While I dearly love Boing Boing, the website is often guilty of mistakenly claiming that things are true when they are not. Two weeks ago, the website lamented the destruction of habeas corpus in the Military Commissions Act of 2006. While the legislation is terrible for our society, one of things it does not do is destroy habeas corpus rights. When websites claim certain things that turn out to be false, it looks bad for our side; people on the right are able to point to an instance of exaggeration, lying, or overreaction and say, "See! They don't even know what they're talking about!"

Today's instance deals with a bill "quietly signed" by George Bush, "allowing him to declare martial law." The bill was not "quietly signed" out of conspiracy; the bill is actually an omnibus defense-spending bill called the John Warner National Defense Authorization Act for Fiscal Year 2007. Most omnibus defense-spending bills contain earmarks, and this one is no different. Buried deep within the bill is a provision that, sure enough, allows the president to declare martial law.

But here's the problem: the president already had the authority to declare martial law. 10 U.S.C. 333 gives the president the authority to use the military to "take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy" as long as two conditions specified in §333(1) and 333(2) are met.

Boing Boing is wrong in that the bill does not give the president any new authority to declare martial law. What it does do is alter the conditions under which martial law may be declared. Prior to the signing of this bill, martial law could be declared if an

insurrection, domestic violence, unlawful combination, or conspiracy [...] so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or [such insurrection, domestic violence, etc.] opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.

§1076 of Title X of the bill allows the president to declare martial law in the additional instances of "a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident."

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The cover story of this week's Business Week is titled "The organic myth: As it goes mass market, the organic food business is failing to stay true to its ideals." In Berkeley, where every action is political, organic food is about more than just eating food without pesticides. It's also about sticking it to large megacorporations by buying food from small family farms, instead. The problem is that the economics of true organic farming and the economics of spreading organic food to the entire nation are mutually exclusive, resulting in food being technically "organic" while not being grown on small family farms:

Everyone agrees on the basic definition of organic: food grown without the assistance of man-made chemicals. Four years ago, under pressure from critics fretting that the term "organic" was being misused, the U.S. Agriculture Dept. issued rules. To be certified as organic, companies must eschew most pesticides, hormones, antibiotics, synthetic fertilizers, bioengineering, and radiation. But for purists, the philosophy also requires farmers to treat their people and livestock with respect and, ideally, to sell small batches of what they produce locally so as to avoid burning fossil fuels to transport them. The USDA rules don't fully address these concerns.

Hence the organic paradox: The movement's adherents have succeeded beyond their wildest dreams, but success has imperiled their ideals. It simply isn't clear that organic food production can be replicated on a mass scale. For Hirshberg, who set out to "change the way Kraft, Monsanto, and everybody else does business," the movement is shedding its innocence. "Organic is growing up."

I'm curious to know how many of those people who eat organic for the political implications are aware that "organic" has ceased to be a political movement. Large factory farms are making most of your organic food. As I've written before, there is some question as to whether or not organic food is "better" for you than in-organic food. What isn't in question is that organic food is more expensive and requires more land to produce than "regular" food. Most of the nation's "organic" produce is made by a single company on giant farms in California, Arizona, and Mexico.

A last tidbit: food quality is in the mind of the beholder. In Ohio, brown eggs are cheaper than white eggs because people don't want to buy eggs that aren't white. They perceive brown eggs as somehow not as good as white eggs, because they grew up with white eggs. The only difference, however, is the breed of the chicken laying the eggs. In California, brown eggs are more expensive than white eggs because they're seen as somehow more "gourmet" than plain old workaday white eggs.

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A few years back, the U.S. Supreme Court issued a ruling in the case Boy Scouts of America v. Dale, 99-699. (FindLaw had better get up to speed with its citations.) You'll recall that, in that case, respondent Dale was fired as a boy scout troop leader when the Boy Scouts discovered that he was gay. The Boy Scouts are a Christian organization (and, indeed, one of their largest single supporters is -- ta da! -- the Mormons!) and, of course, homosexuality is inconsistent with Christianity.

Dale sued the Boy Scouts, alleging discrimination. The Boy Scouts' defense was that forcing them to admit homosexuals was a violation of their "freedom of expressive association," a First Amendment doctrine which holds that groups should be permitted to discriminate in their membership if admitting particular members would go against the mission of that group. Or, as Chief Justice Rehnquist wrote:

The Boy Scouts asserts that homosexual conduct is inconsistent with the values embodied in the Scout Oath and Law, particularly those represented by the terms "morally straight" and "clean," and that the organization does not want to promote homosexual conduct as a legitimate form of behavior. The Court gives deference to the Boy Scouts' assertions regarding the nature of its expression, see, Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U. S. 107, 123-124. The Court then inquires whether Dale's presence as an assistant scoutmaster would significantly burden the expression of those viewpoints. Dale, by his own admission, is one of a group of gay Scouts who have become community leaders and are open and honest about their sexual orientation. His presence as an assistant scoutmaster would interfere with the Scouts' choice not to propound a point of view contrary to its beliefs.

This is not a doctrine invented out of whole cloth by the justices; it's been around for a while, and it makes sense: if you're forced to accept members whose existence in your organization dilutes the organization's mission, then the government has placed an "undue burden" on your ability to express yourself through your choice of membership.

A lot of homosexual rights groups didn't like this decision. I disagreed with them, and I still do: the court's opinion in Dale was correct, given the implications for freedom of expressive association if they had decided the other way.

Well, now it's time for just desserts. The U.S. Supreme Court refused to grant a writ of certiorari -- which means they refused to hear the case -- to the Sea Scouts, an offshoot of the Boy Scouts. Eugene Evans v. City of Berkeley -- that's right, our very own Berkeley! -- pitted the Sea Scouts against the intractable neo-hippie liberalism of Berkeley, California. The city of Berkeley permits nonprofit organizations to moor boats at the Berkeley Marina for free -- as long as they do not discriminate against any race, religion, ethnicity, et cetera et cetera. The Sea Scouts, as an offshoot of the Boy Scouts, must necessarily discriminate in both religion and sexual orientation. As such, the city of Berkeley took away their free mooring status and started charging them $500.

This time, it was the Sea Scouts who alleged discrimination -- that the city of Berkeley was restricting their freedoms of speech and expressive association. The trial court and the state Court of Appeals both ruled in favor of the city. The California Supreme Court affirmed the decision.

In the Sea Scouts' defense, they have never discriminated against anyone based on religion or sexual orientation. However, when requested by the city attorney to provide a written statement that they wouldn't do so in the future, the group would only state that they considered sexual orientation to be "a private matter." The Sea Scouts later told the city attorney that they did not explicitly condemn such discrimination "due to fear of losing their charter from the Boy Scouts.” The court's ultimate decision:

We agree with Berkeley and the Court of Appeal that a government entity may constitutionally require a recipient of funding or subsidy to provide written, unambiguous assurances of compliance with a generally applicable nondiscrimination policy. We further agree Berkeley reasonably concluded the Sea Scouts did not and could not provide satisfactory assurances because of their required adherence to BSA’s discriminatory policies.

The California Supreme Court suggested that the state not funding a particular group is not equal to the state barring the speech of that group. "The [U.S. Supreme Court] has generally approved, against First Amendment challenges, programs of governmental financial assistance that limit the expressive activities for which the funds may be used," said the California Supreme Court.

Now it is the Boy Scouts' turn to be upset. Maybe if they didn't hate The Gays so much, the Sea Scouts -- which are guilty only of being affiliated with the Boy Scouts -- might have a free berth in the Berkeley Marina.

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Welcome to the Supreme Court's 2006 Term! While the term officially began last week, I wasn't talking about it. So let's get to business. This is the court's first full term with its new, reconstituted self: John Roberts replaced Chief Justice Rehnquist about a month before the beginning of the term last year, and Samuel Alito joined the court in December. Now we will see the power of the fully armed and operational judicial station!

Last Tuesday, the court heard oral arguments for its first cases of the term (while the term began on Monday, they heard no arguments that day). The cases of Lopez v. Gonzales and Toledo-Flores v. United States were consolidated into one argument. The question presented in each case is essentially the same: the petitioner was convicted of drug possession, a misdemeanor federal crime, but a felony in the petitioner's state. The Fifth Circuit Court of Appeals ruled that the fact that the crime was a felony in the petitioner's state changes the federal crime from "simple possession" (a misdemeanor) to "drug trafficking" (an "aggravated felony"). The Fifth Circuit stands in opposition to the Second, Third, Sixth, and Ninth Circuits, which held that a state felony conviction does not create a federal felony "drug trafficking" crime. Lopez v. Gonzales puts this in the context of immigration laws, but the answer to Toledo-Flores will give us the answer to Lopez.

Next, we had Ayers v. Belmontes, which asks the court to look into the legality of California's practice of considering a defendant's background and character as "mitigating factors" for sentencing purposes. (E.g., if Johnny committed a violent crime, but the court learned that he had been abused as a child, his sentence might be brought down from life to 30 years.)

These cases are boring. But hopefully we might see some warrantless wiretapping action going on later in the term.

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Michael Kinsley, writing in The Washington Post, observed in a Sept. 29 column that President Bush’s stance on the “right to life” is very capricious. Bush’s stance, like many religious conservatives, is that life begins at conception:

Even tiny embryos composed of a half-dozen microscopic cells, he thinks, have the same right to life as you and I do. That is why he cannot bring himself to allow federal funding for research on new lines of embryonic stem cells or even for other projects in labs where stem cell research is going on.

Even though the possibility exists that the destruction of these embryos could help extend the lives of already-born human beings, the moral dilemma for Bush is no dilemma at all. Even if there existed the possibility that destroying embryos could help people, the destruction of these embryos is so evil that nothing could justify said destruction.

Okay, fine. Makes sense. But what about Iraq? Kinsley presents us with an ethical conundrum. On the one hand, the president refuses to kill a “human” (in quotation marks because, while the president believes it, I do not) even though, in that death, more humans might be saved. But in Iraq, Bush does not refuse to stop killing humans, even though, in their death, more humans might be saved. Kinsley writes:

But it is hard -- indeed, I would say it is impossible -- to reconcile Bush's absolutism over allegedly human life when it is a clump of unknowing, unfeeling cells with his sophisticated, if not cavalier, attitude toward the loss of innocent human life when it is children and adults in Iraq. [...] And -- oh, yes -- there is still the question of whether a clump of a half-dozen cells you can't see without a microscope is actually a human being in the same sense as a 6-year-old girl blown up as she skips off to kindergarten in Baghdad.

While Kinsley proves what we’ve known all along -- namely, that President Bush is a hypocrite who doesn’t take a great many things into account when making decisions -- it is still interesting to examine what he is doing and consider that he is still in office.

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This month's issue of Mother Jones contains a wonderful multi-page feature which is nothing but a timeline of events and statements -- some true, others false -- leading up to the Iraq War, beginning in 1992 with President George H.W. Bush's decision not to invade Baghdad, and ending in March, 2003 with the beginning of the Iraq War. (The online version of the timeline is even cooler: it's an interactive Flash application.)

Throughout the timeline, we are treated to statements that have been undoubtedly long-forgotten by administration officials (Rumsfeld on Fox News in February, 2001: "Iraq is probably not a nuclear threat at the present time." Bush in the 2000 election debates would be "very careful about using our troops as nation-builders").

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Last week, the U.S. House of Representatives passed H.R. 6166, the Military Commissions Act of 2006. A poster at Boing Boing earlier today linked to an article claiming that the bill does a number of things that it does not, in fact, do. While the legislation contains a number of questionable provisions, as one Boing Boing reader noted, "[I]f we start fighting it with false and misrepresented claims about its provisions, we'll look stupid from the start, and our arguments will just be dismissed an non-applicable."

What does this thing do?

By and large, it amends Chapter 47 of Title 10, U.S.C., known as the Uniform Code of Military Justice (UCMJ). These are the laws under which the military governs itself and tries its accused criminals. H.R. 6166 would create a subchapter, Chapter 47A, governing the military trials of suspected terrorists.

Immediately, the legislation defines an "unlawful enemy combatant" to potentially include even U.S. citizens. U.S. citizens accused of terrorist could be summarily stripped of their Constitutional rights and tried as though they did not have Constitutional guarantees (which they still would).

If H.R. 6166 defines "unlawful enemy combatant," then what is a "lawful enemy combatant"? It's any member of any state-organized armed force. Apparently, it's now illegal for civilians to engage in combat. By refusing to recognize terrorists as engaging in war per se, the Bush administration can avoid some of the nasty requirements of the Geneva Conventions of 1949.

What rights, then, does an "unlawful enemy combatant" have under the Geneva Conventions? Apparently, none. Under § 949b(2)(g), "No alien unlawful enemy combatant subject to trial by military commission under this chapter may invoke the Geneva Conventions as a source of rights." Oops. Because the Geneva Conventions were for armies, not civilians, so it looks like you're out of luck.

H.R. 6166 also makes the president the authority on interpreting international treaties:

As provided by the Constitution and by this section, the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions and to promulgate higher standards and administrative regulations for violations of treaty obligations which are not grave breaches of the Geneva Conventions.

Huh? He has Constitutional authority to "intrepret the meaning and application" of treaties now? Apparently, this is culled from the sentence in the Constitution in Art. II, § 2 that gives the president the authority "to make treaties." But, as with the line-item veto, this is a dicey area. The president's line-item veto authority is nill, since the Constitution specifies that he may either "sign it" into law or "return it" to the house it came from. So, too, does the president lack the authority to do anything but "make" treaties. Sure, he can enter into treaties -- with the advice and consent of the Senate, of course -- but after that, does he have the authority to interpret them? A treaty approved by the president and the Senate becomes the law of the land, on par with the Constitution in terms of weight. And only one group of people is qualified to interpret the Constitution.

But what about the allegations from prisonplanet.com's Alex Jones and Paul Joseph Watson (which is the Boing Boing link I spoke of)? The article mentions all of the criticisms I leveled above. Then it introduces new ones that aren't so true. "[T]he bill criminalizes any challenge to the legislation's legality by the Supreme Court or any United States court," the authors say, referring specifically to § 950j.

H.R. 6166 does no such thing. While it does shut out future detainees from ever filing habeas suits again, it does not "criminalize" challenges to the legislation. To "criminalize" would mean "to render illegal" and thus permit the arrest of someone who might be trying to challenge the legislation in court. § 950j merely spells out that no court -- including the Supreme Court -- has jurisdiction to hear complaints about the legality of the legislation or the resulting findings of the military courts (except as provided later in the chapter; the legislation does permit suspects to appeal their cases to appellate tribunals, as well as the Supreme Court). If any court received a complaint about this legislation, men in black vans wouldn't arrest the petitioner; they would throw the case out due to a lack of jurisdiction.

"A change of the definition of 'pillaging' which turns all illegal occupation of property and all theft into terrorism. This makes squatters and petty thieves enemy combatants"? Not so much. Read the beginning of § 950v(b)(5): the provisions of this legislation don't apply to any old person, only to "[a]ny person subject to this chapter." Regular Joe Squatter hanging out in the park or an abandoned building is not subject to a military tribunal; neither are "petty thieves." This law would have to go much further in order to create a military police state.

Questioning § 950v(26), Watson & Jones ask, "For an individual to hold an allegiance or duty to the United States they need to be a citizen of the United States. Why would a foreign terrorist have any allegiance to the United States to breach in the first place?" The section -- which criminalizes "knowingly[ly] and intentionally aid[ing] an enemy of the United States," applies -- again -- only to "[a]ny person subject to this chapter." It is also clearly designed to allow prosecution of defecting military or federal government officials under this chapter. This means that if a Defense Department employee -- who did have to take an oath of allegiance upon getting the job -- gives al-Qaeda top-secret information, he may be prosecuted as an "unlawful enemy combatant" under this section.

This legislation is a bad idea, but it's not a bad idea for reasons that Watson & Jones claim it is, and it is alarmist and disingenuous to criticize particular parts of this bill that, in fact, have no problems. Thankfully, though, the authors do get to the worst parts of the bill. Imagine if Bill O'Reilly or Sean Hannity got hold of this article? This would it up as a model for all anti-war, anti-Unitary Executive arguments.

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SACRAMENTO -- Following last year's disastrous U.S. Supreme Court decision in Kelo v. New London, states and municipalities began enacting laws to preserve their own interpretations of the Fifth Amendment right of eminent domain. The Supremes ruled, 5-4, that the government could seize private land and hand it over to a private developer if the developer's presence might create a sort-of maybe intangible benefit through higher tax revenues. The Supremes, however, said in their ruling that this was a broad application of the federal Fifth Amendment and states, if they wanted a narrower interpretation, could acheive that through their own state constitutions. A flurry of activity followed.

Now, California is trying for an amendment to the state constitution that would prevent the state from using its power of eminent domain to seize private land and hand it over to private developers. Sounds great, right?

But stick around for page three of Proposition 90, cleverly titled the "Protect Our Homes Act." Who doesn't want to protect homes? But what this proposition does and what its proponents say it does -- or rather, don't say it does -- are very different. Proposition 90 does indeed define "public use" and prevents the taking of private property for any uses that are not "public," but it goes one further:

Whenever government takes or damages private property for a public use, the owner of any affected property shall receive just compensation for the property taken or damaged. Just compensation shall be set at fair market value for property taken and diminution of fair market value for property damaged. Whenever a property owner and the government cannot agree on fair compensation, the California courts shall provide through a jury trial a fair and timely process for the settlement of disputes.

The key word is "damages." Under this proposed amendment, "damage" could be condominium conversion, low-income housing conversion, or even rent control. It could be environmental or zoning regulations. Anytime the state does anything to affect the value of private property, the owner of the property could sue the state and demand compensation. Who is this good for? Lawyers, of course. It's also good for owners who don't like the state muscling in on their property, demanding things like condo conversion and rent control.

Proponents of Prop 90 focus exclusively on its regulation of eminent domain, using lots of scare words to make voters think that their property will be taken tomorrow without Prop 90. The measure is opposed by a wide variety of groups, from the California Fire Chiefs Association to the Chambers of Commerce of every large city in California. Prop 90 is supported by lots of individuals and lots of Republican groups. Their tagline is "Protect our homes," but whose homes are we protecting? The word "home" is key: it frames the debate as one between the nameless, faceless State and your kindly grandmother, whose house will undoubtedly be bulldozed to make way for a Wal-Mart. The reality is that your grandmother is no danger; rather, landlords are in danger of continuing to have the government place restrictions on property rental. These restrictions ultimately benefit renters, but they keep landlords from making as much money as they could.

While it would be a good idea to have a state constitutional amendment clarifying eminent domain in California, this ballot initiative is a poison pill, a piece of legislation written with a hidden agenda in mind. A law prohibiting public seizure for private benefit could have been written without language in it that would permit landlords and their lawyers to spend the next ten years in court with the state, arguing over what "damages" are and how much money the landlords -- or, more likely, the lawyers -- ought to get.

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