Charlie Wilson's War (Film)

And Also: I realize that the Giants must look toward the playoffs, but past experience suggests they just might get very far. So, fans can still care about them beating the Pats. And, implications from more than one WFAN host aside, I actually still remember (and care about) when they ended the Broncos perfect season, even if it was a decade ago. Ok?

A lot can be said about Charlie Wilson's War, at least, it can be discussed from various angles. An added tidbit arises from the assassination of Bhutto, since the execution of her father was referenced in the movie. Another more amusing reference was to investigations that involved Wilson from that enthusiastic prosecutor, Rudy Giuliani. Other tidbits ... unlike some, I think Julia Roberts does a good job as a rich conservative fundraiser, Tom Hanks really does look like the real deal, and West Wing fans might enjoy to know the guy behind that wrote the screenplay.

I have yet to read the actual book -- the film is no documentary, though the accounts so far suggest it is fairly accurate as such things go. The book is pretty long, as is the time period (the better part of a decade), so the movie can at best give you an overall feel of the situation. And, it does a good job -- given the limitations of a Hollywood motion picture -- in doing so from various angles. The human face, the dangers of mixing religion into the conflict and aid, the dangers of "winning" but not worrying about the aftermath, and so forth. It's a superior piece of work, though not quite definitely must see good.

The true nature of the conflict and "Charlie Wilson's War" was obviously greatly compressed, which should be kept in mind, but such is often the nature of the medium. Before watching the film, h/t BTC News, I read this piece. The article suggests two core problems, but it is unfair to suggest the film is a sham because of them ... in fact, I think the article exaggerates them. And, it bears repeating, any film is likely to have some comparable decision (or many) that is worthy of criticism without ruining the overall work.

And, the article -- cited by others as suggested by the h/t -- really is based on one quick scene involving the funding of the rebels. The scene suggests the funds (at least the funds and training involved at that time) would go to one particular group, who another group doesn't much like (a tribal issue expressed by an off-color joke). The article is upset at the implication of tribal divisions leading to an inability of the different groups to form a united government, but the movie simply did not do that with a brief reference. Furthermore, there are tribal splits ... heck, in a fashion, we have them as well. This is so even if the reference was put in to make some group that might want to send that message happy.

More troubling, the article suggests the scene papers over the fact that our funding of the rebels led to money and arms going to less than savvy sorts, leading to the Taliban and so forth. First off, the movie -- notable particularly for a somewhat light (e.g., Wilson's "jailbait" sexy staff members) movie that surely is meant to be feel good overall (Soviets lost etc.) -- ends on a dark note. The CIA agent tells CW a parable about how certain acts might or might not be a good thing, depending on what comes next. And, we know what came next, don't we?

In fact, a bit of thought will suggest where some of those Taliban arms came from. The movie also had a scene where Wilson and the CIA agent looks on uncomfortably while another member of Congress riles up the locals in part with religious imagery. So, Tom Hanks might have said something about not wanting to bring up 9/11, but the movie makes it somewhat hard to not think about the general events. And, the fact that at one time, funds would be focused on one group does not mean no funds or arms would go to others. In fact, that is a bit ridiculous, since that one group could not defeat the Soviets by themselves.

And, the scene was quick. The movie in fact did not go into the particulars -- aside from the fact that it would be channeled covertly (leading to the locals being less likely to associate it with the U.S.) through Pakistan -- on how the funds and arms would be delivered. The one scene might have pleased some group, as suggested by the piece, but it really does not stick in your mind to any degree. Much more was spent dealing with a Jewish arms dealer, including some discussions while a (Baptist) belly dancer kept an official busy. The particulars are important, but I disagree that the film should be deeply criticized for "tricking" us.

I'm sure the film could have shown some more depth in various ways, but that article was at least somewhat misleading in its criticism. In context, the film actually deserves some praise, though one-sided (something implied by the very title) major motion pictures should be taken with a grain of salt. As someone who watched me wanted to know, how much of this was true? Enough to make it worthwhile and thought provoking, was my response.

The issue of aftermath and consequences alone is worth the price of admission. But, we learn that daily anyway, I guess.

Merry Christmas!

Sunday Thoughts

And Also: More Paul stuff [h/t TPM] ... as to Abe, not only does it take at least two to tango on the war, he actually raised the issue of compensated emancipation and even border state leaders didn't bite, plus slavery in British West Indies wasn't quite the same as the American South. [More.] Krugman again attacks (the tone suggests the word is suitable) Obama, noting in part that campaign finance reform cannot be viewed simplistically -- unions are not quite corporations.

There are a lot of bad football teams out there as well as good ones with some problems, but it does make for some interesting and meaningful games to the very end. Week 16 was no different, though there was the usual ... Pats won (scored early, let Miami score once, didn't run up score), Jets lost (another game underlining they have a credible defense ... in a game the Titans had to win, the Jets lost 10-6 ... a blocked extra point and interception on third and goal (they gave up a field goal after a penalty opened up the shot for more) being the difference ... and the Falcons, Oakland an the Rams also showed why they have sucky records.

But, even after losing a key game in part because their veteran coach didn't realize you couldn't call back to back time outs (pushing a game winning field goal much closer), the Redskins beat the Vikings, meaning they in fact have a good shot at the playoffs. SF lost because Tampa Bay, in a game that mattered for positioning, couldn't get a late two point conversion. The Bengals, off nineteen second quarter points (thirteen on turnovers with about a minute left), threatened the Browns playoff shot, gaining some revenge for a game they lost by something like 50-45. The Giants, as noted, won, but were down 14-0 early, blew a shot to score at the goal line, and fumbled at the Bills 10. Rain and snow added to the fun. But, the Bills are suspect too, and gave some early Xmas gifts to the Giants' defense.

All in all, pretty fun, with next week having meaningful games too, including a couple playoff spots, a perfect record, and some positioning. BTW, I also mentioned that I got the audio for The Trial. I have listened to about ninety minutes and do not like early plot developments. It starts well with Joseph K. waking up to find out he is arrested, which the strangers who accost him (taking his breakfast, suggesting they give up his clothes, but later letting him go without incident so it's a good thing he didn't, etc.) and fail to tell him why exactly he is in trouble. Not that he should worry too much about it for now, mind you. Good beginning. But, then he suddenly -- rather too soon -- goes a bit off the edge. He acts strangely to his landlady and a lady tenant at his building.

And then, he rants at his first (apparently) official hearing, after they seem to think he is someone else. In fact, K. acts strangely beforehand. He is sent to a building for a hearing, it looks very strange, but for some reason he doesn't want to ask where to go. So he sets up this subterfuge of looking for some carpenter so that he can get a look inside the various rooms. Why exactly K. does something this stupid is unclear at this point. Likewise, since K. has already acted strangely, it hurts the flow of the plot. If someone ranted like this (and he does rant, including suggesting an official was giving signals to the crowd), it is totally natural for authorities to find him suspicious and not quite take him totally seriously. It is very well possible that there could be a mistake, a possibility they wanted some other guy, and a rational person would -- once at the hearing -- try to determine as much.

Pardon me for criticizing a classic, but it seems to me that it would be better if he was a bit more rational early on, find out that it doesn't really get him anyway, and thus slowly he goes mad at the absurdity of it all. Or, if the idea is that he eventually accepts absurdity as rational or at least the norm that one should just accept the best one can, that too does not require him to lash out in this fashion so early in the proceedings. But, in a 7.5 hour performance, again the narrator is quite good, K. is also almost halfway there by the 1.5 hour mark. It is like someone, before they even set foot in jail, ranting at a preliminary hearing after a somewhat upsetting experience with the police one morning at their apartment ... an experience stressful surely, but over early enough that you can still go to work.

On the DVD front, I checked out the special features for The Notebook. I really enjoyed this movie, even if it the plot is something of a corny "chick flick," but those things can be good if done right. I also enjoyed A Walk To Remember, as well as both books that the movies were based on [I listened to the audiobooks]. I did not listen to the whole commentary, especially since there are in fact two -- the director and the writer of the original book with an editor adding remarks for the "deleted scenes" feature. Both are interesting in their own fashion, the writer somewhat more pleasant of a listen. And, we learn some interesting things, like that the book in fact was sorta based on way the author's wives' grandparents met; the author meeting them when they were old and ailing long time lovers.

The movie is a must see because of the young leads (Ryan Gosling and Rachel McAdams, the latter having less chance to shine over recent years than the former) -- as my movie review book notes, they show the heat of young love without cynicism or "ironic distance." Hmm ... that sounds nice, but do you quite know what it means? If it means the characters play it direct and from the heart, sure, that works. James Garner and Gena Rowlands (in several of the director's dad's films) are no slouches either, but those two make the movie. As usual, it is important to have some good support, including the woman RG is with after WWII before the love of his life comes back. The actress, who apparently never did a film before, is very good in a small role. Anyway, good film.

Have a happy holiday ... the music for the morning -- Jane Monheit's Christmas album, "The Season."

Politics, Sports and The Dangers of No Margin For Error

And Also: Some person -- who read it in the original German -- suggested I made a bad analogy to The Trial. So, I borrowed the book on tape ... well, the first twenty minutes is pretty good, including the narration work. Meanwhile, the Bears helped Dallas get the #1 seed and Buffalo collapsed, letting NY (via a truly messy game) get in, and perhaps help Pats go 16-0.

The fact that some disagree, and do so strongly, with some of GG's remarks about Ron Paul (see yesterday) is only natural -- we all disagree sometimes. A critical mass, to further what end exactly is unclear, does agree upon some basic points. It is akin to those who note that those in our society agree on much more than we disagree, that is, about basics like the baseline rules of democracy, free speech and so on. Florida and Ohio was only possible (I retain my feeling Kerry lost Ohio, but enough occurred to be concerned either way) because of the closeness of the race overall. If Bush lost Florida by even five percent, it would have been much harder to push things over in his direction.

This underlines the problems with things being so close in Congress, since there is very little (in the Senate, none) margin for error. Life cannot work that way very well. Take yesterday's Cowboys/Carolina game, where Carolina's fourth QB (starter injured early, back-up too, Vinny Testaverde came in and was both iffy and hurt, leading to an undrafted guy to start the last two) did a quite credible job. But, the game arguably turned on two plays/calls -- a 4th and short early on that the Cowboys barely got (perhaps with a good spot) and a pass interference call that the announcers thought was a gimmee. This directly led to ten points. 20-13, Cowboys.

On the subject of sports, both people at Salon and some at the NY Daily News have current pieces questioning the value of the Mitchell Report. I wrote my immediate thoughts earlier, but I'm wiling to believe that the report was flawed and incomplete. Doubts and cynicism lingers. Bill Madden at the News btw referenced the integrity clause in Hall of Fame balloting. He notes if we want to toss it, let's not just do it sub silento. You know, all those who want to have Pete Rose, as if the integrity of the game really does not matter since he was such a great athlete. I personally still have this idea honor and integrity still mattes somewhat in the "national pastime," and if the integrity of the game is seriously violated, it should mean something.*

Mark Gruber has an timely piece highlighting the importance of not biting off more than one can chew as well as some of the compromises made over the year in the pursuit of beneficial ends. Consider the compromises made by FDR, including welcoming some undesirable elements into the "New Deal coalition." Populists including those from segregationist friendly areas and often rather racist elements from the North as well. Still, they agreed upon some basic things, and we benefited from the coalition. There is potential out there, with the right strategy and leadership, to go in a good direction. Consider a comment from Charlie Savage's piece on the candidates' view of executive power:

"It's fair to say that the Democrats, Senator McCain, and Representative Paul are united in supporting a reinvigoration of checks and balances and the reassertion of a meaningful congressional role in national security affairs," said Shane.**

There is reason for realistic optimism. But, we must be careful. Of course, there is differences on how to go about it -- thus my doubts about candidates others think are the best option. The devil is always in the details ... strategy important too.

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* It does matter if something is against the rules or not, though for some reason a lot of the coverage and analysis does not really clearly remind how they developed. For instance, at what time did steroids (or particular substances) clearly become against the rules? How did the rules change over the last decade, aside from the current punishments for failed testing?

I honestly am not really clear on the contours of this, but it seems rather important to clarify just what is at stake. It seems a basic question, as is the basic effects (which are at times referenced, but not too often) of the substances involved. Yet again basic questions are left to those -- few in number -- who have the wherewithal to research the question. [Insert journalism jeremiad.]

Also, how valid is it for Congress to have people come and testify in open hearings? Can they do this in any situation, no matter what the possible loss of reputation and livelihood? Rather open-ended power, even if justified. Cf. Watkins v. U.S. (and Whalen v. Roe, perhaps). Anyway, since Bush Administration officials are not involved, I guess testimony in open Congress is appropriate.

** The Q&A is interesting and providing such a summary -- in their own words too -- of candidate views is a wonderful resource. Given recent discussions, this interplay with Ron Paul -- the need for clarification itself of note -- is of particular interest:

8. Under what circumstances, if any, is the president, when operating overseas as commander-in-chief, free to disregard international human rights treaties that the Senate has ratified?

Well, he never has the right to violate any human rights, but because he should obey the constitution, not because of the international treaty. But so I would get to that point but not because of the treaty but because of the Constitution.

Well, but the Constitution only has force on US soil, right, so the question is what happens when he is operating overseas? Do these other instruments bind him if the Senate has ratified them?

If he's overseas and the treaty is in effect and would protect human rights -- see I keep thinking well we shouldn't be over there. So if we're there -- and I can't see myself being over there - well, okay, the answer would be that he would have to obey the treaty.

The first answer is accurate enough in a fashion -- human rights tend to be secured by the Constitution, but in various cases they might be clarified and strengthened (without abridging constitutional rules in the process) via treaties. And, constitutionally, treaties are the law of the land. This suggests Paul's focus on the dangers of federal power, even though from the start, some aspects of federal power was deemed fundamental -- it was the very point of a federal Constitution.

The second Q&A is also notable. The question has a false premise -- can a President enslave troops overseas? Obviously not. But, this "off American soil, carte blanche" fiction is a big problem these days. In fact, even Paul is somewhat iffy in another question as to habeas for those off U.S. soil, accepting it as to Gitmo, but unclear about other situations. BTW, some of the questions warrant short answers ... a clear "no" or "of course not" ... and Dodd's approaches are appreciated.

Progressive Favs Smackdown

And Also: The World's Fastest Indian (motorcycle, that is) was on TMC ... charming movie, Anthony Hopkins is great as usual, and the DVD is good too. The writer/director, who worked on the real deal a few decades ago, has a nice commentary. Meanwhile, I also watched Marie Antoinette -- the book looks good -- is a mixed bag. Nice to look at, well acted, but drops off about an hour in. BTW, is this right? Vinny isn't starting for Carolina tonight? Shoot ... would be nice to see him again.

In a past column, Paul Krugman worried that Sen. Obama's "middle way" was naive because there simply are some people who you cannot really compromise with, they are simply wrong. Given PK's views and personality, it makes sense (as one person noted ) for him to lean toward Edwards. Another progressive favorite (and former Air America regular) made his views on Obama known if anything more bluntly:

Should Obama hope to continue to enjoy his free ride, he should consult his old mentor Joe Lieberman, the senator from Connecticut who used to be a Democrat. Conservative commentators and right-wing media outlets always loved Lieberman for his willingness to echo their talking points on subjects such as school vouchers and Social Security privatization. When he agreed to join the Democratic ticket as Al Gore's running mate in 2000, the Weekly Standard and the National Review, among others, suddenly discovered how despicable Lieberman actually was. Having abandoned the Democrats altogether, he is now fully rehabilitated.

But Obama and his supporters must cherish no illusions about what will happen to him if he vanquishes Clinton. He will need the same kind of armor that she has worn proudly for years. What the right likes best about him is that he doesn't seem to own any.

The "no illusions" part is true enough but the "doesn't seem to own any" part is a cheap shot. The column focuses on the sneakiness and Clinton loathing of conservatives (JC wrote a book on their attempts to destroy Clinton in the '90s), but simply has nothing to back up that last point. Surely not enough to end a column on it. Meanwhile, another person I usually agree with (and also is sometimes on Air America), Glenn Greenwald, is on his over the top Ron Paul kick again. He wants to convince that he is only trying to focus on RP's stance on executive power and Iraq as well as his overall principled views, but why not focus on Dennis Kucinich then? He has all that plus believes in both the Fourteenth Amendment, the modern state and has much less baggage.

I think Ezra Klein has the better of the argument, but don't worry, the Pauliacs are on the case -- see the comments in both cases. This includes "pro-choice" sorts, see an early reply to today's GG's passionate (to be nice) latest who leans toward someone who wants states to ban abortions, even if a federal amendment is necessary to do so.* See also, the reply to EK's rejoinder today from a "liberal" who supports Ron Paul -- who caucuses with Republicans and is not even an "I" like Bernie Sanders -- even though he opposes much (including Social Security, which people like Atrios is upset at Obama for saying is in "crisis," and thus giving ammo to the other side) of what s/he stands for.

Unbalanced accounts like Glenn Greenwald, including the wounded replies to critics who apparently just do not understand what he is saying, helps such a myopic view. The answer to poor coverage, especially when so many see RP as a light in the wilderness (myopically or not), is not that. See even his "updates" to today's entry in which he references the "perceived flaws of Ron Paul" ... but, hey, do not read into that to suggest that it is quite arguable he doesn't have quite a lot of them! Noooo! That is not what GG is trying to say at all.

You just are missing the point. GG himself cites Paul's dubious views on certain issues to underline the fact he is not a knee-jerk Paul supporter. But, that comment underlines the problems with his posts, that have something to say, but does in a way worthy -- his ire notwithstanding -- of criticism.

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* RP, like another base favorite, Howard Dean, is a physician. The differences of the two on the issue suggests that alone does not decide a matter, but it has seriously affected Paul's opposition. OTOH, talk about "two pound" fetuses does not really justify banning abortion long before that point. Or, selectively supporting bans on one particular procedure, even when a women's health is involved.

And so on. Ron Paul's disrespect for privacy rights, see his support for DOMA, goes beyond abortion. This suggests -- see one GG comment today -- it is a bit off to talk about the "fetish" of supporting Roe as if the ruling is just about abortion, not privacy, equality (see Casey in particular), etc.

Baseball, Watergate, Dems, [Ron] Paul etc.

And Also: A U.S. District Court judge granted a preliminary injunction respecting a Florida law that prevents citizens from being registered if their names and Social Security or driver's license numbers on their registration applications do not match exactly the information in other government databases. This overinclusive "prove you are innocent" sort of thing gives one 2000 flashbacks.

Edward Lazarus' column on the Mitchell Report had this to say about those who questioned releasing the names of some involved:

Mitchell's report comes with no sanction attached, weakening the claims that criminal-law evidentiary rules and standards should have been used. He did not have the power to punish anyone. In fact, he called on baseball to refrain from handing out punishments, except perhaps in the most egregious cases. In these circumstances, what Mitchell owed to the accused players was an opportunity to confront the allegations leveled against them. And Mitchell offered exactly that: He gave every named athlete the opportunity to confront the evidence against them and to present their own evidence. Virtually to a person, the athletes declined to do so.

No sanction? Sounds like the Bush Administration. To be fair, there was some sanction, including lose of jobs (Gonzo, anyone?) as well as some actual criminal prosecutions (they are starting to add up, actually), and a list will suggest that the "Bush Crime Family" label by the former Air America host Mike Malloy is rather accurate in more ways than one. It just is that breadth of the problem makes relatively minor victories, and pretty late in the day at that, pretty underwhelming. Such is the net feeling after Dodd's threat to filibuster the telecommunications immunity bill (the disfavored bill, Intelligence Committee vs. Judiciary, actually has various other problems) has led to but a postponing of the fight to after the holidays.

Not quite Sen. Durbin saying that giving into the administration on occupation funding will provide a chance to avoid the matter -- while giving you know who a victory (Durbin didn't quite add that) -- to next May or June. Still, a bit lame. Rachel Maddow tonight went down the list of some things, including raising the minimum wage, ethics reform, energy reform and other matters -- even with filibusters -- that the Dems did manage. But, simply put, executive power and the occupation are THE issues of the day. The fact Dems managed to do something is appreciated, but sorry, people have the right to be pissed. One can say why it is happening -- "Democrats" don't control Congress or whatever, but that is just analysis.

[See recent columns of Glenn Greenwald and some of the others linked here to read about the immunity bill, how Dodd's move came from the grassroots and so forth ... the Durbin reference came from an AP story on the Dems giving in to funding without strings that I passed in my local paper today.]

Dodd's move is particularly notable since he has a history of playing by the gentlemen rules of the Senate, even though we are now led by scoundrels. Glenn Greenwald* noted the fact when posting an interview he had with Dodd -- he noted Dodd's heart was in the right place and all, but failed to realize just how inapt old rules of the game were under present conditions. Dodd himself admitted the problem with this path per his failure to filibuster the Military Commissions Act, which very well might have meant something since not too many over a filibuster proof majority voted for the measure. Dodd also has a pedigree here ... his dad was a Nuremberg prosecutor, but did not think the importance of final justice included depriving even them with basic safeguards. This included, apropos, a trial over a summary executive action.

But, still ... victories, especially showing that "we the people" matter, should be honored. See also, the real investigatory work of Rep. Waxman, who has a job to do -- a sort of ombudsman -- and does it so well that even some targets admit that he is fair. It is not his job to punish ... it is not his fault that there has been no credible impeachment efforts or more moves to provide proper consequences for the actions investigated. Waxman, however, puts things on the record. Consider Valerie Plame coming and testifying ... under oath ... what a concept!

The press also has this role, and sometimes actually does its job. For instance, Charles Savage has done yeoman work underlines the abuses of executive power. All those blogs that bash the "MSM" ... and Talking Points Memo et. al. suggests this is only true up to a point ... tend not to do original reporting. And, let us not kid ourselves that there was some golden age of reporting, at least for any long length of time. It's like those who becry the state of politics today in campaign donation laden land, ignoring the nastiness of past campaigns long before the 1980s. In a book on Woodward and Bernstein, we read how Woodward becried members of the press as "stenographers" while working on the Watergate story. Apparently, we have gone in full circle.

[The book is recommended; h/t in part to Feministing for encouraging the read.]

Those days also had a select committee to investigate the President. A perfect storm, however, was necessary -- a Democratic Congress, an unpopular President and a country that -- for various reasons -- was ready for the take-down (including Vietnam suggesting the perfidy of the executive). Cf. Iran Contra, which was quite impeachable, but in effect served as a backhanded pass to executive tyranny. And, we have some of the same clowns involved in the current mess, Congress -- again controlled by "Democrats" -- largely letting them off the hook.

But, the idea in part with that Ron was on his way out and all, and maybe cleaned house a bit as well. Apparently, the whiting out of impeachment from the Constitution as a serious possibility -- outside from the spare federal judge -- also is far from new.

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* GG is back on his defend Ron Paul kick today, attracting Pauliacs (see also, BTC News' unusually heavy comment stream here). He uses a bit of a strawman and/or easy to attack hyperbole on Paul's anti-abortion legality stance, using "pro-life" (see here for an idea why the quotes are probably advisable to some degree) Sen. Reid (not big friend of many of his readers btw) as evidence of the problems with single issue politics. But, a Senate Majority Leader simply does not compared in many ways -- least being the "first among equals" nature of the role -- than the POTUS.

GG favors Paul because of his anti-executive tyranny views and his own libertarian leanings. He also suggests the MSM does not properly address this anti-establishment candidate, but except for a recent post on Huckabee, is somewhat selective about that angle. And, he should be aware that (1) the fact RP focuses on having states ban abortion is not exactly prime for many people (2) did support various federal moves and his power of appointment [e.g., judges] / bully pulpit matters too and (3) people oppose him for various reasons, making it harder to elide past his pro-life views.

GG appears to have a blindspot here.

Jets Lose ... Miami Wins ... BF Breaks Another Record

The conditions made it -- fwiw -- not pathetic, but Chad (Clemens out early) and company still lost, a late reversal (adding insult to injury) clinching the deal. [Giants lost too, by more vs. an inferior team.] Miami stopped the Ravens from winning at the goal line, watched them miss a shot at winning in OT and won themselves. Justice would have been the Ravens beating the Pats too, keeping a "16" on one side of the ledger from both teams. Oh, that guy from Green Bay broke the passing record.

Mitchell Report: Part of the Solution? A Push in the Right Direction?

And Also: "We seek your leadership. But if for some reason you are not willing to lead, leave it to the rest of us. Please get out of the way." Yes, our representatives help us look like losers to the rest of the world yet again, this time on the issue of the UN climate change deal. TPM has more on the children we have "leading" us. Reality leads the U.S. to have to make some choices that leave a bit to be desired, but there is something to be said for doing so with a bit more finesse.

I don't really have too much (deep) to say about the Mitchell Report, except that it was important for an outsider (though some suggest his minority involvement in the Red Sox, small as it is, taints him) with such national and international prestige as George Mitchell to look into the matter. The report, which I have gotten a taste on from local sports radio and media coverage, surely isn't a complete overall study of the matter. The seventy or so names listed are stock fill with marginal players, and do not include some obvious ones like Bonds. OTOH, marginal players would be the sorts more likely to use them, to get the extra push. Several caught under the testing regime, for instance, tended to be more marginal players, and various minor leaguers wanted some edge to get to the majors.

But, it provides an official conclusion that there is a serious problem, even if it was set up as a sort of CYA move to avoid congressional action. BTW, reports that Congress will have hearings starting next month is troubling as Mitchell notes ... there should be more time to digest the report and provide a means to provide reasoned judgment. The holidays only complicate the time factor. Mitchell himself does not want the report to be used for payback or criminal charges. He sees it as a sort of truth commission, I guess, which is a useful way of going about it. A short interview given with the NY Daily News gives a flavor ... he comes off as someone you want to be a public servant, balanced, modest, experienced, and willing to make hard decisions that just might be wrong.

Helped by the fact that only Giambi (of the Yanks, and under pressure, in part because of his grand jury testimony) among active players willingly contacted them, the report is skewered to a few places per some key insiders who testified on the matter. This helps explain the number of NY players, though only a few of them really amount to much. There is also some conclusions based on the testimony of a key person, leading to an opening for players to deny. Clemens, the big fish here, seems to be taking that tack to start. Andy Pettite, the "good guy" [no sarcasm really ... hard to dislike the guy) many are probably the saddest about, admitted to taking a growth hormone for a couple days to help an injury.

Mike Lupica is not impressed. Likewise, an article on Pettite in today's Daily News is rather pointed. It starts with a reference to "bible toting Yankee Ace Andy Petite," later noting he wrote a book entitled "Strike Zone: Targeting a Life of Integrity & Purity," and spoke of his "pious" nature. A "HYPOCRITE!" (if not "LIAR!") undertone is not exactly an out there inference here. A fan favorite, the departing catcher of the Mets, Paul Lo Duca also was listed. I guess because he is on the way out, and has a reputation as a bit of a bad boy type (at least, mouthing off), there isn't much coverage on him around here. The list did have a few other key names, including Gagne, the once light's out closer with a weak year after an injury, who the Brewers -- suggesting the insanity these days -- picked up for $10m for a year contract.

I have a feeling that many fans will not be too impressed with the report -- such with the case for many calls to the WFAN local sports station -- unless something special in addition is done next season. The overall expectations probably should be modest -- seeing it as part of the solution, part of emphasizing that there is a problem, even when only part of the evidence is examined, with a "wall of silence" in place from the players. BTW, it is logical for the player's association to be suspicious, but Mitchell's advice to not use this as a club suggests they very might have overplayed their hand. Some cooperation could have done wonders, none blacking the reputations of much more than the small subset -- serious as it surely is -- of players who violated the rules.

We shall just have to wait and see. One top sports talk host warned that sports just might be getting too real ... the dark side of reality is invading what is supposed to be an outlet. Michael Vick. Murder of a beloved player. Sexual harassment against the Knicks. Steroids and human growth hormone. Cheating in cycling and the Olympics. Our shame, what is left of it after the cynicism sets in, is well placed. The fact that sports is also supposed to be a family entertainment, heck even a place for children to find role models (not a ridiculous idea ... school sports are supposed to be character building enterprises) only underlines the problem.

Is this the sort of thing -- just one of matter things out there* -- that led Carter to say we were suffering a bout of malaise?

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* I constantly passed, and finally took out, the book Oath Betrayed: Torture, Medical Complicity, and the War on Terror by Steven H. Miles M.D. It is one of those deals where I know the basics, but am provided with specifics to re-inforce them, and cement my general sentiments on the matter. It basically is a type of homework assignment. Fittingly, it is likely to lead to a lot of depression from readers, as long with some other emotions, one more way our current policy is poisoning us.

The text is under two hundred pages, well sourced (often with official documents), and powerful stuff. It not only looks at things from a somewhat different (medical) perspective, but provides a general overview of what happened as of early 2006 as well. This includes (bluntly) "torture" and criminal homicide, in various cases of people (not that this matters on a core level ... inhumane treatment is not justified if common criminals are involved) that simply did not do anything wrong. This fact is constantly elided over, ignoring blatant violations making it easier to enable the road to tyranny.

[The word to many seems hyperbole, including some alleged "originalists" whose gods thought the likes of taxes to assist religious institutions -- taxes which people could apply to the church of their choice in most instance -- were "tyranny." See also the list in the Declaration of Independence. The originalists role playing games, however, are quite creative, so they can ignore such things. And, self-righteously say they are "compelled" to do so.]

Kent Jones Goes Too

The latest in a bunch of moves that made Air America p- me off ... the "business decision" to fire Kent Jones from the Rachel Maddow (with the exception, up to a point, of Thom Hartman, the only full time host worth consistently listening to left on the station) Show. I was not at home, but let out a sigh when I heard the news earlier this week. Touching final goodbye last night -- the usual ending of the show with a Kent Jones report (and a "pet story") particularly fitting. What a lame move. The station, like the Democratic Party, yet again is seen as the enemy by the base. Charming.

NY Daily News Tidbits

And Also: A pet peeve is lax fact checking. I just opened up a book about efforts to help black laborers to read a reference to a favorite of mine, Edwards v. California. The law professor/author wrote how "the opinion" was written by Justice Jackson, Douglas writing a concurrence. In fact, Justice Jackson also wrote a (very quotable) concurrence. Justice Byrnes, who only wrote a few opinions anyway, wrote "the" opinion. Any ruling with a two word sentence ["There are."] is of some note.

Various things caught my eyes in today's NY Daily News ...

Court Stuff:" "Death Row dog free." A state appeals court ruling freed "Duke" from a shelter that he wrongly was held in for three years, a result of mistaken identity in a mauling attack. If the conviction was upheld, the dog would have been killed. Later, we read of the "slinky shrink" who allegedly slept with a incarcerated gang member ("improper therapy") "strutted into court yesterday in a miniskirt and go-go boots." She rejected a plea deal, which the article suggests means she thinks the evidence weak. OTOH, given her outfit, maybe she just is not too bright.

Also in dress related court news, a 19-year-old female "tottering on 4-inch black heels and wearing skintight slacks and a matching top," (ah, tabloid reporting) was released on bond pending her trial for alleged involvement in a hate crime. Her picture (top only, suggesting a restraint in dressing that apparently was not there) accompanied the article. It is not problem-free to include names of alleged (legally innocent) individuals in such sensitive crimes, but to include a picture in this case? Particularly, dubious.

Animated/Comics: The paper did not think much of the new Chipmunks movie, finding it not very funny and overall rather lame, but did have a funny typo: it listed the movie as "Alvin and The Chipmonks."

For Better or Worse had another well written story arc this week, this time involving Liz and his boyfriend's daughter, meeting the mother (the father has custody) in the mall. The cartoonist appears to be working somewhat part-time these days given all the classical strips (at times via flashbacks), but still provides great material. The Flying McCoys, which has an amusing strip enough times to be worth a look, has one today.

Sports: A convention of the Texas High School Coaches Association "could KO speech" ... entitled "My Vigorous Workout, How I Played So Long." The speaker? Roger Clemens. Sadly, the top Late Night hosts are out because of the writers' strike, but that sort of thing writes itself. More on the Jets/Pats coach fued ... snow is schedule, so maybe that 20 something line for the Pats won't be met. Sigh ... when losing by only 10 or so seems a bit too much to hope for, things are sorta bad, huh?

The Diamondbacks got Dan Haren, meaning there is one less replacement for Glavine out there for the Mets. ex-Met (and Cub) Cliff Floyd is going to the Devil Rays. Shawn Estes (best known as a Met for trying to hit Clemens in retaliation, but missing) and Glendon Rusch (another ex-Met and Cub) received minor league Padres contracts. GR was a gamer ... hope he does well.

TV: The NFL Network has a prime match-up ... Cincy at SF, the battle of the disappointing teams.* Miami has the lowly Ravens as perhaps their best shot at avoiding 0-16, but they end their year going against the Bengals. An excellent tearjerker (the young leads are very good) is on CBS tonight ... The Notebook (I reserved the commentary and special feature laden DVD). This leaves the chick network Oxygen with The Sweetest Thing (a bit of an ironic title), which I actually rented in a hotel once. Good to see Christiana Applegate, but sorry, not that good film.

[Connection: A character in The Notebook is named "Duke," which is also the name of the dog mentioned above.]

Hallmark has the latest in the "Love Comes Softly" series (based on the books; began well, later films with mostly different cast members, mixed bag), Love's Unfolding Dream, repeating earlier films as well. I'll end with a "this just to annoy me" moment. I went to tape something (it's on tomorrow too, so it isn't too bad) a couple days ago, and found out there was a problem with the signal. This happens sometimes with Dish Network when the weather is bad. The thing is that it appears only that channel was out. The channel? The Hallmark movie channel. The Hallmark channel, however, was fine.

I growled and watched Corner Gas on WGN. And, I will tape it tomorrow instead, unless something else goes wrong. Oh, and luckily I saw that the movie (The Devil's Arithmetic, which someone wants me to tape) was on. For some reason, it was not listed in the Dish Network television schedule.

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* I have seen ads for alcholic beverages on television for drinks other than lite beer, but that is the beverage favored on sports friendly times. More than one brand at that. That and "male enhancement" products. Do men with problems with their manhood watch a lot of football these days? Or, are these products so hard to sell that limited ad dollars needs to be focused on them?

I like my beer from the tap myself, but if I bought the stuff, lite would not be my option. If you drink enough beer for the calories or alcohol to matter, the difference shouldn't matter much anyway. We are not talking no-calorie beer here. [Update: And, what happens? There is a regular beer commercial during the football game ... at least NFL Network has them, I guess.]

Religious Tests

And Also: Sen. Reid helping [see Glenn Greenwald et. al.] the telecommunications immunity crowd is offensive, but where are all the Democratic presidential candidates (other than Dodd)? The candidates do oppose immunity, but we deserve some special move ala Dodd's filibuster campaign to underline just how bad things are going. The alternative is summer patriots like Sen. Graham. Dodd is right: "Leadership is demonstrated through action."

The Constitution prohibits any religious test for office. And while that proscribes only government action, the law is also meant to be a teacher. In the same way that civil rights laws established not just the legal but also the moral norm that one simply does not discriminate on the basis of race - changing the practice of one generation and the consciousness of the next - so the constitutional injunction against religious tests is meant to make citizens understand that such tests are profoundly un-American.

-- Charles Krauthammer

My Xmas* present to CK is to show that even he sometimes have something worthwhile to say, today's column overall worth reading. This includes his damning Mitt Romney for confusing the difference between reminding the religion has some role in public life (just ask Martin Luther King Jr.) and giving it a special favoritism. Some, even legal minds who wrote a book on the subject ["demanding the very kind of religious test oath that the Constitution explicitly forbids"], don't quite see the at times subtle difference.

But, even if it is not illegal, a de facto religious test is a bad idea. It is not bad to privately discriminate -- you can not marry someone because they are black or have blond hair. You can even not be their friend. Still, it is socially problematic -- surely the latter -- if you act in this fashion. Nonetheless, as Dr. Newdow noted (his latest can be listened to on C-SPAN on Saturday night at 7 P.M. EST or downloaded from the website), you are unlikely to be voted into office in most places if you are an atheist. Mitt Romney is aware that not being a Christian also is problematic.

[Update: The hearing in question was a Ninth Circuit hearing, Judge Reinhardt the top lib involved, challenging "In God We Trust" ... the motto and use on coinage. Newdow was quite good, but a previous Ninth Circuit precedent ... which he tried to avoid with Supreme Court precedent that obviously did not address the issue in particular (and included some dicta suggesting the practice is okay) ... might be an ready out for the panel.

Van Orden, the Texas Ten Commandments case [the other helped him, given it held the state could not selectively honor monotheism], suggests four justices oppose his stance with Justice Breyer's deciding vote going against him too ... this is the sort of alleged de minimis issue he can suggest isn't really divisive etc. enough to violate the First Amendment. Newdow is right on the general matter and attempts to suggest "God" isn't sectarian annoys -- religious choice involving God, or rather those who think mixing God and money in this fashion is bad, is a certain category of religious belief. It very well is "sectarian."

BTW, Newdow noted he too belongs to a "religion," including rituals and ceremony. One more vote for my broad definition of the term, I guess. Finally, there was the idea that the motto reflects our basis of rights in nature's God. First, many in this day of age think rights are based in human need and experience, not God per se. The developments since 1789 suggests the greater diversity. Second, the means used matters. Newdow himself noted that the motto alone, without the currency that provides personal effects, probably would not be something he himself could challenge in court successfully. But, like "under God" in the Pledge, the motto is often used in a way that involves each one of us, including those who not only disbelieve in God, but in mixing God and state in this fashion.

This doesn't mean he will win. But, it does mean he has a point.]

Religious belief, however, remains of some relevance. It is on some level hard to separate religious beliefs and moral and ethical concerns that clearly are relevant to public policy. Religion, to cite the last link, tends to be more than "worship, ritual and the answer to transcendent questions about the nature of God, life after death." It is some ways affects questions of policy. Just think of the sacraments -- matters of life and death and marriage are both "religious" in many ways, but public policy involves questions in both areas. It can negatively -- like other things -- affect the ability to govern. And, also interest group politics, as people from various areas of the country can relate.

The power of evangelicals in the Bush Administration has led to some troubling results, including on our policy as to contraceptives, and denying that religious faith had anything to do with the matter is dubious. I once mentioned my "concern" that the faith of some negatively affected policy. This led to a "gotcha" that I was a religious bigot. Said person, I dare say, would not think being concerned about certain Muslim beliefs was wrong. To ignore the dangers as much as the benefits of religion really belittles its power. This does religion no favors in the long run, really.

[Many books discuss how religion affects politics these days; two I found interesting are Kingdom Coming by Michelle Goldberg and God & Country by Monique El-Faizy. The second provides a more general discussion of evangelicals while the first with a subtitle "The Rise of Christian Nationalism" has a more political flavor. Other books like Middle Church by Bob Edgar and even Jimmy Carter's books, suggest religion can be a positive influence in political affairs. Sen. Obama surely thinks so.]

Various things factor in here. One is that it is often problematic when candidates make intimate matters of religious faith an important matter of their public campaign. A liberal might not be happy if someone promoted the idea that homosexual activity is bad, but s/he knows that it's protected conduct. The "bad" and "illegal" split is confused in this country, and the true consistent libertarian sort is hard to find (Ron Paul has supported some anti-abortion moves like a human life amendment).

They would not like if the person (or their religion) thought that either, but there is a difference between private faith and public advocacy. We all have some views that could not become public policy because of constitutional or other limitations. And, just because part of our religion includes something others might find troubling, it does not mean as a whole that is who we are ... or how we would govern. This starts to suggest where a line can be drawn. We should not stereotype and be wary of assuming religion is a total proxy for public policy, but it does matter, especially as part of a general mix of influences.

I linked to an essay by Prof. Marci Hamilton, a law professor who has written much on how religion has received too much favoritism, resulting in some horrible results such as looking the other way in abuse cases. Putting aside the fact that it was long been recognized that religious freedom does not mean religion trumps harm to minors etc. (e.g., Prince v. Massachusetts, 1944, involving underage labor and religious activity), she has a point, though sometimes promotes it in an unbalanced way. So, just because religion is somehow involved, the conversation should not cease.

Religion is a touchy issue for a reason, but as with equality generally, the test should be due care to avoid using stereotypical reasons to discriminate. We often, with cause, use religion as proxy for public policy. This suggests why public comments and such matter -- we should give people a benefit of a doubt, surely at least to some extent, but if they make it an issue, it is not our fault. Likewise, if their actions suggest their faith results in negative policy choices, we can note the fact. People do not act in a vacuum; religious faith has something to do with it, especially if we define the term broadly to include moral beliefs that go beyond generally accepted understandings of God and such.

Freedom of religion includes making religious choices, so it includes choosing not to have faith in God, or deciding the evidence is not there to do so. I have said in the past that I think "religion" includes a general overall stance on universal questions, the meaning of life and so forth, but some find this too broad. No matter, "religion" and public life includes not belonging to a recognized religious faith. And, moral beliefs overall factor into the debate, beliefs the are central foundations of public policy.**

It rankles a bit that certain progressive sorts rail against Romney and suggest that religion should not be an issue in politics, but do not note that other progressives constantly make shots at religious conservatives, ridiculing their faith. It is not just the policy choices, but those darn fundamentalists per se that are at issue. Ditto comments on the "Catholic Supreme Court" and how this you know will lead to conservative results. You mean like Lawrence v. Texas (written by a Catholic, following in the footsteps of another on that issue, William Brennan)?

Religion will have a place in politics, but it is one in which we have to tread carefully. On that issue, the House voted on "Recognizing the importance of Christmas and the Christian faith," the final vote: 372 (Yeas) 9 (Nays) 10 (Present) 40 (Not Voting). This is one of those bland things that most do not find fault with, though it used by others (including judges/justices) as justification for much more serious governmental establishments. After all, Presidents put forth days of prayer, thanksgiving proclamations, and the like.

And, the House officially announced it "recognizes the Christian faith as one of the great religions of the world." The resolution does talk about how "they" (Christians) view things, but is it really a good idea to single out Christianity this way? A handful did not think so, and probably a resolution without a few of the phrases found in this one would have been the better path. Or, just maybe, have a general resolution about the holiday season, recognizing the multitude of faiths as a whole. Will each get this treatment?

I think Justice Stevens handles things nicely here. Holiday reading along side of the "Night Before Christmas" and the second chapter of Luke, perhaps?

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* I used "Kafka" in a discussion of the procedures used for prisoners in Gitmo and elsewhere and one person suggested (having read it in the original German or whatever) that I didn't really understand the point of the book. Uh huh. Allusions of that sort do tend to be used loosely -- Oedipus, after all, did not know he was married to his mother or that he killed his father at the time. So, the "Oedipus complex" is a bit of misnomer. And, "Xmas" really is not a way to provide a secular word for "Christmas" since the "X" is but an abbreviation ala the Greek letter for "Christ" that in point of fact keeps the "Christ" in "Christmas."

** When Mitt Romney said that freedom requires religion, religion requires freedom, the ire of some (including Krauthammer) arose from the fact that he probably meant religion as in faith in a supernatural force of some kind.

And, many in the days of the First Amendment did think that sort of religion was required, since the law can only do so much, the rest lies in the goodness of the citizenry. They defined "religion" as "[v]irtue, as founded upon reverence of God, and expectation of future rewards and punishments." [See Stevens opinion] Some thought government needed to be involved, thus fearing Jefferson's separatist views. But, even without government, many still thought "religion" was fundamental.

Since most have some sort of faith in God that guides their life, it is fundamental. And, for those who do not, they have something that guides their life, something above the usual, that is on some level of "God," and that too is important. But, do the people Romney wants to reach want to be that inclusive?

A Bit of Spine

Two Republicans (Specter/Grassley) actually showed a bit of principle by voting to approve contempt resolutions against Karl Rove and White House chief of staff Josh Bolten for failing to comply with subpoenas from the U.S. Attorney firings probe. Time for the matter to go to the full Senate (and House as to Miers and Bolten). The fact this, which the betting person would suggest is likely to amount to not much, is notable is sad. OTOH, h/t Glenn Greenwald, the House did give Christians their props. Mitt Romney should be happy.

Some Guideline Guidance

And Also: A snapshot that suggests how things go matter. A dog dies [not mine], a death not too surprising given her health and age. But, the location and timing of the death led to problems. The death sad, but more easily accepted than the complications (purposely left unsaid here). You can accept, if with some unease, much, but sometimes how it goes down rankles. And, at times, this complicates the acceptance, which in another situation would have been much easier.

First, your return to shore was not part of our negotiations nor our agreement so I must do nothing. And secondly, you must be a pirate for the pirate's code to apply and you're not. And thirdly, the code is more what you'd call "guidelines" than actual rules. Welcome aboard the Black Pearl, Miss Turner.

-- Pirates of the Caribbean

A bit more on the recent Supreme Court decisions. The issue at hand can be said to be unintended consequences. In the 1980s, with an assist from Stephen Breyer, Congress decided to set up a federal sentencing commission "with power to promulgate binding sentencing guidelines establishing a range of determinate sentences for all categories of federal offenses and defendants according to specific and detailed factors." [To quote an opinion that upheld the institution, Scalia alone dissenting.]

This was thought to be a means to provide a fairer means of sentencing, both more rational and less likely to be arbitrary in part depending on the defendant (which can have racial implications, suggesting why some liberals liked the idea).* Meanwhile, the drug epidemic had a new evil -- crack cocaine. Again with some support from liberals (if less of them), crack was deemed so dangerous that it warranted a 100-1 ratio (based on weight) when applying punishment as compared to powder cocaine, which did not have paltry punishments connected to it either. This leads to a three to six times greater sentence. To quote the recent ruling:

Congress apparently believed that crack was significantly more dangerous than powder cocaine in that: (1) crack was highly addictive; (2) crack users and dealers were more likely to be violent than users and dealers of other drugs; (3) crack was more harmful to users than powder, particularly for children who had been exposed by their mothers’ drug use during pregnancy; (4) crack use was especially prevalent among teenagers; and (5) crack’s potency and low cost were making it increasingly popular.

The sentencing guidelines system, as summarized in this opinion by Souter from last year's Rita ruling, led to various problems. One problem had more to do with the corresponding use of mandated sentences that in various instances (see crack cocaine) led to unjust results. Thus, the crack cocaine ruling amounted to a difference of 15 and 19 years, given mandated sentences, suggesting a core problem is not even addressed by the ruling. And, it is not even drugs per se -- the companion case involved Ecstasy and the statute (if not the guidelines -- which suggested 30 to 37 months) left open probation. A sentence the Supremes held as reasonable. Well, maybe under its sentencing jurisprudence, but probably not in a big picture way.

Another issue was that the guidelines often relied on various "factors" that judges decided, pursuant to weaker standards of proof, on their own. IOW, though a jury might convict a person for "x," said person might be liable for x+1 based on facts solely decided on by judges. And, this could mean a much higher sentence. Sentences that district judges often had little wiggle room in practice in handing down, since going beyond the guidelines left them open to reversal. In an rather ironic case (involving Rodney King's attackers), the Supremes did caution some discretion, but the net result tended to be restraint.

This was after all a goal, but it did feel to many that sentencing judges could not do their jobs -- a prime one fitting a sentence to an individual offender, something no mathematical scheduling formula could always do with precision. Meanwhile, the crack vs. cocaine discrepancy was deemed a bad idea too. The Sentencing Commission itself held that crack just wasn't that more harmful, the policy tended to penalize low level dealers more than big guns, and simply looked bad (especially since it disproportionately affected minorities). [Again, the Supremes summarized the matter in yesterday's ruling.] In fact, after the ruling, the Sentencing Commission retroactively reduced the guidelines by about seventeen percent. [See this article.]**

So, to cut to the chase, the Supremes held that judges could not sentence a defendant to a term higher than facts [except a previous conviction] decided by the jury would allow. A trick here is that many crimes have a range of punishment to pick from, so in practice, the judge very well might still be deciding facts on his/her own. Another wrinkle complicated things. When the Supremes decided the matter as to federal sentencing, a majority (5-4) decided that if judges could not decide "factors" on their own, federal sentencing guidelines had to be voluntary. But, the district court had to be "reasonable" about their use. FYI, Justice Breyer decided this, after noting that he didn't agree with disallowing judges to decide various facts on their own. So, I think it's really his revenge, honestly.

The latest rulings basically said "reasonable" is a pretty low bar, even if an earlier ruling said that if the district court basically assumed the guidelines were fine as a general matter that too was probably "reasonable" too. One can go on, but simply put, this has led to a lot of confusion and arguably nullifies a major point of the sentencing law behind the guidelines. Stevens thought so too, but joined in after awhile to stay loyal to precedent as did Scalia. Thomas, Alito and Souter, not so much. Souter made a sound point in the latest round:

I continue to think that the best resolution of the tension between substantial consistency throughout the system and the right of jury trial would be a new Act of Congress: reestablishing a statutory system of mandatory sentencing guidelines (though not identical to the original in all points of detail), but providing for jury findings of all facts necessary to set the upper range of sentencing discretion.

Expecting this Congress to do something this sensible is probably asking too much, so basically we have a regime now that appears to give district court judges broad discretion [the footnote below suggests the various objectives of sentencing are open-ended enough that "reasonable" is a low test, especially if probation when three years is suggested does the job], if they want it. If not, they can still let the guidelines guide them. Mandatory sentences in various cases will still lead to cruel results, but often enough there will be a lot of options to pick from.

And, this is just a tip of the iceberg discussion, but the broad discretion given to district court judges appears to suggest the Supremes thinks things are a bit messy as well. A "let district court handle it, we are done with this issue" flavor seems to be there. Thomas might be right this has a bit too much policy to it, Alito that so much discretion very well might ignore the policy behind certain statutory sentences, and Souter that the "solution" (which was a split the baby deal anyway that apparently only Justice Ginsburg was completely happy about) leaves something to be desired.

[Update: I made this comment because of the split here, but CJ Roberts was not on the Court (nor was Alito, but he dissented this time around, underlining his concerns), and concurred without comment here. BTW, Scalia had a pretty dry concurrence, showing sometimes his um wit is kept in check. His pal Ginsburg showed a bit of it in the third ruling, starting her concurrence thusly: "It is better to receive than to give, the Court holds today, at least when the subject is guns."]

But, c'est la vie people.

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* To quote a summary: "Congress set forth a guideline system to be personable for the specific case and placed 11 factors to consider when sentencing: grade of offense, aggravating circumstances, nature and degree of harm, community view, public concern, deterrent effect, current incidence. Another 11 factors were established to summarize the defendant: age, education, vocational skills, mental and emotional condition, physical condition, previous employment, family ties and responsibilities, community ties, role in the offense, criminal history, and degree of dependence upon crime for livelihood. Congress prohibited the Commission from addressing: race, sex, national origin, creed, and socioeconomic status."

** The Administration was -- shocker -- against this move. The mandatory sentences remain, so we are talking about a couple years, eight instead of ten years, let's say. And, often enough, non-violent offenders. This is simply not that big of a deal, honestly, and accepted here by a commission 7-0 with support of federal judges. But, knee jerk get tough on crime tactics are required, I guess.

Supreme Court Watch

Interesting federal sentencing guideline cases, including one that allows judges to temper the crack/powder discrepancy (100 to 1), summarizing the issue (including reasons for the difference and how later it was deemed too much) fairly well. Each ruling was 7-2, Scalia supporting precedent, Souter ideally wanting Congress to re-legislate given the new Booker rule, and Thomas/Alito dissenting. The concurrences and dissents overall are telling -- discretion of this sort might be a good idea, but it's somewhat dubious statutory construction. Another ruling was unanimous, but Ginsburg had a cute (and telling) concurrence.

No excuses

The Speech and Debate Clause protects members of Congress who discuss executive wrongdoing on the floor. There are means to avoid violating oaths/affirmation of secrecy. And, losing the privilege of viewing classified info or an ethical violation doesn't justify aiding and abetting of this sort of thing. There are Dem/Rep/Bush Dog differences (see Glenn Greenwald link too) but making it harder to show them -- especially for those who want to ignore them for various reasons -- well, no good excuse for that either.

Giants Won. Miami and Jets Lost. Pats Won.

Eagles almost tied it at the buzzer with a 57yd field goal. All about right. And, per the usual blogs, more Dem enabling. Oh wait, are the Jets trying an onside kick for the fifth time (one for three, one do over) in the final three minutes? No, the game is over. Still lost, but amusing.

Juno: Another Pro-Life Movie

And Also: I put some new books on the side panel. Journey to a Revolution -- from someone who visited the scene as a student -- by Michael Korba provides an interesting look at the failed Hungarian revolution against Russian control in 1956. It occurred at the same time as the Suez Crisis, important in its own sphere and coming at a bad time for the Hungarians since attention was taken off the Russians, both well worth remembering, even if many have heard about neither. 12/7 anyone? Ring any bells?

[I did not see the movie discussed below, and coverage and previews only takes you so far. So, take my comments with a grain of salt, but I think, they are still probably basically sound. To the degree many do not see a lot of the films whose overall flavor I discuss, the message I take out of the coverage is useful on its own as well.]

Juno is the third in an unplanned movie trilogy, the others being Waitress and Knocked Up, where a girl accidentally gets pregnant and grows into a heroine by rejecting abortion as a quick solution. Social conservatives attempting to break through in movies have not yet mastered the art of getting our point across without coming off preachy. But it's fascinating to watch the Hollywood and Indie crowd handle one of our premises pretty much the way we'd like it handled.

-- Jill Stanek [of "Pro-life Pulse"]

I have long been interested in abortion, in particular Roe v. Wade, because of the many issues that the issue raises. Issues that are deep and profound. The general stance of the country appears to be pro-choice with concerns, an uncomfortable pro-choice in various ways. But, push comes to shove, a clear majority knows situations -- sometimes only when they occur -- where they accept abortion as a legitimate choice. This is true even if they would not make that particular choice themselves. I know such a person, who would not be able to make the choice herself in most situations, but firmly believes it is the choice of the woman involved.

It therefore annoys me, though I recognize facing the issue can be uncomfortable to the viewer, that the issue is so rarely addressed in fiction. Fox News (seriously*) had a documentary that credibly provided a balanced look at the subject, the complexities of the matter in real life. As with Media Matters et. al. that underline that the "liberal media" is not quite liberal enough in some ways, it turns out that Hollywood and yes, indie world, is less balanced. Millions have aborted since Roe, but it is rare that the issue is raised, surely not as a major story point. This includes in cases where many women seriously consider and/or actually do have abortion. As in other situation, this colors how we treat the issue, in real ways even it is hard to quantify.

The opening quote makes a telling point. The review is even more telling, gleefully so in a few cases. Now, I really enjoyed Waitress (the director sadly was brutally murdered for what amounted to trivial reasons, the murderer setting it up to look like a suicide), and fully recommend seeing the movie. And, the idea that an abused wife from the deep South would believe that an unwanted pregnancy -- one she hated to have and by a brute she hates just as much -- was something she had to bear is fully believable. We are talking about a conservative culture, even if it is wrong to simplify all members as backward reprobates.** It also was required for the story that she stay pregnant.

But, if even a few movies portrayed someone who had an abortion in that situation, maybe I would feel a bit better. Examples probably can be listed, but I keep track of films pretty regularly. And, I simply am not aware of too many at all. Abortion might be a decision made, but these films are about having children in various cases where pro-choice people would have in mind when wanting to keep the option open. Bad marriages. A one night stand with a dweeb. A one and pregnant (an anti-sex subtext here is not too hard to imagine) teenage pregnancy. In this movie, abortion is seriously raised, but so far from my reading it raised to be rejected in a somewhat crude fashion.

Again, fine enough that the girl here decides it is not for her. Happens. The reverse does too, however. Juno -- starring the girl who was quite good in Hard Candy -- had received good reviews in part because of the mature treatment of the characters. Smart and supportive parents, flawed but promising wannabe parents who wish to adopt and complex lead that isn't as smart as she thinks, but is smart and complex enough to admire. So, the movie standing alone is worthy of respect, and if you want to add that it has a pro-life aspect to it, fine enough for me. Stereotypes aside, there is more moral and religious content out there than some are willing to give movies and television credit.

Thus, concern from the likes of Mitt Romney [and, in a fashion, Barack Obama too] that faith is seriously threatened these days in the public sphere is dubious. Nor is the pro-life side, if the unbalanced treatment of the issue is any evidence. This underlines how things can be a bit different than it at first might seem -- cf. the small minority of counties with an abortion clinic with the fact it is legal nation-wide. Pro-choice in form, but not quite at substance, the film world is a bit less pro-choice as one might think.

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* I did not see the documentary, unfortunately, but my local paper gave it a respectable review. The reviewer took a fairly neutral stance on the issue itself, as I recall, but overall thought it a good try (two and a half stars out of four, perhaps). As the link suggests, the doc is open to criticism, but lots of stuff is. If we particularly take the venue into consideration, it is more than we might expect for sure.

** If the regional angle doesn't totally do it for you, other reasons for her simply not taking abortion as a credible option can be suggested. I did not see Knocked-Up, but coverage suggested that comedy with less of an edge (and much less feminist in various ways) didn't really raise it at all. Not very credible, even if plot-wise, it would have been inappropriate.

Whatcha Going To Do About It?

As Glenn Greenwald noted, the destruction of a video to cover-up torture and obstruct justice as a side benefit, is not new. Neither is there being no real consequences. The latest bit involving CIA and detainees just fits a pattern. Will anything but noise be the result? If not, cynicism is quite appropriate. [I'd add that lack of action not only adds to the propaganda (or worse) of actual terrorists but hinders those who realize that some secrecy -- by those who use their power wisely -- is needed, including in Intel committees in Congress.]

Third Time's The Charm?

And Also: Mitt Romney apparently is no JFK, though some have compared him to John F. Kerry. At least, if his "religious speech" is any proof. No shock there. Now, in the past, I said "religion" should be understood broadly, but I don't think his argument that it's fundamental to being an American is meant to include those who find life's meaning outside of what your average Republican faithful thinks about the term.

The never-ending story, oh I mean detainee cases, continue. See here and here for transcripts and audio. And, here for a flavor of the analysis. Emily Bazelon also had an article on the government's (mis)use of history. For the latter, I had these remarks on the Slate fray:
Various briefs underline that history is not on the side of the administration is different respects. But, this quote [from EB's article] suggests a more telling point:

Finally, the retired officers point out that the stripped-down nature of the CSRTs—defendants also aren't allowed to have lawyers, and in another contradiction of Article 5, the panels are instructed to presume that the government's evidence is "genuine and accurate"—is far less justified because none of the procedures are about battlefield sorting. In the past, the 190-8 tribunals had to operate in the midst of armed conflict, for example in Vietnam. The CSRTs are assessing, with no huge urgency, the status of people who have been held for years and are far removed from any theater of war. Shouldn't the CSRTs be more careful, not less?

Simply put, "history" has not really provided an adequate precedent to what is going on here. Amusingly, 9/11 sometimes supposedly "changed everything," except here. [History, as the Brits determined, also taught us not to use the fruits of torture in court. Also, something about not starting land wars in Asia.] Luckily, habeas corpus and constitutional principles overall (particularly due process of law, also relevant here ... even without habeas, "persons" should have some security against arbitrary process when held in areas under U.S. control ... or can we set up slave camps?) are not set in 1789 or even 1942 stone.

Procedures develop over time based on the wisdom and felt necessities of history. It is asinine to ignore the special nature of this conflict. This is underlined by the lack of "POWs" here (who can be released at the end of hostilities and are innocent of any crime), people quite often not taken off the battlefield with guns in their hands, though some talk as if that is what happened.

And yet the retired officers conclude, "Taken together, these differences show that CSRT proceedings are little more than a facade, without even the substantive protections that ensure compliance with Article 5 of the Geneva Conventions and that invest 190-8 tribunals with legitimacy in the eyes of the world." [EB]

As one human rights attorney notes, there is a Kafka-esque flavor here:

the CSRTs are instructed to ask whether the detainee is "still" an enemy combatant, not whether he ever merited the label in the first place. And in a bizarre formulation, though one that is perfectly characteristic of the CSRTs' approach, any detainee who manages to convince his panel that he is being wrongly held is deemed "no longer" an enemy combatant, rather than simply "not" an enemy combatant.

Reading The Trial also might be useful given "Detainees expressed particular frustration at not being informed of the source of the testimony against them."

One amici brief in this case was written by Israelis reminding that they manage to deal with their much more at home threat without deprival of a fair hearing in court akin to what is happening here. The Brits in the Rasul case also reminded us that it is good to learn from history, in part their less than ideal treatment of the Irish during "The Troubles."

Some wish to argue ala Prof. John Yoo that the Framers wanted the executive to be like George III. So, history can be twisted. But, we can learn from history too and it is an ever developing thing. So, even accepting their slanted view, I say "so?" We have moved on from the past and are in the 21st Century, one in which the policy of the administration, assisted by congressional legislation* is unjust.

And, not acceptable under correct standards of the law of war, international law and justice, habeas corpus, due process and so on.

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* Sen. Specter voted for the deprivation of habeas corpus after saying it was a horrible thing to do. Now he signed on to a brief trying to undo what he helped to promote. Neat trick.

Enchanted x 2

And Also: I updated the blogroll a bit, including adding an interesting looking blog on religious developments.

I have seen the wrong half of two Giants games. The first half of the Giants/Eagles game (second edition) wasn't always pretty, but it ended on a decent 17 all note. And, thereafter, they fell apart. This time, after the Jets (unfavored) finished off the Dolphins with much time to spare (40-13), the Giants struggled vs. the Bears. Even after I left to see Enchanted, they went down 16-7. The late comeback needs to be caught on NFL Network replay. [Games aren't listed yet on my on t.v. directory, but this should be one of them]*

Meanwhile, I'm no fan of the loser Ravens. They beat the Giants in the Super Bowl, helped by a questionable call (yeah, they beat them good, but the call was a turning point). They also -- in a game I actually travelled to see -- beat the Jets to help clinch their losing season. The Jets that year (under that old QB, Vinny T. ... wonder what happened to him) did self-destruct in various ways, but the Ravens helped. And, they are known to have an attitude problem, partially from their defense minded nature that at times looks like bullying.

But, I don't like NE more -- I'm tired of them; once, I actually rooted for them vs. St. Louis, but the bloom is gone. It's time for them to lose a damn game. The Ravens, the second team in the row favored to lose by about 20, did the Eagles one better -- they were actually AHEAD late. 24-20. Now, the Pats had time outs, and getting the ball back would not necessarily end the game. But, it would have been close. Especially, after a second chance by penalty still made it fourth and medium in the red zone. Holding! First and goal! TD! Desperation toss stops at the 2.** The [expletive deleted] win again.

Way to choke! Now, it's up to Pittsburgh. [The last game is vs. the Giants, who hopefully will not be playing for anything much. They have a credible shot, but I rather not put my trust in them. I know them a bit too well.] The odds makers should learn -- at least until the Jets and Miami play them -- and NE will want to finally not have to bite their nails on the sideline late. If they actually do that any more, especially after the last two games. OTOH, the Steelers actually offensively (their defense, I don't know, but these two games should give them ideas) have a shot. But, they too have been known to choke ... admittedly, against bad teams. Grrr.

Anyway, Enchanted, which I talked about here before watching, is a charming movie. I especially liked the music numbers -- both the animated one and the two life action versions. The story of a fairy tale princess coming to NYC has a great lead in Amy Adams, a playful tone that pretty much holds up to the end (the serious moments mostly work too) and the criticism here about the bit of consumerism is well answered by the comments at the end of that article. See also my comments in the previous link; as to three year old brides, another comment rightly pointed out the example of first communion veils.

The movie does have a few lulls and Patrick Dempsey (playing his serious minded lawyer type a bit too well -- he is simply dull) and Susan Sarandon (evil stepmother; the inconvenient "other woman" has a happy ending here, but the evil stepmother is treated rather blandly by the numbers) do not (or are not given much to) do much with their roles. One review notes the first thirty minutes (much spent in the animated world) is where much of the energy lies -- since the second music number comes after that, I think this isn't quite right on that point alone. Anyway, overall it's a charming movie, and a nice respite from some more serious fare.

Some might get a bit disgusted (as the song itself said) "vermin" helping Giselle to clean the apartment, but hey, there were only some roaches here. Cf. Joe's Apartment. (The movie!)

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* The way to win in the NFC is to play decently and have shades of superior effort even in a ten minute burst -- helps to have a good defense as well, which the Giants do have. Heck, even the Green Bay back-up had a credible shot until late in the 4th Quarter. Thus, either the Cardinals (is this the game we show up or the game we don't?) or Vikings (it's Thanksgiving, let's suddenly go on a run!) will probably get the last Wild Card spot.

** It is almost silly to say much about a :45 drive, pushed back by unsportmanlike penalty calls by the aggravated Ravens defense, but it might have been better to somehow make the desperation toss before the time out. It is true that they sometimes are intercepted -- end of game -- but if not, they do sometimes get you close enough to the goal line to hope.

First Snow Here ... Miami Lose Again

"a matter of analytical accouchement than precedential accretion"

And Also: The idea that requiring the Yanks give up Phil Hughes in a trade for Santana is somehow debatable seems silly -- the Twins are giving up an elite pitcher. Getting a mostly untested Ian Hughes in return does not seem enough, does it? Hughes has been only somewhat tested as it is, and Santana is still quite young. Meanwhile, not too upset about the Milledge deal. The GM noted teams weren't really interested in him as to obtaining top pitching and the like. And, he hasn't shown much yet. The Mets also got two decent ML players in return. Maybe, he will be great in the future. Who knows? Give me a good starter and reliever, that's my biggest concern.

We confront here the facially anomalous request that we approve state confiscation of a substance which is legal in the circumstances under which it was possessed. This request is terra incognita, as will be most of the many confusing aspects of the current tension between California marijuana laws and those of the federal government. Our conclusions are therefore more a matter of analytical accouchement than precedential accretion. But we are convinced by the Attorney General’s argument that governmental subdivisions of the state are bound by the state’s laws in this instance and must return materials the state considers legally possessed. We are persuaded due process will allow nothing less. Accordingly, we deny the City’s petition.

Interesting California case flagged by my weekly Findlaw listing of cases received by its useful mailing lists. The "analytical accouchement than precedential accretion" bit called to mind the much riduculed "peneumbra" and "emanations" bit from Griswold, even if its basic principle (a true security of constitutional rights includes security of things not expressly listed, just like an outlying fence protects a home) is sound. It is almost hard to believe that wasn't used for some verbal effect.

But, aside from that, the case itself puts forth an important principle of federalism. It underlines that concept is not just some conservative excuse for backward thinking, though it is quite true that the consistent federalist tends to be hard to find. (Some want to use it for liberal ends -- consider Justice Brennan citing the idea of state constitutions of broader reach than the more conservative views of the post-Warren Supreme Court -- but often not when conservative results are likely.) As noted here:

By complying with the trial court’s order, the Garden Grove police will actually be facilitating a primary principle of federalism, which is to allow the states to innovate in areas bearing on the health and well-being of their citizens.

The case involved a motorist in California involved a traffic violation after which a small amount of marijuana was found in his possession. This was seized, but it later it was found that he was authorized by state law to have it for medicinal reasons. The police did not want to give it back to him because federal law does not allow such an exception. But, especially because its claim of concern of liability was unlikely in practice (immunity tends to apply), this was not controlling.*

States do not have a general obligation to enforce federal law that does not particularly "preempt" state allowance of the conduct in question. If I assault someone in a post office, the state in which this crime takes place might very well in various ways assist the feds in catching and prosecuting me. For instance, perhaps if I am seen at a certain location, and state authorities in some matter learns about it. However, the state is under no obligation to help, or seize evidence to bring me to justice. Past cases also prohibits the feds from forcing them to do so (e.g., Printz v. U.S.," commandeering"). As the court here noted: "The California courts long ago recognized that state courts do not enforce the federal criminal statutes."

States are not just subdivisions of the federal government akin to counties in states, which themselves often are given broad discretion. The principle is particularly important when dealing with disputed points. This was seen in the slavery context. Prigg v. Pennsylvania held states could not be forced to assist in the return of fugitive slaves, leading to the Compromise of 1850 in part putting in place a federal regime, involving federal commissioners. Ditto in more recent times, including the regulation of medicine (thus the federal "partial birth" abortion was targeted in the recent Cato Supreme Court Review collection on federalist grounds).

It is quite true that Gonzales v. Raich (dubiously) upheld the right of the federal government to arrest the person in question. The opinion here cited Justice Thomas' dissent to augment how the actions here had "no impact" on such enforcement. True or not, the majority thought differently. It might be not "likely," but federal prosecution for small possession is possible. The case was after all about the right to own small amounts of marijuana for medicinal use. This was deemed to affect interstate commerce enough to come within congressional power. So, if the California court is right here, the reason has to be at least somewhat broader.

Simply put, if the feds want to enforce their dubious policy, they have to do so without expecting police officials in more friendly states to help them. States might very well on their own decide not to allow medicinal marijuana in part because they figure federal policy would make it hazardous. [In practice, without local assistance, law enforced from afar is much weaker. But, in various cases, it has bite. Angela Raich found that out as did other unfortunates.] Or, the feds might use the power of the purse or some other means to encourage such involvement.

All the same, states can still not enable various federal policies they oppose. To cite Justice Brandeis, they can be laboratories. Such discretion might in various ways not be free of restraint. The federal government has broad powers that touch upon many local matters. But quite often locals have real discretion, especially as applied to everyday effect. And, as a result, can call attention to and limit the harm (in some cases, the benefits) of controversial policies.

"By complying with the trial court’s order, the Garden Grove police will actually be facilitating a primary principle of federalism, which is to allow the states to innovate in areas bearing on the health and well-being of their citizens."

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* The fact that the police was probably not going to be liable made the very standing of local authorities (the state and local authorities were on separate sides here; cf: Romer v. Evans, involving a more conservative state policy as to homosexuals after local areas put into place a more liberal policy). Nonetheless, though some dispute over the proper resolution over the issue was cited, the court took a pragmatic stance here. The matter was important and "here it appears quite likely the City will not be able to obtain judicial review of the trial court’s order unless it is afforded standing in this proceeding."

Cf. Use of standing to keep federal surveillance methods from court scrutiny. See also, this link to a discussion of FISA and its recent progeny from an insider. I particularly think this is a fundamental point:

Like many competing American values, liberty and security converge in law. We strike the balance between them not only in the many particular statutes, orders, and policies of the government, but also in the ongoing process of Legislative, Executive, and Judicial action – and reaction – within the framework prescribed by the Constitution. Our national security is therefore cast, and continually recast, in the crucible of our legal system.

[see also, my comment there]