Interest and Perspective

Why not

2007-10-09T00:57:00.000-07:00

just disallow ipods or other music players during tests?

http://www.nytimes.com/2007/10/09/education/09ipod.html?_r=1&oref=slogin

A Few Examples of Our Tactics in The War on Human Rights

2007-06-10T11:08:00.000-07:00

We don't hear as much about this story as we should, but the facts are clear. Our government kidnaps and shanghais citizens of other countries, tortures them, and imprisons them without legal recourse (which we would never condone or allow). This nightmare is completely un-American and deserves our media's attention on a daily basis.

"[T]he Orwellian message from State Legal Advisor John "Bellinger at the Hague on Wednesday" is that "We Don't Violate International Law--'We have simply not reached the result or interpretation that [our] critics prefer.'" Marty Lederman at Balkinization provides examples of how our government has abused people -- you know, human beings -- around the globe in the name of the War on Terror:

What are these "results" and "interpretations" of international law that our critics do not "prefer"?

That "extreme sensory deprivation" is permissible.

Not to mention waterboarding.

And hypothermia.

And stress positions.

And severe sleep deprivation.

And detaining six-year-olds in order to use them as leverage against their parents.

And disappearances, outside the purview of any legal system.

And renditions to nations in which torture is common, or to CIA "black sites" in Poland and Romania in which some or all of the above techniques are used.

And refusing to cooperate with an Italian prosecution of CIA and Italian agents who engaged in such lawbreaking, even when the prosecutors are those who have been fighting
terrorism for years.

The Committee on Legal Affairs and Human Rights of the European Council's Parliamentary Assembly was had more in its report "Secret detentions and illegal transfers of detainees involving Council of Europe member states," which was published just a day later:

The report is a comprehensive account of the CIA's "High-Value Detainee" program at black sites in Europe. I can't possibly do it justice here. Please read the whole thing.

For starters, here are some of the Introductory remarks. Keep in mind, however, that these views are merely "interpretations" that the U.S. government does not "prefer."

1. What was previously just a set of allegations is now proven: large numbers of people have been abducted from various locations across the world and transferred to countries where they have been persecuted and where it is known that torture is common practice. Others have been held in arbitrary detention, without any precise charges levelled against them and without any judicial oversight – denied the possibility of defending themselves. Still others have simply disappeared for indefinite periods and have been held in secret prisons, including in member states of the Council of Europe, the existence and operations of which have been concealed ever since.

2. Some individuals were kept in secret detention centres for periods of several years, where they were subjected to degrading treatment and so-called “enhanced interrogation techniques” (essentially a euphemism for a kind of torture), in the name of gathering information, however unsound, which the United States claims has protected our common security. Elsewhere, others have been transferred thousands of miles into prisons whose locations they may never know, interrogated ceaselessly, physically and psychologically abused, before being released because they were plainly not the people being sought. After the suffering they went through, they were released without a word of apology or any compensation – with one remarkable exception owing to the ethical and responsible approach of the Canadian authorities . . . .

3. While the strategy in question was devised and put in place by the current United States administration to deal with the threat of global terrorism, it has only been made possible by the collaboration at various institutional levels of America’s many partner countries. [T]hese partners have included several Council of Europe member states. Only exceptionally have any of them acknowledged their responsibility – as in the case of Bosnia and Herzegovina, for instance – while the majority have done nothing to seek out the truth. Indeed many governments have done everything to disguise the true nature and extent of their activities and are persistent in their unco-operative attitude. . . .

4. The rendition, abduction and detention of terrorist suspects have always taken place outside the territory of the United States, where such actions would no doubt have been ruled unlawful and unconstitutional. Obviously, these actions are also unacceptable under the laws of European countries, who nonetheless tolerated them or colluded actively in carrying them out. This export of illegal activities overseas is all the more shocking in that it shows fundamental contempt for the countries on whose territories it was decided to commit the relevant acts. The fact that the measures only apply to non-American citizens is just as disturbing: it reflects a kind of "legal apartheid" and an exaggerated sense of superiority. Once again, the blame does not lie solely with the Americans but also, above all, with European political leaders who have knowingly acquiesced in this state of affairs.

5. Some European governments have obstructed the search for the truth and are continuing to do so by invoking the concept of “state secrets”. Secrecy is invoked so as not to provide explanations to parliamentary bodies or to prevent judicial authorities from establishing the facts and prosecuting those guilty of offences. This criticism applies to Germany and Italy, in particular. It is striking to note that state secrets are invoked on grounds almost identical to those advanced by the authorities in the Russian Federation in its crackdown on scientists, journalists and lawyers, many of whom have been prosecuted and sentenced for alleged acts of espionage. The same approach led the authorities of “the former Yugoslav Republic of Macedonia” to hide the truth and give an obviously false account of the actions of its own national agencies and the CIA in carrying out the secret detention and rendition of Khaled El-Masri.

6. Invoking state secrets in such a way that they apply even years after the event is unacceptable in a democratic state based on the rule of law. It is frankly all the more shocking when the very body invoking such secrets attempts to define their concept and scope, as a means of shirking responsibility.

14. We are fully aware of the seriousness of the terrorist threat and the danger it poses to our societies. However, we believe that the end does not justify the means in this area either. The fight against terrorism must not serve as an excuse for systematic recourse to illegal acts, massive violation of fundamental human rights and contempt for the rule of law. . . .

15. We have said it before and others have said it much more forcefully, but we must repeat it here: having recourse to abuse and illegal acts actually amounts to a resounding failure of our system and plays right into the hands of the criminals who seek to destroy our societies through terror. Moreover, in the process, we give these criminals a degree of legitimacy – that of fighting an unfair system – and also generate sympathy for their cause, which cannot but serve as an encouragement to
them and their supporters.

Adel Hamad's case is but one example of how our policies destroy lives and damage our reputation.

We should end this state of affairs immediately before we're viewed around the world as worse than Stalinist Russia (if we're not already).

As always, comments are welcome.

L.A.P.D. On the May Day Rally

2007-05-30T10:20:00.000-07:00

LAPD has issued a report and statements, as reported here by All Things Considered (NPR). There are five ongoing investigations into the "chaotic breakdown" at the park.

Hat tip to the CrimProf Blog.

Jack-Booted Thugs Destroy Peaceful Assembly

2007-05-03T10:25:00.001-07:00

This is perhaps the best video I've seen of the terroristic oppression of the people at the L.A. May Day assembly. The assembly was peaceful, legal, and in a public place. The police who turned into thugs that day should be in prison, along with the higher-ups who created the fascist culture of the Department.

CBS News' take on the event, noting the Rodney King incident and the Department of Justice's oversight of the Department, can be found here . Police Tactics At Immigration Rally Draw Ire, online story found here, Copyright CBS News 2007.

I hope the nest protest involves civil rights training -- passive resistance would have been more effective at spreading the message here.

Tons of Links

2007-04-19T19:25:00.000-07:00

There are a ton of new links at the bottom of the page. They're mostly law and policy related. Check 'em out.

I plan on soon adding more links relating to news, politics, and other weird things.

Justice Thomas, Champion of Truth and Right!

2007-03-03T14:50:00.000-08:00

The Los Angeles Times is reporting that Justice Thomas led a walk-out protest against the racism at Holy Cross when he attended:

Thomas described how Brooks, then a dean of Holy Cross, won an "amnesty" for black students in December 1969 after they had quit the college en masse. Five black students had been singled out and expelled for taking part in a larger protest related to the Vietnam War. The other blacks decided to quit in solidarity with those who had been expelled. Thomas said his college career might have ended there had the priest not intervened.

"The black kids were being treated unfairly. I said: 'Look, if we're not going to be treated fairly here, let's leave,' " Thomas said. "Thank God for Ted [Wells] … and Father [Raymond] Swords and Father Brooks. They worked it…. What if he [Brooks] had just said: 'Let them go.' God only knows where I would be."

Right on, Justice Thomas!

Ironically, the "news" that made the headline was that "Justice Thomas scorns media, affirmative action in interview."

Again, the Youngest and Cruelest Justice: "One of the reasons I don't do media interviews is, in the past, the media often has its own script."

U.S. Military Spied on Hundreds of Antiwar Demonstrations

2007-02-01T15:47:00.000-08:00

At least 186 antiwar protests in the United States have been monitored by the Pentagon's domestic surveillance program, according to documents obtained by the American Civil Liberties Union (ACLU), which also found that the Defense Department collected more than 2,800 reports involving Americans in a single anti-terrorism database.

The internal Defense Department documents show it is monitoring the activities of a wide swath of peace groups, including Veterans for Peace, Iraq Veterans Against the War, Military Families Speak Out, Code Pink, the American Friends Service Committee, the War Resisters League, and the umbrella group United for Peace and Justice, which is spearheading what organizers hope will be a massive march on Washington this Saturday.

FBI Joint Terrorism Task Forces in Atlanta and New York were briefed on planned protests.

Clinton vs. Obama on the Death Penalty

2007-01-30T18:35:00.000-08:00

Obama seems a reticent supporter of executions. Clinton, as on most issues, seems to be a chameleon.

Running for U.S. Senate, Obama said he favored the death penalty for only the most heinous of murders, such as serial killing. But Obama qualified his stance, saying that his support eroded further when looking at how the death penalty "is currently administered in this country." All three candidates agreed that the capital punishment system should be overhauled. ICADP.

Sen. Kucinich's website labels Obama, Clinton, and Edwards pro-death penalty, to varying degrees. Obama andClinton both voted to prevent funds from being available to assist countries that refuse to extradite individuals to the US because of the moral objections of those countries to the death penalty. "Apparently, this is one of Obama's shifting positions." Bill Richardson, from all appearances already an also-ran this cycle, had the worst record according to Kucinich (which he does).

Amy Goodman reported in summer'04 that Obama "was involved very intimately in drafting and passing legislation that requires the video taping of police interrogations and confessions in all capital cases. And he also was one of the co-sponsors of this very comprehensive reform or the death penalty system in Illinois, which many people say may trigger the retreat on the death penalty in many other states."

In 1998, Obama supported policies to implement penalties other than incarceration for certain non-violent offenders, increase state funds for programs which rehabilitate and educate inmates during and after their prison sentences, and provide funding for military-style "boot camps" for first-time juvenile felons.

This quote from Clinton in 1994 shows her stance on general criminal law issues clearly: "We need more police, we need more and tougher prison sentences for repeat offenders. The three strikes and you’re out for violent offenders has to be part of the plan. We need more prisons to keep violent offenders for as long as it takes to keep them off the streets."

OTOH, Clinton sponsored the federal Innocence Protection Act, allowing federal funding for DNA testing of evidence used in capital cases.

I wasn't able to find a good quote of her stance on executions per se. The Village Voice, though, notes her "unbending" support. But hey, just lick your finger, put it in the air, and feel the breeze - that's where Hillary will blow.

By the way, Bill Clinton, while campaigning for President, flew back to Arkansas to witness the execution of a mentally retarded man whom he had denied clemency, Rickey Ray Rector, a 40-year-old black man convicted of killing a black police officer. After shooting the cop, Rector shot himself in the head and damaged his brain. On the way out of the death cell, the inmate was asked if he wanted to finish his pie. He said he'd finish it when he came back.

Bush Agrees to Iraq Benchmarks

2007-01-26T19:17:00.000-08:00

Wow.

Pres. Bush has accepted a House Republican resolution, which may be offered as early as next week and calls for the creation of military, political and social "benchmarks" to monitor the success of an increase in U.S. troops and hold Bush and Iraqi government accountable.

The proposal also calls for creation of a bipartisan congressional panel to monitor implementation of the benchmarks.

Pres. Bush: "Most people understand the consequences of failure. If failure is not an option, then it's up to the president to come up with a plan that is more likely to succeed."

The Reuters story doesn't explain why, but Speaker Pelosi opposes the resolution. The only reason I can think of is that the plan doesn't go far enough for Democratic lawmakers -- and that shows the Dems' cojones, it seems.

This is good news.

Meet Adel Hamad

2007-01-11T14:45:00.000-08:00

From ProjectHamad.org:

Adel Hamad was a teacher of elementary school orphans, a hospital worker, and someone who coordinated the delivery of food, medicine and blankets to refugees. He has been imprisoned for 5 years and classified as an enemy combatant, despite the lack of any allegations or evidence that he ever acted against the U.S. or its allies, or even had political sympathies for those who did. His friends and colleagues describe him as a funny, apolitical man who loved charity work and ping-pong. One of the U.S. Army Majors at his Tribunal called his detention unconscionable.

Growing evidence shows that the majority of prisoners in Guantanamo Bay have not committed any belligerent act against the U.S. or its allies. These prisoners, who have no legal recourse, have not been given their day in court. Nor have their detentions been scrutinized by a judge. They remain in jail year after year, separated from their families, often not fully knowing the accusations against them or the identity of their accusers.

The CIA, the Defense Department, commanders in the military, have all acknowledged that there are many innocents in jail. Yet instead of expediting their release, Congress recently eliminated the writ of habeas corpus, an essential safeguard enshrined in our Constitution, against an unchecked executive power. Before habeas corpus existed, rulers could throw people in jail without justification and without the prisoner having the right to defend himself in court.

The good news is that with the convening of the new congress in 2007, several senators are pressing to revisit the Military Commission Act, which nullified habeas corpus. This will no doubt help to shed new light on the situation of the detainees at Guantanamo Bay, and improve the chances of the release of Mr. Hamad and other innocent detainees.

You can help this cause by spreading the word of Adel Hamad's case to your friends and family. Read more at Project Hamad learn how you can be involved.

A Voice from Gitmo's Darkness

2007-01-11T12:37:00.000-08:00

Reposted from the LA Times without comment.

A voice from Gitmo's darkness

A current detainee speaks of the torture and humiliation he has experienced at Guantanamo since 2002.

By Jumah al-Dossari, JUMAH AL-DOSSARI is a 33-year-old citizen of Bahrain. This article was excerpted from letters he wrote to his attorneys. Its contents have been deemed unclassified by the Department of Defense.
January 11, 2007

Guantanamo Bay Naval Base, Cuba — I AM WRITING from the darkness of the U.S. detention camp at Guantanamo in the hope that I can make our voices heard by the world. My hand quivers as I hold the pen.

In January 2002, I was picked up in Pakistan, blindfolded, shackled, drugged and loaded onto a plane flown to Cuba. When we got off the plane in Guantanamo, we did not know where we were. They took us to Camp X-Ray and locked us in cages with two buckets — one empty and one filled with water. We were to urinate in one and wash in the other.

At Guantanamo, soldiers have assaulted me, placed me in solitary confinement, threatened to kill me, threatened to kill my daughter and told me I will stay in Cuba for the rest of my life. They have deprived me of sleep, forced me to listen to extremely loud music and shined intense lights in my face. They have placed me in cold rooms for hours without food, drink or the ability to go to the bathroom or wash for prayers. They have wrapped me in the Israeli flag and told me there is a holy war between the Cross and the Star of David on one hand and the Crescent on the other. They have beaten me unconscious.

What I write here is not what my imagination fancies or my insanity dictates. These are verifiable facts witnessed by other detainees, representatives of the Red Cross, interrogators and translators.

During the first few years at Guantanamo, I was interrogated many times. My interrogators told me that they wanted me to admit that I am from Al Qaeda and that I was involved in the terrorist attacks on the United States. I told them that I have no connection to what they described. I am not a member of Al Qaeda. I did not encourage anyone to go fight for Al Qaeda. Al Qaeda and Osama bin Laden have done nothing but kill and denigrate a religion. I never fought, and I never carried a weapon. I like the United States, and I am not an enemy. I have lived in the United States, and I wanted to become a citizen.

I know that the soldiers who did bad things to me represent themselves, not the United States. And I have to say that not all American soldiers stationed in Cuba tortured us or mistreated us. There were soldiers who treated us very humanely. Some even cried when they witnessed our dire conditions. Once, in Camp Delta, a soldier apologized to me and offered me hot chocolate and cookies. When I thanked him, he said, "I do not need you to thank me." I include this because I do not want readers to think that I fault all Americans.

But, why, after five years, is there no conclusion to the situation at Guantanamo? For how long will fathers, mothers, wives, siblings and children cry for their imprisoned loved ones? For how long will my daughter have to ask about my return? The answers can only be found with the fair-minded people of America.

I would rather die than stay here forever, and I have tried to commit suicide many times. The purpose of Guantanamo is to destroy people, and I have been destroyed. I am hopeless because our voices are not heard from the depths of the detention center.

If I die, please remember that there was a human being named Jumah at Guantanamo whose beliefs, dignity and humanity were abused. Please remember that there are hundreds of detainees at Guantanamo suffering the same misfortune. They have not been charged with any crimes. They have not been accused of taking any action against the United States.

Show the world the letters I gave you. Let the world read them. Let the world know the agony of the detainees in Cuba.

Trial judge gives in, OKs illegal military commission for Hamdan

2006-12-13T15:42:00.000-08:00

I reported earlier on this blog about the unconstitutional suspension of the writ of habeas corpus which the Congress allowed and the President signed into law this past October. Now, the first ruling on this illegal action has been issued. The court acceded to the government and OKed the illegal and unconstitutional repeal of habeas corpus, and fairly begged to be reversed - this, after all, is the same judge who originally balked at the government's detention of Mr. Hamdan without due process. The Court helds that Congress' repealing its statutory grant of habeas jurisdiction did not unconstitutionally susped the writ, and also that no right to habeas found in the constitution will help Mr. Hamdan:

The Military Commissions Act and the briefs of the parties present three questions: (1) As a matter of statutory interpretation and construction, did Congress actually succeed in removing our statutory habeas jurisdiction over the detainee habeas cases? (2) If so, is the Military Commissions Act a constitutionally valid “suspension” of the writ of habeas corpus within the meaning of the Suspension Clause, U.S. Const. art. I § 9 cl. 2? (3) If not, and if a “constitutional” writ of habeas corpus survives the Military Commissions Act, does Hamdan have a right to seek such a writ? The answers to these questions are “yes” to number (1) and “no” to numbers (2) and (3).

This isn't over by a long shot. The court decides that the Military Commission Act is similar to the Anti-Terrorism and Effective Death Penalty Act in that both merely trim jurisdiction - the latter by limiting repeat petitions and the former by limiting the forum available. Next, the court decdes that Hamdan has no right to consitutitional habeas (apart from habeas rights the MCA abrogated) because he's not an American by citizenship or culture.

First, the decision that Hamdan has no right to constitutional habeas because he's not an American by citizenship or culture would seem to violate the spirit, if not the narrow holding, of _Rasul_ and merits reversal, despite the court's feeble attempt to distinguish that case. The judge has made out of whole cloth the rule that only "real" Americans get constitutional habeas; pointing to a few stale cases doesn't carry his point. It was also interesting that he didn't mention Korematsu at all.

Second, the court's discussion of suspension is just junk: basically, "Congress didn't unconstitutionally suspend the writ because if it did it would be unconstitutional because they didn't say there was a rebellion." Huhn???

The fact that Congress has been complicit in the President's tyranny should not deprive Mr. Hamdan of a real opportunity to challenge his detention.

Hamdan II, here we come.

UPDATE: Lyle Denniston at the Akin & Gump SCOTUSblog has the following interpretation; I believe we agree on the substance:

Here is the conclusion of Robertson's decision: "Congress's removal of jurisdiction from the federal courts was not a suspension of habeas corpus within the meaning of the Suspension Clause (or, to the extent that it was, it was plainly unconstitutiional, in the absence of rebellion or invasion), but Hamdan's statutory access to the writ is blocked by the jurisdiction-stripping language of the Military Commissions Act, and he has no constitutional entitlement to habeas corpus. Hamdan's habeas petition must accordingly be dismissed for want of subject matter jurisdiction."

Jose Padilla Transport Video Capture Slides

2006-12-03T23:37:00.000-08:00

The NYT has reported on the conditions of Jose Padilla's confinement in Florida. I attach, below, pictures that have been filed in the federal district court to show the "outrageous conduct" of the government which the defense says precludes prosecution. These slides are a matter of public record and are available from the court. The slides are taken from a video capture that has not been publicly filed with the court in its entirety.

As Deborah Sontag reports,

Padilla, fitted with blacked-out goggles, was videotaped by the government when he was allowed outside solitary confinement to see a dentist. One spring day during his three and a half years as an enemy combatant, Jose Padilla experienced a break from the monotony of his solitary confinement in a bare cell in the brig at the Naval Weapons Station in Charleston, S.C.
Several guards in camouflage and riot gear approached cell No. 103. They unlocked a rectangular panel at the bottom of the door and Mr. Padilla’s bare feet slid through, eerily disembodied. As one guard held down a foot with his black boot, the others shackled Mr. Padilla’s legs. Next, his hands emerged through another hole to be manacled.
Wordlessly, the guards, pushing into the cell, chained Mr. Padilla’s cuffed hands to a metal belt. Briefly, his expressionless eyes met the camera before he lowered his head submissively in expectation of what came next: noise-blocking headphones over his ears and blacked-out goggles over his eyes. Then the guards, whose faces were hidden behind plastic visors, marched their masked, clanking prisoner down the hall to his root canal.

Pictures of that transport:

An expert psychiatrist for the defense has testified, after 22 hours of examination, that Mr. Padilla's treatment has made him unable to understand the proceedings against him and assist his lawyers.

It's important to understand that these pictures provide only a glimpse of Mr. Padilla's living conditions. Read the whole NYT story and place yourself in the shoes of this man who guards say behaves more like a "piece of furniture" than a human being.

Imagine this life. The man hasn't even been tried yet, and would be held under much better conditions if he had not been labeled an enemy combatant by the Administration (as opposed to the conditions seen here, or even state or federal prison). Padilla faces two charges that each only carry a maximum of fifteen years.

UCLA Students to Protest Tasers Today

2006-11-17T13:43:00.000-08:00

USNews.com: PaperTrail: Elizabeth Green:

"UCLA Students to Protest Tasers Today"

UCLA students plan to hold a protest today in response to university police officers' repeated use of a Taser gun against a student Tuesday, Inside Higher Ed reports, linking to this Facebook announcement of the march. Police hit Mostafa Tabatabainejad four times with a Taser after he failed to provide a student ID card during a random check, the Daily Bruin reports. The Facebook announcement calls on students to join the march "not just because you're Persian/Iranian but because you care about your fellow human beings." A cellphone videotape of the evidence, obtained by the Daily Bruin, gives a detailed account of the library incident.

Posted at 11:08 AM by Elizabeth Weiss Green.

Objective - Justice - CNN.com - Law

2006-11-17T10:55:00.000-08:00

Shamelessly cribbed from Objective - Justice:

UCLA taser victim

posted by Sean Sirrine @ 5:40 PM
This is an obvious violation of this UCLA students rights. First, he is tased because he doesn't show the officers his ID. As far as i know there is noe requirement that you show officers your ID unless you are commiting a crim or driving a car. (Unlike Nazi Germany.) Then after he is tased, they continue to use the taser against him because he won't stand up. This is absolute and utter crap. A police officer may use a taser to subdue someone, but cannot use it to make him obey orders once he is subdued.

Here is video of the incident thanks to You Tube and a student with a phone.

Apparently the victim was Muslim. His name is Mostafa Tabatabainejad.

Here is the UCLA's newspaper report in full:

UCPD officers shot a student several times with a Taser inside the Powell Library CLICC computer lab late Tuesday night before taking him into custody.

No university police officers were available to comment further about the incident as of 3 a.m. Wednesday, and no Community Service Officers who were on duty at the time could be reached.

At around 11:30 p.m., CSOs asked a male student using a computer in the back of the room to leave when he was unable to produce a BruinCard during a random check. The student did not exit the building immediately.

The CSOs left, returning minutes later, and police officers arrived to escort the student out. By this time the student had begun to walk toward the door with his backpack when an officer approached him and grabbed his arm, at which point the student told the officer to let him go.
A second officer then approached the student as well.

The student began to yell "get off me," repeating himself several times.

It was at this point that the officers shot the student with a Taser for the first time, causing him to fall to the floor and cry out in pain. The student also told the officers he had a medical condition.

UCPD officers confirmed that the man involved in the incident was a student, but did not give a name or any additional information about his identity.

Video shot from a student's camera phone captured the student yelling, "Here's your Patriot Act, here's your fucking abuse of power," while he struggled with the officers.

As the student was screaming, UCPD officers repeatedly told him to stand up and said "stop fighting us." The student did not stand up as the officers requested and they shot him with the Taser at least once more.

"It was the most disgusting and vile act I had ever seen in my life," said David Remesnitsky, a 2006 UCLA alumnus who witnessed the incident.

As the student and the officers were struggling, bystanders repeatedly asked the police officers to stop, and at one point officers told the gathered crowd to stand back and threatened to use a Taser on anyone who got too close.

Laila Gordy, a fourth-year economics student who was present in the library during the incident, said police officers threatened to shoot her with a Taser when she asked an officer for his name and his badge number. Gordy was visibly upset by the incident and said other students were also disturbed.

"It's a shock that something like this can happen at UCLA," she said. "It was unnecessary what they did."

Immediately after the incident, several students began to contact local news outlets, informing them of the incident, and Remesnitsky wrote an e-mail to Interim Chancellor Norman Abrams.

"We Will Not Be Silent" T-Shirt Exposes More Racial Profiling, This Time by the Government

2006-10-24T10:54:00.000-07:00

PEACEFUL PROTEST IN RESPONSE

The profiling of Americans based on their wearing of clothing bearing Arabic script continues. As noted on this blog, Racist JetBlue Airlines made a man of Middle Eastern descent change his shirt and sit at the back of the ~~bus~~ (sorry, plane).

The incident began the We Will Not Be Silent movement. Thousands have ordered the t-shirt worn by Mr. Jarrar on that flight with the intention of spreading the message, especially at airports and other transportation venues (like subways, etc.).

Now, the U.S. Coast Guard is violating Americans' Fourteenth Amendment rights to not be racially profiled and denied free movement. This is exactly the Constitutional violation that began the Civil Rights Movement (link to Montgomery Bus Boycott website).

Stephanie Schwartz writes:

On Monday, October 9th, I boarded the Staten Island Ferry wearing a shirt that reads "We Will Not Be Silent" in English and Arabic. Immediately after boarding, my four armed Coast Guard officers positioned themselves around me and my friends. Every so often you see the Coast Guard patrolling the ferry, but I've never seen a bunch of them standing in one place before. I joked to my friends that this was a response to my shirt, but I didn't really believe that they would put so much security on me. As I got off the boat, I was stopped by a Coast Guard officer.

Officer: You'd better not wear that shirt here anymore.

Me: Excuse me?

Officer: It's not safe to wear that shirt in high security places.

Me: What about my shirt makes it unsafe? What do you think it means?

Officer: Isn't that Arabic writing?

Me: Yes. Is there something wrong with Arabic writing?

Officer: Well, do you remember what happened with that guy on Jet Blue?

Me: Yes. I remember that. It was racial profiling.

Officer: Well, you're obviously not a threat, but someone else wearing that shirt...

Me: Are you saying that an Arab wearing a shirt in Arabic is a terrorist?

Officer: I'm just saying you'd better not wear that shirt here anymore.
This is one of many examples of anti-Arab racism that has become so prevalent in the US since September 11th, 2001. Now, it has come to the point when Arabic writing itself is under attack. We need to stand up to racist law enforcement officers to seek to silence and scare Arabs and Muslims from speaking out against the US and Israel's wars in the Middle East.

Stephanie Schwartz
stephschwartz@gmail.com

NOTICE: Due to Presidential Executive Orders, the National Security Agency may have read this email without warning, warrant, or notice, and certainly without probable cause. They may do this without any judicial or legislative oversight. You have no recourse or protection save to call for the impeachment of the current President.

To protest this latest, egregious violation of Federal Constitutional rights by the Federal Government, the movement protested Monday on the ferries. The second civil rights movement is beginning.

To get a shirt, send an email here - payment is optional but I recommend contributing if you can, to allow for more shirts for those who can't. Wear the shirt whenever you travel, and if someone asks you about it spread the word that our civil rights are still not safe.

UPDATE: This story makes more sense now in light of a recent news release by the ACLU that DoD has been spying on almost 200 protests and has dossiers on 2000+ people.

Tipping point for Democratic Mid-term Takeover?

2006-10-10T18:48:00.000-07:00

Via Newshour (PBS Oct 10, 2006):

Democrats fare better than Republicans in polls asking who would do a better job on the War on Terror.

Still haven't seen any polls of views on torture...

Congress violates Constitution, allows President to Overstep Constitutional Authority

2006-09-29T03:25:00.000-07:00

Article I, Section 9 of the Constitution prohibits Congress from suspending the writ of habeas corpus except in times of rebellion, that is when the courts are no longer functioning. Congress has just done this, and in two short weeks no less. If this act passes muster in the Supreme Court, we're no longer living in a free country.

Marty Leberman take Julian ku to task at Opinio Juris: Opinio Juris Has the Writ of Habeas Corpus Been Suspended? Nope. (Updated)

Marty Lederman:
Julian: The versions I've seen, including the version the House (and presumably the Senate) approved -- http://makeashorterlink.com/?E11E53DDD -- cut off habeas for all "enemy combatant" aliens, without geographic restrictions (and including, presumably, even POWs). If that's right, it would overrule Quirin (habeas for aliens in the U.S.) and Yamashita (alien in occupied territory), as well as Rasul.

You write: "Congress, rightly or wrongly, has the power to limit the scope of federal court jurisdiction over claims filed by aliens outside the U.S. The Supreme Court has not ruled otherwise, at least not yet."

First of all, what about the power to limit habeas rights of aliens in the U.S. or its occupied territories? Can Congress eliminate that, as it appears to have done here? Second, I will concede that the Court has not yet ruled "otherwise," because it hasn't addressed the question directly. But why are you so certain that Congress "has the power to limit the scope of federal court jurisdiction over claims filed by aliens outside the U.S.," especially in Guantanamo, over which the U.S. has complete control? If you think Congress could not suspend habeas as to detainees we bring to South Carolina, but could suspend it if we instead bring the same detainees to an offshore island, what possible constitutional sense would such a distinction make?

Oh, and by the way: Your title is "Has the Writ of Habeas Corpus Been Suspended? Nope."

Well, it has been suspended. Today it exists for aliens in the U.S., in occupied territories, and at GTMO (and perhaps elsewhere). Tomorrow it won't. It *might* be that this suspension is not one the Suspension Clause recognizes because the persons in question are aliens -- although you've given no basis for that, and the text of the Clause doesn't provide one -- but a suspension it most surely is. Just ask any of the detainees with petitions currently pending.

Marty Lederman:
1. "And I don't think Quirin or Yamashita actually established that the habeas right exists in those cases, which was also not directly considered."

Not so. In each case, the Court rejected the President's assertion that he could deny the detainee the right to challenge the legality of military-commission proceedings (and detention) by writ of habeas corpus. See Quirin, 317 U.S. 1, 25 (1942) ("neither the [President's] Proclamation nor the fact that they are enemy aliens forecloses consideration by the courts of petitioners' contentions that the Constitution and laws of the United States constitutionally enacted forbid their trial by military commission"); Yamashita, 327 U.S. 1, 8-9 (1946) ("The courts may inquire whether the detention complained of is within the authority of those detaining the petitioner. . . . [Congress] has not foreclosed their right to contend that the Constitution or laws of the United States withhold authority to proceed with the trial. It has not withdrawn, and the Executive branch of the government could not, unless there was suspension of the writ, withdraw from the courts the duty and power to make such inquiry into the authority of the commission as may be made by habeas corpus.").

2. "[T]he habeas right . . . certainly exists within the territorial U.S. for . . . legal residents."

I take it you mean here a *constitutional* habeas right. If so, I assume this means you agree the bill is unconstitutional as applied to alien residents of the U.S.

3. "It is simply not clear that the Constitution extends all of its rights, including its habeas rights, outside the U.S.- even to occupied territories. Maybe it should, but the Court has never gone that far."

Agreed -- but then, shouldn't the heading of your post be changed from "Has the Writ of Habeas Corpus Been Suspended? Nope." to "Is Congress's suspension of the Writ of Habeas Corpus Unconstitutional? Yes as to resident aliens, but the Question Remains Unresolved as to aliens outside the U.S."?

As one other poster (don't know where or who) said, "Well, at least we get to see what constitutional habeas looks like."

Tyranny

2006-09-27T22:41:00.000-07:00

Via Marty Lederman atBalkinization, who points to the (appropriately) "strongly worded New York Times editorial":

Rushing Off a Cliff

Here’s what happens when this irresponsible Congress railroads a profoundly important bill to serve the mindless politics of a midterm election: The Bush administration uses Republicans’ fear of losing their majority to push through ghastly ideas about antiterrorism that will make American troops less safe and do lasting damage to our 217-year-old nation of laws — while actually doing nothing to protect the nation from terrorists. Democrats betray their principles to avoid last-minute attack ads. Our democracy is the big loser.
"

Greenpeace wins against polluting tanker

2006-09-27T20:24:00.003-07:00

A few days ago Greenpeace "blockaded" a tanker. I wondered at the time what that meant, but there wasn't much on the wires about it. Turns out,

On Tuesday night, environmental protesters hooked themselves up to the ship's mooring lines to stop it leaving. They were later arrested by border guards and fined.

Greenpeace said the activists had moved in when they heard the ship, which they have tried to blockade by anchoring a protest vessel nearby, was about to sail.

Greenpeace won approval for the action from the Estonian government, which impounded the ship - the Probo Koala - after it "discharged toxic waste in Africa that has killed at least eight people, on suspicions it was flushing similar waste into the Baltic sea."

And now,

Trafigura, the Dutch-based oil trading firm which had chartered the ship, issued a statement late on Wednesday denying that the vessel had been impounded and said it had commissioned an international inquiry to examine the Ivory Coast incident.

Thousands of people in Ivory Coast have suffered vomiting, stomach pains and other symptoms caused by toxic fumes from waste from the ship in late August. The incident has stretched the country's health services and forced its cabinet to resign.

Estonia's Environment Ministry said tests of the Baltic waters around the vessel had shown disturbing results.

"Preliminary analysis shows that it contains similar substances as those in the Ivory Coast," a spokesman said.

Trafigura, however, disputed the findings.

"The waste on the Probo Koala in Estonia is not the same waste as discharged in Adidjan," it said in the statement.

The firm has described the waste dumped in Ivory Coast as "chemical slops", a mixture of gasoline, spent caustic soda and water and said it was a normal by-product of cleaning tanks used to transport fuel.

I hope responsible parties are fined as much as possible, preferably out of their pockets.

US and world perceptions of the UN

2006-09-18T22:22:00.000-07:00

The UN gets no respect.

In the United States, Annan, who ends 10 years in office on December 31, and the world body are often viewed as standing in the way of American objectives. Elsewhere, he and the U.N. Security Council are often seen as doing America's bidding.

Reuters

hey i made this thing

2006-09-18T20:48:00.000-07:00

here

Racist Jet Blue Blames Racist Customers, Passes the Buck to the Media

2006-09-15T15:53:00.000-07:00

I'm sure white southerners were also "concern[ed]," "confused," and "uneas[y]" when black students wanted to eat at Woolworth's. That doesn't make violating civil rights ok. In fact, that's exactly why Congress passed Title II.

From: Dear JetBlue Mailed-By: jetblue.com
To:
Date: Sep 15, 2006 2:46 PM
Subject: JetBlue and TSA Security Concerns
Re: email received Wednesday,09/06/06 5:20 PM, Speak Up 1437965

Dear ******,

When you first wrote us expressing your thoughts on the situation at our terminal in New York's JFK airport involving Raed Jarrar, we provided the information we had at the time. We have since completed our internal investigation of the situation, and we would like to provide you with the results.

As you may recall, Mr. Jarrar was approached by JetBlue crewmembers and Transportation Security Administration (TSA) personnel prior to boarding his JetBlue flight. Their purpose was to talk with Mr. Jarrar and relay their observations of other customers' reaction to his T-shirt, which read "We Will Not Be Silent" in both Arabic and English. At no time was Mr. Jarrar told he would not be able to board his JetBlue flight unless and until he removed the T-shirt. The spirit of the conversation was to inform Mr. Jarrar of the unease or confusion other customers' had toward the T-shirt, which they apparently did not fully read or did not understand.

We agree with Mr. Jarrar that it is his Constitutional right to wear what he chooses. In fact, JetBlue does not have a policy regarding apparel, except in cases where profanity or vulgar images or messages may offend our customers. That guidance of course was not applicable in this situation.

Our crewmembers are responsible for providing safe and secure travel for all customers, however, and anything that causes concern or confusion at the airport or on the flight must be addressed, in a respectful and sensitive manner. Based on our investigation, we feel our crewmembers acted appropriately and with due sensitivity to Mr. Jarrar in addressing this situation. We also believe that TSA personnel acted appropriately and with all due respect toward Mr. Jarrar.

We believe the subsequent media attention of this incident will further sensitize and educate the public on the importance of diversity and acceptance, and as such, we welcome the public's scrutiny of our security measures.

Thank you for the opportunity to provide this information to you directly. We welcome feedback, because serving you is our purpose.

Best regards,
Jason Ward
Director Customer Commitment
JetBlue Airways

27 are hanged at Abu Ghraib in first mass execution since Saddam's fall

2006-09-12T13:29:00.000-07:00

Last week, after receiving control of the prisons, Iraq executed 27 people. Considering the state of the Iraqi justice and political systems, I have a hard time believing those sentences are the result of full and fair proceedings. What rights did these people have at trial?

27 are hanged at Abu Ghraib in first mass execution since Saddam's fall
By Oliver Poole, Iraq Correspondent
August 9, 2006

Still Boycotting Racist JetBlue Airlines -- My Reply

2006-09-06T16:34:00.000-07:00

Jason:

Thanks very much for your reply. I do have a few comments on your form letter. I am getting my information from an account Mr. Jarrar wrote at OneWorld.net and so I apologize for any inaccuracies in my facts, which I have admittedly learned about from an interested party.

You imply that a t-shirt with Arabic script is "offensive or vulgar," and that security concerns and "sensitiv[ity] to the concerns of all of [y]our customers" require you to take the action you did. So your trying to pawn your company's decision off on other parties, presumably the government, given the OneWorld.net account, appears disingenuous. Your company must not assist the government in violating civil liberties.

I understand that an Inspector made the initial request for Mr. Jarrar to remove his shirt. However, the inspector informed Mr. Jarrar that JetBlue customers were complaining, so presumably the government was assisting the airline staff at the staff's request.

Also, your agent was also present and assisted the government agents. I would like to commend your agent for the apparently kind way she found another shirt for Mr. Jarrar to wear, although requiring him to change shirts is itself offensive and vulgar.

Finally, your agent put Mr. Jarrar in the back of the plane, adding insult to injury. I understand that she probably did this at the behest of the complaining customers, but doing so certainly shows those complaining customers that they were justified and that your company treats some people differently than others. If I found crying babies offensive and vulgar, I'm sure you would not accede to my wish that you put them in the back. In the same vein you should not accede to customers complaining of a shirt that itself expressed Mr. Jarrar's viewpoint that free speech is valuable.

Thanks for your time.

******

Racist JetBlue Replies

2006-09-06T16:24:00.000-07:00

From: Dear JetBlue

Mailed-By: jetblue.com

To: ******@***.***

Date: Sep 6, 2006 11:47 AM

Subject: JetBlue and TSA Security

Re: email received Thursday,08/31/06

Dear *******,

Thank you for giving us an opportunity to address the situation reported on DemocracyNow.org and other sites. Currently, we are working with the TSA to understand the situation. We are gathering information and our initial findings tell us that the request to have him remove his T-shirt was not made by a JetBlue Crewmember. We are confident that this investigation will help us all better understand the events of that day.

JetBlue has no policy regarding messages on apparel. We are a family-friendly airline. Anything offensive or vulgar will be discussed with the individual in a sensitive and respectful manner.

Our fundamental responsibility as an airline is to provide safe and secure travel for all of our customers. This requires us to be sensitive to the concerns of all of our customers, while also upholding the rights of the individual. We value diversity, among our customers as well as our crewmembers. We take our responsibility seriously, and should there be an opportunity to improve our effectiveness, we will take the appropriate action.

We appreciate your interest in this matter as well as your understanding of all our customers' needs. We remain available should you have any further questions or concerns.

Sincerely,

Jason Ward
Director Customer Commitment
JetBlue Airways

Boycott Racist JetBlue Airlines

2006-08-31T18:53:00.000-07:00

Customer Service Representative:

I find it outrageous that your company's racist policies force your customers to give up their constitutional rights in order to make a plane.

The way your company has treated Raed Jarrar, and by extension all of us who value our rights as Americans, is simply deplorable. I will never fly on your airline again and I will spread the truth about you at every opportunity, unless and until you publicly repudiate such behavior and institute personnel training, change your policies, or take other appropriate actions to ensure that your company does not discriminate on the basis of race, color, or creed, and does not force customers to choose between getting the use of a ticket they paid for and expressing their rights to free speech. We will not be silent.

Thank you for your time in this matter. I do hope that your company sees fit to change its ways. Doing so is in your financial interests as well as the constitutional and security interests of your customers and all Americans.

Sincerely,
+++++++ +++++

Monkey say, monkey do

2006-07-15T01:03:00.000-07:00

While the Lebanese Prime Minister calls for peace, Hezbollah pokes at Israel, which the bait.

Unperturbed by international criticism, the Government of Israel continued to pound Lebanon’s civilian infrastructure, destroying roads, bridges, fuel dumps and mobile telephone installations as well as Hezbollah targets, including a Beirut radio station.

Artillery, rockets and tanks mass along the border - World - Times Online. Israeli Lieutenant-General Yossi Kuperwasser, who recently stood down as Israel’s head of military intelligence research, says

“We want to hit Hezbollah really hard and enable Lebanese reform groups that want to see Lebanon prosper and become a real democracy be courageous enough and understand the need to do something themselves.”

Sounds like the Shock & Awe theory: Israel is "determined not merely to punish Hezbollah, but to destroy it once and for all as a military threat." There's more:

Lebanese police say that 66 people, almost all civilians, have been killed and at least 200 wounded in the past three days. The Lebanese accuse the Israelis of needlessly killing scores of civilians and destroying the country’s infrastructure. But Israel says that its F16s and artillery are striking buildings holding rockets and other Hezbollah weapons.

Collateral damage, then. Israel has copied America's rhetoric for using disproportionate force:

....Four other civilians were killed when an Israeli missile missed its intended target, Hizbullah's Al-Nour radio station, striking instead a residential apartment building in Haret Hreik.

Ali Assi, director of MP Marwan Fares' office, was killed when Israel took out the bridge leading from the Dahiyeh to Rafik Hariri International Airport.

Also, Israeli rockets were made in Texas - hey, were exporting everything!

Swift update

2006-07-12T02:25:00.000-07:00

a navy lawyer who argued for hamdan called the current adjudicative system in gitmo rigged. ouch on bush - his guys say congress should just enact exceptions to geneva conventions . . . . and bush's guys say treatment is already humane (and, given recent scotus opinions regarding the required constitutional treatment of prisoners, they're probably right), so the rest of common article 3 is being complied with already. i guess it doesn't matter how much face they save now; let 'em have it - the important thing is that we shouldn't be torturing anyone anytime soon (at least, not in gitmo, not officially). Also, because of political pressures Congress will get rid of the kangaroo courts (they could just give them the thumbs-up, i think). the Court went out of its way, again for political reasons, or judicially defensive/pragmatice reasons (they do have a constitutional duty to defend their governmental territory a/g the other branches) to make it clear that they were ruling on more than just the narrow issue of what procedural rights a detainee has and that they were actually rebuffing the Executive. Bush's guys statements today reflect their aquiescence to the mighty scotus (whicnh is easy to do when you're running a sinking ship of an administration and you appointed two of the nine, so you let them carry the day). The Rule of Law: Recognizing the Power of the Courts, Finally - New York Times

USDOJ answers Schumer - Hamdan, Grubbs, & The Program

2006-07-11T21:41:00.000-07:00

NSA.Hamdan.response.schumer.pdf (application/pdf Object)

Well, even though the AUMF doesn't grant him a blank check, prezbush says the Force Resolution grants him a get-out-of-FISA-free card. He can't torture, deny a trial-like proceeding, or us the fruits of the former in the latter, but he can spy on us. Another challenge in/to the SCOTUS next term then, then.

I still make a good point in saying that Grubbs is the decision that controls The Program. See my post on this blog, Reading Good News In The Tea Leaves. FYI The Program what the NSA (Nat'l Secuity Agency) and prezbush call spying on us.

Mushroom Drug Produces Mystical Experience

2006-07-11T00:34:00.000-07:00

Mushroom Drug Produces Mystical Experience

No shit!

China, U.S.A., and U.K. disagree

2006-07-10T23:50:00.000-07:00

only on how hard to slap n. korea

and...n korea and usa will be in beijing - they don't know if they're going to meet and want to see if the chinese can make something happen.

Judge licks

2006-07-10T23:16:00.000-07:00

The Courthouse -- a Poem

Retired Florida trial judge Steve Wallace (now of Utah) is my new favorite blogger.

Hamdan

2006-07-10T23:12:00.000-07:00

NPR is right in saying that, in the wake of the SCOTUS's decision in Hamdan (the best decision defense lawyers could hope for), Congress must either afford terrorism detainees a proceeding that accords with due process conerns (that is, a trial) or repeal the McCain anti-torture bill. Oh, and Bush doesn't have unitary authority. NPR : Congress Weighs Options on Tribunals. Damn, prezbush - you got slapped!

NPR also reports on Morning Edition that Repubs are saying this debate could tear their party apart like the Voting Rights Act tore the Dems apart in '64 (sourthern dems voting against, and remember LBJ pushed southerners to pass the act. Also, they (repubs) don't want to be seen as pro-discrimination here too (although I see it more as a hawkish stance than a discriminatory stance, although the logical step isn't too far).

To think Bush denied these placed existed and denied they had to provide due process. And now the JAG attorney who defended Hamdan (through detention including appeal) says he expects to lose his job.

Bush Doesn't Want the Best Law

2006-07-10T14:44:00.000-07:00

...in that he doesn't want the most objective, correct (if you're one of those absolutist types) legal advice but rather whatever pushing-the-envelope justification he can get for his actions:

from Chalk on Spikes at Balkinazation:

From everything I know, this is the model of legal advice that President Bush has expected of his lawyers, including OLC lawyers, with respect to the war against Al Qaeda. In Dana Priest's remarkable story the other day about the aggressive legal interpretations in this Administration in support of CIA covert action, there's this wonderful quotation from Deputy Director of National Intelligence Michael Hayden about their approach to the law:

"We're going to live on the edge. . . . My spikes will have chalk on them. . . . We're pretty aggressive within the law. As a professional, I'm troubled if I'm not using the full authority allowed by law."

This confirms what I've read in several places and what I've heard from numerous lawyers in the Executive branch: What the White House has asked of them is not to provide the "best," or most objective, view of the law, but instead to read the law as aggressively as humanly possible so as to give the President the broadest possible discretion in preventing another domestic attack: Don't worry so much about exactly where the line is -- it's ok to get chalk on your spikes. Lives are at stake. [UPDATE: Confirmation from Newsweek: "The message to White House lawyers from their commander in chief, recalls one who was deeply involved at the time, was clear enough: find a way to exercise the full panoply of powers granted the president by Congress and the Constitution. If that meant pushing the boundaries of the law, so be it."]

This confirms what many of us have known for some time now (since, oh, about the time of the yellow cake lies) - Bush has no respect for the truth, or even the law, in his quest for power (cue epic fantasy-video game music, cue voice-over "Quest for Power!").

SCOTUS news & notes

2006-06-27T11:45:00.000-07:00

I really don't have time to write about the decisions coming out, most of which are bad, which makes me even less inclined to write. So, some off-hand links and comments. Bottom line, Roberts' promise to issue narrow decisions without splits has not been met, esp re the touchier issues, crimlaw/procedure and environmental protection/regulation. I only relate crimlaw/proced cases interesting to me. For news on Randall v. Sorrell, holding that that the Vermont $1K campaign contribs limit was unconstitutional, see here.

Forbes, surprisingly, has reliably straight-shooting coverage of the SCt; these blurbs are no exception. Walter Dellinger gives us a meatier description of what's to come:

Yet to come are decisions involving the constitutional right to mount an insanity defense, regulation of prisoners' access to magazines and newspapers, whether there will be any meaningful judicial limits on partisan redistricting, the potentially explosive issue of whether the Vienna Convention creates individual rights that can be asserted in state courts and whether those state courts must respect rulings of the International Court of Justice—and, of course, the deeply important case of Hamdan v. Rumsfeld on the use of military trials in "war on terror" cases.

So....the biggie for today (yesterday, actually): KA v. Marsh:

Kansas law provides that if a unanimous jury finds that aggravating circumstances are not outweighed by mitigating circumstances, the death penalty shall be imposed. We must decide whether this statute, which requires the imposition of the death penalty when the sentencing jury determines thataggravating evidence and mitigating evidence are in equipoise, violates the Constitution. We hold that it does not.

Marsh at *1. A sentencing instruction requiring death if mitigation is "not outweighed" by aggravation is not facially unconstitutional, because the jury could consider all relevant mitigating evidence, including evidence tending to favor mercy in addition to evidence going to the defendant's character or the circumstances of the crime, where the State has the burden of disproving that aggravators do not outweigh mits. This suffices to satisfy the Court's requirements under Gregg v. GA that juries exercise "guided discretion." Scalia's Walton opinion is no longer laughable.

Scalia's a jerk (sorry, that's not Sicilian, but you get the idea): he wrote an angry dissent wherein he misrepresented a scholar's work, got the facts wrong, and extended his wrong-headed view that because the death penalty jurisprudence makes no sense (he's right there), but because people still want it (not so sure), then the Court can't really do much except issue opinions that let states do whatever they want. In reality, the correct conclusion is that the application of the penalty is arbitrary and capricious - wanton and freakish - in its application and must be abandoned. SCt opinions upholding a mandatory death penalty when the jury can't decide, or, in the Court's terms, when the jury's told that a decision that the two are in balance is a decision for death, show just how freakish our setup is. And it makes no sense to say that such a rule doesn't impose a presumption of death - it's mere word games to say that such a finding (of equipoise) is a decision for death.

When Thomas writes the 5-4 majority opinion in a pivotal death case, things ain't good. Bottom line, states decide how to sentence people, and all they have to do is tell the jury to "consider any mitigating evidence" and then they can make death mandatory when aggravating and mitigating factors are in "equipoise." We've got Roberts, C.J., Thomas, Scalia, Alito, and Kennedy, JJ., in the majority with Souter, Stevens, Ginsburg, and Breyer, JJ., dissenting. Kennedy keeps silent because he's still tinkering with the machinery of death (what some judges in the 80s refused to do after doing so for so long). If he switches, from the tone of the dissent, the penalty may fall by the wayside, or receive greater restrictions; apparently he's not ready to go there. The splits are deep, though, and I don't think the remaining criminal cases will be amicably written (four out of the five opinions to come), given that "[t]he depth and passion of the court's division on capital punishment is extraordinary." Dellinger, supra. "Four dissenting justices call the Kansas 'tie goes to Death' law 'morally absurd.' The five in the majority, by contrast, find no basis in the Constitution for imposing a tie-breaking rule on Kansas. They believe that the dissenters are simply voting their own raw policy preferences. That is a very wide gap." Id. Yes it is.

In Gonzales-Lopez, the court holds that a defendant who was denied his choice of counsel need not be harmed by the appointment of substitute counsel to receive a new trial.

In Recuenco, the Court holds that a Blakely violation (judge sentencing relying on facts/elements/sentencing factors not submitted to the jury, here that the offense was committed with a specific type of deadly weapon, namely a firearm) can be harmless. *1. "If the D had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other constitutional errors are subject to harmless error review." *5.

In Woodford v. Ngo, Alito writes for the Court and holds that when prisoners file prison grievances in order to "exhaust" their claims administratively, they must comply with all time deadlines if there's an effective remedy administratively. I'm thinking (and writing) that some mentally retarded inmates can't comply w/ the admin grievance procedures and thus that there's no "effective" admin remedy. In the alternative there's "cause" for default (MR) and/or enforcing the procedural default rule would result in a miscarriage of justice. For habeas/admin dorks, the Court further equates exhaustion with procedural default. *10. Laughably, the Court decides that "it is speculative that" "prison adminsitrators [will] devise procedural requirements that are designed to trap unwary prisoners and thus defeat their claims." *20. J. Breyer concurs to restate exceptions to the rule declared. *1 (Breyer, J. concurring in judgment only). Stevens, Souter, and Ginsberg, JJ., disagree that it's speculative to think jailers will make filing harder, and ask,"Does a 48-hour limitations period furnish a meaningful opportunity for a prisoner to raise meritorious grievances in the context of a juvenile who has been raped and repeatedly assaulted, with the knowledge and assistance of guards, while in detention?". *19, citing Minix v. Pazera, 2005 WL 1799538, *2 (ND Ind., July 27, 2005), No. 04-447. Also, the dissenters separate exhaustion and procedural default by correctly noting that waiver should not happen where there was no adversarial process at the admin level. Dissenters also accuse the majority of judicial activism / legislating from the bench, *14, and point out that denying access to courts implicates the Equal Protection Clause.

Federico Cheever has a blunt assessment of the opinions in Rapanos, which addressed the definition of "wetlands" under the Clean Water Act: Muddled ruling on wetlands leaves nation with big mess - baltimoresun.com (June 26, 2006).

In slightly older opinions, the Court held in Samson v. CA that parolees have no fourth amendment rights against a police officer's conducting a suspicionless search, in Davis v. WA that 911 calls made for the purpose of helping police save lives, as opposed to investigate and prosecute for past events, are admissable without cross-examination of the available declarant, in Youngblood v. WV, bizarrely, that it needed more evidence from the state courts on petitioner's claim of police misconduct. I do agree with Scalia in Youngblood: "The Court purports to conscript the Judges of the Supreme Court of Appeals of WV to write what is essentially an amicus brief on the merits of an issue they have already decided, iin order to facilitate our possible review at some later time....the GVR order rests on nothing more than our statement that it would be 'better' for the lower court to reconsider its decision (much as a mob enforcer might suggest that it would be 'better' to make protection payments)." *3-4, Scalia, J. dissenting. Scalia also introduced me to some new vocabulary: Verb. sap. = verbum sapienti, which means "a word to the wise [is enough]." He dropped it in order to tell the WV SCt to "on remand, simply reaffirm its judgment without further elaboration," in order to avoid "encourag[in] and stimulat[ing] the new 'GVR-in-light-of-nothing' jurisprudence." *5, Scalia, J. dissenting.

Second only Marsh in importance as of yet this term is House v. Bell, which held that "House has made the stringent showing required by the actual-innocence exception" and that he could pursue federal habeas. House has discovered "troubling" new genetic evidence and has obtained a "putative confession" from the real killer. Kennedy, Stevens, Souter, Ginsburg, and Breyer, JJ., join the majority (there's that swing voter Kennedy, compare his vote in KA v. Marsh, supra). Thank G_d the SCOTUS hasn't completely lost its mind yet. House's evidence doesn't meet the "freestanding innocence" exception (no case has yet to my knowledge), but he does show that had the jury heard all the conflicting testimony is more likely than than not that no reasonable juror viewing the record as a whole would lack reasonable doubt, such that he has shown cause for his procedural default of the claim in state courts (by the time he got decent counsel and investigators to find these new facts, which may have been hidden by the State, the state deadlines for filing a habeas claim had run). *34.

As for grants of certiorari, I'm not up on it. I do know that the SCt "will determine if EPA has authority to regulate greenhouse gases." Interesting.

The Moral Relevance of Execution Suffering

2006-06-23T16:58:00.000-07:00

PrawfsBlawg questions (in a Socratic, leading manner) why we care if execution witnesses see what appears to be (but might not be) suffering. I haven't been served a softball in a while so i though i'd share my brilliant rejoinder:

The comfort of witnesses has moral relevance. If the penalty is not cruel and unusual because deterrence is a valid penological goal, then it is moral for government to make the condemned man suffer as much as possible before death. Suffering or torture may in fact be morally required (for the sake of effectiveness at preventing more murders) but in any case suffering, indeed even torture, should certainly be allowed.

However, executions should not be by torture (all agreed on this axiom?). See USConstit 8am. So deterrence is either not a valid goal or can only inform the process so far. Is a little pain good? How much? Is society's idea of how much is too much diminishing to the point where the answer is 'any'? At that point deterrence is no longer a legitimate goal under contemporary standards of human decency (in fact it's never a legit goal if you value people as such but we'll stick w/ the unjust precedent here).

Let's see about retribution as a goal. Again, the more suffering the better, right? If the DP is allowed b/c retribution is ok, then there may be a moral requirement to get the most bang for the buck, thus a requirement to torture or at least disregard suffering at death (see articles quoting families of victims re the lethal injection debate).

My point is that if people are bothered by a little twitching, we should stop tinkering with the machinery of death. Maybe we’re not brutes that enjoy killing, and maybe we should stop doing it. Unfortunately the Supreme Court has kept this issue out of the civil rights area (for example, they wouldn’t even hardly mention the issue of race in the rape cases) and leaves it up to the vagaries of public opinion (with the added vagaries and corruption caused by looking to the “objective” evidence of trends among elected officials). But we may (at least on either side of the not-very-smartland) be reaching a point where even under this structure executions are cruel and unusual.

Killing killers is killing us.

Reminder, kids: Republicans appoint Justices who are around 50 yrs old, Dems go for the senior citizen crowd. Let's hope those lefties hold on through their 80s--which they are now in.

Forest Guardians v. U.S. Forest Service

2006-06-13T14:58:00.000-07:00

Forest Guardians wins right to input of the Fish and Wildlife Service re: moving cows off of Arizona federal national forest grazing land in favor of spotted owls and minnows. Good case. And a great name.

0416179.pdf (application/pdf Object)

by any other name

2006-04-21T18:17:00.000-07:00

news hour reports "running gun battles on the streets" of "Baghdad & other cities" between "neighborhood Sunni militias and Shiite security forces"

yikes!

Who else loves the Falun Gong (sp?) protestor who balled out pres hu on the white house lawn? hu met with boeing, microsoft, starbucks (whaa??) et al in seattle - what a shitshow. we keep our thumb on cuba while we kiss china's ass? we kick iran in the shins while throwing money at n korea? i don't get it

bush turned his back on the woman to face hu, hands folded in front. so much for the importance of religion in public life (maybe just spirituality, given fg's positions?)

fascinating

2006-04-19T03:07:00.000-07:00

this whole blog is spam (i think)

By golly!

2006-04-19T02:08:00.000-07:00

Rumsfeld's a dork when he's defensive. and did you know he stands for eight hours a day at work? he offered that as justification for using forced standing for torture!

Weird how this story doesn't seem that big a deal to me (the outspoken generals, not the torture! that story is so last week) . . why did i just now realized i'm not as shocked as i should be . . . must be the torture (hard to beat, that one).

by the way, he compares his pressing for the war to disagreeing over a tank design. only pattern i see there is that he puts way too much energy into thinking about killing people.

Reading good news in the tea leaves

2006-03-21T11:25:00.000-08:00

Today J. Scalia writes a unanimous opinion setting the court up to veto warrantless wiretapping of the type that "casts a wide net" by datamining all ordinary conversations, in U.S. v. Grubbs, __ U.S. __ (Mar. 21, 2006), No. 04-1414. Delineating the standard for probable cause needed to issue an "anticipatory" warrant to search a house which would receive child porn in the mail (after a sting set up by the USPS & local cops), the Court writes:

"Anticipatory warrants are, therefore, no different in principle from ordinary warrants. They require the magistrate to determine (1) that it is now probable that (2) contraband, evidence of a crime, or a fugitive will be on the described premises (3) when the warrant is executed. It should be noted, however, that where the anticipatory warrant places a condition (other than the mere passage of time) upon its execution, the first of these determinations goes not merely to what will probably be found if the condition is met. (If that were the extent of the probability determination, an anticipatory warrant could be issued for every house in the country, authorizing search and seizure if contraband should be delivered though for any single location there is no likelihood that contraband will be delivered.)

"Rather, the probability determination for a conditioned anticipatory warrant looks also to the likelihood that the condition will occur, and thus that a proper object of seizure will be on the described premises. It must be true not only that if the triggering condition occurs there is a fair probability that contraband or evidence of a crime will be found in a particular place, . . . but also that there is probable cause to believe the triggering condition will occur."

So a warrant-issuing court (even a secret one, presumably) must believe that a party on the phone is actually a terrorist or that some other crime will occur (e.g., a RICO violation of planning a conspiracy, etc.), not just that there are terrorists who use phones.

Well, that's all common sense, right? Of course that such a passive search of all telecommunications would be illegal! Of course the poisonous fruits of such searches couldn't be used to secretly lock us up without a day in court! Hmm . . . but that's what happening, or at least what the administration wants to allow . . . how's that work? Newsflash, ladies: the Fourth Amendment has been neutered over the last 20 years -- this small statement is actually something to be happy about. Until the 5-4 decision, again written by Scalia, comes along to distinguish away some more common sense. Hopefully even he can't go back on this one. But see Summerlin v. Schriro (2005), wherein J. Scalia used his vote to reject application of the Ring decision, which in 2002 required that death sentences be handed down by a jury, to pre-Ring cases (given the high-falutin' language in Ring the Schriro decision is just appalling in how clear it makes the Court's occassionally-apparent hypocrisy).

well-written

2005-12-03T14:54:00.000-08:00

appellate squibs here.

Countering Misinformation

2005-12-03T14:37:00.000-08:00

is apparently worth entering a "gray area"

Public voyeurism

2005-11-27T00:39:00.000-08:00

it is a nice shot. i must say, i don't have the instinctual moral qualms with taking pictures of whatever one can see (people can always close the blinds, and should expect to be seen in manhatten), but it's interesting to see the posters' intuitions that something's wrong with using others as subjects.

Not them, too!

2005-11-14T19:03:00.001-08:00

I thought the Guardian had objective, socially-minded journalism. Wondering I am now. Oh well, I've forgotten about the Times scandal already--but that was just one reporter. This seems endemic to the editorial staff. They still haven't finished their investigation that started two weeks ago...interesting. Um, here's a clue guys--you matched the right answer with the wrong question. Question is, was it on purpose? Either an investigation will answer that question quickly or never at all.

Unembedded

2005-11-14T19:01:00.000-08:00

Great shots, great coverage. DYI journalism, with a nice shiny jacket. I want.

Anger

2005-11-11T01:42:00.000-08:00

Of course, it's not the way to live your life. It's not the emotion on which to base any sort of policy. It may even be a "secondary emotion" that's more harmful than productive. But don't images like the ones conjured up by our corrupt military make people angry? Gotta check the papers tomorrow.

I could hardly work today. I could hardly give the cashier my six dollars for a gyro and coke at lunch, knowing that civilians had been burned alive in her name, or at the least that she probably didn't know about it, didn't care, felt resigned, or didn't even identify with her country that's doing this shit.

What to feel-----Pity? Disbelief? Resignation? Disengenuous indignation? Or am I just arrogant in thinking that I'm the only one that feels this way...are others just better at putting on a happy face?

I feel like spitting on soldiers.

The Evil Empire is US

2005-11-10T13:58:00.000-08:00

Lies from a government intent on going to war for the benefit of those in power.

Secret torture camps.

And now,
chemical holocaust.

This is too much. This is not poor v. rich, nor liberal v. conservative. We should all agree that the United States has crossed over, once again. Let this be known.

NM v others

2005-11-07T21:27:00.001-08:00

NM 1, others 0.

Not looking good

2005-11-07T15:15:00.000-08:00

for broadcast flag legal challenges. Of course, it's a settlement, but better tea-leaf-readers than I were in charge of whether and for what to settle for. Looks like the ghost given up has been.

More bad IP news

2005-11-05T10:41:00.000-08:00

Snippet from EFFector Vol. 18, No. 38 November 4, 2005 (EFF's email newslist) below. The problem is that, while the FCC didn't have power to do this, Congress certainly does.

The court case that killed the flag rested on somewhat different (and thankfully less creative, for the sake of appeal) grounds than the paper in the previous post on this blog, but the point there was still that the FCC lacked authority. If this gets through Congress there'll be no such available administrative law challenge, and future VCRs (like your TiVO and the DVR box from the cable co.) will probably not be able to record programs if the monolithic media industry doesn't want them to. One more step in taking culture out of the citizenry's hands.

The only remaining challenge I can see would be a 1st amendment argument under Eldred v. Ashcroft (see Ginsberg's admission of such a cause of action in the paper posted prior to this one). Which I would bless if I were a judge...I wonder what the new conservatives on the court would think. They don't seem to be too corporatist, do they? We just dunno yet.

: . : . : . : . : . : . : . : . : . : . : . : . : . : . :

* Action Alert: Horror Triple Bill for Digital Technology

This Thursday, the heads of the MPAA and RIAA presented to
the House Subcommittee on the Courts, the Internet, and
Intellectual Property their plans for the future of digital
technology. They gave the House drafts of three bills they
would like passed: the Analog Content Protection Act, the HD
Radio Content Protection Act, and the Broadcast Flag
Authorization Act. These proposed laws are truly a horror
triple bill.

For high-definition television (HDTV), the MPAA demands every
receiver must have, and obey, their broadcast flag. For new
radio technologies, the RIAA will restrict you to recording
radio shows for a minimum of 30 minutes, for a maximum of 50
hours.  And all analog to digital video conversions will be
forced to watch for, and obey, a concealed signal, refusing
to digitize any image that contains a key watermark.

If any one of these provisions passes, it would be disaster
for you and for innovation.

Visit our Action Center, and warn your representative of what
Hollywood's horror bills would do to the digital future!



More info:

EFF Analysis: Halloween on the Hill


The MPAA's Analog Hole Bill:


The RIAA's HD Radio Bill:


The Broadcast Flag Bill:


: . : . : . : . : . : . : . : . : . : . : . : . : . : . :

a paper on the broadcast flag

2005-11-05T10:39:00.000-08:00

hmm...this paper has no footnotes...looks like there should be some...i bet i could get the author to repost a copy with citations if she knew of a free online anonymous publisher......any ideas, friends?

:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:

The Invalidity of the FCC’s Broadcast Flag Rule – Sony v. Universal, FDA v. Brown & Williamson Tobacco, and other Possible Battles

In early November 2003, the Federal Communications Commission published its final broadcast flag rule in the Federal Register. The Rule would require hardware manufacturers to include circuitry in their products to recognize the media industry’s ATSC Flag, and not record if the flag is set to “on.” This requirement effectively terminates what the Supreme Court has determined to be a “fair use” of broadcast material, keeping consumers from time-shifting any materials a distributor chooses to flag. Not only does the rule put the FCC squarely in the middle of a contentious issue in intellectual property law, legislative wrangling preceding the rule calls into question its propriety under agency jurisprudence. The FCC rule may be invalid for lack of enactment power by the agency.

I. Sony v. Universal Studios (1984) and the Need For Congressional Action

Sony held that Congressional action was necessary to ban the sale of recording equipment with substantial noninfringing uses on copyright bases, because to sanction or limit the sale of these “staple articles of commerce” based on a copyright claim would require a careful reanalysis of fair use, for which the court deferred to Congress. Congress deserves deference on intellectual property issues because of its constitutional authority and its institutional competence to resolve complicated balancings of interests. Since time-shifting was deemed noninfringing fair use, and thus “a significant portion of the product's use [was] noninfringing,” VCR manufacturers could not be held contributorily liable for the product's infringing uses unless Congress changed what fair use meant. Indeed,

One may search the Copyright Act in vain for any sign that the elected representatives of the millions of people who watch television every day have made it unlawful to copy a program for later viewing at home, or have enacted a flat prohibition against the sale of machines that make such copying possible. It may well be that Congress will take a fresh look at this new technology, just as it so often has examined other innovations in the past. But it is not our job to apply laws that have not yet been written. Applying the copyright statute, as it now reads, to the facts as they have been developed in this case, the judgment of the Court of Appeals must be reversed. It is so ordered.

This principle holds true today as it did then—indeed, the Digital Video Recorders (DVRs) regulated by the Broadcast Flag Rule are essentially digital VCRs—and Congressional action is just as necessary here because the fair use analysis calls for just a sensitive balancing of interests. The FCC has now gone behind Congress’s back and implemented a rule that the Legislature decided last term would be bad policy. The legislature is the best determiner of difficult policy questions, not the FCC, and the only body entrusted by the Constitution to make these complex decisions. The same reasons the Sony court deferred to Congress are reason why future courts should not defer to the FCC. However, Sony alone will probably only inform a court that the broadcast flag is bad policy; another avenue is necessary to convince a court to nullify the agency rule.
Opponents of the new rule can do more than complain that the FCC broadcast flag rule is a slap in the face to the Sony Court’s reasoning and values. A party challenging the validity of the rule—e.g., a defendant hailed into court for selling nonconforming DVRs, or a party looking for declaratory relief—could point to FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 120 S.Ct. 1291 (2000), and claim a lack of authority of the FCC to enact the Broadcast Flag rule. This short paper will examine the applicability and robustness of this case relative to possible challenges to the rule.

II. FDA v. Brown & Williamson Tobacco (2000) – Two Inquiries

In this battle between the tobacco companies and the Food & Drug Administration, the FDA claimed it had jurisdiction to regulate tobacco products. The Court examined two factors in determining the agency’s jurisdiction to enact that regulation, and determined that the FDA did not have the power necessary to regulate cigarettes. These two factors will both cut against a finding that the FCC had jurisdiction to implement their broadcast flag.
The first relevant inquiry is whether Congress has directly spoken to the issue, either in the statute forming the agency, or in subsequent legislation. This inquiry is crucial, given that “regardless of how serious the problem an administrative agency seeks to address … it may not exercise its authority in a manner that is inconsistent with the administrative structure that Congress enacted into law.” This is because “an administrative agency's power to regulate in the public interest must always be grounded in a valid grant of authority from Congress.” If Congress has not given regulatory power to an agency, that agency cannot simply assume that power.
To determine whether the statute creating the FDA included in its grant the power to regulate tobacco, the Court focused on the act’s “essential purpose” and the “mission” that it laid out for the FDA, and determined that it was not the FDA’s job to regulate tobacco. As for subsequent legislation, Congress had “foreclosed the removal of tobacco products from the market,” because it had visited the issue of banning tobacco and declined to do so. Rather, given the great economic value of the tobacco industry, Congress had decided to require only labeling and advertising restrictions; Congress’s intent was that tobacco continue to be sold in America.
Second, J. O’Connor tells us that courts must “be guided to a degree by common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency.” In FDA, the Court found it highly unlikely that an issue that had so divided citizens and the legislature could be so easily, or wisely, decided by bureaucrats. Also, the fact that Congress had relied on the FDA’s assertion of a lack of jurisdiction in regulating tobacco after creating the FDA showed that Congress apparently agreed: “Congress' tobacco-specific legislation has effectively ratified the FDA's previous position that it lacks jurisdiction to regulate tobacco.”

III. The Balancing of Interests Within the Senate: The CBDTPA and the “Subsequent Legislation” Prong of FDA’s First Inquiry

Just as in FDA, an agency has been precluded from enacting a ban on an important economic article because Congress has “considered and rejected” a bill that “would have given the agency such authority.” Just as in FDA v. Brown & Williamson Tobacco—where Congress held hearings on whether to ban a specific, important article of commerce and declined—here Congress declined to ban the sale of DVRs that could be used to record “flagged” programs.
On March 21, 2002, Sen. Fritz Hollings introduced S.2048 – the Consumer Broadband and Digital Television Promotion Act. The CBDTPA would have required hardware manufacturers to include computers in their products that would recognize a “Broadcast Flag” and not record if this flag were set to “on.” The discussion that went into this legislation, and the fact that the bill “went nowhere,” shows that Congress not only considers copyright beyond the FCC’s jurisdiction, but that Congress has also already balanced the interests necessary to make a broadcast flag comply with Sony, and decided against doing so.
The reviews had been mixed at the hearings Hollings held a few weeks earlier, but showed that Congress was willing to listen. However, trouble soon brewed for the flag. Two lobbying groups—who thought the first round of hearings were “stacked”—and the Senate Judiciary Committee strongly resisted the CBDTPA. These groups eventually caused its demise once the bill was referred to the Senate Commerce Committee.
Senator Hollings crafted the bill with the help of the MPAA and Jack Valenti – who one may remember likened the Betamax VTR to the “Boston Strangler” – at the insistence of large corporations (e.g., Disney and News Corp, owner of FOX networks). It was Hollings’ and the broadcaster’s contention that piracy made distributing their content a losing proposition, and said they would refuse to do so. Some noted that the content industry had said the same thing about compact discs and VTRs.
Consumer rights groups took umbrage at the possibility that fair use time-shifting might be nullified. Gene Kimmelman of Consumers Union warned that “until broadcast flag software and hardware that still allows for fair use is developed, legislation would harm consumers,” and it was said that “the bill violates individuals' rights to flexible use of the copyright works they buy.” The Electronic Frontier Foundation organized an email campaign; eventually spurring more than 3,300 letters to the Senate Judiciary Committee opposing the Hollings bill.
The Judiciary Committee took note of the encroachment on its jurisdiction: Patrick Leahy, chair of the committee, claimed its heavy involvement in intellectual property law “since 1816.” Indeed, the Judiciary Committee posted many of the EFF’s letters on its website. Eventually, Leahy proclaimed that “No [broadcast flag] legislation will pass Congress this year”; Leahy’s jealousy was important since any legislation Hollings introduced would have had to go through the Judiciary Committee. Hollings said of Leahy’s committee “while they know the law, they don't know the business.” He might have chosen his words more carefully, because Leahy’s threats successfully helped keep the CBDTPA in the Commerce Committee, where Republican Senators could be influenced by the technology industry until Hollings departed the Senate.
The technologists had some of loudest voices, besides Hollings’, in the Senate, and reminded Congress that what they were really doing was balancing interests in an intellectual property setting, and tinkering with one of the country’s most important economic sectors. This group focused on “building a competitive marketplace absent government intervention,” and “letting a thousand flowers bloom.” Trade associations repeated the chant: the Information Technology Association of America said the bill was a "one-size-fits-all solution to the problem of digital piracy," and the Computer & Communications Industry Association said it would force poorly designed and unworkable standards on the industry, and “stifle creativity in product development.” The players forming the new technologies and new markets also formed a trade group, the Alliance for Digital Progress, including Microsoft, Dell Computer, Hewlett-Packard, and Apple Computer, to “fight government copy-protection mandates” and press for private-sector methods of solving the "problem with digital piracy." Intel’s Les Vadasz reminded the Senators that IT is “twenty times the size of Hollywood, fast moving, and highly innovative,” asking those present at hearings, “Please don't tamper with the dynamics of the technology industry.” The techies also had their think tank: the Cato Institute predictably pushed for less government interference and an industry solution.
The one-two punch of free speech and a free market rang true with Senators, led by Republicans John McCain and Oren Hatch. These senators voiced “concerns about possibility of [the] federal government’s mandating technical solutions in place of a marketplace solution” at the March Commerce Committee hearings, and wanted to preserve “technological innovation.” Interestingly, Republican congressman have tended to be good for Silicon Valley. After the Republicans swept the Congressional elections, McCain replaced Hollings as the head of the Commerce Committee and the Senate, and Hatch replaced Leahy as the head of the Judiciary Committee. Hollings’ bill was finished. The CBDTPA languished in the Commerce Committee, never to even directly face Leahy’s wrath. All that was left now for a defeated and committee-less Hollings was to ask the FCC to go behind Congress’s back.
In later October 2003, after losing both the broadcast flag battle and his position at the head of the Commerce Committee, Sen. Hollings asked FCC Chairman Mike Powell to implement the broadcast flag, Congress’ decision to decline passing that regulation notwithstanding. Powell decided to act with “blinding speed” by Washington standards, and published a proposed rule in early November. By December 3rd the agency made the rule final.
The history of this bill should impress on any court reviewing the FCC’s action that FDA should be applied, and that the legislative history of the CBDTPA is controlling. That the bill was rejected by the power struggle that is Congress’ method of balancing interests should show that the FCC has been precluded from enacting a broadcast flag, because Congress has addressed the specific issue and declined to regulate. Indeed, the fact that Congress thought it relevant that both tobacco and DVRs were both of high economic value to the country makes FDA an even better case for an anti-broadcast flag party, considering that Court’s focus on the economic importance of tobacco in addition to its political importance. The tech lobby certainly did its job.

IV. A “Common-Sense” Analysis of the FCC’s Jurisdiction

J. O’Connor found it odd in FDA that an issue of such “political and economic importance” would be left to an administrative agency. We have already seen how Congress, especially its more conservative members, thought this issue economically important. Focusing on the political importance of the issue, we now examine more closely Congress’ belief that a broadcast flag would also implicate intellectual property law.

A. Jurisdiction Jealousy

Balancing of interests in intellectual property law, and copyright in particular, is one of the most hotly contested issues today. As with tobacco in FDA, where, given tobacco's unique political history, as well as the breadth of the authority that the FDA had asserted, a Court here should not defer to the agency's expansive construction of the statute, but rather to Congress' judgment. And Congress’ judgment was that a broadcast flag was under the purview of the Judiciary Committees of both the Senate and the House.
The Senate Judiciary Committee certainly thought that a broadcast flag was beyond the ken of the FCC, and so did its counterpart in the House. Again, another Republican lines up against the flag—this time House Judiciary Courts, Internet & Intellectual Property Subcommittee Chairman Lamar Smith after Hollings called on the FCC to do his dirty work: "My Subcommittee has great interest in the FCC's announcement because the agency may issue rules that impact the Copyright Act and involve my subcommittee's jurisdiction.”
Even more telling, though, Senate Judiciary Chairman Leahy and House Judiciary Chairman James Sensenbrenner declared in a joint letter to FCC Chairman Powell that “"[N]o express authority is provided to address the complex issues of intellectual property matters in general or digital broadcast copy protection in particular.” These are the very people in Congress who are to decide the issue of whether the FCC has jurisdiction to require a broadcast flag, and they announced that the agency does not have that power. As J. O’Connor said, courts “must be guided to a degree by common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency.” In this case common sense would tell any reasonable judge that when the senior House and Senate Judiciary Chairmen claim jurisdiction over the issue in a letter to the FCC, to the exclusion of the FCC’s power over that issue, that power has not been delegated.
Even Jack Valenti and the MPAA admitted that this bill implicated intellectual property concerns: in the first round of hearings he called for both the Senate Commerce Committee and the Judiciary Committee to “be involved because these goals are umbilically connected to the oversight jurisdiction of both committees.” Hollings agreed, noting that the Judiciary Committee had a “role” in the debate, and that they “knew the law.”

B. Ratifying the FCC’s Denial of Jurisdiction

Congress ratified the FDA’s declarations that they had no jurisdiction over tobacco when it decided to fill the gap in tobacco regulation by legislation. Similarly here, the FCC has repeatedly said it does not have jurisdiction over intellectual property issues, and the explicit purpose of the CBDTPA was to “provide for the adoption of conforming standards and rules … and authorize … the FCC to revise implemented standards and rules through rulemaking.” That Sen. Hollings later acted as if he thought the FCC had the power to not only revise rules, but to provide for their adoption, is of no consequence—the introduction of the CBDTPA was a ratification of the FCC’s position that it lacked authority.

V. Other Issues – Getting with the Program, Anarchic Libraries, and Revisiting Eldred

Why the constant urge to regulate? Some think that the content industries should adapt to new technologies, instead of trying to displace them using the courts and the legislature. For example, House Judiciary Chair said of the RIAA a month after the introduction of the CBDTPA that they "ought to take a page out of what the movie industry did 20 years ago with VCRs….The movie industry ended up getting several kicks of the cat.” Indeed, the reason new technologies take off is the demand for what they provide, and a powerful player should be able to take advantage of that demand, given a modicum of vision and enough initiative to make something of the opportunity. Research and development on how to take advantage of new technology costs might not cost less than teams of lawyers and lobbyists (but it probably would), but the payoff can be potentially huge.
It’s possible to forget exactly why all this matters, sometimes. Will there be any effect on people if they lose their “record” button? Indeed, any such effects may be hardly discernable on a small scale, especially if people get used to not having such buttons. However, the effects of giving ever more control to the content “industry” can already be seen in today’s centralized media, and will only get worse as we continue to limit the meaning of terms like “public domain” and “fair use.” As Siva Vaidhyanathan notes, “We’ve put ourselves in a really ugly situation. … [W]e’ve forgotten that a regulatory system like copyright was designed to encourage creativity, to encourage the dissemination of knowledge. These days, copyright is so strong and lasts so long that it’s counterproductive to those efforts.” Prof. Vaidhyanathan’s observation rings all the more true when one considers that now copyright is being enforced with hardware and software that is so “strong” it has no fair use escape hatches, and that “lasts so long” as to be eternal. Indeed, underregulation may be a better situation than gross overregulation, because true culture, on which a strong democracy of educated people relies, always bubbles up from the bottom. A system that gives private parties full discretion to lock up a public good cannot be tolerated.
In Eldred v. Ashcroft, Prof. Lawrence Lessig tried to press this Jeffersonian free speech-education-democracy line, saying that the extended term was another example of corporate control of America’s culture. Justice Ginsberg and the Supreme Court disagreed; they didn’t buy the cultural anarchy argument, at least not as framed. For J. Ginsberg, the idea-expression distinction and fair use exceptions took care of free speech concerns. J. Breyer even says that “fairly read, the Court has stated that Congress' actions under the Copyright/Patent Clause are, for all intents and purposes, judicially unreviewable.” But J. Ginsberg disagrees: copyrights are not “categorically immune from challenges under the first amendment.” J. Ginsberg leaves the door open to closely examining free speech issues in extraordinary copyright cases, where Congress has “altered the traditional contours of copyright protection.” The interesting argument here is that either Congress has allowed technology measures eliminating fair use to be mandated, in which case First Amendment concerns would be addressable under Eldred, or that the legislature has not allowed these measures to be mandated, in which case the Court could apply a FDA jurisdictional analysis to invalidate the flag.

Now it's little boys..is that better?

2005-11-02T22:21:00.000-08:00

Eh, technically his grandad. Yes, his grandfather. Fucking sickos. Now the MPAA is suing 12-yr olds. Remember the little girl the RIAA went after? There was a huge friggin' stink over it, and they backed off (a little--they started suing people who could at least vote). That was back when locking up a Russian h/cracker (hey, let's use the "h"--it was for blind people, right?) would cause protests in San Fran and a boycott of the best portable doc software ever.

I really did have a little more hope for the movie makers; they seemed a bit more reasonable (at least silent) on the issue of sharing/piracy/fair-to-free use than the phonorecording industry. Maybe they're both just running a relay race.

Shit, the family already owned .75 of the movies--that's fair use, you fucks! Sure, space-shifting is not fair use, at least not enough to excuse the original Napster in the 9th Circuit. But come on--if these reps of the industry are trying to make an example (explicity--rtfa), you'd think they'd go after big downloaders and not pick on marginal infringers, asking $1.25K for each file. Seriously, what the fuck..I hope they're wrong in thinking they're not shooting themselves in the foot. Maybe I'm not though--everyone's so caught up in the scotus shit, the war, blah blah...our attention span is so short. And so is mine; nunc postus interruptus est.

Go Ronnie Pt. N !!

2005-10-27T23:55:00.000-07:00

Given the tragically poor treatment of the VRA and the constitutional amendments that matter by the CTA5 and the SC in recent years, it warms the cockles to see that Delay's fuckups might work some good.

Give it a chance

2005-10-27T23:16:00.000-07:00

interesting note on the epic poem; who'd've known? loving the nets....and the free exchange/word of mouth.

long thinking should agree, yes?

p.s...pulp.....many many thanks.......

ha ha corruption

2005-10-27T23:11:00.000-07:00

Oh it's laughable. Page 2 intentionally. Good night reader.

Quick & Dirty wrapup of possible scotus nominees

2005-10-27T18:04:00.000-07:00

Before the president chose Miers on Oct. 3, speculation had focused on her and two other Bush loyalists: Attorney General Alberto Gonzales, Bush's longtime friend who would be the first Hispanic on the court, and corporate lawyer Larry Thompson, who was the government's highest ranking black law enforcement official as deputy attorney general during Bush's first term.

I believe the charges of cronyism have worked; Gonzo ain’t gonna happenin (so say also the conservative bloggers—notice I didn’t say republicans or wingnuts, but real conservatives; so also say the anti-abortionists; they really did buy the cronyism thing. loving it.). So here are who I think, after spending about six minutes of research each on the ones I wasn’t familiar with, seem to be the most likely candidates:

Samuel Alito -- an appeals court judge supported by many conservatives. Unnamed administration officials who was on the short list before Bush picked Miers, like Alito, could be the choice. Alito is a judge on the United States Court of Appeals for the Third Circuit. His ideological likeness to United States Supreme Court Associate Justice Antonin Scalia has earned him the nickname "Scalito." Alito was born in Trenton, New Jersey. He graduated from Princeton University with an A.B. in 1972, and went to Yale Law School, where he earned a J.D. in 1975. From 1981 to 1985 he was Assistant to the United States Solicitor General, and was Deputy assistant to the U.S. attorney general from 1985 to 1987. After a brief stint as U.S. Attorney for the district of New Jersey, he was nominated by George H. W. Bush in 1990 to the United States Court of Appeals for the Third Circuit. His chambers are in Newark, New Jersey. He’s on the same court as Karen Williams.

Karen Williams

Michael Luttig

J. Harvie Wilkinson, author of One Nation Indivisible: How Ethnic Separatism Threatens America, 1997.

Alice Batchelder

Priscilla Owen – Fuck her; it ain’t gonna happen. Even Bush isn’t stupid
enough to try. It’d be fun if he did, though. We could watch him go down
twice on this shit.

Michigan Supreme Court Justice MauraCorrigan – another Scalia disciple. God, why can’t Scalia be at least Posner, or even Easterbrook? At least their ridiculous legal philosophy is interesting…

Judge Edith Jones (5th Cir.) – we should hope not

Edith Brown Clement – probably only if Bush makes an “up-yours, anti-abortion wingnuts” pick. Hmm.

Judge Susan Black of the 11th Circuit – solid, but put in the fed judiciary by Pres. Carter.
Yeah right.

Judge Janice Rogers Brown of the District of Columbia Circuit – Yikes!

Heh: In a letter on Wednesday, Sen. Arlen Specter, the chairman of the Judiciary Committee, sought assurances that Miers would show no favoritism toward Bush if confirmed as a justice. It may have been the last straw, comingfrom a moderate Republican who said Oct. 11 there was no chance Miers wouldwithdraw before her hearings. "I think that would be a sign of incredible weakness," he said at the time.

Iran next?

2005-10-26T20:18:00.000-07:00

Iran's offically rattling the sabre. "Death to Isreal, Death to America." Fuck. I hope we take the high road (because the low one is lined with bombs). Fuck fuck fuck.

NYC Subway terror attack foiled * update *

2005-10-08T01:56:00.000-07:00

Bloomberg is smart. I wonder why the feds said they didn't know what the mayor was talking about.

::

New York City-October 6, 2005-TomFlocco.com-Earlier this evening
intelligence members of the American-French Alliance stopped an attempt by
Israeli Mossad operatives to blow up the New York City subway, according to
national security and U.S. intelligence expert Thomas Heneghen.

The federal whistleblower said four Israelis were killed in the altercation
and five more were captured just minutes after virtually all U.S. cable news
channels, network TV outlets and New York Mayor Richard Bloomberg were
reporting their own version of the incident, adding that New York City was
"facing a significant threat" in the city's subway.

Heneghen said CNN had the information but host Anderson Cooper refused or
was ordered not to report the real story to the American people.

Adding to the Bush administration's problems and following on the heels of
the August 2, 2005 Bush-Cheney indictment story on TomFlocco.com, cable news
channels are now reporting that indictments against White House officials
are imminent.
Heneghen said his intelligence sources revealed that White House Senior
Presidential Advisor has turned State's evidence and "will implicate other
members of the White House" in order to cooperate with U.S. Special
Prosecutor Patrick Fitzgerald.

The intelligence authority said "22 indictments involving both the Bush and
Clinton administrations are pending in a grand jury," adding "more
indictments will come quickly and in waves."

"These grand juries are about to liberate the American people from two
political parties who are prepared to literally blow us up in order to keep
their power," said Heneghen, adding, "The New York threat is internal, not
external. The individuals involved in the New York threat are now in custody
of U.S. and French intelligence-and they were identified as Israeli Mossad."

The whistleblower said "Tonight the AFA claimed a victory against the Mossad
in the U.S. It was almost like the movement of armies on a battlefield."

Harriet Miers

2005-10-07T19:24:00.000-07:00

has a blog. The media should be pleased to finally get her views on abortion.

false alarm

2005-10-07T11:03:00.000-07:00

Bloomberg looks dumb. Not to worry, though--the green liquid in a soda bottle wasn't a terrorist plot. In fact it wouldn't be a bad guess to say someone placed that bottle precisely because of Bloomberg's alert. The fractures in the formerly smooth wall of republicanism are widening; Rush himself noted that, and came close to criticizing the administration himself for the fact that, the feds had sold out the rep mayor (when fema called up abc news while Bloomberg was still on the air making the announcement, and said they didn't know what he was talking about).

In other news the Katrina no-bid contracts will now be rebid-on.

hearings

2005-10-04T16:26:00.000-07:00

for Miers should indeed start with
privacy
civil rights
due process

Miers might have known about Guantanemo; she was on the WH staff. OTOH, she probably handled corporate issues; she's no constitutional law experience afaik.

scientology

2005-09-29T22:57:00.000-07:00

It's a "religion" that tries to rid you of robot alien souls (wha?) in your brain that make you do the bad shit you do. it ain't demons, that's hokie. and they make investments.

I'm a photojournalist

2005-09-28T14:12:00.000-07:00

So I just got my latest copy of the Linksruck in the mail yesterday. I'm not a subscriber to that "anti-war" (read, left, even red) paper, but got a copy because the editor used a photo I had taken at the Sheehan protest. I never did get to find out who the picture was actually _of_, but they fit a nice caption in anyway.

Now I just wish they had abided by the (CC)attrib license. I even gently reminded them. And I could understand if they just didn't give anyone credits (it is that sort of pub anyway), but the editor has his picture right below my shot. Errgh...whatever, the shot works for them and I'm not jealous or greedy (well, maybe greedy) with my works. I just thought it would be cool to have a photo credit in a paper across an ocean. And it still is, so whatever.

Go Ronnie!!

2005-09-28T00:30:00.000-07:00

Republican House Majority Leader Tom Delay has been indicted on conspiracy charges. Happy happy. As Travis County (Austin) DA has said for the last 2 yrs, justice can only be achieved by democracy, which only works when the system is representative. Ronnie will also tell you that corporations are not people and should not have more power than the citizenry. It's indisputable now that Delay had some role in the cover-up of the Texans for a Republican Majority's misuse of campaign funds.

Delay's lawyers, including DeGuerrin out of Houston (big name, of course) say the indictment is "skunky" and "stinks to high heaven". I hope voters smell that stink at the mid-term ballot boxes, and remember Frist's SEC scandal, Rove's leaking security information, and all the other corruption running rampant on the right wing. Pelosi gave a great stinger: "The criminal indictment of Majority Leader Tom DeLay is the latest example that Republicans in Congress are plagued by a culture of corruption at the expense of the American people." Has the pendulum swung?

Able Danger in the morning

2005-09-22T04:30:00.000-07:00

"The collective testimony of Wednesday's witnesses implied that federal privacy and civil-liberties regulations governing military intelligence operations may have been the reason that contractors were asked to destroy the information."

Lots going on here. The Pentagon isn't letting Able Danger agents testify about what they knew, and also destroyed files that showed who the 9/11 hijackers. They say they had to destroy the information because of privacy laws. Interesting turn-around there. But that's the "smokescreen," if you want to look at it that way: the military branch of government refuses to talk to the legislative branch, and at the same time attacks the strictures imposed on them by privacy laws. Weird, to say the least.

Also weird that the first network news airplay the Able Danger testimony story I saw was at 4:30 in the morning. You know, between the hurricane story and the near-wreck footage of planes in LA. A touchy story, I suppose....

Roberts on capital appeals

2005-09-14T16:39:00.000-07:00

Roberts is indeed a conservative. He doesn't bristle at the government's killing citizens (you know, the ones that can't vote anymore), but rather thinks it's bad policy, legal procedure-wise, to allow multiple appeals.

Apparently JR hasn't heard (that's the charitable interpretation, folks) of prosecutorial misconduct like the abuses at the Harris County (Houston) crime lab. "Losing" evidence and outright tampering of reports were only brought to light using multiple habeas corpus claims and direct appeals; that's what federal review of state murder trials is for. So Roberts' claim that the best way to keep from murdering innocent prisoners is to have the "best counsel available at every stage" rings hollow.

Here's a clue: the best counsel don't want to work for dirtbags. Oddly(?), there's more prestige (and of course, $) in helping a corporation pay less taxes than in trying to make sure the government's not framing poor people. Proponents of state murder love to trot out the "let them and their lawyers eat cake" argument in response to the fact that innocent people are killed, but given the economics of the situation it's just a smokescreen.

The fact that it takes numerous appeals, sometimes to the USSC from the TX CCA and the fed 5th C, sometimes twice because those courts won't listen the first time, shows that the system is stacked in such a way as to make this punishment cruel and unusual. Roberts should literally construct the 8th amendment, and if he needs help from international law to see that a culture of death and a beauracracy of murder, especially one so streamlined as that in Texas (which the fed system will soon resemble if Sen. Cornyn has his way of neutering habeas by imposing a three-prong set of hurdles to any HC claim), is brutal and fucked-up, then so be it.

Umpire misses the softball

2005-09-13T17:19:00.000-07:00

Sen. Shuman (d, ny) thought defending the independance of the judiciary, especially from people who are basically calling for attacks on judges (eg, Pat Robertson, who thinks that judges are more dangerous to US than terrorism), would be a "softball" for Roberts.

Almost-C.J. Roberts overthought, and Shuman had to answer the question for him in common language. Hilarious. I feel sorry for both of them.

Oomph--Shuman just called the nominee a racist. And it seems right, at least how the term is now used--referring to "illegal amigos", even as a joke, even if it were funny, would just not work today (in a memo, people!). And I guess Roberts got off the hook, at least with a lot of people, when he said the comment was appropriate at the time (sounds familiar). But what bothers me is that he'd even try to justify such a statement. It reminds me of B. Bush's recent dumbass comments about "those people" in New Orleans--people in these types of positions should _at least_, one would assume, have some kind of filter that wouldn't let stupid (objectively and subjectively) things come out of their mouths, or to disclaim them later on. Poor form.

Roberts looks

2005-09-13T16:42:00.000-07:00

like Feingold's getting to him. Petulant even, his tone of voice just took on this edge that was really weird and almost shocking, seeing as how he's been doing so well so far.

This is some comical bullshit

2005-09-13T15:49:00.000-07:00

What is Sen. Sesions talking about? What a nut. I just got a law lesson from a moron (complete with "little jokes" and just the worst talk on what trial courts and appellate courts do). Definitely for the cameras, not the senators.

Also, Roberts (predictably?) refused to answer almost all of Sen. Feinstein's questions.

Not as bad

2005-09-12T14:35:00.000-07:00

as it could be, I really think. From Roberts' thoughts today:

"Here I was, with my client having the US, the most powerful entity in the world, arrayed against him. All I had to do was convince the court that I was right on the law, and all that power would recede away. That is the beauty of the power of law.

"I will fully and fairly analyze the cases before me, consider the opinions of my colleagues on the bench, and I will remember that it is my job to call balls and strikes, not to bat."

The talk is right (especially combined with the "humility theme" as Brooks_nyt calls it). He's no J. Marshall or Brennan, but we can't expect that right now. It also sounds like he fits Sen. Durbin's two "criteria" for confirmation.

OTOH, Roberts' mentioning that he'll protect the "integrity" and "independance" of the judiciary could cut either way. It's true that judicial activism is good or bad depending on one's political view at the time. As I read it, a lawyer's using these terms puts him in the grey area--he'll allow himself to interpret the law, and not really act as "just"
an umpire. But he'll be tied to a strict positivist jurisprudence, it sounds like.

Conflicting information

2005-09-06T15:25:00.000-07:00

On the one hand, Ray Nagin says "I would like for everybody to get out because it's a health risk," said Mr. Nagin. "There are toxins in the water. There are gas leaks where we may have explosions. We're fighting at least four fires right now, and we don't have running water. It is not safe."

On the other, others claim that New Orleanians are being held captive in New Orleans, not allowed to leave the "one checkpoint" out of the city.

What the hell is going on?

Midterm elections

2005-09-01T19:50:00.000-07:00

Mercury News hits the nail on the head. Cindy Sheehan has started an anti-war movement. On the other hand, the majority of her supporters don't think that means we should pull out of the reconstruction.

We must start thinking about Bush's midterm elections--taking away his legislative powers is the best way (he's not going to get impeached, folks) to reverse trends. We're not going to leave Iraq right now, but I think enough people have seen that [this] war is pointless.

It needs to go beyond her. I hope she opens it up as she goes to DC.

I also hope Bush looks as bad regarding Katrina as he should--after all, we stopped fixing the levees because the money was diverted towards to the war. If the levees were fixed, they probably wouldn't have broken...continue the line yourself, and remember the nuts shooting as police helicopters. Maybe people will stop voting against their interests and vote reps in with some priorities. Who knows...

Update Martial Law

2005-09-01T19:01:00.000-07:00

Martial law and mob rule. "Hell on Earth." Fuck. NOLA Mayor Ray Nagin today announced martial law, for real (as opposed to the rumors discussed in I&P below).

The LA Attorney General still insists there's no such thing under LA law. The Mayor's _freaking_out_. Nagin's an ok guy, but panic isn't what you want in your leader.

There is no law in New Orleans. I hope the optimistic anarchists are right....

*Update* -- Having been told they could leave when they wished, the Superdome refugees are now being kept against their will. Houston authorities have (no link handy, sorry) said that the Astrodome would allow free movement. We shall see.

If this isn't martial law, what is?

Juicy quote of the day

2005-09-01T18:37:00.000-07:00

John Bolton informed the world today that "UN reform is not a one night stand. UN reform is forever."

Rah rah rah. Classic. Shall we interpret? Loosely: "When we decide that you will change your policy, you will change your policy."

Feeling altruistic?

2005-09-01T16:19:00.000-07:00

Wingnuts can donate too! Click here now!!

Actually, Pat's group is just one of the charities listed. But it's so prominent...man, if the Adventists only had that kind of press, the Great Controversy could be the new Rapture!

Martial Law

2005-08-30T15:57:00.000-07:00

This article inexplicably claims that martial law has been declared in New Orleans because of the hurricane. No mention of who declared this state, but the story does note that "the declaration is imposed to restore order in times of war and emergency." No other stories I've found use the term.

Not so fast, WDSU: martial law, where constitutional, is only properly declared by the President and/or (no one's really sure) by Congress, in situations where the "courts have closed." The courts are not totally in shambles in LA. State constitutions sometimes have martial law provisions, but I couldn't find any on a quick search that had been ok under the federal constitution. Doesn't look like they've been tested, though.

The administration can't hate the timing of this thing.

Also interesting: recent reminders that many National Guardsmen (trained to deal with this type of emergency, not in infantry work, of course) aren't here anymore when they're called for.

Anyone else care to use the disaster to further their agenda?

On a related note: last night we thought the worst was past, this morning we find that the levies have broken, the power's out, and there fatalities (I'll spare the reader some of the more gruesome and heart-rending tales). It's good to know all is well with my people, but the city's taken a big hit and it'll be a long way to recovery, as they say. I just hope the (real) old architecture gets to stay--it's one of the best parts!

*update* -- NOLA's been evacuated. No drinking water. Yep, the whole city. That road's looking longer and longer....

*martial law note* Andrew Somers allays my fears--looks like the media needs to fact-check and use the right words. I'll keep the mainstream hat on and chalk this one up to accident....

Where's Willie?

2005-08-27T12:31:00.000-07:00

Nobel Peace-prize winner (remember, no fact checking here) Willie Nelson was supposed to play at the Crawford circus [tent] today, but the old bean didn't show up. I want to know what happened...likewise, I was supposed to go but my ride bailed out early. I doubt Mr. Nelson's driver left without him....

I also hear tell it was a rumor a rumor that Willie was going to play, started by a teenager hoping on a fan site that the singer would show up. Who knows....

People with pro-war signs are stupid.

Bush's "Lies"

2005-08-23T13:43:00.000-07:00

OK, so it's been noted that Bush is again tying Iraq to 9/11, and it's been said that this "dessicated lie" (see previous post on I&P) is not only egregious but stupid.

We need to see this properly. Although it's a great card to play, calling out the Pres on his bunk link between the two, we ourselves are not being totally honest. Bush's speech is actually one of the most honest things he's said (still wrong, though, when he invokes Cold War dominoe-theory bullshit, given the different dynamic): Bush actually admitted in the speech that his goal was to __control the region__. Of course that's his goal! From Israel to Pakistan (and beyond), we're trying to become the dominant power. Economic colonialism backed by force, dig?

My point is that liberals could get a lot more mileage from this observation than by pointing out that Bush is a liar--everyone knows that already (although it's great that it's happened). Just try not sounding like "conspiracy theorists" talking about the New World Order (quotes used because it's hardly a conspiracy anymore, given CAFTA, WTO practices, attempted control of the Middle East, etc.--their arrogance shows by letting it right out in the open now).

Weaving the strands

2005-08-23T13:38:00.000-07:00

I love this article. Brings the Bush-war-Sheehan issues all home, at least for me.

Also, it's great when you can be totally objective and still bash Bush. And that's the cool thing about a media developement--you can talk about the talk, and ultimately end up talking about the walk. Which reminds me of a Pacifica host's today saying that the talk about Sheehan is not about her, but about the president.

Also, is Bush following me? Idaho seems an unlikely place to begin rallying support (it is a red state, but Idaho? come on...). Get where the gettin's good, I guess.

Mike Allen

2005-08-21T03:07:00.000-07:00

Three days ago, Mike Allen at the Washington Post wrangled some out-context quotes from Ms. Sheehan in Crawford, showing a seeming bias against her cause. Bad press.

"But," now says Allen, "if Sheehan winds up providing the catalyst for a muscular antiwar movement, Bush's handling of the matter will turn out to be not only characteristic but also consequential." Allen is right in pointing out in the first paragraph that Bush has brought this on himself. What remains to be seen is whether Dubya's gambit will pay off for the Republicans in 06 and 08.

Interesting pitch shift, Mike. Also interesting: your metareporting: "On ABC's 'Good Morning America,' George Stephanopoulos said that 'a lot of Republicans would say...that this is the president's Swift boat moment,' a reference to Sen. John F. Kerry's tardiness in responding to attacks on his war record during last year's presidential campaign."

Much better press, methinks. Also, the Guardian recognizes a "tipping point."

Arianna Huffington, Judith Miller, John Bolton

2005-08-20T19:33:00.000-07:00

Ariana Huffington herself tells us the news that John Bolton met with Judith Miller in jail.

The former CA gov candidate's reporting on this meeting seems truly bizarre. Not to mention the meeting itself, which seems odd because the two existed (in my mind, at least) seperately in the political public figure pantheon. Now we find out that Bolton fed the reporter stories in the past, etc. Wonder when the book comes out....

Cultural negotiations

2005-08-20T18:23:00.000-07:00

Saleh al-Mutlaq, one of four main Sunni negotiators, told The Associated Press: ``We will reject [the proposed constitution] and the people will be angry, the street will be angry and as a result we will be back to square one.'" Civil war?

The Sunnis' objections are based in their opposition to a self-governed region for Shiites; they say they want to deal with these after ratification and do not want any federalism provisions in the constitution itself.

I gotta say, that's the sort of thing that should go in a constitution. Horizontal sovereignty of political subdivisions can be legislated, but that means that it can be unlegislated. If a certain group or region should be independant in order to protect minority rights, that can't be left to the parliament or the courts. On the other hand, it might be better to keep things fluid (just in case the country actually has a chance of becoming a cohesive whole). But a lot of problems can be headed off by dealing with this stuff now.

Commenting on the News

2005-08-20T17:53:00.000-07:00

Is a new national pastime. Let me take a crack: Bagnews muses: "I started to consider the power of an image; the strength (and cunning) of the right wing PR machine; and the lemming-like gullibility of a big chunk of the electorate (as well, of course, as the fact Saddam and Osama used to be roommates, and the quote--insurgency--unquote is in its last throes)....

"Finally it was clear (if not already obvious to everyone else) that Cindy's otherwise inspiring mission is not strong enough to do more than amplify mostly left-wing anti-war sentiment (and possibly provide stimulus for more broad-based questioning).

"Which ultimately means that what is needed (which has always been needed) are actual politicians to stop that man before he kisses again."

I disagree, if only because political action will be only the last step, and "broad-based questioning" and more will be required first. In fact, I again forecast that the culture split represented by disagreement over the war will continue to be more apparant as we progress. For instance, I've witnessed and had people (in Austin) actually wishing each other and myself Peace and flashing signs (and not at a vigil).

The discussion on Bagnews ranges from whether Bush is forcing Ms. Sheehan to kiss in the picture, to how good or bad the release of these pictures make him look.

Savage Enemy

2005-08-20T17:44:00.000-07:00

President Bush announced in his weekly radio session that he is still committed to a war on a savage enemy.

Bush is blatantly propagandizing, dehumanizing the "enemy" . Not the path to peace. In fact, there's no room to move from that kind of early position to any kind of reconciliation with the peace movement. So he must think that he's stronger than his naysayers and can outlast them. Not ideal, but entertaining nonetheless.

The Ten Commandments on the Capital Grounds

2005-08-20T05:40:00.000-07:00

Even if this doesn't establish religion, it carries the implicit message "this is the better religion". It's right in between the Capital and the courthouse. Nice and subtle, guys.

Blinky pants

2005-08-19T18:16:00.000-07:00

Holy crap. Y'all thought GORETEX, KEVLAR, and
TUPPERWARE were the best we could do? Sheets, kids!
Frickin' nanosheets! Ahh, sweet opiate that is
technology....now I'm not saying people'll be walking
around with bullet-proof exoskeletons or nuthin',
but.....

I won't even try to get into what makes nanotech so
cool and so potentially useful, or how it works, but
I will remind the reader that we can't even imagine what
we'll be able to do with this stuff. Exoskeletons ain't
nothing if they don't endow the wearer with super-
strength and cloaking ability, right? Body
modification could also take some interesting turns...

This isn't about useless Buckyballs, or about clothes
that can light up (although that could work). All of our
guesses as to what this tech will be turn out to be will
be primitive, anachronistic hopes.

Exciting times, friends--interesting to see what we do
with them. We still need those replacement organs....

Justice Roberts

2005-08-18T22:47:00.000-07:00

Hmm....I had thought that the stink over Roberts'
appointment was a smokescreen by those coopting the
feminist movement (after all, Roberts _did_ say that
_Roe v. Wade_ was "sacrosanct" after _Casey_, right?),
but material released by the Reagan Library in Simi
Valley made me groan: during his tenure as a White
House lawyer for the former-actor-cum-el-presidente,
Roberts "disparaged state efforts to combat
discrimination against women and wondered whether
'encouraging homemakers to become lawyers contributes
to the common good.'"

Well, it really does look like this guy's stuck in the
past. What common good was he (is he?) talking about?
The one implanted in his conservative head as a child?
The one that wants to teach children that we don't
fall down because of gravity, but rather because God's
just pushed us (kidding, they want to do that with
evolution)?

And what irony that he's replacing O'Connor! First
woman appointed to the Supreme Court (by Reagan, no
less), after she fought hard to break into the legal
industry (like doing secretary work after passing the
bar just to pay the rent), replaced by a guy that
wouldn't have wanted her there. For real.

Looks inevitable ladies. Get you to the LSAT
(looks like we need the help)! (Except the hemophobic
Ophelias in the audience tonight--it's not worth the
psychic bloodletting).

Limbaugh Flaunts his Ignorance

2005-08-18T20:48:00.000-07:00

Sayeth the pill-popping hypocrite: "I mean, Cindy
Sheehan is just Bill Burkett. Her story is nothing
more than forged documents. There's nothing about it
that's real, including the mainstream media's glomming
onto it. It's not real. It's nothing more than an
attempt. It's the latest effort made by the
coordinated left."

I must point out that the media "glomming" onto Ms.
Sheehan first would be the internet media. And now the
glommers include newspapers. Second, it is real--the
effort is not coming from an organized left. The
people at this protest were there because they wanted
to be, individually. And for the record, the
conservative media and the Pres have all been spouting
the same coordinated lines about Ms. Sheehan for
weeks.

In other news, Bush went on a bike ride today.

Flashback

2005-08-18T20:02:00.000-07:00

Flashback
[I wrote this on 8/5, two weeks ago and less than a
week before Cindy Sheehan started everyone's engines
up. Funny thing is that it started out as an email to
a friend regarding Bush's suggestion that we teach
creationism in schools. Looking at it in light of the
past two weeks is interesting methinks. It's a true
relief that we just needed some event or person to
coalesce around, and that we haven't been completely
stultified yet.]

Why don’t I talk about us, that is, Americans. First
off, the last two decades have been insane and
inhuman; as a country we’ve lost sight of the proper
goals of a civilization, that is, enlightenment of the
people, their comfort, and peace. The framing of the
situation comes from different perspectival models, to
use a military term, but the bottom line is this: our
country is out of balance. In fact, we’ve been
spinning out of balance for the last two decades, from
what I've gathered.

That said (and left unexplained, we (and here I mean
again my colleagues) are in a unique position, not only
to recover a lot of lost political ground, but also to
reclaim a lot of our heritage, our humanity. It is
altogether possible to create real change in our land:
in addition those who’ve had their eyes open since the
beginning (You know who you are, you kidders), large
numbers of mainstream America have woken up to the
plain facts that their leadership stinks, that it in
fact despises them and wishes to staunch the bleeding
by tightening the noose. The current administration
has done nothing positive (the fear-filled jingoist
may disagree), and in fact in recent days has proposed
that American schools not only go back to being lazy
about science, but actively teaching half-truths about
our natural origins (only if they want to, of course).
Bush may have our souls’ best interests at heart if
what he proposes is that we recognize our place in a
world guided by forces unseen, but Americans know that
this is not science and does not belong in public
school science courses. The result is a flat insult to
their intelligence. (We won’t even talk about how a
“activist” court might remedy such an error.)

So the people of America know enough, thank god,
through our cultural memory and sufficient education
(for those who needed it, which may not include our
aforementioned downtrodden who neither needed nor
received this sort of education from the state) to
realize these problems. What’s more, we also know
enough (enough of us, at least) to see a new path. We
all long for peace, comfort, and human connection. The
government can provide the first, to a large degree,
can aid us in attaining the second, and has nothing to
do with the third. Bush won’t provide spiritual
meaning – we’ll provide it ourselves. My friends and
colleagues know that, given restricted government
interference in our lives (which the right wing
espouses as a goal while simultaneous building up the
machinery of control), we will find peace and
happiness and will lead our brothers and sisters to
the same. The right wing does not believe this. And
the corporate branch of the conservative party will
have none of it—they’ve inventory to liquidate.

You may ask, if you are against government
interference in our lives, why are you against Bush’s
plan to “give schools more freedom”? Well, the answer,
my conservative-minded friend (whom I am by no means
bashing, given that my though train looks
counterintuitive and may bear a resemblance to the
paradox many conservatives see in liberalism, which,
once addressed, may actually turn out to be a point of
solidarity between everyone, regardless of which side
of the virtual, arbitrary, and dehumanizing “political
specturm” we’re all forced to place ourselves on) is
this: Bush’s granting schools license to teach
nonscience subjects in science classes, subjects which
should be intrroduced in philosophy classes, is not
freedom.

Freedom would mean educating our children with
textbooks that come from the same decade, not letting
the kids in the red states get the shaft from those
that benefit by keeping them in the dark.

Freedom would be giving public schools money to study
philosophy. But this can’t be allowed to happen.
Bush’s coalition is not only made up of the
spiritual/religious-minded, but also the
corporate/money-minded, who would certainly pull the
rug out from any hippy-dippy shit like that (read:
neo-cons and religious conservatives never the
twain shall meet).

But back to my main point, which is not as dark as
this diatribe may sound. Bush is starting to look
ridiculous, and people my age think we’re all pretty
smart. We may not all want to lead just yet, but we
can certainly throw the bums out in three years. Let’s
hope they don’t do too much damage before then.

Political Happenings and Points of Departure

2005-08-18T19:43:00.000-07:00

Seeing both such a movement and the media feeding frenzy
surrounding it (this blog included) take off has made quite an
impression on my own perspective. For real, I doubted
our ability as a people to rise up again.
Looks like "they've" done it now.

The country, now that its media has a figure to center
a story around, is finally experiencing a burgeoning
peace movement. Of course, the sentiments already
existed before Cindy Sheehan became the sand in the
oyster. But it really is amazing that a single person,
merely by going to Crawford (what, we can actually
assemble and petition our government?) and speaking to
a few reporters, can give life to tensions already
widely extant and begin to change the world.

Of course, the media and various political groups have
interests in Ms. Sheehan--she gives them something to
do. But for all the videocameras and still cams at
Camp Casey, anyone there could tell you that this
thing was not organized by some group. The people in
Crawford last weekend held a variety of political,
religious, and philosophical views, and not all saw
her message perfectly matching their own. However,
everyone there felt a part of something larger than
themselves--they felt in the middle of the action.

Likewise, my single decision to skip work and leave
Friday morning, made on impulse late the night before,
also led me down a path much different than what might
have been. I wouldn't have made it to the site until
Saturday night (and even then, I would only have
gotten to see Alex Jones barking). As it happened, not
only did I see some old friends and meet some new
ones, but I've got a trip to Tijuana to look forward
to. Sweet.

New Blog

2005-08-18T19:19:00.000-07:00

New times, new blog, to slurp from the great
primordial sea of internet media enough material for a
decent meta site. There certainly are enough
goings-on.