Senate bill targets habeas corpus

Excellent news out of the Senate today.

A bill that would allow terrorism suspects access to federal courts to challenge their imprisonment at Guantanamo Bay, Cuba, was approved by the Senate Judiciary Committee on Thursday.

The committee, on an 11-8 vote, advanced a bill that would allow prisoners to protest their detentions through a writ of habeas corpus, considered by many to be the cornerstone of the U.S. judicial system.

Nice as this is, it's sad that in 2007 I find myself writing about a decision to restore a fundamental principle of American jurisprudence.

Ten years ago, if you had asked me whether the United States government would ever imprison people -- citizen or not -- indefinitely without charge and with no right to challenge their detention, I would have laughed out loud. That went against so many laws, Constitutional principles, simple fairness and basic American values that it would have seemed inconceivable.

Today I marvel at the naive hubris of my younger self -- and the unprincipled cowardice that led our elected representatives to so readily abandon such a basic precept of justice.

I look forward to the debate on this. Democrats will try to attach it to the defense spending bill, which if they succeed should make the measure veto proof: Bush is unlikely to veto the defense authorization simply to derail the habeas corpus provision. The biggest question is whether Senate Republicans have the desire and the unity to tie it up.

Let me point out two passages from the link, one illustrative and one simply amusing.

Administration officials and most Republicans say they do not think dangerous terror suspects should have access to U.S. federal courts or other rights guaranteed to Americans under the Constitution.

The fatal flaw in this reasoning is, of course, that the defendants in question are suspects, not proven bad guys. The whole point of habeas corpus is to make sure we separate the guilty from the wrongly held. Bush and "most Republicans" apparently feel they can skip that step. We can't. Any argument predicated on "they're terrorists!" fails, because that case has not been proven.

Second, there was this:

"The great history of our nation is built on having judicial review, on having openness, and we should not out of fear or indifference or whatever turn our back on that great history," the committee's Democratic chairman, Patrick Leahy, said.

"Or whatever"? Way to kill what started out as a pretty good flight of soaring rhetoric, Patrick. Something tells me that 50 years from now, law students won't be quoting that particular utterance.

The bill is expected to hit the Senate floor later this month.

habeas corpus, terrorism, civil liberties, politics, midtopia

Judge tosses detainee case

A military judge threw out charges against a Guantanamo detainee today, on a major technicality that could potentially delay or derail dozens of cases.

Canadian detainee Omar Khadr, who was 15 when he was captured after a deadly firefight in Afghanistan and who is now 20, will remain at the remote U.S. military base along with some 380 other men suspected of links to al-Qaida and the Taliban.

The judge, Army Col. Peter Brownback, said he had no choice but to throw out the Khadr case because he had been classified as an "enemy combatant" by a military panel years earlier — and not as an "alien unlawful enemy combatant."

This may seem like a minor technicality, but it's not. "Alien" means U.S. citizens cannot be subjected to the commissions. And "unlawful" means neither can someone who merely took up arms against the United States. Unlike "enemy combatant", which just means somebody who shoots at American soldiers.

So now the United States will have to re-examine all the existing detainee cases and certify that the defendants are unlawful enemy combatants. That could take months.

And here's an irony for you: The military says it will appeal the ruling. Trouble is, the court that is supposed to hear such appeals -- something called the "Court of Military Commissions Review" -- doesn't exist. Constituting it could also take months.

The drawbacks of trying to build a court system from scratch aside, this case has even more interesting things going for it. In fact, I meant to write about this several days ago but never found the time.

Thus far, only three detainees have been charged under the commission system: Accused bin Laden driver and bodyguard Salim Ahmed Hamdan; Australian David Hicks; and Omar Khadr.

These three are the ones we, in our infinite wisdom, decided to put on trial first. The two most notable things they have in common are being fairly small potatoes and not really fitting the popular description of "terrorist". All three, in fact, were captured on the battlefield in Afghanistan, all but Hamdan nothing more than footsoldiers for Al-Qaeda's conventional forces and Hamdan seeming to be little more than that.

But Khadr is unique in one respect: he was 15 when he was captured.

Someone please tell me why, in our infinite wisdom, we decided that the third person charged should be a child soldier? Can anyone think of anything more politically explosive than that? International law (despite a definitional gray area as to what constitutes a child) generally considers child soldiers to be victims, not criminals; it focuses its opprobation on the commanders who recruit, train and lead children, not the children themselves.

The kids themselves are handled more carefully by the international community, through programs designed to ease them out of killing and back into "normal" life. They aren't thrown in prison to rot or tried for crimes. Kids that young simply aren't considered fully responsible for their actions.

I'm not a fan of the tribunal system, but I cannot even begin to plumb the stupidity of throwing such red meat to the tribunal's critics. "Hi! We're the United States! Not only do we detain people for years without charge; when we finally do charge them, we do it in a military court with limited rights for the accused, and we put kids on trial!"

Lordy, we're dumb.

civil liberties, terrorism, Omar Khadr, Gitmo, politics, midtopia

Lina Joy may leave Malaysia

Lina Joy, the Malaysian Muslim who is being prevented from officially becoming Christian, is talking about leaving the country -- something of the standard solution for high-profile cases of religious persecution.

"I am disappointed that the Federal Court is not able to vindicate a simple but important fundamental right that exists in all persons: Namely, the right to believe in the religion of one's choice," Joy said in a statement released through her lawyer, Benjamin Dawson.

"The Federal Court has not only denied me that right but (denied it) to all Malaysians who value fundamental freedoms," she said....

[She has] the option to leave the country. Asked if she will take that option, Joy, 43, said in her statement: "It would be extremely difficult to exercise freedom of conscience in the present environment." Dawson, her lawyer, said the media are free to draw their conclusion from the statement.

So it's more a suggestion than an actual plan. But it's hardly surprising. Countries that deny freedom of conscience deserve to lose people, who will vote with their feet rather than live under injustice.

Malaysia, religion, Lina Joy, politics, midtopia

Religious intolerance, here and abroad

Two examples of religious bigotry today, which helps illustrate the difference between individual and government discrimination.

First, in New Hampshire, an idiot confronted Mitt Romney.

Mitt Romney's visit to New Hampshire started on a sour note Tuesday when a restaurant patron declared he would not vote for the Republican presidential contender because of his faith.

"I'm one person who will not vote for a Mormon," Al Michaud of Dover shouted at Romney when the former Massachusetts governor approached him inside Harvey's Bakery.

The kicker? This wasn't someone from the religious right; it was a self-described "liberal" who said he plans to vote for Hillary Clinton.

There are plenty of questions about Mr. Michaud. If he disagreed with Romney's politics, why make a point of criticizing his faith? Why shout it out in a small, crowded room? It's enough to make one wonder if his goal was actually to embarass Romney. And then there's the classic question of whether he's really a liberal -- and if he actually understands what that word means.

Regardless, I hope we can agree that his moment of fame was classless, rude, illiberal and violative of American values, even if it is in accord with much of American political history. And be glad that in this country a member of a minority faith is only subjected to such individual actions and not (generally) government persecution.

Now let's go to the other side of the globe, where that sadly is not the case.

Malaysia's best known Christian convert, Lina Joy, lost a six-year battle on Wednesday to have the word "Islam" removed from her identity card, after the country's highest court rejected the change.

The ruling threatens to further polarize Malaysian society between non-Muslims who feel that their constitutional right to religious freedom is being eroded, and Muslims who believe that civil courts have no right to meddle in Islamic affairs.

On the one hand, this is a fairly minor matter: words on an ID card. She was not actually prevented from converting, and is not in danger of being killed for doing so. And the legal point is minor, too: whether the secular courts have jurisdiction over such matters. They decided not, that only the country's Sharia courts can allow the removal of the words from Joy's card.

Let's put aside, too, the problem of having parallel legal systems. Listen instead to the words of the judge:

"You can't at whim and fancy convert from one religion to another," Federal Court Chief Justice Ahmad Fairuz Sheikh Abdul Halim said in delivering judgment in the case.

Or consider the reaction of the crowd outside:

About 200 mostly young Muslims welcomed the ruling outside the domed courthouse with shouts of "Allah-o-Akbar" (God is great).

And what fate awaits Joy in the sharia courts, if she goes that route?

In practice, sharia courts do not allow Muslims to formally renounce Islam, preferring to send apostates to counseling and, ultimately, fining or jailing them if they do not desist.

They often end up in legal limbo, unable to register their new religious affiliations or legally marry non-Muslims. Many keep silent about their choice or emigrate.

Fines and jailing, never mind the related legal prohibitions against marrying nonMuslims.

It always astonishes me that believers can justify coerced membership in religion, any religion, failing to understand that doing so not only grossly violates individual rights, but it undermines that religion's legitimacy. It's pure power politics, nothing more.

The world should continue to support Joy and express outrage not just at her treatment, but a legal system that allows such religious-based discrimination and disallows freedom of conscience. This is what true persecution looks like, and Malaysia should be pressured to change its laws to respect individual belief.

And for those of you inclined to ask "where are the moderate Muslims?", consider this very balanced article from Al-Jazeera. Or Sisters in Islam, a Malaysian Muslim women's group that is one of several that has sided with Joy in this case.

Malaysia, Lina Joy, Romney, religion, politics, midtopia

More obsessive administration secrecy

First we had the White House declaring that its visitor logs were classified. Now, in yet another example of the "none of your damn business" school of government, it turns out the vice president has done the same.

A lawyer for Vice President Dick Cheney told the Secret Service in September to eliminate data on who visited Cheney at his official residence, a newly disclosed letter states. The Sept. 13, 2006, letter from Cheney's lawyer says logs for Cheney's residence on the grounds of the Naval Observatory are subject to the Presidential Records Act.

Such a designation prevents the public from learning who visited the vice president.

Note that there is no high-minded principle involved here. The White House classified its logs to keep people from finding out how many times Jack Abramoff had visited. Cheney classified his logs to keep people from finding out how often he was visiting with leaders of the religious right.

The records are preserved and go into the presidential records of the Bush administration. But other Bush orders (facilitated by none other than Alberto Gonzales) give administrations the right to keep documents out of public view forever.

It's time for Congress to address such government records clearly and directly, spelling out that they are public documents that can only be withheld for certain narrow reasons -- and avoiding embarassment or the judgement of history are not among them.

secrecy, politics, midtopia

Koran wins in court

In a case that has some relevance to the resoundingly ignorant flap over whether Keith Ellison could swear on a Koran, a North Carolina judge has ruled that nonChristians can use their own holy book when called as witnesses in the courtroom.

The decision represents a victory for the American Civil Liberties Union of North Carolina, which sued the state after two Guilford County judges rejected an offer from an Islamic center to provide county courthouses with free copies.

"The highest aim of every legal contest is the search for truth," Wake Superior Court Judge Paul Ridgeway wrote in an 18-page opinion. "To require pious and faithful practitioners of religions other than Christianity to swear oaths in a form other than the form most meaningful to them would thwart the search for the truth.

"It would elevate form over substance."

The legality should have been beyond question; the judge's opinion simply notes the futility of swearing on a book you don't believe in.

Maybe now Prager et al will cease their hyperventilating about this and concede their point was flawed. But I'm not holding my breath.

religion, politics, midtopia

Busy day tomorrow

Wednesday should have a lot of fireworks, thanks to several big items all landing at the same time:

Looking for Ms. Goodling
An immunized Monica Goodling testifies before the Senate about the prosecutor firings. Source have indicated her testimony won't implicate Alberto Gonzales, but then that's what they said about Kyle Sampson -- and his testimony turned out to be another body blow for the embattled AG.

The problem is that, based on what we already know, Gonzales is either mendacious or incompetent. Goodling's testimony can only show one of three things: that Gonzales was more involved than he has admitted, which means he lied to Congress; that Gonzales was totally uninvolved, which indicts his management ability; and/or that the firings were indeed heavily political, which discredits both his judgement and his truthfulness.

War funding
The newest version of the war-funding bill could hit the floor of Congress, with the possibility that the most antiwar Democrats ultimately will vote against it now that the timetables have been stripped out. There still should be enough votes to pass it (with Republican support), but it raises all sorts of tantalizing possibilities.

One is merely theoretical: contemplate what would happen if the war funding didn't have enough Democratic votes to pass without timetables, and didn't have enough Republican votes to pass with them. What would happen?

The other is more concrete: in order to govern, will Pelosi and Reid find themselves increasingly making common cause with Republicans against the more extreme elements of their own party? And will that work, or simply lead to a fracture in the Democratic ranks?

And consider what a Democratic fracture might mean. With the Republicans themselves fractured (united only by the need to stay relevant by thwarting Democratic moves), Congress could find itself in an unstable situation, where each party's leadership is less relevant and instead ad hoc groups of legislators coalesce around individual issues.

That's not going to happen, of course, at least not to a large degree. Party connections are too ingrained, too convenient, too powerful. And the leadership controls the movement of legislation, so they'll never get too irrelevant (though there was a time when committee chairmen were highly independent and arguably more powerful than the Speaker and her deputies). Still, if two fractured parties mean more individual initiative by Congress members, that would be all to the good in my book.

Anyway, tomorrow should be a fascinating day.

Iraq, Goodling, politics, midtopia

Senate doubles over laughing at wiretap proposal

Well, okay, they didn't. But I wish they would.

At least they were skeptical.

Citing FBI abuses and the attorney general's troubles, senators peppered top Justice and intelligence officials Tuesday with skeptical questions about their proposal to revise the rules for spying on Americans.

Senate Intelligence Committee members said the Bush administration must provide more information about its earlier domestic spying before it can hope to gain additional powers for the future.

Man, I love divided government. Rubber stamps suck.

The debate revolved largely around NSA wiretapping authority. By way of confirming everyone's worst fear, the administration witnesses admitted that Bush would submit to warrants only as long as it was convenient:

"There is nothing in this bill that confines the president to work within" the surveillance act in the future, said Sen. Diane Feinstein, D-Calif. The same issue was raised by Sens. Ron Wyden, D-Ore., Russell Feingold, D-Wis., and Bill Nelson, D-Fla.

McConnell said the administration wants to work under the surveillance law now, but acknowledged "that does not mean the president would not use ... (constitutional powers) in a crisis."

I'd be interested to see how the administration defines the word "crisis." And why they think the court would be a problem in such a situation, given that in 2006 it rejected exactly one eavesdropping request -- while approving 2,176.

Congress should not let politics and suspicion get in the way of adapting legitimate surveillance methods to modern technology. But neither should they simply trust the administration, because it has proven itself manifestly unworthy of such trust. The administration bill should be a starting point, but Congress should decide for itself how to adapt to modern times -- and what restrictions to place on so doing.

Meanwhile, a court report gives a sense of the scope of non-NSA wiretapping. It's at record levels, but still pretty small: 1,839 taps were authorized in 2006. And that's entirely due to a big jump in state-authorized taps. Federal wiretaps actually have been falling since 2004, and there were fewer in 2006 than there were in 1996.

Two caveats:

1. A given wiretap can cover more than one person, and of course a wiretap subject typically talks to multiple people. The average number of people monitored under a wiretap order was 122. So a grand total of 225,000 or so Americans had police listening in on all or some of their conversations. That's a lot, but it's still just 0.07 percent of the population. NSA aside, 99.93 percent of us were not monitored.

2. The Justice Department says the drop in federal wiretaps is entirely due to several large, ongoing investigations that could not be reported in the 2006 figures. Had those taps been counted, Justice claims, there would have been no decrease in wiretaps.

Also of interest: Not a single wiretap request was denied -- and not one had anything to do with terrorism.

Fun party trivia: On average it costs $52,551 to install a wiretap.

civil liberties, terrorism, politics, midtopia

Iraq, Gitmo and terrorism

Two stories out today.

One, simply an updater on the ongoing human rights disaster known as Gitmo.

More than a fifth of the approximately 385 prisoners at Guantanamo Bay, Cuba, have been cleared for release but may have to wait months or years for their freedom because U.S. officials are finding it increasingly difficult to line up places to send them, according to Bush administration officials and defense lawyers.

Since February, the Pentagon has notified about 85 inmates or their attorneys that they are eligible to leave after being cleared by military review panels. But only a handful have gone home, including a Moroccan and an Afghan who were released Tuesday. Eighty-two remain at Guantanamo and face indefinite waits as U.S. officials struggle to figure out when and where to deport them, and under what conditions.

Jail innocents for five years, and then continue jailing them because nobody wants to take Gitmo detainees for various political reasons. And we won't grant them asylum to make up for the ongoing mistake that is robbing them of their lives. Wonderful.

The other bit of news was the annual State Department report on terrorism, which shows a 25 percent increase in attacks last year, with a 40 percent increase in deaths and 54 percent increase in injuries. That's right, more and deadlier attacks.

Some of the increase involves countries and events that have little or no bearing on us -- the various brutal conflicts in Africa, for instance. But the largest number of attacks and deaths by far occurred in Iraq and Afghanistan.

So let's see. After four years and hundreds of billions of dollars, our war on terror is succeeding in increasing terror attacks. We respond by ignoring human rights and basic justice in our zeal to capture and imprison real and imagined terrorists.

Anyone think there's a relationship? At a minimum, it seems safe to say our current strategy isn't working if reducing terrorism was the goal.

Update: Here's the full report.

Guantanamo, Gitmo, terrorism, politics, midtopia

Spitzer to introduce gay-marriage bill

I love Eliot Spitzer. He's got courage.

Gov. Eliot Spitzer will introduce a bill in the coming weeks to legalize same-sex marriage in New York, his spokeswoman said Friday, a move that would propel New York to the forefront of one of the most contentious issues in politics.

That's gay marriage, not civil unions. And it's not the most popular thing he could have done. It'll play well in New York City, but not so much upstate.

Prospects for passage are uncertain.

Legislation to allow same-sex marriage has never made it to a floor vote in either the Assembly, which has a Democratic majority, or the Republican-controlled State Senate. Sheldon Silver, the Assembly speaker, has declined to take a stand on the issue. Joseph L. Bruno, the Senate majority leader, has supported legislation to outlaw hate crimes and workplace discrimination against gays, but he remains opposed to same-sex marriage.

Even among lawmakers who say they favor the legislation, there is some division over the best strategy to get it passed. Two legislators from Manhattan, State Senator Thomas K. Duane and Assemblyman Richard N. Gottfried, both Democrats, have tried for several years to shepherd a gay-marriage bill through the Legislature and are trying again this year. That bill has at least 14 sponsors in the Senate and 42 in the Assembly.

So it's a start, but it might be a symbolic one.

I also like the other initiative mentioned in the story: pushing a constitutional amendment requiring nonpartisan legislative redistricting. I've written about the general idea here and here, but it's nice to see a state taking actual steps to get it done.

Spitzer, gay rights, redistricting, politics, midtopia

MAC puts hammer down on cabbies

One of the Muslim accomodation issues I wrote about last month has reached a resolution of sorts.

On an 11-0 vote Monday, Metropolitan Airports Commission (MAC) members voted to crack down on drivers refusing service, making Minnesota the first place in the country to decide how to treat Muslim cabbies who decline to transport alcohol- toting riders on religious grounds.

Starting May 11, any airport taxi drivers who refuse riders will face 30-day suspensions. Drivers will have their licenses revoked two years for a second offense.

This isn't a full resolution because some cabbies are considering suing on the grounds of religious discrimination.

One might ask what's the big deal, especially because the problem is rather small: Just 27 refusals of service out of 120,000 total rides during the holiday travel season. Why not just use the existing rules, in which a cabbie who refuses to accept a fare must go to the back of the taxi line and wait all over again?

The answer lies in another number: 75 percent, which is how many airport cabbies are Somali Muslims and thus likely to refuse an alcohol-carrying fare.

In some ways, this is the reverse of the Minneapolis Community and Technical College situation in the earlier blog entry. And the logic is the same: a minority can often reasonably be accomodated; but a majority must be watched lest it impose its views on the rest of us.

In the MCTC case, providing a footbath for Muslims is reasonable because it benefits everyone and Muslims are such a small minority of students that it cannot reasonably be argued that they are imposing their views or practices on nonMuslims.

In the taxi case, however, Muslims make up a strong majority of cabbies. Allowing them to discriminate against passengers carrying alcohol benefits only the cabbies and could make it very difficult for such passengers to get a ride, which makes it an unreasonable accomodation.

I suspect, however, we'll get to find out what a court thinks.

civil liberties, Minnesota, religion, politics, midtopia

Rethink those truisms

A couple of doses of cognitive dissonance for certain quarters of the political sphere:

1. Trickle-down theory doesn't work in the real world. The most relevant fact: the reason we need to tax the wealthy is because that's where the money is: since 1980, the inflation-adjusted median wage has actually fallen, while incomes for those in the top 0.1 percent earn four times what they did then. It's not class warfare to tax that discrepancy. And as the article argues, it will not result in top earners working less or taking fewer risk. The rest of the article points out a long list of areas where trickle-down theory disagrees with both classic economics and real-world experience.

2. Voter fraud probe comes up empty. You may recall that worries about voter fraud were the rationale for what otherwise might look like political investigations of Democrats. Now it turns out that those worries were, charitably, overblown. After five years of investigating, the Justice Department has precious little to show for it.

Although Republican activists have repeatedly said fraud is so widespread that it has corrupted the political process and, possibly, cost the party election victories, about 120 people have been charged and 86 convicted as of last year.

Most of those charged have been Democrats, voting records show. Many of those charged by the Justice Department appear to have mistakenly filled out registration forms or misunderstood eligibility rules, a review of court records and interviews with prosecutors and defense lawyers show.

That's not all. To keep the charade going a little longer, a federal panel edited a report on voter fraud, changing the conclusion from "little evidence" of fraud to "the pervasiveness of fraud is debatable."

And then there are the clear miscarriages of justice:

Mr. Ali, 68, who had owned a jewelry store in Tallahassee, got into trouble after a clerk at the motor vehicles office had him complete a registration form that he quickly filled out in line, unaware that it was reserved just for United States citizens.

Even though he never voted, he was deported after living legally in this country for more than 10 years because of his misdemeanor federal criminal conviction.

Fabulous.

Voter fraud is a crime. True fraud should be prosecuted vigorously. But it makes no sense to destroy people's lives for making mistakes, especially small ones. And it's just plain irresponsible for the White House and other Republicans to keep flogging the "widespread fraud" line when it's just not true -- and firing prosecutors for not being zealous enough in bringing nonexistent cases.

voter fraud, politics, midtopia

Padilla loses torture argument

The presiding judge has rejected Jose Padilla's motion to dismiss the criminal charges against him.

federal judge refused to dismiss terrorism charges against Jose Padilla over claims that the alleged al-Qaida operative was tortured in U.S. military custody, removing one of the last major obstacles to the start of his trial next week.

U.S. District Judge Marcia Cooke stressed in a 12-page order filed late Monday that she was not passing judgment on the torture allegations. Rather, she said the effort to dismiss the case for "outrageous government conduct" was faulty on legal grounds....

Cooke said the dismissal motion wasn't backed up by case law and failed on legal grounds because prosecutors aren't using any evidence collected during Padilla's time in the brig.

To rule otherwise would "effectively provide a defendant with amnesty for any uncharged crime so long as the government violated the defendant's due process rights at some prior point," she wrote.

She warned, however, that the issue could return should prosecutors decide to use evidence from Padilla's interrogations.

That makes sense. As I noted previously,
the government's treatment of Padilla has indeed been outrageous. But was it outrageous enough to derail a trial? The judge decided no.

With the last major hurdle out of the way, the trial can proceed. Next up: jury selection. And what a lengthy, tortuous process that will be.

Padilla, politics, midtopia

SC shoots down Gitmo appeal

Yesterday, the Supreme Court rejected an appeal from two groups of Gitmo detainees, who were asking the Court for a habeus corpus review of their detention.

Back when the Military Commissions Act was passed, the provision stripping habeus corpus rights from detainees was expected to pose a serious constitutional problem; many observers and quite a few Congressmembers expected the Supreme Court to declare that part of the law unconstitutional. This was supposed to be the case where they did so.

But the justices chose to reject the petitions on narrow procedural grounds, saying the plaintiffs had not yet exhausted all other options.

"Despite the obvious importance of the issues raised in these cases, we are persuaded that traditional rules governing our decision of constitutional questions ... and our practice of requiring the exhaustion of available remedies as a precondition to accepting jurisdiction over applications for the writ of habeas corpus ... make it appropriate to deny these petitions at this time."...

The court also said its decision to stay out of the fight for now does not mean it is rejecting the claims on their merits, just that the timing was not right for the court's involvement now.

Bleh. I understand exhausting options. But by dodging the question, the Court simply delays a resolution. Eventually the prisoners will exhaust other options, and then the case will be back before the Court. If they then shoot down that portion of the act, how would they justify the continued detention of these prisoners in the meantime? Not to mention the limbo the prisoners will be in as Congress and the administration seek to craft some sort of replacement language. If language brought before the Court is clearly unconstitutional, the Court should strike it down -- not leave it operating and causing harm until every other possible remedy is tried. The Roberts Court's impulse to decide cases as narrowly as possible is excellent in principle, but in practice it often seems to delay justice and sow confusion.

That's essentially what Justices Breyer, Souter and Ginsburg argued in their dissent.

I also find this line irritating:

The majority of justices noted the court would be willing to get involved later if the prisoners could show "the government has unreasonably delayed proceedings."

Hello? Many of them have been imprisoned for years already. I understand that the justices are referring to proceedings under the newly passed act, but some sense of urgency would seem to be appropriate here.

With the prisoners in limbo -- at least for now -- is Congress doing anything to fix the Military Commissions Act's more offensive provisions?

Yes.

S576 and HR1415 are the "Restoring the Constitution Act". It tightens the definition of "enemy combatant", requires defendants have access to counsel, excludes coerced statements from evidence, improves the discovery process, gives federal appeals courts (rather than military courts) the authority to hear appeals of tribunal cases, and several other things.

S185 and HR1416 are the "Habeus Corpus Restoration Act." It's very short; it simply restores habeus corpus rights to detainees.

Both are currently in committee in both chambers. We can hope to see them hit the floor for a vote later in this session.

To repeat something I wrote a couple of months ago: Terrorists deserve to be treated harshly. But suspected terrorists deserve rights, including a fair trial; that's the only way we can demonstrate that they are terrorists and thus deserving of punishment. We debase our own principles -- and damage not only our society but our cause -- when we abuse those rights in the name of expediency.

civil liberties, Gitmo, politics, midtopia

Religion and politics

They often make strange bedfellows. But some mixtures are more toxic than others.

You've probably heard about James Dobson telling U.S. News & World Report that he didn't think Republican Fred Thompson was a Christian.

That was silly enough. But following Thompson's angry rebuttal, the clarification was even more obnoxious.

Focus on the Family spokesman Gary Schneeberger said Dobson "use[s] the word 'Christian' to refer to people who are evangelical Christians."

Oh, yes, that makes it all better. In Dobson's formulation, 90 percent of the Christian faith -- Catholics, Lutherans, Presbyterians, Methodists, Anglicans, what have you -- aren't actually Christian. How charming.

What you might not have heard about was something that took place at the same time: 40 members of Congress calling for a "prayer wall" around the United States.

Mr. Forbes and about 40 other members of Congress from both parties and 19 states will gather outside the Capitol today at noon to issue what they are describing as a call to bring "America back to prayer."

The group has even set up a web site where people can sign up for five-minute slots to pray for the United States.

There's plenty to comment on there. Particularly this:

"If we have several thousand people praying for five minutes for the future of our country, that creates a spiritual fire wall around America that is pretty significant," he said.

"Spiritual fire wall"? Besides sounding goofy, this seems like really bizarre theology, conflating religion with nationalism. What part of the Christian faith would lead one to believe that God would favor the United States over, say, Belgium or Italy or India or Singapore? It's like praying for a sports team to win: it cheapens and distorts the very idea of prayer.

That said, the reaction by Americans United for the Separation of Church and State was completely over the top:

Said the Rev. Barry W. Lynn, Americans United executive director, “Lawmakers should stick to their constitutional duties and leave religious decisions to individuals. Congressional meddling in religion is an affront to the First Amendment principle of church-state separation. Religion is too important to become a political football.”

Their weblog went further, stating: "For lawmakers to call Americans to their knees and insist that religious worship is the only way to solve our many problems is insulting, divisive and, frankly, unconstitutional."

Excuse me?

American citizens don't give up their right to free speech when they get elected to Congress. They are as free as you and me to express their opinion on any subject whatsoever, including belief.

What they are not free to do is use their office to compel compliance, or use the levers of government to promote their faith. But the group has not attempted to do so; they have simply expressed their view that the country needs our prayers.

Americans United is laudably vigilant on church-state separation issues. But their willingness to declare simple speech unconstitutional is, frankly, more violative of the Constitution than the behavior they decry. And their shrillness on this incident suggests a religious intolerance that is the mirror image of what they oppose.

Criticize what members of the Prayer Caucus say. But do not deny them their right to say it.

religion, politics, midtopia

What a kangaroo court looks like

For travesties of justice, it's a bit hard to beat the Guantanamo Military Commission hearings currently going on in Cuba.

As the New York Times opined on Sunday, the proceedings are so slanted that even a confession from a real bad guy, Khalid Shaikh Mohammed, couldn't be taken entirely seriously.

When Khalid Shaikh Mohammed — for all appearances a truly evil and dangerous man — confessed to a long list of heinous crimes, including planning the 9/11 attacks, many Americans reacted with skepticism and even derision. The confession became the butt of editorial cartoons, like one that showed the prisoner confessing to betting on the Cincinnati Reds, and fodder for the late-night comedians.

What stood out the most from the transcript of Mr. Mohammed’s hearing at Guantánamo Bay was how the military detention and court system has been debased for terrorist suspects. The hearing was a combatant status review tribunal — a process that is supposed to determine whether a prisoner is an illegal enemy combatant and thus not entitled in Mr. Bush’s world to rudimentary legal rights. But the tribunals are kangaroo courts, admitting evidence that was coerced or obtained through abuse or outright torture. They are intended to confirm a decision that was already made, and to feed detainees into the military commissions created by Congress last year.

The omissions from the record of Mr. Mohammed’s hearing were chilling. The United States government deleted his claims to have been tortured during years of illegal detention at camps run by the Central Intelligence Agency. Government officials who are opposed to the administration’s lawless policy on prisoners have said in numerous news reports that Mr. Mohammed was indeed tortured, including through waterboarding, which simulates drowning and violates every civilized standard of behavior toward a prisoner, even one as awful as this one. And he is hardly the only prisoner who has made claims of abuse and torture. Some were released after it was proved that they never had any connection at all to terrorism.

Okay, but KSM is clearly guilty. So nobody is too concerned if we cut a few corners where he's concerned, right? The complete disembowelment of "rule of law" contained in that attitude aside, I'll concede the point -- and turn to David Hicks, another defendant processed through the system (he's the guy in the picture).

Hicks started out the day with three lawyers. He ended the day with one. The judge removed one lawyer on a technicality -- that although she had been properly appointed by the chief military defense counsel, she was not herself on active duty. He removed the other one, civilian attorney Joshua Dratel, for an even weirder reason. From the ACLU's blogging on the case:

The judge stated that Hicks's civilian defense counsel, well-known criminal defense attorney Joshua Dratel, had not submitted a letter indicating his agreement to comply with the rules and regulations of the Commissions, and therefore was not qualified to serve as counsel. Under Commission rules, a civilian lawyer must sign an agreement issued by the Secretary of Defense indicating that the lawyer agrees to abide by the Commission's regulations. The problem for the judge was that the Secretary of Defense had not yet created that agreement, and therefore Dratel could not sign it.

Instead, the judge had created his own version of the agreement – thereby, in Dratel's words, "usurping the authority of the Secretary of Defense." Dratel would have signed even that version – so long as the agreement made clear that it applied only to regulations that already existed, and not to those (and there are many) that have not yet been issued. "I cannot sign a document that provides a blank check on my ethical obligations as a lawyer," Dratel explained. In simple terms, Dratel was unwilling to pledge compliance with rules that he had not yet seen.

The judge was unpersuaded. "I find no merit in the claim that this is beyond my authority," he said. "That's sometimes what courts do, they find a way to move forward." Because Dratel refused to sign the agreement as written by the judge, he could not serve as counsel. There was a second empty chair.

Got that? He was removed because he wouldn't agree to rules that had not been written yet.

In case you don't like the source, here's a news article covering much the same ground.

Now the judge did give Hicks the option of keeping both lawyers with him as consultants, with all actual lawyering being done by his one remaining lawyer, Maj. Dan Mori. But Hicks said he didn't see much point to that, so they left. Mori then said he needed more time to prepare the case -- a reasonable request, IMO, seeing as how he had just lost two-thirds of his defense team. The request was denied.

A few hours later, Hicks cut a plea deal with prosecutors that will let him go home and serve whatever sentence he gets in Australia.

Hicks may very well be guilty, although what he's mostly guilty of is being a low-level Taliban combatant. But the slanted proceedings cast doubt on the verdict; generate sympathy for the defendant; give us yet another international black eye; undermine our claims of moral superiority; and give people no reason to trust either our word or our legal process. Sure, we don't blow up civilians in crowded marketplaces. Good for us. We just throw people in jail using a process more familiar to banana republics than democracies built on the rule of law.

As the New York Times summarized in its Sunday editorial:

The Bush administration has so badly subverted American norms of justice in handling these cases that they would not stand up to scrutiny in a real court of law. It is a clear case of justice denied.

And that, Mr. President, is why Gitmo and the commissions process is harming our security, not helping us. Way to go.

Hicks, Gitmo, politics, midtopia

Minnesota and Muslims

This weekend, the Star Tribune ran an article summarizing recent efforts to accomodate -- or not -- our growing Muslim population. Since then I've been noodling on it, trying to figure out where I stand on particular instances of accomodating minority practices.

First, the background. A while back we had a brouhaha over airport cab drivers refusing to transport alcohol. Then there were the Muslim cashiers at SuperTarget who didn't want to touch (or scan) packages of pork, and now this:

Minneapolis Community and Technical College is poised to become the state's first public school to install a foot-washing basin to help the school's 500 Muslim students perform pre-prayer rituals. "We want to be welcoming," MCTC President Phil Davis said, noting a student was hurt trying to wash in a regular sink.

First, let's put things in perspective. Listing each case like this makes it sound like the Twin Cities are awash in such controversies. They're not. Each of these is an essentially isolated incident in a metro area with a population close to 3 million. We have a sizable Muslim population, so we have more such incidents than cities that don't. But you're still talking about a small number of conflicts.

That said, let's address the philosophical and practical aspects raised in the article.

In each instance, you have a tension between customer service and religious belief. The question is how far do we go to accomodate belief? I'm perfectly willing to make reasonable accomodations. But what constitutes reasonable is a matter of opinion.

Let's take them one at a time:

Taxi drivers. They don't have a leg to stand on. They are licensed (and their numbers limited) by the city to provide transportation services from the airport. If they don't want to carry people who have alcohol, they need to get another job.

Cashiers. It's not that they refuse to sell pork; it's that they don't want to touch it. So they ask a co-worker and sometimes the customer to scan it for them. As a customer, that wouldn't bother me too much, so for me this falls into the "reasonable accomodation" category. But mostly this is a private concern for Target Corp. If it decides accomodating such requests aren't worth the hassle -- or are harming customer relations -- then they can choose to change it. If enough people complain, you can be sure they will.

Foot washer. At first glance this one seems easy. MCTC is a taxpayer-funded two-year college, and so the answer seems obvious: no taxpayer money spent for an explicitly religious purpose.

If students are hurting themselves trying to wash their feet in the sink -- and frankly, I'm having a hard time visualizing how this could be a problem except for the very, very clumsy -- then a cheap and constitutional solution might be to simply educate students on alternative foot-washing methods like, say, carrying an empty water bottle with them that they can fill up and wash with.

But it turns out to be difficult, because there are additional considerations.

As an adult educational institution, MCTC is supposed to accomodate a range of students -- and has a competitive interest in doing so. Would it make competitive sense to turn off potential students simply because of inconvenient lavatory facilities? Building a mosque or a chapel would clearly be both unreasonable and unconstitutional. But a sink? Why not?

In the end, though, what persuades me is another relatively simple argument: A foot washer doesn't just serve Muslim students. Yes, they get a convenient place to wash their feet; but the rest of us benefit by keeping feet out of the regular sinks. Not to mention avoiding the lawsuits from the Clumsy Muslims Student Association.

I strongly support separation of church and state. But remember that the main point of that separation is to prevent a particular religion from exerting undue control over the state, or using the levers of government power to promote itself or force its beliefs on others. Absent such coercion, religion should be treated the same as other interest groups -- not better, but not worse, either.

America remains an overwhelmingly Christian nation; Muslims aren't going to be running things anytime soon. So providing a reasonable accomodation to a minority religion should be just fine, especially when the accomodation is small and benefits all students, not just the minority.

Accomodation is a case-by-case thing, as the mosque example demonstrates. And it's a two-way street as well: members of minority groups have an obligation to adjust their practices to the larger reality of American life as much as practicable before demanding special consideration for their situation. But assuming that has been done, then minor accomodations are not PC run amok or cultural surrender: they are a recognition that Muslims are a part of the American fabric, not a burr stuck upon it. And as that fabric changes, so too will some things that we have "always done" and never thought much about.

Which is a good thing, because that ability to change is one reason the United States has remained a vibrant nation through two centuries of global and social upheaval. Our foundation is strong because it is not overly rigid. And it's why the country will survive this wave of immigrants just like it survived the Italians and the Irish and the blacks and giving women the vote and all the other things that people at the time feared would destroy us. We will survive, and we will remain American in all the ways that matter -- and made stronger by the additional weave brought from overseas.

Just as long as the cab drivers don't give me a hard time for the wine bottle I brought back from vacation....

Minnesota, Islam, politics, midtopia

Why logic classes should be required

When it comes to Alberto Gonzales, President Bush has thus far refused to cashier him. Some defenders of that decision have made the argument that giving Gonzales to Bush's critics would simply embolden them, so they must be resisted -- ignoring the fact that Gonzales is doing more damage to Bush's cause by remaining than could ever be caused by his resignation, a point made by Captain Ed in a link in the post below this one.

Now David Schraub sees a similar logic applied to Gitmo. The summary: While the president thinks Gitmo is hampering our broader war effort and ought to be shut down, he is reluctant to do so because that would mean moving the prisoners stateside where they would enjoy greater legal rights. So apparently we'll just have to keep hampering our own war effort.

Now one can be charitable and say the president means that shutting Gitmo would hamper our war effort even more -- except that's not what he said, and it makes little sense in context. Gitmo, on balance, is either helping or hurting our cause. If it's helping, then he should support it. If it's hurting, then it should be shut down. He said it's hurting. So that leaves one of two choices:

1. He's simply concerned about PR rather than the underlying issues, in which case what he's really saying is "I'm getting hammered for Gitmo, and I'd love to shut it down as soon as I can recreate it somewhere else."

2. He's willing to "hamper our war effort", if necessary, to avoid giving the Gitmo prisoners any real legal rights. Which, if true, demands the question Schraub asks: "Why?"

Personally, I think it's #1 more than #2. He's not truly apologetic for Gitmo; I don't think he respects the civil liberties questions involved, or how damaging such an operation can be in a conflict where global perceptions are a major part of the battleground, and where we claim to represent the forces of freedom, law and goodness.

Gitmo, Bush, politics, midtopia

Chavez moves to nationalize 815,000 acres

And thus the socialist revolution proceeds apace.

Venezuela's government has seized more than 330,000 hectares (815,450 acres) of land to redistribute them under an agrarian reform programme.

President Hugo Chavez said 16 farms - which he described as large and unproductive - had been expropriated.

Taken in isolation, land seizures are not a good thing. In a stable, law-abiding society, land rights should be nearly inviolable, because the ability to acquire and keep property is one of the fundamental building blocks of wealth and thus opportunity. If land can be seized arbitrarily, then people have few rights that cannot be violated.

But the history of Latin America complicates things, because the "thou shalt not nationalize private land" commandment assumes that the land was fairly acquired in the first place. And largely, it was not. In Venezuela, 97 percent of the arable land is owned by 10 percent of the population. And that's not even the worst ratio. In neighboring Columbia, half the land is owned by 0.3 percent of the population; overall, 75 percent of the land is owned by just 2.6 percent of the population.

Those ratios did not arise from free and fair market transactions; they are relics of empire and dictatorship. So it's myopic to condemn land seizures in isolation, without addressing the extreme imbalances that underlie current land ownership.

Given a set of really bad options, a well-planned system of land reform -- one that defines "underused" land objectively and fairly compensates the current owners of the land, however they came to own it -- might be the most reasonable choice. In addition, any such program must contain a sunset provision, under which the program expires once the ownership ratio reaches a certain level, or a specified amount of land has been seized.

Of course, that assumes that Chavez' plan is either well-planned, well-run or fair -- something I'm not willing to bet money on. But in such a case it is Chavez, not land reform per se, that is the problem.

land reform, Chavez, Venezuela, politics, midtopia

Life under a gag order

If you want to get your inner civil libertarian riled, read on.

We know, of course, that the FBI has been abusing its authority to seek information without a warrant through National Security letters.

What you may not know is that keeping such abuse secret is made much easier by another FBI power: the gag order. If you're served an NSL you're not allowed to tell anyone -- even if the request is obviously improper. Even after the FBI has abandoned efforts to get the information from you, you cannot tell anyone they tried.

Here, then, is one person's story about living under an NSL gag order.

Three years ago, I received a national security letter (NSL) in my capacity as the president of a small Internet access and consulting business. The letter ordered me to provide sensitive information about one of my clients. There was no indication that a judge had reviewed or approved the letter, and it turned out that none had. The letter came with a gag provision that prohibited me from telling anyone, including my client, that the FBI was seeking this information. Based on the context of the demand -- a context that the FBI still won't let me discuss publicly -- I suspected that the FBI was abusing its power and that the letter sought information to which the FBI was not entitled.

Rather than turn over the information, I contacted lawyers at the American Civil Liberties Union, and in April 2004 I filed a lawsuit challenging the constitutionality of the NSL power. I never released the information the FBI sought, and last November the FBI decided that it no longer needs the information anyway. But the FBI still hasn't abandoned the gag order that prevents me from disclosing my experience and concerns with the law.

In other words, the people with direct experience with NSLs are prohibited from using that experience to challenge the FBI's power. A practical consequence of that is that debate over that power is truncated:

Without the gag orders issued on recipients of the letters, it is doubtful that the FBI would have been able to abuse the NSL power the way that it did. Some recipients would have spoken out about perceived abuses, and the FBI's actions would have been subject to some degree of public scrutiny....

I found it particularly difficult to be silent about my concerns while Congress was debating the reauthorization of the Patriot Act in 2005 and early 2006. If I hadn't been under a gag order, I would have contacted members of Congress to discuss my experiences and to advocate changes in the law.

Here's what it's like to have a gag order imposed:

Under the threat of criminal prosecution, I must hide all aspects of my involvement in the case -- including the mere fact that I received an NSL -- from my colleagues, my family and my friends. When I meet with my attorneys I cannot tell my girlfriend where I am going or where I have been. I hide any papers related to the case in a place where she will not look. When clients and friends ask me whether I am the one challenging the constitutionality of the NSL statute, I have no choice but to look them in the eye and lie.

There are legitimate security concerns related to NSLs. Notably, you don't want to tip off a suspect to the existence of an active investigation, particularly the information sought and why. But those concerns can be addressed more narrowly. A broad gag order is the equivalent of using a sledgehammer where a scalpel is needed, and it does more to protect the FBI from scrutiny than it does to protect national security.

Congress has warned the FBI that if they don't clean up their act, they will lose the ability to use NSLs. But Congress needs to do more than that: they need to revise the gag order provisions to protect national security in a way less damaging to democratic debate and less violative of civil liberties.

politics, midtopia