is something to hang your hat on -- the matter is being challenged, claims of national security and secrecy are not just being treated as black/white things. The original survivors and their children who tried to obtain redress years after U.S. v. Reynolds was decided agree.

They see bringing things to light, causing people to doubt the excesses of governmental secrecy and resistance of oversight (judicial or otherwise) as a victory. As was their own personal settlement of their loss decades before. Winning a lawsuit is not the only way to win. Often the battle itself means a lot, resulting in various other victories (in the press, other litigation, congressional oversight, etc.), even if only incomplete. It is a long haul, but what else is new? In life, total victories are rare.

Timely, my reserve for the Oscar winning The Live Of Others also came in. As the website notes: "In 1984 East Berlin, an agent of the secret police, conducting surveillance on a writer and his lover, finds himself becoming increasingly absorbed by their lives." The extremes and limits of the surveillance state and secret come out here, including the fact that humanity plays a big part even among bureaucrats. Good to see Martina Gedeck in a major role, who I saw in the charming (and powerful, even given its often light touch) Mostly Martha.

Good commentary material on the DVD. The more humorous film Goodbye Lenin (about the end of East Germany, and a mom who couldn't quite deal with it) was referenced ... I also recommend that. Another older film (1990) also comes to mind, The Nasty Girl, about a young woman who causes unpleasantness by bring up her town's pro-Nazi past. It's message of wanting to forget also brings to mind themes raised on this blog. Also, it underlines that people should be open to foreign film -- lots of good stuff.

I guess this is sort of a multimedia entry, huh?

More Quickies

AL Leaders: Baltimore, Kansas City and Seattle. The NY teams had such a bad night on Monday, including a 1st baseman pitching, that Rachel Maddow higlighted them the next day. Cute cat visuals. Another thing about the U.S. v. Reynolds (state secrets precedent): the underlining case was not dropped and the government actually settled for a sizable sum.

Quickies

While GG et. al. talk about how Obama is promoting secrecy, my current reading is Claim of Privilege: A Mysterious Plane Crash, A Landmark Supreme Court Case, and The Rise of State Secrets by Barry Siegel. A personal look at the case that in effect started it all, including the overclassification and lies involved. Meanwhile, Hilzoy reminds us elections matter (worker's safety) and here's a science blog. [SK is just too cute, sorry!]

RIP Marilyn Chambers

And Also: I talk about two recent pieces on the Supreme Court in the NYT here (Thomas speaks to students) and here (retiring justices).

Marilyn Chambers has died. [LAT has a better obit.] She was not only an important pioneer* in the film industry, but received 946 votes for vice president on the Personal Choice party in 2004 (she was a back-up choice in 2008). The Wikipedia page notes their logo is a smiley face. [Which also btw is an amusing Anna Faris movie.] Thus, Sarah Palin should not get all the credit here. [To forestall confusion, that adult movie involving an Alaskan being neighborly to Russians was a parody with a Palin look-a-like.]

She even had a role in a bit of a First Amendment struggle involving a NYC fireman. As noted in this 1990s account:

The Fire Department Bureau of Investigations and Trials is probing Bresnan's film foray, in which he plays a restaurant critic seduced by Chambers after sampling a vegetarian menu. ... Bresnan is a fourth-generation firefighter who won a medal for a rescue during the World Trade Center bombing. His great-grandfather, a Fire Department battalion chief, was killed in the line of duty in 1894.

As noted in the article, this was but one of many controversies involving police or fire personnel getting in trouble for their desire to um branch out. Seriously, I found then and find now the controversy rather stupid. There is a stronger case to be made when the person involved in some fashion uses the symbols of their profession, even if not the specific insignia of their particular department. But, when someone does a film without that (and even there, I'd like to see the situation), it should not be an issue.

Perhaps, renting Bikini Bistro will be deemed a suitable way to honor her. I will admit to watching this on cable -- it was honestly an amusing trifle with soft core porn nudity and so forth. Though others might wish to rent Rabid, where she is involved in an accident, gets plastic surgery, and develops a desire for human blood. You know, one of her more mainstream ventures. Leonard Maltin said it was good of its type.

Again, seriously, she was an important figure in the porn world, and her continual ability to live off her glory days is to her credit really. She deserves a nod. Don't know if the death was by unfortunate causes, but either way, good wishes to her teenage daughter and the rest of her family/friends.

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* Update:

Though Chambers herself went on to bush shaving and breast augmentation, it's her earliest images she'll be remembered for -- the casual, genuine beauty and the warm, open sensuality that remain in sadly short supply both in and out of adult entertainment. She transcended boundaries, genres and even eras, with an unbridled enthusiasm that made being dirty look like so much good clean fun.

― Mary Elizabeth Williams

I did not grow up during the heyday of porn, when reviews by major critics such as Roger Ebert were par for the course. Recall that naming a source after a porn movie was seen as perfectly fine (some probably don't even know the other meaning of "deep throat"). Given how violence and teen male type sexuality (think American Pie or the latest Seth Rogen brand) is promoted these days, it wouldn't be too bad if there was a place for mature sex other than late night cable or the like.

Anyways, I saw the clip of Rabid linked by the LAT piece and you can see what Williams is getting at, there in a non-porn role. You can see the Ivory Snow flavor of her charm plus some sign of presence and talent too -- the idea that such things might even be necessary in this sort of thing suggests why Chambers is still remembered after all this time.

Film/Baseball Quickies

Paris [Faubourg] 36 is an appealing French film, something of a bittersweet look at a struggling theater in the midst of mid-1930s Paris. Charming overall, nice singing. Meanwhile, Wang has a 28.93 ERA and the Mets are 0-2 the last few games, the losing pitchers having an 0.00 ERA for them. Two errors were the difference. First batter in Citi Field: home run, Padres. Kill me now.

Wartime, Religion, and other fun stuff

And Also: Jonathan Turley cries foul on those who try to claim John Roberts was somehow some closet conservative. I respond to Dahlia Lithwick's piece on the value of women on the bench.

A guest contributor over at Balkinization referenced an interesting article she was writing on the nature of time, in particular, "wartime." Though I was turned off by some metaphysical sounding things like the "arrow of time" and the like, the overall concept (and its discussion) is worthwhile.

On some basic level, it also seemed basic -- we divide our lives into different "times," and both act and feel differently in relation to them. This is both a result of needing to understand something too big to handle in one chunk as well as a natural response to different experiences. Consider: "well, you cannot judge me when I did that too harshly, I was in a lousy mood." This might be deemed "lousy mood time" with its own rules.

One response noted that the Constitution has one set of rules for all time. This is untrue as a specific matter -- the Third Amendment specifically separates "peace" and "war." Congress has "war powers" that necessarily affect its "proper" behavior, which touches upon any number of liberties and powers. It is also untrue as a general matter. What is "unreasonable" in one context might not be in wartime. But, the response is true in a general sort of way. These things after all are part of the Constitution as a whole. The "law" is not silent during war:

Thus, the war power of the Federal Government is not created by the emergency of war, but it is a power given to meet that emergency. It is a power to wage war successfully, and thus it permits the harnessing of the entire energies of the people in a supreme cooperative effort to preserve the nation. But even the war power does not remove constitutional limitations safeguarding essential liberties

No, this is not from a recent ruling. It is from 1934. One way we divide our lives is "religion." When reading about the Iowan ruling on same sex marriage and related topics, you sometimes read comments about people upset that "religion" is tainting our discourse. Some say that they reject "religion" as absurd. This is somewhat ironic in that people who define "marriage" broadly define "religion" narrowly, in a traditional fashion. Unfortunate and the road to confusion. Limitations aside, Wikipedia can be useful as dictionaries in this area:

A religion is an organized approach to human spirituality which usually encompasses a set of narratives, symbols, beliefs and practices, often with a supernatural or transcendent quality, that give meaning to the practitioner's experiences of life through reference to a higher power or truth.

Likewise, "Spiritual matters are thus those matters regarding humankind's ultimate nature and meaning." [As an aside, I found this discussion of a newly published bit of Rawls writings of interest. I say this as someone only tangentially aware of the guy. This is Hilzoy discussing her day job, in a fashion.] IOW, it is a basic human thing, not something limited to closeminded deluded sorts. Conscience is also mixed in here. To cite (along with its surrounding text) a favorite passage of mine:

It is true that the First Amendment speaks of the free exercise of religion, not of the free exercise of conscience or belief. Yet conscience and belief are the main ingredients of First Amendment rights. They are the bedrock of free speech as well as religion. The implied First Amendment right of "conscience" is certainly as high as the "right of association[.]" Some indeed have thought it higher.3 Conscience is often the echo of religious faith. But, as this case illustrates, it may also be the product of travail, meditation, or sudden revelation related to a moral comprehension of the dimensions of a problem, not to a religion in the ordinary sense.

IOW, it is sort of involved in the "penumbra" of the First Amendment in some fashion. Religion, therefore, is not to be left to the conservatives. This is true even if the multiple channels on my satellite dial geared to religious programming all seem to be of that type. How limiting. Today's NYT provides a small signal of relief:

Channel surf around the television landscape, and it’s not hard to find experts earnestly discussing politics or economics or even home decorating. But you’ll rarely encounter anyone talking about spiritual matters, unless it’s a megachurch pastor with an 800 number scrolling across the screen.

"Global Spirit,” a series that begins on Sunday on Link TV (and can be viewed free at linktv.org/globalspirit), is hoping to change that, and to capitalize on what the program’s creators see as a growing interest in spiritual exploration. Each week the show will bring together scholars and other experts from different religious and philosophical backgrounds, not to sell a faith or argue hot-button issues, but to discuss universal themes like forgiveness or the nature of the spiritual journey.

I will try to watch. The split among the Catholics on the Supreme Court (all five of the conservatives are Catholics, but Kennedy has something more of a Brennan approach in various respects) underlines simplistic understanding (and denunciation) of "religion" is not a good way to go. So does many people's interactions with different faith communities in every day life.

PS

One thing notable about Drowning in the Desert is how we learn, at times negatively, the personalities of many of the people a JAG officer in Iraq dealt with in her time there. I wonder if she had any blowback. The Mets are doing it again -- four games, and we had nail-biting, and the bullpen blowing it. Against a team supposedly with a dubious pen. With a fraction of their payroll. Stop it!!!!!

Just Following Orders?

And Also: The Mets started fairly normally: a 2-1 win for their ace (various opportunities lost), a lot of runs in the other two games, Perez being a head case, the bullpen making it a nail-biter in one, and the fact the competition is at best middle of the road not changing these things. Stressful. Pelfry did show some guts after being behind 4-2 (one unearned) early but lasting five.

The Central Intelligence Agency said Thursday that it would decommission the secret overseas prisons where it subjected Al Qaeda prisoners to brutal interrogation methods, bringing to a symbolic close the most controversial counterterrorism program of the Bush administration.

But in a statement to employees, the agency’s director, Leon E. Panetta, said agency officers who worked in the program “should not be investigated [emphasis added], let alone punished” because the Justice Department under President George W. Bush had declared their actions legal.

It is very important that the government assures us that they will not directly aid and abet torture and other crimes. But, promising not to let's say rape again (torture and death probably worse than even that horrible crime) is not enough. Many tend to also want us to investigate (not only rely on the say-so of the people who told the people to rape) and (I know this is extreme) perhaps even penalize the people involved. But, even investigating is too much for this crew. And, obviously, the people who gave the orders won't be targeted either. Or, so the Administration hopes or acts in a way that implies that.

Joanne Mariner, the director of the terrorism and counterterrorism program at Human Rights Watch, said the closing of the C.I.A. prisons was “incredibly heartening and important.” But she said that a criminal investigation of the C.I.A. interrogation program was nonetheless necessary, and she expressed concern that Mr. Panetta had not made clear what evidence the C.I.A. would need to detain a suspect.

And, if he did so in a blatantly corrupt way (helped by secrecy and misleading), the people can just follow orders, and no one will be harmed. Except for the people seized and mistreated. But, they don't matter, correct? As long as all is well in the future, looking to the past is silly. In fact, those who insist to do just that are actually kinda dense. You get that feeling sometimes in the tone Obama or his ilk takes when something like this is raised. And, it is sorta annoying.

The "investigation" part is particularly offensive. Clearly, we are left to congressional oversight, and congressional and public pressure for real investigation in this and related matters. The public does seem to favor it in some fashion (how deeply?), and it tends to be on the side of justice too. FWIW.* [Update]

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* Eugene Robinson, a semi-regular commentator on Keith's show, has an op-ed today that provides an alternative view from the administration. Some details of what was involved via the now infamous Red Cross report (btw, one blowback here is that governments might trust the Red Cross less, fearing secrecy will no longer be strictly kept) suggest why:

Three of the detainees reported being subjected to suffocation by water -- the torture known as waterboarding. ...

Ten of the detainees said they were forced to stand in an excruciatingly painful position for days at a time, with their hands chained to a bar above their heads. If you don't believe that's torture, try it -- and see if you last five minutes. One detainee, Walid Bin Attash, had an artificial leg, which he said his CIA jailers sometimes removed to make the "stress standing position" more agonizing.

Nine of the men said they were subjected to daily beatings in the first weeks of their detention.

Recall, "just following orders" is not a defense to the treaty we signed against torture. Also, a member of the military will not get away with that when held to follow a clearly illegal order (and the Obama Administration agrees it is clear that waterboarding is torture). So, why in the hell should even "investigations" not be held by some group not tainted by Bush Administration influences? I guess, as seen by the state secrets context, this would not include the OA anyway.

The op-ed also provides an interesting tidbit that some of this was "probably [done at] the prison facility at the U.S.-run Bagram air base north of Kabul." If so, it underlines the value of a D.C. district court ruling holding that there are some habeas protections for those detained there, particularly those seized elsewhere and are not Afghan citizens.

"Humanity Even for Nonhumans"

And Also: Drowning in the Desert: A JAG's Search for Justice in the Desert by [Captain] Vivian H. Gembara (co-written with her sister, a journalist) is an engaging account of her struggles to help the military "return with honor." The best she could, in the tradition of her father, special forces. I'd add that things like this underline that you can understand both sides, including all the pressures involved, but still fall on a certain side. Such as here, where overturning the conviction is no easy call, but the principle at stake makes Stevens' dissent (note he announced it from the bench) compelling.

Among the many causes reformers in the 19th Century promoted -- along with anti-slavery, health reform, women's rights, marriage equality (men/women), and so forth -- was animal welfare. This was not a new thing. One of the earliest laws -- in colonial Massachusetts -- respected the well being of animals. This had backing in the Bible, even when Genesis noted God gave dominion to man over the earth, this implied some sort of due care. After all, God has dominion over the universe, and He is said to be righteous to all of His creation.

This doesn't only apply to treatment of animals -- the ethicist Peter Singer grew into his animal rights stance applying general principles, and his writings up to the present day reflect the point. Respect for life has ripples. It grows out of many things, including our respect that animals have some interests, and can be harmed. We care for certain animals more than others -- be they cute or whatever -- but just as we can spread our care for humans outside of our immediate orbit, we have shown a growing respect for animals.

And, just as respect for humans need not all make us saints, respect for animals need not make us all vegans. There is more than enough more we can do, and continue doing, to help animals before that point. Not I dishonor vegans at all; the diversity of food alone is worthy of interest. There is an annoying lack of convenience foods at times, but the same thing might be said about eating healthy. And, in both cases, the diversity is generally present, particularly areas with significant ethnic populations or those concerned with healthy diets.

Nicholas Kristof's column, "Humanity Even for Nonhumans" inspired this entry.

Vermont/New Hampshire Civil Union News

And Also: I will add some discussion of criticism of Harold Koh's writings on "transnationalism" etc. found here and here.

The Oyez website has recently gone through an overall and additional oral arguments have been added on a continuing basis. For instance, I have noted that the orals of the important companion case to Roe v. Wade* -- Doe v. Bolton -- was not provided. Recently, I noticed that the original argument was added. Now, I see the re-argument has as well. It provides some interesting listening, though the second go around was somewhat anticlimactic, particularly the state's focus on fetal rights. Ironically, the same advocate shortly beforehand argued for the death penalty.

[Update: Here is a summary of the laws in the U.S. The NJ civil union law can be found here; note that it has a blanket override procedure for those under 18. The California marriage ruling can be found here; FN24 tags nine differences between marriage and domestic partnership. For instance, the requirement in the latter case for a a common residence. This very well might be an important matter for some couples.]

The Vermont legislature, by a one vote margin in one house, overturned a veto of its decision to allow same sex marriages. As one might recall, the state supreme court years before noted some sort of equality was required in this context, and Gov. Dean supported civil unions. All the same, it has been argued that civil unions simply are not truly equal to marriages, which was the judgment of a panel set up to study the point in New Jersey (also having civil unions pursuant to litigation).

Reading about the matter, I learned that New Hampshire also has a civil union law, this time without the pressure of litigation. The law was in effect since the beginning of last year. One has trouble keeping up with these things. Though California might soon join it -- Prop 8 only talking about "marriage" -- it would then be the only state [along with NJ!] that has such a full-fledged civil union law. When the Massachusetts Supreme Court first ruled, I leaned toward allowing such a regime, at least for the time being. Less so now, particularly when that New Jersey study flagged many problems.

It tended to be ignored, but the California law in place before the marriage litigation had a few differences when civil unions were involved. Trivial as they might be in most cases, it was not completely equal to marriage. Looking at the New Hampshire law, which expressly amended the original marriage law for the purpose of permitting "same gender couples to enter civil unions and have the same rights, responsibilities, and obligations as married couples," such differences basically do not exist. This runs counter to California which, as the marriage ruling noted, has a handful or so differences.

The proviso would be that out of state and federal law might not recognize the unions, but this discrimination is not of the making of the state. Again, as the linked story/report flagged, use of the word "civil union" does have various negative effects. I also found one specific difference: the civil union law does not seem to have exceptions to its age requirement (18) unlike the marriage law. As with English policy, now defunct I believe, of having different age of consent laws for homosexuals, this is suspect. The permission granted for underage marriage is not limited to pregnancies, for instance, and same sex marriages very well can have the situation as well.

The law does specifically note: "Nothing in this chapter shall be construed to require a minister or clergyman or clergywoman to solemnize or perform a civil union." Since free exercise of religion would be violated if such a requirement was present for marriages, this is redundant, but answers a common scare tactic that same sex equality -- as compared to Jews marrying Christians or whatever -- would burden religious freedom. The marriage statute has a section involving "solemnize" requirements, which has a religious flavor that is dubious, but the civil union law requires (unless otherwise noted) all the requirements of marriages.

BTW, the state does not allow first cousin marriage. This violation of inter-familial bonding is not present in New York. We are pro-cousin marriage here. Not so much pro-same sex marriage or civil unions. New York at this time (by governor ruling per an intermediate court holding) does recognize out of state same sex marriages. We have no state-wide civil union law, so that would not apply here. Thus, we have a case where use of "civil union" deprives in such a way that is in the control of New Hampshire to avoid.

All the same, it was a very important legislative step. Surely, has dictionary connotations.

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* This led me to peruse Roe v. Wade again, particularly because someone yet again sneered at me that it is so useless as constitutional law. It helps when you do not actually read the thing. Anyway, in its discussion of the Hippocratic Oath, the opinion notes that the oath's opposition to abortion appears to have not been just a medical call. It was "dogma."

Contra, Aristotle spoke of "life and sensation" as the test. The ruling also notes the theological debate over the issue, one that at times focused on similar criteria. Criteria also reflected in Roman and common law though mid-19th Century medical judgment had a more conservative stance on "careless of foetal life." This judgment had changed by the time Roe was decided, though lasted (at least officially) into the 1960s.

The opinion notes such things. It is well worth reading, even if it -- like many opinions -- has its flaws.

Former Mets Pitchers Watch

Rockies/D-Backs Edition:

Rusch 2.0 2 2 2 1 2 2 9.00

Schoeneweis (BS, 1) 0.2 2 1 1 0 0 1 13.50

Court Rulings Round-up

And Also: Baseball season begins, but a 2-1 nail-biter with the ace against an at best decent team is too stressful, right out of the gate. Interesting Q&A discussion of Dambisa Moyo's book Dead Aid: Why Aid Is Not Working and How There Is a Better Way for Africa. Probably goes too far, but raises some important questions, the limits of her views notwithstanding.

Some note that the Iowa Supreme Court in part addressed the public at large. This makes sense, since the issue is of particular concern for the public, aka not only the governed but the governors ("we the people"). There is some debate at that link, but yes, both clarity and honesty should be used. Justices have almost bragged that the courts explain themselves. They should do so in ways that are not some sort of corrupt code. Meanwhile, some evidence (see also comments) that lame ass criticism do not only come from conservatives.

More evidence that well written opinions worthy of broad audiences is shown by Judge Bates ruling on some Bagram detainees. The breadth is suggested by this tidbit from the referenced discussion:

The judge, while rejecting a government claim that extending habeas to anyone at Bagram would extend the Constitution all around the globe, did indicate that his ruling could apply “where the United States has the degree of control over a site that would permit meaningful review” of an individual’s detention. And, he noted, the kind of control the U.S. military exercises over the Bagram detention facility is the same degree of control that it exercises “at any military base it establishes.” The one limitation he particularly stressed is that habeas might not be available if that would cause friction with a host foreign government.

The ruling cited a recent opinion by the D.C. Circuit Court (thus, as a district court judge, he was bound by it) on rejecting a push to release Chinese Muslim prisoners already found wrongly held on habeas. Release might be compelled by due process but "the due process clause does not apply to aliens without property or presence in the sovereign territory of the United States." The Supreme Court case of Zadvydas v. Davis* appears to support this, but habeas protection implies some due process, including release when wrongly detained.

Meanwhile, the Supremes handed down two rulings today. Souter had something to say in both. In United States v. Navajo Nation, he noted regret his opinion did not win out in an earlier go around, but it did not, so precedent should carry the day. He wrote a strong opinion upholding a federal rule that the police have to bring suspects in front of a magistrate within six hours of arrest if no extenuating circumstances existed. Here, he was questioned in the same building of the magistrate. The four in minority referenced Miranda (which several clearly don't like), but (cites removed):

In a world without McNabb-Mallory, federal agents would be free to question suspects for extended periods before bringing them out in the open, and we have always known what custodial secrecy leads to. No one with any smattering of the history of 20th-century dictatorships needs a lecture on the subject, and we understand the need even within our own system to take care against going too far. "[C]ustodial police interrogation, by its very nature, isolates and pressures the individual," and there is mounting empirical evidence that these pressures can induce a frighteningly high percentage of people to confess to crimes they never committed, see, e.g., Drizin & Leo, The Problem of False Confessions in the Post-DNA World, 82 N. C. L. Rev. 891, 906–907 (2004).

The problems of secrecy are not saved by post-hoc judicial hearings or loophole laden Miranda rules. It also has implications beyond this specific context. The dissent did put forth some legal realism by noting that statutory interpretation does not have a "perfect solution." The majority was not convinced by the result [including attempts at avoiding "reductio ad absurdum and the antisuperfluousness canon"] at the analysis noting in part:

The dissent cannot have it both ways. If it means to profess literalism it will have to take the absurdity that literalism brings with it; "credo quia absurdum" (as Tertullian may have said). If it will not take the absurd, then its literalism is no alternative to our reading of the statute.

The Latin means believing in absurdity or just acting on faith.

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* "It is well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders. See United States v. Verdugo-Urquidez, 494 U.S. 259, 269 (1990) (Fifth Amendment's protections do not extend to aliens outside the territorial boundaries); Johnson v. Eisentrager, 339 U.S. 763, 784 (1950) (same). But once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent."

Boumediene v. Bush only dealt with how the federal law at issue narrowed the habeas rights of detainees. The MCA also blocks treatment of detainee litigation (such as allegations of mistreatment), which is a very important matter as well. Anyway, who knows how dicta in a more narrow statutory ruling in 2001 will be used by the Supreme Court in 2009 with a lot more water under the bridge.

Obama Economic Crew Struggles Against Real Change

And Also: New books on the side panel. I could not find a picture of the Katyn book, but again, I found it very good. The most powerful parts of the book giving us a clear human picture of the suffering -- and ability to survive -- inflicted on Poland. It is a striking story, laid out like a great novel. Suffering, as with many other infamous acts like Nanking, too unknown.

The Obama administration is engineering its new bailout initiatives in a way that it believes will allow firms benefiting from the programs to avoid restrictions imposed by Congress, including limits on lavish executive pay, according to government officials.

As Glenn Greenwald notes today (citing the article which is the source of the excerpt), expecting real change from this economic crew will be an uphill battle. It is more of a "hey, we are adults here, we won't mess up like the last bunch." But, the mentality is too much the same. This attempt to get an end around to limits (already too minor) on the institutions that were part of the problem -- poor babies might be too oppressed by that "populist anger" (you can hear the sneer when that term is used) -- is distasteful at best.

Change will come slowly, it is more likely with the current bunch than the alternative available last November, but complacency is not acceptable. The (in)famous Justice Douglas once wrote of the problem at hand:

The suggestion that Congress can stop action which is undesirable is true in theory; yet even Congress is too remote to give meaningful direction, and its machinery is too ponderous to use very often. The federal agencies of which I speak are not venal or corrupt. But they are notoriously under the control of powerful interests who manipulate them through advisory committees, or friendly working relations, or who have that natural affinity with the agency which in time develops between the regulator and the regulated.

As early as 1894, Attorney General Olney predicted that regulatory agencies might become "industry-minded," as illustrated by his forecast concerning the Interstate Commerce Commission:

"The Commission . . . is, or can be, made of great use to the railroads. It satisfies the popular clamor for a government supervision of railroads, at the same time that that supervision is almost entirely nominal. Further, the older such a commission gets to be, the more inclined it will be found to take the business and railroad view of things."

As it the case here, the economic team part of the "industry minded," akin to a general serving on a peace commission. Obama recently said in a speech in France that change comes slowly and in fits and starts. True that.