Category: News

When Constitutional Rights Become Whimsical Privileges

There is a time for law-and-order government, but it should be within the law. It’s shameful that the case of Jose Padilla has gotten this far:

“Dirty bomb” suspect Jose Padilla has asked the Supreme Court to limit the government’s power to hold him and other U.S. terror suspects indefinitely and without charges.

The case of Padilla, who has been in custody more than three years, presents a major test of the Bush administration’s wartime authority. The former gang member is accused of plotting to detonate a radioactive device.

Justices refused on a 5-4 vote last year to resolve Padilla’s rights, ruling that he contested his detention in the wrong court. Donna Newman of New York, one of Padilla’s attorneys, said the new case, which was being processed at the court Thursday, asks when and for how long the government can jail people in military prisons.

“Their position is not only can we do it, we can do it forever. In my opinion, that’s very problematic and something we should all be very concerned about,” she said.

Maybe he’s guilty, maybe not, but that doesn’t change the fact that he’s an American citizen being jailed without charges. Three years is not a reasonable length of time to hold someone. If the government can’t figure out what he might have done, all involved are incompetent. If they’ve formed an opinion, but don’t feel obligated to share that with anyone, Padilla included, because they believe national security is more important than the Constitution, they don’t believe in the Constitution. They might as well declare the Constitution null and void. The Supreme Court is trying to do that, but it hasn’t gotten there yet. Until it does, the courts need to force the Justice Dept. to charge or release Padilla.

There’s hope that principles will prevail, as evidenced by this piece of logic:

“I think the court is going to have to take it,” said Scott Silliman, a former Air Force attorney and Duke University law professor. “This is a vital case on the principle of an American citizen captured in the United States, and what constitutional rights does he have.”

Of course, I believed that we’d already decided that issue through more than two hundred years of legal proceedings. That’s also why the next Supreme Court nominee is so vital. Better to have someone who understands that the Constitution exists than to have someone who will offer complete deference to the whims of the president. (This is where lackeys for President Bush like to add “in war time”. Until someone can offer a tangible definition of how we’ll know when the war is over and the presidency can revert to peace time rules, I’m leaving it out.)

Success isn’t always good?

Rather than go too deeply into explaining why this drivel is condescending, ignorant, and offensive, I’ll just highlight paragraphs and counter the writer’s non-arguments.

Like a lot of African Americans, I’ve long wondered what the deal was with Condoleezza Rice and the issue of race. How does she work so loyally for George W. Bush, whose approval rating among blacks was measured in a recent poll at a negligible 2 percent? How did she come to a worldview so radically different from that of most black Americans? Is she blind, is she in denial, is she confused — or what?

If President Bush has a 2 percent approval rating among blacks, some people need to be in that 2 percent. Given that there are what, 40 to 50 million black Americans, I don’t find it hard to believe that Ms. Rice is one of the 900,000 or so who supports the President. Or is the implication that those two percent are race traitors?

Rice’s parents tried their best to shelter their only daughter from Jim Crow racism, and they succeeded. Forty years later, Rice shows no bitterness when she recalls her childhood in a town whose streets were ruled by the segregationist police chief Bull Connor. “I’ve always said about Birmingham that because race was everything, race was nothing,” she said in an interview on the flight home.

Or maybe she found a smarter way to deal with the situation as it existed. Dealing with what is makes more sense than whining about what is. But that’s only a recipe for success. I could be wrong.

She doesn’t deny that race makes a difference. “We all look forward to the day when this country is race-blind, but it isn’t yet,” she told reporters in Birmingham. Later she added, “The fact that our society is not colorblind is a statement of fact.”

Or maybe she found a smarter way to deal with the situation as it existed. Dealing with what is makes more sense than whining about what is. But that’s only a recipe for success. I could be wrong.

But then why are the top echelons of her State Department almost entirely white? “That’s an artifact of foreign policy,” she said in the interview. “It’s not been a very diverse profession.” In other words, there aren’t enough qualified minority candidates. I wondered how many times those words have been used as a lame excuse.

Are there qualified minority candidates being passed over for lesser-qualified white candidates? I have no idea, but this provides me no evidence to support what the author expects me to conclude, that racism is the only reason the State Department is almost entirely white.

One of the things she somehow missed was that in Titusville and other black middle-class enclaves, a guiding principle was that as you climbed, you were obliged to reach back and bring others along. Rice has been a foreign policy heavyweight for nearly two decades; she spent four years in the White House as the president’s national security adviser. In the interview, she mentioned just one black professional she has brought with her from the National Security Council to State.

That speaks for itself.

As we were flying to Alabama, Rice said an interesting thing. She was talking about the history of the civil rights movement, and she said, “If you read Frederick Douglass, he was not petitioning from outside of the institutions but rather demanding that the institutions live up to what they said they were. If you read Martin Luther King, he was not petitioning from outside, he was petitioning from inside the principles and the institutions, and challenging America to be what America said that it was.”

The civil rights movement came from the inside? I always thought the Edmund Pettus Bridge was outside.

I know very few black Americans who think of themselves fully as insiders in this society. No matter how high we rise, there’s always that reality that Rice acknowledges: The society isn’t colorblind, not yet. It’s not always in the front of your mind, but it’s there. We talk about it, we overcome it, but it’s there.

Secretary Rice implies that she always considered herself “inside”. She expected to be considered “inside” and behaved accordingly. Seeing where she is today, the institutions seem to recognize what she believed. Is it possible the institutions would recognize her feeling of being “outside”, if that’s what she’d chosen to believe?

Consider what Sec. Rice said (“The fact that our society is not colorblind is a statement of fact.”) and what the writer said (“The society isn’t colorblind, not yet.”). Two different worldviews exist in those similar but quite distinct statements. Which is more cynical and self-perpetuating?

I’ll laugh at these posts if I go to law school

I haven’t changed my mind about Harriet Miers being unqualified for the Supreme Court, and I think some of the ridicule she’s getting for her clarity of writing is on target, but some aspects of two 1990s speeches reported in today’s Washington Post don’t seem unreasonable to me. Consider:

“My basic message here is that when you hear the courts blamed for activism or intrusion where they do not belong, stop and examine what the elected leadership has done to solve the problem at issue,” she said.

At a speech later that summer titled “Women and Courage,” Miers went further. Citing statistics that showed Texas’s relatively high poverty rates, Miers said the public should not blame judges when courts step in to solve such problems.

“Allowing conditions to exist so long and get so bad that resort to the courts is the only answer has not served our state well,” she said. “Politicians who would cry ‘The courts made me do it’ or ‘I did not do that — the courts did’ should not be tolerated.”

Is that simplistic, as this indicates? Perhaps, but I think there’s a fundamental truth to what she said. I have no idea if she still believes it (or even believed it then), but it’s a reasonable point. I do agree with this post’s clarification, though.

The argument [Miers] makes is that the courts can’t be blamed when they are forced to step in to resolve problems that elected officials have failed to resolve (e.g., the problems of school funding and low-income housing siting). That is a very standard argument, usually associated with liberals. Eliot Spitzer, for example, often argues that it is necessary to pursue anti-gun policies through the courts because legislatures have failed to act. But it’s hard to see how the courts are to distinguish between a) a legislative “failure to act,” b) a legislative decision that there is no problem demanding solution, or c) a legislative decision that solving any problem would create new and greater problems. Any act of judicial usurpation can be described as a reluctant response to the legislature’s failure to enact what the judges wanted them to enact.

I’m sure a legal scholar (i.e. not Ms. Miers) could posit a useful explanation of how to apply that in a consistent, reasonable manner, but I suspect it’s simply based a) rights being trampled, b) rights being trampled, or c) understanding that the experimentation of federalism has worked for more than two centuries, with the Republic still standing. Or cases will work through the court system as they now do. I don’t claim to be an expert.

The perfect example is same-sex marriage. Any number of issues could apply, of course, but this is the most recent, most obvious example. Essentially, state legislatures and Congress should be in front on the issue, removing DOMA nonsense and removing barriers to civil recognition of marriage for all. They’re not, which means the courts will do it. Not because they’re activist but because it’s obvious that it should and will happen under our Constitution. When elected leaders refuse to remove barriers to liberty, courts are one of the remaining options. The question of judicial involvement as activism is useful prevalent, but no one should be surprised when it’s used.

November 2006 will not be pleasant

This editorial is a few days old, but it’s still timely since it concerns the upcoming election in Virginia. Consider:

… the election is between Kaine and Kilgore, and the most important national implications of November’s voting will grow from issues — in particular, the death penalty and sprawl — that the two men are raising themselves.

If Kilgore wins on the basis of a truly scandalous series of advertisements about the death penalty, it will encourage Republicans all over the country to pull a stained and tattered battle flag out of the closet.

Kaine is a Roman Catholic who opposes the death penalty. “My faith teaches life is sacred,” he says. “I personally oppose the death penalty.” I cheer Kaine for being one of the few politicians with the guts to say this the way he does. It’s disturbing that faith-based political stands that don’t point in a conservative direction rarely inspire the church-based political activism that, say, abortion, arouses. Maybe some of the churches will examine their consciences.

But Virginia has a death penalty on the books, so Kaine says plainly: “I take my oath of office seriously, and I’ll enforce the death penalty.”

That’s not good enough for Kilgore. You have to read much of the ad he ran on this issue to believe it. In the commercial, Stanley Rosenbluth, whose son Richard and daughter-in-law Becky were murdered, declares:

“Mark Sheppard shot Richard twice and went over and shot Becky two more times. Tim Kaine voluntarily represented the person who murdered my son. He stood with murderers in trying to get them off death row. No matter how heinous the crime, he doesn’t believe that death is a punishment. Tim Kaine says that Adolf Hitler doesn’t qualify for the death penalty. This was the worst mass murderer in modern times. . . . I don’t trust Tim Kaine when it comes to the death penalty, and I say that as a father who’s had a son murdered.”

Having seen the ads, that’s an accurate recap. And they’re every bit as disgusting as one can imagine. No reasonable person wants to embrace a murderer and excuse his actions. Mr. Kaine is not doing that, as evidenced by his response. He made a particular statement that he’s personally opposed to the death penalty, but he would uphold the law if elected. How complicated is that? Do we want our politicians embracing only what the political winds bring? Do reasoned principles account for nothing?

Personally, I agree with Mr. Kaine on this. The death penalty is wrong. It’s absurd that Virginians are so adamantly in favor of executing people. It often borders on a blood thirst. (If I’m not mistaken, we’re second only to Texas – by a wide margin – since the death penalty became legal again.) That does not change my belief that the death penalty is uncivilized. It’s the mark of a society interested in revenge rather than justice. Much like the current presidential defense of torture, I can’t fathom how a party based so heavily on the teachings of Jesus could ever come to the conclusion that execution is justifiable. (Kaine is a Democrat, Kilgore a Republican.)

For what, safety? We lock inmates away on death row now, with few escapes. Is it not possible to continue designing improved prison systems in which society is protected? I’m not sure who will advocate that death row inmates lead particularly fulfilling lives in their cells. Like most people, I don’t care about them, so keep the conditions. That’s the bargain for violating the most sacred right guaranteed within society. But taking that final step to execution only tarnishes the society, without providing added benefit. It’s the real culture of death.

Yet, that’s not the most disturbing aspect of this political smear campaign. Mr. Kilgore is the Attorney General of Virginia. He should understand the most basic function of what Mr. Kaine did as a defense attorney.

Representing death row inmates is unpopular but essential because it allows the justice system to work — and that includes finding guilty people guilty. Challenging prosecutors to make sure the wrong people aren’t executed can actually be a service to crime victims. No one wants an innocent person put to death so the guilty party can remain at large to kill again.

For Mr. Kilgore to allow his campaign to devalue that necessary function in a cheap attempt to win the governorship shows quite effectively that he does not have a sufficient respect for the American legal system or the citizens it protects. I don’t know that I’ll vote for Tim Kaine next month, but I know I won’t vote for Jerry Kilgore. If a pollster asks me why I voted against Mr. Kilgore, I’ll tell her I based my decision on morals.

Who knew Bipartisan meant stupid?

There is religious persecution brewing in the military. We all know that it’s the Christians being persecuted, but I’ll let this article explain it.

Lawmakers yesterday said Christian chaplains throughout the branches of the military are being restricted in how they can pray, and President Bush should step in to protect religious freedom.

“We’re giving the president an opportunity to use the Constitution to guarantee the First Amendment rights of our chaplains,” said Rep. Walter B. Jones, North Carolina Republican.

He is circulating a letter to send to Mr. Bush explaining that Christian military chaplains are being told to use general terms when they pray publicly, and to not mention the name of Jesus.

“This is a huge issue with many of the chaplains in the military,” said Mr. Jones, whose letter has 35 lawmakers’ signatures so far, and will be sent later this week.

He cited a letter from one Army chaplain who said it was made clear in his chaplain training course that it is offensive and against Army policy to publicly pray in the name of Jesus, and he later was rebuked for doing so.

“Much to my great shame, there have been times when I did not pray in my Savior’s name,” the chaplain wrote.

Boo. Hoo. I’m not dismissing religion when I say that. This isn’t religious persecution, even though that’s the obvious impression being offered by Rep. Jones. Still, before explaining further, let’s hear from two more politicians about this case:

“Chaplains ought to be able to pray based on who they are,” said Rep. Mike McIntyre, North Carolina Democrat. “Otherwise, it’s hypocrisy.”
…

“We’re seeing the same pattern … and it’s a pattern of hostility to freedom of speech,” said Rep. Todd Akin, Missouri Republican. “The chaplains have complained, and it’s been increasing and more widespread and not only limited to the Air Force.”

How is it possible to have three politicians so blindingly stupid on one simple non-issue? It’s not widely understood that only government can run rough-shod over an individual’s civil liberties. Private individuals and businesses can’t. Fortunately, this passes the government involvement test. Unfortunately, it involves the military. Specifically, here are details about the Army Chaplaincy:

You will serve in the active Army, with an initial duty of three years.

1. You must obtain an ecclesiastical endorsement from your faith group. This endorsement should certify that you are:

a. A clergy person in your denomination or faith group.
b. Qualified spiritually, morally, intellectually and emotionally to serve as a Chaplain in the Army.
c. Sensitive to religious pluralism and able to provide for the free exercise of religion by all military personnel, their family members and civilians who work for the Army.

[emphasis added]

Oh, yeah, there’s that little challenge of Army Chaplains being active in the military when they’re ministering. Unless I’m mistaken, and when am I ever mistaken, civilians don’t lose their rights when they join the military, but they do face looser protections while serving. The chaplains have superior officers issuing orders, applicable only when meeting with a denominationally-diverse group. This is not an abuse by the United States Military. Religious freedom is in no danger.

No doubt Rep. Jones, Rep. McIntyre, and Rep. Akin are the next three in line for the Supreme Court.

If you need a friend, get a dog.

Last week, The Washington Post ran an article about a woman arrested for DUI in D.C. The story indicates that she failed a field sobriety test according to the arresting officer, even though her blood alcohol content registered at .03. The District has a zero tolerance law, which gives police leeway to declare a driver impaired even below the .08 legal limit. The remaining details of the case aren’t the point I’m leading to, but an explanation might help. Kip at A Stitch in Haste had the most unique, and ultimately compelling, argument concerning the case. Consider:

But if your complaint is that DUI laws deprive you of your supposed constitutional right to have “just two beers” or “just one glass” and then hurl a multi-ton slab of metal down public roads at lethal speeds, then you have exceeded the threshold of logic and are no longer driving while libertarian.

Perhaps I’m biased because I don’t drink, but that makes sense to me. That doesn’t mean everyone who has one drink and then drives will (or should) be arrested, just that the person is altering the situation against himself. There are others on the road who are 0% impaired by alcohol. Don’t like it? Don’t drink and drive. So, I think Kip’s right, even though .03 is less than .08. But I digress.

My point is that some commenters jumped on Kip regarding his defense of the District. I posted this comment in response to some of the more incredulous individuals.

The article does go on to mention a side effect of the law. Ms. Bolton now spends her evenings out in Virginia. The experiment of zero tolerance is having a foreseeable effect. Should the residents of the District decide this is unacceptable, they can vote for officials who will change the laws.

It seems it didn’t even take that long for local government officials to act. Consider:

The D.C. Council yesterday overwhelmingly passed emergency legislation to clarify the city’s policy on drunken driving.

In a 9-3 vote, the council passed a bill stating that anyone with a blood alcohol level under .05 is not presumed to be under the influence. Those with a blood alcohol level between .05 and .08 are presumed to be neither drunk nor sober.

The bill now goes to Mayor Anthony A. Williams, who has criticized the legislation as being hastily written and potentially damaging to the District’s drunken-driving laws.

Mr. Williams said he will review the legislation over the next 10 days before deciding whether to sign or veto it.

“I wanted to keep our law so that people who want to come into D.C. to partake responsibly in the vitality of our city can do so,” said council member Carol Schwartz, the at-large Republican who introduced the bill.

You may applaud me now.

Seriously, this is how government works. I’m cynical about government like everyone else, but I’m not so cynical that I think it can’t change. We get the government we deserve when we don’t hold our elected officials accountable. Put pressure on them, whether through newspaper articles, telephone calls, or blogging, and disagreeable policies can change. I still don’t have a significant issue with the original law, but it’s encouraging to see that government isn’t a kingdom, unresponsive to the governed. Representative government works.

Even in D.C.

What Would Jefferson Do?

I’m a little behind on commenting about this but of course they are:

Leading House Republicans signaled Friday that they will try to weaken a Senate effort to limit interrogation techniques that U.S. service members can use on terrorism suspects.

Their remarks made clear that the language in the Senate-passed military spending bill faces uncertain prospects in bargaining between the Senate and House. The Senate approved the $445 billion bill 97-0 on Friday.

The detainee provision, which has drawn a veto threat from the Bush administration, was sponsored by Sen. John McCain, R-Ariz., himself a prisoner of war in Vietnam. It was omitted from the bill passed by the House and could spark embarrassing internal battling among Republicans.

This makes no sense. Only the most hardened anti-American would aim to harm U.S. soldiers or smile at the danger they face every day, but it’s entirely appropriate to reinforce long-established limits on their conduct with prisoners of war. The fight over prisoner abuse is not about elevating those we hold prisoner to saints. Honestly, fuck them. I don’t care what they think about much of anything. Beyond the basic need to prove that they’re guilty of their alleged crimes, having them rot in a cell doesn’t concern me. But this isn’t about them. It’s about our moral standard. They may be garbage, but we’re not. So forgive me if I don’t appreciate the fine intellect in statements such as this:

“We’re not going to be delivering a bill to the president’s desk that is veto bait,” said Rep. Jerry Lewis, R-Calif., and chairman of the House Appropriations Committee.

Rep. Lewis seems to forget that the House, as a chamber of Congress, is entitled to check the unfettered will and actions of the Executive. It is not responsible for passing along only those bills the president enjoys. Why bother to have a free government if you wish to bow to the whims of a dictator, however benevolent he may appear? If you have any principles, you’ll understand that allowing, and worse, condoning, torture is immoral. This president doesn’t get that. You must.

Maybe this is just me coming out as a raging liberal who hates the president. It certainly would be easy to dismiss me that way, wouldn’t it? But let me offer a quick reminder. Today is the fifth anniversary of the USS Cole bombing. The news is filled with stories like this today, whether it’s in New York, Iraq, Bali, Madrid, or London. We’re fighting to stop events like that, but the mentality that causes individuals to attack a ship, and others to cheer it from the coast, will persist as long as this world exists. That does not give us permission to act like every grade-school kid who thinks he can be the bully just because he’s bigger than the other kids.

We may be expanding freedom, but the danger isn’t going away. Reading the news from Iraq, I see near-daily reports of more American deaths. Sometimes it hits the Army, sometimes the Marines. On other rare occasions, it hits the Air Force. Those deaths affect me the same way they affect most Americans. I don’t like it, but I hope their deaths won’t be in vain. I also hope that more won’t have to die because we don’t heed the lessons. And what we’re seeing is that we’re not. When the President of the United States expects permission to treat any prisoner of war as he deems necessary, by the circumstances in the field, we’ve lost touch with reality. Torturing prisoners leads to more terrorism, not less. As I’ve heard it said, the innocent men we’ve tortured around the world (yes, it has happened) aren’t terrorists when entering our detainee centers, but they are terrorists when they leave. That’s stupid. We might as well bomb ourselves.

But I have a more selfish reason for wanting America to do this correctly than sheer patriotism. My younger brother, just shy of 22-years-old, is in the Navy. He’s currently in training in the United States, but I’m waiting for the inevitable day when he’s shipped off to some dangerous corner of the world. Maybe it’ll be the Persian Gulf, maybe it’ll be off the coast of North Korea. Regardless, it will not be a vacation. The Navy hasn’t suffered any more attacks like the one on the USS Cole in the last five years. I want that streak to continue forever. With this stupid policy of condoned torture, we seem determined to encourage another attack. There are enough crazy people around the world seeking to attack us for some assumed insult to their religion. I don’t want us providing that final “justification” to someone previously unwilling to attack us just because we think terrorists are scum. They are scum, but I don’t want my brother coming home in a body bag because we think it’s fine to torture a prisoner into a body bag.

Let the president veto that provision. History will judge him for it, should he brazenly pursue that to the end. The House, though, must follow the Senate’s lead and act like a branch of government independent from the White House, beholden to nothing more than the Constitution and the principles we supposedly embody.

The Universe is trying to crush my spirit, but I fight back

The water is rising in New Orleans again, which means here we go again.

“I’m sticking it out,” said Florida Richardson, who sat on her front porch in Algiers, holding her grandson on her lap. “This house is 85 years old. It’s seen a lot of tornadoes and a lot of hurricanes. You can’t run from the power of God.”

But you can drive from it. Maybe she can’t drive away; the article doesn’t make it clear. Why, though, the immediate descent into defeatism rooted in a vengeful, almighty God? I suspect I’ll never understand it.

Public policy as birth control

The Indian government is implementing a new policy to change a societal perception. Consider:

The Indian government says it will reward girls from single child families with free education and other benefits.
…

Under the plan, education for such girls will be made free at secondary level. They will also be given scholarships for postgraduate study.

The government says the policy will apply to all schools and colleges, both government and privately run.

Apparently India is much like other countries in South Asia, with parents feeling strong societal pressure to have male children. Unsurprisingly, this leads to selective abortions and excessive breeding to properly shape families. As the 2001 Indian census shows, its population stands at “933 women per thousand men”. This can’t continue, so it makes sense that the government wants to try something. But I’m not sure this move will be appropriate to achieve a gender balance. It seems this will lead to more selective abortions of boys than anything else. Child-raising as lottery seems wrong-headed, at best.

Obviously, I don’t think something like this would ever work in America, but it did raise an interesting question or two. If we tried something with this level of blatant gender discrimination, how long would it hold up? Would it even pass? I doubt it, but I don’t really see how it’s different than any other legal discrimination preferences we apply to education and jobs and wherever else we’ve identified discrepancies not rooted in merit. I wonder, though, in a hypothetical America where this plan passed, how long it would take the eldest daughter in a family to sue her parents if she could no longer afford school because her free education ended when the parents conceived another child.

Anyone have any better ideas for solving a gender imbalance within a population than this Indian plan?

Do I earn non-partisan credentials?

Unlike what I do here, this shows what partisanship looks like:

Give ’em hell, Harry.

Hey Dems, here’s an easy one for you: follow the leader.

I’ll pull the plug here before I’ll resort to that sort of blind, non-thinking partisanship, especially when it comes to following someone like Sen. Reid. Why? Because I have enough sense to understand that opposition for the sake of opposition is unwise. In this instance, opposing Judge Roberts because he’s a Bush nominee is counter-productive. President Bush has the votes in Congress to get Judge Roberts confirmed. History dictates that presidents deserve a high barrier to rejection for Court nominees. All that comes into play here.

I expressed reservations about Judge Roberts when President Bush nominated him, but I think he should be confirmed. I’ve seen no giant red flags that he’s going to treat the Constitution as little better than toilet paper, so what would I gain from trying to block him, or even vote against him if I were a senator? If any nominee will face opposition, the president has no incentive to compromise. Playing “follow the leader” on this only enflames the partisan war, forcing a perpetuation of the “hate President Bush” theme on the Left and the perception of that theme on the Right. All Sen. Reid is doing is encouraging President Bush to nominate an extremist to the Court to fill Justice O’Connor’s position. Democrats honestly think this will inspire voters? It may boost fund-raising at Move On, but it doesn’t win elections. I have too much sense to attach myself to symbols instead of ideas. That’s the standard I hold myself to when I write about politics.