And somehow, I'm still surprised. Attorney General Michael Mukasey, the last word in enforcing the laws of the United States, has decided not to enforce the law. Specifically, he will not press criminal charges against former U.S. attorney Monica Goodling and others in the Justice Department who last month were discovered to have used political affiliation as a criterion for hiring. Goodling, et al. appear to be definitely guilty of violating the Hatch Act, which among other things prohibits federal employees from using their federal offices to solicit or discourage activity in a particular political party.

Despite the mountain of evidence against them, Mukasey has decided that the people involved in this scandal have been tortured enough. "The officials most directly implicated in the misconduct left the Department to the accompaniment of substantial negative publicity," he said. Clearly the most brutal punishment possible for committing a crime is being ridiculed in public. "I doubt that anyone in this room would want to trade places with any of those people," said Mukasey.

Poor babies! Goodling and the other former Justice employees who have left have been subjected only to having "[t]heir misconduct [...] laid bare by the Justice Department for all to see." Current Justice employees involved in this scandal have been subjected to "disciplinary referrals."

And what of the crimes they committed? This is not an issue of sexual harrassment in the office. This is not an internal issue. Multiple people, knowingly and repeatedly, violated the laws of the United States. Moreover, these people were employees of the Justice Department and were paid by us, the taxpayers, to uphold those laws.

Mukasey hardly thinks that it's worth his time. It depends on your definition of "crime," which for Mukasey, is quite elastic. Listen to this gem: "Where there is enough evidence to charge someone with a crime, we vigorously prosecute. [...] But not every wrong, or even every violation of the law, is a crime." That's odd, because according to Merriam-Webster, it is the very definition of a crime!

Clearly Mukasey, like Alberto Gonzales before him, is a "loyal Bushie." The Justice Department vociferously prosecutes alleged, phantom instances of voter fraud that didn't happen, but when it comes to real crimes committed by Justice employees, a trial is not the answer: public humiliation is good enough!

I think I'm going to be sick.

Posted by Mark at 11:31 AM | Permalink | Comments (0) | TrackBacks (0)

The U.S. District Court for the District of Columbia ruled, in stark and certain language, that President Bush's assertion that all of the people in his employ are protected by executive privilege is baseless. The District Court was ruling specifically on the issue of whether or not Bush could invoke executive privilege to prevent his former counsel Harriet Miers and White House chief of staff Joshua Bolten from testifying before Congress. Bush directed Miers and Bolten not to show up to testify at all and sent a letter to Congress in their place, alerting members of the House Judiciary Committee that they would not be answering their summons as required by law.

Judge John D. Bates, himself appointed by George W. Bush, was unequivocal in his rejection of Bush's assertion of executive privilege:

The Executive cannot identify a single judicial opinion that recognizes absolute immunity for senior presidential advisors in this or any other context. That simple but critical fact bears repeating: the asserted immunity claim here is entirely unsupported by case law. In fact, there is Supreme Court authority that is all but conclusive on this question and that powerfully suggests that such advisors to not enjoy absolute immunity.

The issue of "executive privilege" is murky and is not to be found in either the Constitution or federal statutes. The privilege has been created by case law, under the assumption that the president may not be able to get sound advice from his advisors if that advice cannot be delivered candidly and without fear of it being rebroadcast to the entire world. Executive privilege was slightly curtailed by the U.S. Supreme Court in United States v. Nixon. In that case, the court ruled that executive privilege is not absolute and specifically cannot be used to shield the executive from criminal investigation.

In its opening pages, Judge Bates' decision re-emphasizes -- in case President Bush forgot -- that "[i]t is emphatically the province and duty of the judicial department to say what the law is." Bush has asserted that he alone should have the ability to decide certain issues of constitutionality, espeically when it comes to the War on Terr'. Judge Bates, however, quotes from the very recent Boumediene v. Bush when he declares that particular branches of the government may not "switch the Constitution on or off at will." Bush needs to be reminded of this fact frequently, despite the fact that the federal courts have rejected every single one of his assertions of absolute power.

Posted by Mark at 3:02 PM | Permalink | Comments (0) | TrackBacks (0)

My new best friend Glenn Greenwald has been liveblogging the Senate debate today regarding the extension of the Protect America Act (PAA), a piece of legislation passed last year that made temporary alterations to the Foreign Intelligence Surveillance Act (FISA). The temporary alterations expire Feb. 2. As Greenwald has pointed out, the president has been playing fast and loose with his alleged desire for national security ever since the bill came up for debate. Bush insists that immunity for telecom companies that complied with the administration's request for wiretapping is essential to our national security. In fact, the president cares about national security so much that he's willing to play games with it in order to get what he wants.

Wait, what?

Last August, when the original PAA was passed, Bush spun it as necessary for us to maintain our security; without it, we would be powerless to access terrorists' emails here in the 21st century. Telecom immunity is icing on the cake. Now, if the Senate doesn't vote in favor of making the PAA permanent and enacting telecom immunity, Bush will spin Democrats as the party that wants the terrorists to win. But it's not the Democrats who are using fear to their advantage. Bush has said that he will veto any bill that contains telecom immunity. If Democrats refuse to allow such a provision, and they allow the PAA to expire, Bush will be able to say that they're playing with national security for political reasons. If Democrats pass a 30-day extension to the PAA, though, Bush has said he will veto that, as well:

The administration explicitly admits that the President won't allow an extension because he wants to repeat the success of last August -- when Congressional Democrats capitulated to every Bush demand because they were told they had to act within a matter of days, i.e., before their recess, lest they cause us all to be killed by The Terrorists. "They need the heat of the current law lapsing to get this done," said a senior administration official, courteously granted anonymity by The Politico's Allen to issue these threats.

This veto threat is one of the President's most brazen acts ever, so nakedly exposing the fun and games he routinely plays with National Security Threats. After sending Mike McConnell out last August to warn that we will all die without the PAA, Bush now says that he would rather let it expire than give Congress another 30 days. He just comes right out and announces, then, that he will leave us all vulnerable to a Terrorist Attack unless he not only gets everything he wants from Congress -- all his new warrantless eavesdropping powers made permanent plus full immunity for his lawbreaking telecom partners -- but also gets it exactly when he wants it (i.e., now -- not 30 days from now).

How strange that the PAA is necessary right now so that we can go after terrorists, unless the bill includes a provision that the president doesn't like, in which case, the terrorists will apparently ... what? Wait thirty days before communicating with each other about their dastardly plans? Every American should be outraged at what's going on, here.

What is going on? Your president, while mouthing platitudes about needing the PAA for national security, is more than willing to let the allegedly necessary provisions of PAA expire so that he doesn't have to make a compromise at all. This leads us to two conclusions: one, the president doesn't care about national security; or two, the PAA's provisions aren't actually necessary for national security. If the former is true, then the president arrives at the border of pure evil, as he is willing to place American lives in danger for political expediency. If the latter is true, then PAA's provisions are for something other than national security, and what this other thing is, we don't know. In this latter case, the president is not pure evil, but is instead a schemer, claiming that he needs PAA's provisions, when in fact he doesn't. There's also the issue of telecom immunity. Telecom immunity doesn't immediately protect us from terrorists. What it does do is protect the promises Bush and friends may have made to AT&T, Verizon, et al. in exchange for their cooperation in engaging in warrantless electronic surveillance.

So far, it looks like the Senate has -- narrowly -- defeated a cloture vote. A cloture vote is a vote to cut off debate about a particular piece of legislation. Republicans wanted to invoke cloture and force a vote on the PAA extension; Democrats would have none of it, preferring to either stave the vote off until they got rid of the amendments they didn't like or keep filibustering until Feb. 2, when the PAA expires.

Hopefully they will be able to stave any vote off until Feb. 2, at which time PAA will expire, forcing the president to comply with FISA as he should have always done.

Posted by Mark at 3:32 PM | Permalink | Comments (0) | TrackBacks (0)

The Raw Story reports that the Senate will proceed with an update to the Foreign Intelligence Surveillance Act that includes retroactive immunity for telecom companies that complied with the Bush administration's request for wiretapping. Federal law prohibits telecommunications companies from disclosing subscriber information to anyone without a court order. President Bush and Vice President Cheney maintain that telecom immunity is essential to the War on Terr'; otherwise, telecom companies won't want to help out the government for fear of lawsuits.

That's all well and good, but FISA already contains provisions for lawsuit immunity. Under current law, if the administration goes through the process of obtaining a FISA warrant, then anyone who helps the administration in executing the warrant is immune from prosecution.

This all begs the question: what is the executive branch doing that is so secretive and so pressing that not even FISA is sufficient to control it? Bush and Cheney wish to engage in wiretapping with no oversight at all, which is exactly what FISA was enacted to prevent in the first place!

Thankfully, Sen. Chris Dodd (D-CT) has promised to filibuster any legislation that comes to the floor with an immunity provision. And well he should, for not all telecoms blindly agreed to the Bush requests. Those that refused questioned the legality of the request and were worried that they might be open to prosecution. The rest acquiesced, for reasons that are unclear (and that we're not allowed to know). Opening up telecom companies to prosecution lets them know that they broke the law and that when the president comes to them with a questionable request, they should think hard about it, as they may be open to prosecution from unhappy citizens whose conversations were recorded in a way that is against the law.

Posted by Mark at 3:24 PM | Permalink | Comments (0) | TrackBacks (0)

Via Daily Kos comes a story of a president who doesn't respect the legislature in his country.

The story is of course about George W. Bush. Most of Congress left for the Christmas holidays, but they're still in session. Every day, a member of the House and the Senate conduct pro forma sessions that sometimes last less than a minute. No business gets conducted at a pro forma session, but Congress is still technically in session. This has been occurring to prevent Bush from making temporary recess appointments to federal benches. Recess appointments are emergency presidential appointments that can be made when Congress is out of session. They do not require Senate confirmation. A recess appointment lasts until the next Congress convenes.

The pro forma sessions have had the advantage of preventing a "pocket veto." When a president receives a bill from Congress, he can do nothing to it in addition to signing it or vetoing it outright. If, after ten days of sitting on the president's desk (Sundays excepted), Congress has not adjourned, then the bill becomes law. However, if Congress adjourns during those ten days, then the bill is pocket vetoed. (See U.S. Const. art. I, § 7.)

President Bush has refused to sign into law H.R. 1585 [PDF], a defense spending bill that contains a provision that would allow victims of Saddam Hussein to make claims in Iraqi courts. The bill contains other good provisions that Support Our Troops, so the president does not want to outright veto it or, perhaps, draw attention to the nefarious reasons why he's vetoing it. Neither does he want to sign it into law with that provision in place. If he does nothing, it would constitute a pocket veto.

At least, in reality it would. President Bush lives in a universe of his own in which he is the "decider." He has reserved for himself, in various signing statements, powers of interpretation that are traditionally (and legally) given to other people. Now, he has decided that Congress's pro forma sessions don't constitute being in session.

Furthermore, Bush has immediately defined terms in the debate by suggesting that, if Congress were to take him to court to have the court determine that he's lost his mind, such litigation would be "unnecessary." This is the latest in a string of statements he has made that are contemptuous of Congress attempting to exercise any power that involves regulating him, his agenda, or his office (even though such powers are explicitly granted to Congress in the Constitution).

As justification for his decision, he cites The Pocket Veto Case, 279 U.S. 655 (1929). (And, yes, the real name of this case is "The Pocket Veto Case.") At issue in 1929 was whether or not "adjournment" in the Constitution meant any interim adjournment of Congress (including a recess), or the final adjournment of a Congress. The Supreme Court disagreed that "the word 'adjournment' as used in the constitutional provision refers only to the final adjournment of the Congress. The word 'adjournment' is not qualified by the word 'final'; and there is nothing in the context which warrants the insertion of such a limitation."

Furthermore, as to whether or not an adjournment of Congress prevents the president from returning the bill, the Supreme Court said that it did. Since the House from whence it came was not in a position to receive his "objections" and "enter the objections at large on their journal," there would be no way for the president to fulfill the obligations required of him to satisfy a completely constitutional veto (no Congress in session means no one to receive his objections and no one to enter anything into a journal). This is the definition of a pocket veto.

Even though he cites The Pocket Veto Case, the issue at hand now has nothing to do with the definition "adjournment" and whether such adjournment prevents the president from "return[ing]" the bill to Congress. It has everything to do with whether or not Congress has adjourned. It would be difficult to prove that Congress is not currently in session, since it is clearly in session as far as all definitions go. (Were it not in session, then the president would be able to make those recess appointments.) Furthermore, he claims that he is vetoing the bill, and yet at the same time, he claims that he cannot -- and is not -- vetoing the bill outright. This makes no sense.

Were this to go to a court, I hope that any competent judge would rule that Bush's refusal to veto the bill (and his subsequent, explicit invocation of the "pocket veto") does not constitute an actual veto. Moreover, it would be hard for such a judge to rule that Congress is not in session, pro forma though it may be. One of the commenters at Daily Kos suggested that Democrats would relent -- as they always do, for some reason -- instead of actually filing suit. I really hope this doesn't happen. Democrats really should stop letting themselves be beaten up and come back for more. This is like watching a Lifetime movie (except, in the Lifetime movie, the woman usually ends up killing the abusive husband).

Posted by Mark at 3:35 PM | Permalink | Comments (0) | TrackBacks (0)

Wednesday, the Environmental Protection Agency denied the petitions of seventeen states, including California and New York, to set their own vehicle emissions guidelines. California had passed legislation enforcing tougher emissions standards, but federal law requires states that wish to have different guidelines get a waiver from the EPA before enforcing those guidelines. The EPA dragged its feet for over a year, prompting Gov. Arnold Schwarzenegger to file a lawsuit against the EPA, demanding that it make a decision.

In denying the petitions of seventeen states, the EPA said that it didn't want confusion over a "patchwork" of different state emissions laws. This argument is bogus and assumes that there are no other regulations that consist of a "patchwork" of state laws. Automobile manufacturers would not have to worry about different laws; instead, they would manufacture vehicles that met the strictest of the state regulations. Have you ever noticed that your Little Debbie Snack Cakes contain a seal that says they were approved by the Pennsylvania Department of Agriculture? Here's an example of a "patchwork" of state laws that, somehow, an entire industry has managed to negotiate. Oh, pity the incompetent auto manufacturers!

Baked goods sold in Pennsylvania must pass more rigorous examination than baked goods sold in any other state, or nation-wide. Rather than complain to the federal government that Pennsylvania's laws would result in a "patchwork" of baked goods regulations, bakeries that sell products nationally instead opted to make their products to the specification of the Pennsylvania Department of Agriculture, the strictest of the state laws. The auto industry, unfortunately, is used to coddling by the government, and as such, will have nothing of "innovation."

The article from The New York Times also hints at a back-room deal between the Bush administration and auto manufacturers. Auto manufacturers mysteriously dropped their antagonism for the Energy Independence and Security Act of 2007, leading some to suspect that the administration traded this EPA ruling for support of the energy bill. As the Times notes, California has received fifty EPA waivers since 1970.

Gov. Schwarzenegger has faced off against killer robots, killer aliens, and Danny DeVito (twice!). President Bush is of no concern. That's why he, along with the governors of the other states that wanted their own emissions standards, is suing the EPA. Schwarzenegger claims that the fedreral energy bill doesn't go far enough toward addressing the issue of global climate change.

This ruling isn't particularly surprising, given that the Bush administration had to be taken to court (in Massachusetts v. EPA) before it would enforce the nation's laws; namely, laws regarding carbon dioxide emissions, which the EPA didn't consider a "pollutant."

Posted by Mark at 11:09 PM | Permalink | Comments (0) | TrackBacks (0)

Sen Joe Biden said at a campaign stop in New Hampshire today that, if the president bombed Iran, "I will move to impeach him."

According to The Raw Story, former Florida congressman and MSNBC host Joe Scarborough defended a bombing of Iran, saying that it is unfortunate "when you have Ahmadinejad talking about obliterating Israel, talking about obliterating the United States, talking about building nuclear weapons, how we can't stop him. Saying just absolutely horrendous crazy things, sending Iranian forces into Iraq to kill American troops." What Scarborough fails to understand, though, is that the president cannot engage in war without the express authorization of Congress. It's quite plain in Article I: Congress has the sole authority to declare war. For the president to engage in any action that could be construed as a declaration of war, he needs Congress' authority. If he engages in such actions without Congressional authorization, he has broken the law.

All right, Justice Scalia, let's play hardball. What was the "original intent" of the writers of the Constitution in giving Congress authority to declare war, and not the president? It was to prevent exactly this kind of situation: where a president unilaterally goes to war. Going to war takes money, and only Congress can decide how to spend the nation's money, thus only Congress can authorize going to war and spending that money. Furthermore, it acts as a check against the president. Sure, he might be in charge of the armed forces, but he can't use them unless Congress says so. Funny how this president is testing the limits of constitutional authority, isn't it? They were written for just this sort of occasion.

Unless Alberto Gonzales has advised the president that he does have the authority to go to war against Iran, using a legal doctrine he made up last night, the president will have no justification for going to war. The machinery of government is slow and deliberate, so as to prevent hasty decisions from being made.

What about "impeachment"? While the president's authorization of war is certainly unconstitutional, it does not follow that that authorization is criminal. But Biden is certainly welcome to try.

Posted by Mark at 12:31 PM | Permalink | Comments (0) | TrackBacks (0)

Dear Senator Feinstein:

I strongly urge you to vote against the nomination of Judge Michael Mukasey for the position of Attorney General. Judge Mukasey has shown that he will be no better than former attorney general Alberto Gonzales in standing up to the president and enforcing the Constitution instead of the talking points of the Bush administration.

Judge Mukasey's refusal to say, during Judiciary Committee hearings, that waterboarding is definitively torture is troubling. After World War II, the United States prosecuted German and Japanese soldiers who performed simulated drowning for war crimes. Why is waterboarding any less illegal now than it was fifty years ago? Furthermore, international authorities on interrogation, as well as several former Judge Advocates General of the United States (who sent Sen. Charles Schumer a letter saying as much), all agree that waterboarding is torture. This is not, say these authorities, an issue that needs to be open to debate. Without question, waterboarding is torture. Yet, Judge Mukasey, who would be responsible for enforcing the law, is either unable or unwilling to come to that same conclusion.

Reportedly, Judge Mukasey and Sen.Schumer came to a private agreement that the former would support a bill banning certain interrogation techniques, waterboarding being one of them. This agreement strikes me as disingenuous, for even if such a bill gained the support of enough Republicans to pass, who is to say that President Bush wouldn't veto it outright? Experience has shown that President Bush insists that he does not condone the use of torture, but nevertheless wants to retain the ability to use it, ostensibly in a completely fictional "24"-style scenario in which torture is the only way to save the country from an imminent threat. This scenario, according to professional interrogators, never happens.

Beyond the issue of torture, Judge Mukasey has shown that he has the same belief as Attorney General Gonzales when it comes to presidential power. Like Gonzales, Judge Mukasey believes that the president has special wartime authority to suspend habeas corpus and engage in warrant-less wiretapping, even though these "powers" are nowhere to be found in the Constitution or federal statutes. The U.S. Supreme Court and lower federal courts have repeatedly struck down these over-reaching assertions of executive power, and yet, the administration continues to make them. Judge Mukasey has offered no evidence to suggest that he will respect the limitations of the executive's authority any more than Gonzales did.

President Bush has insisted, like a petulant child, that he will not nominate anyone else if Judge Mukasey is rejected by the Senate. I urge you to call the president's bluff, for if the Senate rejects Judge Mukasey, the onus is on the president to nominate someone else, and if he fails to do so, then the vacancy in the Attorney General's office is his fault and his alone for refusing to compromise. Even though he has attempted in recent weeks to suggest that Congress is ignoring the nation's business, it will be up to him to explain why he didn't want to nominate someone who would reject torture outright. If "we do not torture," as he often says, then he should be prepared to back his assertion by nominating someone who will not condone any form of torture.

I wish to thank you for your time by allowing me the opportunity to communicate with you on this issue. I hope that you will take this information to heart and reject Judge Mukasey's nomination.

Sincerely,
Mark Wilson

Posted by Mark at 12:33 PM | Permalink | Comments (0) | TrackBacks (0)

I don't know about New York state's drivers licenses, but on the back of my California drivers license, there's a warning: "This License is issued as a license to drive a motor vehicle. It does not establish eligibility for employment, voter registration, or public benefits." And yet, the drivers license has become the identification of choice for most organizations. It immediately proves your identity, whether you're using your credit card, taking an airplane, or buying five cases of MD 20/20.

But perhaps the drivers license shouldn't be used this way. After all, the only thing it's supposed to do is prove that, in the opinion of the state of issue, you're competent to drive a car. It just so happens that it contains a whole bunch of other interesting information, like your name, your birthdate, your picture, and your signature. Until recently, in most states, it also carried your social security number. In 2000 (the year I got my first drivers license), Ohio allowed you to elect whether or not you wanted your social security number on your drivers license (I chose "no"). Currently, California doesn't put your social security number on there at all.

The ubiquity of a drivers license (practically every adult has one) and the convenience (you have to carry it whenever you drive, so most people put it in their wallets and forget about it) make it a natural choice for a de facto identification card. But the problem is that illegal immigrants can't get them, since they don't have social security numbers. In most states, you need a social security card and another document to prove that you are who you claim to be. The social security card is, for all intents and purposes, a federal ID number. You use it everywhere, even on that most official of places, your taxes. Because the social security number's veracity is backed by the "full faith and credit" of the federal government, most states and organizations take it for granted that your social security number is a good way to identify you. Because if you can't trust a social security number, not being able to get into a Star Trek convention is the least of this nation's problems.

In steps New York Governor Elliot Spitzer. Two months ago, Spitzer announced that he would be changing New York's policy for issuing drivers licenses. Social security numbers would no longer be a requirement for establishing identity, meaning illegal immigrants -- who can't get social security numbers -- could get drivers licenses. In a press release, the New York DMV spun the policy change as an issue of public safety:

The DMV estimates that tens of thousands of undocumented, unlicensed and uninsured drivers are currently on New York’s roads, contributing to increased accidents and hit-and-runs as well as higher auto insurance rates. In addition, bringing more New Yorkers into the system will ensure a greater number of people have a license record that, if necessary, can be used to enhance law enforcement efforts.

The press release goes further into the history of identificationr requirements in the state of New York. It says that social security number requirements were first enacted in 1995 "as part of an effort to punish parents who were not paying child support." This is a long way away from establishing identity, if true. In 2002, the DMV allowed people who were ineligible for social security numbers to obtain a drivers license. provided they obtained a letter from the Social Security Administration stating they were ineligible for a social security number. The only change happening to DMV policy is that the DMV no longer requires an applicant to provide a letter of ineligibility; the applicant just checks a box on the form stating that he is ineligible.

Security, says the press release, will be assured by expanding the number of documents you can use to prove your identity. Furthermore, photo recognition technology -- in use in 18 other states -- will be used to prevent people from obtaining multiple licenses.

But what are these documents you can use?! New York uses a very interesting system for determining your identity. The state assigns point values to particular forms of identification -- a U.S. passport is worth 4 points, a military photo ID is worth 3 points -- and then tells you how many points you need to get a particular kind of license. To get a new drivers license, for example, you need 6 points of identification. If you cobble together enough documents to prove you are who you claim to be, then congratulations! You have a drivers license!

There is nothing wrong with this idea, but anti-immigration groups want you to think there is. The New York Post, for example, is concerned about illegal immigrants voting:

While it is up to the local boards of election to determine who is eligible to vote, it is rare that election officials check into a person's legal status, particularly if they have identifying information on their voter-registration form like a driver's license or the last four digits of a Social Security number, [Board of Elections spokesman Lee] Daghlian said.

In order to register, a person must sign an affidavit stating that they are an American citizen.

"You assume that people don't lie, and that's what the form says," Daghlian said. "It's an affidavit you sign under penalty of perjury."

But Daghlian concedes, "Nobody checks it" to determine its validity.

At the polls, voters are asked to show some form of photo ID, like a driver's license, to prove their identity, Daghlian said.

"I suppose it would be [tough to catch] if someone wanted to take advantage of the system and try to get a number of people registered who aren't citizens and went ahead and got them driver's licenses," he said.

Well, here's problem number one: don't use drivers licenses to determine eligibiity for voting, because that's not what it's for. In California, I haven't been asked for my drivers license as proof of my identity. Maybe that's because of the disclaimer on the back of my drivers license. Maybe New York should invest in such a disclaimer?

Also, the part about trying to get a number of people registered illegally doesn't really happen. There's not a lot of individual voter fraud in this country. What there is in this country is a lot of systematic election fraud. That's large-scale fraud perpetrated by an official entity, like former Ohio Secretary of State J. Kenneth Blackwell. There just isn't pervasive individual voter fraud going on.

This is what all states should do. Even illegal immigrants need to drive, and they will drive whether or not they have licenses. It's a great fallacy that a lot of people -- largely on the right -- believe: making something illegal will stop people from doing it. Humans don't work that way. They will only stop doing that activity if their own interest in that activity is less than their interest in not being prosecuted. (Also, you need to multiply their interest in not being prosecuted by the probability that they'll get caught.) Illegal immigrants are terrified of taking advantage of government services, though, because they're afraid that any interaction with an authority may result in them getting deported. Allowing them to get drivers licenses is a step in the right direction toward telling them that they should be accessing government services. They're paying taxes for those services; why shouldn't they be allowed to take advantage of them? Whatever happened to the belief that anything can be procured for the right price? If an illegal immigrant can pay the $25 to get a drivers license, why not let them have it? It doesn't confer any rights or benefits; it just lets them drive a car.

Posted by Mark at 11:38 AM | Permalink | Comments (0) | TrackBacks (0)

While President Bush would like Congress to allow phone companies to remain complicit in breaking the law, they're having none of it. In a rare exercise of its power, Congress has refused to grant immunity to telecommunications companies that participated in the illegal, poorly-justified, warrantless wiretapping program. The companies voluntarily provided information to the administration without a warrant, in violation of FISA, the Fourth Amendment, and 18 U.S.C. 2511, which explicitly prohibits phone companies from disclosing subscriber information without a court order.

According to an article in today's Wall Street Journal, the Democrats want to amend FISA to permit more court oversight of wiretaps. The administration opposes this. Naturally, we all know that the administration's real reason for not wanting court oversight is due to Vice President Cheney's desire for total control of the government. But they obviously can't say that this is their reasoning. So, then, what is their public reasoning for permitting phone records to be searched without a warrant? Let's look to President Bush's speeches.

In an Oct. 10 speech, Bush offered the following reasons for extending the Protect America Act, which is in itself an extension of several USA PATRIOT Act provisions:

It must give our intelligence professionals the tools and flexibility they need to protect our country. It must keep the intelligence gap firmly closed, and ensure that protections intended for the American people are not extended to terrorists overseas who are plotting to harm us. And it must grant liability protection to companies who are facing multi-billion-dollar lawsuits only because they are believed to have assisted in the efforts to defend our nation following the 9/11 attacks.

Bush never explains how non-PATRIOT Act regulations don't "give our intelligence professionals the tools and flexibility they need to protect our country." How does requiring a warrant from a secret court hamper intelligence officials? Furthermore, FISA explicitly provides for 72 hours' worth of surveillance while a warrant is pending. If the Bush Administration feels that surveillance needs to be conducted right now, such surveillance can be done for three days while a warrant application is reviewed. What surveillance is so urgent that it must be done not only sooner than "immediately," but must be done without a warrant ever being issued at all?

Keeping "the intelligence gap firmly closed" is a function of both our spying regulations and the competency of our intelligence community. Since Bush will not tell us how warrants hamper intelligence-gathering, we must assume that our ability to gather intelligence (and here, the phrase "intelligence gap" evokes the old trope of the "missile gap" between the United States and the Soviet Union, which was itself a lie, as there was no point when the Soviet Union ever had more missiles than we did) is limited only by our intelligence community itself. Such activities as firing Arabic translators for being homosexual definitely adversely affect "the intelligence gap," but those activities are actively pursued by the Bush Administration and are not a result of the limitations of warrants.

Note how Bush phrases his last justification: he doesn't want "protections intended for the American people" to be "extended to terrorists overseas." But terrorists overseas are not at issue, and they never have been. Our government is free to monitor communications that occur completely overseas however they want. What is at issue is when terrorists overseas communicate with terrorists in the United States. Then, the long arm of surveillance turns its magnifying glass back upon the United States, and it is at that point that FISA kicks in, to ensure that the mechanisms of surveillance are not used upon what FISA calls "United States persons." FISA exists to ensure that our intelligence mechanisms are neither (1) accidentally used upon American citizens; nor (2) intentionally used upon American citizens. It is for the latter reason that FISA was created in the first place: President Nixon abused the government's surveillance powers and spied on Americans for his own reasons. FISA was created in response to make it very clear that the government was not to spy on American citizens or residents. If it were to do so, it would have to go through domestic channels of obtaining warrants in regular courts.

If Bush has a problem with FISA, it may very well be because he wants to be able to spy on Americans without anyone knowing about it. At the same time, he doesn't want anyone to know about it. Therefore, he uses FISA as his cover. This is also explicitly illegal, as FISA itself prohibits unlawful surveillance from being conducted "under color of law."

His explanations don't make any sense: he claims that current law isn't enough to stop terrorism; in fact, current law is more than sufficient to stop terrorism. Judges are routinely awoken in the wee hours of the night to sign warrants. They are "on call" 24 hours a day, so it isn't a matter of the time requirement involved to obtain a warrant. FISA allows surveillance for up to three days before a warrant is required, so it isn't a matter of the need for immediacy in conducting surveillance.

What, then, Mr. Bush, is your reasoning? Why must you be given the power to conduct surveillance -- possibly on American citizens -- with no oversight and no accountability? Are you asking us to just trust you? "Just trust me" is contrary to the Constitution, and since the Constitution makes no distinction between presidential powers in wartime or peacetime, the only legal recourse for you is to seek a Constitutional amendment allowing you to suspend certain powers of Congress and the judiciary, and take those powers as your own -- as well as suspend some civil liberties -- in times of war. Are you prepared to ask for such an amendment? If you're not, then you'd best comport yourself to the law. As Justice Jackson once wrote, "Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system."

It is our Constitution that keeps the United States from devolving into a dictatorship.

Posted by Mark at 2:05 PM | Permalink | Comments (0) | TrackBacks (0)

Hot on the heels of my last post comes a story from Yahoo! Finance (via The Consumerist) about how an elderly woman had her identity stolen -- only to be screwed by mandatory binding arbitration:

Irene Lieber, 61, lives in a dilapidated apartment in Brooklyn, N.Y., where she scrapes by on $759 a month in Social Security disability payments. Sometime before 2006, her MBNA credit card was stolen, and a collection agency began hounding her for charges she says she never incurred.

"I said I wanted to see the signatures -- who had signed for these purchases? And they wouldn't give me that," says Lieber. "They said, 'You're responsible, this is your credit card.' I ignored them because I thought they were nuts."

Lieber sent a letter demanding the agency cease contact -- which debt collectors must do under a 1996 federal law. But they continued to harass her and her spouse, Theodore, who was confined to a wheelchair following a stroke. Frightened by a menacing phone call, Theodore sent a payment to the collection agency.

Because the credit card contract required binding arbitration to resolve disputes, a private arbitration firm -- not a judge -- settled the case and found in favor of the credit card company, awarding it $46,000.

If you think that's bad, prepare to be appalled. It's not an isolated incident: "In an examination of 19,000 binding arbitration cases in California decided by the National Arbitration Forum, watchdog group Public Citizen found that 95 percent of the decisions went against the consumer." Corporations choose arbitration companies that find in their favor. The arbitrators are paid by the corporations whose cases they're arbitrating. If they find against the corporation, they will no longer have those corporations as clients. Isn't this the very definition of "conflict of interest"? In my job, I'm required to disclose if any of many friends or relatives are vendors or clients of my company; should people's lives be adjudicated on less?

The National Arbitration Forum claims that arbitration "reduces costs [...] for all parties," but Judge Neely's article shows that the costs associated with arbitration are more than court costs would be for similar cases.

Thankfully, the article ends with hope, in the form of the Arbitration Fairness Act of 2007, which "requires that arbitration be freely chosen by consumers after the dispute arises -- rather than forcing people to agree to arbitration in advance through a contractual provision." The Arbitration Fairness Act deals with cases like Buckeye Check Cashing through this section:

An issue as to whether this chapter applies to an arbitration agreement shall be determined by Federal law. Except as otherwise provided in this chapter, the validity or enforceability of an agreement to arbitrate shall be determined by the court, rather than the arbitrator, irrespective of whether the party resisting arbitration challenges the arbitration agreement specifically or in conjunction with other terms of the contract containing such agreement.

Under this bill, the question of whether or not an arbitration clause is enforcable is now a matter of law and not jurisprudence. Yay!

Posted by Mark at 9:46 PM | Permalink | Comments (0) | TrackBacks (0)

Ned, knowing that one of my favorite hobbies is despising binding arbitration, sent me a post from Consumerist which links to a law review article written by Judge Richard Neely, who was suckered into being an arbitrator for a private arbitration company.

"Binding arbitration" is a technique used by private companies to circumvent civil courts. Part of English common law -- which is the foundation of the American legal system -- is the idea that government courts can be used to settle civil disputes (disputes between individuals). A judge uses common law, the U.S. Code, and state and local codes to determine who wins a civil dispute. The Seventh Amendment to the U.S. Constitution also permits a jury to adjudicate civil cases "where the value in controversy shall exceed twenty dollars."

Arbitration is not required to adhere to common law, the U.S. code, contract law, or any other law. Where courts must make findings according to the law -- which means there may be a big winner and a big loser -- arbitrators find in equity, meaning they try to come to an arrangement that will please all sides equally. Arbitration is done by private arbitration firms that get paid by the companies for whom they're arbitrating, resulting in -- as Judge Neely observes -- a clear conflict of interest. If you, as an arbitrator, find against the company, then you probably won't be arbitrating for them again (as was his experience). The cards are stacked against the consumer from the beginning, and "unconscionable" provisions that would normally be struck down by a court (such as requiring a respondent who clearly can't pay a debt to pay "arbitration fees," which amount to awarding attorneys' fees) are upheld by arbitrators.

In addition to all this, the U.S. Supreme Court two years ago ruled that arbitration clauses in a contract are "severable" from the contract. Contract law says that if any individual part (or parts) of a contract is unenforcable, then the entire contract is unenforcable. This doesn't hold true, said the Supreme Court, for arbitration clauses, which are always enforcable, no matter what. So even if the contract between yourself and a private company is clearly illegal, if the contract contains an arbitration clause, then the dispute over the contract's illegality goes to the private arbitrator, which will undoubtedly find in favor if its client, the company, and you still have to pay. This hypothetical situation would never occur in a civil court, which would void the contract outright if it contained illegal provisions.

Binding arbitration is another example of the extent to which government services have been privatized -- to the benefit of the company, but to the detriment of the general public for whom these government services have always existed. Supporters of arbitration claim that it's good because it clears courts' dockets of simple civil cases. But Judge Neely observes that arbitration companies charge fees that are much higher than what court costs would have been, ultimately resulting in a greater cost than merely going to a judge. It's also always in the best interest of the public to have an impartial arbitrator -- a judge -- rather than what is obviously a slanted arbitrator, no matter how backed up the dockets are. (The Republican Congress and President Bush also didn't do a very good job of filling vacant judicial appointments, resulting in a backlog of cases and the self-fulfilling lament of "the judicial system is too backed up; we should outsource our justice to private arbitration companies." Note that in my last post, I posited that the Bush administration intentionally staffs government offices with incompetent hacks so that it can later point out how inefficient and incompetent government is, offering a justification for outsourcing those jobs to private companies.)

The tide in Congress appears to be turning, however, and the anti-consumer environment that has existed in this country for the last few years may soon go away. Earlier this year, two senators introduced S. 2003, The Cell Phone Consumer Empowerment Act of 2007, which would change how cell phone operators work. Among the provisions:

• Require providers to conspicuously post information about all taxes, surcharges, contract terms, and rates;
• Require providers to clearly itemize all charges on customers' phone bills;
• Require providers to publish coverage maps down to the county level;
• A commision set up by Congress will regulate the ceiling on early termination fees;
• That same commission will conduct a study on handset locking and portability and make recommendations to Congress concerning handset locking.

No doubt this Congress could also amend the Federal Arbitration Act to make it more consumer-friendly or even limit the ability of arbitration to be used in particular instances. The Ninth Circuit Court of Appeals has already ruled "unconscionable" the cell phone industry practice of mandatory binding arbitration in cell phone contracts. Binding arbitration also precludes the possibility of a class-action suit, and given how awful American cell phone service is, it's in the companies' best interest to stifle class action suits by requiring arbitration. Let's face it: there are enough unhappy cell phone customers out there to constitute a class, and rather than make changes to their service so that it's better, cell phone companies would rather head off expensive upgrades and policy changes (the latter of which might mean that they'll lose lucrative fees and penalties) by prohibiting such suits altogether.

Thanks, Ned!

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

What is it about the Bush administration that gets even its opponents to capitulate to it? Earlier this year, the president wanted an appropriations bill for the Iraq War, and Democrats refused to give it to him unless they were allowed to insert a provision into the bill calling for mandatory timetables. Bush said no. Then, they wanted to insert non-binding timetables, but even that was too much for the Bush administration. Democrats finally caved after Bush suggested they were "playing politics" with The Troops, and passed an appropriations bill that gave Bush everything he wanted.

Now, we have both the House and the Senate voting to amend the Foreign Intelligence Surveillance Act (FISA) to permit warrantless wiretapping on suspects whose communications travel through the U.S. According to the Associated Press, the bill's provisions expire in six months and the Director of National Intelligence -- not the Attorney General -- would have to sign off on wiretapping. These are described as "wins" by the Democrats, but the fact that this bill even got passed is staggering.

In the tradition of the Bush administration, the legislation, S. 1927, is known by the Orwellian name "Protect America Act of 2007." Let's have a look!

FISA is known to history as 50 U.S.C. 1801 et seq. For one, it defines "United States persons" as any citizen or legal resident of the United States and stipulates that foreign intelligence surveillance cannot occur under the auspices of FISA if a "United States person" is involved. S. 1927 alters that, saying that electronic surveillance cannot be used against a person "reasonably believed to be located outside of the United States." Reasonably believed? That's helpful. "Oh, sorry, we didn't mean to capture all of this information; we reasonably believed that he was outside the country!"

NYT reports:

Congressional aides and others familiar with the details of the law said that its impact went far beyond the small fixes that administration officials had said were needed to gather information about foreign terrorists. They said seemingly subtle changes in legislative language would sharply alter the legal limits on the government’s ability to monitor millions of phone calls and e-mail messages going in and out of the United States.

Now, it would appear, it doesn't matter if the communications of "United States persons" are intercepted. All that change I had hoped for last November seems to be going away.

Posted by Mark at 3:02 PM | Permalink | Comments (0) | TrackBacks (0)

On the heels of last week's revelation that Vice President Dick Cheney is apparently not a part of the executive branch, David Addington, Cheney's chief of staff, sent a letter to Sen. John Kerry regarding the VP's status. Kerry yesterday sent a letter to Cheney's office asking for clarification regarding why Cheney was claiming that he was exempt from Executive Order 12958, signed by President Clinton in 1995 and amended by President Bush in 2003. (Read the exchange at Wired Threat Level blog.)

Addington claims that the executive order "makes clear that the Vice President is treated like the President and distinguishes the two of them from 'agencies.'" Last week, the White House claimed that the vice president and the president were exempt from oversight under Executive Order 12958, using the logic that, since the Office of the President and Vice President are not "agencies," they are not required to submit to inspections by the Information Security Oversight Office.

Is this true?

First of all, omission in U.S. law does not equal legality. If President Clinton, who actually wrote 95% of this order (Bush's 2003 amendment amounted to about a paragraph's difference, none of which had anything to do with the content in question), wanted to omit the president and vice president from inspection requirements, he would have written it in there.

Second, § 6.1(b) of the order defines "agency" as

any ‘‘Executive agency,’’ as defined in 5 U.S.C. 105; any ‘‘Military department’’ as defined in 5 U.S.C. 102; and any other entity within the executive branch that comes into the possession of classified information.

If you skip ahead to 5 U.S.C. 105, you'll discover that it defines an "executive agency" as "an Executive department, a Government corporation, and an independent establishment." Backtrack to 5 U.S.C. 104, and you'll find that an "independent establishment" is "an establishment in the executive branch (other than the United States Postal Service or the Postal Rate Commission) which is not an Executive department, military department, Government corporation, or part thereof, or part of an independent establishment."

So, the presidency is an "independent establishment" because it is (1) in the executive branch, and (2) is not the Postal Service, an Executive department, military department, or Government corporation. And even if they weren't independent establishments, both the president and the vice president "[come] into the possession of classified information" and are therefore subject to oversight.

Turns out the president and vice president, contrary to their own wrong interpretations of the law, are subject to oversight by the Information Security Oversight Office.

Posted by Mark at 12:42 PM | Permalink | Comments (0) | TrackBacks (0)

Last Thursday, House Oversight Committee Henry Waxman (D-CA) sent a letter to Vice President Dick Cheney's office asking why Cheney had failed to comply with Executive Order 12958, an order that governs the handling of classified information. The order requires the executive branch to archive classified information with the National Archives, and also requires inspections by the Information Security Oversight Office (ISOO). Cheney had not been in compliance with the order since 2003, Waxman's letter said.

Waxman further wrote that, for some crazy reason, Cheney's office ignored repeated requests by the National Archives for the classified information. Cheney also refused to allow ISOO to inspect his office as the executive order required and, most interestingly, asserted that the Office of the Vice President is not part of the executive branch and therefore is not required to comply with Executive Order 12958. Yes, the same legal scholars who brought you the president's ability to interpret the Geneva Conventions by himself have brought you this: the Vice President is not part of the executive branch. They're basing this on the silly notion that, since the Vice President performs the additional task of presiding over the Senate, he is not part of the executive branch.

ISOO asked the Attorney General of the United States, who, among other things, is chiefly responsible for enforcing the laws of this country, to settle the dispute as to whether or not Cheney could refuse to be inspected. The Attorney General never followed up, and Cheney retaliated by calling for abolishing the ISOO.

On MSNBC's Countdown with Keith Olbermann, Olbermann suggested that Dick Cheney may be his own branch of government.

That was Thursday. Friday, the New York Times published a piece on this, sending the story from the blogosphere into the print media. At a press conference on Friday, White House spokesperson Dana Perino called the Vice President's patent refusal to comply with the law "a little bit of a non-issue" but didn't elaborate on whether or not the Vice President was actually not part of the executive branch, preferring to muse that it's an "interesting constitutional question that people can debate." Yes, we can debate it. as though there are two equally valid opinions in this matter, like evolution, global warming, and torture.

And today, the White House has responded by saying, "Oh, and by the way, we're exempt from that law, too." Yes, folks, reality is officially on its summer break. Not only is the Vice President not a member of the executive branch, but the President isn't, either.

The Los Angeles Times reports, "Although it doesn't specifically say so, Bush's order was not meant to apply to the vice president's office or the president's office, a White House spokesman said." See, it's funny how the Bush Administration can interpret laws to mean things that they don't say, as though the law were, oh, I don't know, non-existent. In the same way that the 2001 Authorization for the Use of Military Force implicitly allowed the president to engage in warrantless wiretapping of U.S. citizens, clearly the president's 2001 executive order exempts the president from the classified information requirements of the rest of the executive branch, especially because it doesn't say so.

It's amazing how, every time something new happens, the abuse is more and more blatant. How long will it be before the Bush administration starts shooting U.S. citizens in the street?

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

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?

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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)

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)