After We Finish Spending the Money, Then We Can Start Spending More Money

My head hurts. A few Congressman are a tad bit antsy that the cost-estimate for the new prescription drug coverage plan has inched up slightly since Bush originally proposed it. To be precise, it has nearly doubled: from $400 billion at the time of passage, to $534 billion immediately after passage (information, incidentally, the administration knew but suppressed: see the Post article below), to $724 billion today. To be fair, not everyone thinks the pricetag actually will end up being $724 billion. The Washington Post, for example, thinks the ultimate price will actually be $1.2 trillion over the first decade of the program. The $724 billion dollar figure comes out when you factor in some offsetting "savings," but you'll forgive me if I'm starting to get a wee bit skeptical of those sorts of things. Anyway, what is Bush's reaction to the spiraling price of his pet healthcare proposal? According to CNN,

"Bush pledged this week to "deal with the unfunded liabilities of Medicare" once Social Security is overhauled as he has proposed."

So...once we enact a program that will incur trillions of dollars in new debt, then we'll try and fund the skyrocketing debt we've already got? Thus is the mantra of Bush budgeting I guess: Buy now, refuse to pay later.

Tea Time

I meant to post on this earlier, but got sidetracked. According to CNN.com, the Attorney General has appealed the 10th Circuit Court of Appeals decision in O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft. The background of the case is as follows. The Church (known in short as the UDV) uses a type of tea in its ceremonies that contains hallucinogenic ingredients. The plant used doesn't grow in America, so they import it from Mexico. The DEA is arguing that this plant is classified as a Schedule I drug (the most restricted category) under the Controlled Substances Act, and thus the church should be barred from importing it. The 10th Circuit disagreed and ruled for the church. The case has now been appealed to the Supreme Court (who, to be clear, haven't taken the case, so this could all be moot).

If they do take the case, I can see a couple of outcomes. First, they could simply agree that prohibiting the drug importation for religious use fulfills a compelling government interest. Most obviously, it could plausably be argued that allowing the drug in for religious purposes would undermine Congress' regulatory scheme with regards to controlled substances. This argument hinges heavily on the outcome of the Raich v. Ashcroft, of which I blogged about here. If the Court rules that the use of drugs outside the general commercial market ruins Congress' regulatory scheme (which consists of keeping drug prices high via the black market), then the Church will almost definitely lose. However, this is one of the better possible outcomes.

The biggest problem is that the statute under which the church is seeking relief is the Religious Freedom Restoration Act (42 U.S.C. § 2000bb-1). The law was in direct response to the Supreme Court's decision in Employment Division of Oregon v. Smith that any legitimate, generally applicable law could override any free exercise claims besides mere abstract expression of belief. That decision justifiably came under a lot of fire, and Congress worked to change it. The RFFA sought to overturn that decision, and restore the "compelling interest" test in Sherbert v. Verner, which mandated that any law which impugned on the free exercise of religion must satisfy a compelling state interest. The Supreme Court has already ruled that act unconstitutional as applied to the states in City of Boerne v. Flores, saying that it granted preference to religion by only allowing them to claim exemptions from general law. However, since the UDV case deals with a federal claim, Boerne is inapplicable.

However, while Boerne itself only applies to the states, I don't see much in its reasoning that prevents it from being applied to the federal government. If the Court applies Boerne to the federal government, then that will entirely restore Smith to Constitutional supremacy and strike a lethal blow to the religious beliefs of minorities. It would, in effect, prevent these minorities from gaining judicial OR statutory relief from laws which prevent the exercise of their religion. That essentially write the Free Exercise clause out of the constitution. On the flipside, the Court could overrule Boerne and rule for the Church. That would be the best outcome.

There is a way that the Court could distingiush Boerne and uphold the law on the federal level. However, it involves some very scary implications for the future of 1st amendment jurisprudence. It has been well accepted for some time now that the 1st amendment's religion clauses now apply to the states, though they technically only say "Congress Shall Make No Law" establishing religion or prohibiting the free exercise thereof. A few extremist jurists (Justice Thomas among them) do not believe this should have been so. If his view swings the Court, then the RFFA will be upheld--but only because it applies to the federal government. The implication, then, is that the states are exempt from some of the first amendments prohibitions and mandates--precisely what Thomas wants, but it direct conflict with decades of Court precedent protecting the rights of religious minorities. Upholding the RFFA could be a stealth attempt by the Court to utterly shortcircuit first amendment protections under the guise of protecting them.

Watch this case carefully.

Hearts and Minds

I'm a bit worried about this. Joseph Braude translates Ayman Al Zawahiri rebuttal to George W. Bush's state of the union. The reason I'm worried is that

Al Zawahiri's speech represents a departure from the Al Qaeda addresses of recent memory, most of which amounted to direct threats of violence targeting Western and Muslim regimes (including, needless to say, their civilian populations). This statement, by contrast, was not so much threat as political argumentation, and the audience was not Western but rather Arab and Muslim. Implicit in Al Zawahiri's speech was an acknowledgement that the United States is now actively competing in the war for hearts and minds in Muslim countries--leaving Al Qaeda no choice but to engage America at the level of politics and ideas.

Why does this worry me? Because in the current climate in the Arab world, I'm afraid it could get some traction. Zawahiri's speech is not standard al-Qaeda "blow up the infidels and build a bridge to the 12th century" rhetoric. Rather it tries co-opt (more accurately, pervert) liberal notions about freedom and justice into its radical ideology. Zawahiri states:

"The freedom that we want is not the freedom of interest-bearing banks and vast corporations and misleading mass media; not the freedom of the destruction of others for the sake of materialistic interests; and not the freedom of AIDS and an industry of obscenities and homosexual marriages; and not the freedom to use women as a commodity to gain clients, win deals, or attract tourists; not the freedom of Hiroshima and Nagasaki; and not the freedom of trading in the apparatus of torture and supporting the regimes of oppression and Copts and suppression, the friends of America; and not the freedom of Israel, with their annihilation of the Muslims and destruction of the Aqsa mosque; and not the freedom of Guantanamo and Abu Ghraib.

Our freedom is a freedom of monotheism and morals and probity and asceticism and justice. The freedom that we are striving toward is on three foundations: The first is the rule of the Shari'a. The Shari'a, revealed by Almighty God, is the path that is obligatory to be followed. ... The second foundation, upon which reform must be established--and this is a corollary to the first foundation--is the freedom of the lands of Islam and their liberation from every robbing and looting aggressor. It is unimaginable that any reform may be realized for us while we are under the coercion of American and Jewish occupation.
...
As for the third foundation, which is also a corollary of the first foundation, it is the liberation of man. The Ummah [pan-Islamic nation] must snatch back its right to choose its ruler and call him to account and criticize him and depose him, and snatch back its right to enjoin good and end that which is abominable. ... The Ummah must undertake [to end] repression and brute force and theft and fraud and corruption and dynastic succession in rule, which our rulers are practicing with the blessings and support of the United States.

This is a relatively clever bit of rhetorical jujitsu. It manages to sound somewhat liberal (even though it isn't), play on latent anti-Americanism, and oppose the current wave of elections, all at the same time. I can see that message carrying a lot of weight. In Iraq, for example, political parties were falling over each other to see who could be the most anti-occupation...even though they were doing it in the context of a democracy the occupation enabled. My guess is there is a significant portion of the Arab world that will jump at the chance to appear both anti-American and pro-reform. If al-Qaeda manages to portray itself as in that niche, we're in trouble.

To be 100% clear, I am not saying that al-Qaeda is in any way a reformist organization. They are not, but they are trying to appear that way. If their distortion works (and remember, the primary entity that can is and willing to refute this, the US, has precious little credibility here), that's when the trouble kicks in.

Oh, and Happy Birthday to me! Big 19 today. The blog doesn't turn 1 until June though. [sniff] It just grows up so fast...

Calm Like a Bomb

First things first. I am now a co-blogger at Centerfield, the blog of The Centrist Coalition. The following post is also cross-posted there. This does not mean that I am abandoning this blog. I don't anticipate posting any less frequently here. I will merely be dropping in that blog from time to time to throw some thoughts out. Anyway, the blog is great and I highly encourage y'all to read it. Now, on with our story.

North Korea has the bomb.

Of course, U.S. policymakers have suspected NK had nukes for some time now. But obviously, their flagrant admission, paired with their withdrawal from mulitparty talks, changes the geopolitical situation dramatically. What's a centrist supposed to do?

When discussing NK, there are two aspects to keep in mind. The first is the security issues. To be perfectly clear: North Korea is a security threat to the United States in a way Iraq never was or had the potential to become. There are a few reasons for this. First, their Taepo-Dong II missile, with nuclear warhead capabilities, can hit Hawaii and possibly the west coast of the US. Furthermore, nuclear proliferation offers one of the few ways for the cash-strapped North Korean regime to gain hard capital. Even if Kim Jong Il was bound by moral scruples (he's not), it would be hard to pass up that opportunity given the abject poverty and desperation the country faces on a daily basis. Finally, and not to toot my own horn here, but current US policy is making the situation worse. Several months ago, I predicted that continued US work on the ABM missile defense shield (paired with a more aggressive foreign policy stance generally) would cause NK to accelerate its nuclear program as a hedge against potential US military intervention (I made a similar prediction with Iran as well). Lo and behold, NK has picked up the jitters and has accelerated its nuclear program. It goes without saying, obviously, that Kim Jong Il with nukes is more dangerous than Il without them.

The second issue is of humanitarianism. Though there are a million and one factors that play into whether or not the US should seek to depose a given regime, Centrists must never forget that the most dangerous nations in the world also tend to be engaged in the most brutal human rights atrocities in the world. Every moment that regime stays in power, every moment that the world community fails to act, another political prisoner is shot, another family is imprisoned, another child starves. The human rights situation in NK is notoriously brutal. Between state sponsored terror and oppression (forced labor camps abound for even minor crimes), and the more general famine and economic poverty that is pervasive in the country, North Korean citizens rank amongst the most desperate in the world. For better or for worse, US and global inaction lends tacit consent to all of these activities. So while the security situation might demand caution, the human rights situation demands decisiveness and action. There must be a strong statement (and I don't mean that in the UN resolution sense) that government sponsored brutality is not and will not be tolerated by any nation, anywhere, at any time. Morality demands it.

Meddlesome Bureaucracy

Democrats and Republicans take different views of bureaucracy. Democrats see it as an unfortunate but necessary organization to maintain accountability and facilitate programs. Republicans think it's the antichrist--unless, that is, they want to obstruct something.

The Austin American-Statesman (link by the indispensable Daily DeLay) reports that a bill introduced in the Texas legislature will give the state ethics commission veto power over local prosecutors who wish to prosecute election law violations. In simple terms, it adds a layer of bureaucracy between prosecutors and their jobs (IE, prosecuting criminals).

Now, the commission is bipartisan, so one might think that it wouldn't succumb to political temptations. That's true in a sense--but only because the commission lacks any spine and thus will be an equal oppurtunity enabler of corruption for both parties. Since the commission's formation in 1991, according to the Statesman, "the agency...has never subpoenaed a witness or documents to investigate a complaint or referred a criminal case [to prosecutors]." So basically, giving this commission power over election law will render the law unenforcable. Which is exactly what Tom DeLay and his cronies want.

Lies and the...

...oh hell, I can't even motivate myself anymore. Just read and read.

Of course, this does bring about an option #3 to my lose-lose budget: Bush is lying about it. But then, why would his budget bear any resemblance to his tax cuts (they're temporary, really!), prescription drug bill, or privitization scheme? Fool me once, shame on me, fool me ad nauseum...well, what's one more try?

Rove's "New" Position

CNN.com reports that Karl Rove has received a new post, on top of his current one of Senior Advisor to the President, as Deputy Chief of Staff. While the former position only deals with politics, the latter position is one that relates to actual policy. Of course, since in the Bush administration there is no difference whatsoever between politics and policy, this is somewhat redundant. But it's nice of them to make it official and all.

It's Only Genocide, Part II

Sick, sick, sick. Eric Alterman defends Arab boycotts of Holocaust memorials on the grounds that

"I don’t expect Arabs to pay tribute to my people’s suffering while Jews, in the form of Israel and its supporters—and in this I include myself—are causing much of theirs...The Palestinians have also suffered because of the Holocaust. They lost their homeland as the world—in the form of the United Nations—reacted to European crimes by awarding half of Palestine to the Zionists. They call this the “Nakba” or the “Catastrophe.” To ask Arabs to participate in a ceremony that does not recognize their own suffering but implicitly endorses the view that caused their catastrophe is morally idiotic..."

Eugene Volokh smacks Alterman down, as does Kathy Young in the Boston Globe. First of all, I cannot fathom how Alterman can "include himself" as a supporter of Israel when he appears to oppose its entire existence. Meanwhile, he contradicts himself when he writes the Palestineans "lost their homeland," then, in the same sentence writes that it happened when the UN awarded "half of Palestine to the Zionists." Now, I'm not a math major, but if one loses a half, one still possesses another half, yes? So the Palestineans appeared to still possess one half of their homeland, at least prior to the Arab aggression that led to the Independence War. And of course, this doesn't even get into the implication by Alterman that only Palestineans had a valid claim to the land in question. To argue that Jews have zero legal, historical, or cultural claim to Israel/Palestine as a homeland is such a gross distortion of history it should not even bear mentioning. Only in a morally twisted world could an analyst, in evaluating two valid claims to the same territory, argue that giving the dispossessed party (Jews) part of the land they had been kicked out of in years past would constitute stealing from the party that had managed to possess all the land. To be 100% clear: Claiming Jews "displaced" Palestineans by gaining a state in Israel only makes sense if one believes the Palestinean people have an absolute, complete, and hegemonic right to total dominion over this territory. Such a view is blatantly anti-Semitic and reminiscent of the worst forms of dictatorial oppression.

The moral claims of Alterman are equally sophomoric. As Volokh notes:

"Now let's briefly analyze this: Alterman is not just saying that Muslim groups are not interested in commemorating the harm done to a group that they're now hostile to. (He is partly saying that, which acknowledges that many Muslims are hostile to Jews, and not just to Israel, but that's not all he's saying.) I should say that such a view would be understandable, though not laudable; it's human nature not to much feel the suffering of others, especially if you have some hostility to them.

Rather, he's analogizing the victims of the Holocaust (those who suffering is honored) to "[Muslim]-bashing bigots." It's not the Israelis who are being honored, it's the slaughtered and nearly slaughtered European Jews. Yet somehow they reverse-inherit the supposed guilt of Israelis and other Jews today. Men, women, children butchered in Auschwitz, even ones who had never had much interest in Palestine and who had no opinions at all to Muslims — quite analogous to "[Muslim]-bashing bigots," yes, indeed.

This strikes me as the classic morality of group guilt. Jews of the 1940s are morally tainted by their supposed sins today; we should hate ethnically Japanese because of Pearl Harbor; Jews killed Christ (assume for a moment that this is historically accurate — the hostility to Jews would remain wrong even then) so Jews today are culpable; many Arabs support suicide bombers, so I shouldn't care about wrongs being done to completely innocent Arab-Americans."

Many post-modernist theorists get spectacularly frustrated by the inability of liberal philosophers to see people in terms of groups. This is why. Far too often, group identification becomes the basis for irrational ethnic hatred, with the prejudiced party conflating all of the members of a certain group into a universal, monolithic whole, equally responsible for each other's sins. Jews who live today, by virtue of the fact that they are Jews, are responsible for killing Christ. Jews who died in Concentration Camps, by virtue of the fact that they are Jews, are responsible for the deaths of the intifada. This makes no sense unless one gives group identification meaning and vitality that overrides the actions of individual members.

When I originally blogged on the Arab boycott of the Holocaust memorial ceremonies, I wrote that:

"Obviously, on a visceral level I'm infuriated that anyone would have the gall to compare the intifada with the holocaust. Anyone who engages in moral relativism at that level of myopia is ethically bankrupt, and deserved to be labeled as such."

I stand by that statement: Alterman is ethically bankrupt. And the subsidiary point of the article holds as well: genocide is rapidly becoming a meaningless term. Consider Alterman's implicit argument: the suffering of Palestineans (we'll assume--though this may be giving him too much credit--that he means innocent Palestineans who are not taking part in hostilities against Israel) in the context of an ongoing theater of war, culminating in the tragic deaths of several thousand people, is morally equivilant to the deaths of 6 million Jews and 5.5 million other persons in a deliberate, planned genocide utterly unrelated to any military objective. Alterman has been, to quote from Mark Graber, "led astray by rhetoric that conflates all forms of disadvantage" into one indistinguishable mass of oppression. In doing so, he trivializes genocide and mass murder by putting it on the same moral status as the incidental death of civilians in a land dispute. This should be intolerable, but in modern society it appears genocide just doesn't mean what it used to.

Academic Standards

Wow. Swarthmore College History Professor Timothy Burke has written one of the most compelling posts I've read in a long while (hat tip: Crooked Timber). It's on the Ward Churchill scandel, of which I blogged on here.

In addition to writing a brief yet searing indictment of the scholars who share Churchill's vein of thought, he also makes a trechant point about how academia should deal with writers like Churchill.

"[T]he first instinct of all institutions (including conservative ones) that get caught up in this well-rehearsed minuet, is to cite free speech as a defense. I think that’s perfectly proper in a highly limited way. Once an invitation has gone out, I think you generally have to stick by your guns. Everyone does have a right to speak and say what they want, whatever it might be.

But academic institutions also insist in many ways and at many moments that they are highly selective, that all their peculiar rituals—the peer review, the tenure dossier, the hiring committee, the faculty seminar—are designed to produce the best, most thoughtful community of minds possible...Anybody has the right to speak, but nobody has the obligation to provide all possible speakers a platform, an honorarium, an invitation.

In that context, it becomes awfully hard to defend the comfortably ensconsed position of someone like Churchill within academic discourse, and equally hard to explain an invitation to him to speak anywhere. There’s nothing in his work to suggest a thoughtful regard for evidence, an appreciation of complexity, a taste for dialogue with unlike minds, a proportionality, a meaningful working out of his own contradictions, a civil ability to engage in dialogue with his colleagues and peers in his own fields of specialization. He stands for the reduction of scholarship to nothing more than mouth-frothing polemic.

We cannot hold ourselves up as places which have thoroughly and systematically created institutional structures that differentiate careful or or thoughtful scholarship from polemical hackery and then at the same time, have those same structures turn around and continually confirm the legitimacy of someone like Churchill. We can’t deploy entirely fair and accurate arguments about the thoughtless cruelty and stupidity of a polemicist like Ann Coulter only to fill our bibliographies with citations to Ward Churchill, not to mention filling our journals with highly appreciative reviews."

The point isn't to take a hatchet job to Academic Freedom. Churchill has the right to say whatever he wants to say. And the University of Colorado, by (ill-advisably) granting him tenure, has in doing so granted him immunity from punishment for the expression of his views. However, while the academic community has no right to censure him, neither does it have the obligation to provide him a forum. By citing him (at least approvingly), by inviting him to speak, by giving him fellowships and chairmanships, tacit approval is being granted to his shoddy scholarship. So while we can't take away what he's already been given (his teaching post), we can act to make his career stall out.

Of course, there is always the risk that restricting forums to "good" scholars will morph into restricting forums to "mainstream" scholars. That is a problem, to be sure. However, I think we can get past it. We all know of commentators that we respectfully disagree with. Those that make good arguments, even if we think they are wrong. For example, I have tremendous awe from Antonin Scalia, even though I have a radically different view of legal theory than he does. I'm heavily influenced by the works of Catherine MacKinnon, Richard Delgado, and other critical theorists, even though I disagree with a lot of what they say. Essentially, then, I'm not arguing for more uniformity in scholarship but higher quality. More debate, more discourse, and more discussion. Any professor who can't keep up with the big dogs should be left behind.

Revitalizing Redistricting

When Arnold Schwarzenegger first announced his proposal to make congressional redistricting in California into a non-partisan affair, I was drowning in irony. Why? Because while I think his idea is one of the most important things we can do for our democracy, unless it happens in both Blue and Red states, all it does is consolidate the gains the GOP has made by refusing to play fair.

Now The New York Times offers a glimmer of hope (link: How Appealing). The article says that the reform movement, if not exactly sweeping the nation, has picked up steam in at least 8 states: California, Colorado, Florida, Georgia, Maryland, Massachusetts, Pennsylvania and Rhode Island. By my count, that's 4 red and 4 blue states, a nice mix (note: Pennsylvania voted Democrat in the 2004 election but has a predominantly Republican congressional delegation. Hence, for the purposes of this post, I call it a "red-state," since we're talking about Congress). These would add to Arizona and Iowa, both of which have already adopted non-partisan redistricting methods. I'm particularly proud, of course, to see my own state of Maryland on the list. More importantly, the Maryland effort appears to be genuinely bipartisan--the article quotes from both Democratic and Republican sponsors in the state legislature. Sadly, but unsurprisingly, the state that needs this reform the most--Texas--is not present. But while that would be a major coup d'etat, it will take a lot more momentum to crack the power shell Tom DeLay has put up around his home state.

But that's a minor problem in the scheme of things. I'm thrilled that non-partisanship is starting to get some momentum, and hopefully it will be a sign of more things to come.

Lose-Lose Budget

When discussing Bush's state of the union speech, I argued that Bush was making mutually exclusive claims about the budget. He essentially 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.

Clearly, it's impossible to do all of these, even though Bush promised to cut or eliminate 150 federal programs.

Well, now Bush's budget is out, and CNN.com outlines the cuts. Are they in Corporate Welfare for Big Business? Nope. Perhaps they close tax loopholes for the ultra-rich? Dream on. Is it in reducing spending for local police departments to upgrade technology and communication equipment? You better believe it.

A brief array of the programs being cut include the following:

Bush would slice a $600 million grant program for local police agencies to $60 million next year. Grants to local firefighters, for which Congress provided $715 million this year, would fall to $500 million.

He would eliminate the $300 million the government gives to states for incarcerating illegal aliens who commit crimes. It's a proposal he has made in the past and one that Congress has ignored. Also gone would be assistance for police departments to improve technology and their ability to communicate with other agencies.

The Environmental Protection Agency's $8.1 billion would drop by $450 million, or about 6 percent, with most of the reductions coming in water programs and projects won by lawmakers for their home districts.

The Bureau of Indians Affairs would be sliced by $100 million to $2.2 billion. The reduction would come almost entirely from the agency's effort to build more schools.

The $2.2 billion program that provides low-income people -- in large part the elderly -- with home-heating aid would be cut to $2 billion. Sen. Charles Schumer, D-New York, said the reduction would be "wrong-headed an inappropriate," especially with this season's jump in oil prices.

Now, there are two possible end-results that occur from this budget. The first is that it passes as written. That might reduce the deficit, although it probably won't since it doesn't include the several trillion dollars in borrowing we'd need to take in order to fund his Social Security privatization scheme (or further Iraq/Afghanistan funding, for that matter). The second is that the programs will prove too popular to cut (you try telling constituents that you voted to eliminate funding for the local police), and we'll have our usual irresponsibile budget that we have every year. Both of these outcomes are bad in their own ways.

The latter scenario is bad for the obvious reason: It does nothing to solve the deficit. The former, by contrast, might (again, emphasis added on "might") help reduce the deficit. But it does so on the backs of the poor. That isn't just irresponsible, it's immoral. I support balanced budgets, but not at any cost. And when Bush decides that the way to balance the budget is to let poor people freeze to death in the winter (see budget cut item 5), I must respectfully part ways. Closing tax loopholes, repealing some of the upper-income tax cuts, and reducing corporate welfare are vastly superior ways of cutting the deficit than Bush's Soak the Poor strategy.

The subsidiary question is: Which one of these is more likely. On the one hand, as I've said, these programs are popular. Given Congress' inevitable tendancy to spend more, it will be very difficult to keep these items out of the final budget. And Bush has a very bad track record when it comes to the most powerful tool he has in imposing fiscal restraint on congress: the Veto. He's never used it once in his entire time in office. All of this would suggest scenario #1 is the more likely option. However, on the other side, the one area of Congress where these draconian cuts would find vocal support is on the far Conservative Right--in other words, the House Leadership. One can never underestimate the power Tom DeLay has over his caucus. He might just be able to pull of the upset here (though it would still face the uphill struggle of getting through the Senate).

Now, more than ever, is the time for Congress to show some spine. We cannot restore fiscal sanity in America without some hard decisions. Some of Bush's tax cuts just have to go, and it will be up to independent Republicans of conscience to make it so.

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 is...like 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)]

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.

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.

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.

After All, It's Only Genocide

Sorry for the paucity of blogging as of late. I've been inundated with work, and it doesn't look like it's going to let up. I'm going to the Model UN conference at McGill University this weekend, so I'll be gone from Thursday until Sunday. I don't know if I'll have internet access up there, so I might not be posting again until Monday. Anyway, back to the matter at hand.

I've been chewing on this article (link: Andrew Sullivan) for a few days now. To sum it up briefly:

Iqbal Sacranie, secretary-general of the Muslim Council of Britain, has written to Charles Clarke, the home secretary, saying the body will not attend the [commemoration of the liberation of Auschwitz] unless it includes the "holocaust" of the Palestinian intifada.

Obviously, on a visceral level I'm infuriated that anyone would have the gall to compare the intifada with the holocaust. Anyone who engages in moral relativism at that level of myopia is ethically bankrupt, and deserved to be labeled as such.

However, I think it also is reflective of a deeper problem. The term "genocide" has become cheap. People toss it around carelessly, and on the flip side, the recognition of a legitimate ongoing genocide doesn't even provoke a reaction. Genocide is defined as "acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such." When Raphael Lemkin coined the term in 1944, he intended it to refer to the most horrific crime imaginable. Genocide was something that was supposed to force states to overcome their hesitance in intervening in other nation's affairs. It was the one crime that couldn't be excused by cries of "sovereignty." Because of the US' love affair with sovereignty, we didn't ratify and implement the Genocide Convention until 1989.

In 1994, Bill Clinton issued an order to the State Department warning them not to use the term "genocide" in reference to the ongoing atrocities in Rwanda. Clinton knew that the term "genocide" put both the moral and legal burden on the US to act, and after the Somalia debacle, that was the last thing he wanted. This was a morally abominable choice, to be sure, but at least we then recognized that genocide actually meant something. And Clinton absolved himself, in part, by intervening in Kosovo to stop the slaughter of ethnic Albanians there.

Fast-forward to today. Former Secretary of State Colin Powell has explicitly labeled the situation in Sudan a genocide. The US response? Nothing. The EU? Nothing. The UN? Nothing. Nothing could have done more damage than nothing. Whereas in 1994 we feared our obligation to stop genocide, in 2004 we act as if we don't have one at all. Genocide simply doesn't have the gravitas to motivate America to action anymore.

A corrupt bargain has been struck by the left and the right, probably without each party knowing it. The left gets to label each and every conflict in which a civilian dies as "genocide" (of course, drawing no distinction between unfortunate collateral damage and "intent to destroy"). The right gets to completely ignore the issue, regardless of whether the genocide claim is warranted or not. And of course, people keep dying. Dictators become emboldened. Ethnic hatreds rage unchecked. And "never again" happens again, and again, and again.