Just when you thought the War on Terr' was upstanding and just, here come the communists at NPR's This American Life to kill your fetuses, give your money away to homeless drug addicts, and tell you why the War on Terr' isn't so hot.

This week's show is an update of their Peabody Award-winning 2006 show about detainees at Guantanamo Bay. The producers of This American Life wanted to find out more about Gitmo detainees.

Some highlights:

• The military and intelligence officials themselves estimate that only "a handful," up to a maximum of "two dozen," of the prisoners at Guantanamo have yielded information relating to al-Qaeda. There are 600 men imprisoned at Guantanamo. Even considering that military intelligence officials may be underestimating by half, that means that 92% of the people imprisoned in Guantanamo Bay have no relationship to terrorism.
• Though President Bush and Vice President Cheney insisted that the people being held at Guantanamo were captured "on the battlefield" in Afghanistan and Pakistan, only 5% of them were actually captured in combat. The vast, vast majority of them were handed over to the United States by Pakistan and Afghanistan's Northern Alliance. Some of them were turned in for a reward, which, the show points out, led to a tremendous number of prisoners being falsely turned in for the reward money.
• In the habeas tribunals that the Supreme Court commanded the administration to organize, defendants weren't allowed access to the evidence against them, as that evidence was classified as a matter of national security. One defendant's dossier was accidentally declassified, and it turned out the evidence against him consisted of five or six statements made by U.S. military intelligence, including facts that were known to be false.

The post-September 11 immigrant sweep yielded many immigrants who were here on expired visas, but practically no immigrants who had active ties to al-Qaeda. The same thing happened in Afghanistan: most people were in the wrong place at the wrong time, or angered someone enough to get themselves handed over to the U.S. The Bush administration now seems keen on keeping prisoners locked up and as far away from courts as possible not because the prisoners are a threat to the United States, but because to release so many prisoners would require admitting that the administration made a huge and embarrassing mistake. What this administration cares more about than being correct is appearing not to have been wrong. Face-saving is something the Bush administration does all the time, and there is no good way to save face on the issue of Guantanamo Bay detainees, except to keep them locked up.

Posted by Mark at 5:56 PM | Permalink | Comments (0) | TrackBacks (0)

I got flack from Mike last year about a post in which I wrote that President Bush is quite stupid, uninterested in the world around him, and actively lied to the American people about the Iraq War. In a follow-up post, I wrote, "It's not that I disagree with the way the president has handled this war. It's that I disagree with the war itself; there is no "good" way to operate this war, since it shouldn't have happened to begin with." Today, Joshua Michah Marshall of Talking Points Memo explains Harry Reid's "war is lost" comment this way:

Frankly, the whole question is stupid. Or at least it's a very stilted way of understanding what's happening, geared to guarantee President Bush's goal of staying in Iraq forever. A more realistic description is President Bush's long twilight struggle to see just how far he can go into one brown paper bag.

[...]

It's a huge distortion to say that this means the war was 'lost'. It just means what the war supporters said would happen didn't happen. The premise was bogus. Like I said at the outset, the whole exercise is like getting trapped in a brown paper bag. You can keep going into the bag and into the bag and into the bag and never get out or change anything. Or you can just turn around and walk out of the bag.

To say the war is "lost" would be to say that it had a path from which it strayed. This is not the issue, as the war never had a path that was good and just, anyway.

Posted by Mark at 11:14 PM | Permalink | Comments (0) | TrackBacks (0)

Throughout the Cold War, the United States supported right-leaning dictators in South America for the simple reason that they weren’t communists. Sure, they may have engaged in horrible human rights abuses, put the welfare of the rich over that of the rest of the country, and violently squelched free speech, but at least they weren’t in league with the Soviet Union. Now, it appears, the ousted communists are coming home to roost.

Ecuadorean president Rafael Correa is the third Latin American socialist president to call for an expansion of his own powers. Venezuelan president Hugo Chavez was recently granted the ability to pass legislation by decree for the next eighteen months. Bolivian president Evo Morales has called for his country’s constitution to be re-written. Now, Correa wants to take the popular “re-write the constitution because the current constitution hinders my political ambitions” approach. When 57 legislators in the Ecuadorean congress objected last month to re-writing the constitution, Correa fired them. Earlier this week, Ecuador’s highest court overruled Correa and re-instated them.

A trend in Latin America is forming, and it is not a good one. Whenever a new president thinks he needs more power, he calls for the constitution to be re-written. Or, whenever rule of law fails for a president’s politics, he has the law re-written. Respect for the rule of law in Latin America doesn’t go very far. This is probably because Latin American countries have only had democracies since the 1980s, at the very earliest. Before then, military dictatorships – backed by the United States – were the norm. And the military dictatorships weren’t stable; lower generals, lusting for power, overthrew the country’s leader and instituted himself. That general, in turn, would be overthrown by another general. And so on.

But violent (or even non-violent) overthrow isn’t in vogue anymore in Latin America. So what is? Legal overthrow. Instead of using the military to force the country’s politics to behave in a particular way, Latin American leaders are using the law to force the country’s politics to behave in a particular way. Whatever the method, whether it’s re-writing the constitution or demanding extra powers, Latin American “presidents” are setting themselves up as de facto dictators.

The case of Andres Manuel López-Obrador (or “AMLO,” as he is affectionately known) is a telling one in the annals of Latin American democracy. In last year’s Mexican presidential race, Lopez-Obrador, of the socialist PRD, was pitted against Felipe Calderón of the more conservative PAN. Calderón won, but only very narrowly. López-Obrador immediately cried foul and demanded recounts, citing election fraud. There were recounts, and those recounts found that Calderón still won. In a country like the United States, with a 200-year history of democracy, the opposition might not like the result, but would have to live with that result nonetheless. (The case even went to Mexico’s election tribunal, which declared Calderón the winner. Does any of this sound familiar?)

AMLO and his supporters decried the ruling, insisting that there was fraud. Liberal critics in the United States similarly declared that there had been fraud, even though no one could cite an instance of the kind of systematic voter fraud that would have to happen in order to rig an election. (Compare this, for example, with the 2004 United States presidential race, in which many instances of systematic fraud were discovered.) Even independent vote-monitoring organizations couldn’t find any irregularities in the Mexican election. Nevertheless, AMLO and his supporters insisted that a conservative candidate could only win by fraud and AMLO vowed to set up his own parallel government in protest.

This is not how democracy works. AMLO vowed to raise such a ruckus in Mexico that no one would be able to do any government business. That’s great that he’s utilizing civil disobedience, but the government still has to operate. Did he think that stopping the government would make Calderón abdicate his position? Did he plan on stopping government for four years? In an election without irregularities, AMLO lost; it was time for him to suck it up and move on.

But, no; in what might be called the typical Latin American fashion, AMLO instead tried to “overthrow” Calderón, insisting that his tenure wasn’t legitimate. This begs the question: what would have happened if AMLO were elected president? Would he use force to get his way then, as well? In Latin American politics, if you don’t get your way, you don’t admit defeat and go home; instead, you try to use all the political machinery at your disposal to get your way. This includes even re-writing the constitution, if necessary. If that doesn’t work, would he have resorted to the old standby – namely, involving the military?

In Marbury v. Madison, the 1803 U.S. Supreme Court case that established judicial review, John Marshall determined that laws made by Congress are subordinate to the Constitution:

That the people have an original right to establish, for their future govern-ment, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent.

This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments.

The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.

Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.

If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.

Marshall correctly theorized that the Constitution is “a superior, paramount law, unchangeable by ordinary means” so that it is not “alterable when the legislature shall please to alter it.” This is the only way that a democracy can function: with a supreme, unchangeable (at least, unchangeable as far as normal legislation goes) charter that forms the framework of the government. For two hundred years, the United States has functioned on the principle that our policies must conform to the Constitution. In Latin America, if a president’s policies and the constitution are in conflict, it is the constitution that must change. This leads to instability and ultimately undermines democracy, for if the constitution can be altered at any time, then the distinction between a democracy and a dictatorship has disappeared.

Correa’s justification for re-writing the constitution, according to The Sydney Morning Herald, is that the Ecuadorean congress has “too many vested interests in state companies and the judiciary.” But is there no better way to eliminate these interests than to re-write the constitution? At the end of the day, has democracy won a complete victory, or merely a short-term victory? What happens when the next president (and there have been six presidents in Ecuador in the last six years) decides he wants to re-write the constitution, too? Allowing a constitution to be as malleable as an ordinary law ultimately hurts a country, as it relegates the government to something that is not a long-lasting, durable institution, but something volatile that citizens are loathe to place their faith in.

Posted by Mark at 3:49 PM | Permalink | Comments (0) | TrackBacks (0)

Departing from a precedent set forth in Stenberg v. Carhart, 99-830 (2000), the U.S. Supreme Court today upheld the legality of the Partial Birth Abortion Ban Act of 2003. The act prohibits what are called "intact dilation and extraction" abortions," in which a physician or abortion doctor moves the fetus past the cervix into the vagina before he aborts it. The challenge to the Act was upheld by every lower court, but in a 5-4 decision (Anthony Kennedy was the swing vote), the Supreme Court reversed the lower courts, saying the Act was, in fact, constitutional. (For more details, please read the Supreme Court's opinion in today's case, Gonzales v. Carhart, 05-380.)

Justice Kennedy, writing the majority opinion, addressed the following arguments against the Act:

1. The Act is unconstitutionally vague;
2. The Act acts as an illegal barrier to obtaining an abortion;
3. The Act does not contain an exception for performing an abortion to preserve the life of the mother, as required by Stenberg.

Objections (1) and (2) are rather procedural. I happen to agree with the majority on Objection (1) -- that the Act is not unconstitutionally vague. As a piece of legislation, it's quite clear what is being rendered illegal and what the punishment is. Objection (2) is not so clear. Kennedy writes that the Act, while a barrier to abortion, is not necessarily an illegal barrier:

"[t]he fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it." (quoting Planned Parenthood of Pa. v. Casey, 505 U.S. 833 (1992))

Furthermore, reasons Kennedy, "the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn." This is sketchy reasoning at best because of Objection (3), which is at the crux of this decision.

In Stenberg, which actually dealt with a partial-birth abortion statute in Nebraska, the Supreme Court ruled that all legislation that regulated abortion must contain a provision for performing an abortion to save the life of the mother. No ifs, ands, or buts. The Republican-controlled Congress tried twice in the 1990s to enact a federal partial-birth abortion ban, but both times, the bill was vetoed by President Clinton, and neither house could muster up enough votes to override the veto. With President Bush in power in 2001, Republicans passed -- and Bush signed -- the Act now in question. In 2000, the Supreme Court felt that there was enough medical evidence to suggest that there are situations in which abortion may be medically necessary to save the mother's life (C. Everett Koop's opinions nonwithstanding).

Whenever Congress writes a law, it prefaces the actual legislation with its "findings," which are supposed to act as a guide to future interpretation of that law. In the findings for the Partial Birth Abortion Act, the Republican-controlled Congress called the Court's findings in Stenberg "very questionable." To that end, in their findings, they concluded that the partial-birth abortion method prohibited by the Act "is never medically necessary." These four words form the entirety of justification for the majority's opinion today. All abortion cases after Stenberg have relied on the Court's belief that abortion may be medically necessary. Congress sidestepped the Court in makes its own determination that an intact dilation and extraction abortion "is never medically necessary." Because it is necer medically necessary, Casey's requirement that an abortion restriction must protect the life of the mother has been blown away, since, in this instance, Casey would require something that is impossible! Because the mother's health is never in question now, the government defaults to protecting its "legitimate and substantial interest in preserving and promoting fetal life" only. Mommy doesn't matter, anymore! Her health will never be in danger!

But what of the issue of safety to the mother? Also at issue is whether intact dilation and extraction abortion is safer for the mother than a regular dilation and extraction abortion (the difference is that, in the former, the physician tries to remove the fetus as intact as possible, and in the latter, the physician removes the fetus in pieces). Kennedy notes the "documented medical disagreement" that exists as to whether or not "the Act's prohibition would ever impose significant health risks on women," but dismisses it, instead suggesting that "[a]lternatives are available to the prohibited procedure," or that the legislature should take on the issue. He will have none of it today!

Justice Ginsburg is pissed. In her dissent, in which she was joined by Stevens, Souter, and Breyer, she writes,

Today's decision is alarming. It refuses to take Casey and Stenberg seriously. It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG). It blurs the line, firmly drawn in Casey, between previability and postviability abortions. And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman's health.

I dissent from the Court's disposition. Retreating from prior rulings that abortion restrictions cannot be imposed absent an exception safeguarding a woman's health, the Court upholds an Act that surely would not survive under the close scrutiny that previously attended state-decreed limitations on a woman's reproductive choices.

Ginsburg's objections are four-fold. One, she disagrees with the science supporting the majority's opinion. "The term 'partial-birth abortion' is neither recognized in the medical literature nor used by physicians who perform second-trimester abortions," she writes in her very first footnote, saying that the the procedure had been dubbed so "in the political arena." Ginsburg disagrees with the very core of the majority's opinion, saying that the evidence supporting Congress' findings that intact D&E "is never medically necessary" "do not withstand inspection, as the lower courts have determined and this Court is obliged to concede." Take a look at these whoppers (with some citations removed to make reading less irritating):

Many of the Act's recitations are incorrect. For example, Congress determined that no medical schools provide instruction on intact D&E. But in fact, numerous leading medical schools teach the procedure. See also Brief for ACOG as Amicus Curiae 18 ("Among the schools that now teach the intact variant are Columbia, Cornell, Yale, New York University, Northwestern, University of Pittsburgh, University of Pennsylvania, University of Rochester, and University of Chicago.").

More important, Congress claimed there was a medical consensus that the banned procedure is never necessary. But the evidence "very clearly demonstrate[d] the opposite." Planned Parenthood, 320 F. Supp. 2d, at 1025. See also Carhart, 331 F. Supp. 2d, at 1008-1009 ("[T]here was no evident consensus in the record that Congress compiled. There was, however, a substantial body of medical opinion presented to Congress in opposition. If anything ... the congressional record establishes that there was a 'consensus' in favor of the banned procedure."); National Abortion Federation, 330 F. Supp. 2d, at 488 ("The congressional record itself undermines [Congress'] finding" that there is a medical consensus that intact D&E "is never medically necessary and should be prohibited." (internal quotation marks omitted)).

Similarly, Congress found that "[t]here is no credible medical evidence that partial-birth abortions are safe or are safer than other abortion procedures." But the congressional record includes letters from numerous individual physicians stating that pregnant women's health would be jeopardized under the Act, as well as statements from nine professional associations, including ACOG, the American Public Health Association, and the California Medical Association, attesting that intact D&E carries meaningful safety advantages over other methods. See also Planned Parenthood, 320 F. Supp. 2d, at 1021 ("Congress in its findings . . . chose to disregard the statements by ACOG and other medical organizations."). No comparable medical groups supported the ban. In fact, "all of the government's own witnesses disagreed with many of the specific congressional findings."

Clearly, this evidence goes quite a long way from suggesting that intact D&E "is never medically necessary," and while all the lower courts disagreed with those four words, the majority in this case chose to disagree with evidence to the contrary.

Two, she also takes on Kennedy's dismissal of the relative safety of intact D&E versus regular D&E: "We have thus ruled that a State must avoid subjecting women to health risks not only where the pregnancy itself creates danger, but also where state regulation forces women to resort to less safe methods of abortion." In her mind, the government's illegalization of intact D&E forces them to consider what some may construe as a more unsafe method; namely, the standard D&E. Ginsburg would rather that the state err on the side of protecting the already-living mother, and rightly so. In instances where the survival of the mother is directly at odds with the survival of the fetus (assuming there is no other medical technique that could save both the mother and the fetus, or that such options have been exhausted), the mother should always win.

Three, "the Act scarcely furthers ["the legitimate interest of the Government in protecting the life of the fetus that may become a child"]: The law saves not a single fetus from destruction, for it targets only a method of performing abortion." Good one, Ruth! If the government is so keen to protect the lives of innocent, unborn babies, then why outlaw only one procedure? Two answers. The first one, my answer, is that religious Republican groups are working to slowly erode away abortion rights, bit by bit. This is only the beginning. Two, Justice Ginsburg's answer, is that "[d]elivery of an intact, albeit nonviable, fetus warrants special condemnation, the Court maintains, because a fetus that is not dismembered resembles an infant."

Fourth, Ginsburg is pissed that the government is acting so patronizingly and infantilizing women:

Revealing in this regard, the Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from "[s]evere depression and loss of esteem." Because of women's fragile emotional state and because of the "bond of love the mother has for her child," the Court worries, doctors may withhold information about the nature of the intact D&E procedure. The solution the Court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks. Cf. Casey, 505 U. S., at 873 (plurality opinion) ("States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning."). Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety.

This way of thinking reflects ancient notions about women's place in the family and under the Constitution--ideas that have long since been discredited.

As though it is the government's job to act as a man of the 19th century would in telling a woman what is good for her.

And yes, Kennedy actually did write in today's opinion, "Respect for human life finds an ultimate expression in the bond of love the mother has for her child. The Act recognizes this reality as well." So, it appears that contemporary court rulings from other countries are not permissible as support for a Supreme Court opinion, but "Western heritage," the Bible, and now "the bond of love the mother has for her child" are. I see that Anthony Kennedy got his legal justifications by reading the case Potter v. Voldemort, in which respondent Lord Voldemort was defeated by petitioner Harry Potter using a similar legal (or was it magical?) justification.

Well, what now? We have seen a small chip come off the large block of a woman's right to an abortion, which is a chunk of a woman's right to do what she pleases with her own body. For a variety of flimsy reasons, the Supreme Court has decided today that -- in some cases -- women should be prohibited from doing certain things to their bodies in the name of (1) morality and (2) what the government thinks is good for them. And what's nearly as bad, Anthony Kennedy has joined The Dark Side. This may not be the last of the 5-4 conservative majorities.

Posted by Mark at 4:41 PM | Permalink | Comments (0) | TrackBacks (0)

In America's past, we've made a lot of free speech mistakes, and we shouldn't be proud of them. John Adams -- only our second president! -- signed the Alien and Sedition Acts during his tenure in office, for example. These acts were ostensibly designed to prevent "sedition" (a lovely euphemism that governments use for "people criticizing the government" which makes that most democratic of actions sound evil and sinister) but were, in fact, intended to silence his critics. People who publicly criticized Adams -- and there were many -- ended up in jail. Thankfully, Thomas Jefferson pardoned all of these people.

During both World Wars, the U.S. government cracked down on "sedition" again. After World War II, the spectre of communism caused the formation of the House Un-American Activities Committee, which investigated communist people and organizations. During the Vietnam War, the FBI infiltrated and surveilled anti-war organizations.

I thought we had moved on, but again, the Bush administration continues to surprise me with the depths to which it is willing to descend to (1) gain complete control of the government, (2) gain complete control of the world, (3) make tremendous amounts of money for itself and its friends, and (4) destroy those who would dare criticize it. This story from Boing Boing falls into category four:

Professor Walter F. Murphy, a Korean war hero and McCormick Professor of Jurisprudence (emeritus) at Princeton, was delayed while flying because he's on a "terrorist watch list." The check-in clerk told him that he was probably added because he gave a speech that was critical of the president (who dodged his military service).

According to the American Airlines representative to whom Murphy spoke, American citizens who have broken no laws are placed on terrorist watchlists for being in peace marches. That's right; if you protest the Iraq War, which is a war that is designed to fulfill categories (2) and (3) above, sometimes via category (1), then you get category (4).

This is not security. This is not "protecting the homeland." This is an abuse of power, plain and simple. Power abuses are always couched in the language of national security; cf. the Bush administration's reasons for not permitting Karl Rove and Harriet Miers to testify, under oath and on the record, in front of Congress. This president sickens me.

Posted by Mark at 10:53 AM | Permalink | Comments (0) | TrackBacks (0)