To be a crook who can fire the cops. Republican Rep. Jerry Lewis, chairman of the House Appropriations Committee, is under investigation for corruption (a Republican congressman? Corrupt? Shocking!). Lewis has spent over $800,000 in legal fees defending himself. That apparently wasn't enough for him, so he used his committee position to fire the investigators on his case. The committee got rid of 60 of its 76 investigators, some of whom were rooting out fraud, waste, and abuse (by Lewis and others), some of who were on other projects, like Katrina aid abuse. Now they're gone.
Crooked GOPers just keep on one-upping each other. It'd be impressive if it wasn't so depressing.
Friday, October 20, 2006
How Israel Does It
A couple items on the agenda. First, Martin Peretz points us to a stellar editorial by Harvard Law Professors Gabriella Blum and Martha Minow. Like Peretz, I am unfamiliar with Blum, but know (of) Minow. Her book, "Making All The Difference: Inclusion, Exclusion, and American Law" ranks as one of my all time favorites, and her work on genocide and post-conflict resolution issues has been superb. All and all, she is a cutting-edge liberal legal theorist and someone with mucho credibility.
Anyway, Blum and Minow call the US out on our appalling detainee treatment bill by referring us to the example of...Israel, which is a) under a significantly higher risk of attack and b) has far, far more human rights protections for its detainees than we do. If they can abide by basic norms of procedural protections, why can't we? Blum and Minow elaborate on the Israeli policy:
The rules are slightly different for Palestinians held from the West Bank, but they too are (to quote Peretz now) "either tried by criminal courts or detained by administration detention. In either case, these prisoners' detention is reviewed every three or six months, also with a right of appeal to a Supreme Court justice."
One can argue that this isn't ideal, but it surely represents a better way of handling this situation than the Bush administration "screw rights, we talking about terrorism!" approach. Israel is in a far more precarious state than we are, and yet it managed to pass a detainee treatment law liberals here can only dream of. When it comes to detainee treatment, the left would do well to push America to emulate the Israeli model.
Second, the US is pushing Israel to relax restrictions on Arab-Americans visiting the Palestinian territories. Which is good--I am not a fan of these increased restrictions, which don't seem to be justified by whatever marginal security benefits might flow from it. The bad part is how we're phrasing the request:
I see. How dare they treat these law abiding Americans as if they were Arab? The horror! The shame! No wonder Israel doesn't give them any rights. If they only knew this people were Americans this whole mess could have been avoided.
I humbly submit that all persons, regardless of race or background, should be treated like first-class citizens no matter where they live. Insofar as these restrictions are justified, they are justified applying to all persons traveling to the Palestinian territories, regardless of background (which is why blanket, race-based prohibitions are not justifiable). Certainly, there are good reasons why Israel might want to restrict some people (primarily but not exclusively Arab) from traveling to the Palestinian territories. There are plenty more people who do not fall within those "good reasons", and they should be given the chance to travel, American or not.
Finally, a New Republic article lays the groundwork for a possible emerging Saudi-Israel alliance. I've actually heard whispers in this direction myself--much of it stemming out of the surprisingly pro-Israel response that come out of the Arab nation during the start of the most recent Israel/Lebanon conflict. The article claims that a full-blown public bond is still far-fetched (but, then, it was for Israel and Egypt as well). However, both Israel and Saudi Arabia share a fear of growing Iranian hegemony, as well as a fair amount of other regional interests in common. Saudi Arabia seems ready to revive talks on their stalled 2002 peace plan, and Israel has become more vocal in its openness to talks with the country.
All of which is to say, very little concrete has manifested itself...yet. But the pieces are moving into position, and this could revolutionize Middle East politics as we've known it.
Anyway, Blum and Minow call the US out on our appalling detainee treatment bill by referring us to the example of...Israel, which is a) under a significantly higher risk of attack and b) has far, far more human rights protections for its detainees than we do. If they can abide by basic norms of procedural protections, why can't we? Blum and Minow elaborate on the Israeli policy:
Unlike the US bill , the Israeli law provides for a first hearing of the detainee before a high-ranking officer immediately upon his detention; a detainee has a right to legal representation; a first judicial review of the detention warrant has to take place in a district court no longer than 14 days after the first arrest, and every six months thereafter; and the detainee can appeal his detention before a Supreme Court judge. The court must revoke the detention order if it finds that the release of the detainee would not threaten national security or if there are other special reasons that justify it.
Regulations promulgated under the law stipulate conditions for detention. These include provisions on medical treatment, clothing, food (including the right to purchase items in a canteen), outdoor exercises, religious practices, correspondence with the outside world, and even cigarettes. Unlike the US bill, in Israel, the detainee also has a right to meet with representatives of the International Committee of the Red Cross. The chief of general staff can permit other visitors, such as family members.
The rules are slightly different for Palestinians held from the West Bank, but they too are (to quote Peretz now) "either tried by criminal courts or detained by administration detention. In either case, these prisoners' detention is reviewed every three or six months, also with a right of appeal to a Supreme Court justice."
One can argue that this isn't ideal, but it surely represents a better way of handling this situation than the Bush administration "screw rights, we talking about terrorism!" approach. Israel is in a far more precarious state than we are, and yet it managed to pass a detainee treatment law liberals here can only dream of. When it comes to detainee treatment, the left would do well to push America to emulate the Israeli model.
Second, the US is pushing Israel to relax restrictions on Arab-Americans visiting the Palestinian territories. Which is good--I am not a fan of these increased restrictions, which don't seem to be justified by whatever marginal security benefits might flow from it. The bad part is how we're phrasing the request:
"They are being treated as Arabs and not Americans," one senior official said. "They basically treat them as second-class citizens."
I see. How dare they treat these law abiding Americans as if they were Arab? The horror! The shame! No wonder Israel doesn't give them any rights. If they only knew this people were Americans this whole mess could have been avoided.
I humbly submit that all persons, regardless of race or background, should be treated like first-class citizens no matter where they live. Insofar as these restrictions are justified, they are justified applying to all persons traveling to the Palestinian territories, regardless of background (which is why blanket, race-based prohibitions are not justifiable). Certainly, there are good reasons why Israel might want to restrict some people (primarily but not exclusively Arab) from traveling to the Palestinian territories. There are plenty more people who do not fall within those "good reasons", and they should be given the chance to travel, American or not.
Finally, a New Republic article lays the groundwork for a possible emerging Saudi-Israel alliance. I've actually heard whispers in this direction myself--much of it stemming out of the surprisingly pro-Israel response that come out of the Arab nation during the start of the most recent Israel/Lebanon conflict. The article claims that a full-blown public bond is still far-fetched (but, then, it was for Israel and Egypt as well). However, both Israel and Saudi Arabia share a fear of growing Iranian hegemony, as well as a fair amount of other regional interests in common. Saudi Arabia seems ready to revive talks on their stalled 2002 peace plan, and Israel has become more vocal in its openness to talks with the country.
All of which is to say, very little concrete has manifested itself...yet. But the pieces are moving into position, and this could revolutionize Middle East politics as we've known it.
Wednesday, October 18, 2006
Brick Wall
I never thought I'd say, but kudos to Bill O'Reilly. He questioned Bush quite aggressively about waterboarding, and didn't back down. Andrew Sullivan has the excerpt.
His superb efforts notwithstanding, O'Reilly did not get any actual information out of the obfuscator-in-chief. Bush almost comically defiant in answering O'Reilly's questions.
Re-read the answer to that last question. Question: How can the public judge your policy if you refuse to tell us what your policy is? Answer: "You can rest assured" we won't tell you the policy!
Gosh, I'll rest easy! That's not an answer, that's Bush telling me he won't answer and I better like it, dammit! I suppose I should thank him for the privilege that he deigned to tell me that much.
Of course, substantively, Sullivan notes that any terror suspect who hasn't figured out that waterboarding is a possibility is a moron. So Bush's refusal to say exactly what policies he is implementing "to make America safer" isn't because it's a security risk. It's because Bush has a pathological fear of oversight. And given some of the abuses that haoccurredred and have been endorsed under his watch, I'd say he has good reason to fear.
His superb efforts notwithstanding, O'Reilly did not get any actual information out of the obfuscator-in-chief. Bush almost comically defiant in answering O'Reilly's questions.
O'REILLY: Now Brian Ross of ABC said — reported the CIA water boarded Mohammed. That is dunked him in water, tied him down and then that broke him. Is that true?
BUSH: We don't talk about techniques. And the reason we don't talk about techniques is because we don't want the enemy to be able to adjust. We're in a war.
O'REILLY: Is water boarding torture?
BUSH: I don't want to talk about techniques. And — but I do share the American people that we were within the law. And we don't torture. We — I've said all along to the American people we won't torture, but we need to be in a position where we can interrogate these people.
O'REILLY: But if the public doesn't know what torture is or is not, as defined by the Bush administration, how can the public make a decision on whether your policy is right or wrong?
BUSH: Well, one thing is that you can rest assured we're not going to talk about the techniques we use in a public forum. No matter how hard you try because I don't want the enemy to be able to adjust their tactics if we capture them on the battlefield.
Re-read the answer to that last question. Question: How can the public judge your policy if you refuse to tell us what your policy is? Answer: "You can rest assured" we won't tell you the policy!
Gosh, I'll rest easy! That's not an answer, that's Bush telling me he won't answer and I better like it, dammit! I suppose I should thank him for the privilege that he deigned to tell me that much.
Of course, substantively, Sullivan notes that any terror suspect who hasn't figured out that waterboarding is a possibility is a moron. So Bush's refusal to say exactly what policies he is implementing "to make America safer" isn't because it's a security risk. It's because Bush has a pathological fear of oversight. And given some of the abuses that haoccurredred and have been endorsed under his watch, I'd say he has good reason to fear.
Fighting Terrorists and Dark Wizards
I know I'm not the first blogger to link to Rick Santorum's rather ludicrous "Eye of Mordor" article. I love The Lord of the Rings as much as anyone, but I'm not sure I want to create foreign policy around it. But anyway, that isn't the point. I just want to express my amazement at a particular argument I've heard made that I think has serious moral problems. Rick isn't the only one whose made it by any means, but he certainly framed it more colorfully than most:
Generally, the more sober version of the argument is the classic "better to fight terrorists in Iraq rather than here at home." (Or as a classic Doonesbury had an Iraq-deployed soldier question Bush "You really think Iraqi troops are poised to invade Yankton, South Dakota....I mean, yes, better here than in Yankton, sir!"). The problem with this line of reasoning, from a moral perspective, is it basically justifies plunging any random country into chaos and destruction so they have to bear the brunt of al-Qaeda's assualt instead of us. It effectively uses Iraqi civilians as human shields in our conflict with terrorism. If the terrorists who would have been attacking America are now attacking Iraq, then the counterfactual is that if we weren't in Iraq, the terrorists wouldn't be attacking Iraqi civilians either (because they'd be fighting us here). Now, like Garry Trudeau's soldier, I'm skeptical that Salafist radicals were poised to attack Yankton. But, under this line of argument, the reason we should be celebrating the Iraq war is because it's worthless Iraqis who are dying, not precious America lives. That's wrong morally, and utterly demolishes any claim these advocates have that we truly care about the prosperity and well-being of the Iraqi people.
"As the hobbits are going up Mount Doom, the Eye of Mordor is being drawn somewhere else," Santorum said, describing the tool the evil Lord Sauron used in search of the magical ring that would consolidate his power over Middle-earth.
"It's being drawn to Iraq and it's not being drawn to the U.S.," Santorum continued. "You know what? I want to keep it on Iraq. I don't want the Eye to come back here to the United States."
Generally, the more sober version of the argument is the classic "better to fight terrorists in Iraq rather than here at home." (Or as a classic Doonesbury had an Iraq-deployed soldier question Bush "You really think Iraqi troops are poised to invade Yankton, South Dakota....I mean, yes, better here than in Yankton, sir!"). The problem with this line of reasoning, from a moral perspective, is it basically justifies plunging any random country into chaos and destruction so they have to bear the brunt of al-Qaeda's assualt instead of us. It effectively uses Iraqi civilians as human shields in our conflict with terrorism. If the terrorists who would have been attacking America are now attacking Iraq, then the counterfactual is that if we weren't in Iraq, the terrorists wouldn't be attacking Iraqi civilians either (because they'd be fighting us here). Now, like Garry Trudeau's soldier, I'm skeptical that Salafist radicals were poised to attack Yankton. But, under this line of argument, the reason we should be celebrating the Iraq war is because it's worthless Iraqis who are dying, not precious America lives. That's wrong morally, and utterly demolishes any claim these advocates have that we truly care about the prosperity and well-being of the Iraqi people.
Tuesday, October 17, 2006
Interfaith Exchange
Well this is just precious:
There's something deliciously ironic about arresting someone for preaching tolerance. All I can say is, hopefully Keith Ellison fares better.
A Muslim journalist facing charges of sedition for advocating ties with Israel was recently attacked and beaten by a crowd in Bangladesh that allegedly included leading officials of the country's ruling party, The Jerusalem Post has learned.
Salah Uddin Shoaib Choudhury, editor of the Weekly Blitz newspaper, an English-language publication based in the Bangladeshi capital of Dhaka, was working in his office on October 5 when nearly 40 people stormed the premises.
[...]
No arrests were made, and police refused to allow Choudhury to file charges against his attackers.
As the Post first reported last month, Bangladesh is moving forward with plans to try Choudhury on charges of blasphemy, sedition, treason and espionage in connection with his articles critical of Islamic extremism and favorable to Israel.
After several delays, his trial is due to start in Dhaka on Thursday. If convicted, Choudhury faces the death penalty.
The charges stem from November 2003, when Choudhury was arrested at Dhaka's International Airport as he was preparing to board a flight on his way to Israel, where he was due to deliver a speech on promoting mutual understanding between Muslims and Jews.
There's something deliciously ironic about arresting someone for preaching tolerance. All I can say is, hopefully Keith Ellison fares better.
Monday, October 16, 2006
Keith Ellison To Visit Israel
Keith Ellison, who, if (as is expected) elected, would become the first Muslim representative in Congress, has announced he will visit Israel immediately upon election, Shmuel Rosner reports in the prestigious Israeli paper Ha'Aretz. Ellison, who is running in a Minneapolis-based district, has received the endorsement of local Jewish groups, but has been plagued by allegations of anti-Semitism and links to the the Nation of Islam (Powerline has been pushing this line rather hard). The trip to Israel can be seen as an effort to show Jewish voters he's not antagonistic to his interest. I took with particular note his rhetoric on the current status of the Israeli/Palestinian conflict:
That's strong (and sensible) language, and it sounds legitimate to me. Rosner notes that a Muslim congressman giving support to Israel is important--worth the trade-off even if he votes with Israel 70% of the time as opposed to 100% for an AIPAC peon. Of course, that depends on what the particular votes are (in both directions: blind support for Israeli policies--or more accurately, AIPAC's conception of Israeli interests--benefits nobody, including the Jewish community). But in general, I think it is important to build these bridges, and I hope soon-to-be Rep. Ellison can serve in that role. Certainly, his issues page on the subject is all I could ask for and more.
In a somewhat related note, Israeli PM Ehud Olmert called for peace talks with Lebanon and a face to face meeting with Lebanese Prime Minister Fuad Saniora, who rejected the proposal within hours. Saniora proclaimed that Lebanon would be the "last Arab state" to make peace with Israel. But assuredly, they can be trusted to disarm Hezbollah.
"The template set forth by the roadmap for peace currently provides the best outline for achieving a two-state solution to bringing about a lasting settlement. Right now Hamas represents the greatest obstacle to this path, and until Hamas denounces terrorism, recognizes the absolute right of Israel to exist peacefully and honors past agreements, it cannot be considered legitimate partners in this process."
That's strong (and sensible) language, and it sounds legitimate to me. Rosner notes that a Muslim congressman giving support to Israel is important--worth the trade-off even if he votes with Israel 70% of the time as opposed to 100% for an AIPAC peon. Of course, that depends on what the particular votes are (in both directions: blind support for Israeli policies--or more accurately, AIPAC's conception of Israeli interests--benefits nobody, including the Jewish community). But in general, I think it is important to build these bridges, and I hope soon-to-be Rep. Ellison can serve in that role. Certainly, his issues page on the subject is all I could ask for and more.
In a somewhat related note, Israeli PM Ehud Olmert called for peace talks with Lebanon and a face to face meeting with Lebanese Prime Minister Fuad Saniora, who rejected the proposal within hours. Saniora proclaimed that Lebanon would be the "last Arab state" to make peace with Israel. But assuredly, they can be trusted to disarm Hezbollah.
Schlesinger Takes The Hard Line
The three-way Connecticut Senate debate between Ned Lamont, Joe Lieberman, and Alan Schlesigner just went off. Apparently the line is that Schlesigner was surprisingly strong. But I just wanted to focus on the "hard-line" approach he took on immigration:
A better life for themselves? For shame! We must stop them at once!
Kos says this rhetoric might result in Schlesigner peeling away enough White blue-collar voters from Lieberman to give Lamont the victory. I shudder to think that criticizing the desire for a better life suddenly became a winning political tactic.
"Alan Schlesigner is the only one on this stage who has a tough policy. I want to build the walls. I want to make sure there is no road to residency. I am the son of a legal immigrant. There are people today who attempted to come here as legal immigrants and died. Now we've got people flooding into this nation for no other reason than they want a better life for themselves...."
A better life for themselves? For shame! We must stop them at once!
Kos says this rhetoric might result in Schlesigner peeling away enough White blue-collar voters from Lieberman to give Lamont the victory. I shudder to think that criticizing the desire for a better life suddenly became a winning political tactic.
Classic Homophobia
University of Minnesota Law Professor Dale Carpenter helps illustrate how the conservative response to the Mark Foley scandal falls into classic homophobic patterns that have been used to discriminate against homosexuals for generations. He cites Yale Law Professor William Eskridge as arguing that
And goes on to show how the Republican response to Foley illustrates all three; hysteria by trying to transport Foley's problem onto the gay community as a whole, obsession by conjuring an uber-powerful "Velvet Mafia" that tied the hands of the GOP leadership and protected Foley from punishment, and narcissism by arguing to themselves that the only way to check future Foleys is to reinforce their radical right, anti-gay agenda.
It's good stuff. H/T: VC
anti-gay prejudice has been marked historically by three characteristics. These are: (1) "hysterical demonization of gay people as dirty sexualized subhumans"; (2) "obsessional fears of gay people as conspiratorial and sexually predatory"; and (3) "narcissistic desires to reinforce stable heterosexual identity . . . by bashing gay people." The primary historical traits of homophobia are thus hysteria, obsession, and narcissism.
And goes on to show how the Republican response to Foley illustrates all three; hysteria by trying to transport Foley's problem onto the gay community as a whole, obsession by conjuring an uber-powerful "Velvet Mafia" that tied the hands of the GOP leadership and protected Foley from punishment, and narcissism by arguing to themselves that the only way to check future Foleys is to reinforce their radical right, anti-gay agenda.
It's good stuff. H/T: VC
Friday, October 13, 2006
Class Application
Some of my veteran readers may remember my posting on Fisher v. Lowe, a 13 line Michigan court decision distinguished only by the fact that it is presented in rhyming couplets. It's funny in of itself, but I never thought it would have any real significance, classroom or otherwise.
But alas, today I was proven wrong, as my Political Science professor used Fisher to press on the issue of what makes something recognizably a judicial opinion (drawing from Stanley Fish, Working on the Chain Gang: Interpretation in Law and Literature, 60 Tex. L. Rev. 551 (1982)). Because while Fisher is certainly not a classic opinion, most people, upon reading it, would recognize it as one--especially if they saw it in a legalistic context (e.g., a reporter). But of course, not everything a judge writes would be so recognized--if a judge sent West a copy of his grocery list and said "report this", there would probably be some push back.
So what about it? What makes an opinion recognizably judicial?
But alas, today I was proven wrong, as my Political Science professor used Fisher to press on the issue of what makes something recognizably a judicial opinion (drawing from Stanley Fish, Working on the Chain Gang: Interpretation in Law and Literature, 60 Tex. L. Rev. 551 (1982)). Because while Fisher is certainly not a classic opinion, most people, upon reading it, would recognize it as one--especially if they saw it in a legalistic context (e.g., a reporter). But of course, not everything a judge writes would be so recognized--if a judge sent West a copy of his grocery list and said "report this", there would probably be some push back.
So what about it? What makes an opinion recognizably judicial?
Thursday, October 12, 2006
So Very Very Tired
This week has been brutal, and things don't look to clear up until at least the weekend. And right now I got a booming headache for no discernable reason. So that's why posting has been so sporadic. Sorry guys.
The Cynic In Me
"Do not commit the error, common among the young, of assuming that if you cannot save the whole of mankind you have failed." --Jan de Hartog
Blog emperor Jim Chen (no offense, Paul Caron!) has revealed that he regrets his decision to go to law school. Over at Joint Strike Weasel, law student Ivan Ludmer explains why he does not want to become a legal academic, contrasting himself to little ol' me, for whom it is the "dream" job. Dissatisfaction in the ranks? Maybe I should re-evaluate.
So why do I want to become a law professor? Well, just in terms of tangible concerns, it's a pretty sweet gig. Good benefits, solid pay, interesting work, and "time off" in the summer. Yes, I know that this "time off" isn't actually just downtime, but that's just it: I actually enjoy this stuff. It isn't "work" in the sense that pushing papers or filling in data sets is.
But generally, there is another context in which I end a statement with "that's why I want to become a professor." It stems from pure and total disillusionment. One of Ivan's objections to the noble professoriate is that the vast majority of the scholarship is both unread tripe. And even if it is read, it isn't being read by the right people. I think he might be slightly overstating the case, but I'll concede the general point. Insofar as I still hang on to my "save-the-world" mentality, a professor is in a surprisingly bad position to do it. However, I'm sufficiently disenchanted with the world such that I don't think I'll be able to save it (or that it is savable) from any positon I choose to take.
Hence we get our phrase. "That's why I want to a professor. I want to sit back and hurl rocks at the establishment from my Ivory Tower." The ideal, of course, is that one of them might bludgeon a stray politician on the way down, and he, upon waking up, might pull a Paul of Tarsus and see the light. That's the dream. And just in case I hit that lottery, I want to be in a position so that my rocks actually contain good ideas. Put differently, if I became, say, a lobbyist, the odds that I'd have an impact on the world would be significantly higher than the odds as a professor, but the odds that the impact would be good would be quite a bit lower. I'd rather fail at doing good, than succeed at doing evil (or to be more charitable, succeed while remaining acquiescent in the big injustices).
But at the end of the day, my desire to become a professor isn't really dependent on even that tiny beacon of hope that I might not only have the freedom to create The Idea That Saves Humanity, but implement it as well. I don't believe it will happen. I just want to be left alone. You can continue to make dumb arguments, and oppress gay people, and wonder just how excruciating the pain has to be before torture becomes torture. Just let me have my little slice of tenure, and stay off my turf.
One can certainly chide me on this regard. It's a cheap way out to assert that, just because the world doesn't behave exactly as you like it, the solution is to retreat into a few isolated fortresses of intellegensia and barcade yourself from external hate and misery. Hit the trenches, man! Charles Fried once admonished: "As so often happens, the skeptic here is a disappointed absolutist, taking his revenge on the world for depriving him of all the right answers at once." Maybe so. But when the world continually answers wrong on the simple yes/no question, "it's okay to tolerate genocide", I feel some degree of cynicism is justified. I'd turn the question around: If I'm not the only academic-prone person who feels this way (and I know I'm not), what is causing this ailment? What is it that is causing despair to win out over hope?
The cynic, as I once read, is rarely someone who doesn't care but someone who cares too much. And while the post comes on a downswing, I do vacilate between focusing on the possibility that the world could come to its senses on the issue of, say, genocide (yay!) versus the reality that it hasn't (boo!). Even so, and even though I may be a particularly bad case, I do think that this sort of disenchantment is setting in earlier than normal on my generation. And I think we have to ask ourselves why.
Blog emperor Jim Chen (no offense, Paul Caron!) has revealed that he regrets his decision to go to law school. Over at Joint Strike Weasel, law student Ivan Ludmer explains why he does not want to become a legal academic, contrasting himself to little ol' me, for whom it is the "dream" job. Dissatisfaction in the ranks? Maybe I should re-evaluate.
So why do I want to become a law professor? Well, just in terms of tangible concerns, it's a pretty sweet gig. Good benefits, solid pay, interesting work, and "time off" in the summer. Yes, I know that this "time off" isn't actually just downtime, but that's just it: I actually enjoy this stuff. It isn't "work" in the sense that pushing papers or filling in data sets is.
But generally, there is another context in which I end a statement with "that's why I want to become a professor." It stems from pure and total disillusionment. One of Ivan's objections to the noble professoriate is that the vast majority of the scholarship is both unread tripe. And even if it is read, it isn't being read by the right people. I think he might be slightly overstating the case, but I'll concede the general point. Insofar as I still hang on to my "save-the-world" mentality, a professor is in a surprisingly bad position to do it. However, I'm sufficiently disenchanted with the world such that I don't think I'll be able to save it (or that it is savable) from any positon I choose to take.
Hence we get our phrase. "That's why I want to a professor. I want to sit back and hurl rocks at the establishment from my Ivory Tower." The ideal, of course, is that one of them might bludgeon a stray politician on the way down, and he, upon waking up, might pull a Paul of Tarsus and see the light. That's the dream. And just in case I hit that lottery, I want to be in a position so that my rocks actually contain good ideas. Put differently, if I became, say, a lobbyist, the odds that I'd have an impact on the world would be significantly higher than the odds as a professor, but the odds that the impact would be good would be quite a bit lower. I'd rather fail at doing good, than succeed at doing evil (or to be more charitable, succeed while remaining acquiescent in the big injustices).
But at the end of the day, my desire to become a professor isn't really dependent on even that tiny beacon of hope that I might not only have the freedom to create The Idea That Saves Humanity, but implement it as well. I don't believe it will happen. I just want to be left alone. You can continue to make dumb arguments, and oppress gay people, and wonder just how excruciating the pain has to be before torture becomes torture. Just let me have my little slice of tenure, and stay off my turf.
One can certainly chide me on this regard. It's a cheap way out to assert that, just because the world doesn't behave exactly as you like it, the solution is to retreat into a few isolated fortresses of intellegensia and barcade yourself from external hate and misery. Hit the trenches, man! Charles Fried once admonished: "As so often happens, the skeptic here is a disappointed absolutist, taking his revenge on the world for depriving him of all the right answers at once." Maybe so. But when the world continually answers wrong on the simple yes/no question, "it's okay to tolerate genocide", I feel some degree of cynicism is justified. I'd turn the question around: If I'm not the only academic-prone person who feels this way (and I know I'm not), what is causing this ailment? What is it that is causing despair to win out over hope?
The cynic, as I once read, is rarely someone who doesn't care but someone who cares too much. And while the post comes on a downswing, I do vacilate between focusing on the possibility that the world could come to its senses on the issue of, say, genocide (yay!) versus the reality that it hasn't (boo!). Even so, and even though I may be a particularly bad case, I do think that this sort of disenchantment is setting in earlier than normal on my generation. And I think we have to ask ourselves why.
Wednesday, October 11, 2006
Homosexuality versus Pedophilia
Mark E. Pietrzyk has a quite fascinating article on the alleged link between homosexuality and pedophilia. He examines the question on two axes: The scientific data as to whether homosexuals are more likely to be pedophiles, and the analytic argument as to whether liberal views on sexuality are breaking down the "traditional" norms present in the Judeo-Christian ethos which serve as the primary barrier to adult-child sexual relations. In both cases, he finds that the Christian right has completely abused the statistics and the history to suit its agenda. The scientific data proves the exact opposite of their point, and the history of both Medieval Judaism and Medieval Christianity show a shocking acquiesence to pedophilia, especially regarding the sexual betrothment of pre-pubescent girls. In fact, he argues, the modern taboo against child sexual relations has only recently (past two centuries) begun to solidify, and reflects the enlightenment liberal tradition which places particular emphasis on the ability of children to consent (as well as more modern liberal norms about the automatic power imbalance between adults and children in a relationship, and the physical and psychological harms such relationships can cause).
A brief snippet of the scientific section, because I think that point is really important:
The religion part of Pietrzyk's article is eye-opening. The science section is just a classic smackdown. The entire thing is worth reading.
H/T: Andrew Sullivan
A brief snippet of the scientific section, because I think that point is really important:
A. Nicholas Groth is a pioneer in the scientific study of sexual offenders against women and children, who has treated over 3000 child molesters over the course of two decades. A former director of the Sex Offender Program at the Connecticut Department of Corrections, Groth is the author of Men Who Rape: Psychology of the Offender, a work widely regarded as a classic textbook on the psychology of sexual violence. In his work, Groth has found that approximately one‑third of all cases of child molestation involve an underage boy and an adult male, a statistic which has been used incessantly by certain conservative activist groups in an effort to prove that homosexuals are disproportionately responsible for acts of child molestation. However, Groth explicitly states that it is a myth that men who molest boys are homosexual.
According to Groth, child molesters can be divided into two types: "fixated" and "regressed." The fixated offender is attracted primarily to children and has little or no interest in adult relationships; such a person is known in clinical terms as a "pedophile." The regressed offender is interested in and capable of adult sexual relationships; however, this person may on occasion regress to sexual encounters with children, often as a result of difficulties and frustration in his adult relationships.
Groth writes that the fixated offender, or pedophile, tends to select boys more often than girls, but for reasons having nothing to do with homosexuality:In general, fixated child molesters are drawn to children sexually in that they identify with the child and appear in some ways to want to remain children themselves. It is for this reason that the trend for fixated offenders is to target boys as victims. . . . They see the boy as a projected representation of themselves. They feel themselves to be more child than adult – more boys than men – and therefore find themselves more comfortable (especially sexually) in the company of children. . . .
Groth stresses that "these same individuals are uninterested in adult homosexual relationships. In fact, they frequently express a strong sexual aversion to adult males, reporting that what they find attractive about the immature boy are his feminine features and the absence of secondary sexual characteristics such as body hair and muscles." The second type of offender, the regressed offender, is predominantly heterosexual. However, he may temporarily turn to boys or girls as a result of complications in his adult relations. Although regressed offenders are more likely to choose girls than boys as victims, writes Groth, what attracts the regressed male offender to boys are the feminine characteristics of pre‑ pubescents. Groth found no cases of boy molestation in which the offender had an adult homosexual orientation. Concludes Groth,Homosexuality and homosexual pedophilia are not synonymous. In fact, it may be that these two orientations are mutually exclusive, the reason being that the homosexual male is sexually attracted to masculine qualities whereas the heterosexual male is sexually attracted to feminine characteristics, and the sexually immature child’s qualities are more feminine than masculine. . . . The child offender who is attracted to and engaged in adult sexual relationships is heterosexual. It appears, therefore, that the adult heterosexual male constitutes a greater sexual risk to underage children than does the adult homosexual male.
The religion part of Pietrzyk's article is eye-opening. The science section is just a classic smackdown. The entire thing is worth reading.
H/T: Andrew Sullivan
Monday, October 09, 2006
Midget Insurgents and Other Tales
Via Kevin Drum, Time Magazine printed a letter from a Marine officer stationed in Iraq, kind of a High School year book "best..." "most..." "coolest..." "worst..." type of thing. There's plenty of depressing news in it, I'll spare you the details. Instead, I'll just pick out the funniest stories.
Oh, by the way, the Marine has been IDed. He's Col. Pete Devlin, Chief of Intelligence for the Marine Corps, and the author of the report claiming that we have lost the Anbar province. Interesting.
Most Surreal Moment -- Watching Marines arrive at my detention facility and unload a truck load of flex-cuffed midgets. 26 to be exact. We had put the word out earlier in the day to the Marines in Fallujah that we were looking for Bad Guy X, who was described as a midget. Little did I know that Fallujah was home to a small community of midgets, who banded together for support since they were considered as social outcasts. The Marines were anxious to get back to the midget colony to bring in the rest of the midget suspects, but I called off the search, figuring Bad Guy X was long gone on his short legs after seeing his companions rounded up by the giant infidels.
[...]
Coolest Insurgent Act -- Stealing almost $7 million from the main bank in Ramadi in broad daylight, then, upon exiting, waving to the Marines in the combat outpost right next to the bank, who had no clue of what was going on. The Marines waved back. Too cool.
[...]
Best Chuck Norris Moment -- 13 May. Bad Guys arrived at the government center in a small town to kidnap the mayor, since they have a problem with any form of government that does not include regular beheadings and women wearing burqahs. There were seven of them. As they brought the mayor out to put him in a pick-up truck to take him off to be beheaded (on video, as usual), one of the Bad Guys put down his machinegun so that he could tie the mayor's hands. The mayor took the opportunity to pick up the machinegun and drill five of the Bad Guys. The other two ran away. One of the dead Bad Guys was on our top twenty wanted list. Like they say, you can't fight City Hall.
Oh, by the way, the Marine has been IDed. He's Col. Pete Devlin, Chief of Intelligence for the Marine Corps, and the author of the report claiming that we have lost the Anbar province. Interesting.
Sunday, October 08, 2006
Swift-Boated
Navy Lt. Commander Charles Swift, military attorney for Salim Hamdan (e.g., the plaintiff in the landmark case of Hamdan v. Rumsfeld), is out of the Navy (involuntarily) after being denied a promotion to full Commander. The Navy has an "up-or-out" system whereby persons not promoted to Commander are then retired from the Navy. Swift received word he would not be promoted two weeks after defeating the Bush administration in front of the Supreme Court as to the subject of whether the President could unilaterally deprive Hamdan and other detainees of due process rights and the right to a trial in front of a regularly constituted courts (rather than the mutant abominations of justice we call military tribunals). The Seattle Times illuminates just how unjust this decision is:
"Quite a coincidence" indeed. Let's be clear: the above accolades show quite clearly that Swift was not denied his promotion because he was unqualified. He was denied it because he was too qualified. Swift was a Pentagon appointee to this case, and apparently they were taken aback by the zeal with which he defended his client. So they got rid of him.
It's also worth noting that this sordid episode obliterates any claim towards the independence of the "military tribunals" that Bush wants to be the ultimate arbiters of guilt and innocent for detainees. Swift did his job as a defense attorney for the military. And he was kicked out. I'm quite confident all the other JAGs and military personnel who would be assigned to defend alleged terrorists have got the message loud and clear.
In the spirit of a true Navy lawyer, Swift says that he would do it all over again, even if he knew that defending Hamdan woul lead to the premature end of his military service. Good for him. And thanks to the broke no dissent culture of the Bush administration, the Navy has lost one of its best.
n the opinion of Washington, D.C., attorney Eugene Fidell, president of the National Institute of Military Justice, Swift was "a no-brainer for promotion," given his devotion to the Navy, the law and his client.
But, he said, Swift is part of a long line of Navy defense lawyers "of tremendous distinction" who were not made full commander and "had their careers terminated prematurely."
"He brought real credit to the Navy," said Fidell. "It's too bad that it's unrequited love."
Swift's supervisor, the Pentagon's chief defense counsel for Military Commissions, said the career Navy officer had served with distinction.
"Charlie has obviously done an exceptional job, a really extraordinary job," said Marine Col. Dwight Sullivan, a former American Civil Liberties Union attorney, calling it "quite a coincidence" that the Navy promotion board passed on promoting Swift "within two weeks of the Supreme Court opinion."
In June, the prestigious National Law Journal listed Swift among the nation's top 100 lawyers, with such legal luminaries as former Bush administration Solicitor General Theodore Olson, 66; Stanford Law constitutional-law expert Kathleen Sullivan, 50; and former Bush campaign recount attorney Fred Bartlit, 73.
"Quite a coincidence" indeed. Let's be clear: the above accolades show quite clearly that Swift was not denied his promotion because he was unqualified. He was denied it because he was too qualified. Swift was a Pentagon appointee to this case, and apparently they were taken aback by the zeal with which he defended his client. So they got rid of him.
It's also worth noting that this sordid episode obliterates any claim towards the independence of the "military tribunals" that Bush wants to be the ultimate arbiters of guilt and innocent for detainees. Swift did his job as a defense attorney for the military. And he was kicked out. I'm quite confident all the other JAGs and military personnel who would be assigned to defend alleged terrorists have got the message loud and clear.
In the spirit of a true Navy lawyer, Swift says that he would do it all over again, even if he knew that defending Hamdan woul lead to the premature end of his military service. Good for him. And thanks to the broke no dissent culture of the Bush administration, the Navy has lost one of its best.
Friday, October 06, 2006
Tasty, Tasty Diversity
One of things that is rarely noticed in the affirmative action debate is that business loves AA. And the reason is because a diverse workforce is a more productive and a more profitable one. Workplace Prof Blog tells the interesting story of Frito-Lay utilizing its diversity to drill its introduction of "Guacamole" flavored Doritos. The Wall Street Journal elaborates on how businesses are starting to devote more attention and manpower to diversity issues, giving the executives in charge a greater mandate, and greater top-level executive involvement. The article also outlines five challenges diversity programs face today:
In related news, Eric Rauchway comments on Walter Benn Michaels's new book, The Trouble with Diversity, whose thesis is getting kicked around the blogsphere. Michael's thinks that liberals focus too much on diversity, and too little on inequality. I think that diversity is a really important way to end inequality, primarily because inequality is a particularly non-diverse descriptor.
Challenge 1: The difficulty of communicating effectively when diversity-related data include sensitive information such as age, gender, ethnicity, religion and sexual orientation.
Challenge 2: The slowness of change and progress brought about through diversity initiatives, which is especially difficult in fast-paced cultures that want to see immediate results.
Challenge 3: Obstacles to ensuring the consistent and rigorous implementation of diversity programs across large, dispersed organizations.
Challenge 4: "Diversity fatigue," which occurs when employees become desensitized to the many diversity messages they receive through diversity training, recruitment programs and outreach projects.
Challenge 5: Keeping white males from feeling overlooked in diversity programs.
In related news, Eric Rauchway comments on Walter Benn Michaels's new book, The Trouble with Diversity, whose thesis is getting kicked around the blogsphere. Michael's thinks that liberals focus too much on diversity, and too little on inequality. I think that diversity is a really important way to end inequality, primarily because inequality is a particularly non-diverse descriptor.
Target Identified
Michael Crowley reports on a recent MSNBC talkingfest, where conservative pundit Armstrong Williams called for hawkish action against North Korea, and its mysterious leader "Jon Kim Il" (aka "Jon Kim Yung"). Of course, the actual leader of North Korea is Kim Jong Il. But no matter, it is absolutely, positively crucial that we attack what-his-face over there!
Thursday, October 05, 2006
Pluralism Among The Survival Set
Twisty of the well-known "I Blame The Patriarchy" blog remarks on women who defend their enjoyment of certain patriarchal trappings (think Carleton's "Feminists for the use of mascara" group):
There's something to this, but I'd modify it to say that it is very difficult to disentangle a genuine preference from a "survival skill" in a world as bound up in patriarchy as this one. I'd unwilling to simply assert that these preferences are (period, stop) the result of patriarchy. Counterfactuals are tough, and people are idiosynchratic. I'm skeptical of folks who think they have The Answers when it comes to why people choose the way they do, especially when it comes down to structurally deterministic factors. This isn't to say that Twisty's point is wholly without merit--I have no doubt that women subsume the impact of patriarchal structure on their decisions for precisely the reasons Twisty says they do. I'm just not willing to say that represents the whole story for the whole gender.
Via Feministe
[P]atriarchy, though ubiquitous, is largely invisible. Women are understandably reluctant to concede that their deep attachment to the trappings of patriarchy (marriage, femininity, gender, fashion, porn, religion, beauty, the nuclear family, pink tool kits, et al) is not the manifestation of empowered personal autonomy, but rather a survival skill.
There's something to this, but I'd modify it to say that it is very difficult to disentangle a genuine preference from a "survival skill" in a world as bound up in patriarchy as this one. I'd unwilling to simply assert that these preferences are (period, stop) the result of patriarchy. Counterfactuals are tough, and people are idiosynchratic. I'm skeptical of folks who think they have The Answers when it comes to why people choose the way they do, especially when it comes down to structurally deterministic factors. This isn't to say that Twisty's point is wholly without merit--I have no doubt that women subsume the impact of patriarchal structure on their decisions for precisely the reasons Twisty says they do. I'm just not willing to say that represents the whole story for the whole gender.
Via Feministe
Evil of a Different Sort
I've been debating with Mark Olson about the relative horribleness of the detainee treatment bill. As far as I can tell, we both now agree it does some really bad things, and only disagree as to how evil it is. But since Mark seems to agree that a) the torture stuff is really bad and b) the inability for any person in any situation who is detained to assert habeas is bad, I can safely claim vindication in my original lamentation of the bill and the blot it puts on America's conscience.
Several months ago, I penned a post on a wholly different topic: The 4th Circuit case of Jordan v. Alternative Resources Corporation. The 4th Circuit is the most conservative in the nation, but even I was shocked at how far they descended to obliterate civil rights protections here. Here are the facts and judgment of that inkblot:
So, yeah. Nuts case. My usage of "evil" in that case was less serious than with regards to torture, and more "why does the 4th circuit not care about basic principles of justice." So, it's not as bad as, say, extra-judicial torture. But it's still pretty sucky. Anyway, Dan Filler reports that, by a 5-5 vote, the 4th Circuit has voted to deny en banc review, effectively killing any hope of overturning the ruling. So now, in my homestate of Maryland and throughout the 4th circuit realm, your corporation can mandate that you report racist remarks, then fire you for reporting them, and then you can be subjected to the indignity of a court telling you that you were "objectively unreasonable" for believing that a co-worker with a history of racist remarks talking about putting "two black monkeys in a cage with a bunch of black apes and let[ting] the apes fuck them" might create a hostile work environment.
Hooray for judicial conservatism!
Several months ago, I penned a post on a wholly different topic: The 4th Circuit case of Jordan v. Alternative Resources Corporation. The 4th Circuit is the most conservative in the nation, but even I was shocked at how far they descended to obliterate civil rights protections here. Here are the facts and judgment of that inkblot:
Jordan worked for IBM. As many of you know, the "DC Sniper" was operating in our area, causing much fear and tension. The two snipers (both of whom were Black) were caught while Jordan was at work. One of his fellow employees, seeing the news, proclaimed: "[t]hey should put those two black monkeys in a cage with a bunch of black apes and let the apes fuck them." Jordan consulted with several of his other coworkers, who confirmed that this particular employee had made comparable comments many times in the past. Pursuant to IBM policy, which mandated that employees report racial harassment, Jordan filed a complaint. His supervisor responded by changing his work hours to less convenient times, making a derogatory gesture and comment towards him at an office party, and within a month firing him. It does not appear that anyone is seriously arguing that these actions were not retaliatory. Incredibly, the Court found that this did not constitute a retaliatory action in violation of Title VII, because Jordan could not even have reasonably believed that his coworkers action could have created a hostile work environment.
So, yeah. Nuts case. My usage of "evil" in that case was less serious than with regards to torture, and more "why does the 4th circuit not care about basic principles of justice." So, it's not as bad as, say, extra-judicial torture. But it's still pretty sucky. Anyway, Dan Filler reports that, by a 5-5 vote, the 4th Circuit has voted to deny en banc review, effectively killing any hope of overturning the ruling. So now, in my homestate of Maryland and throughout the 4th circuit realm, your corporation can mandate that you report racist remarks, then fire you for reporting them, and then you can be subjected to the indignity of a court telling you that you were "objectively unreasonable" for believing that a co-worker with a history of racist remarks talking about putting "two black monkeys in a cage with a bunch of black apes and let[ting] the apes fuck them" might create a hostile work environment.
Hooray for judicial conservatism!
Wednesday, October 04, 2006
We Know Whose Fault This Is
So the latest GOP spin on Foley-gate is that it's the fault of the all powerful gay Republican organization. Kevin Drum terms this "The Velvet Mafia." I don't have anything to add to the story, except regarding the name. "Velvet Mafia" is okay, but if we're talking about a secretive cabel of homosexual powerbrokers, the obvious name choice is "The Mauve Hand" (yes, I'm stealing from Robin Williams). I mean, seriously. Get with it, people.
In any event, this sordid story could put the final nail in Tom Reynolds' coffin at least. Even Hastert hasn't gotten rocked by this story as the New York congressman has.
In any event, this sordid story could put the final nail in Tom Reynolds' coffin at least. Even Hastert hasn't gotten rocked by this story as the New York congressman has.
Tag! You're Detained!
Mark Olson takes issue with my criticism of the Magna Carta Repeal Act of 2006. He claims I don't provide an alternative. The argument only works because he shoehorns me into one utterly implausible "alternative" of Mirandizing combatants on the battlefield. We can't do that, so clearly we should just assume the power to randomly detain people without show of cause. Somehow, in all the twists and turns of my hyperactive imagination, I have to think there is a middle ground. And wouldn't you know it, there is! Habeas review, pride of the West since 1215. So there's my alternative: post-detention habeas review.
Here's the full critique of Mark's post, and why some form of impartial review of detainee status is both a) plausible and b) required under Geneva.
When we detain someone (for example, capturing them on the battlefield), I presume there is some form of processing. Name, rank, and serial number if they are members of a legitimate army. Al-Qaeda is not a legitimate army, but I'm sure we try and extract something out of these people to identify them, and even if we can't even get a name, we can take a picture or jot down notes. If they challenge the detention, we can say "you were caught here, on this date, carrying arms, out of uniform." Case dismissed. Gosh, that was easy.
Of course, there are many cases where things aren't so cut and dry. Cases where the "capturing" was done not by coalition forces, but by local bounty hunters who might have found an actual terrorist, or who might have plucked Ahmed Schmoe off the street to try and get a reward (or more likely, had a grudge against ol' Ahmed and decided accusing him of terrorism would be an excellent way to exact revenge). Both cases have been documented. Since it is bad for innocent Ahmed Schmoe to be indefinitely detained and subjected to "harsh interrogation techniques" (what a rapper might term "slappin' fools just for livin'"), we need to find a way for Ahmed to at least argue that he's the wrong guy. Not providing said mechanism is not just unfortunate. It is profoundly and unambigiously evil, and I have no compunction against calling it such. To be blunt, I cannot think of a more fundamental guarantee of a free society than for innocent people to be able to assert said innocence to a impartial judicial body upon arrest. That's absolutely bedrock. So the spin I'd put on Mark's "provide an alternative" argument is that he has to do the same: He has to demonstrate some mechanism of letting the innocent assert their innocence and have a realistic shot of going free (or else just admit that he's ready to sacrifice rule of law outright). If he doesn't like my proposal to secure these rights, then suggest an alternative. But don't pretend like you've got a "better solution" just because you ignore a wholly different set of crucial moral values.
I see no particular reason why properly constituted federal courts can't make us both happy. What parade of horribles would occur if we just allowed them to hear the evidence against the accused? No Mirandizing, no brigade of lawyers, just good old fashioned "show me something." I'd even be okay with establishing a special Article III court (in the line of FISA) if we're worried about security clearances. But it's patently absurd to just throw up our hands and say "war sucks, so bring on arbitrary detention!"
And that's the crux of the matter. Yes, most detainee protections (but not all, see below) do not apply to illegal combatants. But before we can get that far, we have to determine that they are an illegal combatant first. Geneva is quite clear on this. Article 45:
That might offend your tender sensibilities, Mark, but it offends mine a lot more to think that we can detain innocent people indefinitely without any proof they did anything wrong. One is somewhat aggravating, the other is tyrannical.
It's also worth noting that even illegal combatants have some protections under the laws of war. These can be divided into two parts: protections while in combat (or prior to detention, as in the surrender scenario) and once detained. The section Mark cites to refers to standards for determining POWs--i.e., post-detention--and is inapplicable to the former case, I'll get to it later. As to in combat, there are clearly certain lines we cannot cross even in combat with terrorists. If we dropped horrible burning acid on terrorists then slowly chopped off their extremities bit by bit, I'd call that a war crime and object strenuously. Such actions are just wrong, even when applied to the bad guys. The scenario Mark outlined, refusing to accept the mortar guys surrendering after they fired from a Mosque, would be a war crime. I have no qualms about saying that, and I am rather shocked that Mark would even consider otherwise. Article 41 specifically protects "persons" who are hors d'combat from attack, and Article 40 prohibits "giving no quarter" or even threatening it. There is no indication either is restricted only to those who would be eligible for POW status--and I don't see any reason to make that extension. Perfidy (fake surrendering) is also a war crime (Article 37), and can be prosecuted/treated as such. Put simply, we have an obligation to accept real surrenders, and no obligation to accept fake surrenders. Admittedly, perfidy is a sucky tactic from our perspective, as most immoral deceptions are. Deception makes life difficult, no question about it. But Mark's response--and I could say this for his entire sad grappling with this issue--of completely punting our moral obligations as a result betrays a profound misunderstanding of what morality is. It would be nice if we lived in a perfect world, but morality still exists in a world with immoral people. To argue otherwise is to sanction barbarianism of the worst sort. "We're fighting evil-doers, dammit" is not a response, it's a capitulation to darkness.
Moving to the post-detention case. Most important to the discussion of illegal combatant rights post-detention are Articles 45 and 75 of the Geneva Conventions. Article 45, section 3, specifically says that combatants who are not POWs (i.e., illegal combatants) still have Article 75 protection:
Also in Article 45 is the provision that:
Article 75 contains "fundamental guarantees" that are given to every detainee regardless of status (POW or not). What is included here?
Section 2 prohibits
Incidentally, it's worth noting that the bill in question severely dilutes this definition, primarily by adding an "intent" requirement where Geneva has a categorical prohibition, thus circumventing the treaty.
Section 3 demands that any person detained be informed (in a language they understand) as to why they are detained.
Section 4 gives a laundry list of rights that such detainees have in any trial they are faced with. They include the right to be tried in front of an "impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure", innocence until proven guilty, right to confront witnesses and obtain witnesses in favor [with caveats for practicality], right to avoid self-incrimination, right to be present for proceedings, and generally "all necessary rights and means of defence."
***
Woof, that was long. Let's sum up:
1) Selecting people to be imprisoned forever and possibly tortured via a process that has all the procedural fairness of pointing a finger is hideously unfair and immoral.
2) Having to give Miranda rights to people on the battlefield would be dumb. Fortunately, nobody seems to advocate it.
3) Post-detention Habeas review to determine if there are grounds for detention--tried and true since 1215!--seems to be a reasonable way of adjudicating the original status claim. Some comparable procedure is required under Article 45 of the conventions anyway, and this seems to work well enough. This would help prevent random innocent people from accidently being caught up in the detention system, which is a recurring problem in the status quo.
4) Once that claim has been determined, prosecutions of illegal combatants can proceed under the rules articulated under Article 75, which guarantee basic procedural rights of the accused. Treatment of the detainees also is governed by Article 75.
5) Not adhering to the rules set down in Articles 45 and 75 constitute treaty violations.
Everyone clear?
Here's the full critique of Mark's post, and why some form of impartial review of detainee status is both a) plausible and b) required under Geneva.
When we detain someone (for example, capturing them on the battlefield), I presume there is some form of processing. Name, rank, and serial number if they are members of a legitimate army. Al-Qaeda is not a legitimate army, but I'm sure we try and extract something out of these people to identify them, and even if we can't even get a name, we can take a picture or jot down notes. If they challenge the detention, we can say "you were caught here, on this date, carrying arms, out of uniform." Case dismissed. Gosh, that was easy.
Of course, there are many cases where things aren't so cut and dry. Cases where the "capturing" was done not by coalition forces, but by local bounty hunters who might have found an actual terrorist, or who might have plucked Ahmed Schmoe off the street to try and get a reward (or more likely, had a grudge against ol' Ahmed and decided accusing him of terrorism would be an excellent way to exact revenge). Both cases have been documented. Since it is bad for innocent Ahmed Schmoe to be indefinitely detained and subjected to "harsh interrogation techniques" (what a rapper might term "slappin' fools just for livin'"), we need to find a way for Ahmed to at least argue that he's the wrong guy. Not providing said mechanism is not just unfortunate. It is profoundly and unambigiously evil, and I have no compunction against calling it such. To be blunt, I cannot think of a more fundamental guarantee of a free society than for innocent people to be able to assert said innocence to a impartial judicial body upon arrest. That's absolutely bedrock. So the spin I'd put on Mark's "provide an alternative" argument is that he has to do the same: He has to demonstrate some mechanism of letting the innocent assert their innocence and have a realistic shot of going free (or else just admit that he's ready to sacrifice rule of law outright). If he doesn't like my proposal to secure these rights, then suggest an alternative. But don't pretend like you've got a "better solution" just because you ignore a wholly different set of crucial moral values.
I see no particular reason why properly constituted federal courts can't make us both happy. What parade of horribles would occur if we just allowed them to hear the evidence against the accused? No Mirandizing, no brigade of lawyers, just good old fashioned "show me something." I'd even be okay with establishing a special Article III court (in the line of FISA) if we're worried about security clearances. But it's patently absurd to just throw up our hands and say "war sucks, so bring on arbitrary detention!"
And that's the crux of the matter. Yes, most detainee protections (but not all, see below) do not apply to illegal combatants. But before we can get that far, we have to determine that they are an illegal combatant first. Geneva is quite clear on this. Article 45:
"Should any doubt arise as to whether any [detained person] is entitled to the status of prisoner of war, he shall continue to have such status and, therefore, to be protected by the Third Convention and this Protocol until such time as his status has been determined by a competent tribunal."
That might offend your tender sensibilities, Mark, but it offends mine a lot more to think that we can detain innocent people indefinitely without any proof they did anything wrong. One is somewhat aggravating, the other is tyrannical.
It's also worth noting that even illegal combatants have some protections under the laws of war. These can be divided into two parts: protections while in combat (or prior to detention, as in the surrender scenario) and once detained. The section Mark cites to refers to standards for determining POWs--i.e., post-detention--and is inapplicable to the former case, I'll get to it later. As to in combat, there are clearly certain lines we cannot cross even in combat with terrorists. If we dropped horrible burning acid on terrorists then slowly chopped off their extremities bit by bit, I'd call that a war crime and object strenuously. Such actions are just wrong, even when applied to the bad guys. The scenario Mark outlined, refusing to accept the mortar guys surrendering after they fired from a Mosque, would be a war crime. I have no qualms about saying that, and I am rather shocked that Mark would even consider otherwise. Article 41 specifically protects "persons" who are hors d'combat from attack, and Article 40 prohibits "giving no quarter" or even threatening it. There is no indication either is restricted only to those who would be eligible for POW status--and I don't see any reason to make that extension. Perfidy (fake surrendering) is also a war crime (Article 37), and can be prosecuted/treated as such. Put simply, we have an obligation to accept real surrenders, and no obligation to accept fake surrenders. Admittedly, perfidy is a sucky tactic from our perspective, as most immoral deceptions are. Deception makes life difficult, no question about it. But Mark's response--and I could say this for his entire sad grappling with this issue--of completely punting our moral obligations as a result betrays a profound misunderstanding of what morality is. It would be nice if we lived in a perfect world, but morality still exists in a world with immoral people. To argue otherwise is to sanction barbarianism of the worst sort. "We're fighting evil-doers, dammit" is not a response, it's a capitulation to darkness.
Moving to the post-detention case. Most important to the discussion of illegal combatant rights post-detention are Articles 45 and 75 of the Geneva Conventions. Article 45, section 3, specifically says that combatants who are not POWs (i.e., illegal combatants) still have Article 75 protection:
"Any person who has taken part in hostilities, who is not entitled to prisoner-of-war status and who does not benefit from more favourable treatment in accordance with the Fourth Convention shall have the right at all times to the protection of Article 75 of this Protocol."
Also in Article 45 is the provision that:
"If a person who has fallen into the power of an adverse Party is not held as a prisoner of war and is to be tried by that Party for an offence arising out of the hostilities, he shall have the right to assert his entitlement to prisoner-of-war status before a judicial tribunal and to have that question adjudicated."In general, Article 45 codifies the principle that the status determination has to occur prior to other prosecution. In addition, the same article provides that the prisoner be allowed to attend the proceedings here, with the provision for "exceptional" cases where state security makes this impossible. These cases, of course, should actually be "exceptional"--making it the rule by definition makes it no longer an exception.
Article 75 contains "fundamental guarantees" that are given to every detainee regardless of status (POW or not). What is included here?
Section 2 prohibits
"at any time and in any place whatsoever, whether committed by civilian or by military agents: (a) violence to the life, health, or physical or mental well-being of persons, in particular: (i) murder; (ii) torture of all kinds, whether physical or mental; (iii) corporal punishment; and (iv) mutilation; (b) outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form or indecent assault; (c) the taking of hostages; (d) collective punishments; and (e) threats to commit any of the foregoing acts."
Incidentally, it's worth noting that the bill in question severely dilutes this definition, primarily by adding an "intent" requirement where Geneva has a categorical prohibition, thus circumventing the treaty.
Section 3 demands that any person detained be informed (in a language they understand) as to why they are detained.
Section 4 gives a laundry list of rights that such detainees have in any trial they are faced with. They include the right to be tried in front of an "impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure", innocence until proven guilty, right to confront witnesses and obtain witnesses in favor [with caveats for practicality], right to avoid self-incrimination, right to be present for proceedings, and generally "all necessary rights and means of defence."
***
Woof, that was long. Let's sum up:
1) Selecting people to be imprisoned forever and possibly tortured via a process that has all the procedural fairness of pointing a finger is hideously unfair and immoral.
2) Having to give Miranda rights to people on the battlefield would be dumb. Fortunately, nobody seems to advocate it.
3) Post-detention Habeas review to determine if there are grounds for detention--tried and true since 1215!--seems to be a reasonable way of adjudicating the original status claim. Some comparable procedure is required under Article 45 of the conventions anyway, and this seems to work well enough. This would help prevent random innocent people from accidently being caught up in the detention system, which is a recurring problem in the status quo.
4) Once that claim has been determined, prosecutions of illegal combatants can proceed under the rules articulated under Article 75, which guarantee basic procedural rights of the accused. Treatment of the detainees also is governed by Article 75.
5) Not adhering to the rules set down in Articles 45 and 75 constitute treaty violations.
Everyone clear?
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