Last year, the Bush administration argued in front of the Supreme Court that it should not have to enforce the laws it doesn't want to. Specifically, the Bush administration argued that (1) carbon dioxide emissions are not a "greenhouse gas" as defined by the Clean Air Act; and (2) even if carbon dioxide were a greenhouse gas, the EPA should not be required to enforce emissions standards on carbon dioxide. This year, in the 5-4 Massachusetts v. EPA case, the Supreme Court ruled that the Administration does have to enforce the nation's laws, regardless of whether or not it agrees with them.

Now, Daily Kos reports that the Bush administration does not want to enforce broader testing of cows for mad cow disease:

The Bush administration said Tuesday it will fight to keep meatpackers from testing all their animals for mad cow disease.

The Agriculture Department tests fewer than 1 percent of slaughtered cows for the disease, which can be fatal to humans who eat tainted beef. A beef producer in the western state of Kansas, Creekstone Farms Premium Beef, wants to test all of its cows.

Larger meat companies feared that move because, if Creekstone should test its meat and advertised it as safe, they might have to perform the expensive tests on their larger herds as well.

The Agriculture Department regulates the test and argued that widespread testing could lead to a false positive that would harm the meat industry.

Of course, the administration refuses to enforce its laws for the same reason it did before: its constituency. I'm not speaking of the American people to whom the Administration is ultimately responsible; I'm referring to the big business donors whose bidding the Administration does. Do you think President Bush didn't want to enforce the Clean Air Act just for funsies? No; energy company and auto-manufacturing friends would have objected to those standards, because they don't want to spend the money to innovate. Likewise, large meat-packing companies don't want to have to change their business models, because it's expensive and, as Daily Kos points out, it could actually benefit small meat-packers who don't have as many cattle to test.

Why is corporate welfare so much more acceptable than individual welfare?

Posted by Mark at 1:54 PM | Permalink | Comments (0) | TrackBacks (0)

Two nights ago, half a dozen Republican presidential candidates met in South Carolina for another TV debate, this one sponsored by Fox News. The shining star of the debate was Rep. Ron Paul of Texas, the only one of the candidates to oppose the Iraq War. Paul is an "old-school" conservative who believes that the Republican party has lost its way "because the conservative wing of the Republican Party always advocated a noninterventionist foreign policy," as he told moderators Brit Hume and Wendell Goler. Of the Iraq War, he said, "And my argument is that we shouldn't go to war so carelessly. When we do, the wars don't end." Goler then asked if the United States' non-interventionist policies hadn't changed with September 11. And so began an exchange that would separate the idiots from everyone else, an exchange that would expose Rudy Giuliani as an opportunist:

MR. GOLER: Congressman, you don't think that changed with the 9/11 attacks, sir?

REP. PAUL: What changed?

MR. GOLER: The non-interventionist policies.

REP. PAUL: No. Non-intervention was a major contributing factor. Have you ever read the reasons they attacked us? They attack us because we've been over there; we've been bombing Iraq for 10 years. We've been in the Middle East -- I think Reagan was right.

We don't understand the irrationality of Middle Eastern politics. So right now we're building an embassy in Iraq that's bigger than the Vatican. We're building 14 permanent bases. What would we say here if China was doing this in our country or in the Gulf of Mexico? We would be objecting. We need to look at what we do from the perspective of what would happen if somebody else did it to us. (Applause.)

MR. GOLER: Are you suggesting we invited the 9/11 attack, sir?

REP. PAUL: I'm suggesting that we listen to the people who attacked us and the reason they did it, and they are delighted that we're over there because Osama bin Laden has said, "I am glad you're over on our sand because we can target you so much easier." They have already now since that time -- have killed 3,400 of our men, and I don't think it was necessary.

MR. GIULIANI: Wendell, may I comment on that? That's really an extraordinary statement. That's an extraordinary statement, as someone who lived through the attack of September 11, that we invited the attack because we were attacking Iraq. I don't think I've heard that before, and I've heard some pretty absurd explanations for September 11th. (Applause, cheers.)

And I would ask the congressman to withdraw that comment and tell us that he didn't really mean that. (Applause.)

MR. GOLER: Congressman?

REP. PAUL: I believe very sincerely that the CIA is correct when they teach and talk about blowback. When we went into Iran in 1953 and installed the shah, yes, there was blowback. A reaction to that was the taking of our hostages and that persists. And if we ignore that, we ignore that at our own risk. If we think that we can do what we want around the world and not incite hatred, then we have a problem.

They don't come here to attack us because we're rich and we're free. They come and they attack us because we're over there. I mean, what would we think if we were -- if other foreign countries were doing that to us?

Giuliani is in trouble. He has already demonstrated that he has very little knowledge of foreign policy. He departs from the rest of his party on the issues of gay rights and abortion. The only thing going for him are his credentials as mayor of New York during the September 11 attacks. But it turns out that waving the flag of September 11 doesn't make you a good presidential candidate. In this exchange, Giuliani misconstrues what Paul says, implying that if we say that our foreign policy toward the Middle East contributed to the September 11 attacks, we're simultaneously saying that we "deserved" to be attacked. This is not true.

Paul appears to be fed up with the simplistic explanation given by our president that "they hate us for our freedoms." As Pat Buchanan noted in an op-ed today, Osama bin Laden and friends -- formerly the mujahideen of Afghanistan -- were our allies in the 1980s. " What Ron Paul was addressing was the question of what turned the allies we aided into haters of the United States," wrote Buchanan. "Was it the fact that they discovered we have freedom of speech or separation of church and state? Do they hate us because of who we are? Or do they hate us because of what we do?" It turns out that viewers who tuned in to the debate weren't misled by Giuliani's simplistic opportunism; text-message polls showed that viewers believed it was Paul who won the debate that night.

The fact that Giuliani couldn't get away with what President Bush was able to get away with many times before signals a welcome change in political discourse: simple explanations won't cut it anymore. With a majority of the American people wanting to get out of Iraq, we've learned that President Bush can't be trusted. Bush is a man who takes Occam's Razor too literally: not only must the simplest explanation be true, but the true explanation must necessarily be the simplest one. Do Middle Eastern countries hate the United States because of thirty years of foreign policy or because we have freedom of speech, and they don't, and they're either jealous of our freedom of speech, or they hate the idea of freedom of speech? Thirty years of foreign policy is a lot to delve into; catchy slogans not so much. Bush is a president who likes complex ideas distilled into bumper sticker-length slogans. The American public is tired of being deceived by simplicity.

Oh, and I think both Ron Paul and Pat Buchanan are deserving of becoming SEDHE Heroes of the Week.

Posted by Mark at 9:41 AM | Permalink | Comments (0) | TrackBacks (0)

On Monday, Microsoft released a statement (or a press release? Or something?) claiming that Linux -- the Unix-derived open-source operating system developed by Linus Torvalds and countless others around the world -- infringes on 235 patents held by Microsoft. The IT world, which consists largely of Linux devotees, scoffed at Microsoft's claims. Torvalds, in an interview with Information Week, said that Microsoft's assertions don't hold water. Why? Because Microsoft chose the Court of Public Opinion as the location for this battle, not a court of law. It's because, says Torvalds, "They'd have to name the patents then, and they're probably happier with the FUD than with any lawsuit." FUD stands for "fear, uncertainty, and doubt" and is a marketing technique designed to make a consumer doubt the competition's product. Here, Microsoft's claims of patent infringement are designed to scare away potential Linux users, who might have considered using Linux as a viable, production operating system but will now be so scared by the prospect of patent infringement lawsuits that they'll turn tail and run, ostensibly to Microsoft.

Patent infringement suits are about three things: (1) taking down the competition, (2) setting an example for other companies, and (3) maybe making some scratch in the process. SCO, the patent-holding company that currently owns the rights to Unix (which was actually invented by AT&T/Bell Labs in 1970), tried this tactic with Linux, insisting that Linux contained code drawn from Unix. SCO wanted royalties. This was how they financed themselves: selling "licenses" to software they owned and suing companies that refused to buy these licenses. SCO had been successful in getting smaller companies to settle out-of-court, but then it took on more that it could handle: IBM. IBM used Linux extensively and even developed its own proprietary Linux distributions. Rather than settle out-of-court, IBM was willing to go all the way with SCO. SCO was unable to actually prove that Linux contained Unix code and thus was forced to drop the suit.

Microsoft's tactic is different. Rather than make money from Linux, it would like to destroy Linux. In a May 2007 survey, Netcraft reported that 56% of web servers ran Apache, a web server program that runs on Linux. (It also runs on Windows, but a lot less well.) Apache's next-biggest competitor was Microsoft, whose IIS program commanded only 31.49% of the web server market. Why does Microsoft lose market share to Linux? A couple of reasons:

1. Price. Linux distributions -- even enterprise-level ones that cost money -- don't cost as much as Windows Server. Not factoring in crazy volume discounts, Windows Server 2003 R2 costs $1,000 in its "standard" version. Red Hat Linux, by contrast, costs $349. Several countries -- that's countries are moving to adopt Linux as the government standard because it's cheaper.
2. Customization. Linux is infinitely customizable because users have access to make crazy modifications if they want. Microsoft is completely closed off. No one is allowed access to the source code. Microsoft has said that Windows Vista Server's code will be a "black box" that no one will ever have access to. Ostensibly, this makes it less hackable. Except that it doesn't.
3. IT people don't need colors. Part of the reason Microsoft proliferates in the desktop environment is its ease of use. Linux is a little harder to use, but IT folks don't care; they can adapt to anything, and if it's cheaper, all the better.
4. Open standards. Linux uses open-source standards, whereas all of Microsoft's stuff is closed-source. This means that one day, Microsoft can decide to withhold your information from you until you cough up some more money, because only Microsoft has the keys to what it's locked you out of.

Posted by Mark at 9:37 AM | Permalink | Comments (0) | TrackBacks (0)

Imagine that you're Paul Wolfowitz. As a member of the Project for a New American Century, you suggested that the United States should engage in democratic nation-building throughout the world. As Deputy Secretary of Defense, you helped plan and implement the Iraq War. Then, you "cut and run" by becoming the president of World Bank. That sounds great, except that your girlfriend, Shaha Riza, works at the World Bank. In fact, she works in a position that's directly below yours. This would create what most people call a "conflict of interest," right? In fact, even under World Bank's own ethical guidelines, family members and significant others can't work in positions in which one person would be the supervisor of another.

So, Wolfowitz sent Riza off to the U.S. State Department, and on the way out, he gave her a $60,000 salary hike for her troubles. Whoops! Maybe he shouldn't have done that!

Wolfowitz helped write the book on neoconservatism, so he knows just what to do: (1) deny that there's anything nasty going on, and (2) turn the mirror back on the people making the allegations, smear them, and insist that they're just out to get you for being as cool as you are.

Ah, that may work in the United States, but at the grownups' table, that doesn't fly. A report released Monday by a World Bank Committee charged Wolfowitz with violating ethical rules, according to The New York Times:

The report charged that Mr. Wolfowitz broke bank rules and the ethical obligations in his contract, and that he tried to hide the salary and promotion package awarded to Shaha Ali Riza, his companion and a bank employee, from top legal and ethics officials in the months after he became bank president in 2005.

Okay, so he can't exactly get away with trying tactic no. 1, denying that there's anything wrong going on. I mean, he did give his girlfriend an extensive pay package, but he just did so after consulting the ethical committee, right? Oh, no, he didn't do that, either. Xavier Coll, World Bank's personnel director, said that he did not give approval to the pay package and, in fact, tried to cover up the salary increase. In fact, according to the report, Wolfowitz ignored recommendations that he recuse himself from the matter altogether. Furthermore, it is the very definition of "conflict of interest" for Wolfowitz himself to approve a pay increase for his partner.

Okay, okay, so that didn't work. Step number two: smear! As a neoconservative, you've got to make the people who disagree with you pay the price for daring to disagree with you. Your own ballsiness will serve as prima facie evidence that you're right, even if you're wrong. To whit, Wolfowitz took the affair into the Court of Public Opinion, saying Apr. 30 that he was the subject of "orchestrated leaks of false, misleading, incomplete and personal information." (As a veteran of the Bush administration, he knows what a strategic leak looks like!) He continued:

The goal of this smear campaign, I believe, is to create a self-fulfilling prophecy that I am an ineffective leader and must step down for that reason alone, even if the ethics charges are unwarranted. [...] I, for one, will not give in to such tactics. And I will not resign in the face of a plainly bogus charge of conflict of interest.

Take that, World Bank! This is all part of a vast, some-kind-of-wing conspiracy!

But, sadly, Wolfowitz is no longer dealing with the kiddie table. In its report, World Bank rebuked Wolfowitz for his public criticisms:

It is also troubling that some of the pronouncements made by Mr. Wolfowitz and by his counsel on his behalf involve attacks on the Board and a Board process which has been mandated by the Development Committee. The Group believes that pronouncements of this sort cannot be regarded as acceptable from any staff member under any circumstance, much less from the President of a global institution. It is the President's responsibility to impose discipline and good order, and to set an example that other staff should strive to emulate. The Group finds that Mr. Wolfowitz has not done so.

Sha-zam! This report must be troubling for Wolfowitz, who, after six years with the Bush administration, was used to being insulated from actual criticism. I wonder if, after all those years around yes-men, Wolfowitz actually started to believe some of the things he said?

President Bush has insisted this entire time that Wolfowitz has done nothing wrong and that he, Wolfowitz, retains the president's faith. (Maybe these two, Donald Rumsfeld, and Alberto Gonzales can all get jobs on the Titanic. Sinking? What sinking? Everything's fine!) Some European governments have insisted that they will not fund World Bank if Wolfowitz stays on as president. White House Press Secretary Tony Snow's attitude today was not as staid as the president's and vice president's had been: "Separately, at some point in the future there are going to be conversations about the proper stewardship of the World Bank. In that sense ... all options are on the table," he said, possibly indicating that a Wolfowitz ouster was both (1) a possibility and (2) that such an event wouldn't be challenged by the White House.

Posted by Mark at 4:27 PM | Permalink | Comments (0) | TrackBacks (0)

Tennessee has come a long way since the Scopes "monkey" trial. According to morons.org, the principal of Davy Crockett High School in Tennessee suspended student Curtis Walsh for participating in the annual National Day of Silence, "an annual nationwide student action in which students take a daylong vow of silence to illustrate the silence in which lesbian, bisexual, gay, and transgender people often suffer discrimination and violence." Today, ACLU's LGBT Staff Attorney sent a letter to the director of the Washington County School System, educating him about student free speech caselaw, encouraging him to get the school system's code of conduct up to speed with free speech jurisprudence (the school system currently prohibits students from engaging in "passive resistance"), and requesting that the principal apologize to Walsh and other students who were censored for exercising their constitutional rights (see Tinker v. Des Moines, 393 U.S. 503 [1969]).

In this case, the principal censored the students out of a fear of reprisal from other students. While those intentions appear to be good, a fear of violence is never a justification for prior restraint.

Posted by Mark at 2:11 PM | Permalink | Comments (0) | TrackBacks (0)

If you've traveled on an airplane in the last six years, then you've been asked for identification. A lot. With parents who lived in different parts of the country, I traveled a lot both before and after September 11. Prior to that date (I think I actually flew in August 2001), you got asked for identification at the ticket counter, ostensibly to prove that the person on the ticket was actually the person who was flying. (Of course, if you were a terrorist, why would you ever use your real name? Furthermore, if you knew that airlines were checking for consistency, why would your ever have an ID -- even a fake one -- whose name didn't match the name on your ticket?)

Then, you got asked two ridiculous questions: "Have your bags been in your possession since you packed them?" Yes. "Has anyone unknown to you asked you to carry anything for them?" No. What purpose do these questions serve? Would anyone ever carry a stranger's things on an airplane? Furthermore, the airline explosion over Lockerbie, Scotland -- which probably prompted the latter question -- was executed by a woman's boyfriend packing her suitcase full of plastic explosives. Not exactly someone unknown to her, and done without her knowledge, as well.

In any event, you got asked for identification just once.

Right after September 11, security was increased to require identification in two more places. Right before the "security checkpoint," you had to show your ID and boarding pass to (1) prove, again, that you were the person on the boarding pass, and (2) prove that you had a boarding pass, since only people who were actually flying somewhere could go past the security checkpoint (and so it remains today). Finally, before you boarded the plane, you had to show the gate agent your ID just to prove -- again -- that you were who you said you were.

All of this adds up to a sort of Wikipedia theory of security -- that is, if enough people analyze an individual throughout the boarding process, then if there are any inconsistencies, they'll be found due simply to the sheer number of people involved in analyzing that person. This assumes, of course, that each person involved -- the ticketing agent, the security screener, the gate agent -- are all equally proficient in security. At each point, though, each security officer is analyzing exactly the same information. If a fake ID gets someone past the ticketing agent, then why wouldn't it get past anyone else? Especially given that it's the ticketing agent who has access to the most information (he or she has access to a computer and a telephone, after all, and is the least hurried person in the process).

Nevertheless, since September 11, we've been asked to show our IDs multiple times before boarding a plane. They've since removed the requirement of showing an ID at the gate (this happened in about 2003, I think), but you are still required to show an ID at the ticket counter (assuming you didn't print your tickets from home and you're checking luggage; if both of these are true, then you can bypass the ticket counter altogether). Where does this get us?

KCTV-5 News in St. Louis, Mo., wanted to find out just how safe this requirement to show an ID (which is a federal law, but is a secret federal law, so you're not allowed to read the text of it; it's enough to know that it exists; cf. Gilmore v. Gonzales). For its investigative report, the station made, from scratch, a convincing-looking ID that contained no markings indicating that it was issued by any state or federal authority but merely appeared to look like such an ID. According to the station, reporters "made it through four security checkpoints in two major airports" with the completely, 100% fake IDs.

What does this prove? (1) The REAL ID Act will do nothing to help security, and if it does help security, then it doesn't do so enough to offset the privacy intrusions the act would require. An identification card with my name on it proves nothing beyond the fact that there is a name on that card. No one actually cross-references that information to make sure that it's true, and realistically, there's no way for that information to be verified. Identification cards don't work as a method of identity verification. Any bouncer at a bar in a college town can tell you that. Why don't ID cards work? Because they're not tied to anything. We're supposed to trust that the information on the card is true, even though there is no independent authority there to verify that the information is true. Such an authority would require privacy intrusion on a massive scale; in order to have true identity verification, we'd need something akin to bar code tattoos (cf. Idiocracy), but even then there's no guarantee that our identity as encoded in the barcode is our actual identity (again, cf. Idiocracy).

At the end of the day, security is about trust. The simplest method of security -- asking who's at the door when the doorbell rings -- is just as secure as requiring people to carry national ID cards everywhere they go, and assuming that those IDs are truthful. If the Land Shark has taught us anything, it's that we can't trust the person on the other side of the door when they say, "Candy gram!"

Posted by Mark at 11:41 AM | Permalink | Comments (0) | TrackBacks (0)

In 1994, Congress passed -- and Bill Clinton signed -- the Communications Assistance for Law Enforcement Act, which, even before the Internet was popular, demanded federal snooping access to the Internet.

Tomorrow, May 14, 2007, is the deadline set forth in CALEA, by which time all ISPs must have installed backdoors into their systems to allow The Feds easy access. It's strange to think that this is a privacy-invading law that was passed before September 11. It was passed before the Oklahoma City bombings, even.

Thankfully (?), the law doesn't require that an ISP be able to decrypt encrypted customer communications, as long as it was the customer, and not the ISP, that encrypted the communications.

[Via Wired Threat Level blog.]

Posted by Mark at 1:36 PM | Permalink | Comments (0) | TrackBacks (0)

The Hill reports that, in vetoing an Iraq War spending bill last week, President Bush attached a signing statement to his veto which read, "This legislation is unconstitutional because it purports to direct the conduct of operations of the war in a way that infringes upon the powers vested in the presidency." House Speaker Nancy Pelosi has suggested that she may take the president to court if he uses a signing statement to sidestep provisions that he thinks are unconstitutional.

I've written about Bush's signing statements before, and why they're unconstitutional (short answer: the executive has neither the authority nor the expertise to interpret the constitutionality of laws). Vice President Cheney and Karl Rove, however, feel that the executive is vested with more power than he really is. Pelosi's attempts to sue the president may fall flat, though. While signing statements that modify legislation or excuse enforcement of certain provisions of legislation are outright unconstitutional, does Congress have the authority to tell the president how to run a war?

Art. I § 8 of the U.S. Constitution grants Congress the sole authority to "[t]o declare war." Remember: the Constitution is not a document of omission, meaning that a branch of government has a power if and only if the Constitution explicitly grants a branch of government that power.

Art. II § 2 makes the president "commander in chief of the Army and Navy of the United States," meaning that he is solely in charge of the military. This means that, while Congress is solely authorized to declare war, the president is solely authorized to execute the war.

As The Hill suggests, the best course of action for Democrats may be to repeal the 2002 Authorization for the Use of Military Force. In order to declare war, Congress must pass a piece of legislation. Anything that Congress passes, it may also repeal. The only constitutional course of action (and, contrary to what some warmongers at Fox News may think, repealing the AUMF is completely, 100% constitutional) at this point is to repeal the AUMF -- something that, of course, Bush must sign and something that, of course, he will never sign. Is the war unpopular enough in Congress that a 2/3 vote can be mustered to override a veto? Probably not. But suing the president isn't the answer. Courts can grant relief from signing statements merely by citing the fact that the president can only "sign" a bill into law or "return" the bill to the house it came from; the Constitution gives him no authority to modify a bill in any way or to enjoin enforcement of certain provisions of it before he signs it into law. But no court will ever suggest that Congress has the authority to regulate a war. What Congress does have -- and what they're using now -- is what John Marshall called "the power of the purse." One of the checks Congress has on the executive is that it may withhold funding for anything it wants, since appropriations must originate in the House of Representatives. Bush has accused the Democrats of "playing politics" with "our troops in uniform," but ignores his own hypocrisy on this matter; Bush, for example, began a war in order to "[play] politics," not to mention that he continued to employ Donald Rumsfeld as Secretary of Defense (in the name of loyalty, perhaps?) even after it was painfully clear that Rumsfeld was incompetent at managing the armed forces.

Furthermore, Bush said today that a Democratic Iraq appropriations bill consisted of "100% of money for special interest projects and 50% of money to go to our troops who wear the uniform." Ignoring the fact that Democrats are apparently amending mathematics itself in their quest for special interest funding, an analysis of the bill, H.R. 2206, reveals that the normally tried-and-true "special interests" line is completely, 100% false this time. The bill contains no earmarks for "special interests" or so-called pork-barrel spending, unless "special interests" includes salaries for U.S. attorneys, funding for nuclear nonproliferation, and a requirement that any money used under the bill must not go toward uses contrary to "laws enacted or regulations promulgated to implement the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment." Then again, we know what the administration thinks about torture (it loves torture! Except when it says it doesn't), so anti-torture requirements may qualify as a "special interest."

Posted by Mark at 11:33 AM | Permalink | Comments (0) | TrackBacks (0)

Remember last year, when several U.S. phone companies -- but not Qwest Communications -- willingly and voluntarily surrendered phone records to the U.S. government? The Electronic Frontier Foundation and the ACLU filed suit against the phone companies, most notably AT&T, which "built a secret room in its San Francisco switching station that funnels internet traffic data from AT&T Worldnet dialup customers and traffic from AT&T's massive internet backbone to the NSA," according to a former AT&T technician.

Things looked bad for the phone companies. They were probably in violation of 18 U.S.C. 2511 et seq., which prohibits phone companies from disclosing subscriber information unless compelled to do so by a court order (which, as far as we know, none of them had been given). Public opinion was against the phone companies and the Bush administration, the latter of which had assured us that he was only looking for terrorists.

Well, Verizon has gotten itself some smart lawyers. Or something. Last week, Verizon filed a motion to have the case thrown out on free speech grounds.

Yes, you heard that right. Free speech grounds. Verizon alleges that sending confidential subscriber information to the government in violation of 18 U.S.C. 2511 "is protected petitioning activity." They must have hired the RIAA's lawyers for this one.

Posted by Mark at 9:21 AM | Permalink | Comments (0) | TrackBacks (0)

The White House released a statement today saying that President Bush intends to veto H.R. 1592, the Local Law Enforcement Hate Crimes Prevention Act of 2007. The reasons are thus:

1. "State and local criminal laws already provide criminal penalties for the violence addressed by the new Federal crime defined in section 7 of H.R. 1592, and many of these laws carry stricter penalties (including mandatory minimums and the death penalty) than the proposed language in H.R. 1592."
2. "The Administration notes that the bill would leave other classes (such as the elderly, members of the military, police officers, and victims of prior crimes) without similar special status. The Administration believes that all violent crimes are unacceptable, regardless of the victims, and should be punished firmly."
3. "Moreover, the bill’s proposed section 249(a)(1) of title 18 of the U.S. Code raises constitutional concerns. Federalization of criminal law concerning the violence prohibited by the bill would be constitutional only if done in the implementation of a power granted to the Federal government, such as the power to protect Federal personnel, to regulate interstate commerce, or to enforce equal protection of the laws."
   

As you might expect, these reasons are totally bogus.

Charge no. 1: "We already have penalties for this!"

The administration's charge that "[s]tate and local criminal laws already provide criminal penalties for the violence addressed" in the bill are, like most Bush administration statements, technically true but also misleading. The bill amends the Violent Crime Control and Law Enforcement Act of 1994 to stiffen mandatory federal sentencing guidelines already in place for hate crimes to include a maximum of ten years in prison for a hate crime that involves firearms, or a life sentence for a hate crime that involves firearms and involves the death, (attempted) kidnapping, or (attempted) sexual abuse of the victim. Yes, we already have state and local penalties for hate crimes, but we already have federal penalties, too, unless the administration takes issue with the entire idea of federal hate crime legislation and not merely this amendment to existing legislation.

Charge no. 2: "Why did you leave people out?"

How many people are killed by firearms specifically because they are "elderly, members of the military, police officers, and victims of prior crimes"? Again, this amendment deals only with crimes committed using firearms. Perhaps the only exception here is one that should be made for police officers, since there really are people who want to kill police officers because they're police officers. But is this any reason to veto this legislation? Moreover, why didn't the administration work with Congress to add into the legislation what it perceives to be such an oversight?

Charge no. 3: "It's not legal!"

The administration asserts that the federal government doesn't have the authority to pass such legislation. Nevertheless, penalties for these hate crimes will only be federally valid if the person crosses state lines or uses "an instrumentality of interstate or federal commerce." I don't know what Constitution the Bush administration has been reading (probably the one which says that he has unlimited power over the government), but the one in the National Archives says that Congress has the power to regulate "interstate and foreign commerce." It has been well-established that the federal government has authority over crimes that cross state lines.

Rep. Louie Gohmert (R-TX) stupidly argued that this bill is "an effort to silence people who have religious beliefs to step forward and say something is wrong." His argument (and it's the same argument that other religious leaders are making) is stupid because there are no First Amendment issues with this bill; the bill's own § 8 states that nothing therein "shall be construed to prohibit any expressive conduct protected from legal prohibition by, or any activities protected by the free speech or free exercise clauses of, the First Amendment to the Constitution." Merely saying, as the Westboro Baptist Church often does, that "God hates fags" does not constitute a hate crime under this Act.

Rep. Lamar Smith, also a Republican from Texas, appeared to dispell the idea that there need be hate crime legislation at all. "Justice should be blind to the personal traits of victims," he said. That would be great, if all crimes were motivated by random reasons. Unfortunately, we feel that motive is just as important as the fact that the crime took place. And we do this all the time with non-hate-motivated murder. There are three degrees of murder, for example. There's a difference between premeditated murder and unpremeditated murder. For some reason, premeditated murder is more distasteful to us, and we have harsher punishments for it than "regular" murder. So, too, is it for hate crimes: killing someone because he or she is black, a woman, homosexual, transgendered, Zoroastrian, in a wheelchair, or Albanian is more heinous than killing someone because the murderer is a psychopath or jealous.

Posted by Mark at 12:05 PM | Permalink | Comments (0) | TrackBacks (0)

If only Democrats were calling for Alberto Gonzales' head, then the administration's insistence that Democrats "like to get headlines more than they like to get the facts" regarding the U.S. attorney firing scandal would make sense. But the administration is continuing to insist that this is a partisan political game at the same time that both Democrats and Republicans think that Gonzales' answers don't add up. Sens. Arlen Specter (R-PA), Lindsey Graham (R-SC), and Chuck Hagel (R-NE) all find Gonzales' answers unacceptable. The list of Republican senators calling for Gonzales' resignation includes John McCain (R-AZ), Tom Coburn (R-OK), John Sununu (R-NH), and Gordon Smith (R-OR).

In order for the administration to believably cry "partisan politics," it would have to be just Democrats saying Gonzales should resign. Sadly for them, that's not the case. Now, the Office of Special Counsel is investigating whether or not Karl Rove's aides may have violated the Hatch Act in making political "presentations" to various executive agencies.

Whereas crying foul to Republicans used to work, Republicans are either (1) no longer capable of plausibly following the Bush party line and appearing as though they're upholding the laws, or (2) actually getting sick and tired of all this politicking interfering with national business.

Posted by Mark at 12:17 PM | Permalink | Comments (0) | TrackBacks (0)

I have written in this space before about President Bush's illegal, warrantless, poorly-justified wiretapping program. Now, The New York Times editorializes about changes President Bush would like to make to the Foreign Intelligence Surveillance Act of 1978 (FISA), which governs when, how, and why the U.S. government engages in electronic surveillance. According to the Times, Bush "has submitted a bill that would enact enormous, and enormously dangerous, changes to the 1978 law on eavesdropping." I was unable to find the bill in THOMAS, the Library of Congress' searchable legislation database, so it must be a very new bill, indeed.

But the search did turn up two other bills regarding FISA. One, authored by Sen. Arlen Specter (R-PA), would make good changes to FISA. I like Specter because he is, in Elizabeth's words, "an old-school conservative," meaning that he wants the government out of his business. Specter was livid when he learned about Bush's wiretapping program -- which is to say, when he read the newspaper in December, 2005, because Bush never informed Congress about the program. Specter was one of the program's biggest critics, and in his bill, S. 187, he makes it clear what he thinks about the president's bogus assertions that he has "inherent" constitutional powers to engage in warrantless wiretapping:

Nothing in this Act shall be deemed to amend those provisions of FISA concerning any wire or radio communication sent from outside the United States to a person inside the United States. The constitutionality of such interceptions shall be determined by the courts, including the President’s claim that his article II authority supersedes FISA.

Yeah! I have a love-hate relationship with Sen. Specter, since he will champion civil liberties, but he will also cut deals, as he did with the president over Samuel Alito (Specter agreed to pass Alito through the Senate Judiciary Committee in exchange for the promise that the same committee -- and not the Intelligence Committee -- would be allowed to hold hearings on the president's wiretapping program).

Sen. Diane Feinstein (D-CA) submitted a similiar bill, S. 1114. Hers does not contain as damning a sentence as Specter's, but it does limit the president's authority to be a jerk:

No provision of law shall be construed to implicitly repeal or modify this title or any provision thereof, nor shall any provision of law be deemed to repeal or modify this title in any manner unless such provision of law, if enacted after the date of the enactment of the Foreign Intelligence Surveillance Improvement and Enhancement Act of 2007, expressly amends or otherwise specifically cites this title.

This eliminates the president's assertion that the 2001 Authorization for the Use of Military Force implicitly gave him the authority to use warrantless wiretapping in his War on Terr'. If this bill were to be signed (which is unlikely, as Cheney dislikes anything that places a check on the executive), anytime the president wanted to engage in wiretapping, he would have to go through the FISA process and wouldn't be able to cite any made-up authority that he thinks he has.

Posted by Mark at 10:46 AM | Permalink | Comments (0) | TrackBacks (0)

From The New York Times, an editorial criticizing the teaching of abstinence-only education, which, at best, is just as effective as contraceptive-based sex education. The federal government has required that, in order to receive federal funding for sex education, that education must be abstinence-based. NYT reports, "At least nine states, by one count, have decided to give up the federal matching funds rather than submit to dictates that undermine sensible sex education."

Next, Think Progress digs up the fact that, during the Bosnian War, then-Governor George W. Bush -- a presidential hopeful -- criticized President Clinton for not having a timetable for getting out of the war: "I think it’s also important for the president to lay out a timetable as to how long [troops] will be involved and when they will be withdrawn," Bush said in 1999. Today, President Bush vetoed a military spending bill because it contains a timetable for withdrawal from Iraq. He reasons that, if a timetable is drawn up, terrorists will wait us out. He admitted last week in an interview on PBS's Charlie Rose that his only rationale for this oft-repeated conclusion was "just logic. [...] I mean, you say we start moving troops out. Don’t you think an enemy is going to wait and adjust based upon an announced timetable of withdrawal?”

Finally, CNN reports that Iraqi Prime Minster Nuri al-Maliki "has created an entity within his government that U.S. and Iraqi military officials say is being used as a smokescreen to hide an extreme Shiite agenda that is worsening the country's sectarian divide." It seems that the prime minister -- once a leader of anti-Saddam Shiite groups in Iraq -- may be using his official power to exercise vengeance (or something) against Sunnis. But it's not a civil war.

Posted by Mark at 3:11 PM | Permalink | Comments (0) | TrackBacks (0)