Friday, February 04, 2005

Debate Deja Vu

Anybody who was at the 2003 Harvard Debate Tournament in Congress will find this blog post by Professor Bainbridge strangely familiar...

Points for New York

In another victory for Marriage equality advocates, a New York State Court has mandated that state marriage codes allow for gay marriages. The case, Hernandez v. Robles, thus joins Castle v. State (Washington, discussed here), Anderson v. Sims (also Washington, discussed here), and of course the famous Goodridge v. Department of Public Health (Massachusetts) case in favor of marriage equality. On the other side, we have Morrison v. Sadler (Indiana, discussed here), Wilson v. Ake (US District Court [Middle District of Florida], discussed here), and In re Kandu and Kandu (US Bankruptcy Court, discussed here). All have important things to say about the topic, and with the exception of Morrison I thought all were reasonably well-written and argued.

I was again pleased with the quality of this decision. It did a good job dismantling the purported reasoning behind the discriminatory principles of the current marriage code. In an ironic twist, the court noted that one of the plaintiffs parents were barred via anti-miscegenation were themselves barred from marrying in 1966. They moved to California, the first state to allow interracial marriage. Now, the circle has closed, with the son striking his own blow for marriage equality. And best of all, the decision added to the litany of analysis which proves that gay equality advocates actually show more respect for the institution of marriage than anyone else:
"As a society, we recognize that the decision of whether and whom to marry is life-transforming. It is a unique expression of a private bond and profound love between a couple, and a life dream shared by many in our culture. It is also society's most significant public proclamation of commitment to another person for life. With marriage comes not only legal and financial benefits, but also the supportive community of family and friends who witness and celebrate a couple's devotion to one another, at the time of their wedding, and through the anniversaries that follow. Simply put, marriage is viewed by society as the utmost expression of a couple’s commitment and love. Plaintiffs may now seek this ultimate expression through a civil marriage."

Though, as Orin Kerr points out, this decision will undoubtedly be stayed and latter resolved by the Court of Appeals in that state, it is still undoubtedly a positive sign. Good luck and many blessings to all the couples involved.

"Little Eichmanns," Meet Little Goebbel

I'm jumping in a little late here, but I just wanted to add two cents to Colorado Professor Ward Churchill--err, commentary?--on the 9/11 attacks. In the midst of a vicious attack on all things Western that attempts to justify the assault, he refers to the victims in the WTC as "little Eichmanns." He has already resigned as department chair, and the university is considering firing him. If they do take that action, Connelly promises to sue. Eugene Volokh has a superb summary of the events and what should result; I highly encourage you to consult it. I am inclined to agree with Volokh, Mr. Churchill should not be fired, but can certainly be removed from his chairmanship. Barring professional misconduct (which speech, repulsive as it may be, does not rise to), a tenured professor should not be removed simply because we disagree with his views.

The opinion I'm interested in hearing, however, is Richard Delgado's. For those of you who don't know, Delgado (along with his longtime collaborator, Jean Stefancic) is one of the founders of Critical Race Theory. More important for our purposes, he is a Law Professor at the University of Colorado, and he is the author of "Must We Defend the Nazis?: Hate Speech, Pornography, and the New First Amendment." Thus, unlike much of the traditional American left (e.g., the ACLUites and there ilk), Delgado is not uncomfortable with censoring someone for "hate speech." However, the question is whether or not the same rule will apply to speech coming from the radical left instead of the radical right. Michael W. McConnell has accused Post-Modernist scholars of hypocrisy in this regard:
"For the most part, with some exceptions, post-modernists in the legal and political arenas have treated the debunking of liberal neutrality as an opportunity for partisanship in the service of a controversial vision of liberation. As one academic commentator on post-modernism has observed:

"Many [post-modernists] are political activists and political advocates. They adopt positive political positions based on explicitly stated values and goals. They move from deconstruction and reconstruction to construction, despite the intellectual logical contradiction involved in denying modern foundations and then positing one's own vision as in some ways 'better.'"

Thus, while multi-culturalism and political correctness may seem to be logically incompatible positions, they often are found in the same people. The logical path seems to be as follows: If there is no objective standard of truth, there is no need to worry that opposing viewpoints might have something important to say; and since there is no basis for persuasion by the intrinsic merit of argument, all that is left is the exercise of power. So the post-modernist advocate pleads for openmindedness to various points of view (multi-culturalism) when out of power and suppresses dissent (political correctness) when in power.

This is the phenomenon of selective multi-culturalism: boundless tolerance and respect for some voices, and ruthless suppression of others." ["God is Dead and We Have Killed Him": Freedom of Religion in the Post-Modern Age, 1993 B.Y.U L. Rev. 163, 186-87

I'm not sure I'm that cynical about it. Delgado is a writer who has greatly influenced me (though I far from agree with everything he writes), and I certainly hope he would apply his standards to the left as well as the right.

Defending Detainees

My post on the In Re Guatanamo Bay Detainees decision has generated a spirited debate with Eben Flood in the comments section. I'll give an expanded defense for why I think it is right to give these detainees rights here, and respond to Eben's points along the way.

Eben's key argument is an analogy to the SS in WWII: should we have given each and everyone of them hearings? The example is apples and oranges, however. For the ones we tried for crimes, we DID give them lawyers and a trial (Nuremberg anyone?). But even that is too simple a way of looking at it, because as he noted, we caught them in a theater of war, bearing arms and wearing the uniform of a belligerent. There was no dispute that they were POWs on either side. For the gitmo detainees, that analogy is not parallel. We didn't capture all of them in a theater of war (some of the petitioners in the above case were caught as far away as in sub-saharan Africa and Southeast Europe), they weren't wearing uniforms, they might not have been armed, and there certainly isn't agreement that they were even belligerents at all.

This distinction is codified in international law. As I noted earlier, the relevant portion of the Geneva Conventions states:
"Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal." [Article 5, Paragraph 2, 3rd Geneva Convention, emphasis added]

With the SS officer, there is "no doubt," with the Gitmo detainees there is. That is critical.

Meanwhile, the assertion that we should treat enemy belligerents the same as how we want our own soldiers to be treated is rather odd from those seeking to justify Guantanamo, considering that we'd demand our soldiers receive the POW protection we're denying to the Gitmo detainees. Furthermore, if an enemy plucked an American citizen off the streets and accused him of being a spy (or combatant, or plotting an attack, or whatever), we'd at the very least demand they present some evidence to prove the assertion. This is the parallel of what we're doing to many of the Gitmo detainees, since they were picked up without any corroborating evidence to prove they were in any way a combatant. There is a threshold issue to pass here: before we can treat their combatants the way we want our combatants to be treated, we first must show they are actually combatants.

US law is clear on this as well. Eben argues that Reid only applies to US citizens, and he is right. However, I think it is self-evident that Reid + Plyer v. Doe = Al-Odah v. US. If a) the rights of US citizens are still applicable in any place under US jurisdiction and b) non-citizens at least share the same fundamental rights as citizens then c) non-citizens under US jurisdiction still possess fundamental rights. And what could be more fundamental than the freedom of person, freedom from arbitrary detention? If there is one right that might more important than all others, it is that the government can not throw you into prison without any explanation or hope for redress. That right dates back to the Magna Carta and is deeply embedded in American law.

I suppose one might argue that since al-Qaeda won't abide by any of the above rules, we are under no obligation to abide by them either. That's a very dangerous position to hold. The US, being a liberal democrat state, agrees to abide by certain standards. It has moral legitimacy because it will not utilize any tactic to achieve its ends. Just because al-Qaeda flies planes into our buildings does not mean we can do the same to them. Just because they deliberately target civilians in an attempt to shatter our morale does not mean we can do likewise. Morality often means fighting with one hand tied behind your back, but that disability also is why our fight is worth fighting in the first place. Terrorists need to be punished--and harshly. But as Stanford Law Professor Jenny Martinez argues, "Holding military commission trials that do not afford basic due process saying that the best way to deter street crime is by subjecting street criminals to kangaroo courts. The necessary deterrence ought to be provided by the ultimate punishment imposed, not by the process itself." I have no problem fighting terrorism. But let's make sure it's the terrorists we're actually fighting first. As the Court said in United States v. Robel: "It would indeed be ironic if, in the name of national defense, we would sanction the subversion of those liberties...which make the defense of the nation worthwhile." [389 U.S. 258, 264 (1967)]

Wednesday, February 02, 2005

State of the Union

I promised myself I wouldn't watch. I did anyway. And of course, it was a painful experience that made me want to scream. As usual, Wonkette gives a better summary than I ever could. However, since the blogosphere is all about redundancy, I'll give me thoughts anyway!

Bush clearly is a Superhuman. After promising to cut 150 vague, unspecified federal programs to pay for it, he then promised to a) spend more money on a variety of pet programs b) make his old tax cuts permanent c) give new tax cuts (you and I both know that's what it means to "simplify" the tax code to Republicans) and d) halve the deficit. It's for the children. Or some such BS. Speaking as one of the "next generation," I could do without this particular endowment of debt, thank you very much.

Bush hit new peaks of dishonesty when talking about his plan for Social Security privitization (or "private accounts," or "personal accounts," or whatever tagline we're on right now). First of all, he can't say it "will" earn more than the current plan. It might, but it might not. I was alive in 2001, I know markets can go down as well as up. Second, he implies that gradually implementing the plan will somehow make it cost less. Why this is so, I don't know. For starters, there is only so slowly you can implement a plan that only allows investment of 4% of payroll taxes. But beyond that, Bush's logic is internally inconsistent. If the Social Security problem is getting worse, not better, putting off the costs will just mean we take a greater income hit when the system is more desperately in need of funds. And considering our financial state, I don't know where we're expected to come up with the $1 trillion or so we need to pay for this, gradual or not. Why are we calling this a "solution," again? Bush also refers to a bunch of safeguards he'll have that will prevent people from getting soaked by Wall Street. I'd have to see the specifics to comment, but this sounds like rhetoric to me. I don't see how it's possible to both let people invest their own money (and say the government will "never touch it") and still manipulate those investments so they always come out as a profit. Oh, and speaking of not letting the government touch your Social Security money, well, considering that Bush blatantly raided the Trust Fund across his entire first term, it appears irony is alive and kicking after all.

Moving to Social Issues. I, like Wonkette, was pleased to note that Bush wishes to protect the "most vulnerable" by codifying discrimination against homosexuals into our constitution. I know that Bush is disingenious when it comes to protecting the weak, but its rare to actually see the contradiction unfold within a sentence of the original proposition. Kudos on that.

Lest I sound entirely negative, I did like Bush's words on immigration reform. Many of the specific microinitiatives sounded very good at first glance, in fact the expansion of Health Savings Accounts was the only one that raised an eyebrow. And his rhetoric on Foreign Policy remains appealing, even if I've long since lost hope that Bush will actually do any of the things he'll say he does. The problem with Bush really isn't in his words anymore (though there is that too!), but rather in the fact that his actions bear NO relation to the rhetoric. That makes it kind of hard to take these sorts of speeches seriously.

Ethically Unbalanced

Former Czech President Vaclav Havel rips into the EU for its ethically unconscionable decision to blacklist human rights and democracy activists from parties held at its embassies in Cuba (link: Volokh). It is one of the most poignant pieces I've read in a long while. Highlights:
"I can hardly think of a better way for the EU to dishonor the noble ideals of freedom, equality and human rights that the Union espouses -- indeed, principles that it reiterates in its constitutional agreement. To protect European corporations' profits from their Havana hotels, the Union will cease inviting open-minded people to EU embassies, and we will deduce who they are from the expression on the face of the dictator and his associates. It is hard to imagine a more shameful deal.

Cuba's dissidents will, of course, happily do without Western cocktail parties and polite conversation at receptions. This persecution will admittedly aggravate their difficult struggle, but they will naturally survive it. The question is whether the EU will survive it.

Today, the EU is dancing to Fidel Castro's tune. That means that tomorrow it could bid for contracts to build missile bases on the coast of the People's Republic of China. The following day it could allow its decisions on Chechnya to be dictated by Russian President Vladimir Putin's advisors. Then, for some unknown reason, it could make its assistance to Africa conditional on fraternal ties with the worst African dictators.

Where will it end? The release of Milosevic? Denying a visa to Russian human-rights activist Sergey Kovalyov? An apology to Saddam Hussein? The opening of peace talks with al Qaeda?

Coexistence with dictators

It is suicidal for the EU to draw on Europe's worst political traditions, the common denominator of which is the idea that evil must be appeased and that the best way to achieve peace is through indifference to the freedom of others.

Amen. The EU has a lot of balls (or more accurately, a tragic lacking in them) in making this proclamation, and Mr. Havel is right to call them out on it.

One good way for the EU to make amends is to make an effort to stop the atrocities in the Darfur region of Sudan. Strategy Page recommends they set up a no-fly zone to end Sudanese air strikes on defenseless African villages. This wouldn't require too much investment (bases could be set up in neighboring Chad), but it doesn't appear that the EU or UN has the willpower to see it out (surprise, surprise). As usual, when the choice is between political inaction and saving lives, we can depend on the world to take the path of least resistance (Hurray! They've filed a report!).

The National Review has argued that UN-recommended gun control standards are at least partially to blame for the genocide, since they prevented blacks from defending themselves against Janjaweed raids (Again, hat-tip to Volokh). Not getting into the general merits of gun control on the theory level, it is definitely true that gun control is only feasible when there is an alternative, professional, non-oppressive entity able to provide security. When none such group exists--or worse yet, the group nominally in charge of security is actively facilitating or participating in the atrocities--then gun control cannot work and acts to enable the oppressors. Since the UN is at least partially responsible for irresponsibly promligating gun control statutes to locations where they don't make sense, they have a corresponding obligation to correct their error where it has led to a genocide (as in Darfur). Will they? Of course not, because the UN never actually does anything.

Tuesday, February 01, 2005

Another Gitmo Ruling

In another major ruling on Guantanomo Bay, a US district court has ruled in In Re Guantanamo Detainee Cases (creative name!) that detainees, even those that are not being charged with war crimes, still have the right to challange their designation as "enemy combatants" in the Courts. The district judge (who, interestingly, served as Chief Judge on the FISA Court) specifically held that the Combat Status Review Tribunals (CSRT) were not adequate in securing the rights of detainees.

The Court gives an example of testimony by one of the detainees (not one in the case) that aptly illustrates the bind that the prisoners are put in. It's too long to type in manually (the opinion was scanned, so I can't copy and paste), but you can find it at pages 46-48. Essentially, the government was asking the detainee if he knew any al-Qaeda, and he said he didn't think so, but he'd be happy to tell of his relationship with any specific person the Court had in mind. The Court refused to name any names, at which point the detainee asked how he could refute charges when he couldn't even see the point of reference from which the charges were being made.

The opinion also specifically blasts the lack of attorney's to represent the detainees. They get a "Personal Representative," but s/he isn't a lawyer and is obliged to reveal any inculpatory evidence he hears to the tribunal. As a result, "there is inherent risk and little corresponding benefit should the detainee choose to use the services of the personal representative." Furthermore, the proceedings allow evidence contained by way of torture to be admitted, another area in which the Court found fault. Finally, the Court blasted the Bush administration for its overly broad definition of "enemy combatant," which the government admitted could be applied to a person who taught English to the child of an al-Qaeda member.

I'll conclude with a particularly compelling passage from Reid v. Covert, cited by the Court.
At the beginning we reject the idea that when the United States acts against citizens abroad it can do so free of the Bill of Rights. The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution. When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land. This is not a novel concept. To the contrary, it is as old as government.

Monday, January 31, 2005

A Journey of a Thousand Miles...

A heartfelt congratulations to the nation of Iraq for holding an election that, by virtually all accounts, appears to have been a resounding success (Daniel Drezner does a good job summing up preliminary coverage). It is quite obvious that this is a major victory against the insurgency, and all those who want to see a stable, and successful Iraq should applaud it.

However, our job is nowhere near done. The most important aspect of a democracy is not the first election, but the second, because that will show if government's will voluntarily cede power. Spencer Ackerman notes that "we've already seen a day of tremendous possibility, high Iraqi expectations, and hope that finally the accumulated wounds of 30 years of tyranny were ready for healing. It came on June 28 with the transfer of sovereignty, and by the next month it was squandered." There is a lot of potential behind these elections, but with expectations so high there is a lot of room to fall as well. And of course, assuming that the UIA wins the election (either outright or via coalition), we still have to deal with the Sistani/Sadr brawl which looks like it might be developing.

All of this notwithstanding, this was a historic day. We should all congratulate the Iraqi people on conducting what appears to have been a free, fair, and relatively violence-free voting process. May their democratic future be bright.