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"It is better to be drunk with loss and to beat the ground, than to let the deeper things gradually escape."

- I. Compton-Burnett, letter to Francis King (1969)

"Cynical realism – it is the intelligent man’s best excuse for doing nothing in an intolerable situation."

- Aldous Huxley, "Time Must Have a Stop"

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Friday, 2 July 2004

Topic: In these times...

Voices - On Winning or Playing Fair

From Ted Barlow over at Crooked Timber, Wednesday June 30...
I'm pretty sure that this isn't what Jesus would do

According to the blog Non Prophet, James Dobson's socially conservative activist group, Focus on the Family, has included Michael Moore's home address in their daily email to supporters.

What legitimate purpose could this possibly serve? What have Moore's neighbors, wife and daughter done to merit the danger that FOTF have foolishly put them in? Simply disgusting.

UPDATE: Several commentators have noted that this hasn't been independently confirmed, which is fair. I'm calling Focus on the Family this morning to see if they can confirm or deny it; stay tuned.

ANOTHER UPDATE: This is for real. I've just spoken to a representative of Focus on the Family who has confirmed that Focus on the Family did, indeed, give out Moore's home address. The person that I spoke to didn't want to be quoted. I've asked the media relations department to see if they have any comment that they are willing to make, and I'll update with any comment that they have.
I saw no further update.

From our correspondent in Chicago - "The Focus on the Family stuff is really disgusting."

From our friend who walked away from Hollywood to live in France...
I agree, giving Moore's or anyone else's home address to the angry mob is disgusting, especially considering what the lunatic fringe on the extreme right gets up to when they disagree with someone - i.e. killing abortion doctors and the like.

It's also a rather sad admission of lacking the intellectual capacity to express one's point of view.
Buga-buga. I can't effectively dispute the veracity of your words, so I'll shut you up by threatening you (and others who might say similarly unpleasant things, a priori) with exposure to the mob, and if possible the certifiable. If only they could muster even that prescience of thought. Buga!

There was a similar case in the not to distant past, wasn't there, involving 0'Reilly (yes, that's a zero, not an "O" - how childish)? I assume that it's generally those on the right who silence people in this way? My, how dangerous are words?
Well, so far nothing has happened.

From the News Guy in Atlanta...
To go further (and, Alan, if your conservative friend were to read this, I'm sure I'd get an earful of disagreement on this):

Despite certain trademarked phrases, "fairness" and "balance" and the "free marketplace of ideas" are highly regarded concepts, but mostly just by liberals, springing from a judgment that says you should pretty much let everyone express themselves, no matter how much you may intellectually and emotionally disagree with them. Yes, there are exceptions on both sides to this tendency, but conservatives are still much more likely to be found giving only lip-service to these ideas, and also are much more likely to publish on websites the names and addresses of people they don't like.

It's all part of process, and liberals are much more believers in process than conservatives, evidenced in the Florida recount, in which -- and I know I've mentioned this before, but I just love the theory and have to repeat it whenever I get a chance -- in which one side (guess which) lived according to the principle, "It's not whether you win or lose, it's how you play the game," and the other (guess which) lived by, "Winning is not the most important thing, it's the ONLY thing!"
Indeed. Is this so?

Regarding Rick's "process theory" note this - from the French news service AFP so maybe they just made it all up....

US lawmakers request UN observers for November 2 presidential election
Friday, July 02, 2004 - 2:22 AM ET
WASHINGTON (AFP) - Several members of the House of Representatives have requested the United Nations to send observers to monitor the November 2 US presidential election to avoid a contentious vote like in 2000, when the outcome was decided by Florida.

Recalling the long, drawn out process in the southern state, nine lawmakers, including four blacks and one Hispanic, sent a letter Thursday to UN Secretary General Kofi Annan asking that the international body "ensure free and fair elections in America," according to a statement issued by Florida representative Eddie Bernice Johnson, who spearheaded the effort.

"As lawmakers, we must assure the people of America that our nation will not experience the nightmare of the 2000 presidential election," she said in the letter.

"This is the first step in making sure that history does not repeat itself," she added after requesting that the UN "deploy election observers across the United States" to monitor the November, 2004 election.

The lawmakers said in the letter that in a report released in June 2001, the US Commission on Civil Rights "found that the electoral process in Florida resulted in the denial of the right to vote for countless persons."

The bipartisan commission, they stressed, determined "that the 'disenfranchisement of Florida's voters fell most harshly on the shoulders of black voters' and in poor counties." Both groups vote predominantly Democratic in US elections. ...
Ah, yes, monitor the process.

Just like a bunch of Democrats to think up that one.

Did it not occur to these folks that if they get a bunch of UN people to monitor this election where the voting is done on the new electronic touch-screen voting machines, the UN inspectors can only call up data files from the system servers. There is nothing else to examine. "Recount" is meaningless. There is one data set, and that's that. Maybe if more votes are recorded than there are registered voters - as happened out here in the last election with these machines in Orange and San Diego counties - then questions might come up. But what are you going to do about it? Throw out all the votes? Some are, really, after all, valid - maybe most of them. Or maybe not.

And how are you going to tell if someone hacked into the system and changed the votes? Maybe all but two voters in Ohio DID vote for Ralph Nader. Could you prove otherwise? The systems are pretty open and use well-known 4GL application languages. In tests folks have breached these systems, changed data, and left without a trace. It's not hard.

And why did I use Ohio as an example above? The President of the company (Dieblod) that sold his machines to the State of Ohio, in his formal presentation, said, flat-out, his goal was to deliver the Ohio electoral votes to Bush. He's a Bush "Ranger" - one of the Bush top campaign fund-raisers. (To be fair he did later say that he probably shouldn't have said what he said about the electoral votes - because people could take it the wrong way and, well, his audience at the meeting to select a vendor was mostly Republican guys, and he REALLY wanted to make the sale.)

Anyway, the Democrats can worry about fairness and process, and rule of law.

You don't win that way. Perhaps you save your soul... but you don't win.


Back to the Focus on the Family people publishing Michael Moore's home address....

Our friend in France, by the way, was probably thinking of something that appeared in Just Above Sunset on October 5, 2003 - Liberals cannot take a joke (Fox News gets CNN) or are conservatives mean-spirited?

That's a riff on this news item:
CNN's Tucker Carlson Angry Over Phone Flap
Mon Sep 29,10:54 AM ET

WASHINGTON - Conservative CNN commentator Tucker Carlson's snide humor backfired on him - and his wife. While defending telemarketers during a segment on "Crossfire" last week, the bow-tied co-host was asked for his home phone number. Carlson gave out a number, but it was for the Washington bureau of Fox News, CNN's bitter rival.

The bureau was deluged with calls. To get back at him, Fox posted Carlson's unlisted home number on its Web site. After his wife was inundated with obscene calls, Carlson went to the Fox News bureau to complain. He was told the number would be taken off the Web site if he apologized on the air. He did, but that didn't end the anger.

In an interview with The Washington Post, Carlson called Fox News "a mean, sick group of people."

Fox spokeswoman Irena Briganti said Carlson got what he deserved. "CNN threw the first punch here. Correcting this mistake was good journalism."
This led to a dialog between Hollywood, a friend in Montr?al (he likened revealing the Carlson home number, so people could make obscene and threatening calls to the wife and kids, to terrorism) and the News Guy (who worked for years for CNN). You could read it if you like.

I'm not sure the Focus on the Family people want to terrorize Michael Moore and his family. If you click on that link you'll find they are pretty benign folks. Their mission: To cooperate with the Holy Spirit in disseminating the Gospel of Jesus Christ to as many people as possible, and, specifically, to accomplish that objective by helping to preserve traditional values and the institution of the family.

Perhaps they'll just ask Michael if he wants to pray with them.

But perhaps not.

Angry Christians can be... difficult.

Remember the Church in Spain way back when? They too had to deal with people who didn't get the message of Jesus and the Church quite right. As Inquisitor Franciso Pena declared in 1578 - "We must remember that the main purpose of the trial and execution is not to save the soul of the accused but to achieve the public good and put fear into others."

Words to remember, no?

Posted by Alan at 20:42 PDT | Post Comment | View Comments (1) | Permalink

Topic: Couldn't be so...

Your government at work... hoping there are some things you won't notice.

Actually these are things that 1.) they hope you won't notice, or 2.) things that they hope if you do notice them then you won't really mind, or at least you'll excuse them, or 3.) things said or done that simply assume you are dumb as a post.

The first? So the Feds cut some corners.... This is war, right?

Lawyers Sue Over Jail Videotaping
Thursday July 2, 2004
In 2001, MCC Brooklyn, a federal detention center for pre-trial arrestees who aren't allowed to or can't make bail pending their trials and sentencings, began videotaping lawyers meeting with their clients. And they lied about it. Yesterday, the lawyers filed a lawsuit seeking thousands in damages.

"When lawyers from the Legal Aid Society made their way into the federal detention center in Brooklyn in the fall of 2001 to meet with detainees, they said, they were alarmed to see video cameras on the walls. Concerned about the confidentiality of their conversations with their shackled clients - immigrant detainees who were rounded up after the Sept. 11 attacks - the lawyers asked whether they were being taped. Prison officials assured them, they say, that the cameras were turned off.

"But the cameras were running. The federal prison was intentionally recording the lawyer-client conversations in violation of federal law and prison policy, according to a December report by the inspector general of the Justice Department, Glenn A. Fine. `Surreptitiously taping attorney-client communications is a direct attack on the role of counsel and on these Legal Aid attorneys' well-established constitutional rights,' said Nelson A. Boxer, a partner of the Dechert law firm, who is representing the lawyers without fee. The plaintiffs are seeking damages under a federal statute that prohibits electronic eavesdropping without court approval and sets $10,000 for each violation. They have agreed to donate any money award to the Legal Aid Society, they said

We hope the Government has to fork over every red cent for this egregious intrusion.

"If the Justice Department is not going to defend the Constitution, then we will," said Bryan Lonegan, one of the plaintiffs.
Now, I have four good friends who are lawyers and will probably comment on this. The one most directly involved with criminal law and habeas corpus matters may make me all depressed and tell me this happens all the time - and it's no big deal. But I've heard nothing so far.

Rick, the News Guy in Atlanta, and like me, not a lawyer, has an interesting suggestion.
There shouldn't be a fine levied on the government, there should be jail time for the individual violators! I doubt the government would begrudge the money if they had to pay a fine, but some prison guard might think twice about going along with it if he knew he could find himself on the wrong side of the bars if he gets caught. This is a violation of the Constitution, not some petty contract dispute.
That might work. But September 11th changed everything, or so we're told. I think we're supposed to understand since these guys were rounded up around that time, the old rules, even if they do apply, don't really apply. It'll have to be a fine.

The second item was something I found over at Kevin Drum's Washington Monthly web log:
Freedom of Information Act? What Freedom of Information Act?

The Bush administration is offering a novel reason for denying a request seeking the Justice Department's database on foreign lobbyists: Copying the information would bring down the computer system.

"Implementing such a request risks a crash that cannot be fixed and could result in a major loss of data, which would be devastating," wrote Thomas J. McIntyre, chief in the Justice Department's office for information requests.

...."This was a new one on us. We weren't aware there were databases that could be destroyed just by copying them," Bob Williams of the Center for Public Integrity said Tuesday.

Coming next: we can't fulfill your request because the dog ate all our floppy disks and we can't get more until the next fiscal year starts.

They're not even pretending to be serious anymore, are they?
Why pretend? Tell someone copying a computer file could actually cause a system crash and destroy the original. The data would be lost forever. Say it again and again. You're the government. If you say it, again and again, it MUST be so. Why would you keep insisting - if it were not so?

Most folks don't know Jack about computers, do they? Every time you copied a file at home bad things happened, right?

After twenty years in Information Technology, from programming in aerospace to managing massive systems in heavy manufacturing and healthcare, it never happened to me, nor to anyone who worked for me. Not once. That's not to say it couldn't happen. One never knows!

They think we're fools. And no, they're not even pretending to be serious anymore.

Rick's view?
Nope, they're not! And if I were a congressman who heard this "explanation," I would move to launch an inquiry into why the Bush administration's computers are so delicate that they crash if you dare to try to use them, giving particular attention to the question as to whether this situation puts the country at risk during "wartime". (After all, there IS a WAR ON, in case they weren't aware of it!)
Yeah, yeah.

No, no questions will be raised. One fears folks will buy this crap. We bought the WMD arguments (We're all going to DIE!) and the Saddam-Osama connection (They're in this together - everyone just KNOWS it!). Why not this?

But the third item, also from Kevin Drum, is the kicker!

George Bush became governor of Texas in 1994 and reforming education was one of his major campaign promises. So how did he do?

A U.S. Census Bureau study shows that Texas again ranks last in the percentage of high school graduates.

The study released Tuesday shows that 77 percent of Texans age 25 and older had a high school degree in 2003, the same percentage as a decade earlier, when Texas ranked 39th in the country. Meanwhile, graduation rates in other states have improved and a record 85 percent of Americans have high school degrees.

So Bush's programs apparently had no effect at all, while other states showed consistent improvement. The result is that Texas now ranks dead last.

But there's good news for Texans: both George Bush and Rod Paige, the superintendent of the Houston school district and the man most closely associated with the "Texas Miracle," are gone. The bad news is that George Bush is now president of the United States and Rod Paige is his Secretary of Education.

Oops, indeed.

Bush and Page both said the performed miracles in improving Texas schools. Say it often enough.... You get the idea.

Those Texas days.... Let's see.... Bush says he cares about the average Joe and issues of compassion for his fellow man - things like healthcare. Can you get what you need - and without being jerked around? He says he signed into law a wonderful "Patients' Bill of Rights" when he was governor. He mentions it quite often. Conservative but compassionate. That's our George.

He opposed the bill. He vetoed it. The state legislature overrode his veto, a matter of public record.

But if you say something often enough....

Summary? None. These are minor items. They don't rise to the level of news that CNN or the majors would cover.

The world would be a different place if they did.

Posted by Alan at 18:15 PDT | Post Comment | Permalink

Thursday, 1 July 2004

Topic: Couldn't be so...

Heresy - In the Specific Religious (and Los Angeles) Meaning of the Term

"In politics as in religion, it so happens that we have less charity for those who believe the half of our creed, than for those who deny the whole of it."
- Charles Caleb Colton (1780-1832) from Lacon (1825)

People say Los Angeles is full of odd people. A few of my younger neighbors in the building moved here to become stars - tattoos, body piercing, purple hair and all. Down in Orange County we have the international headquarters of that group that is out to prove, conclusively, that the Holocaust never happened. Out in Riverside County we have the largest KKK coven outside the South. And that is not to mention the leather-skinned, rail-thin older Beverly Hills matrons tooling around in the Benz convertibles, or the seventeen-year-old Vietnamese dudes tooling up and down Sunset Strip in new four hundred thousand dollar Lamborghini speedsters. And we have all sorts of religious folks - the Hollywood Scientologist stars (Tom Cruse, John Travolta) for example. And there are still at lot of Foursquare churches out this way - the International Church of the Foursquare Gospel was founded in 1923 over the next hill in the Echo Park section of Los Angeles (incorporated and registered in the State of California on December 30, 1927) - Aimee Semple McPherson of Salford, Ontario moved here and got all excited.

It seems we also have a Los Angeles-based canon lawyer and an assistant judge with the Archdiocese of Los Angeles' tribunal, which seems to be an ecclesiastical court. He either has too much time on his hands, or an overly developed sense of righteousness. He's certainly a good Bush Republican. Or perhaps he is a tad insecure in his faith and is just asking for a little help here.

And I don't recall the Catholic Church charging anyone with heresy since that Inquisition business way back when. Well, maybe they have. Not having any, I don't follow religion and news about it all that much.

But this caught my eye. Imagine John Kerry on the rack, or being dipped in boiling oil.

Kerry cited in Catholic heresy case
Julia Duin, THE WASHINGTON TIMES, June 30, 2004
A Catholic lawyer has filed heresy charges against Sen. John Kerry with the Archdiocese of Boston, accusing the Democratic presidential candidate of bringing "most serious scandal to the American public" by receiving Holy Communion as a pro-choice Catholic.

The 18-page document was sent to the archdiocese June 14, but released to the public only yesterday by Marc Balestrieri, a Los Angeles-based canon lawyer and an assistant judge with the Archdiocese of Los Angeles' tribunal, an ecclesiastical court.

"Heresy is a public, ecclesiastical crime," said Mr. Balestrieri, 33, whose complaint is posted at "It affects entire communities. It is one of the greatest sins you can commit."

If the Boston Archdiocese, which is refusing comment on the case, decided to press heresy charges, the Massachusetts senator could be excommunicated.

"My goal is his repentance, not excommunication," Mr. Balestrieri said. The charges do not seek monetary damages.

The Rev. Arthur Espelage, executive coordinator for the Canon Law Society in Alexandria, said a Catholic layman can legitimately bring a case against another layman in a church court. The charges, known in church parlance as a "denunciation," are similar to a criminal complaint in secular law.

But "this is really unique," he said. "I have never heard of a case like this being processed before."

The charges must be filed in the diocese where Mr. Kerry lives. If the Archdiocese of Boston rejects the case, Mr. Balestrieri can appeal it to the Congregation for the Doctrine of the Faith, headed by Cardinal Joseph Ratzinger in Rome.

Father Espelage said church officials, not politicians, are the ones usually accused of heresy. But this suit may change that.

... Mr. Balestrieri said he filed the heresy charge -- plus an additional complaint charging "harm" to himself as a result of Mr. Kerry's pronouncements on abortion and related issues -- because canon law entitles Catholics to "possession of the faith unharmed."

"By spreading heresy, he is endangering not just mine by every Catholic's possession of the faith," he said.

"I am inviting all baptized Catholics who feel injured by Kerry to join the suit as third parties" by reading the document on the Web site and then sending a certified letter of agreement to the Boston Archdiocese.

"People are saying you can be pro-choice and be a good Christian, that it is not contrary to the faith to support aborted murder," Mr. Balestrieri said. "This is a life-threatening heresy."
Cool. I wonder how far this will go?

Well, Kerry keeps going to Mass, and receiving communion. His business, not mine.

But he is confusing people. He is opposed to the death penalty - as is the Church. He seems to say things about helping the poor and unfortunate and those suffering and all that. Not so radical, as the Church often says such things, and does help out now and then. But Kerry doesn't much think it is his business to tell women what they can and cannot do regarding abortion. He seems to think this is pretty much their own personal decision and they have to work it out as best they can - balancing the moral, medical, religious and all other considerations. Saying that it is something each woman should wrestle with and decide? That seems to be the deal-breaker.

And now it is a political issue too.

Catholicism Plays New Role in Election - Experts
Thursday, July 01, 2004 - 12:03 PM ET - byline Ellen Wulfhorst
NEW YORK (Reuters) - John F. Kennedy was the first Catholic president of the United States, and he had to reassure voters that he would not let his religion rule his presidency.

Four decades later, another Democratic senator from Massachusetts, John Kerry, wants to be the country's second Catholic president, and he faces fire for not being religious enough.

... For their part, more churches are stepping into politics. A group of Catholic bishops has proposed denying communion to politicians like Kerry who are Catholic but do not oppose a woman's right to abortion.

... Catholics have this gap within their ranks and are starkly divided down political lines, with traditional conservatives on one end of the spectrum and social liberals on the other, said John Green, professor of politics and religion at the University of Akron in Ohio.

"Then there's this large group of Catholics in the middle, centrist, moderate Catholics," Green said. "A lot of the fight in the Catholic community right now is over the people in the middle."

The controversy over denying communion to pro-choice Catholic politicians such as Kerry is one such fight.

"The questions that have been raised about 'Is John Kerry a good enough Catholic?' are substantially and most effectively being raised by the traditional Catholics trying to bring a lot of the middle-of-the-road people over to the Bush camp," said Green.

"And the more liberal Catholics are of course arguing, 'No, he's a fine Catholic and people ought to vote for him because he is overall closer to Catholic teachings than President Bush."'

In 1960, Catholics voted overwhelmingly for Kennedy. Today, their votes are split down the middle, polls show.

"What you see now is a Catholic community that by and large is a swing vote between the parties," Lugo said. "And we're talking about a lot of voters here."
This is madness.

Okay, consider France, a country half of America gleefully reviles. There most everyone actually is Catholic, for real, and will say something nice about the Pope if pressed, and enjoys all the Saints Days when you don't have to go to work. But none of them I know take these centuries of Catholicism all that seriously. It's kind of like cultural background noise. And politicians there run on actual issues - issues of governance, of taxes and services, on immigration policy, on safety. The nuts and bolts stuff of how things run. One doesn't see French, or any European politicians, running on their religious fervor and promises to follow the teaching of the Church, much less on their personal relationship God. Voters would think them quite loony. You don't get points for shouting you've been born again. Hell, folks would cross the street to avoid you.

Here? We eat it up.

Well, maybe that's what wrong with them and right with us. Or maybe it's the other way around.

Comments? Rick the News Guy in Atlanta -
On this Catholic stuff, particularly France versus here...

My late mother-in-law, who was Jewish but who had worked with lots of Catholics in her day and prided herself on being up on all of what she considered the "inside dirt" of Christian politics, would tell me her Catholic friends would remark that, when it came to being "Catholic," the Irish were much more hard-line than the Italians, probably because they lived farther away from the Vatican and didn't "see firsthand all the crap that went on day-by-day." I guess that theory would place the French, both geographically and religiously, somewhere in between.

But it seems to me, in recent years, that American Catholics have been on this Pope's "naughty" (as opposed to "nice") list, and just as significantly, the other way around; there have been many news stories about so many liberal Catholics in this country claiming the Roman Church has no right to tell them how to live their lives.

So I think what we may have here is one of the few old-time "wedge issues" in this campaign, in which, on the one hand, the more the church (and guys like Balestrieri) try to isolate Kerry, they more they risk isolating the Church itself from American Roman Catholics; while on the other hand, just maybe the Bush campaign can cut enough mavericks (that is, Roman loyalists) away from the herd to make a difference in the November elections.
Maybe so.

The Bush campaign is working hard on "reaching out" churchgoers according to this in the Washington Post. In short, the Bush-Cheney reelection campaign has sent a detailed plan of action to religious volunteers across the country asking them to turn over church directories to the campaign, distribute issue guides in their churches and persuade their pastors to hold voter registration drives.

Now this could cause any one of these churches to lose its tax-exempt status. These churches might become de facto and then de jure political organizations. But there is Republican-sponsored legislation working its way through the halls of congress to have that change of status be considered only after three violations of the rules on these matters. Think of this change in the law as an exemption made so you can keep your exemption. If you're a golfer - think of it as a "two Mulligan" rule.

But what are you being asked to do?
By July 31, for example, volunteers are to "send your Church Directory to your State Bush-Cheney '04 Headquarters or give [it] to a BC04 Field Rep" and "Talk to your Pastor about holding a Citizenship Sunday and Voter Registration Drive."

By Aug. 15, they are to "talk to your Church's seniors or 20-30 something group about Bush/Cheney '04" and "recruit 5 more people in your church to volunteer for the Bush Cheney campaign."

By Sept. 17, they are to host at least two campaign-related potluck dinners with church members, and in October they are to "finish calling all Pro-Bush members of your church," "finish distributing Voter Guides in your church" and place notices on church bulletin boards or in Sunday programs "about all Christian citizens needing to vote."
You got a problem with that?

I don't recall where I saw this comment, but someone suggested that if he belonged to a church that provided the member directory to a political campaign, he'd be really annoyed. And he wondered if you can sue a church because they didn't issue a privacy statement telling you that your personal information could be passed on to a third party, for non-religious purposes, without your knowledge or consent?

Probably not.

But it would be disconcerting to be attending your Church as usual and suddenly find yourself on the Bush-Cheney mailing list, being asked for time and money to help out. And then suddenly find your Church softball team is wearing "Bush Rocks" uniform shirts. And then find yourself being button-holed by your fellow parishioners to vote the right way in November.

So you find your church suddenly shifted into something it hadn't been before. Would you assume its your fault and your faith had been, up until this summer, inadequate - that you hadn't seen who God had chosen and you should support? You'd then feel both humbled and enlightened. Your fellow parishioners and your spiritual leaders had opened your eyes.

Or maybe you'd resent it. Maybe you think religion and politics are separate spheres - one personal and one civic. Then you'd be kind French. Could you live with that?

Posted by Alan at 20:13 PDT | Post Comment | Permalink
Updated: Friday, 2 July 2004 16:45 PDT home

Wednesday, 30 June 2004

Topic: The Law

The Attorney General is the chief law enforcement officer of the federal government, so ...

Breaking on the AP wire mid-week....

The man with the JD from the University of Chicago speaks out.

Posted on Wednesday, June 30, 2004
Ashcroft: Supreme Court giving more rights to terrorists
MIAMI - Attorney General John Ashcroft said Wednesday that the U.S. Supreme Court gave more rights to terrorists in three recent decisions, and Justice Department attorneys are poring over the rulings to determine their consequences.

The orders issued Monday on Guant?namo detainees and enemy combatants Jose Padilla and Yaser Hamdi indicate "that certain terrorists have more rights," Ashcroft said after a meeting with a regional anti-terrorism advisory council.

"The Supreme Court accorded to terrorists, in a variety of cases this week, a number of additional rights," he said. "We're digesting those opinions in terms of making sure that we adjust or modify what we do, so that we accommodate the requirements as expressed by the Supreme Court."

Ashcroft noted the court preserved the president's right to designate and detain enemy combatants under "a restrained and careful procedure." But the decision also gave the detainees the right to challenge their indefinite jailing in U.S. courts, which the Bush administration opposed.

Asked about how he would address the nearly 600 foreign-born terror suspects captured abroad and held at the U.S. naval base at Guant?namo Bay, Cuba, Ashcroft said, "I'm not in a position to say what the range of potentials is." ...
And an immediate reaction on the web from Atrios -
No, you dickhead, the Supreme Court maybe recognized that under our constitution THE ACCUSED HAVE RIGHTS. The accused who, not being charged with any crimes, are INNOCENT UNTIL PROVEN GUILTY.
John, John, John... If I managed to be accused of being a terrorist, and I know I'm not a terrorist, and everyone else knows I'm not a terrorist, and there's no crime, only some hypothetical crime you think might happen, then what am I supposed to do? You know, a priori, for sure, who the terrorists are (somehow - maybe God's speaking to you) and you expect the law to catch up to your wisdom, insight and righteousness - your prescience - or slap you on the wrist if you made a little mistake in my case?

You start with a given. Person X is a terrorist. That, for you, is not at all an accusation, which may then be determined to be justified, or not, through adjudication. For you that is a fact. Hearings, evidence and all that other stuff - and maybe even a trial - are mere fluff? You know what you know.

John, John, John... you don't understand the term "accusation" do you? This is a conceptual problem. For you, accusation is the same as certain guilt. No difference. Just where did you go to law school?

Oh yeah - first you went to Yale, just like Bush and Kerry. Yale University, where you graduated with honors in 1964. And your JD was from the University of Chicago in 1967. Geez. Didn't you take notes?

Posted by Alan at 21:40 PDT | Post Comment | Permalink

Topic: The Law

Second Thoughts

As a follow-up to the item in these pages - SCOTUS - In league with the terrorists? note this bit of research here that shows many are rethinking what happened Monday in those Supreme Court rulings.
Civil liberties expert Elaine Cassel reports that this week's three Supreme Court detainee decisions may not be a victory for civil liberties after all. In fact, she calls the score "Bush 3, Civil liberties 0"--or "game, set, match - to George Bush."

Arthur at Light of Reason feels the same way. As TChris reported here, law prof Jonathan Turley expresses a similar pessimistic view, writing that the decisions show how imperiled our constitutional system has become.

And from Yale law professor Jack Balkan: "In essence, the Court has said in these cases: don't tell us that we are irrelevant. The flip side of that demand is that if the Administration now goes through the motions of justifying its decisions before a court, courts are much more likely to let it do what it likes. In that sense, the decisions in Hamdi and Rasul cannot be understood to be complete victories for civil liberties. But they are better than the alternatives."

Not everyone agrees.

Eric Alterman in his MSNBC column turns things over to UC Davis professor Eric Rauchway and we get this:
I suspect Monday's package of Supreme Court decisions will become known collectively as the "habeas corpus cases," as I believe they're the most significant and sustained rulings on that writ since Milligan, possibly ever. The bottom line is, the Supreme Court thinks habeas corpus is still pretty darned important -- which is good news for those of you who like freedom better than unfreedom -- and that it applies to pretty much every aspect of government behavior unless the Congress invokes the suspension clause of the Constitution - which it hasn't, yet.

... Shorter Hamdi:
The President may or may not have the Constitutional power to bung you in jail; we're not going to address that question because Congress gave him the power to bung into jail people associated with the 9/11/01 attacks. But even so, if he does that to you, you can sue.

... Shorter Padilla:
He sued in the wrong jurisdiction so we're not touching the question of whether he should get off or not.

...Shorter Rasul:
The courts do so have jurisdiction over Guant?namo.
Of course the guy from Davis, California does give much longer explanations which you can wade through if you wish.

His summary?
The Court flinched from ruling on the Nixon-at-war version of presidential wartime powers (if the president does it, that means it's legal) that we have recently seen asserted in various administration memoranda and in briefs on these cases. It ruled that Congress gave considerable power limited to warring on and apprehending persons associated with the 9/11/01 attacks, and this is good enough to hold people as enemy combatants. Such detentions are challengeable in court, though by what standard of evidence it's not clear. Guant?namo Bay too comes under federal court jurisdiction for these purposes. In other words, the President can do a lot of stuff if Congress lets him and maybe otherwise; the Court won't say), but in all cases discussed today his actions are subject to judicial review.
And, now, his question:
If the Court believes the President's extraordinary wartime powers result from the act of Congress authorizing him to use "'all necessary and appropriate force' against 'nations, organizations, or persons' associated with the September 11, 2001 terrorist attacks," then does the Court perhaps believe that those powers do not apply in Iraq? What does that mean for persons held at e.g. Abu Ghraib? As Scalia points out in his dissent in Rasul: "parts of Afghanistan and Iraq should logically be regarded as subject to our domestic laws," according to the logic of the majority opinion (with which he of course disagrees). I don't know the answer here, I'm just asking.
Yep, that is curious.

And over at SLATE.COM we get this -

Taking It to the Trenches
What the Supreme Court's terrorism decisions will mean for the war effort.
Phillip Carter - Posted Tuesday, June 29, 2004, at 1:35 PM PT

Carter's concern is what this means on the battlefield - as he is a former Army officer who now writes on legal and military affairs out here in Los Angeles.

He notes that these decisions "did not substantially impinge" on the president's actual powers to wage war or on the military's right to take prisoners during war.
But the court did speak to the kinds of procedures necessary to lawfully hold combatants. By levying procedural due-process requirements on the government in Hamdi, the court likely created new requirements for soldiers in the field when they detain prisoners. It also may have fundamentally changed the way our nation gathers intelligence in the war on terrorism. And by opening the federal courts to the Guant?namo detainees, the high court may have altered the nature of U.S. detention operations--and created a new means of resistance for detainees in U.S. captivity.
And he explains that in detail.

But he okay with the new restrictions that he sees coming:
The images of shackled prisoners at Guant?namo Bay and naked prisoners at Abu Ghraib have not helped America win many friends in the world, nor have the memoranda from Bush administration lawyers arguing that such tactics are justifiable means to a worthy end. But in limiting the president's power to detain combatants, the Supreme Court may have taken the most significant step yet toward rehabilitating the commitment of the United States to the rule of law.

Curiously the Los Angeles Times reports that one option the Bush administration is considering in response to Monday's Supreme Court ruling that grants enemy combatants access to US courts is to move hundreds of Guant?namo detainees to prisons on the mainland. But the most curious part of the Times article is this:
As attorneys for detainees at the U.S. naval base at Guant?namo Bay, Cuba, began preparing the first of hundreds of expected lawsuits demanding that the government justify the detentions, senior administration officials acknowledged that they were unprepared for a rebuke in two landmark Supreme Court decisions that rejected the military's treatment of prisoners in the war on terrorism.

... "They didn't really have a specific plan for what to do, case-by-case, if we lost," a senior defense official said on condition of anonymity. "The Justice Department didn't have a plan. State didn't have a plan. This wasn't a unilateral mistake on DOD's part. It's astounding to me that these cases have been pending for so long and nobody came up with a contingency plan."
Really? Well, there was no back-up plan for the possibility that there might be no WMD stuff in Iraq once we got there and took over. There was no planning for what we might do if we were not greeted cheering crowds throwing flowers. There was no plan for how the occupation might be done systematically. These guys aren't big on contingency planning.

There is a problem with always assuming the best case and saying anyone who doubts you is a fool and a pessimist, if not a traitor. Optimism is useful. Bullheaded stupidity is not.

More of the same.

And in my own inbox?

Ric Erickson in Paris, being a fellow born in Canada, who once worked as a journalist in Germany, and now publishes MetropoleParis, raised some questions regarding the whole business of legal detention.
An 'illegal detention' is one that is not legal; the opposite of a 'legal detention.' The normal state is one where everybody is 'legally free.' Shouldn't it be, to 'legally detain' anybody, that it be done legally?

If this is not done correctly, why should it be up to the detainee to prove the detention is illegal? Don't the courts have an obligation to set people free who have been detained illegally?

The question is, does an enemy combatant have those rights? Being an 'enemy combatant' is not, per se, an illegal activity.

You could say all US troops in Iraq are 'enemy combatants.' Just because US forces kidnap foreign nationals it doesn't automatically mean they are 'enemy combatants.' Being kidnapped is not the same as a conviction.

And besides, what crime is an 'enemy combatant' committing? Is there some US law stating that 'enemy combatants' violate some specific US law?

And Justice O'Connor apparently emphasized that there's nothing in the habeas statute that provides these rights only to US citizens. The statute says "any person" can seek relief.

And damages? What about damages for illegal detention?

Odd isn't it, how the administration's house of cards is falling apart. Unilateral declarations of new laws don't work. What will be the next to collapse?
I don't know the answer to the last question, but as for the ones that proceed it?

Another friend put it this way.
Yes, in a normal state, every one is free. But war (when and if it indeed exists) is not a normal state, and all three branches of the government have now said that being an enemy combatant is, in fact, per se illegal. So the question is, when is it illegal and who gets to decide? There have been various definitions of the term, but by and large an enemy combatant has been defined as one who is engaged in an armed conflict against the US - or one who takes up arms against the US in a foreign theatre of war. Yes, that means a jihadist sees US GIs, and those who direct them, as enemy combatants as well. Yesterday the US Supreme Court said the president and members of the executive branch have the authority to declare individuals to be enemy combatants.

Yes, a detention must be done legally if at all - but that begs the question. What is "legal?" Who makes the laws? This is part of the larger debate going on right now, and the US Supreme Court weighed in yesterday to say the courts have an important role in this, and that they are keeping an eye on Doobleyieu.

The habeas laws are not as harsh as you might imagine. When a person being detained files in court, the judge has the authority to have him brought before him immediately to "inquire" of the detainee. There's an emphasis on equity and fairness, rather than the strict letter of the law. It would be inaccurate to say the detainee doesn't have to prove anything - there will be those who will argue he has to prove plenty - but the judge has a tremendous amount of discretion to order the person's immediate release if he doesn't like what he sees. This has been the law since 1867. On the whole, habeas law is pretty good stuff. To be sure, France is where libert? began, but even the French didn't have a presumption of innocence until a few years ago - the Mitterrand years, maybe? I forget the exact year. It has served M. Chirac well, in any event.

I think constitutional law is great stuff to contemplate - who makes the laws, who is best suited to make the laws, who is going to keep an eye on whom. And with tremendous stakes.

Note that under French law, a distinction is made between "d?tention" and "r?tention." The former refers only to prisons, which are administered by the judicial system and managed by the Prison Authority ("Administration P?nitentiaire"). Only a court can sentence a person to "detention". But "r?tention" is a very different matter. And that did change in July of 2000 - see European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) for excruciating details. You cannot now easily keep folks suspected of nasty stuff locked up for as long as you'd like while you get your paperwork and evidence in order - or at least that's the general idea in France at the moment.

Well, this not France. And Rick, the News Guy in Atlanta doesn't much like how we over here are handling things -
Is this to say that the President not only has the right to declare someone an "enemy combatant," but also has the sole power to define what it means to be an "enemy combatant"? Does judicial review not trump that, too?

And if so, as long as the habeas statute remains unchanged by Congress, could not any and all those held at Gitmo, and even elsewhere, argue that their situation doesn't fit some "reasonable" definition of "enemy combatant," which could then be defined by some judge? (I assume it wouldn't go "back to Congress to rewrite the statute on enemy combatants," since they're not the ones who initiated it, right?)

Way back before 9/11, in the specific cases of INS internment, I'd always assumed that habeas extended to all peoples, not just U.S. citizens, and was shocked when federal courts -- including the Supreme? I forget -- upheld the government on those.

Gadzooks! Who knew that those who have sworn to uphold the Constitution have been seeking out, and finding, so many exceptions to having to do it! The barrage of legal excuses and exceptions to our founding document sound like those of my five year old, explaining why she doesn't have to brush her teeth! So exactly when was it, in the last 200 some years since we ratified their founding principles, did Americans decide it is okay after all to arrest people and deny them access to a lawyer?

And when did these guys come up with this "enemy combatant" thing? If it were up to me, any "detainee," whether a citizen or not, would either be a "prisoner of war" and fall under the Geneva Convention, or an accused criminal who has to be either charged with a crime, or else released.
Yeah, that would be nice.

As Rick notes, the Japanese were interned in camps out here on the West Coast during WWII -and I even knew a woman who was one of those there. This was explicitly authorized by Congress in the "Emergency Detention Act." And a friend reminds me the Supreme Court approved something similar when, in 1944, they upheld the conviction of a Japanese man ordered (but who refused) to leave a particular area. Pesky Asian devils? Well, the court cited concerns for national security and fear of espionage. The act was later repealed but the current laws still say that Congress can authorize a person's detention. So, my friend suggests, the issue is this- is there any CURRENT act of Congress that authorizes the president to detain an enemy combatant? Did Congress make Bush's actions legal?

Good question. If you click on the links above you'll see that in the Hamdi case, the Court this week said yes - that seems legal. Hey, what did Daschle sponsor and Kerry vote for? Would that be the Joint Resolution of Congress (September 14, 2001) authorizing the president to use force against (and to detain) any enemy combatant. "All appropriate actions" and all that.

Kerry still says he doesn't regret his vote. He just thinks Bush has no clue as to what is appropriate - in this and in most matters.

But that means that Ric in Paris is off base. This Hamdi fellow was not "Kidnapped" at all.

Rick in Atlanta does raise the issue of just who gets to decide - just who is it that defines who is an enemy combatant? It seems that congress, the president, and the courts have all come up with definitions, and they all seem to be about the same - a person engaged in or supporting armed conflict with the United States or coalition forces. But the U.S. Supreme Court is NOT going to allow George Bush to decide who fits the category.

Who then decides?

Legal eagles tell me that, according to an affidavit filed in the federal courts, known as the Mobbs Declaration, Hamdi was a member of the Taliban who was captured after September 11 by the Northern Alliance on a battlefield in Afghanistan. He was engaged in active battle against the Northern Alliance and surrendered his Kalashnikov at the time of capture. And if that affidavit is true? Bingo. He's an "enemy combatant" exactly the sort of person that Congress wanted locked up.

But he never got a chance to the military made a mistake, that they got they wrong guy. He was not allowed to challenge the evidence. And now he can.

The Supreme Court said - hold on, we have a job here we have to do. The Court monitor what the chief executive does when he acts with legislative approval. Heck, that's what they're there for, after all. (Among other things.) Maybe Hamdi was a relief worker accidentally swept up in the net. Now he has the right to argue his case, and have lawyer help him do it.

Good news? Maybe. Maybe not.

Eugene Volokh of the UCLA law school here argues this is all madness. He's worried that all this litigation will become a tactic of warfare - and now soldiers have an obligation to harass their captors with... writs! He thinks we're now giving them a cheap and safe way winning, by suing us into paralysis. These habeas corpus suits thus become one of the enemy's weapons of war.

A reaction here
Professor Volokh is 100% correct. The burden of processing and adjudicating a habeas corpus petition from each prisoner is overwhelming. The paperwork alone would bring our army to its knees. If that wasn't enough, the prisoners could then deliberately file their habeas corpus petitions in the wrong jurisdiction! Forcing the Supreme Court to waste weeks of its time on each individual petition! We cannot allow our army to be defeated, our nation conquered, our loved ones killed, and our pets eaten because our soldiers are unable to leave the courtrooms when enemies attack!

... As the President argued when he began the War For Civilization, America cannot allow basic constitutional protections to its enemies - or its suspected enemies, or potential allies and relatives of its suspected enemies - lest they "use the forums of liberty to destroy liberty itself."
Indeed, in the hands of the Jihadists, a writ of habeas corpus would prove more deadly than a hijacked plane or weaponized smallpox, for with it, they could unleash Freedom against itself in an Ouroborobian orgy of Islamofascist terror. America's one hope is to make certain that Freedom never falls into the wrong hands by curbing Freedom proliferation throughout the globe.
It's not nice to make fun of UCLA law professors! He was serious, wasn't he?


Footnote on the Mobbs Declaration mentioned above:

Dave Ross on CBS radio this week -
Jun 29, 2004: Michael Mobbs - The man with the key to the Constitution!
In this whole discussion about enemy combatants, I've always wondered who decides? Who decides which combatant is bad enough to get no rights? I know the President, as Commander in Chief signs the paperwork, but who WRITES UP the charge?

And the Supreme Court decision yesterday answered that question, at least in the case of enemy combatant Yasser Hamdi.

According to the Supreme Court, the only evidence against Hamdi was a "declaration" signed by a defense department official named Michael Mobbs, Special Advisor to the Under Secretary of Defense for Policy.

Mobbs declared that because al Qaeda and the Taliban were hostile forces engaged in armed conflict with the United States, that individuals associated with those groups "were and continue to be enemy combatants."

Lock him up, case closed.

Who is Michael Mobbs? He is an attorney, fluent in Russian, a specialist in ballistic missiles, once mentioned as the man to get the job that Paul Bremer eventually got, AND -- his boss is Under Secretary Douglas Feith, one of the famous neo-cons. Feith is the man who decided to make Weapons of Mass Destruction the main reason for the war, who came up with the legal rationale for the torture at Abu Ghraib, and whose office documented the supposed links between Saddam Hussein and Al Qaeda.

And it was in that office that Michael Mobbs decided when Constitutional rights would and would not apply.

Whether Yasser Hamdi is guilty or not, we don't know. But yesterday the Supreme Court ruled that in making that determination, this country deserved better than Mobbs Rule.
Ross' commentary is usually "Chip Talk" - about computer things and websites. Now he's doing political stuff, and is preparing to run for Congress out here on the west coast.

The times are changing.

Posted by Alan at 15:17 PDT | Post Comment | Permalink

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