June 2007 Archives

It’s a captivating nine minutes. Data Kabel Siemens M50

You might also be interested in the Federalist Society’s (2-hour) webcast review of the Court’s 06-07 Term.Data Kabel Siemens M50

If so, this one will surely burn:Data Kabel Siemens M50

When voting began Thursday on whether to advance President Bush’s immigration bill, Kansas Sen. Sam Brownback was among the first lawmakers to vote “yes.”

About 10 minutes later, Brownback switched his vote to “no.”

But don’t bother accusing the Republican presidential hopeful of flip-flopping — he says he did it on purpose.

“I wanted to signal that I support comprehensive immigration reform, but now is not the time, this is not the bill,” Brownback said.

Brownback explained that his “yes” vote initially was to “showcase” that reform is needed. The switch to “no” was because he didn’t think this was the right way to do it.

Umm, hmm.Data Kabel Siemens M50

This is ominous:Data Kabel Siemens M50

The United States Supreme Court reversed course today and agreed to hear claims of Guantanamo detainees that they have a right to challenge their detentions in American federal courts.

Well, we can see where this is going. Let’s get that Hilton boarded up, and get those detainees transferred to a foreign government. Data Kabel Siemens M50

And you still can, boo … you still can.Data Kabel Siemens M50

(No, I didn’t actually listen to the words coming from his mouth. Why, was he speaking?) Data Kabel Siemens M50

Citing executive privilege, the president has told Congress to get bent:Data Kabel Siemens M50

Bush rejected subpoenas for documents from former presidential counsel Harriet Miers and former political director Sara Taylor. The White House made clear neither one would testify next month, as directed by the subpoenas.

Mr. Bush has the better argument (pdf)** here, but I’m too sick of him to care.Data Kabel Siemens M50

By the way, this is second time the president has claimed executive privilege. The first time “was in December 2001, when Congress asked for documents from the administration of his predecessor, Bill Clinton.”Data Kabel Siemens M50

(**Do you think our Supreme Court justices would submit to a congressional subpoena for internal memoranda written by their law clerks? No? Then you understand the president’s case.)Data Kabel Siemens M50

With Lucky Pierre balking, the Court couldn’t go all the way. But it did get the head in. Data Kabel Siemens M50

Opinion in pdf; see especially Kennedy’s controlling concurrence, which begins on p. 85.Data Kabel Siemens M50

See also this informative and concise post by Eric at Is That Legal?.Data Kabel Siemens M50

Technorati Tags: Constitutional law, Supreme CourtData Kabel Siemens M50

Woo-hoo:Data Kabel Siemens M50

The most dramatic overhaul of the nation’s immigration laws in a generation was trounced this morning by a bipartisan filibuster, with the political right and left overwhelming a coalition of Republicans and Democrats who had been seeking compromise on one of the most difficult social and economic issues facing the country.

The 46-53 tally fell dramatically short of the 60 votes needed to overcome opponents’ dilatory tactics and parliamentary maneuvers that have dogged the bill for weeks.

Data Kabel Siemens M50

Sweet. But in this case, victory isn’t enough. In elections to come, expect conservative vengeance-seeking against “yea” Republican senators — including this opportunistic asshole, who switched his vote at the last minute, after it became apparent his side would lose. (I submit to you that the man is not merely an asshole; he is the actual eye of the hole.)Data Kabel Siemens M50

Although it would have been even worse had this sham become law, the damage done here to the GOP “brand” is profound. As the fight wore on, it became apparent to Republican constituencies that the party’s establishment wasn’t just indifferent to them; it was hostile to them. That’s not the sort of thing people forget. And it’s one reason why Dick Morris’ argument is wholly unpersuasive. The Democrats were going to do well anyway. How could they not, with rank and file Republicans set to stand down?Data Kabel Siemens M50

Technorati Tags: Immigration reform, Democrats, Republicans, 2008 electionsData Kabel Siemens M50

It ain’t over yet. But it looks like we’re close to killing this gawd damn thing. Smart people concur.Data Kabel Siemens M50

Note the names of the eight senators who can slay the dragon. If you’re represented by one of them, the number to call is (202) 224-3121. Call early. The vote is set for 10:30 a.m. ET.Data Kabel Siemens M50

• Bond (R-MO)
• Brownback (R-KS)
• Burr (R-NC)
• Coleman (R-MN)
• Ensign (R-NV)
• Nelson (D-NE)
• Pryor (D-AK)
• Webb (D-VA)

When we think of division on the U.S. Supreme Court, what’s the first thing that usually comes to mind? The conflict between the Court’s conservative and liberal wings, yes?Data Kabel Siemens M50

Well, it might be time to think again. In pouring over this week’s decisions, I noticed that the conservative justices reserved some of their sharpest language for one another.Data Kabel Siemens M50

Here, for example, is what Justice Alito wrote for the plurality in Hein (pdf):Data Kabel Siemens M50

Justice Scalia says that we must either overrule Flast or extend it to the limits of its logic. His position is not “[in]sane,” inconsistent with the “rule of law” or “utterly meaningless.” Post, at 1 (opinion concurring in judgment). But it is wrong.

In a concurring opinion joined by Thomas, this is what Scalia wrote:Data Kabel Siemens M50

Today’’s opinion [by Alito] is, in one significant respect, entirely consistent with our previous cases addressing taxpayer standing to raise Establishment Clause challenges to government expenditures. Unfortunately, the consistency lies in the creation of utterly meaningless distinctions which separate the case at hand from the precedents that have come out differently, but which cannot possibly be (in any sane world) the reason it comes out differently. If this Court is to decide cases by rule of law rather than show of hands, we must surrender to logic and choose sides … [Italics added.]

Wow. What’s going on here? Duke law professor Walter Dellinger explains:Data Kabel Siemens M50

Chief Justice Roberts and Justice Alito — perhaps recalling their recent confirmation encomiums to stare decisis — have apparently decided to overrule cases without saying they are overruling them. Justices Scalia and Thomas often won’t go along with that move and thus write separately to say that the earlier cases should be explicitly repudiated. Justice Kennedy has gone both ways this week. The result is that the five justices in the majority break into two opinions, one of which would explicitly overrule a prior case and the other of which would leave it half-dead and unable to procreate.

ADDED —Data Kabel Siemens M50

The New York Times has also noticed the intra-bloc friction:Data Kabel Siemens M50

It’s not every day that one Supreme Court justice, even one as rhetorically unrestrained as Justice Antonin Scalia, characterizes another justice, let alone the chief justice of the United States, as a wimp and a hypocrite.

Yet Justice Scalia did something very close to that, not once but twice, in separate opinions on Monday. As a result, he has served to lift the curtain a bit on the differences within the powerful five-justice conservative bloc that has marched in lock step through much of the term, bent on reshaping the law and, in several important areas, well on the way toward doing so.

Technorati Tags: Supreme CourtData Kabel Siemens M50

I myself am not willing to jump ship, much less (gulp!) give money to the Democrats, over a procedural vote, disappointing though it was. Data Kabel Siemens M50

But if the GOP allows the so-called immigration “reform” bill to become law, I won’t be the only one to quit the party. Rank and file Republicans were already dispirited and disillusioned. Now they’re furious: “If life weren’t so good and comfortable in the US today, we might be at a genuine revolutionary moment.”Data Kabel Siemens M50

Here’s my prediction. If Republicans in Congress don’t stop this bill, they will suffer losses in 2008 on a scale unparalleled in our Nation’s history. Data Kabel Siemens M50

(RSS and e-mail subscribers: Video appears here. Click to watch.)Data Kabel Siemens M50

Technorati Tags: Illegal immigration, Immigration reform, Republicans, 2008 electionsData Kabel Siemens M50

I often feel at a disadvantage to other bloggers (and their readers) when posting about a U.S. Supreme Court decision. I think it in good order to read an opinion before commenting on it publicly, and reading takes time. But it’s apparent from their remarks that many others do not labor under this disability. The blogoshere was abuzz today with uninformed, seat-of-the-pants commentary. Data Kabel Siemens M50

But onward.Data Kabel Siemens M50

Justice Alito filed a concurring opinion in which Justice Kennedy joined. Alito’s opinion is controlling, i.e. states the law. In any case where school officials go further than he wants them to go — further than officials went in this case — he has the votes to shut them down (4+2=6). Snippet:Data Kabel Siemens M50

I join the opinion of the Court on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as “the wisdom of the war on drugs or of legalizing marijuana for medicinal use.” See post, at 13 (STEVENS, J., dissenting).

[…]

As we have recognized in the past and as the opinion of the Court today details, illegal drug use presents a grave and in many ways unique threat to the physical safety of students. I therefore conclude that the public schools may ban speech advocating illegal drug use. But I regard such regulation as standing at the far reaches of what the First Amendment permits. I join the opinion of the Court with the understanding that the opinion does not endorse any further extension. [Emphasis added.]

And that’s the law under Morse v. Frederick, aka the “Bong Hits 4 Jesus” case. When at school or a school event, a student could advocate an end to the war on drugs, but not the use of drugs.*Data Kabel Siemens M50

Justice Thomas also filed a concurring opinion. He would have resolved this case using an approach quite different from the one advanced by Alito and Kennedy. In Thomas’ view, it’s not that students “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, 506 (1969). Rather, it’s that students don’t have a constitutional right to shed:Data Kabel Siemens M50

The Court today decides that a public school may prohibit speech advocating illegal drug use. I agree and therefore join its opinion in full. I write separately to state my view that the standard set forth in Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503 (1969), is without basis in the Constitution.

The First Amendment states that “Congress shall make no law … abridging the freedom of speech.” As this Court has previously observed, the First Amendment was not originally understood to permit all sorts of speech; instead, “[t]here are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.” Chaplinsky v. New Hampshire, 315 U. S. 568, 571– 572 (1942); see also Cox v. Louisiana, 379 U. S. 536, 554 (1965). In my view, the history of public education suggests that the First Amendment, as originally understood, does not protect student speech in public schools. [Emphasis added.]

(*There’s been a lot of debate in the blogosphere about whether (a) Joseph Frederick was at a “school event” and (b) whether his 14-foot banner, bearing the phrase “BONG HiTS 4 JESUS,” advocated or promoted the use of an illegal drug. The Court resolved both questions in the affirmative.)Data Kabel Siemens M50

ADDED —Data Kabel Siemens M50

I see where liberal bloggers are blasting the “assholes” on the Court for “pissing” on the First Amendment. But the underlying policy at issue here — which “specifically prohibits any assembly or public expression that … advocates the use of substances that are illegal to minors” — was crafted by the Juneau, Alaska school board, not by the Court. (See pdf, supra, at p. 6.) Juneau’s policy, or something like it, is standard fare in school districts across the country. Data Kabel Siemens M50

So even if we assume, arguendo, that the Court has relieved itself on the Constitution, it wasn’t alone in doing so, nor was it the first to do so. The relief began with local school boards, many of which are controlled by Democrats. Will liberal bloggers direct any of their outrage at them?Data Kabel Siemens M50

Technorati Tags: Constitutional law, Supreme CourtData Kabel Siemens M50

Walter Dellinger instructing. The guy’s a riot.Data Kabel Siemens M50

“He lies flat, unseeing eyes fixed on the ceiling, tubes and machines feeding him, breathing for him, keeping him alive. He cannot walk or talk, but he can grimace and cry. And he is fully aware of what has happened to him.”Data Kabel Siemens M50

According to the Wall Street Journal, it’s “flying off bookshelves, even in the Bible Belt:”Data Kabel Siemens M50

Demand has been so strong that booksellers and wholesalers were unable to get copies a short time after it hit stores, creating what the publishing industry calls a “dark week.” One experienced publishing veteran suggests that Mr. Hitchens will likely earn more than $1 million on this book.

Well, I have a copy. And I can you it’s an informative and engaging read.Data Kabel Siemens M50

The Senate votes Tuesday on whether to resume consideration of the so-called immigration reform bill. At this hour, we are short eight votes against the motion to invoke cloture and proceed to the bill. Or, to put it another way, we need eight more votes to kill the bill.Data Kabel Siemens M50

Those eight votes are most likely to be found among the senators listed below. If you’re represented by one of them, now is the time to act. The number to the Capitol switchboard is (202) 224-3121. Call and make your voice heard. Data Kabel Siemens M50

• Bond (R-Mo.)
• Bingaman (D-N.M.)
• Burr (R-N.C.)
• Boxer (D-Calif.)
• Cochran (R-Miss.)
• Conrad (D-N.D.)
• Ensign (R-Nev.)
• Levin (D-Mich.)
• Gregg (R-N.H.)
• Nelson (D-Neb.)
• Hatch (R-Utah)
• Webb (D-Va.)

In Oakland, California, the municipal government is suppressing speech that isn’t even explicitly anti-gay; it’s only inferentially anti-gay, as determined by one lesbian’s feelings.Data Kabel Siemens M50

This isn’t an isolated case. Not infrequently, you find free speech in America under assault by the gay left and its shotgun-riding allies. This headline sums it up.Data Kabel Siemens M50

Although a registered nurse, I have never worked in a setting where I might be asked to assist with an abortion or any of the other reproductive services hailed in this exceptionally fatuous article.Data Kabel Siemens M50

The article pretends to report on a tug-of-war between patients who want abortions or other services, and doctors, nurses and hospitals who won’t provide them. But read carefully and you’ll notice that the writer uses language to create a crisis where none exists, as even she herself is ultimately forced to concede: “In the end, the women in all of the incidents above were able to get the treatment they wanted …”Data Kabel Siemens M50

Yes, of course they were. For even if some doctors, nurses and hospitals won’t perform abortions or provide birth control, plenty of others will. A few do little else.Data Kabel Siemens M50

I support my peers who, for moral or religion reasons, object to performing abortions or other procedures. As one lawyer put it, “Don’t make your choice my choice.” Data Kabel Siemens M50

(By the way, notice the PC bias, always a clue that the story is crap: “Catholic and conservative Christian health care providers are denying women a range of standard, legal medical care.” And what about Muslim providers? They’re less intractable about abortion and birth control, are they?)Data Kabel Siemens M50

Is no one on Speaker Nancy Pelosi’s staff able to distinguish between the uniform of an American soldier and the uniform of another country’s soldier (in this case, Canada’s)?Data Kabel Siemens M50

This is shameful:Data Kabel Siemens M50

As expected, the image has already been scrubbed from Pelosi’s site. (See the full-sized original.) But what cannot be scrubbed is the military ignorance exhibited by many Democrats.Data Kabel Siemens M50

How do people pay so little attention to the men and women who keep them free, except by being indifferent to, or naive about, the dangers of the world around them?Data Kabel Siemens M50

Gawd, I hope she ends up on the Supreme Court.Data Kabel Siemens M50

The case is United States v. Goddard. Janice Rogers Brown, circuit judge, dissenting:Data Kabel Siemens M50

In America, people who are peaceably and lawfully minding their own business (or who seem to be) have the right to be free from arbitrary police interference. That is the explicit premise of Terry v. Ohio (recognizing the right of every person to be free from unreasonable governmental restraint, interference, or intrusion). Forty years later, Terry’s evolution raises troubling questions. In the crime-plagued, violence-prone, drug-ridden reality of our urban centers, is reasonable suspicion too high a threshold; is it too much to ask? [Citation omitted.]

Judge Brown’s dissent begins on page 11 of the pdf.Data Kabel Siemens M50

Technorati Tags: Law, CourtsData Kabel Siemens M50

I intended to pass this on last week when it first appeared. It’s a thoughtful essay from Vaclav Klaus, president of the Czech Republic. Snippet:Data Kabel Siemens M50

As someone who lived under communism for most of his life, I feel obliged to say that I see the biggest threat to freedom, democracy, the market economy and prosperity now in ambitious environmentalism, not in communism.

The U.S. Supreme Court today issued judgment in three cases, including one about federal sentencing guidelines.Data Kabel Siemens M50

Data Kabel Siemens M50

But the most notable decision of the week came yesterday from the U.S. Court of Appeals for the D.C. Circuit. Just as the Bush Administration is reportedly planning to close the detention facility at Guantanamo, the appeals court gave effect to its decision that detainees cannot seek habeas relief from federal courts. SCOTUSBlog has the story.Data Kabel Siemens M50

Technorati Tags: Law, CourtsData Kabel Siemens M50

Who’s your daddy?Data Kabel Siemens M50

Iranian naval forces in the Gulf tried to capture an Australian Navy boarding team but were vigorously repelled, the BBC has learned.

[…]

When Iranian Revolutionary Guards captured [fifteen] British sailors and Royal Marines in March, it was not exactly their first attempt.

It turns out that Iranian forces made an earlier concerted attempt to seize a boarding party from the Royal Australian Navy.

The Australians, though, to quote one military source, “were having none of it.”

Read a report about … men. (Cussing and machine guns are involved.) Of course, Aussie women make you proud, too.Data Kabel Siemens M50

Watch.Data Kabel Siemens M50

According to the Heritage Foundation, the immigration reform bill “would insert the federal government into the workplace in ways that would touch each and every U.S. worker:”Data Kabel Siemens M50

These provisions would force a bureaucratic nightmare upon every American worker and their employers. The bill provides amnesty to 12 million individuals who have broken the law while at the same time requiring all law-abiding U.S.-born workers, permanent residents, and non-immigrant workers to prove again that they are eligible for employment.

Under the proposal, each worker would be required to prove work authorization even if he or she has already done so under current law. A passport or birth certificate would not be sufficient; a new “confirmation” from DHS is required. American workers would actually need approval from DHS to continue working in their current jobs.

The number to the Capitol switchboard is (202) 224-3121. These are the senators most in need of a call:Data Kabel Siemens M50

• Alexander (R-TN)
  Bennett (R-UT)
  
• Cochran (R-MS)
  
• Coleman (R-MN)
  
• Collins (R-ME)
  
• Cornyn (R-TX)
  
• Craig (R-ID)
  
• Domenici (R-NM)
  Gregg (R-NH)
  Hatch (R-UT)
  Hutchison (R-TX)
  Kyl (R-AZ)
  Lott (R-MS)
  
• McConnell (R-KY)
  Murkowski (R-AK)
  
• Smith (R-OR)
  Snowe (R-ME)
  Stevens (R-AK)
  
• Warner (R-VA)
  

Bulleted senators are up for re-election in 2008.Data Kabel Siemens M50

Technorati Tags: Immigration reformData Kabel Siemens M50

This time they hit the home of a 77-year-old woman in La Plata County, Colorado:Data Kabel Siemens M50

The raid occurred about 11 a.m. June 8, as Virginia Herrick was settling in to watch “The Price is Right.” She heard a rustling outside her mobile home in Durango West I and looked out to see several men with gas masks and bulletproof vests, she said.

Herrick went to the back door to have a look.

“I thought there was a gas leak or something,” she said.

But before reaching the door, La Plata County Sheriff’s deputies shouted “search warrant, search warrant” and barged in with guns drawn, she said. They ordered Herrick to the ground and began searching the home.

“They didn’t give me a chance to ask for a search warrant or see a search warrant or anything,” she said in a phone interview Thursday. “I’m not about to argue with those big old guys, especially when they’ve got guns and those big old sledgehammers.”

[…]

Deputies asked Herrick if she knew a certain man, and she said no. Then they asked what address they were at, and she told them 74 Hidden Lane.

Deputies intended to raid 82 Hidden Lane — the house next door.

Isn’t that special? By the time these jackbooted thugs decided to inquire where they were, they had the old woman on the ground and partially cuffed. Then came an executive decision:Data Kabel Siemens M50

After raiding the wrong house, deputies regrouped and decided to enter the correct house.

Well, Allah be praised.Data Kabel Siemens M50

And what do the storm troopers think of their inexcusable error?Data Kabel Siemens M50

Raiding the wrong house was a mistake, but it’s one the task force has been learning from, [Lt. Rick] Brown said. The mistake could have compromised the investigation and deputy safety.

Oh, indeed. I know I’m terrified of aged women. And if I wrongly subjected one to indignity and exposed her to danger, I hope I would have the grace to reflect exclusively upon my own safety.Data Kabel Siemens M50

Technorati Tags: War on drugsData Kabel Siemens M50

Hat tip to Peter Guither, who notes that “drug warriors have stopped thinking about the public as citizens meriting concern for their safety, but rather as part of an enemy populace.”Data Kabel Siemens M50

Yes, really:Data Kabel Siemens M50

The victim, a 15-year-old boy, was waiting at the bus shelter area on the night of May 19 after an earlier fight with members of a rival gang, officials said. He told investigators that he was attacked by six members of the rival gang, including a woman who allegedly stabbed him four times and another person who hit him in the head with a stiletto heel.

Metro officials said the fight was between two gay and lesbian gangs that operate in Maryland.

Police arrested Brandon Dodd, 18, of Silver Spring, yesterday and charged him with first-degree assault in connection with the alleged assault with the shoe …

I haven’t done a simple audio blog in so long that I’d nearly forgotten how! In the intro, I say this is a five minute podcast, but it’s closer to four and a half. Data Kabel Siemens M50

At any rate, here’s a review of this week’s top political news for the South Park conservative.Data Kabel Siemens M50

Subscribe if you like. The image is clickable.Data Kabel Siemens M50

Registration is required, but it’s worth it. Jeffrey Rosen has written a must-read profile of Justice Anthony Kennedy. Upshot: our Supreme Court is under the control of a morally preening narcissist.Data Kabel Siemens M50

Technorati Tags: Supreme CourtData Kabel Siemens M50

Hammer time.Data Kabel Siemens M50

Question: Will Nifong now face criminal charges?Data Kabel Siemens M50

ADDED —Data Kabel Siemens M50

And what of the intellectual frauds at Duke? Will they be held accountable for their obscene conduct?Data Kabel Siemens M50

“White House seems ready to let Hamas seize Gaza” — NYTData Kabel Siemens M50

Let?! Data Kabel Siemens M50

Let implies we have a choice, which we do not — unless, of course, the Old Gray Lady thinks we should send American troops.Data Kabel Siemens M50

Meanwhile, the State Dept. makes me laugh:Data Kabel Siemens M50

“Nobody wants to abandon the hundreds of thousands, if not millions, of people in the Gaza Strip to the mercies of a terrorist organization,” said the State Department spokesman, Sean McCormack.

Yeah, right.Data Kabel Siemens M50

Well, good for them: put out with the vagrants who have made their city “inhospitable to residents and visitors alike,” the moonbats who run Berkeley have decided to ban “public urination and defecation,” among other things.Data Kabel Siemens M50

Happy time:Data Kabel Siemens M50

As we enter the last few decision days of the Term – with 17 cases remaining – I want to raise the prospect that the Term will ultimately reveal that the Court’s ideological shift has been far more profound than almost anyone outside the building has realized so far.

[…]

The consensus is that the Chief Justice is writing an opinion invalidating the [race-based] school assignment programs. The federal campaign finance law at issue in Wisconsin Right to Life is likely to be struck down on the same voting alignment.

[…]

The fact that Justices Ginsburg and Stevens dissented from the bench in three cases – twice in late May and early June after all the votes had been cast – strongly suggests an exceptionally high level of frustration on the left. [Italics in original; bold added.]

The author of those hopeful words? Tom Goldstein, a left-leaning lawyer and chief Supreme Court litigator for Akin Gump. The man knows what he’s talking about. (Probability that his predictions are wrong: 5%.)Data Kabel Siemens M50

Technorati Tags: Supreme CourtData Kabel Siemens M50

• Senate Republicans, aided by the shit-talker from Nevada, prepare for hara-kiri:Data Kabel Siemens M50

Republican leaders have promised to produce enough votes to curtail debate on the bill and proceed to final passage.

Can you guess the identity of the bill in question? Of course you can!Data Kabel Siemens M50

• On a different front, the fight is over:Data Kabel Siemens M50

Massachusetts lawmakers voted Thursday to block a proposed constitutional amendment that would have let voters decide whether to ban gay marriage in the only state that currently allows it.

[…]

The proposal needed 50 votes to advance to the 2008 ballot. It got 45, with 151 lawmakers opposed.

The legislature should have sent the amendment to the voters, who would have rejected it. Imagine the shock and awe.Data Kabel Siemens M50

• There are days when I wish desperately that I had gone to law school and become an appellate lawyer. Today is one of those days. For sheer love of the work, I’d take the appeal pro bono and live on macaroni and cheese. The client has a case.Data Kabel Siemens M50

Justice Alito hints at the answer.Data Kabel Siemens M50

House leaders have reportedly neared a deal to end a partisan impasse over pork spending. The Democrats will agree to capitulate to GOP demands, and the GOP will agree to let the Democrats capitulate:Data Kabel Siemens M50

Democratic leaders gave in to Republican demands that lawmakers be allowed to challenge individual member-requested projects from the final version of each appropriations bill, while Republicans agreed to limit debate in order to allow the House to complete its work, leadership aides on either side of the aisle said Wednesday night.

I’d be more impressed with the GOP’s newfound interest in accountable government if I thought it was motivated by more than politics. Still, it is good politics.Data Kabel Siemens M50

The San Francisco Chronicle reports on “Out Ranks,” an exhibition of American gay and lesbian military history.Data Kabel Siemens M50

Sponsored by the GLBT Historical Society, the exhibit opens Friday at 657 Mission in San Francisco. For more, visit http://www.glbthistory.org/.Data Kabel Siemens M50

Technorati Tags: Gay & lesbianData Kabel Siemens M50

Financial Times:Data Kabel Siemens M50

Leslie Moonves, CBS chief executive, on Tuesday suggested that sexist attitudes were partly to blame for the faltering performance of Katie Couric, the news anchor he recruited to the network with a $15m annual pay package.

“I’m sort of surprised by the vitriol against her. The number of people who don’t want news from a woman was startling,” Mr Moonves said of the audience’s reaction to Ms Couric, who this month brought ratings for the CBS Evening News to a 20-year low.

I wonder how Moonves would explain the success of Fox’s Greta Van Susteren. Like Couric, Van Susteren is a woman with a prime time news program. But unlike Couric, Van Susteren manages to stomp her male competitors’ asses.Data Kabel Siemens M50

Fascinating.Data Kabel Siemens M50

HT: AceData Kabel Siemens M50

This is how the Washington Post reported the story:Data Kabel Siemens M50

A federal appeals court today ruled that the U.S. government cannot indefinitely imprison a U.S. resident on suspicion alone, and ordered the military to either charge Ali Saleh Kahlah al-Marri with his alleged terrorist crimes in a civilian court or release him.

The opinion is a major blow to the Bush administration’s assertion that as the president seeks to combat terrorism, he has exceptionally broad powers to detain without charges both foreign citizens abroad and those living legally in the United States. The government is expected to appeal the 2-1 decision handed down by a three-judge panel of the conservative U.S. Court of Appeals for the Fourth Circuit, which is in Richmond, Va.

The court did not order the military to charge al-Marri in civilian court, as WaPo claims. Rather, the court said that, among other things, the Government could “transfer al-Marri to civilian authorities to face criminal charges …” (See p. 77 of the court’s opinion, in pdf.) Our military doesn’t file charges in civilian courts.Data Kabel Siemens M50

Also, it is true, as WaPo notes, that the 4th Circuit is generally regarded as conservative. But the two judges in the majority here — Diana Gribbon Motz and Roger Gregory — are not conservatives. Both were appointed by President Clinton. The judge who dissented, Henry Hudson, was appointed by Bush II. Data Kabel Siemens M50

Reportedly, the Government will seek en banc review of today’s decision. Data Kabel Siemens M50

For now, al-Marri remains at a naval brig in Charleston, S.C. If all else fails, he’ll be transferred to a federal prison to await prosecution by the Justice Dept. In no event is he on the verge of freedom. Whether by the left hand or right, al-Marri will remain in the custody of the United States.Data Kabel Siemens M50

Law professor Jack Balkin thinks it “very unlikely that the government will prevail on appeal in this case:”Data Kabel Siemens M50

Recall that when al-Marri was originally detained on criminal charges, the Uniform Code of Military Justice prohibited the military from using any cruelty or maltreatment, not to mention assault and threats, against detainees. It was in March of 2003 that the Department of Justice told the Pentagon that the President could, as Commander-in-Chief, disregard those statutory constraints (as well as those imposed by the Torture Act and the Convention Against Torture). Therefore it is not surprising that for the first sixteen months of al-Marri’s military confinement, starting in June 2003 (i.e., just after the DOJ Commander-in-Chief advice), the Government did not permit him any communication with the outside world, including his attorneys, his wife, or his children. He alleges that he was denied basic necessities, interrogated through measures creating extreme sensory deprivation, and threatened with violence.

And if that — abusive interrogation — was the reason for the military detention, then Congress did not authorize it, even if al-Marri could have been militarily detained for incapacitation purposes in the first instance. [Italics in original.]

Balkin is surely right that the Government wanted al-Marri incapacitated. Among other things, the Government alleges that al-Marri trained at an al Qaeda camp in Afghanistan, and that he entered the United States on September 10, 2001 “to serve as a ‘sleeper agent’ to facilitate terrorist activities and explore disrupting this country’s financial system through computer hacking …” Data Kabel Siemens M50

But Balkin also refers to a second reason the Government had to hold al-Marri: interrogation.** That’s a job for the military, isn’t it? Or should we a) abandon interrogation of suspected al Qaeda operatives found on U.S. soil, b) task our civilian prisons with interrogating them, or c) transfer them to the custody of foreign governments who can interrogate them on our behalf? (al-Marri, for example, is a Qatari national, and his government is friendly to the United States.)Data Kabel Siemens M50

In Padilla, this is what a different panel of the 4th Circuit wrote:Data Kabel Siemens M50

We are convinced, in any event, that the availability of criminal process cannot be determinative of the power to detain, if for no other reason than that criminal prosecution may well not achieve the very purpose for which detention is authorized in the first place—the prevention of return to the field of battle. Equally important, in many instances criminal prosecution would impede the Executive in its efforts to gather intelligence from the detainee and to restrict the detainee’s communication with confederates so as to ensure that the detainee does not pose a continuing threat to national security even as he is confined—impediments that would render military detention not only an appropriate, but also the necessary, course of action to be taken in the interest of national security. [Emphasis added.]

It would indeed be worrisome if the president of the United States held the power to classify a lawful U.S. resident (or citizen) as an enemy combatant and then detain him indefinitely without benefit of any criminal process. But that’s not what happened here. Data Kabel Siemens M50

From Judge Hudson’s dissent:Data Kabel Siemens M50

In Hamdi, the Supreme Court considered the due process requirements for a citizen being held in the United States as an enemy combatant. Hamdi was an American citizen captured in Afghanistan for allegedly taking up arms with the Taliban in a combat zone. Like al-Marri, Hamdi was being detained at the Naval Brig in Charleston, South Carolina. After applying a balancing of interest calculus, the Court observed, “a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker.” “It is equally fundamental that the right to notice and an opportunity to be heard must be granted at a meaningful time and in a meaningful manner.”

After upholding the power of the President to detain al-Marri under the AUMF, the district court, after providing him with all due process entitlements articulated in Hamdi, found that his continued detention as an enemy combatant was proper and dismissed his petition. In addition, al-Marri was represented by counsel at all stages of the proceedings below.

I believe the district court correctly concluded that the President had the authority to detain al-Marri as an enemy combatant or belligerent. [Citations omitted.]

Law professor Orin Kerr gets it right, I think. He predicts reversal: Data Kabel Siemens M50

I tend to doubt this decision will stand. My very tentative guess is that either the en banc Fourth Circuit or the Supreme Court will reverse, holding that the AUMF is broad enough to authorize an Al-Qaeda suspect like Al-Marri and therefore the detention is authorized by statute.

Whatever happens, for al-Marri the result is the same. He stays in custody.Data Kabel Siemens M50

**We can leave aside, at the least for the moment, whether the interrogation was “abusive.” I suspect the Government would deny that.Data Kabel Siemens M50

Technorati Tags: Law, CourtsData Kabel Siemens M50

Authoritarian impulses are hardly unique to gays and lesbians. But we’re not exempt from them, either. (When I was younger and sweeter, I thought we were! Ha!) This began with a lesbian who felt “targeted” and “excluded:”Data Kabel Siemens M50

The words “natural family,” “marriage” and “union of a man and a woman” can be punished as “hate speech” in government workplaces, according to a lawsuit that is being appealed to the U.S. Supreme Court.

Meanwhile, in other equally outrageous news:Data Kabel Siemens M50

A judge on Monday threw out the 10-year sentence against a 21-year-old for a consensual sex encounter he had as a teenager. But the state attorney general quickly filed a notice of appeal, keeping Genarlow Wilson in prison for the time being.

[…]

When he was 17 years old, he had a consensual sexual encounter with a 15-year-old girl, which was consensually videotaped.

Georgia law at the time made such an action a felony punishable by 10 years in prison and listing on the sex offender registry.

The state legislature later changed the law, partly in response to Wilson’s case. But the change was not made retroactive, leaving Wilson in jail. He has already served more than two years. [Emphasis added.]

Technorati Tags: Law, General asininityData Kabel Siemens M50

From the surveyors:Data Kabel Siemens M50

Increasingly, Americans are turning to the web for news about politics. This is a survey about online news coverage of the immigration issue. We are interested in your thoughts on this important political controversy. If you decide to participate in our survey, you will start off by answering a few questions about yourself and your political attitudes. Then you will watch a short news clip of an immigration story. After the clip, we will ask you some questions about your position on immigration policy. In total, the survey should take about 15 minutes to complete. The survey is completely anonymous and you can skip any questions you do not wish to answer.

Click here to take the survey.

Please feel free to contact Chris Weber (crweber@notes.cc.sunysb.edu) or Mary-Kate Lizotte (mklizotte@yahoo.com) at Stony Brook University with any questions or concerns. Thanks for your help!

“Bush plans to trek to Capitol Hill on Tuesday to have lunch with Republican senators, part of a hands-on approach to persuading party conservatives that the bill is better than the status quo,” AP reports.Data Kabel Siemens M50

Mickey Kaus has the Administration’s talking points, and the Kausfiles’ balking points.Data Kabel Siemens M50

You can.Data Kabel Siemens M50

The Atlanta Journal-Constitution rightly calls for Genarlow Wilson’s release.Data Kabel Siemens M50

Technorati Tags: Law, Criminal justice, General asininityData Kabel Siemens M50

ABC News:Data Kabel Siemens M50

Newt Gingrich predicts John McCain will never be the Republican nominee for president. And McCain concedes he might be right.

The former House Speaker argued Friday that McCain will not win his party’s nod or his second bid for the White House due to his stance on immigration and campaign finance regulation.

Gingrich’s observation is not news. Some of us said long ago that John McCain could never win the GOP presidential nomination. The antipathy that many conservatives feel for him is just too great.Data Kabel Siemens M50

Relatedly, McCain is running low on campaign funds, which fact I find delightfully ironic.Data Kabel Siemens M50

Technorati Tags: Republicans, 2008 elections, John McCainData Kabel Siemens M50

An ideologically diverse cadre of the Nation’s most respected legal scholars has filed an amicus brief questioning the constitutionality of Patrick Fitzgerald’s appointment as special counsel. Data Kabel Siemens M50

Alan M. Dershowitz (liberal, Harvard), Randy Barnett (libertarian, Georgetown), and Robert Bork (conservative, formerly of Yale) were among a dozen scholars to file the brief with U.S. District Judge Reggie Walton. Walton will decide whether Scotter Libby remains free on bail pending appeal.Data Kabel Siemens M50

Snippet (pdf):Data Kabel Siemens M50

Amici teach or have taught constitutional law or closely related subjects at leading American law schools … Amici have widely divergent views on a variety of subjects, including some that may be at issue in this very case. Amici are united, however, in their view that the question whether the appointment of Special Counsel Patrick J. Fitzgerald comported with the United States Constitution presents at least a close question, one that could very well be decided the other way. [The District] Court’s opinion of April 27, 2006 presents one side of that debate, but amici believe there is another side and that the Court of Appeals or even the Supreme Court could well reach the opposite conclusion from this Court. [Citation omitted.]

CBS News:Data Kabel Siemens M50

“To our knowledge, the special counsel appears to occupy virtually a ‘class of one’ in the history of special prosecutors,” the professors wrote.

The professors argue Fitzgerald may have been given too much power, with too little accountability, since he was not appointed by the president or approved by the Senate. Moreover, they say, Fitzgerald was exempted from complying with Justice Department policies — even though he was appointed by the attorney general.

At Libby’s sentencing hearing Tuesday, Walton said he sees no reason to allow Libby to remain free pending appeal. If he should rule that way, Libby’s attorneys have said they will ask an appeals court to put the prison term on hold. [Emphasis added.]

A defendant’s ability to raise a substantial question of law is one factor a judge is supposed to consider when deciding whether to grant bail pending appeal.Data Kabel Siemens M50

HT: Just One MinuteData Kabel Siemens M50

While the New York Times reports on the behind-the-scenes machinations that led to failure of the Senate immigration bill, pollster Scott Rasmussen invokes Ockham’s razor:Data Kabel Siemens M50

The reality is much simpler and has nothing to do with legislative tactics. The immigration bill failed because a broad cross-section of the American people are opposed to it. Republicans, Democrats, and unaffiliated voters are opposed. Men are opposed. So are women. The young don’t like it; neither do the no-longer-young. White Americans are opposed. Americans of color are opposed.

The last Rasmussen Reports national telephone poll found that just 23% of Americans supported the legislation. When a bill has less popular support than the War in Iraq, it deserves to be defeated.

Any self-respecting news anchor would have to feel like an ass clown while being made to cover this non-event. No wonder Shep Smith dropped trou.Data Kabel Siemens M50

“I like to think that people across America’s ideological rainbow can agree that this Dan Balz article is terrible,” writes liberal blogger Matthew Yglesias.Data Kabel Siemens M50

Indeed we can agree.Data Kabel Siemens M50

The fatuous article in question appeared in today’s Washington Post under the headline, “A failure of leadership in a flawed political culture.” Snippet:Data Kabel Siemens M50

The collapse of comprehensive immigration revision in the Senate last night represents a political defeat for President Bush, Sen. John McCain (R-Ariz.) and Sen. Edward M. Kennedy (D-Mass.), the bill’s most prominent sponsors. More significantly, it represents a scathing indictment of the political culture of Washington.

The defeat of the legislation can be laid at the doorstep of opponents on the right and left …

Clearly, Balz is complaining. But about what, exactly? In our democracy, if a bill faces opposition right and left, it’s probably doomed. Should it be otherwise? Data Kabel Siemens M50

The partisan blame game was already at fever pitch as the bill was going down yesterday. But to those far removed from the backrooms of Capitol Hill, what happened will fuel cynicism toward a political system that appears incapable of finding ways to resolve the nation’s big challenges.

In our collective prosecutorial discretion, we might well decide that the lawbreakers most in need of our attention do not include those who have come here, often by great difficulty, to perform manual labor for substandard wages with the hope of improving their meager lot in life. Well, I’m far removed from the backrooms of Capitol Hill, and I’m not made cynical by the bill’s demise. In fact, I’m pleased by it. Along with millions of others, my voice was heard. Data Kabel Siemens M50

Also, I’m not persuaded that non-action by Congress always constitutes failure. For now, we might “resolve” the “big challenge” of 12 million illegal aliens with benign neglect. After all, their presence here is unauthorized ipso iure; it is not malum in se.Data Kabel Siemens M50

In our collective prosecutorial discretion, we might well decide that the lawbreakers most in need of our attention do not include those who have come here, often by great difficulty, to perform manual labor for substandard wages with the hope of improving their meager lot in life.Data Kabel Siemens M50

Voters wanted an immigration deal …

Perhaps they wanted a deal, but they didn’t want this deal. This distinction is non-trivial.Data Kabel Siemens M50

Twice in two years, Congress has grappled with immigration. The first time, Republicans controlled the White House and both houses of Congress, but Bush could not persuade members of his own deeply divided party to resolve their disagreements. The Republicans, responding to their conservative base, pushed for a tough border security bill but balked at dealing with the controversial question of how to treat the 12 million illegal immigrants in the country.

I’m confused. Were Republicans “deeply divided,” or were they “responding” to their base? And if the latter, doesn’t this lead to the happy conclusion that the political process worked? Data Kabel Siemens M50

By reason of national security, we should gain control of our borders. Once that’s done — as measured not by budget outlays or Government new hires, but by a significant reduction in unauthorized entry — then Dan Balz will find Republicans agreeable to many things, including procedures for regularizing the illegals already here. Data Kabel Siemens M50

Technorati Tags: Illegal immigration, Immigration, Immigration reformData Kabel Siemens M50

Gerard Baker:Data Kabel Siemens M50

So sorry is the Republican condition that there’s little doubt now, even 18 months out, that the 2008 presidential election is for the Democrats to lose. The only reason politics remains interesting is that in the past the Democrats have demonstrated an impressive capacity to stoop to the challenge – and somehow contrive to lose it. Can they possibly do so again?

— UPDATED @ 21:20 —Data Kabel Siemens M50

Second attempt at cloture fails, 45-50:Data Kabel Siemens M50

A broad immigration bill to legalize millions of people in the U.S. unlawfully failed a crucial test vote Thursday, a stunning setback that could spell its defeat for the year.

[…]

Senate Majority Harry Reid, D-Nev., who had made no secret of his distaste for parts of the bill, quickly pulled it from the floor and moved on to other business, costing the measure perhaps its best chance at enactment.

But …Data Kabel Siemens M50

He insisted that the immigration bill is not dead for the year. “I, even though disappointed, look forward to passing this bill,” Reid said.

Roll call.Data Kabel Siemens M50

“A fragile bipartisan compromise that would legalize millions of unlawful immigrants suffered a setback Thursday when it failed a test vote in the Senate, leaving its prospects uncertain,” the Associated Press reports.Data Kabel Siemens M50

Here’s the roll call on a motion to invoke cloture on S. 1348, the so-called Comprehensive Immigration Reform Act of 2007. The vote was 34 ayes and 61 nays. To invoke cloture, or end debate, you need at least 60 ayes.Data Kabel Siemens M50

Majority Leader Harry Reid, D-NV, will try again this evening to bring debate on the bill to a close. If that vote also fails, “[t]he bill’s over with,” Reid said.Data Kabel Siemens M50

Technorati Tags: Immigration reformData Kabel Siemens M50

Law professor, radio personality and blogger Hugh Hewitt hosted yesterday a thoroughly riveting debate between author and atheist Christopher Hitchens and author and pastor Mark Roberts.Data Kabel Siemens M50

Both men are effective in advancing their views: Hitchens because he’s eloquent and brilliant, Roberts because he’s thoughtful and honest. To his credit, Professor Hewitt, who can be imposing, mostly places himself in the background.Data Kabel Siemens M50

If this topic interests you, the debate is well worth an hour and a half of your time.Data Kabel Siemens M50

Meanwhile, from another debate (the man is busy!), see Hitch at his best. Snippet:Data Kabel Siemens M50

Every member of the 82nd Airborne Division could be a snake-handling congregationalist, for all I know, but these men and women, though you sneer and jeer at them, and snigger when you hear applause and excuses for suicide bombers — and you have to live with the shame of having done that — these people are guarding you while you sleep, whether you know it or not. And they’re also creating space for secularism to emerge, and you better hope that they are successful.

Technorati Tags: Religion, Christopher HitchensData Kabel Siemens M50

— UPDATE BELOW —Data Kabel Siemens M50

A federal judge today sentenced Scooter Libby to 30 months in prison and a $250,000 fine for having a recollection of events that differed from the recollection of NBC’s Tim Russert, the Washington Post reports.Data Kabel Siemens M50

We don’t yet know whether the judge will allow Mr. Libby to remain at liberty pending appeal. But we do know that the president should pardon him:Data Kabel Siemens M50

There has always been solid justification for a pardon. Although he tried mightily, prosecutor Patrick Fitzgerald never found enough evidence to charge Libby or anyone else with violating the Intelligence Identities Protection Act or the Espionage Act in the CIA-leak affair. From the beginning of his investigation, Fitzgerald knew who revealed CIA employee Valerie Plame’s identity to columnist Robert Novak, and it wasn’t Libby. (That honor goes to former deputy secretary of State Richard Armitage.)

[…]

… the discrepancies between Libby’s grand-jury testimony and that of the journalists who contradicted him can be explained by differences in memory, and should not have resulted in perjury and obstruction-of-justice charges against Libby. Anyone who watched Libby’s trial knows it was a parade of conflicting memories, and reasonable people could disagree with the jury’s verdict.

Now, however, we have a new reason to call on President Bush to pardon Libby: Fitzgerald’s deplorable behavior in the days leading up to the sentencing. In pre-sentencing legal arguments, it became clear that Fitzgerald wanted the judge to sentence Libby, who had been found guilty of process crimes, as if he had instead been convicted of those more serious underlying allegations that formed the basis of the CIA-leak investigation. Fitzgerald ignored the fact that he had never brought charges under the Intelligence Identities Protection Act or the Espionage Act …

… [Fitzgerald] never even offered any evidence in court that those crimes, as carefully defined by the statutes involved, ever happened. His throw-the-book-at-him sentencing recommendation contradicted the conclusion reached by probation officials, who in their pre-sentencing report pointed out that “the defendant was neither charged nor convicted of any crime involving the leaking of [Valerie Plame Wilson’s] ‘covert’ status.”

Convicted of “lying” — Can you remember everything you said to people to whom you spoke last week? Should you go to prison if your memories differ from theirs? — Scooter Libby is himself the victim of an outrageous lie. As WaPo noted in a September 2006 editorial:Data Kabel Siemens M50

… it now appears that the person most responsible for the end of Ms. Plame’s CIA career is Mr. Wilson, [Plame’s husband]. Mr. Wilson chose to go public with an explosive charge, claiming — falsely, as it turned out — that he had debunked reports of Iraqi uranium-shopping in Niger and that his report had circulated to senior administration officials. He ought to have expected that both those officials and journalists such as Mr. Novak would ask why a retired ambassador would have been sent on such a mission and that the answer would point to his wife. He diverted responsibility from himself and his false charges by claiming that President Bush’s closest aides had engaged in an illegal conspiracy. It’s unfortunate that so many people took him seriously.

It’s especially unfortunate for Scooter Libby, who now faces the loss of everything, not least of all his freedom. The president should pardon Scooter Libby.Data Kabel Siemens M50

UPDATE:Data Kabel Siemens M50

Will Bush pardon Libby? Apparently not — even if it means a man who worked closely with him and sought tirelessly to do what was right for the country goes to prison.

[…]

So much for loyalty, or decency, or courage. For President Bush, loyalty is apparently a one-way street; decency is something he’s for as long as he doesn’t have to take any risks in its behalf; and courage—well, that’s nowhere to be seen. Many of us used to respect President Bush. Can one respect him still?

Technorati Tags: Scooter LibbyData Kabel Siemens M50

Jan Crawford Greenburg, legal analyst for ABC News, spoke Thursday to the Ethics and Public Policy Center about her new book “Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court.” Available in mp3 format, her talk is fascinating. Data Kabel Siemens M50

Of particular interest is an anecdote she tells about Justice Clarence Thomas. Thomas is not Antonin Scalia’s disciple. If anything, it’s the other way around.Data Kabel Siemens M50

Meanwhile, (conservative) women and minorities top Mr. Bush’s list of possible Supreme Court nominees, ABC News reports. Yes, Janice! is on the list.Data Kabel Siemens M50

I visited the Court Saturday. Expecting to return Sunday, I didn’t take my camera with me. Alas, I didn’t return and so I don’t have any pictures. Grrr! But I can tell you the building is huge and beautiful. If you get the chance to visit, do it. Data Kabel Siemens M50

Technorati Tags: Supreme CourtData Kabel Siemens M50