Ticking Time Bomb Fallacy

And Also: Sen. Phony Maverick (AZ) is out there blaming Clinton for North Korea. Clinton actually did something to deal with the nuclear problem, using something Bushies find a bit confusing -- diplomacy mixed with intelligence. Bush came out with his Bolton bully boy tactics, bringing the situation to a head again. NK might have created a situation given their "playing chicken" habits, but Bush clearly worsened the situation. Snowjob was out rousing the political troops, explaining why they should put so much effort in the electoral sphere. That's easy ... oh wait, he's Republican.

To find oneself in the situation of Mr. Padilla with no contact and no assurance of any aspect whatsoever of your future is something that isn't even known by the most closely confined inmates in a super-max prison where their guilt has already been adjudicated. Even those inmates have access to the judicial system. To defend even the basic character of Mr. Padilla's confinement absolutely requires that the defender assume that Mr. Padilla is guilty even if they are unwilling to acknowledge that belief. To allow the executive branch, on its own initiative, to operate on this basis is something that I, who routinely deal with those accused of crimes, can scarcely imagine exists outside of the pages of pages of 1984.

-- Police Officer, responding to Glenn Greenwald's discussion

Greenwald has another powerful post discussing Padilla's motion to dismiss, which provides the first detailed look at the nature of his detention and interrogation. The administration bluntly defended their "black hole" approach to this American citizen as necessary to interrogate -- showing an honesty that was so atypical one might think it a trick, they at times readily admitted this was the core reason for the detention, not any real intention to convict him of anything. This makes perfect sense, since the whole point of Padilla v. Rumsfeld was for the Supremes to find a way to punt ... no, it was that an American citizen was refused even a hearing to justify detention. When the requisite number of justices later made it clear that it was time to put up or release him, they finally sent him to criminal detention.

Because there is no "there" there, anything there was obtained by illegal means, or some combination of the two, the government still is not really offering much in way of actual criminal allegations. [On the ability to use civil trials in such cases as well as an overall excellent denunciation of the Military Detention Act of 2006, see Michael Dorf's article here.] Not surprisingly, this has caused some problems from the judge, who wants to at least show some shadow of respect for the Fifth Amendment. Meanwhile, to show exactly how extreme the case against the government is, the lawyers are specifying just how badly their client was treated. As Greenwald shows, "torture" is an appropriate word here, all these techniques used: sleep deprivation, temperature change, noxious fumes, physical threats, stress positions, long term continual isolation, and drugs.

Appropriately, Stephen Griffin over at Balkinization also has an entry against the "ticking time bomb" defense of torture. The idea is that if torture would stop a bomb that was about to destroy a city with millions of people, would it not be justified? Thus, even liberals such as Sandy Levinson are loathe to say it is never justified, though they are likely to use a "necessity defense" route (it's illegal, but after the fact, the torturers might get off, perhaps by pardon) that still is not the route of the Bush Administration (secrecy/immediate immunity for acts before 2005/no right for alien to bring claim). Such sorts also might admit "torture" or "cruel, inhuman and degrading" can be difficult to apply in certain cases.

He, for instance, cites Chavez v. Martinez, involving questioning of an injured suspect that lead to a divided ruling barely (5-4) holding the person had a case.* Levinson's comments were useful, including support of a definition holding that "[t]orture is understood to be that barbaric cruelty which lies at the top of the pyramid of human rights misconduct." He also noted that it was clear that it would not be legitimate solely to obtain "actionable intelligence" that might prevent harm to service personnel and so forth. Griffin went further. In his view: "Defined in a common sense way, torture involves deliberate cruelty and, as such, should be absolutely prohibited." He also cited (a comment provided the link) to a law review article by Kim Scheppele that attacked the ticking time bomb justification.

The article first provides (with suitably depressing footnotes) the clear reality that we tortured, and it was not (CYA prosecutions aside) a case of "a few bad apples." Such facts need to be put out there, to remind people what we are dealing with here:

Subsequent disclosures, however, have revealed that Abu Ghraib was not an isolated location with unique problems. Detainees in American custody in Guantánamo, in Afghanistan, and in many locations in Iraq have been beaten, menaced by dogs, threatened with infliction of pain, subjected to prolonged periods of solitary confinement, deprived of sleep, subjected to sexual humiliation, exposed to extremes of heat and cold, shackled in painful positions for many hours, and bombarded with bright lights and loud music for extended periods. A number of detainees have been subjected to many, perhaps even all, of these techniques over weeks and months of interrogation.

Overall, the ticking time bomb scenario is a false trope because it is a fantasy device. The proverbial pony that in real life simply will not go as the typical hypo would have it go down. A primary problem is that in reality it simply is not some sure thing in which the interrogator and would be terrorist are in a vacuum. The 24 scenario. No, first and foremost, it involves bureaucratic decision-making that experience shows will not be limited to "extreme" (and the author doubts such cases really are likely to occur -- the scare scenarios rather unlikely) cases. In fact, this is seen in protocols for use of deadly force -- they are basic principles (rather vague) that are not limited to "the worst of the worst." The Supreme Court might have said that a fleeing felon per se is not enough, but we are not just talking serial killers here.

What’s notable about the incidents of torture and abuse is first, their common features, and second, their geographical reach. No one has any reason to believe any longer that these incidents were restricted to one prison near Baghdad. They were everywhere: from Guantánamo Bay to Afghanistan, Baghdad, Basra, Ramadi and Tikrit and, for all we know, in any number of hidden jails affecting “ghost detainees” kept from the purview of the Red Cross. They were committed by the Marines, the Army, the Military Police, Navy Seals, reservists, Special Forces and on and on. The use of hooding was ubiquitous; the same goes for forced nudity, sexual humiliation and brutal beatings; there are examples of rape and electric shocks. Many of the abuses seem specifically tailored to humiliate Arabs and Muslims, where horror at being exposed in public is a deep cultural artifact.

-- Andrew Sullivan, Atrocities in Plain Sight, NYT Book Review (2005)

This aside from the problem of rightful identity/truth telling, determining if "momentous, imminent, and certain catastrophe" (often defined down, thus though even top operatives might not actually know much of immediate import, they are deemed proper targets) is involved, and the questionable morality of torture itself. [The article is not geared to the point, but it cites another that holds that torture per se is illegitimate, quite different from violence per se, in effect "worse than death" that might come from battle and bombing.] Overall, in the real world, there is "inevitable imprecision" that simply does not make the scenario sensible. This sort of thing suggests lessons taught in the 17th Century should not be deemed "quaint" today:

No man shall be forced by torture to confess any crime against himself nor any other, unless it be in some capital case where he is first fully convicted by clear and sufficient evidence to be guilty, after which if the cause be of that nature, that it is very apparent there be other conspirators, or confederates with him, then he may be tortured, yet not with such tortures as be barbarous and inhumane.

-- Article 45 of the 1641 Massachusetts Body of Liberties

Now, "capital crimes" were much broader back then, and one doubts torture should even be allowed in those limited cases. Also, one gets the idea that torture by definition is "barbarous and inhumane." Still, one gets the idea. It also might be noted that that list also contained perhaps the first animal welfare provision in the colonies as well. But, that's for another day.

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* I think he somewhat misleadingly suggested Kennedy's partial dissent (see also Stevens' opinion, supplying a partial transcript) was relevant here in that it raised the possibility that it was sometimes legitimate to interrogate injured individuals. But, the hypotheticals did not suggest harm could be done directly to advance such ends. SL crosses the line with this comment:

But I confess that I do not view, say, 24-36 hours of such deprivation as "torture," even if it is undoubtedly coercive (and, most certainly, "cruel and unusual," if used as a form of punishment rather than as a goad to interrogation). Indeed, the authors of The Interrogators insist, with whatever degree of plausibility, that very often the interrogators themselves, as a practical matter, got little more sleep than those they were interrogating.

Given the realities of the situation, it would be hard to imagine cases when deprivation of sleep for a day and a half would not be torture, especially given what must be done to assure that state of affairs. And, no matter what the authors "insist," to compare the interrogators position with those interrogated is asinine. Obviously, though the obvious does seem to confuse many people in power, even those with the same lack of sleep are not in the same position as those being controlled. It is honestly disgusting to compare the two.

Baseball Update

The As this time slipped up and lost with their ace on the mound. Detroit looked like the favorite, even if ESPN has a graphic saying Game 1 winners lose in the end. Lou, not the 2007 Yankee manager, confused a fellow announcer with the word "genuflect." Clearly, not a Roman Catholic. Meanwhile, imagine the Mets going to the second round ... it was just a few years ago when this could be written.

Lower Expectations

Joe is staying. Now, Bill Madden (veteran reporter with a good reputation) of the NY Daily News who first said he was going coyly said on Daily News Live! today (SNY) that there is some unknown reason (buy Wednesday's paper!) compelling it. Whatever. Madden is right: "[T]o bring him back for the final year on his contract would be to essentially excuse the way this Yankee team bowed out so dispassionately." Or, to have lower expectations. An "elite" team doesn't collapse repeatedly like this, especially with such a payroll.

Middle Church

And Also: Related to the below discussion, the NYT has had a very good series on accomodations given to religious faiths, which is acceptable up to a point. Should we force by law Catholics to have women priests? No. But, should we allow the Church special discretion to mistreat lay workers or give religious day care centers waivers from basic oversight, even if government funds are involved? No way.

I have in front of me a copy of Sleeping With Extra-terrestrials: The Rise of Irrationalism and Perils of Piety (1999) by Wendy Kaminer, a libertarian feminist writer whose work I generally enjoyed (haven't read her lately, though her name popped up when some ACLU insiders wanted to pass a rule limiting criticism of the organization's leadership). At the time, the book seemed a bit skewered -- as the title suggests, it spends a lot of time dealing with "alternative" beliefs such as astrology and the like.

There is also a somewhat strange chapter, with signs of Luddism, very critical of the Internet as a threat to reasoned thought. Sort of how the internal combustion engine caused air pollution. Her concern for links (basically the footnotes of the Net) really seemed a bit weird to me. The chapter has various "this is stupid" marginalia ala John Adams. I guess, as with her book against the excesses of personal empowerment programs and such, the book was partially sort of a response to irrationality from those that some generally sympathetic to her views (liberals). And, we are talking about millions of people here, people with irrational thought that in no way is cabined to belief that The X-Files is based on the truth ala Law & Order.

Such irrationality is a combined whole that can infect public policy (and private behavior) in any number of ways. Thus, many of these people are probably among those who think the Bush Administration somehow directly was involved in the 9/11 attacks. I'm confused by such people, since uh, people called from the planes. If missiles took down the Towers, what about the passengers? Were they like in on it too? Kaminer does note at one point that "social trends that conservatives lamented were not sins of secular* humanism; they followed a failure to embrace particular, sectarian interpretation of Scripture." This hits home -- it is a basic sentiment I share, one that annoys me whenever we hear about "values" voters and such.

The implication is that if you don't let's say support discrimination against gays you are not really a religious person, but supportive of "secular" values. "Scare quotes" are fitting since that is just what such a spin job is supposed to do. At issue are certain values, of course, as suggested by one of the replies to my Julia post cited below. And, the fact this is often spun as "religion" while the rest is "secular" is one of the worse cases of de facto establishment today. There are many books that will eventually fill up the "anti-Bush" library out that underline the point -- that supply a religious perspective from left leaning sorts.

For instance, Our Endangered Values by Jimmy Carter, who wrote a blurb to Middle Church: Reclaiming the Moral Values of the Faithful Majority from the Religious Right by Bob Edgar. Dr. Edgar, a minister and former member of Congress, is the general secretary of the National Council of the Churches of Christ in the USA. The book is sort of a "Majority Report" (the old name of Sam Seder's Air America show, a spin of the "Moral Majority") account that promotes a progressive view of public policy. Thus, it has various quotes such as Hebrews 13:3, which calls for concern of prisoners and those (Revised Standard Version) "ill-treated" (Edgar's version translates as "tortured").**

But, hey, you know how vague and open-ended scripture can be. One thing that struck me was his point that some evangelicals are so concerned with personal faith that they miss the forest for the trees. Such right leaning sorts are so concerned with personal rights (property, guns, capitalism) and the wrongs of others that the clear commands to care for the community at large are missed. [I like his use of the "dominion" we are said to have over the world per Genesis ... such "control" brings much responsibility, like the control we have over our children. Anyway, it's God's creation and gift, so what right do we have to waste and pollute it?]

Relatedly, I would think given the personal relationship -- often not shared by the majority -- such people have with God would underline the importance of a "right of privacy." The ability to make personal choices compelled by one's faith is at the heart of such liberty. Middle Church promotes many liberal leaning public policies, but it tries to show an appeal to the majority at large. As we know, when "middle" is used ("middle class"), we often are not just talking about some sort of median. Thus, many who I don't really consider "middle class" like to see themselves in that category. It also helps Republicans, which is why tax cuts that favor the rich (but might help others in some tiny way, and even there usually just shifts the burden elsewhere) have more support than they deserve.

But if by a "Liberal" they mean someone who looks ahead and not behind, someone who welcomes new ideas without rigid reactions, someone who cares about the welfare of the people -- their health, their housing, their schools, their jobs, their civil rights, and their civil liberties -- someone who believes we can break through the stalemate and suspicions that grip us in our policies abroad, if that is what they mean by a "Liberal," then I'm proud to say I'm a "Liberal."

-- JFK, qtd. in book; more good stuff about human dignity and so forth from the remarks here

And, things like environmental protection really should not be some sort of "liberal" cause ... as some conservatives readily admit. Still, the book has a clearly nice guy liberal flavor. Edgar "respects" other beliefs, in fact, "very deeply." What right does he have to doubt the faith of others? He just can repeatedly show the error of their ["far right"] ways, which after all, is the whole point of the book. ["It's a belief built on myths."] So, it seems a bit coy at times. Still, there is a point to it all -- you have to focus on what unites, and when you write letters to President Bush against the war or so forth, just calling him out as a moron really is counterproductive.

Sure enough. Leave that to late night comedians.

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* For those who do lean that direction, a recent hit to the site was attracted by a review of Freethinkers, which is one of the better entries imho. Relatedly, another entry from that period discussed a dissenting voice from the Muslim community.

And, there is always my "Julia Says Goodbye To God" post over at Slate, which patterns a similar one here. I really enjoyed her God Said Ha! (Sweeney's at times amazing "light" account of cancer invading her family) and will be seeing her "Letting Go of God" show later this month. Shall let you know how it goes, but it has received some good reviews. [If I make it back -- it's past 10th Avenue, a nice trek even from the subway.]

** It does annoy that he notes "Paul" wrote that epistle (it's more like a sermon), when it is pretty well accepted that he did not -- it is not even labeled as Pauline. The "summary" of biblical books in my RSV speaks of its "unknown author." Also, Edgar notes that homosexuality is only mentioned in the Old Testament, when Paul also cites such commands.

Obligatory Political Entry

And Also: Glenn Greenwald has a pair of posts on North Korea's (apparent?) nuclear test, including one reflecting my early 2003 "Dean is generally right" sentiment. LGM warns us not to get too excited.

Set up by the last entry ...

First, the "mercenary" reference -- Justice Stevens, showing his leanings, is quite supportive of campaign finance limits, repeatedly referencing "paid mercenaries." This is especially interesting here where he notes that control of one's property is an important constitutional interest. Second, Sandy Levinson over at Balkinization is raising structural concerns that he believes are furthering the current political happenings. See, e.g., here.

I would take this with a grain of salt. Broken Branch notes how Congress has fallen into disrepute in recent years, but especially since the Republicans took over. IOW, as with Islam and terrorism, the structure might invite this sort of thing if the environment is right, but it is no way compelled. And, a majority of the voting public (or surely close enough to be a problem, same in 2000 as to the latter) voted for GB in the last election. Structural fixes can be imagined, and probably ideal to some extent, but ultimately "we the people" are essential. Such was the point in 1787 as well.

If "we the people" continue to let our leaders get away with things just too close to Nazi war crimes (we often speak of extremes when saying what we should not do ... legal opinions do it all the time ... so maybe "Nazi" [July] is not as verboten as some think) for comfort, it seems a bit too glib to blame bicameralism or the Electoral College. Or, to suggest somehow Madison and company "welcomed" the mire we are in, the inability of the people to change the government when necessary. We have a free press, but that is not enough for it to be an ideal press. Same here.

[Update: Added "Nazi" link.]

The system might help, but it is not the ultimate problem. The rot comes from those who people the system, and that should be our ultimate aim. This is so even if some tweaks might help push things along. I'm no fan of the EC and it tends to overly favor conservative sorts that leave a lot to be desired. But, we had it for two hundred years, and survived fairly well. It did not compel a majority to vote for an asshole. And, since many of the problems/troublesome shifts came along without constitutional changes, reforms can as well. So, I'm not quite on the same page with SL here.

Overall, there are some chicken/egg issues here, but I don't really want to focus on the structure per se. We have to be aware of it, surely, and can alter it somewhat. Probably have to as well. We can work within it, and honestly, realistically, we will have to do so. And, can win.

Joe Must Go

And Also: The Jets were due for a letdown, Jacksonsville had to win. All the same, you cannot get blown out 41-0, especially when showing some life itself will be a moral victory -- the team is not expected to win too much, but that is simply pathetic. I saw much of the Giants game, but missed the beginning of the Jets game. It was 14-0 before I knew it. Then, I really had no desire to watch. BTW, as the Cards won, San Diego did win -- on the football side. Good game for them, an important step for their young QB.

Today is the day when matters of Italian pride and heritage arise though some find it quite controversial in various respects. I speak, of course, on whether or not Joe Torre should keep his job as manager of the NY Yankees.* Since this is not politics [see separate entry], there is actual bipartisan agreement that serious change needs to occur. Let me first off say that I totally agree with those who point blame on the "mercenary" approach [ditto] of hiring a bunch of big money players to try to continue past success. Since this was an important part of the 1996-2001 regime, e.g., David Cone (1995), this might sound a bit off.

The problem is that you need more than mercenaries (the A-Team?) to win the war. Thus, the Mets aren't going to the championship round only because they obtained some big ticket players. No, they also needed role players (some well paid), young hungry future stars, esprit de corps, and all that good stuff. One might point to various Dodgers slip-ups and injuries, but when both Pedro and El Duque fall within days of each other, one might not get too much of a supportive ear. The Tigers had a lot going for them, but so did Seattle in 2001 (most wins in baseball). The Yanks beat them almost on autopilot. This team couldn't even start the engine. It has to be changed.

This goes to the top. The buck stops there. Since the owner cannot (will not) fire himself, the place to look is the manager. JT had mixed success before coming to the Yankees -- in fact, he did not have much success as a manager (very good player; good broadcaster, I assume). His style was perfect for the 1996 Yankees and it carried through his a decade of very good Yankee teams. But, the team is set up to win it all, not just their division. We are not talking about the Braves (pre-2006 edition). Thus, though most teams would be quite satisfied with their record even since 2001 (2003), they don't have this sort of payroll. They also often have more likeable players than some of this bunch.

Torre won with this bunch too, including the last two years when it was not quite as easy as it was the rest of his tenure. The team came from a big hole to win in the last weekend last year and survived big injuries (offensively speaking) to come back sooner (with help from a Red Sox collapse; they had more injuries) this time. Still, again, playoffs. Being beat by the Red Sox (favorite whipping boys) after being ahead three games to none was bad enough. Now, Kenny Rogers and a team that they were playing because the Tigers were swept by the Royals (Twins swept by As ... all according to plan?) embarrasses them. In fact, after one and a half good games, the team looked just plain listless.

The problem is that it is not new any more -- this playoff collapse scenario is becoming a trend ... the Yanks are the Braves without the smaller payroll/more laid back style of fans (lower expectations) excuse. And, we saw what happened to the Braves this year. Thus, major change. New manager (the manager Torre replaced just was fired by the Rangers, who wants Joe -- circle of life?). New pitching blood (Mussina, bye; Big Unit, injury reserve, bye; Lidle ... go pitch decently somewhere else like any number of recent Yank back-enders). Disposal of various overpriced hitters (Gary ... only an idiot would take up that option; steroid-boy, who wants him? A-rod ... worse call since the Rogers pick-up?). And, some influx of new talent (a pitching prospect is in the wings ... bidding war with Mets for Zito).

No saying this will lead to a World Series next year ... heck, the Yanks might be fighting with Toronto (second place) for a division title or something next time. If the Tigers stay good, there will be three tough teams in the Central alone, and Anaheim (new name?) will likely still be a toughie as well. But, the team might have some new life, and a page will be turned. Ebb and flow, such is the nature of the sports world. It is why the Jets brought in young blood, even if they know it will mean this season will bring a couple more wins than last. Still, they are facing in the right direction ... that is the best one can say about them putting a scare in the Colts (heck, the Titans did ... big deal). The Yanks were doing pretty good, but the fans should expect more.

They might not want too much pain ... even a chance the division is not a lock next year ... to bring forth the change. Heck, maybe that is too much to risk! Still, many are not satisfied with a team that does not even show up against a young team that could very well have been satisfied with giving the big boys a scare. The Yanks dealt with such upstarts in the past. Now, they are whipped by them. Time for a change and Joe Torre (for Lou Piniella) has to be the first to go. Give him a gold watch to go with all those rings. Thanks for the memories ... and, hey, a few million dollars for the family is not a bad deal when you can earn it while taking your little daughter to the beach. Art Howe got the same deal in 2005 for doing a lot less.

And, who knows, Joe might be going to the Cubs. This makes sense. In the 1990 movie Taking Care of Business, James Belushi plays someone escaping prison to be able to see his beloved Cubbies. We get a glimpse of the baseball announcer ... Joe Torre in a former life. The WFAN afternoon duo are iffy, but seriously, he has to go. Buck stops there. If you praise someone for a team's success, you cannot have it both ways. JT might want to retire on his laurels, he has a family and young child, or he might want to try once more to bring a team to greatness. But, it is time to go. Bernie Williams might retire as well ... next up, playing his music somewhere in the Village or something.

Let's go Mets. I guess there is an edge to Oakland, the third seed with home field advantage, but Tigers/As seems like something of a crapshoot. Cards/Mets promises to be more of the same, though surely a bit tougher than the first round. I'm thinking Mets in 6 with a few bullpen meltdowns, at least one coming from our end. Trachsel or Perez has to come up with a good game. Glavine or Maine will have a questionable one. And, offense and clutch pitching (the series was clinched by a key out with Nomar at bat) will be essential. Overall, a bit less pressure -- failing in the first round would have been a waste. At worst, this will be a pretty good year.

With useful changes, a honest Yankee fan would say that is true for both teams.

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* Yes, though the actual day Columbus discovered the West Indies was October 12, 1492, Columbus Day is being observed today to allow a three day weekend. Another way would have been to observe it on Friday, since all those superstitious people are staying home in their beds anyway. OTOH, many Italians do need an extra day to deal with the Yankee collapse, and the day is in effect their St. Patrick's Day in some respects. Note that he worked for Spain, which is somewhat ironic. BTW, Chris was not the best of guys, but I'll let others reaffirm the point.

As noted on Democracy Now!, it is totally unclear why we are honoring someone who did not even discover our own country, which obviously was discovered years earlier. It is probably likely that even Europeans (Vikings) hit the North America coast years before though I guess one can say they did not set up permanent settlements and so forth. Still, we don't honor the founding of Jamestown, or the voyages of Cabot -- the beginnings of English claims on the land in the 1490s.

After all, the guy discovered (for the Europeans) the North American mainland.

Sports Update

With help from a bit of suspect defense and not much trust from his manager, Steve T. had a short game, and the Dodgers went up soon after. Still, the Mets slap hit them to death, sweep. Floyd might be out -- that would be a pity. Giants Defense showed up, Jets followed up an aggravating near thing with a pathetic effort (41-0). Padres had a shot until a four run 6th. Cards/Mets. The extra day did push back the Cards ace, so Padres did help some.

Immigration Supreme Court Dispatch

And Also: Hypocrisy in the "war on terror" ... how exactly are we supposed to be taken seriously with things like that? Watched some good stuff, especially the Quinn commentary pieces, over at the Liberty News website. One amusing bit is watching (visible on the screen freeze when the month's entry is clicked) the young anchor's hair styles become more studious over the last year. This month's entry is powerful. High speed dl suggested.

SCOTUSBlog linked a Dahlia Lithwick dispatch:

[Crooks] is in the unenviable position of having to persuade the justices that his case isn't moot. Crooks states that even though his client is no longer in the United States, "he is still subject to the supervised release portion of his sentence." An incredulous Chief Justice John Roberts wonders how a deportee can possibly be subject to his probation conditions if there is no one to supervise him. Crooks replies that his client is still not allowed to "use alcohol, or associate with persons..." (He is interrupted here.)

Crooks adds that there are cases in which deportees have been extradited back to the United States based on violations of their supervised release, and that he may in the future want a visa to visit the United States, since his children live here. Justice Scalia says that "the doctrine of standing is more than an exercise in the conceivable.... Nobody thinks your client is really, you know, abstaining from tequila down in Mexico because he is on supervised release in the United States."

Dahlia Lithwick spends a chunk of her first 2006 SC Dispatch comparing the decorum of the Supreme Court with the tastelessness in the legislative sphere. Her job is easy by the way, since the Court has a new policy of basically same day postings of oral argument transcripts. Since they recently have labeled who is asking questions and such, instead of just saying "The Court" (thus, we had to rely on tone, word choice, and advocate comments* to determine who was talking), the general public (and the press) can immediately get a good feel of oral arguments (minus the facial expressions and such) even with C-SPAN coverage. Since DL just had a baby, who knows? Maybe, she can just work from home?** Anyway, simply put, Dahlia might not know "where the tequila comment should register on the nation's macaca-meter," but I think is a rather lame comparison.

This aside from all the other baggage Sen. Allen has to carry. Scalia can be crude, but I think is somewhat less tasteless -- well, okay, no need to go there. Still, I'd use a better comment than this to show "Scalia's deliberate carelessness with language." As to the standing point, it does sound a bit dubious. Still, looking at the transcript (which even has a concordance of key words mentioned, which the old transcripts did not have -- some legal sorts will have a field day) suggests there were cases where a person out of the country returned to the U.S. and were liable to get in trouble once more. Likewise, another technical point was noted in which a win here could be beneficial "should he ever want to get a nonimmigrant visa in the future to come visit his U.S. citizen children."

As to the substance of the case, as I noted a couple days touching upon an important problem, on some core level this really is not as bad as it sounds:

Deputy Solicitor General Edwin Kneedler defends the government position, and the liberal justices pound at him awhile over the basic unfairness of a system that would allow for deportation, based on the random accident of which state you were in when you broke the law. ... Even Scalia balks at Kneedler's "double inconsistency" that could preclude a deportation if a state treated a crime more leniently than federal law, concluding "you've thoroughly confused me."

Well, yes, that is how things work: different states have different laws, including respecting when something is so serious that it becomes a felony. This is not nature of our federalist system. Do we not have any federal rule, yes including for really important things, depending on whether or not one broke the law? Or, comparably, seriously did so? Let's say we believe a federal judge should be a convicted felon, even as a rough qualification when determining who to choose or confirm. The test is respect for the law. As shown, the matter works both ways. And, we are not dealing with a matter that is not criminal at all on the federal level ... just in some cases, less so. A rough comparison, surely, but enough to deal with the basic principle.

The law apparently is unclear. This is a separate issue and given the result, might be compelling. Federal policy as to immigrants is excessive, but tying it to violations of state criminal law seems rather reasonable. The actual statute, as suggested by the transcript, is a bit more involved. Apparently, and this led to confusion, some parts of the law reference state practice, but only if the law in some fashion (even as a misdeamenor) violate federal law. Thus, State A might declare something a felony, even if federal law in other contexts do not, and here (and immigration rules do not necessarily even tie to prosecution alone) this might be enough. This is not necessarily a bad thing -- federalism respects some variable results. And, given the leaning of the Court, it might be a good thing for other defendants for the case to be held moot.

Procedural safeguards sometimes are only of some merit when substantive unfairness is what is ultimately at stake. Perhaps, here, we need to deal with the more offensive -- in more ways than one -- branches directly. Still, especially since media articles can -- given various limitations of the genre (including spending much time on non-legal sidebar issues) -- deal with part of what happened, being able to refer to online transcripts can be quite useful. The tendency of narrow rulings of late suggest nuances that one might pick up there make the complete record still more important.

Up to a point, surely, but still worth the effort. So would consistent audio/video, but we take what we can get.

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* This is Breyeresque: "Ah, but you don't mean that, because you're prepared to concede -- at least I thought you were until your last argument -- you're prepared to concede that if a person engages in a crime that is punishable as a felony under South Dakota law and it is also punishable as a felony under Federal law under 801, et seq, well, that counts." OTOH, Ginsburg and Souter can be similarly tedious. Statements like "you and Justice Stevens were debating" also provides a "key" to determining who's who, sort of like those used by code breakers or those trying to decipherer some unknown language.

** NY Daily News coverage comments that Trachsel missed his last start for "marital" reasons, a clarification of the previous (unspecified) "family" reasons supplied. Rather coyly, nothing else is supplied, except that his wife told the reporter who called that divorce is not being planned and please leave me alone. No reference was made to the ongoing Lo Duca divorce proceedings. I reckon the NY Post might not have been as restrained.

Baseball Update

As to Kenny Rogers, it should be remembered that he has had a good career ... except in the playoffs. The Padres survived elimination for a day ... their "offense" not helping too much. Wright and Lidle didn't do it today, but the offense was not really any better. A Yankee fan might hope such embarrassment leads to some real change (how about some more role players over overpriced free agents?). Like a drunk, one might need to hit bottom. But, I thought 2004 sorta did that. Oh well.

Signing Statements Again

And Also: Hey, if you have to dispose of crap, why not have fun with it. Neo-con foreign policy edition.

As suggested more than once here, just because something is legal does not make it a good thing. The Constitution is not an exception to this rule. Sandy Levinson has a new book out that deals with various constitutional matters that are arguably misguided, pointing to one (presidential vetoes) here. I responded, noting vetoes seem legitimate to me for three main reasons: guard against unconstitutional laws, threats on executive power, and a generalized check against constitutional harms (such as on "general welfare") especially when Congress failed to act in a truly principled way (open-ended, I know, and open to debate).

The stem cell veto did not seem to meet such a test. As to threats on executive power, the Bush Administration has gone the "signing statement" route, often (especially vis-a-vis his precedessors) in questionable ways. As a recent CRS report (h/t The Nation) noted: "while there are instances in which signing statements are predicated on specific and supportable concerns, the majority of the objections raised for example in President Bush's signing statements are largely unsubstantive or are so general as to appear to be hortatory assertions of executive authority."

One recent gem concerns of all things the qualifications of the FEMA director. The report is interesting and underlines that signing statements per se are not illegitimate. In fact, when the President has an important role in the crafting of a bill, arguably, they have some value when courts interpret statutes. But, and remember this is the Congressional Research Service not some partisan group talking, Bush uses them for questionable reasons:

While an actual refusal of a President to enforce a legal provision may be characterized as an "effective" line-item veto, the provision nonetheless retains its full legal character and will remain actionable, either in the judicial or congressional oversight contexts. Additionally, the broad and persistent nature of the claims of executive authority forwarded by President Bush appear designed to inure Congress, as well as others, to the belief that the President in fact possesses expansive and exclusive powers upon which the other branches may not intrude.

A couple things. First, the point of the "effective" line-item veto discussion is that some argue that signing statements in effect allow presidents selectively not enforce parts of laws, that is, "line-item" vetoing parts s/he does not like. This is unconstitutional, if it is what they are actually doing. The report argues that the law is still on the books. But, I think the point holds: if a law is not enforced, what good is it? Yes, congressional pressure might lead to a different result, plus future presidents might do things differently. But, this just tempers the problem.

Now, the report quotes a couple of conservative leaning sorts (well I know one is) that suggest critics cannot point to one example of the statements being other than "horatory," that is, of Bush actually not following the law. This seems to me a bit naive, especially given how he stretched the anti-torture laws. But, the report underlines the problem that exists all the same, suggesting the overall goal is "inuring the other branches of government and the public to the validity of such objections and the attendant conception of presidential authority that will presumably follow from sustained exposure and acquiescence to such claims of power." The importance of oversight and a strong congressional check, as noted, is that much more essential.

Too bad Congress continues to be so weak and the President in part resists that very oversight power, often on claimed constitutional grounds. Suggesting the excessive nature of such claims, the report notes:

Congress has imposed direct reporting requirements on Executive Branch officials since the first Congress. Legislation establishing the Treasury Department required the Secretary to report to Congress and to "perform all such services relative to the finances, as he shall be directed to perform."

Thus, though presidents since Reagan (per Alito) used signing statements in significant force (the general practice goes back to the early 19th Century), Bush is different. Let us not ignore that other presidents, yes including Clinton, overused executive power. The "you did it too" childish taunt really only holds a bit of water. [It is used as a sign of their opponent's apparent hypocrisy; they often do not actually respect Clinton etc. Again, this underlines the "Clinton was no saint, no duh" truism.] This only makes the fact Bushies support more abuse of executive power that much more problematic:

While the substance of the Bush II signing statements appear to be comparable to those of previous administrations, the nature and sheer number of provisions challenged or objected to indicates that there is nonetheless a qualitative difference to the current Administration's use of this instrument.

More proof of my general rule: Bush is not the devil, but hey, he's closer to one than we should be comfortable with. This is enough for me.

Baseball Update

Twins collapse (ugly) in 3. Kenny Rogers ... seriously ... pitched 7.2 shutout innings to put the Tigers up 2-1. Sorry, I'm sick of this bunch. Overpriced largely unappealing All Stars. If they win, it will be on the back of a youngster and journeyman veteran. Go Tigers!

Mets Game 2

And Also: Don't want Denny as speaker? Hey, fine. Vote him and his party out of control in November. If the Dems don't win, I say get out the hemlock. Heck, defeatist tones are already up, saying the Dems should have (sic) won more. Not totally wrong, but hey, wait until it actually happens!

After the Tigers showed that they didn't win 95 games on some sort of whim, the Mets received a great (and somewhat atypical) playoff performance from Glavine.* The team was helped, as were the As and Cards, by some crappy play though in Game 1 a miscue by Valentin was key to two Dodger runs as well.

But, seriously, the Mets should have been in a nail-biter (helped by a good catch and a wind blown out that turned two apparent home runs, especially the second one, into fly ball outs). Instead, a lackadaisical double play attempt led to Julio Franco (John Franco btw was in the house) barely beating out a double play ball that would have got the Dodgers out of a no one out, bases loaded jam. Instead, a run scored, followed by another. Oh, and somehow a key LD reliever cut his hand, probably in a bar (the cover story aside). Still, the Mets are stuck with Perez as their Number Four, underlining why Glavine's strong six innings were so important.

Up 4-0, it was a bit surprising Randolph did not go to a back-end reliever for the seventh or eighth, but there is an off day and Steve Trachsel (control freak, last start missed for personal reasons) might need some help. His "pitching good enough to win with lots of run support" style might be problematic since Maddux is up. A sweep honestly is no gimmee though LD should be pressing by now. Anyway, one wonders if Dave Williams, a toss in starter who filled in pretty nicely at times, was available to pitch. I sorta wanted him in since each time he went out there, DW tossed a decent game.

Perez was 3-13 overall (but the Pirates opening game starter), 1-3 as a Met. GM Minaya (NY Daily News): "He's the best available option we've got. It is what it is. He's the one that's on turn and we'll give him the ball." Such confidence! Honestly, he is decent, though less likely to be able to control his nerves than John Maine (this year's Brandon Backe ... the Astros rookie that shined a few years back when Pettite was hurt during the playoffs ... let's ignore the fact they lost the second round vs. the Cards). Perez has potential, and one great game under his belt, but likely to be out after 4-5 innings, giving up a few runs. Such is why the team is carrying twelve pitchers.

Anyway, an analyst mentioned the the mound is Glavine's "office," which is an apt metaphor. Along with Maddux, it does look like he is some dispassionate executive out there, Glavine at least looking more athletic than the other guy. TG also has the perfect game face -- he just does his job, usually quite well, not showing much emotion at all while doing so. This is why the first couple years with the Mets were so hard on him -- the teams were just too sucky that even he could not blithely go out there and suffer through them. Hope he is back next year ...

Let his 300th regular season win be as a Met (10 to go).

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* It is not so shocking that they won one game vs the Yanks, though some seem to be suggesting that. Now, if they win tonight, with Kenny "worse in big spots than A-Rod" Rogers, now that will be worth mentioning with a bit of awe. It is a bit curious why he is pitching this basically must win ... i.e. stressful ... game. Yeah, he started the All Star Game, but Brad Penny was there too ... and he (badly) pitched relief yesterday.

Some More Book Thoughts

And Also: Rachael Harris, best known of late as the Type A personality real estate agent in the T-Mobile ad, was on Dave last night -- I knew she looked familiar the moment she came on. RH shows wearing glasses can be sexy. John Dean has an informative essay, par for the course, over at Findlaw on "The Foley Follies" with a good chart of past sex scandals. He also links to a good editorial by Jonathan Turley, providing more yeoman work on controlling the excesses of the federal government.

A few more words on the Cato book -- a lot of material there, obviously. One article raised a useful question that sometimes comes to mind -- why exactly do we have certain rights, in particular, special focus on religious freedom. Some are not satisfied with "so it is written, so it is done," especially since many find ways around what is written. Thus, Prof. Amar is no fan of "taking the Fifth" though historically it was believed to be an essential liberty. This is partially because it originally often had more favorable applications -- some religious dissenter was forced to take an oath and pledge that they believed something they did not. All the same, the privacy security and safeguard against illegitimate pressure from the government remains. This is so even if some believe it is a criminal protection mechanism that inhibits the search for truth. [Congressional abuse of its investigatory power underlines why Amar's sentiments are overblown.]

The same arises respecting the Fourth Amendment, especially the "exclusionary rule," which many find ridiculous. Such people do basically understand the value of the amendment itself though they might not think it affects them. This is not quite the case for some people, who know the importance of requiring the state to have probable cause before they invade their privacy, sometimes even that not being "reasonable" (e.g., removing objects from one's body). Thus, the "knock and announce" (a security for perhaps 800 years in England) article underlines all the innocents affected by police raids. Also, the overall privacy concerns at the heart of the amendment clearly have broader applications, the specific security but the tip of the iceberg.

As to religion, some wonder why religious practice should be given special concern, especially respecting accommodations (exceptions) to general laws. Certain religions after all are clearly troubling, worse because they are based on faith, not reason. The article ends up suggesting it is a reflection of Madison's understanding that religion itself was a positive good though it footnotes others that suggest the First Amendment reflects an Enlightenment sentiment for a secular state. The truth appears to be a bit complex, see John Witte Jr. in Religion and The American Constitutional Experiment, various strands involved ... fairly common when it comes to constitutional rights.

I'd add that the article's suggestion that "conscience" is separate from "religion" is misguided -- they are intimately connected. This is shown by various discussions, past and present, case law and generally, which speaks of "freedom of conscience" as the core issue at hand -- it is like "freedom of expression" being used over "speech," suggesting the broad concerns involved that go beyond the potentially narrow bare words of the First Amendment. As to "autonomy," well that is (or should be) given special security as well. My basic conclusion would be that "religion" is basic to self, a core value and liberty that would be any likely list of basic freedoms.

At any rate, the effort to understand why we have certain liberties is a worthwhile discussion. One final comment on the articles. The first Hamdan discussion, the sensible one, does a good job showing how unabsurd the Court's reading of "Common Article 3" securities was. In fact, it appears quite logical (contrary to various comments on how "absurd" such a path is ... even the dissents admitted it was a "reasonable" interpretation) that it covers domestic groups not of an "international" character, such as civil wars and such. The commentary underlines the point, including concern for groups that would not have the "political and diplomatic" (pace Yoo) remedies of official governments. Again, an interesting book.

OTOH, looking at Sam Harris' The End of Faith was an annoying experience. One example is Harris' argument that a single sociopath with a knife could kill a city full of pacifists -- as if pacifists do not believe in any sort of self defense. [Milton Meltzer's young adult book, Ain't Gonna Study War No More suggests the error in such absolutism ... surely not "typical" pacifism.] He also discusses the violence of Islam, and it surely is a strand of it. But, if the religion (as compared to other factors) is to blame for Muslim terrorism, why was it not so prevalent for hundreds of years before the 20th Century? How about the million or so of Muslims in this country? And, why no discussion (at all apparently) about states like Iraq that showed a Muslim population can be part of the modern era? Heck, what about Iran, which is a fairly productive society overall? I also don't buy his defense of torture.

I listened to him both on C-SPAN and Air America, and he comes off as an listless sort with some possibility of a jerky side. The material clearly is worthwhile, and some nuggets of value are there -- suggestions that taxation is a good thing overall (you need to work from below, not just dump a ton of money on a glorified band of nomads ala Saudi Arabia ... the Parliament after all started as a taxation device). Also, Harris underlines the troubles our Christian beliefs (or something said to be Christian) causes society, including "victimless crimes." The harms really seem to me in aggregate much worse than that suffered by Islam terrorism, surely for our own society. Perhaps starting to write a book on 9/12/01 is not a good thing. Anyway, a few too question begging bits that seem too dumb for such a "smart" guy.

BTW, I also checked out the graphic novel representation of the 9/11 Commission Report. The two commission leaders appreciated the effort and it has received very good reviews. It is proof that the medium has very good potential. One thing shown is the numerous things Clinton did to fight terrorism in the 1990s, things that had real effects, if ultimately not enough to stop things. He was not helped by the Republican Congress, who if anything thought he was too excited about the whole thing. [The need somehow to get the FBI/CIA to "ok" a response to the Cole bombing seems weak, but electoral realities really must be factored in there.] He deserves more respect for the effort though. Also, recent events belie the claims that the famous 8/6 PDB was just of "historical" interest.

I did not read the whole thing, though it was only a bit over 100 pages, but enough to respect its value.

Cato Supreme Court Review

And Also: Detroit/Yanks split in the Bronx, Tigers showing some more life than the Padres, who lost two at home. The 2006 Playoff Mets are going the Anaheim route – short leashes on their starters, deep pen (less bench), and reliance on runs. This should beat the Dodgers, but will be tougher to pull off in the next two rounds. Oh, hockey season began – no seriously. It’s right there in the box scores. Take my word for it. [Mets won; Glavine plus timely LA miscues.]

As mentioned, I recently received my latest Cato Supreme Court Review, an annual collection of the preceding term, officially released on Constitution Day (September 17*). Somewhat appropriately, it began its reign in 2002, the year when I firmly began my online commentary activities over in the Slate fray. Overall, my interest in the field goes back much farther, surely as far back as the late 1980s as shown by some half legible handwritten remarks I have respecting the Webster abortion opinion. Online sources make the interest that much easier to handle.

The series puts forth a libertarian perspective with a somewhat doctrinaire originalist leaning sentiment shown in many articles as well as a bias against "wishy-washy" rules that seems to them as replacing "law" with thinly disguised "politics." Life tends to be a tad more complex in real world environs, especially with competing views that need to be balanced. Yes, this leads to some hazy lines, lines that I am not always a fan of, but that do tend to be a bit more reasonable than some snide leaning comments suggest.

All the same, no limited constructionist they, willing – when felt required by the Constitution – to have the courts broadly strike down legislation such as limits on adult sexual practices (Lawrence v. Texas) and to rein in executive power in the "war on terror" (exception would be the essay by John Yoo, favored by the conservative publisher of the series balanced by one from the other side that truly respects international law and so forth). It also thinks Congress has run riot of late in any number of fields – some here are no big fans of the New Deal.

As shown by the opening "lecture" that traditionally starts things going, "libertarian" is not a simple label – you can have liberal and conservative leaning sorts, those who oppose governmental vouchers to religious schools and those who find them constitutionally mandated in various cases. Thus, the publisher (Roger Pilon) supports Yoo, while also (in the first volume) opposing arbitrary limits in the "war on drugs" such as suspicion-less urine testing of school children or federal criminalization of medicinal marijuana grown/distributed only locally. Overall, I am sympathetic to these approaches, putting aside the pro-executive hypocrisy, even if not always agreeing with particular sentiments.

The volumes so far have been generally worthwhile, especially since they only cost around $10. It started on the right foot, slacked a bit, was helped by the 2004 detainee cases, and was fairly interesting the last two years. I have a couple articles left, but let me briefly touch upon this year’s offerings. Nadine Strossen (ACLU) starts off arguing her organization’s stance on religion is libertarian, opposing recent attempts to limit religious freedom to an "equalitarian" approach, e.g., supporting funding of religious organizations in an equal matter. I still have an article on the particular case covered last term on religious accommodations by the national government pursuant to federal law … supporting such things, which I firmly support.

I mentioned the two articles on the Hamdan ruling; there also are a couple on economic issues of some importance (securities regulation and antitrust) that largely went over my head because they involve issues outside of my interest/expertise. Two federalism articles were fairly interesting, dealing with "clear statements" (important given the reach of federal spending and restrictions on states generally) and "dormant commerce clause" issues (a somewhat arcane field, but sort of interesting all the same). The criminal justice articles cover the lethal injection protocol ruling (welcoming the small step to force public policy to address the issue) and Fourth Amendment issues (by the losing lawyer in the "knock and announce" ruling). I did not read the latter, but the former was interesting.

[Update: On the other two articles ... the religious accomodations case article puts forth a reasonable approach: allow a federal law that singles out such things, but don't necessarily require it as a constitutional command so that political branches can tweak it. One restraint: if you have exceptions, religious groups should be treated equally. Many states also constitutionally require religious exemptions to general laws. I favor that approach, but RFRA is the best of both worlds. And, anyway, many things allow some exceptions, so in practice, things in a "post-Smith" world is not quite as hard as it might be.

The Fourth Amendment article was interesting. Again, I like this line from Breyer's dissent in the key ruling addressed: "That is the right way to win. The very process of arguing the merits of the violation would help to clarify the contours of the knock-and-announce rule, contours that the majority believes are too fuzzy." IOW, don't cheat, don't just assume you are right, especially when you think the facts ultimately are on your side. Reminds me of the Bush Administration ... tellingly, the implication is the facts are not always on your side.]

The two freedom of speech articles also took paths somewhat different than some of my usual allies. The first questioned the value of reliance on Buckley v. Valeo (campaign finance) as some sort of "superprecedent" (including a somewhat brief discussion of this term raised during the CJ Roberts hearings) because it simply is confused. This partially goes back to my point above that the law tends to be a bit messy than doctrinaire law review sorts like these wish it to be – the reason why a case like Buckley sticks around arguably in part arises from the fact it supplies some baseline principles … even if the applications can be all over the place. Still, though written by someone clearly not a fan on even limits on expenditures, the article provided a good critical eye on current practice.

The second article concerns the FAIR case that upheld the power of the federal government to require colleges to host military recruiters, even though the colleges believed this was a sort of coerced speech that interfered with their freedom of association to boot. Anyway, it was a sort of "unconstitutional condition" on their governmental funding, especially since it would lead to loss of all funds, not just from the Defense Department or the particular branch (law schools) of the university refusing the support. The article firmly found the unanimous ruling wrong, especially its presumptive and dismissive tone.

And, I do tend to agree, even if it seems like the schools wish to "have their cake and eat it too." First, I find expression here – promoting a way of life (military service) led me to believe that recruitment is not just an economic situation. Second, the schools have some real concerns here, especially given the special concern a law school might have to follow certain ethical rules. Third, we are dealing with a lot of funds, and a questionable state interest – was the long held previous regime without this "string" problematic respecting recruitment. Apparently not. Finally, though somewhat minor, there is real First Amendment restrictions here, defended in a questionably "this is obvious" way that can lead to problems in other cases.

The book ends with a look ahead to this term, including the roles of Roberts, Alito, and Kennedy. Overall, an interesting set of articles, ones that liberals might find useful as well.

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* The Constitution was officially agreed upon by the Framers on September 17, 1787. An article in the volume mentions a CD piece of legislation favored by Sen. Byrd in a unique sort of way.

Legal Bits (Immigration Focus)

Baseball: Forgotten Oakland is up 2-0, helped by a blunder by Tori Hunter (leading to an inside the park, two run homer); put upon Cards up 1-0; Tigers mauled by Jeter and company; and the Mets -- down another top pitcher (El Duque, perhaps for it all), did it with Maine and company plus hits. The winning pitcher aside (Mota), no Mets pitcher gave up more than one run. Of course, Wagner made it interesting. Really, it was almost a "must win" with Perez (1-3 as a Met) apparently Number 4 now. Nice double tag at the plate!

Voting Rights: Showing problems are still out there, a "federal judge on Wednesday struck down a voting rule that required naturalized citizens in Ohio to provide proof of their citizenship if challenged by a poll worker." [NYT] Meanwhile, a somewhat narrow issue with important implications for immigrants is in front of the Supreme Court:

The intersection of federal criminal law and immigration law is a perilous place for the millions of legal residents of the United States who are not citizens: one slip, one criminal conviction, can mean deportation.

The question, posed by two separate cases that were consolidated for a single argument, was whether immigration officials can treat an immigrant’s state-court conviction for possession of a small quantity of illegal drugs as an "aggravated felony" as long as the crime is considered a felony under the state law, even if federal law treats the same conduct as only a misdemeanor. ...

His lawyer, Timothy Crooks, said the case was not moot because under the conditions of his "supervised release" in Mexico, Mr. Toledo-Flores must observe certain rules, including abstention from alcohol.

Interesting name for a defense attorney. Recent draconian laws have led to situations where petty crimes, even long ago, might lead to long time residents to be deported. Of course, legal residents (aliens) are especially endangered by the probably unconstitutional habeas stripping bill.


Hypocrisy Alert: Also per Talk Left, we learn a "gay list" was made as some sort of CYA move arising out of the Foley mess. Staffers from "Representative Katherine Harris and Henry Hyde and Senators Bill Frist, George Allen, Mitch McConnell and Rick Santorum" are involved. My sympathies. Legal connection? Remember the sort of anti-homosexual laws these sorts promote.

Let's Just Not Think About It

And Also: On the alternative food front, two tasty choices: Postum (bit of sweetener) works perfectly well with your dessert (had it with a muffin myself) when you don't feel like having coffee (never can make the stuff right myself ... thanks mom). Also, seriously, Tofutti ice cream (so to speak) is good -- I personally like vanilla bean. There are good rice ice cream versions too (e.g., green tea) as well. BTW, I find one of those garlic loaves topped with vegetables also makes a tasty little meal. Broccoli works well -- also b with garlic is pretty tasty Chinese. Yes, I am not a vampire.

I admit it ... sometimes, something pops up -- like cybersex with members of Congress (never saw that AOL Chat) being covered up -- and I am rather surprised. I have one of those "I can't believe this" moments. Yes, I know, this is silly by this point. I guess it can be partially explained by the fact that our media and the general public (who voted this Republican majority into power again two years ago ... when the evidence was there already to shout that it was a bad thing to do) try to go about their business and try to talk themselves into believing everything is fairly normal, more or less. After all, what else can one do? Vote for different people?

And, that this "normal" is nothing to be "shrill" about, or (horrors) something to drive us to get rid of people like Lieberman (torture/immunity boy*). To be fair, now and again, the media does its job -- reminding us why they are so important. To force us to see the elephant (snicker) in the room. But, my modicum of surprise suggests a bit how these things can go so far. This sort of thing isn't just found in politics, after all. We all can think of examples where some family member or perhaps employer has his/her serious problems pushed under the rug, since the alternative would be too hard to imagine. We just have this accept that sort of thing as a fact of life. A tipping point does approach, but we can accept -- especially while lying to ourselves -- quite a lot before then.

Saying it ran "counter to the tradition of our great nation," Gov. Arnold Schwarzenegger vetoed a bill on Saturday that would have automatically allocated all the state’s 55 electoral votes to whichever presidential candidate received the national popular vote. The bill, which passed the state’s Legislature this summer, was devised by John R. Koza, a computer scientist who envisioned a system in which a series of states holding the number of electoral votes needed to elect a president — 270 — would commit their electors to casting ballots for the winner of the popular vote, regardless of how their individual electorates voted.

Thus, seriously, I fear for November. On the issue of elections, Gov. Arnold (Republican enabler like my own mayor ... a "moderate" sort that advances the interests of the party) vetoed a bill that would allow California to change the way that they allot electoral votes if states with a majority of electoral votes also do so. Apparently, to support it would crush an American tradition ... clearly he is also firmly against proposals to do away with the barrier to non-natural born citizens from running for President. It was a bit interesting really he was so conservative about the thing since, you know, he got into power in the first place via somewhat untraditional means. But, the people wanted a change ... no need to stick to traditional electoral practices, especially since the rules do allow such somewhat hinky approaches.

Anyway, I think we need to teach more civics ... after all, the Electoral College confuses people, but it is an important part of the "tradition of our great nation" (unlike, you know, elections when a governor's term is up) ... in fact, maybe some of its defenders need to be clued in. For instance, what many are really defending is a "winner takes all" system, one where the winner obtains all the electoral votes. But, the EC does not require that by any means; in fact, James Madison once wrote that he favored a district by district system. Still, Jimmy was in effect a Democrat, so what does he know? Heck, he also supported a strong separation of church and state, was wary of needless unlikely to go well wars, and supported judicial review. So, what does he know?

Really now.

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* Yeah, he was among the senators who voted for the detainee legislation, though come on, he is a member of the Republican caucus. No? But, Republicans are supporting him for Senate, even though there is an actual registered Republican running. It's so confusing. At any rate, BTC News discusses the war crimes immunity aspect of the bill ... Sen. Durbin (h/t Talk Left) had some striking things to say about it in his floor remarks. A taste:

Let's take one example. The bill would revise a law known as the War Crimes Act to give Bush administration officials and those who preceded them, back to 1997, amnesty, amnesty for authorizing illegal interrogation techniques. Think about this for a second. This administration wrote a memo. The author of that memo is a gentleman who is now before us as a potential nominee for the Federal court. In that memo it was recommended that we might use, as part of interrogation techniques, using dogs to threaten and intimidate prisoners. That was in the memo.

To summarize: "Why is the Administration so interested in protecting itself from judicial review? Perhaps it is because the courts have repeatedly ruled that the administration’s policies violate the law."

Couple Quotes

But what we do know, and what the American public now knows, is that the party that has spent the past few years demagoguing safety and security and law and order is now known as the party that has screwed up the Iraq war, that has codified torture, that has been filled to the rim with criminals and crooks fleecing the treasury (and who knows what else), and is now known as the party that at its most basic can’t be trusted, because they are the party that has middle age perverts trying to bugger your kids. And even better, the Republican House Leadership didn’t give enough of a shit to do anything about it because it might get messy or it might get in the way of their desires for power and actively hid the information form the oppostion party and the pulic (or, as we might say, PEOPLE WHO MIGHT HAVE DONE THE RIGHT THING).

-- Making It Simple

A review of White House records has determined that George J. Tenet, then the director of central intelligence, did brief Condoleezza Rice and other top officials on July 10, 2001, about the looming threat from Al Qaeda, a State Department spokesman said Monday. The account by Sean McCormack came hours after Ms. Rice, the secretary of state, told reporters aboard her airplane that she did not recall the specific meeting on July 10, 2001, noting that she had met repeatedly with Mr. Tenet that summer about terrorist threats. ...

Officials now agree that on July 10, 2001, Mr. Tenet and his counterterrorism deputy, J. Cofer Black, were so alarmed about an impending Al Qaeda attack that they demanded an emergency meeting at the White House with Ms. Rice and her National Security Council staff.

-- Records Show Tenet Briefed Rice on Al Qaeda Threat [aka that Rice Lied]

NYT: Judicial Matters

And Also: I have sort of "blogged" reading Without Apology over the weekend ... to complete things, let me say that I finished it last night. You can learn some more about the author and listen to her speak about the book (click the icon) here. Overall, the book seemed not to have enough material for a full length effort, plus the ending probably seemed somewhat lackluster to some people. This is so though it is probably how things normally go with teenagers and real life overall. Nonetheless, again, this sounds like something that could have been dealt with just as well -- or better -- via a long feature or a series of articles. I was overall disappointed.

Given all the material to be covered, I did not deal with one additional issue addressed by the NYT over the weekend. It provided some useful coverage of the courts of late. First, it had a series ("Broken Bench") discussing certain town and village courts in New York State which are remarkably lacking in justice -- this includes magistrates who are not even lawyers, or apparently, people who know basic rules of judicial conduct (e.g., generally no ex parte hearings). Second, it discussed the troubling issue of campaign donations to judges, focusing on Ohio.

There is no perfect way to select such appellate judges -- the federal regime shows how political campaign money can influence who is selected as well -- but this underlines the problems with judicial elections. I'd add that who actually knows much about these people? Yes, generally the legal community as well as various political sorts, the latter often the only way in my parts to determine who to vote for when local civil judges run (they supply panels to vote for, including judicial nominees). I don't generally see news coverage, except perhaps an endorsement right before Election Day (and, even then, only in some cases). And, obviously, people are not just voting for legal competency here. This is probably the case even for "retention" elections, another way to target ideological opponents.

One might argue that this is a good thing. Take out the middle man ... but, again, it is quite likely that the ordinary voter will not be the one ultimately involved here. As noted by the author of When Congress and the Courts Collide (on Booknotes over the weekend), something like eighty percent of the voters want to continue electoral campaigns when they are available ... but the same amount simply do not vote (or do not know who they are voting for). This is ridiculous. The numbers are rather low for various lower electoral personnel, true, but not that bad -- and such people are supposed to be "political” (one wonders about the attorney general). There is not a conflict of interest concern, though many are at some point concerned about money in politics generally, when people donate money to a member of Congress.

A bit different when you do so to people you or your group is likely to come in front of in some respect. Thus, I support a more indirect selection process -- people we elect can have some role in choosing judges, but there is a middle man involved. Politics will always be involved somehow, usual cant aside, the current situation reflects past practice (Federalist judges weren't a concern in Jeffersonian America? Taney wasn't held up by Whig senators?) at least to some comparable extent. Indirect selection (including independent commissions) probably helps, especially since there is no direct funding of candidates, or requirements they run like politicians. Furthermore, I do not think the general public is informed enough -- maybe this is possible -- to make current judicial elections credible (even as compared to local legislative races). This strikes me as a particularly troublesome issue.

It is therefore good that the NYT wrote an extended piece on the subject. Justice O'Connor is no fan of judicial elections either ... see her concurring opinion on speech on the judicial campaign trail here. She unlike Justice Kennedy has been "condemning judicial elections across the board" even if in so doing "we implicitly condemn countless elected state judges and without warrant." They both basically said if we allow judicial elections, we are stuck with the negatives: "If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges." The dissent argued we can balance things, even if in the process speech is limited.

I didn't find that a suitable solution. Anyway, it's the First Monday in October. The indirectly popularly chosen U.S. Supreme Court, now the Roberts Court for the first full term, has begun business once more. In honor of the event, I read the first article in my Cato Supreme Court Review (2005-2006), one on religious freedom by Nadine Strossen. It highlighted a few things that I find particularly striking (and often misunderstood), including the fact that religion is uniquely treated in that it (as compared to many other subjects) is "separated" from the state. Likewise, the ultimate religious favoritism of Scalia should concern some more people on the religious right.

Also, religious liberty is an important part of privacy rights, which pops up in somewhat surprising locales (no funding, no close governmental monitoring, "neutral" strings). Finally, it underlines simplification required to summarize topics in relatively small articles -- religious funding cases pre-2000 were a bit more messy than she suggests and the "libertarian" approach might want to hear a bit more on why people should fund public schools (especially if we are broadly dealing with "conscience" here). Still, a good piece, especially reaffirming the point that religious freedom is more than requiring equal support (or burden) ... and both strands, including guards against excessive mixture, promotes religious liberty.

Surely, it will be more enjoyable than what is next up -- Yoo's defense of executive power, in "honor" of the military detainee bill/law. Yoo is from the "icky" wing of the Cato board, especially as to certain issues. I was going to give one a taste of his arguments, shown from the title on down, but this will leave readers to read the article direct preceding his ... including the parts touching upon the importance of international law (including in the courts) from the very beginning of our existence (e.g., The Treaty Of Paris). It does a better job promoting Cato's understanding that the judiciary's important role -- even in this sphere -- in Madison's words, "the bulwark of our liberties."

I can forgive some of the Cato authors for being a bit too doctrinaire, not quite realizing that cases are group efforts that are likely to be a bit messy. Heck, sometimes, I too wish they were a bit less so, especially in certain areas. But, this selective concern* for liberty is a step to far, at least for "libertarians."

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* This is the core problem with Foley-gate. This double standard. I am a bit loathe to speak of him as a "pedophile," since that sort of thing will likely to backfire next time some camp counselor is found to have been "too close" to their charges. It brings images of sex with ten year olds not sexual harassment of sixteen year olds.

But, was not this age/power (and icky) deal supposed to be what was so horrible about Clinton/Monica (21)? Amazingly, however, Ann Coutler isn't on the front lines (ala "presidential kneepads") bashing Foley. In fact, Foley was the chair of a committee on mistreating children, and (irony alert) might have violated an Internet harassment law he himself sponsored that made sure all those under 18 (not 16) were covered. And, how can we not trust Republicans to protect our kids?! Liberals, sure ... they just love promoting this sort of thing. Again, if Clinton was hypocritical with his support of broad definitions of harassment, what of these people? Love how Tony Snow tried to belittle the issue.

I continue find it creepy that these people are our leaders. Michael Chertoff, sorry, looks a bit creepy ... but, he might be a big teddy bear next to the rest of them. Randy Rhodes, who harks from Florida and dealt with the guy when she did radio down there, also had some interesting things to say today on Air America.

Baseball Updates

And Also: Chicago Bears with offense? Scary!

A rather lousy team, Tampa Bay, helped knock out the Indians from the playoffs ('05) in the last week when even a couple wins would do the trick. KC, which was dominated the rest of the year by Detroit (and everyone else -- they had the worst record in baseball), finally knocked Detroit out of first place (they play the Yanks as a Wild Card) on the last day -- completing a sweep in which KC repeatedly came back to win. Mets fans had flashbacks given Kenny Rogers was the losing pitcher (a hit this time) in extras after loading the bases.

The Astros lost via unearned runs, more sloppy defense that hurt them of late. Cards lost, but they backed in ala Detroit with that Houston loss (without earlier Detroit dominance, Chicago with 90 wins, would have been the Wild Card, but Chicago too fell off in the Second Half) Toronto came a respectable second in the division, though Boston no hit the opposition today -- five inning game. And, SD hung on to win the West again, the Dodgers playing the Mets as a WC.

Gary Cohen and the SNY analyst gang had a nice "talk directly to the viewers" bit after the game where they thanked us for making their first year so successful, and wished the Mets well. They should have brought the field reporter, Chris Cotter, on as well!

3Bs

And Also: Aggrrh! If you don't slay the dragon, especially if you clearly could have, the mauling can be worse. Toss in some alcohol, and you have the immediate feeling. I mean in the wound, though some fans might want to have some after the game too. Let the MLB playoffs begin: NY teams tie for best record in baseball, splitting head-to-head as well.

Some more thoughts on recent subjects.

Blood: I recently gave blood ... double red, which is a fairly neat deal. You are hooked up to a machine which separates the red cells from the rest, so you give two pints worth of red, but just that -- no plasma etc. You see the blood processed, going in and out of your arm, the plasma (yellowish) splashing in the compartment. Since you give a double portion, you need to wait twice as long (vs. fifty six days for a simple whole blood donation) between sessions. It also doesn't take much longer than whole blood (overall, both take less than an hour overall) and probably is less stressful for most people because less fluids are removed. I find it a fairly easy way to donate a part of myself, literally this time.

Book: The book referenced yesterday concerns a slight thirtysomething mom who always disliked sports, surely boxing, finding to her surprise that it actually is particularly appealing. The theme of the book is suggested by the title, Without Apology, underlining the empowerment value of athletics (particularly for girls, here between ten and sixteen, see Title IX*), including in response to personal demons and drives. Thus, though the author -- reflecting earlier sentiments she herself held -- recognizes the arguments against boxing, her personal experience (Cohen too started sparring) here showed its value as well. I still find watching the sport a bit too much like gladiator battles, but the book shows how it can serve as an outlet as well. If only she laid it a bit less thick while discussing the issue ...

Bush: In a "perfect storm" situation, our national leadership today is bad on various levels. Basically, I oppose what they say and do. The latter is key since often people are not as doctrinaire as I might be. They look at the person, especially in this candidate focused era where political parties often are less important. The NYT has a good magazine piece today on how Dean is trying to fight for a national party once again -- I'm all for that. To connect the dots, this House page cybersex standard ("overfriendly" is the Republican spin ... the NYT cannot quite say what is at stake such as comments like "are you horny" ... I also find the picture of Mark Foley's opponent with Kerry telling -- is that the only pic available?) underlines the point.

[One additional point ... the NYT story etc. underlines consistency at least on the Republican side. Unilateral to the end -- the sole Democrat on the page panel was not told of the concerns. Sort of a problem, isn't it people?]

Not only does it show the difference between rhetoric and reality, but you need to have people there (including a candidate) for the kill.** This, my friends on the other side, is why you cannot trust your friends with too much power. Surely, this includes the President ... the infamous photos suggests this includes matters of a sexual nature. But, some -- as suggested last time -- think we should just trust him. Ironically, they sometimes use presidents they otherwise find distasteful to defend themselves -- suddenly "socialistic" FDR is an ideal to follow. And, again unlike other matters such as congressional power, they ignore the overreaching nature of executive power in the modern era as well as other relevant changes such as the need for human rights in the post-WWII world.

From the NYT today:

They called for a return to the minimum standards of treatment in the Geneva Conventions and for eventually closing the detention center at Guantanamo Bay, Cuba. The time had come, they said, for suspects in the 9/11 plot to be taken out of their secret prison cells and tried before military tribunals. ...

On one side of the fight were officials, often led by Vice President Dick Cheney, who said the terrorism threat required that the president have wide power to decide who could be held and how they should be treated. On the other side were officials, primarily in the State Department and the Pentagon, who portrayed their disagreement as pragmatic. They said the administration had claimed more authority than it needed, drawing widespread criticism and challenges in the courts. ...

According to officials who attended the meeting, several of those present spoke in favor of the Geneva provision, including the senior Army lawyer, Maj. Gen. Thomas J. Romig. In an unusual move, Mr. England called for a show of hands. All but two of those present endorsed the provision. But those two officials were among the most influential in the room: the department's under secretary for intelligence, Stephen A. Cambone, and its general counsel, William J. Haynes II [Nominated to the Fourth Circuit].

Note the general themes, including State having more sensible policies. Another telling matter was the concern for "pragmatic" choices, those not compelled by the law perhaps (for sake of argument), but so useful to a reasonable policy path. Obviously, it was looked upon with askance. The discussion also shows the concern of the military -- as with the cybersex scandal, we see how little these people truly offer. They are incompetent, harm the interests of the military, and at the end of the day are anti-family values as well. Oh, btw:

The element of the new legislation that raised the sharpest criticism among legal scholars and human rights advocates last week was the scaling back of the habeas corpus right of terrorism suspects to challenge their detention in the federal courts. But in dozens of high-level meetings on detention policy, officials said, that provision was scarcely even discussed.

Additional tidbit, addressed by Sam Seder on Air America earlier:

Congress removed a controversial provision in a military bill on Friday that would have permitted chaplains to offer sectarian prayer at mandatory nondenominational events. At the same time, lawmakers moved to rescind guidelines issued last year by the Air Force and Navy meant to curtail the risk of religious coercion and proselytizing within the ranks. ...

For several weeks, wrangling over the chaplain prayer provision had stalled the National Defense Authorization Act, a bill that sets military spending levels. The provision was championed by some evangelical chaplains and Christian groups, like Focus on the Family. But it was opposed by the Pentagon, the National Association of Evangelicals and a dozen or so ecumenical groups, which maintained that offering sectarian prayer would create division within the military.

Many Democrats are pissed at what their representatives did with the detainee bill. Republicans apparently are better at compartmentalizing. Sometimes, they blatantly simply don't want to see the connection, finding it a bit unsavory. True believers (though some are having problems) can take that route.

The rest of us, including those that might be sympathetic to Republicans overall (in part because they simply don't like Democrats), really should not be allowed off the hook that easily. Not with so much glaring evidence. Too much "QED" here.

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* As shown by a few movies by now, particularly "masculine" sports like boxing clearly are not just for men any more. As to this website, amusingly, Ron Darling -- the Mets analyst/former pitcher -- referenced Wikipedia during one of the playful back and forth among the SNY crew. OTOH, he did so respecting something more apt for Dictionary.com. Another somewhat ridiculous moment was a discussion of home movie viewing with their kids, Gary Cohen a fan of Mean Girls.

** Kill indeed. It's all about sex ... and you thought Monica (over 21) was a problem. BTW, yeah, Republicans have homosexuals too. They just cannot be as open about it, leading to distasteful consequences.

October Comes

And Also: I'm reading Without Apology: Girls, Women, and the Desire to Fight by Leah Hager Cohen (I read her years back respecting a stint teaching the deaf). Good subject, but Cohen (unlike that previous book) finds the need to use a bit too much purple prose and over the top emoting. It's a short book, and I feel like finishing it, but it is annoying too.

Ah, is it October already?

Time for playoff baseball and all the rest? As a NY resident, I had a "oh come on already" feel about the time, since both teams basically were assured some time ago. The Yanks had a bit of a lapse, but it did not take anywhere as long as last year to ensure a spot. In fact, even with all its injury problems, it ultimately played better than it did for a few years. Well, at least offensively. The pitching is more suspect and is the weak link. As to the Mets, fans have long been greedy -- the division seemed assured by mid-June. The amazing nature of it all over by mid-Summer. It's as if anything less than the World Series would be a failure! This from a team happy to be over .500 last year.*

Chief Justice Roberts' first full year as a Chief will start soon enough as well. Fittingly, I received my latest Cato Supreme Court Review in the mail. Looks pretty good though I will have to bear a John Yoo essay. Likewise, the Forward is by Roger Pilon, who despises the New Deal (ignoring all the libertarian aspects, such as various privacy rights, that grew out of it), and clearly has a Yoo-like view of executive power (especially over foreign affairs). IOW, I found his comments mostly crap, though I sort of do agree with his view of campaign finance (but it was not somehow invented in the mid-1970s).

Luckily, the opening essay is by Nadine Strossen (ACLU), and the other Hamdan essay is pro-liberty. The pending legislation is in large part a response to the opinion. On one level, it was expected and beneficial -- Congress authorized things, which was a major concern in the opinion. The problem though, Yoo/Pilon aside, is that they delegated too much power here, some of which they simply do not have to give. Cato generally is concerned with such over-delegation, and overall, is deeply concerned with the "war on terror." Generally, many of its non-authoritarian friendly sorts would agree Hamdan was a good thing ... legislation was not needed to overturn its force.

As I did in the Spring, I am taking some time off the Slate Fray (will continue here) during October, but I was sure to end with some final thoughts on the detainee bill. BTW, I agree that we must consistently reaffirm we are not dealing with faceless "detainees" here, but people. Anyway, one rejoinder is that "torture" is hard to define, at any rate the government did a fairly good job doing so, and cries of "torture" tend to be rather overblown. See this thread.

I don't quite find this as much of a dodge as some people, but don't find it too convincing given what is going on. There is no "clean hands" situation here. The "solution" is not clarity -- it does remove judicial oversight, give more power to the executive, and by some unclear measure remove basic rights from people who the executive etc. just cannot honestly admit often are mistreated, selected wrongly, and so forth ... by quite intentional procedures. As to clarity, I tend to agree with "Degme" that on some level it is present in the minds of those doing the torture, but it is harder to judge by third parties. But, nothing is crystal clear all the time -- the rub is how you judge things.

The path, suggested by D, is to define things so that there is a good margin of error safeguarding those handled; also, you need judicial oversight, and some incentive to be concerned, some incentive to restrain one's natural implications to act in a certain fashion. This includes enough openness so the general public and the Congress in particular can judge your actions. [No secret memoranda etc.] Overall, the message sent by this legislation is quite the opposite.

This is so even though just how bad it is can be open to some dispute. One assumes there is some wiggle room (is the "law of war" implied in the "enemy combatant" provisions? an implied constitutional limit on acting on citizens? some more judicial oversight that can be sneaked in? After all, Hamdan surprised some people). Thus, what the executive defines as violations of Geneva, or rather, the reduced version covered by the bill, is open to much discretion. [Such discretion is part of the fear -- look who we are dealing with.] You use what you have, even if it might be a somewhat weak thread.

There also are international concerns such as how our partner the Brits are supposed to act. As noted here, they are now in sort of a bind.

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* This year, two sets of teams are going to the last day knowing they will either lead their division (avoiding the NY team in the first round) or be a Wild Card team. Detroit, after dominating them all year, failed to beat KC twice, but given years of failure, probably feel like they are playing with house money either way. Still, be nice if they won the Central. If the Astros win, the Cards lose, the Cards lose a make-up game on Monday, and then lose a one game tie-breaker (at Houston) ... the Astros win the NL Central!