Democrats Have A Good Election Day

Tonight, the results came in. American voters have spoken.

They firmly supported Democrats. The most notable for me personally is the election of Zohran Mamdani as mayor of New York. As of this writing, he has received a bit over 50% of the vote

Cuomo received over 40% while Sliwa received around 7%, including via his Protect Animals line. Mamdani said that Cuomo didn't send the usual complimentary victory message, though Sliwa did. 

Fox News (local NYC channel) referenced that Cuomo couldn't even pronounce Mamdani's name correctly in his concession speech. Sliwa also ran on a "Protect Animals" line. Someone else ran on the Conservative Party line. Perhaps, Mamdani can find an animal-related position, including involving feral cats, one of Sliwa's causes. 

Women played a major role here. The new governors of New Jersey and Virginia (both with convincing wins) will be women. Also, along with the new Muslim mayor of NY:

Ghazala Hashmi wins Virginia lieutenant governor’s race, becoming first Muslim woman elected statewide

Zohran Mamdani voted "Yes" on ballot measures 1-5 that were on the ballot in NYC, and those won. The sixth ballot measure to change off-year elections lost. It would not have been final, anyway, since the state legislature has to do it. I was a bit wary about the housing measures, but that's fine.

Anti-trans messaging failed this time around. It might best be noted that it didn't change other trends. The message appears to be anti-Trump, supporting Democrats, and progressive policies. 

The messaging there was mixed. Mamdani stood out. But it does provide a lesson about enthusiasm. House Minority Leader Jeffries, at the end, endorsed Mamdani (yippe) while Schumer couldn't even do that. He didn't say who he voted for. Sheesh.

Mamdani is not a "literal communist," which is now the framing. He is a self-labeled socialist, which is not horrible. I look forward to seeing how he does and hope net his administration is positive. Eric Adams is not a high bar, even if he has some positive policies.

I worked at the polls, checking in voters. We have ten days of early voting. We still had a respectable turnout in our neighborhood polling place. The whole process continues to impress me and provide some civic pride. Many fulfilled their civic obligations. 

A Texan parental rights amendment passed. The text seems rather benign, though various liberal leaning groups opposed it. For instance, literally, the amendment seems to help parents of trans people. OTOH, trans groups also opposed the amendment.

After 13 years, Mississippi Democrats have broken the Republican Party’s supermajority in the Mississippi Senate. Voters elected Democrats to two seats previously held by Republicans, reducing the number of Republican senators in the upper chamber from 36 to 34—one fewer than necessary to constitute a supermajority.

I will end with this symbolic bit of good news. After all, it is not like the legislature would logically often need to overrule a veto or something. 

Still, supermajorities do have more power, and that might help limit the damage in some cases. For instance, supermajorities make it easier to propose constitutional amendments. Most significantly, it is a message against extremism and the ability of others to have a voice. 

Liberals have victories in places you least expect. For instance, criminal justice reform has occurred throughout the nation. The wins were often in places, though the breadth was particularly significant; you expect Democrats to win (but see Pennsylvania and Trump's wins there), so that's nice too. 

Back to New York City, for the second time in so many election cycles, my city council district switched political parties. I was concerned, I even sent them an email, about the lack of campaign signs in my neighborhood. They were available on Election Day to hand out literature near the polls. The Democrat won, however, perhaps some Mamdani coattails. 

One major issue for the Republican incumbent was opposition to a health program for former prisoners. I was particularly angry about that. Overall, she seemed to do okay, but I'm fine with her losing. Anyway, the already small Republican NYC City Council delegation will now be smaller.  

A couple of final comments. The personal factor played a significant role, in various degrees, in the Democrats' wins. They had impressive life stories. They ran good campaigns. They connected to the voters in ways Republicans often did not.

Finally, can the new Arizona congresswoman be sworn in already, please? 

Dick Cheney Endorses Kamala Harris + the Senate

Dick Cheney and Liz Cheney are voting for the same person as Bernie Sanders and Alexandria Ocasio-Cortez. That should be that. It’s not, and that’s a problem, but it should be. George W. Bush and Mike Pence, you’re up.

I began this blog in 2003 in the heat of the Bush43 presidency. I was rather angry with the Bush Administration and thought they did not want to support basic reasonable policies. 

The whole waterboarding not being torture comes to mind. It was a basic line in the sand. Don't think I am not aware of the horrible role of Dick Cheney.

Liz Cheney per her Wikipedia page tried to be Ms. Trumpie in the House of Representatives. She was the Wyoming representative and that is conservative territory. She did not vote to impeach Trump the first time. Not good. 

January 6th was the true line in the sand for her. Maybe, she opposed him before then, but that was the last straw. She did vote -- ten Republicans did -- to impeach Trump the second time. She later was on the 1/6 Committee to investigate the events.

One person on another blog argued that the Cheneys were horrible but honestly thought they were acting in America's interests. Some neoconservative types did. Some people are just grifters. Others are honestly totally off base. They have standards. It can matter. 

I'm not going to say "but" at this time when I see both Cheneys are endorsing Vice President Harris, a liberal from California. It's an act of principle.

I'm angry that Republicans don't do the bare minimum too often. This is more than that. Thank you.

Liz Cheney calling out Trump and Vance as "misogynistic pigs” is gravy. She isn't suddenly free from all sin. Let Catholics deal with that sort of thing.

What matters is that the Cheneys are stepping up when everything is on the line. They are not just going to write in some name. Bush, by the way, says he isn't going to endorse anyone. Not that I'm pining for him to endorse Harris. The Cheneys are more serious.

People repeatedly provide vitriol about how Republicans refuse to do the bare minimum. I know the feeling. Well, they are endorsing a liberal from California. You can Jill Stein all you want about how she is not your unicorn. But, that is -- to quote Biden -- a BFD.

I also think not enough is being said about retaining the Senate. Senator Schumer talked about plans to break the filibuster for abortion and voting rights. Well, you need control for that. It's a tough map.

Senator Jon Tester (D-MT) is the most at risk in November. Manchin did not run again and his seat in West Virginia is about as much a lost cause as an also ran in the baseball wild card race. 

There is currently a one-vote margin in the Senate. So, other than multiple tough races, what is fundamental is retaining Montana or some upset in a place like Florida. And, it seems not to be talked about.

I realize the Harris/Trump race crowds things out. Also, Harris is far from a definite lock though my sanity requires assuming she will win. However, she needs a Senate, or she will be handcuffed for four years. Toss out any major liberal legislation.  

It also is AGGRAVATING. Republicans as a whole aided and abetted Trump. Nearly no Republicans now in Congress are willing to even not endorse him. An "anti-Trump" Republican running for the Senate seat in Maryland is trying to give these fuckers the Senate. 

If you insist -- as you should -- "we aren't going back" -- and support Harris/Walz, you must support a trifecta. I don't only want not to go back. I want to go forward. Make the Republicans wear Trump around their neck. Trump should be a leaden anchor. 

The convention is over and the weather is starting to be cool. The final stretch is approaching or might have begun. The Senate must be factored in. 

It's so tiring to have to fight so much when things seem so damn clear. Maybe, people aren't talking about the Senate since they figure it's a lost cause. Who wants to be depressed. But, some people said that about the presidency. Look what happened!

To mix in some baseball, "you gotta believe." 

Libby Again

And Also: The joint effort with the UK/France to bomb Syrian chemical weapons targets is probably illegal.  It very well, at least under current rules, may not be "war" as implicitly required by the Declare War Clause, but a use of force versus a sovereign nature can be illegal regardless. It is also of questionable value. The fact to other nations were involved suggests it is not merely some sort of "Wag the Dog" scenario at least. Tinker tinker.

For perjury and obstruction of justice, [Libby] doesn't deserve a day in prison ... the disgrace to his name (as if these people care) and a $250K (easily paid either by his deep pockets or his pals, including supporters like Fred Thompson) fine is enough. Oh, and probation. Jumping over a turnstile might get you more time. But, hey, that is a quality of life crime. Nothing like helping in the outing of a CIA agent to punish someone for calling your people for lying us into war.

That's me on this blog over ten years ago.  Yes, I disagree with Timothy "reasonable Democrat" Noah on the point.  Perjury and obstruction of justice in the course of an investigation regarding the outing of a CIA agent is worth some prison time. Reference is made to a "double standard" in reference to Bill Clinton. The context of the situation is not the same (I might add -- I'm older and more tired now -- "asshole") and Bush could have waited until he served some time.

Finally, the commutation itself is arguably obstruction of justice, the whole affair blocking finding the whole truth in the Plame Affair, one of the most infamous matters arising in the Bush presidency.  The old gang is kinda back together now with Trump pardoning Libby (who I refuse to give a stupid nickname) though as with Arpaio and somewhat less so the other person (both FOX News troll pardons) it is basically symbolic. The guy got his law license back and unlike various other felons can vote again.

As explained at the link, no, the pardon is likely messaging for others. Either way, yet again, the pardon power has been abused.

Decision Day & Other Constitutional Concerns

Update:  Talking Points Memo, etc., has some good coverage on the racial identity story discussed below. SCOTUSBlog has a view from the courtroom segment that covers a bit of amusement that we have missed given there is no audio or video of opinion announcements.  Again, what is the reason for that? The reasons applied to oral arguments do not really apply, especially since there we have transcripts.

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First, I appreciate the citation of my comment in another blog post regarding the use of per curiam opinions. As noted, it is the use in that specific case that really concerned me. The usage in general is another matter and the discussion cited and expanded is of academic interest generally speaking.

As to the merits of the abortion opinion itself, this video is helpful.  It is of limited relief, but it should be noted that the opinion is not a total loss -- the district opinion rulings is upheld in a limited way to help abortion providers.  This underlines the breadth of the law in question as well as the rearguard efforts in dealing with them -- some success is better than nothing in most cases.  As are denials, such as the ultrasound law struck down on free speech grounds with Scalia (for whatever reason) being the sole dissent.  Again, an underused approach on the SCOTUS level (leaving aside Rust v. Sullivan),  Casey briefly dealt with this:

All that is left of petitioners' argument is an asserted First Amendment right of a physician not to provide information about the risks of abortion, and childbirth, in a manner mandated by the State. To be sure, the physician's First Amendment rights not to speak are implicated, see Wooley v. Maynard, 430 U.S. 705 (1977), but only as part of the practice of medicine, subject to reasonable licensing and regulation by the State. Cf. Whalen v. Roe, 429 U.S. 589, 603 (1977). We see no constitutional infirmity in the requirement that the physician provide the information mandated by the State here.

The opinion there on substantive liberty grounds notes that "If the information the State requires to be made available to the woman is truthful and not misleading, the requirement may be permissible" in respect to various information required to be provided.  The woman can be assured that "the full consequences of her decision" will be protected, which is also used to defend waiting periods.  The same thing is alleged to be the reason for use of mandatory ultrasounds, but the lower court here thought it just was too blatant here.  The limits of this rule is unclear, except that it is somewhat more flexible then earlier cases.  Still unclear. 

Moving on.  Today was another Decision Day for SCOTUS though the "big" cases aren't quite here yet.  SCOTUS trivia seekers will note today is the day (unless not joining a footnote counts) that Justice Breyer dissented for the first time this term.  Double action -- in a bankruptcy ruling and one involving the proper procedures required to be on notice why a non-citizen spouse [is not allowed a statutory right to stay in the country.  ScotusBlog etc. can be accessed for more information, but my immediate concern is why Chief Justice Roberts felt a need to join Scalia's overly restrictive due process "liberty" discussion plurality opinion (not even controlling, given Kennedy/Alito had the most restrictive to obtain the votes position).*

Finally, though it is somewhat separate, I'll include Veep and John Oliver here as well since they do touch upon constitutional concerns.  Both were good episodes though sorry John, that mistaken map joke is getting old.  Veep ended with an apparent Electoral College tie though we just might have the possibility of court challenges and even disloyal elector opportunities.  The possibility of the v.p. candidate becoming President was offered and if no presidential candidate is chosen, he does become acting President with the next step somewhat unclear.  The veep being a member of Cabinet is also interesting. A member of the legislature (shades of Cheney's claim?) cannot be, but who took Cheney seriously anyhow.

As to Oliver's torture segment, very good, including some wicked use of Helen Mirren narration (the Peter Rabbit bit ... ROFL). It added the usual argument that torture simply doesn't work. I don't believe that. It very well might in certain cases. Let's be honest about that. There are ways to show this -- people have via torture told information that was found out to be true. Let's say a mobster using it to get information.  This doesn't make it right. It is still wrong & the fact that as a whole it doesn't work well even on a sociopath pragmatic ground is true enough. The examples given by John Oliver here show this. It also causes blowback. So, along with it being against our basic values, torture doesn't "work" in the end.

Finally, John Oliver made a passing reference to this controversy, which until then I missed -- just too many "things" out there, you know?  She has stepped down though has yet to admitted her overall choice to "be black" is a problem.  As the article suggests, however, she doesn't appear to have been truthful in the specifics and it is unclear just how consistent she has been.  Still, it wouldn't be the first time a "mixed" person identifies differently in different situations. And, I'm unclear exactly the "rules" here.  OTOH, as this NPR story notes, this isn't merely the case of a very light person with a black grandfather or something.  She rather blatantly "became black" in certain ways and there is clear evidence that she did so in deceitful ways. 

The matter provides much fodder for discussion and her family outed her when she made an allegation of being a victim of a race based hate crime.  But, she seems a rather atypical cases, so don't know how much we should really rely on her to send some sort of message. If some college does not want to count people like this when determining "pluses" for placement, which will come up in some other context as well, fine.  No rule is going to be totally "clean" there and other cases of people in leadership roles of various types, liberal or conservative, with created identities can be found. Still, just what does "being black" mean?

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*  The distaste the plurality has with around a century worth of substantive due process protections really makes me surprised that Chief Justice Roberts signed on to the opinion given Alito did not.  The breadth of the plurality leads me to feel it warranted to add on this footnote, partially as a reminder of the alternative vision out there from Scalia-land

Was such a broad rejection of the "liberty" in question so necessary when a narrower way to deny relief was necessary, Chief Justice?  Scalia speaks of a "artificial world of  ever-expanding constitutional rights" that "this Court has seen fit" to protect and have "indulged a propensity for grandiloquence when reviewing the sweep of implied rights."  And so on. 

There was some suggestion in the commentary [as Chris Geidner noted on Twitter] that the plurality did not recognize a "right to marry."  It did note "right to marry" precedents and argued that the right to live with one's non-citizen spouse in the U.S. did not fall within its contours. And, Justice Thomas most probably would deem it a privilege or immunity of citizenship (how much the non-citizen spouse changes things is unclear), while I have no reason to think CJ Roberts doesn't support a right to marry either.  But, the plurality did define the "liberty" historically protected by the Due Process Clause narrowly to basically mean freedom from restraint, not marriage itself.  In effect, bare precedent saved the day there and overall concern of "stretching" is clearly shown.

Finally, the much repeated rejected Scalia narrow historical approach was sadly joined by CJ Roberts here.  For instance:

While noting that modern "equal-protection doctrine casts substantial doubt on the permissibility of such asymmetric treatment of women citizens in the immigration context, and modern moral judgment rejects the premises of such a legal order," nevertheless, he concludes that "this all-too-recent practice repudiates any contention that Din’s asserted liberty interest is 'deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty.'"

Such a narrow approach in which decades of practice is "all too recent" to matter for due process purposes is rightly rejected by current precedent.  Again, especially with Alito not joining in (he more strongly against a right to same sex marriage in Windsor), how much this tells us about the upcoming SSM cases is far from clear. And, the right to live with your non-citizen spouse in the U.S. (or to have a right to notification on reasons why you cannot), non-trivial as it surely is, is different from not having the right of to be married at all.  Still, makes you go "hmm."

More here. The fact the wife is a naturalized citizen and Afghan refugee only adds insult to injury.  As noted here, but not apparent in lot of coverage (hate that -- so often to me obvious questions are left unanswered), they continue to live apart, as they have since 2006.  Sanctity of marriage indeed. 

"The Reclamation of Torture"

A good discussion, by a lawyer of a victim, including how the past tense makes it easier. He does welcome being open but not half-measures:

To acknowledge that we tortured people in our custody is all to the good. Indeed, we should do more than acknowledge it; we should make a careful and complete accounting, and if the Senate report is ever released, we may go far toward precisely that. But to imagine that all this was the product of a past that bears no connection to the present is foolish. Worse, if we reclaim torture but ignore the public institutions and political assumptions that led to this behavior, we are willfully ignorant. And if we fail to see that they are with us still, in surveillance that accepts no limit, drones that observe no boundaries, and a war that cannot end, we are truly blind.

I agree it is easy to say "it's all in the past" but do welcome use of the "t" word, which wasn't used in part because of its moral and legal imagery. Some was like "just can't figure out where the line is!" and like those who make "marriage" small (just to make children the old fashioned way!), wanted to cheapen and downplay something that horrified for centuries. Only something akin to the rack would be clear enough for them, though there were cases of people hung up and suffering something not too far from that. Basically, "torture" is something "illegal" that wasn't done (or now "done" but "what is past is past").  The present matters too. 

It is all to the good to call Obama, e.g., out for making excuses and ignoring treaty obligations, especially if blame is shared for society in general who share the sentiment. The buck stops with him but along with past wrongs like slavery or racial segregation, singling out him at some point misleads.  There is no realistic chance he is going to put things on the line and in effect say that Bush and Cheney should be in the dock. The President is not some savior who is going to jump far outside of the public on this subject though it would be nice if he did. And, I think it somewhat unfair (only somewhat -- really, the comments of a few strongly denouncing him doesn't cancel out the normal line which except for now and then ignores it) to single out only one part of President Obama's remarks.  POTUS said we "tortured" and “we did some things that were wrong." The past tense is noted, but even that is too much for some people.  He didn't say it was justified because of 9/11.  It was "wrong" and it was "torture."  This is notable though you know ... FERGUSON.

That is the bare minimum necessary to reduce mistreatment, including torture, in the future.  You need to say it is wrong -- not too long ago, the official line was that it was right and saying waterboarding was illegal was just so hard.  Also, the Senate report is notable in itself -- it might not seem like much, but these investigations are official accounts that put on record what happened. It's sort of like bashing the MSM and using them as source material.  Again, it isn't enough, but it is part of the bare minimum. It also provides an oversight role for the legislature, members of whom will continue to feel an obligation or at least right to see what is going on at least to some degree. This too will on some level serve as a check.

It is all very depressing and on some level what is done seems so trivial, even when it takes a lot of work and a bit of courage to do them. Thanks for those who fight the good fight, present tense.

Saying It Aloud Is Something

Even before I came into office, I was very clear that in the immediate aftermath of 9/11, we did some things that were wrong. We did a whole lot of things that were right, but we tortured some folks. We did some things that were contrary to our values. I understand why it happened. I think it's important when we look back to recall how afraid people were after the twin towers fell and the Pentagon had been hit and the plane in Pennsylvania had fallen and people did not know whether more attacks were imminent and there was enormous pressure on our law enforcement and our national security teams to try to deal with this. And, you know, it's important for us not to feel too sanctimonious in retrospect about the tough job that those folks had. A lot of those folks were working hard under enormous pressure and are real patriots, but having said all that, we did some things that were wrong. And that's what that report reflects.

It might not sound like much, and on some level it is not, but it matters.

Six Amendments: How and Why We Should Change The Constitution

I discussed this book elsewhere, including repeatedly in this response to an argument that it would be more useful if he argued that his positions should guide those who appoint judges to the courts (a major way the law changes as seen by O'Connor being replaced by Alito affecting multiple cases). Basically, I agree with the sentiment, especially as a realistic matter. That thread was dominated by the 2A discussion, which is useful as a case study, perhaps, though my sparring partner basically talked pass me.

The proposed amendments are listed here and one thing that immediately stands out is that Stevens wants to insert language in existing text.  Madison proposed this in regard to what became the Bill of Rights, but it wasn't seen as the best way to do things. Given that, it seems a bit curious that Stevens blithely does so here.  It is an example of his at time too brief discussion of the material (six amendments, 130 pages plus the Constitution, small pages at that) though the general reader will get some useful material along the way.  Still, needed to show a bit more work.

I'm sympathetic to his concerns here -- e.g., political gerrymandering is a problem, including advancing more ideologically extremist legislators that negatively affects national policy overall.  I think that issue perhaps is actually the most likely to get traction on some level (though again, it might be better handled alternatively, such as state level independent commissions in the states with large delegations). Still, even there, don't know about the language ("compact and composed of contiguous territory" need not be the only way to divide states), and someone like Rick Hasen (generally a liberal leaning person on electoral issues) sees red flags.

The same general concerns are raised with his "reasonable" limits language for campaign finance. The chapters on immunity and commandeering are perhaps the most important, since they cover important issues that get less coverage than things like campaign finance, the death penalty (I oppose partial lists in the 8A) and gun control (even he notes his language only addresses one constitutional argument & even if I didn't support an individual right to firearms, would find that a glaring flaw in a proposal intended to give the government broad power over gun regulation).  I share his sentiments but not seeing amendments passed here either.*

I found his Five Chiefs book a bit thin since it covered well trod ground for me without much depth (it was longer but still fairly short) though the average reader might have gotten more out of it.  Plus, it was decent enough light reading, more or less, with some interesting asides. Same here though a bit more concerned about lack of a bit more depth given six major issues were covered. For instance, what about a murder committed when someone is inside for life (a standard "hard case" cited)?

It's a worthwhile book but a bit too thin.

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* Also, as to the immunity amendment, "immunity from liability" might lead to confusion -- my sparring partner thinks the language would allow congressional legislation to force state actors to do things even if otherwise blocked by constitutional provisions like the 8A.  Not Stevens' aim, but the text arguably might be interpreted that way, I guess.

It is also strange that the book doesn't provide all six amendments conveniently in an appendix.  I blame the editors here more than the ninety something justice who productively uses his retirement  though one of the bloggers linked above suggested "retired" might not be an accurate word here because apparently technically he is still eligible.  This is not how people have used the word "retired" here and it seems overly technical and overblown as applied.

Retroactive Legalization? Not Quite

[The below cites a reason why I felt it was time to take a break from LGM, especially after my comments that uh yeah states can have some local voting laws were ridiculed by comments of the level of five year olds, but there is some good stuff there.  For instance, a cite [basically the only time I go to Slate per their decision to not appreciate my fray commenting] to this good article remembering Rachel Carson and the continuing attack against her.]

I do blame the Obama administration for their lack of courage. But I blame the general public a great deal more for making the idea of prosecuting Americans for war crimes into an almost superheroic act of courage.

I cited a discussion that criticized the over the top sanctimonious response to the failure to bring prosecutions against torturers.  Not quite as bad, but still annoying (I really don't want to defend these guys on this issue as much as I do, making it worse) is this "retroactive legalization" (comment above found on the thread there) of torture discussion.  I don't think "legalization" quite means what he thinks it means.  You can criticize without mischaracterization. 

JFL (not me) does his usual best responding. The article speaks of Obama's "very troubling record on civil liberties," which as he notes on another thread, sort of ignores what the word means.  That is, e.g., check out what the ACLU focuses open (hint: gays, voting rights, reproductive freedom).  Continuing a historical trend (with some notable bright spots, such as being on the record of opposing waterboarding, which draws a line, something Eric Holder's predecessor refused to do; things like that matter) on executive power while firmly advancing the cause of "civil liberties" (sic) in various areas is not a "nadir" of civil liberties.  Tiresome.

The article the blog post links to compares this to the administration's efforts against whistle-blowers. This sort of thing really is worthy of sneers, but the rhetoric sometimes leads one to think McCarthyism is back of something, when we are really talking about a handful or so of cases.  Powers that be protect their power.  News at 11.  The sneer at a favorite target of the author, steroid prosecutions, is tiresome too.  Yes, a stupid prosecution for allegedly using steroids and lying to Congress was taken too far, probably.  There always will be such things.  Just change the details.  This has very little to do about the ability and wherewithal to take the very difficult effort (and I agree, there really should be SOME case they could find, even a token; I just don't appreciate the over the top response to the sadly unsurprising response here) to prosecute here. 

The discussion cited is the sort of lazy (or something) response that has really annoyed me on this issue (the citation at the cost of the steroid cases as if that is the problem here is pretty stupid, e.g.). Won't link it, since I'm tired of it, but some post on Sentencing Law and Policy blog about judicial nominations brought up the whole "assassination" thing involving drone strikes. To be philosophical, maybe this is par for the course in pushing things.  Activism often includes rhetoric that isn't really fair, coloring the other side a bit too black/white.  Still, cheap shots also are unproductive in that they are so easy to refute. 

Obama drew the line in the sand on torture, making it policy to be against it and making sure to include arguments of international and statutory law to defend his case on war and detainee (people locked up) policies.  He let in a bit more light on the rules, including releasing more memoranda and explaining up to a point (for all means, yes, the actual analysis for the drone attack on an American citizen should be released) his policies (reference here to an important speech by an official on the rules).  Obama pressed to weaken the excesses of a recent defense authorization bill, which opened up the potential for executive power that Obama did not seize.  He actually tried and Eric Holder spoke out about to bring people like KSM to justice the right way. And, actually did investigate the actions of his predecessor here.

Not enough?  Sure thing.  Can various things be pointed out to show how the Administration is bad on executive power issues in the area of military and related policies?  [Not "civil liberties," full stop.]  SURE.  But, Glenn Greenwald one-way rants without context or nuance is so f-ing tiresome.  I'm sick of the whole thing really.  I think it's useful to be something of a polymath, having some diversity of interests and knowledge, this including being able to see the whole picture.  OTOH, you can, e.g., whine about how horrible let's say the Mets are, say they just STINK, ignoring they have a potential Cy Young winner, threw a no-hitter, have various other promising players and unlike past years, actually didn't go backward.  You can still call them out for their problems.* [FN Update]

It is depressing.  But, in part since I didn't think someone who signed on to telecon immunity back in '08 promised me a rose garden, I can also focus on the positives and the chance to move forward.  Push hard to keep the wrongs of detention, drone attacks and military force present, including from enablers in the Obama Administration.   I get off the bus, however, when stupid steroid comparisons and the like come up and a lack of perspective arises.  Life is complicated.  We are supposed to be members of the reality community, not simple-minded children who have better values, but promote them the simple way children do.  Ugh!

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* As I noted in comments in my brief reference to this in an earlier comment, a particular thing I have a problem with is when the Obama Administration doesn't just decide not to prosecute, which again I am doubtful could not occur in ANY CASE (the full-fledged investigations at issue in the recent story only covered a limited number of cases as is, two particular blatant cases in particular as covered by Maddow tonight), but moves to block civil claims. The claims will be hard to prove but the attempt to deny the right even to bring them, including using abusive state secrecy claims, is offensive to me.  They have resulted in some narrowly divided appellate rulings, underlining the closeness of the case. 

Rights need remedies for them to be meaningful. Civil suits provide a means to protect such rights, even when the state does not bring prosecutions, which have a higher standard of proof and various pragmatic and political concerns as is here the case.  I think some sort of reconciliation process would have been useful here, the South African approach there an option.  State acceptance of wrongdoing with compensation, as Canada did with Mr. Arar, also has its benefits, and I think its shameful (if civil suits will be blocked) the U.S. did not.  Again, there is blame here.

Naomi Watts (as played by VPW)

VPW & Postpartum Depression / 1A

[And More: The Epilogue to the book provides some more background information, including a reference to a short first marriage of VPW though Joe Wilson in his own book says theirs was her only one.

It also discusses an earlier trip he took to Niger on the behalf of the CIA for a different reason, which she alludes to briefly.  Joe Wilson did not mention it in his own book, apparently per a confidentiality agreement.]

Ms. Wilson dedicates a chapter to the birth of her children and her experience with postpartum depression. She describes bouts of sobbing uncontrollably, as well as paralyzing anxiety and panic attacks. Even though she had a demanding career and had undergone challenging CIA training and assignments overseas, she wrote that during that period “my abilities to cope, problem solve and adjust to new situations, abilities that had served me so well, were beyond my reach.”

Like a good movie has various angles, a good book often does too. The Wilsons each wrote a book and part of the reason why they were so readable was because of the diverse aspects of their lives. We are not just reading about a diplomat or CIA agent, interesting enough, or even the political stuff arising from the outing, but other details too.

A chapter on her postpartum depression was a striking sidebar, especially since she is largely a private person. When she noted how hard it was to admit she was not doing well, even to a doctor, it was a striking moment. She was on NPR a few months ago to discuss the matter and it is striking that at the turn of the 21st Century that someone as educated and informed as she would be so blindsided by things. But, unfortunately, that turns out to happen more than one likes in various areas.

Since I decided to say a bit more about the book (I have yet to re-read* Laura Rozen's Epilogue, which discusses some of the stuff VPW could not openly write about), a bit on First Amendment issues.  I'm sure I talked about this at the time, but one issue that arose is two reporters' right to protect their sources (Rove and Libby) during the investigation.  Protecting sources is secured by law in some fashion (to my knowledge) in all states (to various degrees) but one while the federal government does not have a specific law on the matter, only certain policies to take the matter into consideration. 

This is a hard call but I'm inclined to think protecting sources to some degree should be protected by law and I'm sympathetic to the dissent view in Branzburg v. Hayes.  This need not require an absolute bar and protecting Rove and Libby, who aided and abetted what amounted to a conspiracy to out Valerie Plame Wilson, is not a great example of the principle at stake.  Putting aside the need to release information to a grand jury or some such situation, which like applying laws equally to certain religious groups (an imperfect but valid comparison, I think), can itself be seen as a special exception.  The best case scenario is when a source has to be protected to promote the truth, letting out the name of such a whistle-blower putting him or her (ah the irony) at risk.

Yeah, not the case here -- the two miscreants here had the implicit support of the President and Vice President of the United States and the reporters (one after Libby signed a waiver -- apparently, it wasn't good enough) were in fact hindering the promotion of the truth. The two made themselves as martyrs, Matt Cooper somewhat more sympathetic than someone who was a shill of the administration for quite some time.  Absolutism might cover even this since the "greater good" warrants it, but beyond legal implications, on principle, it's hard to give either much support.  The press here and other places held back the truth.

The more troubling First Amendment matter was the CIA over-redacting Wilson's book.  I referenced this in an earlier discussion (see link in last entry), but basically it seems that there was a double standard here given the freedom found in some other former CIA agents' accounts.  Her lawsuit on the matter ended with an appellate loss [video of VPW interview included] after the completion of the book.  A basic concern was her actual years in the agency, which led other stuff to be blacked out too since it helped inform the reader about that detail.  The book has the information -- an epilogue provides information  -- but it cannot come from her own hand. 

She signed a secrecy waiver but the First Amendment warrants some rationality here.  Her husband's book (she partially quotes it to let us know where to look but the part that says she worked there for twenty years is redacted, even though it again is a quote and we can just look it up)  and even the Congressional Record  (apparently via oversight)  has the details. As the concurring opinion noted, even if the CIA is technically right, they really are only hurting themselves by making such an issue of it.  Information cited (vetted by the same people!) by her diplomat husband and in the Congressional Record  is simply not a reasonable thing not to let her include.  She submitted herself to agency review.  The principle was followed.  This is just gratuitous b.s.

One other post-publication matter is a civil damages suit.  It too failed (like so many attempts to get some justice for Bush Administration overreaching) for procedural reasons and (again, ah the irony) since it might (to quote an article) "involve the disclosure of sensitive intelligence information." Pick your most apt literature reference. The Wilsons, however, were realistic about their chances throughout and the litigation (like the Libby prosecution) alone brought a lot of truths out.  As in other cases, the justice that resulted might be of a limited nature, but such is the way of the world.  The battle continues all the same. 

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* I don't re-read stuff that often.  Sometimes on Amazon, I see reviews that say such and such book is not that good, don't plan to re-read it.  Do people often re-read stuff?  I guess certain books.  I re-read Around The World In Eighty Days a few times, for instance, as well as re-reading a few non-fiction books (including recently).

So much stuff to read that something has to be rather good and/or important to re-read. 

Fair Game

Near the end of VW's part of Fair Game and links to past discussions can be found here. The stress shown in the film seems to come to a hilt after JW's book was completed. She is a private person but the postpartum depression part alone suggests she opens up some. The redactions in a chapter about redactions is also a bit perverse.

Romney Hearts Cheney

Striking segment on Rachel Maddow last night.

Quickies

A somewhat saner Cuba Policy (Congress blocks a better one) -- yet another reason Obama is better than Bush. Dawn Johnsen criticizes Obama with a degree of perspective (reading GG?). More on Clinton's (D-NY) replacement, who so many deemed a lousy choice.

Glenn Greenwald Tweet: Oh Shut Up

Anthony Weiner was forced from office, but George Bush & Dick Cheney - torture, illegal eavesdropping, 100,000s dead in Iraq - weren't.

Yeah, a lowly member [OTOH] of Congress is more disposable than the president and vice president in part for stuff Congress authorized (especially Iraq). Meanwhile, Bob Herbert accepts reality.

Friday Quickies

FNL and Rules of Engagement were better this week though I think FNL just might lack a bit of something overall this time around. Pelfrey didn't play like he felt better. Yet another grand slam without hitting one. Talking about conspiracy theories ...

Yoo Got To Be Kidding Me

Yoo [good comments here] and Addington are suddenly wary about executive power. Art. II expressly gives Congress the power to authorize presidents to appoint "inferior" officers by themselves. Meanwhile, powerful account of Lara Logan's attack.

Fair Game

I recently tried to re-read Kayla William’s Love My Rifle More Than You:, which I liked the first time. Didn't get into the second time -- the 'tude of the author annoyed me this time, but don't really agree with this review either. That is an unfair simplification of her substantive analysis of military life and life during wartime Iraq. The author later commented about a U.S. solider who she knew, one who committed suicide in part probably because of her negative response to exposure to torture.

Torture is just one thing we have to be ashamed of as a country in the last decade. The continual blockage by Republicans (and now a spare Democrat, on specious grounds) to DADT repeal, even though everyone except them (even many of their family members aren't on board -- see McCain's wife and daughter) thinks it is the right and pragmatic thing to do. The President, top military officials, the troops themselves, the House, 57 or so votes in the Senate (more if faux procedural concerns are taken seriously), the American people, justice and basic morality ... well, heck with all that. Maybe, we can blame this on the '10 elections, like they apparently show the people want to extend tax cuts to millionaires. Increasing the debt ... the Tea Party way.

There were blatant moments where I basically stopped taking the President, Republicans and their enablers seriously, one being the proposal to amend the Constitution to block same sex marriage rights. [A nod to those like Eugene Volokh who thought it a serious question, if you know, it was limited to full faith and credit issues ... also, torture? not really something I want to think about. Not my thing. Need to spend more time on gun rights and age of consent laws]. But, the Valerie Plame matter is up there. Someone who was out there actually doing something about WMDs and her husband who back in the day did something about Saddam Hussein without bullshitting the American public into war over it.

Not that the press came off totally well in that affair as with the WMDs issue as a whole. In fact, the first film on the affair (to the displeasure of some) was a fictional one that focused more on a Judith Miller type. Didn't see it. It sounded like it dwelt on serious First Amendment issues though given how things went in real life, the portrayals of the reporter (much softer here than the original, down to the casting of Kate Beckinsale) and agent (the accounts suggest a more bitchy character than the socialite vibes of Plame) would probably be hard for me to put aside.

This one is basically VP's story, one deemed "essentially accurate" by real reporters contra to their paper's op-ed smear job. The reporters note that the film does give her more control than real life apparently warranted, but dramatic license usually does things like that, so singling out any one film on that level is silly. The bit about the Iraqi scientist is unclear though. But, I can't really judge how much blowing her cover meant to the agency. They denied to meant that much, but would they actually fully admit that one way or another? The fact some unnamed source told the reporters so doesn't really convince me one way or the other.

[The movie cites both of the Wilsons' books as source material; I reviewed her own here. Suffice to say there is a lot more than can be said here or in the movie, but the source material does underline this is not just Valerie Plame's story. Joseph Wilson also is a major player, various scenes about him alone.]

Dramatic license about such things as if Valerie Wilson really seriously worried about divorce or the like is even less problematic. The "affair" put serious pressures on their marriage. That's the point and it was portrayed well. Below even suggests that "there needs to be a hero and a villain" shouldn't be taken as if the film is simplistic. Rove actually has only a small role here, the original much longer script perhaps more anti-Bush in that respect (Rove is an easy villain; Libby comes off as more complicated, if deep down, maybe he isn't). Joseph Wilson (Sean Penn excellent, down to the body type, which is much different than the more skinny looking Mayor Milk ... another Oscar nomination is quite possible) also comes off as flawed -- letting principle overwhelm discretion at times. Valerie might come off a bit too heroic, though Naomi Watts is quite good. A bit more nuance there might be warranted. As the reporters note, she did eventually take that Vanity Fair interview.

As with other things, the matter is so wrong that even a reduced level of outrage is enough to make it an archetypal symbol of how the Bush Administration operated. Mr. Libby (I will avoid the stupid nickname) is actually portrayed with a somewhat light touch, but the insidious nature of lack of doubt (if there is 1% risk, can we take the chance? of what? killing hundreds of thousands of Iraqis?) and "changing the story" by releasing classified information (declassified for that purpose) and smearing the Wilsons comes off probably even worse given that. And, the film underlines that WMDs was and continues to be an important issue.

Seriously addressing the problem, as shown in a documentary that Plame herself took part in, is too important to use those doing their part as playthings for power politics. They should not be "fair game" and the fact that saying as much remains a partisan issue is a major problem. I don't agree with Sandy Levinson totally but structure is a problem. As is anything that lets this go on.

[With Wikileaks and all, this discussion by me is relevant on why the Plame affair is a problem. It isn't because any leak is a problem. Thanks to the person who accessed it.

One more thing. "Joe Wilson" had a great point in the film when he asked an audience how many know the "16 words" that helped us go to war -- few -- then, how many knew his wife's name -- many. Again, change the frame, the frame becomes the story, not what is really important or even worth knowing. I might have said this but it's important enough to repeat. And, the clarity of the scene underlines why the film is well worth seeing.]

Bad Judgment Finally Bites Back

And Also: I skimmed The Terror Presidency which shows even those (too) friendly to conservative viewpoints, like wariness of international human rights law, think the Bushies went too far and promoted specious legal reasoning. It also noted that Clinton (see Kagan/Dellinger) promoted executive power in various ways.

Good play is not the same as good judgment:

But when Ocmulgee County District Attorney Fred Bright announced that charges would not be brought, he did describe Roethlisberger’s behavior in troubling detail. “We are not condoning Mr. Roethlisberger’s actions that night,” Bright said at the news conference. “But we do not prosecute morals. [At least, less so than in the past.] We prosecute crimes.”

Well, the NFL does worry about it as shown by the six game suspension given to the two time Super Bowl winner.

Justice on Contractor Rape?

Jamie Leigh Jones was but one of several women sexually attacked by our military contractors.* As with torture, there has been a basic failure to actually have the government prosecute these cases. This sort of this is disgusting:

"American women working in Iraq and Afghanistan continue to be sexually assaulted while their assailants go free," said Senator Bill Nelson, who called the hearing. Because squabbles about who has jurisdiction in these cases have proliferated, Nelson arranged to have representatives from the Defense, State and Justice departments sit down together in front of him. They were forced to listen while the latest victims testified.

As a Cato report noted:

As Salon magazine noted, since reporting the case, Leamon, like Jones, has found herself in a legal limbo. This is because Halliburton has an extralegal dispute-resolution program, implemented under Chief Executive Officer Dick Cheney in 1997. Once you get past the rhetoric about reducing lengthy and costly legislation, its actual impact means that employees like Leamon and Jones signed away their constitutional right to a jury trial -- and agreed to have any disputes heard in a private arbitration hearing without hope of appeal.

Must not "look back" though. The dangers of using mercenaries was expressed in the Declaration of Independence:

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

But as with selective concern with "northern aggression" by those in the South who tend to support foreign invasions that their foreparents deemed unpleasant when done to them, we often have a selective memory here. A Republican member of Congress did help Jamie Leigh and support legislation requiring reporting of such violent acts, reminding that this sort of thing is "not a political issue" (as in partisan). Tell that to the thirty Republican senators who rejected an amendment that would refuse funding to contractors who required arbitration when even in matters of:

(1) assault and battery; (2) intentional infliction of emotional distress arising out of the alleged assault; (3) negligent hiring, retention, and supervision of employees involved in the alleged assault; and (4) false imprisonment

IOW, to apply exceptions to mandatory arbitration that the majority of the conservative Fifth Circuit held applies across the nation. Sen. Franken sponsored the amendment, and Jon Stewart's on point coverage is here. As Ms. Jones noted: "An arbitration proceeding is private and discrete and the outcome of arbitration cannot be disclosed to the public, nor can it be appealed." Many, like Ralph Nader, find them troubling as a general matter. They have no place here.

Of course, there is always the ability to seek criminal sanction. Sure, this is not a matter of a fake prostitute or talk of fake teenage prostitution. OTOH, it would mean looking backward. No, I think the need for civil litigation holds.

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* If I was a member of the press as such, "alleged" might be warranted here, but the evidence is there to be sure that she and others were actually raped. And, as noted here, there have been convicted cases (if minor) of sexual abuse under the "Military Extraterritorial Jurisdiction Act." The article underlines the value of the use of the military includes that they clearly are liable for their actions, while contractors fall under a more hazy area. While ACORN is being targeted, we have this:

Earlier that year Ben Johnston, a DynCorp aircraft mechanic for helicopters in Kosovo, also filed a lawsuit against his employer. The suit alleged that in the latter part of 1999 he "witnessed coworkers and supervisors literally buying and selling women for their own personal enjoyment, and employees would brag about the various ages and talents of the individual slaves they had purchased."

And, "not nearly enough has changed." This includes many Republicans not apparently caring. As I said once before, why in the hell am I supposed to take them seriously?

Update: The amendment in question covers this ground:

None of the funds appropriated or otherwise made available by this Act may be used for any existing or new Federal contract if the contractor or a subcontractor at any tier requires that an employee or independent contractor, as a condition of employment, sign a contract that mandates that the employee or independent contractor performing work under the contract or subcontract resolve through arbitration any claim under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention.

The DOD is wary but assures they support the spirit. I'm wary of statements like: "The department suggests that 'it may be more effective' to seek a law that would prohibit the clauses in any business contracts within U.S. jurisdiction." What does that last part mean when dealing with firms that do things overseas?

As the text underlines, not just rape is in question. But, as tends to be the case, it is not like the opponents pushed for some bipartisan middle ground that did not include some catchall "sexual harassment" component. This would have helped prevent this wickedly funny blog from having such bite. (You can see/hear Jamie there in the Franken questioning vid.)

Not that depriving people the right to a day in court when their civil rights (including protection from sexual harassment) is an ideal "middle ground," especially when what is at stake is government financing and mandatory arbitration.

Top Leaders Educate Our Youth

And Also: More on the FCC case, including one important theme of mine -- the requirement of all branches of government to worry about constitutionality.

It's back to school time! Mr. Br-eyer, Mr. Br-eyer teaches English:

In ordinary English, where a transitive verb has an object, listeners in most contexts assume that an adverb (such as knowingly) that modifies the transitive verb tells the listener how the subject performed the entire action, including the object as set forth in the sentence.

The Supremes unanimously rejecting an interpretation of an id theft statute as applied to an illegal alien who did not "knowingly" use the information at issue. It could easily have been totally fake akin to a totally fake id to get into a bar. The concurrences debated the contours of the reasoning; Alito appearing to have a point on the value of reliance on context [more English lit than English grammar?], though Breyer was sure to not provide a "one size fits all" rule here. Stevens joined Breyer, but in another case concurred to compliment the majority (written by Thomas):

The Court’s adherence to precedent in this case represents a welcome departure from its sometimes single-minded focus on literal text.

Meanwhile, Condi Rice is going around, even to grade schools, defending her old boss. Likewise, even in grade schools (even if their teachers do not like them to say "torture"), there are doubters. But, Rice is sure -- somewhat patronizingly -- to assure everyone of two core rules that are necessary to drill into our heads: (1) If the President does it, it's okay and (2) Let's not forget just how bad things are. ["Uh, does that mean if I break the rules because I think it's important, that is okay?" Silly! Only, if your are one of the PTB!] I'm so glad that she, John Yoo, and even Rick Santorum (remember him?) are out there educating our youth.

There is a basic common sense flaw to the reasoning here, but if we are repeatedly encouraged to ignore it, maybe no one (who matters, at least) will ruin things for everyone else. Missing the point sometimes arises even when dealing with people who are generally on the ball. For instance, Hilzoy wonders about "motiveless malignancy" in the Cheney camp. I think there is a bit of too much idealism here: the idea someone who is that over the top has to be tied down by some sense of sanity.* Cheney was a true believer from the Nixon Era in the executive power area, so cares deeply about principle even if the restraint at issue has no immediate effect.

Anyway, I doubt the assurances of post-2005 behavior. CYA for past acts plays a part too. But, bottom line, it's akin to someone who doesn't want something to be possible, even if the person in power won't do it (a rule over a policy), it is the principle of the thing.**

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* History showed that true believers can be more dangerous than cynics, since self-control often tends to have pragmatic value. Some who are very opposed to certain groups miss the point, and cannot believe people can be so deluded. They treat them as cynical assholes. But, that might be giving some of them too much credit.

** The MCA did not given total immunity to these guys, so the promotion of "principle" is that much more important. Relatedly, impeachment is technically applicable to executive officials, but in practice, it is deemed a dead letter.