Ghanbar Naderi points out that Rafsanjani has a long history of flip-flopping between the hard line and reformist camps. I would argue that this is because he is a pragmatic conservative, and his sermon today shows that he has concluded that shoe-horning Ahmadinejad into a second term by stealing the election is above all just not a practical course of action even for conservatives. He is playing a role similar to that of prominent American conservatives who defected to Obama in fall of 2008, because they just did not believe McCain-Palin were a practical alternative. Precisely because Rafsanjani is not a hard-edged ideologue, his clear ambivalence about the regime's actions is all the more striking as an indication of the shaky situation in Iran.
Let us not take this for granted:
Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
How impressive it is to see Iranians assemble peaceably and seek redress when they do not have this First Amendment. How sad that we are so unwilling to do the same when grave wrongs occur and we do have the First Amentment.
Remember the "free speech zones" of the Bush era? I thought the entire nation was supposed to be a free speech zone.
My friend Raven pointed us to this quote via Facebook:
In addition to these five new rules, the experience of having been courted and thwarted has brought me to a grave conclusion. The fight for our rights is now going to get messy. The dialect of respectability has not worked to our benefit. I would advise you to fasten your seatbelts because the youngest, the oldest and the most impatient among us are about to rumble. This will not be pretty. “No More Mr. Nice Gay” is about to become an understatement. President Obama seems to be forgetting the wise advice “Dance with the one that brung ya,” and like Carrie at the prom, some of us are about to rage. --Tony Adams in the South Florida Blade
For me the sour mood is about a lot more than the Obama administration tossing a crumb toward the LGBT community while treating us like scum in the legal proceedings.
Here is what you might call a mood ring for this week.
The graphic above is for the Obama administration for doing ANYTHING with DOMA other than vigorously working for its elimination.
And for not ending DADT with a stroke of the pen, no discussion needed. It's already been talked to death.
It is definitely for every last person who voted for or supported Proposition 8 in California. If you did it out of fear and ignorance, then I hold you culpable for a willful ignorance. The Knights of Columbus, the National Conference of Catholic Bishops, and the Mormon Church are all hereby saluted most roundly (and I know that list is too short).
And for Bishop Parsley's cloak of secrecy. Who does he think he is: Siegfried or Harry Potter? Or Dick Cheney planning energy policy? Nope, it's the emperor with no clothes. Inexcusably shameful, the whole sorry mess.
And for each and every person in Congress of either house responsible individually or collectively for not putting a public option front and center in health care reform and explaining why this, which is supported by 83% of Americans, is a GOOD idea and not the first step toward the downfall of civilization. (If it's the first step toward the downfall of the insurance companies that have labored hard to deny healthcare to people who need it while reaping obscene profits, I shall stand by and applaud.) Single payer would be better but at least have a public option. If you are doing neither of those then leave the whole damn thing alone; you're not going to help the situation.
Today it is for the Attorney General for wussing on immunity for telcoms and thereby enabling the disappearance of Bush administration criminality down the memory hole. For shame!
For Faux News for everything about their evil, lying propaganda machine pushing fear and falsehoods into the collective American psyche, fostering stupidity, hatred, and violence in our society.
I don't even need to mention Cheney, Rove, et al.
For bookburning wannabe asshats of whatever age. Shame upon shame!
For Norm Coleman doing all he can to prevent Al Franken from being seated after being elected.
For the Washington Post for having dumped Dan Froomkin, one of the few who has shined a bright light on White House activities. Amongst other things, he was one of the few in traditional media to speak up about torture.
For the fucking hypocrites on the Republican side of the aisle in Congress who want to whine about fiscal responsibility after they stood by tax cuts for the very wealthy and poured money into an illegal, unnecessary, immoral, counterproductive (and therefore very STUPID) war, much of the money totally unaccounted for - so the corporate war machine could thrive and the American people pay the price tag for generations. It's too damned late to pretend you give a shit so shut the fuck up!
Ditto the blue dog Democrats. Y'all really chap my butt.
The bird is for the whole blasted insurance industry.
Many are angry, but I’m not seeing anyone else state the obvious — the CEO’s insistence that they can’t stop recissions and make a profit; the implicit acknowledgment that they can’t insure people with preexisting conditions and make a profit; amounts to a confession that the private health insurance industry cannot solve the health care crisis. The “free market” is inadequate to the task of paying for modern health care. --Maha
Congress as a totality for doing sod all about illegal spying.
Every time new revelations of illegal government spying arise, the same exact pattern repeats itself: (1) euphemisms are invented to obscure its illegality ("overcollection"; "circumvented legal guidelines"; "overstepped its authority"; "improperly obtained"); (2) assurances are issued that it was all strictly unintentional and caused by innocent procedural errors that are now being fixed; (3) the very same members of Congress who abdicate their oversight responsibilities and endlessly endorse expanded surveillance powers in the face of warnings of inevitable abuses (Jay Rockefeller, Dianne Feinstein, "Kit" Bond, Jane Harman) righteously announce how "troubled" they are and vow to hold hearings and take steps to end the abuses, none of which ever materialize; (4) nobody is ever held accountable in any way and no new oversight mechanisms are implemented; (5) Congress endorses new, expanded domestic surveillance powers; and then: (6) new revelations of illegal government spying emerge and the process repeats itself, beginning with step (1) --Glenn Greenwald
Amendment IV The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
And back to Obama for not being as transparent as he claimed he was going to be. In the courts they sound a lot like the Bushies and I don't like it one little bit.
This falls under the category of Thursday Constitution Blogging, something I have not done often enough of late.
Glenn Greenwald really lays it out in Salon. We are bound by treaty to pursue prosecution for torture.
The U.S. really has bound itself to a treaty called the Convention Against Torture, signed by Ronald Reagan in 1988 and ratified by the U.S. Senate in 1994. When there are credible allegations that government officials have participated or been complicit in torture, that Convention really does compel all signatories -- in language as clear as can be devised -- to "submit the case to its competent authorities for the purpose of prosecution" (Art. 7(1)). And the treaty explicitly bars the standard excuses that America's political class is currently offering for refusing to investigate and prosecute: "No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture" and "an order from a superior officer or a public authority may not be invoked as a justification of torture" (Art. 2 (2-3)). By definition, then, the far less compelling excuses cited by Conason (a criminal probe would undermine bipartisanship and distract us from more important matters) are plainly barred as grounds for evading the Convention's obligations.
There is reasonable dispute about the scope of prosecutorial discretion permitted by the Convention, and there is also some lack of clarity about how many of these provisions were incorporated into domestic law when the Senate ratified the Convention with reservations. But what is absolutely clear beyond any doubt is that -- just as is true for any advance promises by the Obama DOJ not to investigate or prosecute -- issuing preemptive pardons to government torturers would be an unambiguous and blatant violation of our obligations under the Convention. There can't be any doubt about that. It just goes without saying that if the U.S. issued pardons or other forms of immunity to accused torturers (as the Military Commissions Act purported to do), that would be a clear violation of our obligation to "submit the [torture] case to [our] competent authorities for the purpose of prosecution." Those two acts -- the granting of immunity and submission for prosecution -- are opposites.
And yet those who advocate that we refrain from criminal investigations rarely even mention our obligations under the Convention. There isn't even a pretense of an effort to reconcile what they're advocating with the treaty obligations to which Ronald Reagan bound the U.S. in 1988. Do we now just explicitly consider ourselves immune from the treaties we signed? Does our political class now officially (rather than through its actions) consider treaties to be mere suggestions that we can violate at will without even pretending to have any justifications for doing so? Most of the time, our binding treaty obligations under the Convention -- as valid and binding as every other treaty -- don't even make it into the discussion about criminal investigations of Bush officials, let alone impose any limits on what we believe we can do.
From Article VI of the United States Constitution:
Clause 2: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
So let's drop all bullshit about preemptive passes or pardons. We are obligated to pursue this and excuses are simply not acceptable.
Dday reminds us (at Digby's Hullabaloo) that Bush's real legacy is the Supreme Court, then goes on to discuss how "[T]he Supreme Court ruled Wednesday that evidence obtained from an unlawful arrest based on careless record keeping by the police may be used against a criminal defendant."
Dday explains:
The case itself is noteworthy. Bernie Herring had an adversarial history with a cop in his Alabama town. His truck was impounded and he went to the sheriff's office to pick it up. The cop ran a check for outstanding warrants and found what he thought to be one, he arrested Herring. The officers detained Herring, and found a gun and traces of methamphetamines on him. Minutes later, the officers discovered that the arrest warrant was faulty. Nevertheless, he was tried for drug possession and sentenced to 27 months(!).
And the Supreme Court now has ruled that the evidence, gained through what amounts to a warrantless search, is admissable.
And reminds us:
That right-wing bloc on the Court is relatively young, incidentally. Weep not for George W. Bush. He's got a legacy. Not content just to screw us for eight years, the pain will be felt for decades.
So there's yer legacy for ya, my friends.
Just to refresh your memory on what is at stake:
Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Regime change comes not a moment too soon. We're not even certain yet that it has come soon enough.
Deus, in adjuvandum nos festina!
[This post marks a recurrence of Thursday Constitution Blogging.] --the BB
Well, it's not quite the Constitution, but it invokes the Constitution, so there!
United States Code Title 18. Part 1. Chapter 67. Article 1385. § 1385. Use of Army and Air Force as posse comitatus
Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.
The Wikipedia short translation: "The Posse Comitatus Act and the Insurrection Act substantially limit the powers of the federal government to use the military for law enforcement."
There's no need to start manufacturing all sorts of scare scenarios about Bush canceling elections or the imminent declaration of martial law or anything of that sort. None of that is going to happen with a single brigade and it's unlikely in the extreme that they'd be announcing these deployments if they had activated any such plans. The point is that the deployment is a very dangerous precedent, quite possibly illegal, and a radical abandonment of an important democratic safeguard. As always with first steps of this sort, the danger lies in how the power can be abused in the future.
Just keeping an eye on what the gummint is up to. Oh look, a shiny object! A McCain stunt! The economy is falling! Drill, baby, drill! Terr'ists! --the BB
Amy Goodman, a famous journalist who helps us know what the MSM will not tell us, was arrested today. Here is a video of the arrest.
This is a sad day for the United States of America.
This constitutes one in of our series of Constitution Blogging.
Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
You can read about the militarization of Minneapolis (even before protests began) and the execrable behavior in Gleen Greenwald's post.
He writes:
Perhaps most extraordinarily, Amy Goodman of Democracy Now -- the radio and TV broadcaster who has been a working journalist for close to 20 years -- was arrested on the street and charged with "conspiracy to riot." Audio of her arrest, which truly shocked and angered the crowd of observers, is here. I just attended a Press Conference with St. Paul Mayor Chris Coleman and Police Chief John M. Harrington and -- after they boasted of how "restrained" their police actions were -- asked about the journalists and lawyers who had been detained and/or arrested both today and over the weekend. They said they wouldn't give any information about journalists who had been arrested today, though they said they believed that "one journalist" had been, and that she "was seemingly a participant in the riots, not simply a non-participant." I'll have video of the Press Conference posted shortly.
H/t to Ian Welsh at Firedoglake for the video and for all the bloggers who are trying to make this outrage known. --the BB
Just read Kagro X's article at Daily Kos about the White House appealing the congressional subpoenas of Miers and Bolten now that there is one court ruling calling for them to answer them.
And remember, it begins "We the People," not "I the monarch." --the BB
For tonight, anyway. Yes, it's Thursday Constitution Blogging.
You may have thought it would be about the recent FISA vote in the Senate or some court decisions relating to the rights of prisoners and captives but it is much more mundane this evening.
Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
While being driven about last Sunday afternoon I saw some beads hanging from telephone wires.
I asked Belle and Maggie if they knew anything about this. With a very offended air they informed their old man that, on the advice of Carlo Verro, Esq., the family attorney, they were claiming the Fifth Amendment on the grounds that anything they said might - with heavy emphasis on "might" as if to say it would certainly not conclusively do so - tend (more emphasis) to incriminate them.
They then smiled as if to say "gotcha, Mr. Constitution Blogger."
I have very lippy, but beautiful, daughters.
Pray for New Orleans. People are not only still working hard to recover from Katrina but Belle and Maggie will be here this weekend without parental supervision.
[Carlo, the family boar, and a scruffily handsome one at that, is the attorney of this clan. He has also been known to play nurse when daddies were feeling under the weather.] --the BB
SCOTUS seems to have prompted this return of Thursday Constitution blogging.
w00t!
Linda Greenhouse at The New York Times reports:
WASHINGTON — The Supreme Court on Thursday delivered its third consecutive rebuff to the Bush administration’s handling of the detainees at Guantánamo Bay, ruling 5 to 4 that the prisoners there have a constitutional right to go to federal court to challenge their continued detention.
The court declared unconstitutional a provision of the Military Commissions Act of 2006 that, at the administration’s behest, stripped the federal courts of jurisdiction to hear habeas corpus petitions from the detainees seeking to challenge their designation as enemy combatants.
I am so flipping stoked by this. What a great thing to come home to after a very long and intense day at work.
Those who have been paying attention, those who care about the rule of law, those who cherish our Constitution have all noted that the Bush administration's behavior has been resolutely lawless. They have no concern for ancient traditions (making them anything but conservative) and no concern for human rights. Even the Supreme Court, hardly a bastion of liberality these days, has now repeatedly slapped them down.
I pray we may yet see the restoration of the rule of the law. In the meantime, stay informed, stay vigilant, stay feisty, and refuse to shut up until law prevails once more.
I also got an e-mail from Senator Patrick Leahy. He writes, in part:
A majority of the Court has ruled that provisions in the 2006 Military Commissions Act designed to strip away all habeas rights for detainees held at the Guantanamo Bay detention center are unconstitutional. The Court has ruled that the Constitutional right to habeas corpus extends to territories, including Guantanamo Bay, where the United States exercises de facto control. The Court further held that the administration’s detention procedures were constitutionally inadequate, and that those detainees who have been determined to be "unlawful enemy combatants" are entitled to seek habeas relief in Federal court.
The Court’s 5-4 decision sustains the long-held and bipartisan beliefs that I and others have always maintained: Congress made a grave error when, for the first time in its history, it voted to strip habeas corpus rights, instead leaving in place hopelessly flawed procedures to determine whether detainees can be held indefinitely with no meaningful court review merely by the Executive’s decree.
Senator Obama's comments (via SusanG at Daily Kos):
Today's Supreme Court decision ensures that we can protect our nation and bring terrorists to justice, while also protecting our core values. The Court's decision is a rejection of the Bush Administration's attempt to create a legal black hole at Guantanamo - yet another failed policy supported by John McCain. This is an important step toward reestablishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus. Our courts have employed habeas corpus with rigor and fairness for more than two centuries, and we must continue to do so as we defend the freedom that violent extremists seek to destroy. We cannot afford to lose any more valuable time in the fight against terrorism to a dangerously flawed legal approach. I voted against the Military Commissions Act because its sloppiness would inevitably lead to the Court, once again, rejecting the Administration's extreme legal position. The fact is, this Administration's position is not tough on terrorism, and it undermines the very values that we are fighting to defend. Bringing these detainees to justice is too important for us to rely on a flawed system that has failed to convict anyone of a terrorist act since the 9-11 attacks, and compromised our core values.
Dday over at Digy's Hullabaloo has this to say (and I say "hear, hear!"):
It's really not enough to mount a campaign to end the practice of torture in a future Administration, although that is of course important. There needs to be continued investigations into how this started and who was responsible, and those responsible absolutely must be brought to justice. John Ashcroft, John Yoo, William Haynes, David Addington and Doug Feith all will be sitting before Congressional committees in the next few weeks. Whether it's through the appointment of a special counsel in an Obama Administration, or tracking down anyone involved with authorizing torture when they go abroad and can be charged under international war crimes statutes, justice must out. A truth and reconciliation commission is the best method, but whatever the case, those who betrayed American values and shamed themselves through their actions cannot be allowed to drift free, only to crop up in some successive Republican White House.
I will let the Bill of Rights have the closing comment tonight:
Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
I want to start with this simple tablet situated on the Elk Street divider facing Tulane Avenue (amid a lot of that irregular sidewalk I have written about). I have been walking past it almost every day, schlepping from the office to either the Tulane Medical Center hospital cafeteria (which, I must say, is excellent, and good value too!) or the Walgreens on the corner (or both). Although I no longer work in the building at Tulane and Elk, I did need to walk to Walgreens this evening to pick up the prescriptions that were not ready on time in Albuquerque last weekend. So I walked past it once again, and this time the camera was in my briefcase.
I increased the contrast, so I hope you can read the text. Anything honoring the Declaration of Independence and the United States Constitution is bound to cheer me up.
My daily commute home along Tulane, heading westward toward River Ridge (near Harahan, if that is more familiar to y'all), I see this abandoned factory. Tonight I pulled over and whipped out the camera. [Tandaina, please note I rose to your challenge.]
I am fascinated by things like twisted shutters, peeling paint, cracked surfaces, etc. as they are visually so much more interesting than fresh coats of paint and smooth surfaces devoid of character. (Sounds more like a pep talk as my own face ages, no?) So you may see a plethora of photos that show what catches my eye. For all the vast challenges of repair and rebuilding in NOLA, please do not take my photographs as representing some accurate sample. This is a shot from my office window at a slightly different angle, showing how I look toward the Superdome. Boarded-up buildings seen from a point just a few steps from where I took the factory photo.
And, in the same spot, turning to face east. I work roughly in the center of the picture at a bit above the level, viewed from here, of the tower of St Joseph's Church (the red brick building that runs horizontally in the middle of the right half of the photo).
It's obviously not Thursday but I have to take advantage of my windows of opportunity these days.
For our constitutional consideration today we have a trial. Here's the teaser from the opening of Magnifico's post at Daily Kos:
The Los Angeles Times has an article about Khalid Shaikh Mohammed's upcoming trial at Guantánamo Bay. In the article, "Defending KSM, 'the most hated man in the world', Josh Meyer writes about the lawyer who is assigned to be KSM's lead defense lawyer — Capt. Prescott L. Prince, a Navy Reserve judge advocate general. The significance of this trial, I think, cannot be understated as Capt. Prince explains:
"I think it's the constitutional case of our time," Prince, 53, said in a recent interview in his office, U.S. and Navy flags front and center on his desk. "Because in the 221st year of America, the question is whether the Constitution applies to the government."
[Emphases in Magnifico's post]
Magnifico comments further down:
I believe Khalid Shaikh Mohammed should receive our nation's best defense and a fair trial. Personally, I have little doubt Khalid Shaikh Mohammed is a bad man who has plotted mass murder against Americans. He may have even murdered Daniel Pearl, the Wall Street Journal reporter as he claims to have done, but KSM is also one of three people the CIA has admitted to have waterboarded. We claim to be a nation of laws, but when people representing our nation torture can we still make that claim? Is the military commissions system even fair?
I added that and join in stating that we probably have in KSM someone who needs to be brought to justice and held accountable for whatever he may have perpetrated or conspired to perpretrate. The kicker is that this needs to be done in a just manner under the law and according to the norms of civilization, not in a kangaroo court that tramples on our Constitution and makes a mockery of justice.
Unfortunately, the behavior of the Bush government has been so reprehensible that we are faced with a wretched possibility. As Magnifico concludes:
The Bush administration didn't like the rules forbidding torture, so they circumvented them. So when KSM goes on trial. The choice may ultimately be between a guilty verdict or the Constitution.
Amendment V No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Yes, the regular features here have become quite irregular. This morning I came across a post by NWTerriD that falls under Constitution blogging, so even though it is not Thursday....
It seems John McCain deviated from his scripted speech on constitutional issues to proclaim something erroneously. It was quickly scrubbed from most tapes but he evidently really did make the gaffe.
In a speech at Wake Forest he said:
The year 2005 also brought the case of Susette Kelo before the Supreme Court. Here was a woman whose home was taken from her because the local government and a few big corporations had designs of their own on the land, and she was getting in the way. There is hardly a clearer principle in all the Constitution than the right of private property. There is a very clear standard in the Constitution requiring not only just compensation in the use of eminent domain, but also that private property may NOT be taken for "public use." But apparently that standard has been "evolving" too. [emphasis in NWTerriD's article]
NWTerriD checked to be sure that was really what was said. Here are NWTerriD's concluding comments:
I think it's a big deal when a candidate for the Presidency of this country, who starts a speech talking about how the President must swear an oath to protect, preserve and defend the Constitution [insert emphatic hand motions here], just a few minutes later erroneously alters his scripted speech to completely change the meaning of a phrase describing what he says is one of the clearest principles enunciated in the Constitution.
Yes, there is a clear principle in the Consitution, but it is not what he said it is. Does he really not understand what eminent domain is? Did he forget, because he is tired from his hard work on the campaign trail? Who knows?
To those who have been saying that bringing up McCain's age is "ageism," or that it is beneath us as the supporters of a man who is seeking to avoid the politics of personal attack, I say, res ipsa loquitor -- one of those fancy Latin legal phrases meaning, "The thing speaks for itself." His age is a legitimate issue.
There has been much talk about John McSame representing a third Bush term and what I found even more frightening in his speech was this line:
I'm the living proof that an undistinguished academic record can be overcome in life -- or at least that's the hope that has long, long sustained me.
After W, that should scare the living shit out of us all. I'm not talking about academic elitism or saying we need brilliance in that office, only that someone who can think critically and clearly and always be learning is important. --the BB
This week's news provides our topic for this evening.
Amendment VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Robert Barnes reports the following in today's Washington Post:
The Supreme Court ruled yesterday that the most common method of lethal injection used to execute condemned prisoners is constitutional, a decision sure to restart the nation's dormant death chambers. But the court's splintered reasoning seems likely to result in more challenges to the way capital punishment is administered in the United States.
In a 7 to 2 vote, the justices said the three-drug combination used by Kentucky, similar to that used by the federal government and 34 other states, does not carry a risk of substantial pain so great as to violate the Constitution's ban on cruel and unusual punishment.
"Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of 'objectively intolerable risk of harm' that qualifies as cruel and unusual," wrote Chief Justice John G. Roberts Jr.
It is evidently a complex ruling that raises many questions. I have only skimmed the articles and my head begins to swim. Between the Pope's visit and last night's debate, this has already vanished from sight. I don't see it in the headlines or on the blogs. Gone. Poof.
One might think this issue would be important. One would be in a highly rarefied minority.
I learn that the "and" in "cruel and unusual" is important because various rulings of the Supreme Court indicate that a punishment might be cruel OR unusual and pass muster, but not if it be both.
Needless to say, the Eighth Amendment has figured in debates over the death penalty in the past. Drawing and quartering, beheading, burning alive, and disemboweling have rather consistently been deemed no-noes. Pity; I have a little list for just such practices. Oh well.
I find it especially interesting that in Furman v. Georgia (Findlaw discussion here and Wikipedia discussion here), a punishment that is "Degrading to human dignity--as in torture" is deemed unconstitutional. The whole discussion in that decision concerning torture and that which fails to recognize human dignity is quite fascinating.
The day may yet come when the Supreme Court decides that capital punishment is intrinsically cruel and unusual, but that day is not yet. One may simultaneously despair and hope when reading that "the standard for cruel and unusual 'must draw its meaning from the evolving standards of decency that mark the progress of a maturing society'." (Harper, 147)
For now, execution by lethal injection may proceed.
This week I want to refer y'all to a terrific post by looseheadprop at Firedoglake. It discusses the Supreme Court decision in Youngstown v. Sawyer, 343, U.S. 579 (1952). This was a case in which the Supreme Court discussed the limits of presidential power. It is one of the most basic cases in Constitutional Law 101. In fact, even John Yoo has it prominently listed in the reading list of a class he teaches.
Lots of legal eagles were asking why Youngstown got no mention whatsoever in Yoo's infamous memo released last week. There was an obvious implied answer in the very raising of the question: acknowledging this precedent would shatter Yoo's arguments for virtually limitless presidential power.
I can think of few issues more important to the United States at this time. So I heartily recommend that any of you interested in checks and balances, or seeking solid ammunition for shooting down the bushwa about the "unitary executive," spend a few minutes to read and ponder looseheadprop's excellent post.
The occasion?
To avert a nation-wide strike of steel workers in April 1952, which he believed would jeopardize national defense, the President issued an Executive Order directing the Secretary of Commerce to seize and operate most of the steel mills. The Order was not based upon any specific statutory authority but was based generally upon all powers vested in the president by the Constitution and laws of the United States and as President of the United States and Commander in Chief of the Armed Forces.
The decision, in nuce:
The President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself.
Do you see any current applicability in comments like this?
The President's order does not direct that a congressional policy be executed in a manner prescribed by Congress - it directs that a presidential policy be executed in a manner prescribed by the President.
Given the track record of the Bush Crime Ring, could anyone really be so naive as to believe, when the Abu Ghraib story broke, that it was only a matter of a few bad apples in the lower ranks? I know I sure as hell did not.
Over time more and more information comes to light, timelines and checklists are filled in, and dots get connected.
Some significant pieces of evidence have emerged in the past few days and it is all rather overwhelming. IANAL, as they say (I am not a lawyer). I have not pored over the relevant documents in detail. I have, however, read a number of articles by those who have researched or read said documents. They made frequent allusions to being ill or having headaches in the course of the reading.
The ugly truth is beginning to emerge into the daylight.
The issue of torture begins, where I always suspected it began, at the top--among the counsels of the attorneys for the President, Vice President, and Secretary of Defense and with Rumsfeld himself. One may only infer the involvement of Cheney and Bush but I believe we may deem it an unverified certainty, especially in the case of Cheney since a driving force in the whole affair is David Addington, at that time Cheney's legal counsel and now his chief of staff.
One of the pieces of the puzzle that was just released, thanks to the ACLU demanding it under the FOIA, is one of the infamous memos by John C. Yoo, then a member of the Office of Legal Counsel advising the President and now a professor of law at Boalt Hall School of Law, University of California, Berkeley. He is famous for his contributions to the theory of a "unitary presidency," the PATRIOT Act, and theories related to detention and treatment of prisoners that flout the Constitution and international law.
If you have the time and inclination to read a long, but carefully written and readable, article that lays out the timeline of America's descent into torture, I highly recommend Phillippe Sands' article "The Green Light" in the May 2008 issue of Vanity Fair. It takes a while to plow through but will reward you with a clear idea of what took place and who the players were. It ends with the hope that some day, somehow, war criminals will find themselves before international tribunals and called to account. The article also reveals some of the lengths they have gone to to protect themselves from accountability, at least within the "American justice system." [Sorry, I had to put quotes around it, given our current realities.]
In addition to the fine work of Sands, there are shorter articles on sundry blogs, mostly wrestling with the revelations stemming from the Yoo Memo (81-page .pdf file). Remember, there is also the Bybee-Yoo Memo, the Haynes Memo, and yet another Yoo Memo we have not yet seen.
"It depends on why the President thinks he needs to do that." Yoo wasn't just a law professor theorizing about the legalization of torture. He was a government official who, in concert with other government officials, set out to enable a brutal and systematic torture regime, and did so. If this level of depraved criminality doesn't remove one from the realm of respectability and mainstream seriousness -- if not result in war crimes prosecution -- then nothing does.
That John Yoo is a full professor at one of the country's most prestigious law schools, and a welcomed expert on our newspaper's Op-Ed pages and television news programs, speaks volumes about what our country has become.
What takes my breath away about the Yoo memos, now that we can finally read them, is their air of uttery certainty. One after another, complex questions of constitutional law are dispatched as if there's no cause for any debate. The president has all the war-making power. Congress has none. The president's commander in chief powers extend to interrogations (no matter how far from the battlefield in space and time they take place). Guantanamo Bay detainees and enemy aliens enjoy no constitutional protections. And then the pages Jack points us to, which include "Congress can no more interfere with the President's conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield." In other words, Congress cannot prohibit any sort of treatment that the president chooses to allow. No wonder Jack Goldsmith thought Yoo was reaching far beyond where he needed to go, not to mention what the state of the law would actually support. And yet he brooks no doubt. It's as if he's writing as a Supreme Court justice, not a government lawyer. Which is understandable in one sense, since the Office of Legal Counsel functions like the government's internal Supreme Court—but also exhibits the terrifying results of dishonest, glib analysis by lawyers drunk on that very power.
Having read through and digested the Yoo memorandum that was recently declassified, the most striking feature of it -- beyond its utter twisting of the law in a "might equals right" stomach churning justification tango -- is that it reads like a document written in an after-the-fact criminal defense posture. Especially Part IV of the memorandum which spends pages outlining potential defenses and the mindset needed therefor should anyone be accused of committing war crimes or criminal acts.
That this flies in the face of the UCMJ and the Field Manual appears to have no meaning to Mr. Yoo. That it downgrades the precepts behind all the human rights law advances that the United States used to champion for the betterment of people in more repressive societies is just a minor inconvenience for Mr. Yoo and his "superiors." That we will be generations in the repairing of this, if ever? Not even mentioned.
It took me all day yesterday to get through the Yoo memo. [pdf's] I kept tearing up. My law partner asked me if someone close to me had died. It's going to take more research and analysis than I can do in a day to demonstrate even a tiny fraction of the misstatements, misapplications of law, and outright lies in this, ahem, document (I'd like to call it something else, but if I let my temper get the better of me, the research and analysis will never get done).
You can expect several posts from me on this topic. You should not take my word for it that it is a written horror, I should demonstrate that for you.
And toward the end Prop writes this:
So, the legal authority Yoo is citing to support his stunning assertion "that the laws of war make clear that prisoners may be interrogated for information concerning the enemy, its strength and its plans" not only DOESN'T SAY YOU ARE ALLOWED TO ASK FOR THAT INFORMATION, IT SAYS THE EXACT OPPOSITE. Sorry, didn't mean to shout. What Article 17 says is that you can only ask for name, rank/regiment, birthdate and serial number, period.
Oh yeah, and it also says specifically that you can't torture.
So, the Prop wonders, what could be the authority in footnote 9 supporting this amazing assertion? Hmmm? Could it be the earlier memo written by none other than.......wait for it....John Yoo?!?? Yoo's boss, Bybee may have signed off on it, but it is widely believed to have been primarily authored by Yoo. So, Yoo's authority is ....John Yoo.
Not a statute, not a court opinion, himself.
To which I might add, without really knowing it to be the case: "(or what Addington told him to write)."
By this incredibly dangerous and misguided reasoning, any interrogator who tortured or cruelly mistreated a prisoner could not be held responsible so long as he wasn't inspired by malice or sadism -- as long as, in other words, he was just following orders. As long as he administered it dispassionately almost any kind of physical or mental torture would be condoned, by Yoo's reasoning. Moreover, virtually anything an interrogator did to a prisoner could be justified so long as the President deemed it necessary as matter of national self-defense.
The Yoo memo effectively gave the Pentagon the green light to disregard statutory limits on torture, cruelty and maltreatment in the treatment of detainees. This is the version of the 2002 Torture memo, which was addressed only to the CIA and the torture statute, as applied to the numerous statutes restricting the conduct of the armed forces. None of those statues, you see, limits the conduct of war if the President says so. It is, in effect, the blueprint that led to Abu Ghraib and the other abuses within the armed forces in 2003 and early 2004. Here, finally, is Part One of that memo, and here is Part Two.
Jonathan Turley, the professor of constitutional law whom Keith Olbermann consults, says on Countdown:
Turley:”…It’s really amazing, Congress, including the Democrats, have avoided any type of investigation into torture because they do not want to deal with the fact that the president ordered war crimes. But, evidence keeps on coming out. The only thing we don’t have is a group picture with a detainee attached to electrical wires.” [Emphasis mine]
And the memo’s author — John Yoo, then a deputy in the Justice Department’s Office of Legal Counsel — was a longtime ally and notoriously pliant scribe for the radical legal views of Vice President Cheney and his chief enforcer, David S. Addington.
Yoo’s memo is a historic document. It is the ultimate expression of Cheney’s belief that anything the president or his designates do — no matter how illegal, barbaric or un-American — is justifiable in the name of national self-defense.
It is also an example of how enabling zealots to disregard the rule of law and the customary boundaries of human conduct leads to madness.
h/t to Crooks and Liars for the video and the Turley and Froomkin pointers.
Now, granted, we are not discussing resident aliens in this particular context, but we are dealing with who is encompassed within the law and who is not. I therefore think there is some applicability to a principle of the Torah.
You shall have one law for the alien and for the citizen: for I am the Lord your God. (Leviticus 24:22)
As for the assembly, there shall be for both you and the resident alien a single statute, a perpetual statute throughout your generations; you and the alien shall be alike before the Lord. You and the alien who resides with you shall have the same law and the same ordinance. (Numbers 15:15-16)
Amendment VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
It was not "a few bad apples." This came from Cheney and Rumsfeld at the very least and was consented to by Bush (because the decisions of the president are repeatedly invoked in the matter).
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
See my comments about promoting the general welfare and deregulation below. --the BB
In dark inaccessible hid from our eyes, Most wicked, notorious, death-dealing his ways, The world he destroys while he still garners praise. --with apologies to Walton Chalmers Smith
On December 20, 2007, President Bush signed routine postal legislation. In a "Signing Statement", the President claims Executive Power to search the mail of U.S. citizens inside the United States without a warrant, in direct contradiction of the bill he had just signed.
In an article from The Seattle Times ("Bush says feds can open mail without warrant") that Wendel cites, we read:
White House spokeswoman Emily Lawrimore denied Bush was claiming new authority.
"In certain circumstances — such as with the proverbial 'ticking bomb' — the Constitution does not require warrants for reasonable searches," she said.
Bush, however, cited "exigent circumstances" that could refer to an imminent danger or a long-standing state of emergency.
I wonder whether Emily Lawrimore was experimenting with ayahuasca or merely some especially potent White House kool-aid because I can think of no other way she might imagine that the Constitution does not require warrants in certain circumstances.
Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
What part of "shall not be violated" or "no warrants shall issue, but upon probably cause" does Ms. Lawrimore not understand?
If there is a "ticking bomb" situation, even the FISA court statutes allow for action first and requesting a warrant within 72 hours thereafter, so action is not forbidden but actually provided for. Don't let them ever tell you that Congress or the Democrats don't want to allow them to act for our protection. It's pure bullshit and they know it.
We cannot, we must nut, allow the White House to redefine the Constitution to mean the opposite of its clear intent. Strike down their lies! Inform the ignorant! Correct the bloviators!
George Walker Bush is a liar. The people surrounding him are liars. Say it loud and say it proud; they must not be allowed to get away with it!
[I originally typed that he was "a damned, detestable liar," but damning is God's job and not mine. That I detest the man and everything he stands for is so obvious it would be redundant to insert it in the large-type passage.]
This constitutes this week's Thursday Constitution blogging post. --the BB
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
Tonight I want to life one phrase out of the Preamble. We the People of the United States, in Order to ... establish Justice, ... do ordain and establish this Constitution for the United States of America.
The Wikipedia article on "justice" speaks of its importance:
Justice concerns the proper ordering of things and persons within a society. As a concept it has been subject to philosophical, legal, and theological reflection and debate throughout history. According to most theories of justice, it is overwhelmingly important: John Rawls, for instance, claims that "Justice is the first virtue of social institutions, as truth is of systems of thought."
Mingled in our concepts of justice one finds the concepts of what is fair, what is right, and what is true. The establishment of justice thus involves discernment of the true from the false, the equitable from the inequitable, right from wrong.
In the more symbolic and less philosophical article on "Lady Justice" Wikipedia notes:
...Lady Justice is often depicted wearing a blindfold. This is done in order to indicate that justice is (or should be) meted out objectively, without fear or favor, regardless of the [sic] identity, power, or weakness....
Central, then, to our concept of justice, is the issue of "without fear or favor": the idea that everyone gets a fair break. Law should be applied without regard to one's status in society, one's power or lack thereof. Without this element, any purported justice becomes suspect.
The prophets of Israel had a lot to say about justice and the Torah insists that there should be one law for both the Israelite and the resident alien. This is an interesting and important principle in light of all the brouhaha over alien status in the United States and the xenophobia that is being stirred up these days. The Torah also insists that there be one set of measures, not one standard for selling and another for buying, thus always favoring oneself and cheating the other party.
Standards and procedures keep us from falling into either chaos or the principle of "might makes right" taking over. As the motto inscribed over the entrance to the Supreme Court Building says: "Equal Justice Under Law."
We are appropriately outraged when the law and the courts are subverted so that the true, the right, and the fair seem to lose out. Sometimes we are horrified when adherence to procedure springs someone on a technicality though I suggest we should be more horrified if procedures are ignored or abused. Procedures undergird both objectivity, for the sake of fairness, and careful documentation, for the sake of truth.
[What I say here about procedures and standards in the civil realm also applies in ecclesiastical matters and the role of canon law in framing our application of justice carefully and correctly.]
When someone simply flouts the law and gets away with it we all recognize that the underpinnings of society are shaken. If the Constitution, for instance, which constitutes the supreme law of the land, is ignored or undermined, then what is the basis for our government? What guarantee have we that justice can prevail? What protections do we have from any number of abuses or the rise of a new tyranny? These were things the Founders had in mind when they framed our government and they sought to put various checks and balances into place so that power would be distributed and not accrue to one person or one branch of government.
Anyone who reads this blog knows my feelings about the behavior of the current administration and what I, and many others, deem demonstrable violations of the Constitution and other laws of this nation.
The lowest rung of the Inferno, that is, where one encounters Cocytus, the lake of ice. There the bound, three-headed Satan gnaws on Brutus, Cassius, and Judas. I'm talking about traitors: those who betray the trust put in them.
Thursday constitution blogging is a day late this week. My apologies.
Article III.
Section. 3.
Clause 1: Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
Clause 2: The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
--United States Constitution
U. S. Code § 2381. Treason
Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.
Back in October of 2005, when we thought it was Karl Rove (and not the OVP) at the center of leaking Valerie Wilson's identity, John Aravosis wrote of "the normalization of treason."
If a senior White House staffer had intentionally outed an American spy during World War II, he'd have been shot.
We're at war, George Bush keeps reminding us. We cannot continue with business as usual. A pre-9/11 mentality is deadly. Putting the lives of our troops at risk is treason.
Then why is the White House and the Republican party engaged in a concerted campaign to make treason acceptable during a time of war?
Remember, Mrs. Wilson was working to track development of nuclear weapons in the Middle East, specifically in Iraq and Iran. With her identity compromised, the entire operation and the network of anyone associate with it was at risk and no longer of any value to the United States.
In doing some reading on the understanding of treason in American jurisprudence I have learned that it is very difficult to prove, which is why it is often preferable to rely on the Espionage Act of 1917 in prosecuting those who betray the nation. There is no question that secret information was divulged in this whole affair.
While proving an act (not an attempt but an act) that confers tangible benefit to the enemy is a very high bar, there is some flexibility in the issue of the two witnesses.
However, the decisions defined with some flexibility favorable to the prosecution the boundaries of the act to which two witnesses must testify. Their testimony need not be identical or precise as to all aspects of the cited behavior, nor need it minutely cover every element into which an episode of behavior might be analyzed. The evidence was sufficient if it joined in identifying what reasonable jurors could regard as a connected, patterned transaction.
[Emphasis mine]
Well, these are just some musings. I doubt that one could successfully convict Richard Bruce Cheney of treason, though I believe he is guilty of it. That's my opinion, anyway.
We have now the Attorney General of the United States telling Congress that it's not against the law for the President to violate the law if his own Department of Justice says it's not.
--David Kurtz at TPM [You may augment Kurtz with Emptywheel's comments.]
Article. VI.
Clause 2: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
--United States Constitution
Compare and contrast in no more than 300 words. --the BB
The views expressed on this blog are solely those of the blogger and do not represent the positions of any group or organization with which he may be affiliated. As one who spent decades stuffing down his opinions and emotions, I am inclined to cut loose here, which I believe is healthy, honest, and part of the process of sanctification in the long run. Politics and spirituality mingle freely here, along with theatre reviews, photography, and passionate talk about food, literature, and the human journey. If anything written here offends you, please find other blogs to read. I am here to share, not to do battle.
