pecunium

I am sick of hearing about exceptions. If you actually think choice is a right, that people are allowed to do what they want to do with their bodies (and that women are people) then being upset that Romney, or Ryan, or Akin, or any other person doesn’t want to allow some people to have abortions while denying them to everyone else is not only inconsistent, it’s foolish.

I think it has been making the entire debate harder to have, because it cedes a vast piece of moral ground to the anti-choice side. It says that some abortions are more acceptable than others, which implies that all the rest are, in some way, not acceptable. That absent some extenuating circumstance the fetus, presumptively, has rights.

That’s not a good position to be in, if what one is arguing is the right isn’t one to life (on the part of the fetus) but the right to autonomy on the part of the woman. It makes it easier for those who are opposed to choice to get their foot in the door with those who are on the fence. It gives the waffling people a way to salve their consciences. Those people get to tell themselves they aren’t denying, “good women” the right to abortions. No, the people who are “deserving”, those who aren’t, “trying to run away from their responsibilities” will still be able to get an abortion if they, “need” one.

Well it’s not about need. It’s about freedom. Freedom to choose. Freedom to not lose one's freedom the moment one gets pregnant. Freedom to have children when one wants them, and to not have them when one doesn’t. An unwanted pregnancy is an unwanted pregnancy, no matter how loving, or hateful, the circumstances which led to it.

I have some of the same problems with people who defend non-heterosexuals having rights because, “they were born that way”. I don’t give a damn if it’s nature, nurture, a question of politics, or pure hedonistic choice. People are people. They have rights. If those rights can be stripped, because it’s a choice, then they aren’t rights.

One can argue the moral values of when legal personhood begins, that’s fine. But saying some types of abortion are legitimate, because the cause of them is squicky is an act of moral cowardice (on both sides). Choice is legit, or it isn’t. I know why the strategists chose incest and rape as the poster child for making the anti-choice people look monstrous, it’s because those are things we react to with horror, and it allows a certain type of logical fallacy to play out in the id. It allows for some guilt by association. If the anti-choicers won’t allow exceptions for rape and incest victims, then they are supporting rape and incest.

The nice thing about it, from that standpoint, is the claim doesn’t have to be overt. People’s revulsion to the concepts kicks in at a level below reason. But I think it backfires. It allows the people on the fence to think only “bad” pregnancies are deserving of choice. The better exception to be using, when the anti-choice crowd is going full-tilt, as they seem to be in this election, is the question of medical necessity.

Ryan, for example, is against it, when third-trimester abortions were being debated in the house, he said, “"The health exception would render this ban virtually meaningless.". Ryan doesn’t care if a woman will die; not if she’s pregnant. It’s a harsh thing to say; I know people will say I am exaggerating, but it’s what banning medically needed abortions means. It means that as soon as a woman becomes pregnant she is slave to the state. Her life is not her own, and it’s not her own until she is no longer legally responsible for the child.

That’s what choice is about. It’s about being your own person. The Republican Party, nor Romney, nor Ryan, nor any who accept its platform, don’t think women should be allowed to be their own persons, no exceptions.

Current Music: Won't get fooled again

That's one of the favorite shibboleths of the "Libertarian" wing of the reactionary caucus. They use it in odd ways, mostly to say they ought to be allowed to pay for what they want/use. It's true enough, but not as they tend to try to make it mean.

Which is why, with reservations, I like this: Fee on cars to pay for parks.

The fact of the matter is, we have to pay for things. Until, and unless, we change the 2/3rds rule on tax changes/50 percent on bonds, fees are the only way to raise money. This is, tolerably, even handed, and so I think it's the best of a bad lot; under the present system.

If I had my druthers, the kickbacks (in the form of "tax breaks) given to businesses to beg them to stay someplace (which they can then take, and run; see Boeing the the 7E7), ought to stop, and business properties ought to be reassessed every 5-10 years. I'd like to see this as more than just personal vehicles (because businesses make a lot of money on tourists coming to see our parks; the ought to pay some of the freight)

People like to complain of, "ruinous" taxes, then complain of the ruinous effect of not being taxed. This is the result.

TAANSTAAFL people, It doesn't mean no taxes, it means you get what you pay for.

(comment at Better than salt money)

There will be a two-day seminar: Torture is Moral Issue at the end of June.

I'll be participating. Feel free to spread the word.

The organisers are trying to line up recording. If that happens, I will let people know how to get a copy.

If you have an excuse, the costs are reasonable (esp. since this is not a group with a huge budget).

Lindsey Graham gets it right for once:

Now. I don't know what Nancy Pelosi knew and when she knew it. And I really don't think she's a criminal if she was told about waterboarding and did nothing. But I think it is important to understand that members of Congress, allegedly, were briefed by ... about these interrogation techniques. And again, it goes back to the idea of what was the Administration trying to do. If you're trying to commit a crime, it seems to me that would be the last thing you'd want to do. If you had in your mind and your heart that you're going to disregard the law, and you're going to come up with interrogation techniques that you know to be illegal, you would not go around telling people on the other side of the aisle about it.

He knocked that one out of the park.

Because the record shows that's exactly what they did. They didn't tell the other side of the aisle what was going on. After the fact they told them they had these spiffy new tricks (only they were old tricks, tricks we already knew don't work)which they had approved; but weren't using yet. When it looked as if they were going to be called on the carpet they had a bunch of meetings with Republicans, but not with Democrats.

Why not? If it was all on the up-and-up what was the reason to not tell the other party.

Could be it wasn't on the up-and-up.

To add to that we have Newt trying to double down, with his comment: "I think she has lied to the House, and I think that the House has an absolute obligation to open an inquiry, and I hope there will be a resolution to investigate her. And I think this is a big deal. I don’t think the Speaker of the House can lie to the country on national security matters.

I think he's right... lying to the nation on matters of national security does deserve investigations. We can start right at the top, with Bush, Cheney, Powell (and his present pleasant posture, as regards the president doesn't wash the stain of his briefing to the UN, nor his staying in office until after Bush was re-elected), Rice, Addison, and Bybee (who is, IMO, impeachable right now; for contempt of the Senate. He wants to sit on the bench, he sure as hell has to be obedient to the rule of law. He subpoenas someone, I figure that person has the right to say no. Bybee has shown he thinks such things are refusable requests).

If those investigations lead to Democrats. If Pelosi, or Reid, or Harman, or Fienstein, were complicit, prosecute them too.

The Right will say (is saying) this is partisan. Nonsense. Investigating alleged crimes isn't partisan. That's what investigations are for, finding out what went on, to see if crimes were committed; if charges need to be pressed. Some of the crimes aren't just alleged, they are admitted.

Cheney says he had people waterboarded. He used the memos Bybee helped write (and signed off on) to set up tortures. He admits it. Says he's do it again, and that it's a terrible thing we've stopped doing it.

Well those tortures led to people dying. There are, "a few bad apples," in prison right now because they did the things those memos authorised.

Graham, and Newt, spake wiser than they knew.

We ought listen to them.

Mostly, not much. It's got wonderful people; is large enough that those who want to get away, can. The majority are tolerant enough that really crazy people can stay, and the really conservative types aren't chased out.

But it's got problems. Big problems. Money problems. Most of them stem from one cause, and the ways in which a couple of sets of politically motivated people have managed to exploit them.

The prime cause of our woes isn't a lack of money in the state, but rather a lack of money in the government. We have about 10 percent of the US population, and produce about 13 percent of the US GDP.

The problem goes back to 1978, and Prop. 13. Prop. 13 was a reaction to a couple of problems. There was a big increase in the value of housing prices. The county assessors would reassess properties every couple of years and the tax would jump (when a house goes from 12,000 to 40,000, the tax bite is pretty dramatic). The worst part was the reassessments weren't on a schedule. The increase was usually a surprise.

So Prop. 13 capped the amount which a property could be assessed (one percent of total value), and limited the increases when the property was reassesed. Reassessement could only be done when the property sold, or when certain types of remodelling was done.

That's not the most pernicious aspect of Prop. 13. That's later in the bill.

Section 3. From and after the effective date of this article, any
changes in state taxes enacted for the purpose of increasing revenues
collected pursuant thereto whether by increased rates or changes in
methods of computation must be imposed by an Act passed by not less
than two-thirds of all members elected to each of the two houses of
the Legislature

The same is true of referenda.

Which makes it hard to get new taxes passed. Historically California has met special needs by passing limited sales tax increases. They are usually well built; with a sunset clause, a sort of bridge fund, while other things level out. In the early '80s the LA Rapid Transit District was raising prices like mad. In two years the fare went from 50 cents (and a dime transfer) to a $1.25, with a quarter transfer. The transfers went from being good for a couple of hours (in effect $.60 was one way to your destination), to being good once, with an extra $.25 letting you use it once more. If you need four busses, it was going to cost $3.00 to go one way.

So we passed a .05 percent increase to our sales tax (in the areas served by the RTD), and fares went back to the previous level. That lasted for five years, and the fare (when the tax went away) rose to $.85/.25. Today it's $1.25.

But with a 2/3rds requirement, it's almost impossible to get such things passed. It takes something as dramatic as the RTD problem to get one, at a local level, and something just this side of the end of the world to get it at the state level. The politcians are afraid of losing their seats, and the folks in the parts not so affected don't see the point.

But bonds... bonds only require a simple majority to pass. They are touted as not costing the taxpayer anything ("no increase in taxes"). But that's only half true. Yes, there is no increase in taxes. That doesn't mean the taxpayer pays nothing. It means the money comes out of the general fund.

And come out of the general fund it does, because the cost of a bond is usually twice what the bond generates. That's before the loss in tax revenue is factored in. State and municipal bonds are tax free, which means it's has a secondary loss to state revenue.

The worst part, of course, is all that money is removed from the general fund; it can't be used for other things. Since taxes can't, effectively, be raised to cover those things which they othewise might. Which leads to someone getting the idea to use a bond issue to cover it, and the postive feedback loop builds.

The easist fix would be to change the way in which those two things are done. Most bonds pass with between 51-54 percent of the vote. Most taxes fail with between 56-60 percent of the vote.

If we could make it 55 percent for both, the tide would shift, which would solve a lot of our problems, becuase, when all is said and done, tax and spend makes a lot more sense than borrow and spend.

There have been comments, and memos, and assertions made that Bush has all sorts of power because we are, "at war," and that until such time as we are no longer at war he gets to do all sorts of things which would be otherwise unacceptable.

The Dept. Of Justice now officially believes, so far as I can tell, that anything Bush does is, perforce, legal. We are you see at war, and the Congress has authorised force, and so the only thing that matters now is that the president believes his actions are in furtherance of the end authorised.

DoJ released a document entitled, LEGAL AUTHORITIES SUPPORTING THE ACTIVITIES OF THE NATIONAL SECURITY AGENCY DESCRIBED BY THE PRESIDENT. It has some stunning stuff in it. According to the theory they are spinning if there is any conflict between what the NSA has been ordered to do, and FISA, then FISA, and the FISA Court are unconstitutional.

Even if there were ambiguity about whether FISA, read together with the AUMF, permits the President to authorize the NSA activities, the canon of constitutional avoidance requires reading these statutes in harmony to overcome any restrictions in FISA and Title III, at least as they might otherwise apply to the congressionally authorized armed conflict with al Qaeda. Indeed, were FISA and Title III interpreted to impede the President’s ability to use the traditional tool of electronic surveillance to detect and prevent future attacks by a declared enemy that has already struck at the homeland and is engaged in ongoing operations against the United States, the constitutionality of FISA, as applied to that situation, would be called into very serious doubt. In fact, if this difficult constitutional question had to be addressed, FISA would be unconstitutional as applied to this narrow context.

Whew!

Part of what goes before that says The AUMF places the President at the zenith of his powers in authorizing the NSA activities. Under the tripartite framework set forth by Justice Jackson in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J., concurring), Presidential authority is analyzed to determine whether the President is acting in accordance with congressional authorization (category I), whether he acts in the absence of a grant or denial of authority by Congress (category II), or whether he uses his own authority under the Constitution to take actions incompatible with congressional measures (category III). Because of the broad authorization provided in the AUMF, the President’s action here falls within category I of Justice Jackson’s framework. Accordingly, the President’s power in authorizing the NSA activities is at its height because he acted “pursuant to an express or implied authorization of Congress,” and his power “includes all that he possesses in his own right plus all that Congress can delegate.” Id. at 635

Interestingly, Congress, back in 2002, was debating this very question. They decided to engage in a little bit of what Jackson's concurrence called, congressional authorization and deny the White House the permission to engage in the sort of wiretapping the NSA was already doing. Mike DeWine wanted to ammend the statue to modify the standard of proof for issuance of orders regarding non-United States persons from probable cause to reasonable suspicion in the FISA.

In a bit of irony (the sort where the left hand doesn't know what the right hand is doing) the Justice Dept. said The reforms in those measures (the PATRIOT Act) have affected every single application made by the Department for electronic surveillance or physical search of suspected terrorists and have enabled the government to become quicker, more flexible, and more focused in going "up" on those suspected terrorists in the United States.

One simple but important change that Congress made was to lengthen the time period for us to bring to court applications in support of Attorney General-authorized emergency FISAs. This modification has allowed us to make full and effective use of FISA's pre-existing emergency provisions to ensure that the government acts swiftly to respond to terrorist threats. Again, we are grateful for the tools Congress provided us last fall for the fight against terrorism...

The Department of Justice has been studying Sen. DeWine's proposed legislation. Because the proposed change raises both significant legal and practical issues, the Administration at this time is not prepared to support it...

The Department's Office of Legal Counsel is analyzing relevant Supreme Court precedent to determine whether a "reasonable suspicion" standard for electronic surveillance and physical searches would, in the FISA context, pass constitutional muster. The issue is not clear cut, and the review process must be thorough because of what is at stake, namely, our ability to conduct investigations that are vital to protecting national security. If we err in our analysis and courts were ultimately to find a "reasonable suspicion" standard unconstitutional, we could potentially put at risk ongoing investigations and prosecutions. (and thanks to Glenn Greenwald of Unclaimed Terriroty for finding that.

The DoJ thought the PATRIOT Act had made lowering the stanadard needless.

They also said they didn't want it lowered because that might make it harder to get evidence into court, and so hurt the aim of fighting terrorism.

But over at the NSA we had Gen. Hayden saying that (on the President's say-so) they had gone to a "reasonable suspicion" standard. OK... There are a number of things cops can do with "reasonable suspicion", bring in dogs to sniff a car, luggage, etc. Detain a suspect for a little while while they frisk him, pull a car over, &c. They do, however, have to explain themselves, and can get in trouble if they do it for no reason. My dad's a Auxilliary
Dept. Sherriff in Tenn. If he wants to pull someone over, they will do something which counts. Drift over the speed limit, forget to use a turn signal, heck, if they drive perfectly he can pull them over; because that level of care shows they were worried about being pulled over; which is suspicious, so the standard is pretty loose. But it can be because the cop/agency is liable (generally speaking) if the suspicion wasn't reasonable.

Back to Gen. Hayden. I heard part of his little press conference, and I sat straight up when I heard this exchange:

QUESTION: Jonathan Landay with Knight Ridder. I'd like to stay on the same issue, and that had to do with the standard by which you use to target your wiretaps. I'm no lawyer, but my understanding is that the Fourth Amendment of the Constitution specifies that you must have probable cause to be able to do a search that does not violate an American's right against unlawful searches and seizures. Do you use --

GEN. HAYDEN: No, actually -- the Fourth Amendment actually protects all of us against unreasonable search and seizure.

QUESTION: But the --

GEN. HAYDEN: That's what it says.

QUESTION: But the measure is probable cause, I believe.

GEN. HAYDEN: The amendment says unreasonable search and seizure.

QUESTION: But does it not say probable --

GEN. HAYDEN: No. The amendment says --

QUESTION: The court standard, the legal standard --

GEN. HAYDEN: -- unreasonable search and seizure...

GEN. HAYDEN: Sure. I didn't craft the authorization. I am responding to a lawful order. All right? The attorney general has averred to the lawfulness of the order.

Just to be very clear -- and believe me, if there's any amendment to the Constitution that employees of the National Security Agency are familiar with, it's the Fourth. And it is a reasonableness standard in the Fourth Amendment. And so what you've raised to me -- and I'm not a lawyer, and don't want to become one -- what you've raised to me is, in terms of quoting the Fourth Amendment, is an issue of the Constitution. The constitutional standard is "reasonable." And we believe -- I am convinced that we are lawful because what it is we're doing is reasonable.

It was more apparent when one heard it that he was saying the Fourth Amendment didn't require probably cause, and that the employees of the NSA are familiar with it.

For the rest of us, who aren't so familiar with it at the good folks running the NSA, I'll (purely as a public service) reprint it here:

" "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. "

In some sense, he's right. It says we are secure from unreasonable searchs and seizures, and since the NSA wasn't worrrying about warrants the fact that "no Warrant shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized" isn't really wrong either.

Where am I going with this? It goes back to the 42 pages of the DoJ argument I started this with.

"The same day, the Attorney General elaborated and explained that in order to intercept a communication, there must be “a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda.”

Have any of you ever played six degrees of separation? I have. I'll bet I can get to OBL inside those six degrees. Lessee, 1: Former SecDef 2:Clinton 3: House of Saud 4:OBL.

Whoo! That was hard.

Maybe I have to go to five, what with just who in the House of Saud OBL knows, and Clinton met with, but that's still connecting me, to him, and didn't need all six steps.

What else is in there? Oh yeah, part of the justification is based on the preamble to the Authorization of Force. That's what lawyers call predicate language, it has no legal force (it isn't the first time this administration has done this... they used parts of the predicate language (which they supplied) for the authorization of force against Iraq to show that Congress really wanted them to do it, but I digress).

They take passages of the Federalist Papers, which address the Gov't in general (The Founders, after all, intended the federal Government to be clothed with all authority necessary to protect the Nation. See, e.g., The Federalist No. 23, at 147 (Alexander Hamilton) (Jacob E. Cooke ed. 1961) (explaining that the federal Government will be “cloathed with all the powers requisite to the complete execution of its trust”); id. No. 41, at 269 (James Madison) (“Security against foreign danger is one of the primitive objects of civil society . . . . The powers requisite for attaining it must be effectually confided to the federal councils.”). Reading that closely says the total of the Gov't is now vested in the Executive, and they say this is what the founders wanted.

Angels and Ministers of Grace.

They take a number of decisions from before FISA, and say those liberties, to surveille, are still extant (never mind the fact of Congress acting in it's role as the maker of laws, passing a few which curtailed that)

The core argument is that FISA was seen to allow electronic surveillance, and that as this is a time of war, and the people being targeted are "reasonably believed" to be either the enemy, supporting the enemy, or at least speaking with the enemy, there is no need for a warrant because this is just part of normal intel-gathering in a war. That actually makes a certain amount of sense, save that there's no way to know that. There's no oversight.

Looking at this argument The amendments that section 201(b) of FISA made to title 18 are fully consistent, however, with the conclusion that FISA contemplates that a subsequent statute could authorize electronic surveillance outside FISA’s express procedural requirements. Section 2511(2)(e) of title 18, which provides that it is “not unlawful” for an officer of the United States to conduct electronic surveillance “as authorized by” FISA, is best understood as a safe-harbor provision. what I see is that Congress contemplated just such a statutory change and rejected it. Congress decided the 4th amendment concerns were at least as important as gathering intel. From the lack of prosecutions, the complaints of the FBI about the leads they were handed and suchlike it seems they were right.

They go on:

As explained above, it is not necessary to demarcate the outer limits of the AUMF to conclude that it encompasses electronic surveillance targeted at the enemy. Just as a majority of the Court concluded in Hamdi that the AUMF authorizes detention of U.S. citizens who are enemy combatants without expressly mentioning the President’s long-recognized power to detain, so too does it authorize the use of electronic surveillance without specifically mentioning the President’s equally long-recognized power to engage in communications intelligence targeted at the enemy. And just as the AUMF satisfies the requirement in 18 U.S.C. § 4001(a) that no U.S. citizen be detained “except pursuant to an Act of Congress,” so too does it satisfy section 109’s requirement for statutory authorization of electronic surveillance.10 In authorizing the President’s use of force in response to the September 11th attacks

That seems to argue they think it legal to do this to anyone. If one can detain a US citizen by calling him an enemy combatant, how much less of a stretch is it to say one can tap his phone?

The most frightening thing (and with this I will end this, as it is already longer than it probably ought to be) is the way they interpret the Authorization for the Use of Military Force as being more sweeping, and so conferring more power to the president than an actual declaration of war would be.

As a historical matter, a formal declaration of war was no longer than a sentence, and thus Congress would not expect a declaration of war to outline the extent to which Congress authorized the President to engage in various incidents of waging war. Authorizations for the use of military force, by contrast, are typically more detailed and are made for the specific purpose of reciting the manner in which Congress has authorized the President to act. Thus, Congress could reasonably expect that an authorization for the use of military force would address the issue of wartime surveillance, while a declaration of war would not. Here, the AUMF declares that the Nation faces “an unusual and extraordinary threat,” acknowledges that “the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States,” and provides that the President is authorized “to use all necessary and appropriate force” against those “he determines” are linked to the September 11th attacks. AUMF pmbl., § 2. This sweeping language goes far beyond the bare terms of a declaration of war.

Recall that all of the broad claims to presidential power have, thus far, been couched in terms of fighting a war; but this is seen by them as being bigger than a war, which implies the president needs more powers than he has already (and they are claiming some pretty broad powers) when it's only understood to be a war.

Amusing topicality

Found at American Idle a whole lot of, mostly, amusing bits of photoshopping.

Dinner last night was boiled.

Pot roast, with pototaoes, carrots, turnips and celery.

Baked beans (2 lbs dry beans soaked overnight, parboiled with some baking soda: drained and mixed with salt, mustard powder, molasses and flitch bacon and one large onion; chopped large; covered with water and baked in a dutch oven, placed in a 250 oven for about seven hours, check occasionally to see the water isn't boiled away)

Brown bread (which is really a pudding, a la Christmas).

Prep:

Grease, and line with paper a pudding basin, or some empty coffee cans.

Place a large pot on the stove, with a cake rack in the bottom, add a few inches of water, and bring to low boil.

1/3 cup ea. (scant) of cornmeal, buckweat and all-purpose white flour.
1/2 tsp. salt
1 tsp. baking soda

Mix the dry ingredients and add,

1/2 cup ea. of milk, molasses and water (we had skim and cream in the house, so I used a tad of cream. When measuring use either a 2 cup liquid measure, end with the molasses [because it will displace to the right level before you can see to stop] or measure the milk first, then the molasses, then the water. The fat in the milk [more evident when using cream] will ease the departure of the molasses. Then one can use the water to dissolve the last of the molasses).

For a stronger flavor use blackstrap.

Mix until wet, and a very loose dough. Do not over mix.

Fill the container(s) about 2/3rds full, cover with cloth, or parchment paper and place in the pan.

Keep an eye on the water, and allow to steam for ca. 1 1/2 hours.

I made a double batch (deciding, after the first was in the basin that I'd not enough). That was about 3 qts, volume, when done. I didn't tie the cloth, just laid it across the top. It was lovely. There was none left.

I think I'll add some cinnamon the next time I make, and use blackstrap (all I had was Grandmother's unsulphured, which was nice, but it wants more bite). I may also reduce the buckwheat, and replace it with white; I may also try it with rye.

What would you do if one of your employees told you he was going to ignore, when he felt like, the rules you, as an employer set up?

You'd fire him.

What would you do if he told you he was going to ignore the rules that the managers you hired to oversee his work?

You'd fire him.

Looking with more attention at the President's statement about his signing of the defense authorisation bill, I see that he's doing that. Not just on the Torture Amendment (I confess to being a trifle tunnel visioned on that subject, but to other things.

Sections 8007, 8011, and 8093 of the Act prohibit the use of funds to initiate a special access program, a new overseas installation, or a new start program, unless the congressional defense committees receive advance notice. The Supreme Court of the United States has stated that the President's authority to classify and control access to information bearing on the national security flows from the Constitution and does not depend upon a legislative grant of authority. Although the advance notice contemplated by sections 8007, 8011, and 8093 can be provided in most situations as a matter of comity, situations may arise, especially in wartime, in which the President must act promptly under his constitutional grants of executive power and authority as Commander in Chief of the Armed Forces while protecting certain extraordinarily sensitive national security information. The executive branch shall construe these sections in a manner consistent with the constitutional authority of the President.

Section 8059 of the Act provides that, notwithstanding any other provision of law, no funds available to the Department of Defense for fiscal year 2006 may be used to transfer defense articles or services, other than intelligence services, to another nation or an international organization for international peacekeeping, peace enforcement, or humanitarian assistance operations, until 15 days after the executive branch notifies six committees of the Congress of the planned transfer. To the extent that protection of the U.S. Armed Forces deployed for international peacekeeping, peace enforcement, or humanitarian assistance operations might require action of a kind covered by section 8059 sooner than 15 days after notification, the executive branch shall construe the section in a manner consistent with the President's constitutional authority as Commander in Chief.

A proviso in the Act's appropriation for "Operation and Maintenance, Defense-Wide" purports to prohibit planning for consolidation of certain offices within the Department of Defense. Also, sections 8010(b), 8032, 8037(b), and 8100 purport to specify the content of portions of future budget requests to the Congress. The executive branch shall construe these provisions relating to planning and making of budget recommendations in a manner consistent with the President's constitutional authority to require the opinions of the heads of departments, to supervise the unitary executive branch, and to recommend for congressional consideration such measures as the President shall judge necessary and expedient.

Section 8005 of the Act, relating to requests to congressional committees for reprogramming of funds, shall be construed as calling solely for notification, as any other construction would be inconsistent with the constitutional principles enunciated by the Supreme Court of the United States in INS v. Chadha.

The executive branch shall construe section 8104, relating to integration of foreign intelligence information, in a manner consistent with the President's constitutional authority as Commander in Chief, including for the conduct of intelligence operations, and to supervise the unitary executive branch. Also, the executive branch shall construe sections 8106 and 8119 of the Act, which purport to prohibit the President from altering command and control relationships within the Armed Forces, as advisory, as any other construction would be inconsistent with the constitutional grant to the President of the authority of Commander in Chief.

I suppose the justification for violating the laws is derived from the oath of office, and the idea that such an abrogation of the balance of powers and the system of checks and balances is in needed to, "faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

Never mind those pesky provisions in Art. I, Section. 8.

Clause 1: The Congress shall have Power To...

Clause 10: To define and punish ... Offences against the Law of Nations;

Clause 11: To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

Clause 14: To make Rules for the Government and Regulation of the land and naval Forces;

Clause 16: To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

Clause 18: To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

But this White House thinks that the acts which excercise those powers are based on "purported" authorities.

Purported. Not actual, no the powers the Constitution grants the Congress aren't real, but purported.

To read the text of the legal minds of this administration is to see that Congress has no real power. Declare, to them, means to say out loud. Congress doesn't make war, it merely announces. Once the President has decided war is needful, they get to come along for the ride, and (because there's a war on) they lose the power to make laws which affect some "Department[s] or Officer[s] thereof."

That, my friends, seems to be a statement that the President is trying to sieze dictatorial power.

He can do that, but only if we let him.

So, not to put to fine a point on it, the McCain Amendment is as worthless as I said it was.

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks. Further, in light of the principles enunciated by the Supreme Court of the United States in 2001 in Alexander v. Sandoval, and noting that the text and structure of Title X do not create a private right of action to enforce Title X, the executive branch shall construe Title X not to create a private right of action. Finally, given the decision of the Congress reflected in subsections 1005(e) and 1005(h) that the amendments made to section 2241 of title 28, United States Code, shall apply to past, present, and future actions, including applications for writs of habeas corpus, described in that section, and noting that section 1005 does not confer any constitutional right upon an alien detained abroad as an enemy combatant, the executive branch shall construe section 1005 to preclude the Federal courts from exercising subject matter jurisdiction over any existing or future action, including applications for writs of habeas corpus, described in section 1005.

That's what the president said in his signing statement on the bill.

He reserves the right to make it up as he goes along, and Congress, the Courts, the Constitution, and We; the People, can go piss up a rope.

He, after all, will be doing it for our own good, and that trumps all.

Further, if I am reading the decision referred to correctly, there is, per the Administration no way for anyone to enjoin; nor petition for redress, since the restriction is; as interpreted, placed only so long as the Executive deems it expedient (Alexander v Sandoval is a piece of Scalia's less clear writing, explaining why a petitioner has no right to make the intial case. Hinging on layers of meaning one [who is only as versed in the law as I am, an amateur who reads it for pleasure] might say it is a riddle wrapped in a mystery inside an enigma, but I suspect it's a trifle less opaque, but just a trifle). It will be for the courts to decide whether any appeal of violations of this law are allowed to be heard, but from my reading of that statment the White House position is, "We won't torture anyone unless we have to, at which point it will be legal, because the President says so, and if you have any problem with that, you can pound sand, because we also decided these people aren't entitled to any civil rights (I guess they aren't as inalienable as all that). So it's going to be an uphill battle.

(p.s. Hilzoy has more, at Obsidian Wings Comments there can be interesting, but the signal to noise ratio is often high)

Just doing a fly by as Maia and I stop at home on our way to Los Angeles from Sebastapol.

The NSA Spying is important, so important that damn near everything else ought to be filtered through it?

Why? Because knowledge is power, and power tends to corrupt.

Do I wax hyperbolic? I hope so. I fear not, but I hope so.

But this needs to be avoided.

This administration has made sweeping cliams of power. It has said there are no limits to presidential power during war. It says that Congress authorizing force against the Taliban in Afghanistan was a declaration of war, and that until such time as the White House decides the war is over, the war goes on.

Oceania has always been at war.

We are, I am afraid, on the verge of a police state.

The Limbaughs, the Malkins, the O'Reillys, the Hannitys, and all the myriads in freeperdom are calling for the heads of those who disagree. They will claim it's metaphoric, they don't really want to kill "liberals" (a wonderfully fuzzy term) and the "liberal hunting permits" (no season, no limit, and no restrictions) are just humor, which the humor-impaired "PC" "liberals" don't get, but that, as Orcinus points out is a destructive humor.

It's seed corn for pogroms.

The folks who preach these things (Malkin on interment, Limbaugh on the glories of the [Republican] State, Coulter on the need to put Liberals down like rabid dogs, &c) also think there ought to be class. One set of rules for the proles, another for the elite (and we all know where people who divides the world into upper and lower classes put themselves).

After all, Limbaugh said, on 22 Dec, 2005, the NSA snooping everything is just fine “Liberals and Democrats,” Limbaugh claimed, “are only opposed to this because they don’t want anyone finding out what they’ve been up to. … What have you folks been doing that you so desperately want to keep hidden?”

On the other hand his lawyer was defending his rights to privacy in the drug case against him, not a week before with Wolf Blitzer

BLITZER: If Rush Limbaugh has nothing to hide and has done nothing wrong, what’s the problem with letting the prosecutor speak to the doctors and go through all the records?

BLACK: Well, Wolf, that’s an excellent question. A lot of people ask this all the time. You know what? We have a right of privacy in this country that I think is important for us to hold onto. I mean, we could let prosecutors and police into our bedrooms, search our computers, watch us having sex. We could let them do all these things, but then we would have a police state. We would no longer have a democracy. I think it’s very important to fight these privacy battles—and Rush Limbaugh has taken on this battle of privacy with your doctor, and I think it has really been a public service for him. Not only for himself but everybody else who wants their medical records and medical treatment kept private and not to be disclosed in the press or with the police or prosecutors or anyone else who has no business being there.

The core of this is, still, the reasoning by John Yoo, the reasoning which says Congress abdicated all power (but that of the purse) when it authorised force.

That's scary. All oversight, all restraint and all control are ceded to the president, the moment the Congress authorized force.

Not even declares war, merely authorizes force. I'm sure Rush would have been all for Clinton exercising this sort of power.

This is rambling, I apologise. I've not had breakfast, we're late and I want to get this out.

Forget abortion, right to die, gay marriage; or marriage being anything special in the law, and civil unions for all; marriage for churches, school vouchers, voting rights, voting machines, and every other thing you worry about (no matter which side of the aisle).

This trumps them all.

Can Bush run again? No, the 22nd amendment says so.

But he can set aside other constitutional provisions, under the Yoo doctrine. The Legislative, and (mostly) the Judiciary have let him (putting aside a treaty is ignoring the Constitution, Article VI,

This Constitution, and the Laws of the United States which shall be made in
Pursuance thereof; and all Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members of the
several State Legislatures, and all executive and judicial Officers, both of
the United States and of the several States, shall be bound by Oath or
Affirmation, to support this Constitution)

So why trifle at some silly little thing which might allow someone else to come in and end the war he sees needful. Since Yoo has said the power of the Executive trumps the will of Congress, and the prosecution of a war makes the President, de facto, a Consul and Tribune, absolute monarch until the war is done, what is to stop a President (any president, that's the test on power, how would you feel if someone you didn't trust was in office with it) from doing such a thing?

That, I think is a trifle beyond even my worst fears. Easier to rig an election (and the GAO report on the results in Ohio, combined with the flap the White House made in Ukraine [where the election tallies didn't match the exit polls, and that was grounds for a revote, but in Ohio; well that was because of a flaw in the polling method. Never mind that a host of statisticians said just one poll being off was unlikely, but three was tantamount to impossible).

When did we become so trusting of the Gov't? We are founded on a deep distrust of central authority. We fought a war because of the abuses of such an exectutive. We formed a nation, under the Articles of Confederation, which had no central authority. We only got the present Constitution because a Bill of Rights was promised.

At what point did we start to let fear (of the "other" of crime, of random forces from outside) take over? FDR was right, the only thing we have to fear is fear itself. Why? Becase fear makes us irrational, and that abandonment of reason gives people a chance to exploit our weaknesess and convince us to give up some essential liberty in the name of security (yep, I'm trying to make a meme)

Who would you trust with every secret you've got?

Who would you give keys to your diaries? Passwords to your computers; and all the passwords to your bank, e-mail, amazon account, library card... the lists are as varied as you want to make them)? Who would you also give the keys to your house, and the path of everywhere you drive (got OnStar?).

Why should you give them to the Gov't? (which is why Roberts, and Alito bother me, both of them favor the Gov't, in the form of the Executive, having this sort of power).

I'll close with the grievances of the Declaration of Independence, the reasons for the stirring language at the front of the document, slightly edited.

See which one's might apply to the present.

The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute tyranny over these states. To prove this, let facts be submitted to a candid world.

He has refused his assent to laws, the most wholesome and necessary for the public good.

He has forbidden his governors to pass laws of immediate and pressing importance, unless suspended in their operation till his assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other laws for the accommodation of large districts of people, unless those people would relinquish the right of representation in the legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved representative houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the legislative powers, incapable of annihilation, have returned to the people at large for their exercise; the state remaining in the meantime exposed to all the dangers of invasion from without, and convulsions within.

He has endeavored to prevent the population of these states; for that purpose obstructing the laws for naturalization of foreigners; refusing to pass others to encourage their migration hither, and raising the conditions of new appropriations of lands.

He has obstructed the administration of justice, by refusing his assent to laws for establishing judiciary powers.

He has made judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of new offices, and sent hither swarms of officers to harass our people, and eat out their substance.

He has kept among us, in times of peace, standing armies without the consent of our legislature.

For protecting them, by mock trial, from punishment for any murders which they should commit on the inhabitants of these states:

He has affected to render the military independent of and superior to civil power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his assent to their acts of pretended legislation:

For imposing taxes on us without our consent:

For depriving us in many cases, of the benefits of trial by jury:

For transporting us beyond seas to be tried for pretended offenses:

For abolishing the free system of English laws in a neighboring province, establishing therein an arbitrary government, and enlarging its boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule in these colonies:

For taking away our charters, abolishing our most valuable laws, and altering fundamentally the forms of our governments:

For suspending our own legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated government here, by declaring us out of his protection and waging war against us.

He has plundered our seas, ravaged our coasts, burned our towns, and destroyed the lives of our people.

He is at this time transporting large armies of foreign mercenaries to complete the works of death, desolation and tyranny, already begun with circumstances of cruelty and perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the head of a civilized nation.

He has excited domestic insurrections amongst us, and has endeavored to bring on the inhabitants of our frontiers, the merciless Indian savages, whose known rule of warfare, is undistinguished destruction of all ages, sexes and conditions.

In every stage of these oppressions we have petitioned for redress in the most humble terms: our repeated petitions have been answered only by repeated injury. A prince, whose character is thus marked by every act which may define a tyrant, is unfit to be the ruler of a free people.

Nor have we been wanting in attention to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. We must, therefore, acquiesce in the necessity, which denounces our separation, and hold them, as we hold the rest of mankind, enemies in war, in peace friends.

I've been mentioning, of late, the Gonzales and Yoo memos, about presidential power in time of war.

Bruce Schneier sums it up pretty damned well here (it was also an op-ed in the Minneapolis Star Tribune, but he goes into more detail on his blog, if I read it right).

My complaint with the Bush administration's views is that they argue the president has unlimited powers during wartime. This is the idea which led Bush to say his telling the NSA to spy on people was legal, and to allow torture, hold citizens as, "enemy combatants" and all the other things people (at this point on both sides of the aisle, from Bob Barr [of all people] to the ACLU).

But on to what Bruce had to say on it.

Here's the opening paragraph of the Yoo memo. Remember, think of this power in the hands of your least favorite politician when you read it:

You have asked for our opinion as to the scope of the President's authority to take military action in response to the terrorist attacks on the United States on September 11, 2001. We conclude that the President has broad constitutional power to use military force. Congress has acknowledged this inherent executive power in both the War Powers Resolution, Pub. L. No. 93-148, 87 Stat. 555 (1973), codified at 50 U.S.C. §§ 1541-1548 (the "WPR"), and in the Joint Resolution passed by Congress on September 14, 2001, Pub. L. No. 107-40, 115 Stat. 224 (2001). Further, the President has the constitutional power not only to retaliate against any person, organization, or State suspected of involvement in terrorist attacks on the United States, but also against foreign States suspected of harboring or supporting such organizations. Finally, the President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11.

There's a similar reasoning in the Braybee memo, which was written in 2002 about torture:

In a series of opinions examining various legal questions arising after September 11, we have examined the scope of the President's Commander-in-Chief power. . . . Foremost among the objectives committed by the Constitution to [the President's] trust. As Hamilton explained in arguing for the Constitution's adoption, ‘because the circumstances which may affect the public safety’ are ‘not reducible within certain limits, it must be admitted, as a necessary consequence, that there can be no limitation of that authority, which is to provide for the defense and safety of the community, in any manner essential to its efficacy.’ . . . [The Constitution’s] sweeping grant vests in the President an unenumerated Executive power . . . The Commander in Chief power and the President’s obligation to protect the Nation imply the ancillary powers necessary to their successful exercise.

The crucial point, is here, "Yoo starts by arguing that the Constitution gives the president total power during wartime. He also notes that Congress has recently been quiescent when the president takes some military action on his own, citing President Clinton's 1998 strike against Sudan and Afghanistan.

Yoo then says: "The terrorist incidents of September 11, 2001, were surely far graver a threat to the national security of the United States than the 1998 attacks. ... The President's power to respond militarily to the later attacks must be correspondingly broader."

This is novel reasoning. It's as if the police would have greater powers when investigating a murder than a burglary.

More to the point, the congressional resolution of Sept. 14, 2001, specifically refused the White House's initial attempt to seek authority to preempt any future acts of terrorism, and narrowly gave Bush permission to go after those responsible for the attacks on the Pentagon and World Trade Center.

Yoo's memo ignored this. Written 11 days after Congress refused to grant the president wide-ranging powers, it admitted that "the Joint Resolution is somewhat narrower than the President's constitutional authority," but argued "the President's broad constitutional power to use military force ... would allow the President to ... [take] whatever actions he deems appropriate ... to pre-empt or respond to terrorist threats from new quarters."

Even if Congress specifically says no.

And that's what scares me. This president believes he is the final arbiter of what is legal.

When I look at the GAO saying the Ohio vote was suspect, and probably corrupt, the President's supporters arguing that it's more important to investigate those who leaked that spying of questionable legality was going on (never mind that those to whom they leaked sat on it for a year; that's another issue altogether, one which ties into whom the Press is serving, and how much it can be trusted in these days) rather than to ponder the idea that the president has been, for the past four years, engaging in wiretaps without warrants. When I see real harm to our intelligence efforts being done, and those same supporters saying that's just business as usual, "nothing to see here, move along." When I see the Courts being used to avoid review (for which the 4th Circuit just slapped the administration upside the head; with statements that the credibilty was in jeopardy, because questions of similar nature would come up again, and this makes it hard to think them acting in good faith), when I see the president saying he can declare anyone, anywhere, an enemy combatant; at which point they lose all civil rights, when I see him ignoring the findings of the tribunals he constitutes, and holding those deemed innocent by them...

When I see things like that, I begin to think him a threat to the republic, as great a threat as we have ever faced.

I begin to see an American Caesar.

Lots of folks are getting gooey because Bush has accepted the McCain amendment prohibiting torture.

This was, by me at least, expected. Bush has been fond of talking tough, dragging out the "V" word, but the record shows that when someone calls his hand on that one, he always folds.

Don't get me wrong, I'm glad McCain found some small piece of the spine he used to have, the one he seems to have given up after the 2000 Primary season.

He'll never get my vote. There was a time when my vote for him might have been in play, but the events of the campaign in 2004 made it a pretty slim hope (the Dems would have to have run Nader, or perhaps Lieberman to make McCain look acceptable).

After he voted for Bertie "It ain't torture if they don't die, and the pres can authorise that anyhow" Gonzales though, forget it.

It's Bertie, by the way, which makes me think this whole amendment issue is great theater, but all in all has no real effect.

Recent events (the NYT article on spying by the NSA, spying on American citizens, without a warrant, for more than a year [because it wasn't new when the Times found out about it, and they admit to sitting on it for a year. Where has the spirit which ran the Pentagon Papers gone? I don't see any affliction of the comfortable {well, not since they swallowed the Whitewater, Vince Foster, Travelgate nonsense, but since that was afflicting "a liberal," or at least a Democrat no one seems to think it was bad, but holding Bush's feet to the fire, that's not on. Sorry, back to business) imply the administration doesn't think the law applies to it.

They are still playing as if the rhetoric of war (even though none has been declared. This is, perhaps a technicality, but bear with me, it's an important one) means all restraints are off. They think Bush is Consul and Tribune, that he has the, "inherent power" to set aside the law if he thinks it interferes with national security.

So what makes us think they will obey this one? Just because Cheney asked for the CIA to be allowed to do it? That doesn't make me think they'll refrain from having anyone they can find to squeeze the pliers from breaking peoples fingers.

These are the same people who still think Ollie North is a hero. They let him run for office in their party. He lost, but they gave him their seal of approval. Why?

Because he broke the law, to fulfill the wishes of the president.

So, we now have a US law, which confirms a ratified treaty. It's already illegal to torture POWs. The law which prohibits it is one step below the constitution. If they thought that didn't matter, why in the world should anyone think they will decide to obey the demands of Congress?

It's pleasant theater, but it won't change a damned thing.

The only thing that will is an honest election, and that turning them out of office.

Today, in 1791 the Bill of Rights was ratified.

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Amendment II

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Amendment III

No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Amendment VII

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Those ten amendments, probably more than any other aspect of the Constitution define who we are as a nation.

To quote Lincoln we are now engaged in a great struggle to see if any nation so conceived can endure.

For years, even decades (hell, practically since the inception of the country) the Gov't has been trying to chip away and file down the protections those ten amendments provide. I think this a bad idea. It isn't that I think them Holy Writ, graven in stone by some sacred set of Iconic Founding Fathers who knew all, and made no mistakes. Some things need to be adjusted to meet the needs of the present (who here thinks that 20 dollars at issue ought to be the threshold at which a jury trial is guaranteed? Next time you want some fun, ask that question of a, "Strict Constructionist), but rather those ten additions to the Constituion probably have more to do with what we are, and what we ought to be, than the rest of it put together. The actual text of the constitution is about mechanics. How we go about governing ourselves. How the social compact is administered.

The Bill of rights, on the other hand, (with some late additions, after the Civil War) define the social contract.

In my lifetime, however, major aspects of it have been compromised, in the name of law and order.

Warrants are no longer required to search any vehicle, within 50 miles of the border. If, however, the cops fail to find anything they aren't obligated to put your car back in order, nope, they acted, "in good faith," and so are protected, even if (as has happened) the motorist's vehicle has been completely disassembled at the side of the road, requiring, at the very least, a good set of tools and some hours to put back together.

RICO was brought out to stop the Mafia, by going after the ill-gotten gains. But in the War on Drugs (and on porn, at least once) it's been used as a bill of attainder; and one which would have made Elizabeth I blush (or, as I would like to think, blanch). No need to actually charge anyone, just make a RICO seizure and they lose everything. If you do charge them, well the stuff they own can be used to finance the prosecution, and if they are acquitted, so sorry, nothing left to return (this happened to a bookstore in Fla.. The DA decided Marvel Graphic Novels were pornographic. Sent a couple of 17 year-old boys in, about ten minutes apart, and used those two sales to show, "a pattern of criminal behaviour," and invoked RICO. They were acquitted, but all they had in the shop was gone, merchandise and furnishings.)

These days the bogeyman isn't the Mob, nor so much the Drug Cartels, it's terrorists. We are told this is something completely new, and the old ways of doing businsess are outmoded. The answer was, The PATRIOT Act. So important was this that we passed it, unread, some four years ago.

There is one part of the PATRIOT Act which might be useful, which is the part where the various agencies working on things are supposed to talk to each other more easily, when say the FBI finds links to terrorism while it's working on a plain-jane criminal matter. But it doesn't The CIA is also expected to give plain-jane criminal info to the FBI when it enounters it in a terorism investigation. That's a camel's nose. It puts the CIA in domestic affairs. Not good. That way lies the deuxieme beaureau of Napoleon, or Stalin's NKVD.

That seems a tad extreme, but since, without a warrant the FBI took down, into permanent files, a host of information on everyone who got a room in Vegas for an entire weekend (they had, "credible" information that a terrorist attack was going to take place. It didn't, but by gum, if it turns out later that one of the tens of thousands of people who stayed in Vegas that weekend becomes worth looking at, there will be a working file).

That, at least, was done legally (no matter how odius the law might be), and could be stopped. Then again maybe not. The WaPO, and the New York Times report, not denied, that the White House arranged for the NSA to spy on uncounted persons who made international phone calls, or sent e-mail overseas. They did this on the simple say so of the president. No warrant, no National Security Letter, no nothing, except the command of the man in the Oval Office. No oversight.

Today, however, the Senate decided enough was enough. Some senators have been declaring public qualms (not least among them Russ Feingold
the only one who stood up and opposed it at its inception. Others only lately.

Few of them seem willing to just let the thing die, and trust that the systems we had in place before this rancid piece of legislation was passed could do the job, but they are willing to question some of the most offensive aspects. They asked for three months, so they could investigate (four years, it seems, wasn't enough).

The White House said no. Pass it, or don't, but anything less than permanent extenstion would be vetoed (this seems an empty threat to me, this president hasn't vetoed anything. Just today he caved in on McCain's anti-torture amendment... the one he said he'd veto, even if it was on an appropriations bill for the war in Iraq. Why anyone believes he'd veto an extension to a law he likes, rather than let it die is beyond me).

So some senators did what they were hired to do, looked down the road to see where we were going, and they decided they didn't like it. The pulled a filibuster, despite the usual fear-mongering of those who want to railroad this sort of curtailment of rights. Take, for example, the words of Jon Kyl (R-Ariz) [The PATRIOT Act]he Patriot Act "will prevent future acts of terrorism unless we allow it to expire.". If a filibuster resulted in the act's ceasing to exist and an attack occurred, "everyone who votes to support a filibuster will have to answer for that.

Which is arrant nonsense.

Anyone who's studied the problem will tell you the question isn't if, but when. It may be some external threat, it may be another McVeigh, or Rudolph. We've stopped a number of attempts, and those through classic law enforcement. The Millenium Bomber, caught by an alert Customs Agent.

The folks in Texas, with the makings of a whole lot of chemical weapons (goodly folk too, God-fearing white people) they weren't snared up because the CIA was tapping their phones.

That's what's most offensive about things like RICO, and the PATRIOT Act. They ask us to sacrifice our freedom for percieved safety. As Franklin said, those who are willing to do that deserve neither.

He also said we have a Republic, if we can keep it.

These things, IMO, are grave threats to our keeping it, and I don't want to see it vanish from the face of the earth.

Call your senators (and your rep) and tell them this thing is bad, evil, a dog's breakfast and we don't need it. Tell them why (there's lots of reasons why), and just maybe we can get a little closer to those ten amendments again.

Digby (who reminds me of someone I know by that name, but I am sure it isn't him... it's very strange. I want to meet him just so the disconnect of hearing his words in someone else's voice will go away) has a piece up (Burning Witches about torture, and why we need to keep railing against it.

Why it must remain completely beyond the pale of what we will accept.

Do I think the US has used, winked at, conived and suborned torture? Of course I do. Do I think it recent, and only of such recent ilk as the present flap has brought to light? Of course not.

We supported death sqauds in El Salvador. We knew they existed, and the Reagan administration broke laws (a lot of them, from the Boland Amendment to letting cocaine come in the side door while we were slipping illegal arms out the back) to keep the people who had them in funds so they could keep up the killing.

Digby points out one of the crucial things about torture, it isn't really about getting information, not when it becomes an instrument of policy.

One might assume that there is no one on the planet who thinks that torturing innocent people is right. Certainly, it's going to be hard to find intelligent educated people who believe that it is a moral good to do so. But not impossible. As it turns out there is a moral argument for torturing innocent people:

From Orrin Judd:

You might want to go back and brush up on your history, witchcraft was quite popular, even within the Church, for an awfully long time. In fact, it's back today in the form of Wicca. In its denial of the basis of Western Civilization it is so transgressive that it deserved to be and was persecuted. People who deny there were witches because they don't like how the religious treated them are akin to the Left denying there were Communists because they don't like that Americans reviled them. Jews too were justifiably, though unnecessarily, persecuted for their beliefs and inability to conform to social norms. The great injustice was the persecution of the conversos in Spain, who were sincere converts to Christianity.

I think he understands something I failed to understand about this argument. This isn't about terrorism. It isn't about national security. It isn't about the rule of law or enlightenment values. It's about conforming to social norms. That puts the whole thing in perspective, doesn't it? What I call "innocent" isn't innocent at all. Just being a practicing Muslim makes one guilty.

It's nice to know that we shouldn't be persecuting those who have converted to Christianity (or properly protestantised Islam, which translates into an embrace of Western Civilization.) The good news is that "protestantising" (forcing Western conformity on) the billion Muslims out there will be a cakewalk:

You can have a number of voices so long as everyone has just one hymnal. That's the essence of the protestantism that the End of History requires. It'll be easy enough to Reform Islam, just as we did Catholicism, Judaism, and the rest.
Posted by: oj at November 25, 2005 10:56 AM

And here I thought the whole "End of History" thing had been laughed out of town by the events of 9/11. Apparently History has only been postponed. Protestantism is still on the march, "reforming" witches and Muslims alike. And if it takes a little waterboarding or burning at the stake to get the job done, so be it. These people have to understand that we're going to end History one bloody non-conformist bastard at a time if we have to.

It's all of a piece. Hussien used torture to make people conform, to suppress dissent. Stalin did the same. Say something out of line to the wrong person, and "poof" you disappeared. Hitler, well he could be kinder. Von Stauffenberg was slowly killed, as an example. Rommel, implicated in the same plot was allowed to kill himself, which would spare his family the same, inevitable, fate, if he was publicly accused, and then; of course, convicted.

What could Rommel do? Even if he was innocent, his fate was sealed. Suicide, and his family lives, insist on his innoncence, and they get killed.

Torture works; if a state where fear of the denouncement is the place you want to live.

To quote A.E. Houseman, slightly out of context,

He gathered all the springs to birth
From the many-venomed earth;
First a little, thence to more,
He sampled all her killing store;
And easy, smiling, seasoned sound,
Sate the king when healths went round.

One of the things Judge Alito is proud of is his membership in the Concerned Alumni of Princeton, back in the mid seventies.

hilzoy, at Obsidian Wings has a post about it. It supports the general trend I see that Alito is against things I think are good.

Some exerpts:

"-- In 1973, CAP mailed a letter to parents of freshmen implying that their sons and daughters were living in "cohabitation," rather than simply coeducational dorms.

— In 1975, a CAP board member tried to disrupt Annual Giving by writing to alumni in the business community to consider whether their gifts were "being used to undermine, subvert, and otherwise discredit the very businesses which are helping fund private education.""

Those aren't just hilzoy's take on the matter, those are quotations from the Daily Princetonian.

hilzoy also points to Steven Dujack, of the Princetonian, who says, "So in 2005, we know that in 1985, Alito belonged to a group that was dedicated to pointlessly interfering with the functioning of a university because its student body had representative numbers of women and minorities, as required by law. A group which, for its entire existence, used as its only tactics dissembling and dirty tricks; the list above doesn't begin to do justice in describing the organization's destructiveness. A lot of people were hurt in the process. A great university was damaged."

hilzoy (a Princeton alum, from the time in which CAP was active) points out the things which are lost to those of us looking back and seeing CAP as a strange bit of folderol, people making a stink about things which didn't really matter, To understand CAP, you really have to understand that until the late 60s, the almost total absence of black students at Princeton was a feature, not a bug. It was one of the reasons people went there.

Consider, against this backdrop, the following quote:

"Prospect" was founded in October 1972 by the then-newly-formed CAP, which was co-chaired by Asa Bushnell '21 and Shelby Cullom Davis '30. The latter, who was the University's largest donor at the time, was a strong traditionalist, firmly opposed to the many of the new directions Princeton was taking, including coeducation.

He wrote in "Prospect": "May I recall, and with some nostalgia, my father's 50th reunion, a body of men, relatively homogenous in interests and backgrounds, who had known and liked each other over the years during which they had contributed much in spirit and substance to the greatness of Princeton," according to an account in "The Chosen," a book by Jerome Karabel on the history of admissions at Harvard, Yale and Princeton.

"I cannot envisage a similar happening in the future," Davis added, "with an undergraduate student population of approximately 40% women and minorities, such as the Administration has proposed."

And:

"An alumnus wrote in 1974 in CAP’s magazine that “We had trusted the admissions office to select young men who could and would become part of the great Princeton tradition. In my day, [Dean of Student Affairs] Andy Brown would have been called to task for his open love affair with minorities.”

For a sense of Prospect's general level of discourse:

"People nowadays just don't seem to know their place," fretted a 1983 Prospect essay titled "In Defense of Elitism." "Everywhere one turns blacks and hispanics are demanding jobs simply because they're black and hispanic, the physically handicapped are trying to gain equal representation in professional sports, and homosexuals are demanding that government vouchsafe them the right to bear children."

And this:

"CAP supported a quota system to ensure that the vast majority of students would continue to be men. Asa Bushnell, then chairman of CAP, told the New York Times in 1974 that “Many Princeton graduates are unhappy over the fact that the administration has seen fit to abrogate the virtual guarantee that 800 [out of roughly 1,100] would continue to be the number of males in each freshman class.”

And for those conservatives who oppose affirmative action on the grounds that we should pay no attention to gender or ethnicity:

"Another article published that same year bemoaned the fact that "the makeup of the Princeton student body has changed drastically for the worse" in recent years--Princeton had begun admitting women in 1969--and wondered aloud what might happen if the university adopted a "sex-blind" policy "removing limits on the number of women." In an unsuccessful effort to forestall this frightening development, the executive committee of CAP published a statement in December 1973 that affirmed unequivocally, "Concerned Alumni of Princeton opposes adoption of a sex-blind admission policy."

Some will say this doesn't really matter, because it was on the job application where Alito claims he was just playing to the refs, doing what anyone would do to get a job (this is what those of us interested in calling things by name would call either misrepresenting oneself, or lying... neither of which; as they are self-confessed, leads me to place much faith in the answers he gives today. Past behavior often being indicitive of present and future behavior. If he'd lie to get a little job, why won't he lie to get a bigger job, one which others have said he really wants, to the point that he was described as being very unhappy when Harriet Meirs was named).

But it does, because the membership in CAP is consistent with his other statements, and his written opinions. Alito has a track record of saying, and supporting the views that women, and minorities (and that would seem to extend to religious, not just ethnic and racial) don't have the same rights as white men, nor even the same standig before the courts.

Which is against the principles of the country, and the motto above the Court, "Equal Justice Under Law".

Which seems to be becoming a semi-normal state of affairs.

Rep Murtha (D-Penn) spoke out recently (not less so than the day before yester) saying we needed to pull out of Iraq now. His reasoning; this pooch is so screwed the question isn't if, but when. He thinks there is nothing going to get better from our being there, and that makes the expenditure of more blood and treasure pointless.

It doesn't matter what you think of the arguments, he's got not only the right, but the duty, to speak to the issue. He's a member of congress, as a Representative he swore to look to the needs of the country, with a focus on the specific interests which affect his district. If he has decided the war (for which he voted, and he makes no bones about his vote; he says that based on what he was told, and knew, he'd vote that way again; is no longer in the interests of the nation, he must speak out, his exact comment was, "The war in Iraq is not going as advertised. It is a flawed policy wrapped in illusion. The American public is way ahead of us. The United States and coalition troops have done all they can in Iraq, but it is time for a change in direction. Our military is suffering. The future of our country is at risk. We cannot continue on the present course. It is evident that continued military action is not in the best interests of the United States of America, the Iraqi people or the Persian Gulf Region.

"General Casey said in a September 2005 hearing, "the perception of occupation in Iraq is a major driving force behind the insurgency." General Abizaid said on the same date, "Reducing the size and visibility of the coalition forces in Iraq is part of our counterinsurgency strategy."

"For 2 ½ years, I have been concerned about the U.S. policy and the plan in Iraq. I have addressed my concerns with the Administration and the Pentagon and have spoken out in public about my concerns. The main reason for going to war has been discredited. A few days before the start of the war I was in Kuwait - the military drew a red line around Baghdad and said when U.S. forces cross that line they will be attacked by the Iraqis with Weapons of Mass Destruction - but the US forces said they were prepared. They had well trained forces with the appropriate protective gear.

"We spend more money on Intelligence that all the countries in the world together, and more on Intelligence than most countries GDP. But the intelligence concerning Iraq was wrong. It is not a world intelligence failure. It is a U.S. intelligence failure and the way that intelligence was misused."

Murtha, to give a bit of background, is no shrinking violet. He's a vet. He did two stints in the Corps; 1952-1955, and 1966-1967. He finished out Marine Corps Reserve career in 1990, doing more Reserve time in between '55 and '66. He's got two Purple Hearts, visits Bethesda and Walter Reed, regularly, and once told the commandant at one of them to award a Purple Heart which had been denied to a kid who'd been blinded and lost both hands; because it was friendly fire, saying that if they didn't he'd give the poor bastard one of his.

He's regularly supported the military; and he has the ear of the Corps, as well as contacts in DoD.

He takes no guff. When someone mentioned Cheney he shot back, "I like guys who've never been there that criticize us who've been there. I like that. I like guys who got five deferments and never been there and send people to war, and then don't like to hear suggestions about what needs to be done."

The response from the Republicans has been severe.

Today, on the floor of the House Jean Schmidt (R-Ohio)(the woman who barely won the Second District, running against Paul Hackett; Marine)said this, "Yesterday I stood at Arlington National Cemetery attending the funeral of a young marine in my district. He believed in what we were doing is the right thing and had the courage to lay his life on the line to do it. A few minutes ago I received a call from Colonel Danny Bop, Ohio Representative from the 88th district in the House of Representatives. He asked me to send Congress a message: Stay the course. He also asked me to send Congressman Murtha a message, that cowards cut and run, Marines never do. Danny and the rest of America and the world want the assurance from this body – that we will see this through."

After the House lost all semblance of order she asked that it be stricken from the record.

Npw, according to Rollcall (which requires a subscription, so I'll quote it)"Republican lawmakers say that ties between Rep. John Murtha (D-Pa.) and his brother’s lobbying firm, KSA Consulting, may warrant investigation by the House ethics committee.

The calls come as Murtha, a former Marine and pro-military Democrat, has made headlines this week by coming out in support of a rapid withdrawal of U.S. troops from Iraq.

According to a June 13 article in The Los Angeles Times, the fiscal 2005 defense appropriations bill included more than $20 million in funding for at least 10 companies for whom KSA lobbied. Carmen Scialabba, a longtime Murtha aide, works at KSA as well.

KSA directly lobbied Murtha’s office on behalf of seven companies, and a Murtha aide told a defense contractor that it should retain KSA to represent it, according to the LA Times.

In early 2004, Murtha reportedly leaned on U.S. Navy officials to sign a contract to transfer the Hunters Point Shipyard to the city of San Francisco, according to the San Francisco Chronicle. A company called Lennar Inc. had right to the land, and Laurence Pelosi, nephew to House Minority Leader Nancy Pelosi (D-Calif.), was an executive with the firm at that time.

Murtha also inserted earmarks in defense bills that steered millions of dollars in federal research funds toward companies owned by children of fellow Pennsylvania Rep. Paul Kanjorski (D).

Murtha and KSA have denied engaging in any improper or unethical behavior. Murtha’s offices in Pennsylvania and Washington, D.C., could not be reached for comment at press time.

But with GOP leaders infuriated by Murtha’s declaration this week that the United States should pull all its military forces out of Iraq in six months, renewed attention is being focused on Murtha’s dealings with KSA.

“I have read the articles about these appropriations projects that benefited his brother’s lobbying firm,” said Rep. Joe Wilson (R-S.C.). “If there is a potential pattern where Congressman Murtha has helped other Democrats secure appropriations that also benefited relatives of those Members, I believe this would be something that merits further review by the ethics committee.”

Now, I won't say this isn't unpalatable, because if it's as presented, it sure looks bad, but then again this is the same House which passed a rule saying that the Majority Leader wouldn't have to step down if he was indicted. The same House that thinks paying half a million dollars to one's wife for a stint as campaign manager (and some tens of thousands of dollars to his daughter as a consultant of some sort, IIRC) is just ducks. At least the firms and people to whom Murtha is accused of tossing the red-meat of contracts had to provide something of benefit to the people, in the form of jobs and goods.

On the other hand, the last three grafs go like this, "Jennifer Crider, a Pelosi aide, dismissed the allegation that the Minority Leader was involved in anything improper as “absolutely ludicrous, and an attempt to divert from the real issue that Mr. Murtha is attempting to engage in debate on a critically important topic — U.S. policy in Iraq. The real story here is the Republican strategy to try to discredit at Congressman Murtha” while he is pushing for a U.S. pullout from Iraq.

Republicans acknowledge that Murtha’s Iraq statement — coming from a Member with strong military credentials — is driving their renewed focus on the ethics questions surrounding the veteran Democratic lawmaker.

“It strikes at the heart of his credibility on [military] issues,” said the GOP lawmaker. “He’s put himself on the frontline.”

What we see is more of an organized use of the levers of power to attack, intimidate, and (if successful) destroy people; people who are merely doing their jobs.

Durbin was forced to recant, when he'd done nothing wrong. So was Newsweek. Saxby Chambliss said his opponent was a coward, who hated America, never mind that he was a Vet, who'd lost his legs in Viet-nam. Hackett was called a coward, because after all, he only led a Civil Affairs detatchment (a small group who go out, by themselves, no infantry support, no armor, no helicopter gunships on call) and mingle with the people, trying to convince them we are the good guys. Civil affairs goes and sees what's wrong, and then rolls up there sleeves to fix it. A pothole? They come back with some engineers and fill it.

He did that for a year. But he's not a "grunt" so how can he claim to be a combat vet.

It's reprehensible. It's petty. It's destructive of the political system. The ideas stop counting. Duty is maligned, and those who attempt to practice it are to be brought low, while those who shirk it are raised up.

It has to stop.

It matters.

It probably matters more than any other right we have.

It goes back to the very beginnings of the ideas the grand experiment the U.S. of A sprang from.

No freeman shall be taken or imprisoned or disseised or exiled or in anyway destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers

To no one will we sell, to no one will we refuse or delay, right or justice.

Those passages are from the Magna Carta, all the way back in 1215 (emphasis added).

Senator Graham says we have to deny the right of these prisoners, to demand justification for their being held, because they are, "clogging" the courts with their pleas for justice. How many... a few hundred. If the courts are so busy that a couple of hundred petitions bring them to a ginding halt, then we're so fucked it isn't funny.

Where, one wonders will this theft of rights end? Who will next be on the list of those who can be locked up without release, or charge, or reason? When will the gov't decide there are citizens who aren't to be allowed to walk the streets, not for what they have done, but for what they have been accused?

Am I waxing hyperbolic? A tad, but not so much as I wish it were the case.

This is primal. It is worse than torture. It's about freedom, liberty and the rule of law.

"The power of the Executive to cast a man into prison without formulating any charge known to the law, and particularly to deny him the judgement of his peers, is in the highest degree odious and is the foundation of all totalitarian government whether Nazi or Communist."

Winston Churchill

"He that would make his own liberty secure, must guard even his enemy from opposition; for if he violates this duty he establishes a precedent that will reach himself."

Thomas Paine

It's true. If you doubt this, then look to Padilla. He was held for months before we were told about it. From a comment I heard on the news, it was only to "wag the dog" that we were told. His lawyers weren't allowed to speak with him. Ponder that. He was held, for months, without charges. Kept in a navy brig, in solitary, and not allowed to speak to his lawyers.

He's a citizen.

We didn't treat Göering, and the rest of the Nazi powerful who didn't kill themselves before capture this way. We had the courage of our faith in being right. We tried them in the light, making certain the world could see how fairly they were treated. Some, were hanged (Göering cheated the noose, with suicide by poison) some were imprisioned. Some were, to the shock of many, acquitted.

Stalin wondered at the idea. His plan was to shoot them all. Cheaper than a trial, and not the least risk of them being acquitted.

The law won.

Some say we can't afford to let these people go, because they might want to attack us. So what? Which essential liberties are we going to forsake next in our search for some mythic security? The Nazis did far more harm than bin Laden and his ilk will ever manage; are we to say then that such minor injuries (in comparison to the hundreds of millions who died because of the Nazis) as the few thousands we might lose to some attack in the future is worth our principles?

I sure as hell hope not.

Worse (from that spurious line of defense) such things make us less safe.

To go to a war story, we arrested a guy in April of 2003, in the plain sight of his family. They watched him go to a checkpoint to ask a question. They then saw him, and his companions hauled away.

When they went to the Army (or perhaps the CPA) to find out why, they were told we hadn't done it. They were given a list of maybes (maybe it was Ba'athists, maybe it was some Sunni with a grudge, perhaps it was some rival Shi'a group [the guy was a big name in the south of Baghdad) but it most certainly wasn't the U.S. Army.

Only it was.

We talked to him (he was very polite, and seemed to understand that shit happens and it wasn't personal) and we took him home.

Now, let's say we hadn't. Let's say his family never saw him again (we'll ignore his congregation/adherents). Think they might have nursed a grudge? I do. Heck, I'm certain of it. As certain as I am that Abu Ghraib made more insurgents and terrorists (worldwide) than it saved lives. I will wager the high-handed treatment of prisoners will, over time, kill more Americans, here; in the States, as well as in Iraq and Afghanistan, than any lives saved by the information those prisoners might reveal.

And that's only the pragmatic part.

Wherewith shall I come before the LORD, and bow myself before the high God? shall I come before him with burnt offerings, with calves of a year old?

Will the LORD be pleased with thousands of rams, or with ten thousands of rivers of oil? shall I give my firstborn for my transgression, the fruit of my body for the sin of my soul?

He hath shewed thee, O man, what is good; and what doth the LORD require of thee, but to do justly, and to love mercy, and to walk humbly with thy God?

Micah 6:6-8

Do justice, love mercy; is that too much to ask?

We have innocents in GitMo. We admit it.

Adel is innocent. I don't mean he claims to be. I mean the military says so. It held a secret tribunal and ruled that he is not al Qaeda, not Taliban, not a terrorist. The whole thing was a mistake: The Pentagon paid $5,000 to a bounty hunter, and it got taken.

The military people reached this conclusion, and they wrote it down on a memo, and then they classified the memo and Adel went from the hearing room back to his prison cell. He is a prisoner today, eight months later.

Detainees Deserve Court Trials Washington Post

Adel has been in prison for four years. Not only is he innocent, we rewarded the men who condemned him. This sort of thing used to exist in Russia, in the France of the Terror, it was called denouncing. I suppose we are better than Revolutionary France, we; after all, aren't sending the denounced to Madame Guillotine, but rather keeping them in cells, depriving them of human contact, isolating them from family, religion and the world.

Even after we acquit them.

Justice delayed is worse than justice denied, because to delay it is to keep something which ought to be done from being done; when you know it should be done: "Well, yeah, we could make it so the Pinto won't blow up when it gets rear ended, but that would cost money, and we'll probably pay out less in lawsuits than it would cost to prevent the problem."

This must be fought.

If not now, when?
If not me, who?

Judge Alito said his legal opinion was that the Constitution doesn't support the holding of the Supreme Court in Roe v Wade. Since we are contemplating his appointment to a job where he will be using his legal opinions to make decisions, I think it matters still.

He said this when he was hoping to be hired by the Reagan administration. Senator Feinstein (with whom I've already shared a piece of my mind. I am not happy with her, haven't been for years, the only real problem is the alternatives I've been offered) said today, in response to him saying, in essence, "I didn't really mean it, I was just trying to get the job,"

Sen. Dianne Feinstein, D-Calif., an abortion rights supporter and the only woman on the Senate Judiciary Committee, said she asked the conservative judge about a document released Monday showing Alito in 1985 telling the Reagan administration he was particularly proud to help argue that "the Constitution does not protect a right to an abortion."

"He said first of all it was different then," she said. "He said, 'I was an advocate seeking a job, it was a political job and that was 1985. I'm now a judge, I've been on the circuit court for 15 years and it's very different. I'm not an advocate, I don't give heed to my personal views, what I do is interpret the law.'"

When asked whether she found his answer satisfactory, Feinstein said: "The question is, Did I believe he was being absolutely truthful, and I did."

The question I have is whether she believes he was being truthful when he said he would lie to get the job, because it is, at its best interpretation, disingenous to think the personal and the political never intersect with the legal opinions of those on the bench.

We know that he has, in the past, decided his testimony to the Senate about how he would behave on the bench could be rendered, "inoperative," to use the words of another menadacious public servant, in light of his not recusal in cases where he'd promised to do so.

He, and his supporters are also playing the public for fools (not exactly a bad bet), byh saying, "He relied on precedent [not clear, given his record of reversal] in the past, so (now that he has the right to set precedent, and no one abovce him to overturn; barring the odd Graham type amendment to defense bill, in response to Supreme Court decisions), he will retain that level of restraint in the future.

Bullshit.

His record is one of putting the corporation over the individual, the police over the magistrate, the gov't ahead of the citizen.

The Ninth Amendment says the list of rights in the Constitution, and the eight preceding amendments, are not restrictive; that the people retain all sorts of rights, not enumerated. Alito, and his ilk, take the other tack, that only those rights (and not broadly) mentioned exist. Where there is a conflict between the privelege of the state and the liberty of the people, the people lose.

To be honest, I'd rather see nine Thomases on the court, than one Alito.

Here in Grover Beach the only things on the ballot were the statewide measures of the special election.

I voted against all but two.

They all lost.

Which isn't, if you ask me, the real story.

This was a power play by Arnie.

Last year he wanted the legislature to do some things. They didn't want to. He threatened to take them to referenda. The legislature caved and he got most of what he wanted. He also got bragging rights, and an image as someone who could cut through "politics as usual."

The he pissed off the nurses and the teachers. That gave the legislature the cover they needed to tell him to piss off this time around.

So he sought the special election, despite the voters saying they didn't want to spend the $80 million it cost.

A friend of mine describes himself as "slightly to the right of Genghis Khan." He exaggerates, but he's a lot more to the right than I am. He thinks the media is liberal, the democrats are overtaxing thieves and voted for Bush (I think; he hasn't said, and I've not asked) because he didn't trust Kerry.

He told me to vote no on everything.

Not just the union initiative, not just the anti-teacher intiative (those were both no-brainers for him to be against, his wife is a teacher, and he came of age in the 60s, when unions had clout. He knows they do more good than harm).

But against the redistricting intiative (which I am sort of for, because I think the present system of districting is part of the horrid mess we are in, but that's another post), the budget initiatve and the anti-abortion intiative

He's pro-life, sorta-mostly. He thinks Roe is decent law, but would like to see them harder to get (to be fair, he wants them harder across the board. I don't think he see it as some issue of moral judgement on those who get them, but rather a thing which ought be sought only as last resort, but I digress).

Why? Because Arnold has pissed him off. He was for the recall. He voted against Gray Davis, and probably voted for Arnold (and as he wasn't going to vote for Bustamante, I can't really fault him, Arnold was the second best choice in the field, if Davis was ousted).

But Arnold hasn't lived up to his campaign.

And this became (not that Arnold will admit it) a referendum on Arnold.

And he got skunked. Not only did all of his measures get whomped (and I'd have liked to see the two I voted for pass, just because it would be spit in his eye, as well as thinking they make decent law) but (and this is the kicker) voter turnout was almost as high as in a presidential election year.

Ponder that. According to this mornings news 42 percent of registered voters went to the polls. My first chance to vote was in an off-year election. Turn out (in a year that had a mayoral race, for LA, as I recall) was something like 28 percent.

This one got 42 percent. The verdict is in, and it's that Arnold is almost certainly unelectable next year.

I said yesterday that I was worried by the odd views of what constitutes the Constitution, and the limits of property (in both the modern sense of the word, "things," and the more archaic sense, "person"), and how much leeway the state ought to have in the excercise of encroaching on such liberties.

One of the more troubling aspects of Scalia (and as Alito is protrayed as a Scalia's Scalia, it seems apropos) is that his views on stare decisis, which is the idea that precedent is a controlling factor, unless something has gravely changed (which is part of why Plessy v Ferguson stood for as long as it did) are that it isn't all that binding.

Scalia avers that all decisions stem from the Constitution itself, and so caselaw isn't as important as the parent document, with which I, tend, to agree. Where it becomes a problem is that no one can truly say what some aspects of the document, mean, because the nature of a proscriptive text is that it's vague.

The fifth commandment reads, "Thou shalt not kill". Ok, seems pretty straightforward, but what does "kill" mean? In the original Hebrew the word rendered as, "kill" in the King James was what we now translate as murder. Which only narrows the field a little, since what is defined as murder is variable.

The Constitution is much the same. Such thing as "cruel and unusual" or "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated," are not as plain as say, E=MC^2.

Scalia claims to know the intent of the framers. Conveniently for him it seems the agreed with his prejudices on things (he might say it's convenient for us that he is such a throwback he knows what the meant, despite the passage of time, and despite the bending of previous minds to the problems, where they saw, "as through a glass, darkly" he has the clarity of purest glass with a good source of light, but I digress, and through a phrase snarkly).

What then of Alito? How does he look to established law (in the form of precedent)? From the evidence, not so well. He's been reversed a lot.

More interestingly is the things he's reversed. Eric Muller (Is That Legal) has a piece up on this. What happened is that Alito reversed an opinion of the court he was on (which he'd not been on at the time, or at least wasn't part of the trio re-hearing the case). The case was a first ammendment question (separation of church and state, as related to a nativity, to which was added some non-christian trimmings. The Third Circuit ruled (unanimously, a Reagan, Clinton and Bush Pere, appointee each on the panel) that the non-christian bits didn't change the essential nature of the religiousity of the crêche. When it came back, Alito said it was kosher.

The whole thing is worth reading Here

Some of the juicy bits:
Jersey City again appealed. This second time, the case came before a mostly different panel: Judge Nygaard (Reagan appointee) was on it again, but now he was joined by Judges Rendell (Clinton appointee) and Alito (GHW Bush appointee).

Over a strong dissent by Judge Nygaard, Judge Alito upheld the display. Although the earlier panel had been quite clear in saying that Frosty and the sleigh and the Kwanzaa ribbons did not defeat the display's message of religious endorsement, Judge Alito characterized that as "dictum" in the earlier opinion (that is, legally non-binding commentary, rather than legally binding precedent), and concluded that the supposedly secular doo-dads in the display actually did make the display satisfy the First Amendment.

Judge Nygaard was, to use a piece of appellate technical jargon, "pissed." "This constitutional about-face in the same case," he said, "troubles me greatly, strikes to the core of the legitimacy of our jurisprudence, and exposes us to well-earned criticism for inconsistency and for giving insufficient respect to an earlier instruction by the Court." Judge Nygaard was of the view that only the Third Circuit en banc (that is, all of its members together, as opposed to just a panel of three) could set aside an earlier panel's opinion like this.

As a technical matter, Judge Alito may have been right that the first panel phrased its analysis in a way that turned its sharp condemnation of the Jersey City display into dictum. The condemnation was, however, so clear (and unanimous) that surely Judge Alito could have chosen to honor it, or pressed for en banc consideration of the case, rather than just pushing it aside and replacing it with his own vision of the right outcome under the Establishment Clause.

If Senators are interested in understanding how Sam Alito thinks about how much deference a court's earlier pronouncements deserve, they should question him closely about what it was that led him to choose to abandon the clearly expressed, unanimous view of an earlier panel in the same case, rather than honoring it or seeking the ruling of the entire Third Circuit sitting en banc.

That's where the meat of the matter is.

It isn't about choice. Not only do we lose on that one (because the Right is loud, and the base wants Roe overturned. The Republican Party doesn't really want it overturned, because 1: the majority of the populace likes things the way they are, so it's not actually a good move for those who want to be re-elected, and 2: because Roe is how they keep large parts of that base energised. I'd wager, in my cynical moments, the present push to portray Christians as persecuted {with things like Nativities being forbidden if done with public funds; or apparent sanction, being part of that bit of the propoganda mill of the class and culture war the Right is waging} being how they are getting around being in charge of all three branches, and not getting what the base wants done (gutting choice) done), but choice is only a part of the picture, and the picture is about liberties.

It's about my being allowed to swing my fist, so long as I don't hit your nose. It's about 218 years of tradition and caselaw. Some of it dreadful (Plessy) some of it painful (Dred Scott), but all of it the attempt to make a compact which was meant to confer, and preserve, the greatest liberties to the greatest number; and make it not just an ideal, but a viable way of life.

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Entries tagged with politics

Rights, choices and exceptions

TANSTAAFL

Torture is a Moral Issue

Stopped Clocks

What's wrong with California?

Power grab

Humor, and food

Excuse me?

Heaven help us (edited)

Some more on the NSA

Forget the surface

McCain, Bush, torture and the law

On Patriotism

Another torture link

More on Alito

I'm pissed

Habeas Corpus

Alito, and trust

The California Election

More on the ideas of Alito