Justices decline to review ruling on team nickname

By Robert Barnes
Washington Post Staff Writer
Tuesday, November 17, 2009

A nearly two-decade legal challenge by Native American activists to the nickname of the Washington Redskins came to a close Monday when the Supreme Court declined to review the group’s last loss in federal courts.

The justices declined without comment to reconsider a lower court’s ruling that the activists waited too long to bring their assertion that the nickname is so racially offensive that it does not deserve trademark protection.

“Obviously, we’re quite pleased; it’s been a long road,” said Robert Raskopf, a lawyer for the team since the suit was first filed in 1992. “We’re not surprised the court didn’t see any issue worthy of review.”

Philip Mause, who represented the challengers, said the activists were “disappointed” by the court’s decision but not yet resigned to accept defeat. A new group of challengers has filed the same trademark cancellation suit in hopes that their slightly different circumstances can avoid the procedural bar that halted this case.

Raskopf said the team is not worried about the new complaint. “I think we’re very confident with our likelihood of success,” he said.

Through the years, the team has steadfastly defended the use of the Redskins nickname as honoring Native Americans, not disparaging them. When based in Boston, the team was known as the Boston Braves and was renamed in 1933 as the Redskins. The team said in its brief to the court that the new name was “in honor of the team’s head coach, William ‘Lone Star’ Dietz, who was a Native American.”

The team became the Washington Redskins in 1937, when it moved south.

Native American groups have persuaded scores of high school and college teams to rename their mascots. The National Congress of American Indians told the justices in a friend of the court brief that the name is “patently offensive, disparaging, and demeaning and perpetrates a centuries-old stereotype.”

But despite vociferous protests, Washington has not budged. Under both former owner Jack Kent Cooke and current owner Daniel Snyder, Raskopf said, there has never been “even a whisper” about changing the nickname.

For the most part, though, the battle has been fought on the more mundane grounds of legal procedure, and even a victory by the activists would have cost the team only trademark protection and would not have forced it to abandon the name.

The battle began in 1992, when seven activists, led by Suzan S. Harjo, challenged Redskins trademarks issued in 1967. They won a decision seven years later from the Trademark Trial and Appeal Board, which said the name could be interpreted as offensive to Native Americans.

Trademark law prohibits registration of a name that “may disparage . . . persons, living or dead, . . . or bring them into contempt, or disrepute.”

Pro-Football Inc., the team’s corporate owner, appealed to federal court.

In 2003, U.S. District Judge Colleen Kollar-Kotelly sided with the team, ruling that the activists had not produced enough evidence to show the name was so insulting that it could not be protected by a trademark. She also said the trademark-cancellation claim was barred by the doctrine of laches, which serves as a defense against claims that should have been made long ago.

She revisited the issue after the U.S. Court of Appeals for the District of Columbia returned it to her, saying the youngest of the plaintiffs might have standing to pursue the case. But Kollar-Kotelly ruled that the challenger, Mateo Romero, waited eight years after he reached the age of majority to file the complaint. She said the delay unfairly penalized the Redskins, who invested millions of dollars marketing the team during that eight-year span.

A three-judge panel of the appeals court agreed that eight years was too long to bring the claim.

The Supreme Court was being asked only to review whether the claim was brought too late, not whether the nickname was offensive.

Mause had argued that the justices should take the case to decide whether disparaging trademarks can be challenged at any time. He cited a decision from the U.S. Court of Appeals for the 3rd Circuit, which was written by then-judge, now-Justice Samuel A. Alito Jr., that he said supported that view.

The case the court declined to hear is Harjo v. Pro-Football, Inc.

You can’t stop either. Why that’s good.

By Jacob Weisberg | NEWSWEEK
Published Oct 31, 2009
From the magazine issue dated Nov 9, 2009

“I think this would be a good time for a beer,” Franklin D. Roosevelt said upon signing a bill that made 3.2 percent lager legal, ahead of the full repeal of Prohibition. I hope Barack Obama will come up with some comparably witty remarks as he presides over the dismantling of our contemporary forms of prohibition—laws that prevent gay marriage, restrict cannabis as a Schedule I controlled substance, and ban travel to Cuba. “You may now kiss the groom,” perhaps, or a version of the comment he once made about smoking pot: “I inhaled—that was the point.” (Click here to follow Jacob Weisberg)

Prohibition now is different from Prohibition then. When the 18th Amendment went into effect in 1920, it was a radical social experiment challenging a custom as old as civilization. A predictable failure—the insult to individual rights, the impossibility of enforcement, the spawning of organized crime—it came to an end in 1933. Today it is a byword for futile attempts to legislate morality and remake human nature.

Our forms of prohibition are more sins of omission than commission. Rather than trying to take away longstanding rights, they’re instances of conservative laws failing to keep pace with a liberalizing society. But like Prohibition in the ’20s, these restrictions have become indefensible as well as impractical, and as a result are fading fast. Within 10 years, it seems a reasonable guess that Americans will travel freely to Cuba, that all states will recognize gay unions, and that few will retain criminal penalties for marijuana use by individuals. These reforms are inevitable—not because politics has changed, but because society has.

A few reference points: in April, Obama lifted restrictions on travel and remittances by Cuban-Americans. Last month the Justice Department announced that it would no longer prosecute cases involving medical marijuana. Same-sex marriages are recognized in six states and counting. In a larger frame, loosening restrictions and lax enforcement reflect evolving social norms. Gay unions have been celebrated on the New York Times weddings page since 2002. Since George W. Bush left office, American tourists no longer worry about being prosecuted for visiting Havana without a Treasury license. In L.A., you need only tell an on-site doctor at a walk-in pot emporium that you feel anxious to walk out with a legal bag of Captain Kush.

The chief reason these prohibitions are falling away is the evolving definition of the pursuit of happiness. What’s driving the legalization of gay marriage is not so much the moral argument, but the pressures from couples who want to sanctify their relationships, obtain legal benefits, and raise children in a stable environment. What’s advancing the decriminalization of marijuana is not just the demand for pot as medicine but the number of adults—more than 23 million in the past year, according to the most recent government survey—who use it and don’t believe they should face legal jeopardy. What’s bringing the change on Cuba is not the epic failure of the 49-year-old U.S. embargo, but the demand on the part of Americans who want to go there—whether to visit relatives, prospect for post-Castro business opportunities, or sip rum drinks on the beach.

For similar reasons, there isn’t likely to be any retreat on the right to have an abortion or own a gun. Popular demand for an individual right is simply too powerful to overcome. The Internet has been a crucial amplifier of all such claims. With pornography and gambling, the Web itself became an irrepressible distribution tool. When it comes to gay marriage, it has accelerated the recognition of a new civil right by serving as an organizing tool and information clearinghouse. More broadly, the freest communications medium the world has ever known has raised expectations of personal liberty. In a world where everyone has his own printing press, restrictions on personal behavior become increasingly untenable.

Politicians will continue to lag, rather than lead, these changes. Republicans face a risk in resisting the new realities. If the GOP remains the party of prohibition, it will increasingly alienate libertarian leaners and the young. Democrats face a different danger in embracing cultural transformations too eagerly. Nearly four decades after George McGovern became known as the candidate of amnesty, abortion, and acid, cultural issues are still treacherous territory for them. Why get in front of change when you can follow from a safe distance and end up with the same result?

Jacob Weisberg is also the author of The Bush Tragedy and In an Uncertain World: Tough Choices from Wall Street to Washington .

Attorney says life sentence for teen lacks decency
by David G. Savage
Los Angeles Times

WASHINGTON – Confronted with the stark reality of a 13-year-old boy sentenced to spend the rest of his life in prison, the Supreme Court justices signaled Monday that they were inclined to limit, or perhaps abolish, the use of life terms for teenagers whose crimes do not involve murder.

The court often has invoked the Constitution’s ban on “cruel and unusual punishment” to restrict the death penalty. On Monday, the justices also sounded ready to rule that some states, in particular Florida, had gone too far by sentencing children to life in prison without a chance for a parole.

“To say to any child of 13 that you are only fit to die in prison is cruel,” attorney Bryan Stevenson told the court. “It cannot be reconciled with what we know about the nature of children. It cannot be reconciled with our standards of decency.”

Stevenson is representing Joe Sullivan, who at age 13 was convicted of raping a 72-year-old woman and given a life prison term. Stevenson said rapists in Florida are sentenced, on average, to 10 years in prison. Yet, Sullivan, who already has served 20 years, will die in prison unless the Supreme Court intervenes.

A second case heard Monday involved Terrance Graham, who at 17 was given a life term for his part in an armed robbery of a restaurant and a later home invasion robbery.

Sullivan and Graham are among 109 inmates nationwide who were sentenced to life in prison without parole for nonhomicide crimes.

During oral arguments, most of the justices sounded as though they were inclined to overturn at least some of these sentences as too extreme. However, they differed on how to do it. Chief Justice John G. Roberts Jr. offered a middle-ground approach that could overturn prison terms in some cases if the state judges failed to weigh the youthful age of the offender. Roberts said this “case-by-case approach” was wiser than setting a single rule.

Justice Samuel A. Alito Jr. said he agreed.

But most of the liberal justices hinted they would go further and rule it was always cruel and unusual punishment to impose a life term for an offender who is under age 18 and who did not commit a murder.

“Every state recognizes the difference between an adult and a minor. And you have to make a line. We have it at 18,” Justice Ruth Bader Ginsburg said. “The teenager can’t drink, can’t drive, can’t marry. There are many (legal) limitations on children just because they are children.”

Only Justice Antonin Scalia defended Florida’s policy, saying the court should look to history.

“When the ‘cruel and unusual’ clause was adopted (in 1791), 12 years was viewed as the year when a person reaches maturity,” Scalia said. “And then all felonies (were subject to) the death penalty.”

House liberals threaten to vote against final version of health overhaul
by James Oliphant And Kim Geiger
Tribune Washington Bureau

WASHINGTON – Furious liberals on Monday threatened to derail the massive health care overhaul bill to protest a last-minute deal over insurance coverage of abortions that had secured passage of the legislation in the House.

At least 40 House members pledged not to vote for a final health care bill if the abortion provision survives – endangering the exceptionally fragile Democratic coalition that has kept the bill afloat.

At issue are the insurance policies offered in a new “exchange,” or insurance marketplace, that the legislation would create to help consumers purchase health plans, many using newly created federal subsidies.

The House measure says the federal subsidies cannot be used to buy health policies that cover elective abortion. But abortion rights supporters say this would affect a broad set of consumers, because insurers would likely abandon abortion coverage in all policies offered in the exchange.

The provision “represents an unprecedented and unacceptable restriction on women’s ability to access the full range of reproductive health services to which they are lawfully entitled,” the House members wrote to House Speaker Nancy Pelosi.

It was a tougher line than they had adopted less than 48 hours earlier, when they had, almost to a member, voted to pass the health legislation. The bill cleared the chamber late Saturday night by a mere five votes.

The tumult over abortion now travels to the Senate, where it promises to cause headaches for Democrats still wrestling with fundamental issues of cost, coverage and revenues in its version of the health legislation.

Legislation before the Senate contains looser restrictions on abortion coverage than was approved by the House. But, already, at least one Senate Democrat, Ben Nelson of Nebraska, appears willing to work with abortion rights opponents on language similar to that from the House.

President Barack Obama suggested Monday the House measure might be altered as the legislation moves through Congress, though he did not say he would push for changes himself.

Obama told ABC News the bill should uphold the principle that federal money may not be used to subsidize abortions.

“And I want to make sure that the provision that emerges meets that test – that we are not in some way sneaking in funding for abortions, but, on the other hand, that we’re not restricting women’s insurance choices,” he said. “Because one of the pledges I made in that same speech was to say that if you’re happy and satisfied with the insurance that you have, that it’s not going to change.”

The House amendment would allow people buying insurance in the exchange to purchase separate “riders” that would cover abortions. Abortion-rights advocates say few would do so, because few women anticipate an unplanned pregnancy and few insurers are likely to offer such a separate service.

“No one counts on getting an abortion,” said Rachel Laser, a lawyer with Third Way, a Washington think tank that advocates centrist policies.

In 2001, 13 percent of abortions were billed directly to insurance companies, according to the Guttmacher Institute, which studies reproductive health. That figure, however, may understate insurance payments for abortion, because it does not include cases where women paid for the procedure out of pocket and later asked for reimbursement from their insurers.

Dr. Willie Parker, a board member at Physicians for Reproductive Choice and Health, said the amendment could have the greatest impact on women whose underlying health conditions require hospitalization in order for a safe abortion to be performed.

Parker cited an example of a woman with a pregnancy that involves abnormal attachment of the placenta. While a standard abortion may cost just $350, the cost in that situation would range between $3,000 and $4,000.

by Mark Sherman
Associated Press

At a glance:

Only 9 people in the country are serving life sentences for crimes committed when they were 13. The number rises to 73 when 14-year-olds are added in. No other country allows life sentences for young offenders.

WASHINGTON – Joe Sullivan was sent away for life for raping an elderly woman and judged incorrigible though he was only 13 at the time of the attack.

Terrance Graham, implicated in armed robberies when he was 16 and 17, was given a life sentence by a judge who told the teenager he threw his life away.

They didn’t kill anyone, but they effectively were sentenced to die in prison.

Life sentences with no chance of parole are rare and harsh for juveniles tried as adults and convicted of crimes less serious than killing. Just over 100 prison inmates in the United States are serving those terms, according to data compiled by opponents of the sentences.

Now the Supreme Court is being asked to say that locking up juveniles and throwing away the key is cruel and unusual – and thus, unconstitutional. Other than in death penalty cases, the justices never before have found that a penalty crossed the cruel-and-unusual line. They will hear arguments today.

Graham, now 22, and Sullivan, now 33, are in Florida prisons, which hold more than 70 percent of juvenile defendants locked up for life for nonhomicide crimes. Although their lawyers deny their clients are guilty, the court will consider only whether the sentences are permitted by the Constitution.

The Supreme Court’s latest look at how to punish young criminals flows directly from its four-year-old decision to rule out the death penalty for anyone younger than 18.

In that 2005 case decided by a 5-4 vote, Justice Anthony Kennedy’s majority opinion talked about “the lesser culpability of the juvenile offender.”

“From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed,” Kennedy said.

Yet Kennedy also acknowledged the possibility that for the worst crimes and the worst offenders, “the punishment of life imprisonment without the possibility of parole is itself a severe sanction, in particular for a young person.”

Both sides point to the same basic facts – the rare imposition of Draconian prison terms on people so young – to make their point.

The state of Florida, backed by 19 other states, argues it should retain flexibility in sentencing so that “particularly heinous acts that stop short of causing death” can be punished vigorously.

Life without parole “is appropriately rare and reserved only for the worst of the worst offenders,” crime victims groups said in court papers.

Most victims of juvenile violence also are young, the victims groups said, citing Justice Department statistics. “Softening sentences for juvenile offenders puts actual children in harm’s way – innocent ones, not those who have committed violent crimes,” the victims groups said.

Opponents of such sentences said, however, that most states have in practice rejected life terms for juveniles when no one was killed. The 109 juveniles serving terms of life without parole are in Florida and seven other states – California, Delaware, Iowa, Louisiana, Mississippi, Nebraska and South Carolina – according to a Florida State University study. More than 2,000 other juveniles are serving life without parole for killing someone.

Beyond the infrequency of such punishment, lawyers for Graham and Sullivan argue that it is a bad idea to render a final judgment about people so young.

“They are unfinished products, works in progress,” said Bryan Stevenson, who will argue Sullivan’s case at the high court.

Actor Charles Dutton, former U.S. Sen. Alan Simpson and others who committed crimes as teenagers have weighed in against life-without-parole sentences. Corrections officials, psychologists, educators and even some victims also have taken Graham and Sullivan’s side.

Simpson, a Wyoming Republican, served 18 years in the Senate, but as a teenager, he pleaded guilty to setting fire to an abandoned building on federal property and later spent a night in jail for slugging a police officer.

Simpson said he sees no good argument for refusing even to review their sentences after the passage of time.

“When they get to be 30 or 40 and they been in the clink for 20 years or 30 or 40 and they have learned how to read and how to do things, why not?”

If a prisoner shows he is not fit to be released, “throw him back in,” he said. “That’s better than saying ‘Sorry, we can’t look at that file because you were sent here for life.’ ”

Amy Goodman
The Spokesman-Review

“Extraordinary rendition” is White House-speak for kidnapping. Just ask Maher Arar. He’s a Canadian citizen who was “rendered” by the U.S. to Syria, where he was tortured for almost a year. Just this week, the Second U.S. Circuit Court of Appeals, in New York City, dismissed Arar’s case against the government officials (including FBI Director Robert Mueller, former Homeland Security Secretary Tom Ridge and former Attorney General John Ashcroft) who allegedly conspired to have him kidnapped and tortured.

Arar is safe now, recovering in Canada with his family. But the decision sends a signal to the Obama administration that there will be no judicial intervention to halt the cruel excesses of the Bush-era “Global War on Terror,” including extraordinary rendition, torture and the use of the “state secrets privilege” to hide these crimes.

Arar’s life-altering odyssey is one of the best-known and best-investigated of those victimized by U.S. extraordinary rendition. After vacationing with his family in Tunisia, Arar attempted to fly home to Canada. On Sept. 26, 2002, while changing planes at JFK Airport, Arar was pulled aside for questioning. He was fingerprinted and searched by the FBI and the New York Police Department. He asked for a lawyer and was told he had no rights.

He was then taken to another location and subjected to two days of aggressive interrogations, with no access to phone, food or a lawyer. He was asked about his membership with various terrorist groups, about Osama bin Laden, Iraq, Palestine and more. Shackled, he was moved to a maximum-security federal detention center in Brooklyn, strip-searched and threatened with deportation to Syria.

Arar was born in Syria and told his captors that if he returned there, he would be tortured. As Arar’s lawyers would later argue, however, that is exactly what they hoped would happen. Arar was eventually allowed a call – he got through to his mother-in-law, who got him a lawyer – and a visit from a Canadian Consulate official.

For nearly two weeks, the U.S. authorities held the Syria threat over his head. Still, he denied any involvement with terrorism. So in the middle of the night, over a weekend, without normal immigration proceedings – without anyone telling his lawyer or the Canadian Consulate – he was dragged in chains to a private jet contracted by the CIA and flown to Jordan, where he was handed over to the Syrians.

For 10 months and 10 days, Maher was held in a dark, damp, cold cell, measuring 6 feet by 3 feet by 7 feet high, the size of a grave. He was beaten repeatedly with a thick electrical cable all over his body, punched, made to listen to the torture of others, denied food and threatened with electrical shock and an array of more horrors. To stop the torture, he falsely confessed to attending terrorist training in Afghanistan. Then, after nearly a year, he was abruptly released to Canada, 40 pounds lighter and emotionally destroyed.

The Canadian government, under conservative Prime Minister Stephen Harper, investigated, found its own culpability in relaying unreliable information to the FBI and settled with Arar, giving him an apology and $10 million. The U.S. government, on the other hand, has offered no apology and has kept Arar on a terrorist watch list. He is not allowed to enter the U.S. Two years ago, he had to testify before Congress via video conference.

He said: “These past few years have been a nightmare for me. Since my return to Canada, my physical pain has slowly healed, but the cognitive and psychological scars from my ordeal remain with me on a daily basis. I still have nightmares and recurring flashbacks. I am not the same person that I was. I also hope to convey how fragile our human rights have become and how easily they can be taken from us by the same governments that have sworn to protect them.”

Given the excesses of the Bush administration and Barack Obama’s promise of change, it has surprised many that these policies are continuing and that Congress and the courts have not closed this chapter of U.S. history. President Obama has never once condemned extraordinary rendition.

Arar’s lawyer, Maria LaHood, of the Center for Constitutional Rights, calls the court decision against Arar “an outrage.” In his dissent, Judge Guido Calabresi wrote, “I believe that when the history of this distinguished court is written, today’s majority decision will be viewed with dismay.” Given the torture that Arar suffered, his own response was remarkably measured: “If anything, this decision is a loss to all Americans and to the rule of law.”

Amy Goodman hosts a daily international TV and radio news hour called “Democracy Now!” that airs on more than 800 stations in North America. Denis Moynihan contributed research to this column.

Associated Press

OLYMPIA – Washington voters have approved the state’s new “everything but marriage” law, expanding rights for domestic partners and marking the first time any state’s voters have approved a gay equality measure at the ballot box.

With about 72 percent of the expected vote counted Thursday in unofficial returns, Referendum 71 was leading 52 percent to 48 percent, with a margin of about 60,000 votes.

Sen. Ed Murray, a Seattle Democrat who spearheaded the law, called it “a great step forward for equality in Washington state.”

The measure asked voters to approve or reject the latest expansion of the state’s domestic partnership law, granting registered domestic partners additional state rights previously given only to married couples.

Full-fledged gay marriage is still not allowed under Washington law.

Gary Randall of Protect Marriage Washington, which opposed the law and pushed to get the referendum on the ballot, said they weren’t ready to concede.

“We’re just going to wait and watch it play out,” he said.

Two national gay rights groups – the National Gay and Lesbian Task Force and the Family Equality Council – say that voter approval of such a measure was a first. Gay equality laws in other states, ranging from civil rights to gay marriage, have either been implemented by the courts or legislative process. Voters have rejected gay marriage 31 states, most recently in Maine, where voters repealed a gay marriage law on Tuesday.

“Our state made history today,” said Anne Levinson, chairwoman of Washington Families Standing Together, which fought to keep the law on the books. “This is a day for which we can all look back with pride.”

The expanded law in Washington state adds benefits, such as the right to use sick leave to care for a domestic partner, and rights related to adoption, child custody and child support.

During the campaign, opponents argued the law is a stepping-stone to gay marriage. Gay rights activists countered that while the marriage debate was for another day, same-sex couples need additional legal protections and rights in the meantime.

The law will take effect Dec. 3, according to the secretary of state’s office.

The underlying domestic partnership law, which the Legislature passed in 2007, provided hospital visitation rights, the ability to authorize autopsies and organ donations, and inheritance rights when there is no will.

Last year, lawmakers expanded the law to give domestic partners standing under laws covering probate and trusts, community property and guardianship.

By Chris Jordan
November 5, 2009

Last week, Senate Majority Leader Harry Reid surprised political observers everywhere with his announcement that the Senate’s health-reform bill would include a public-insurance option.

Despite polls showing strong public support for the proposal, TV pundits declared the public option dead due to a lack of support among moderate democrats.

Why would these democrats be so antsy about an idea that was backed by strong majority of voters? Insurance companies have been fighting the public option tooth-and-nail and have been lining the pockets of politicians in the process.

Take for example, Sen. Max Baucus, chairman of the Finance Committee. He almost single-handedly killed the public option when his influential committee passed a bill replacing it with weaker “co-ops.” Not surprisingly, he has received almost $500,000 in campaign contributions from insurance and other health industry lobbyists and their clients.

Baucus may well be a totally honest guy who simply ignores these hundreds of thousands of dollars when deciding how to vote. It’s possible.

But examples like this help explain Congress’ recent approval rating of 21 percent. While giant corporations shell out millions in lobbying and campaign contributions, average citizens feel ignored. Congressmen and -women, in order to win re-election, spend enormous amounts of time raising money when that time should be spent at town halls getting input from the people they represent.

In order to end special interest dominance of our political process, it’s time Americans consider public financing of federal campaigns.

No existing reform laws have changed the fundamental reality that politicians rely on big donors and spend far too much time raising funds for the next election. One practical solution is the optional Clean Elections system being used in Maine and Arizona.

Under this system, candidates who gather a sufficient number of small contributions from citizens in their district qualify for a grant of public funds to run their campaign. Instead of spending months building connections among wealthy donors, candidates seeking office must go directly to the voters at a grassroots level for support in order to secure funding for their campaigns.

Clean Elections means election outcomes will be increasingly determined by the appeal of a candidate’s message, rather than how much money he or she is able to raise.

One persistent challenge to these sorts of public finance systems has been the Supreme Court. It has ruled that private donations amount to political speech protected by the First Amendment and that “rescue money” provisions are unconstitutional.

Regardless, it’s still possible to set up a public system that is so attractive an option to candidates that it effectively eliminates the incentive for private funding.

Clean Elections has proved to be a successful alternative funding method in Arizona. In 2008, 65 percent of candidates in the state ran as “clean” candidates. While cheaters have occasionally been able to game the system, some tweaks here and there should overcome the issue.

Following the example of Arizona and making improvements over time, Americans should embrace the Clean Elections model as superior to one dominated by the wealthy and special interest groups. Public financing offers great hope of diluting the influence of money in politics and making politicians more connected to their constituents.

Reach columnist Chris Jordan at opinion@dailyuw.com.

David G. Savage / Los Angeles Times September 10, 2009

WASHINGTON – The Supreme Court’s conservative bloc sounded poised Wednesday to strike down on free speech grounds a 100-year-old ban against corporations spending large amounts of money to elect or defeat congressional and presidential candidates.

If the justices were to issue such a ruling in the next few months, it could reshape American politics, beginning with the congressional campaign in 2010. Big companies and industries – and possibly unions as well – could fund campaign ads to support or defeat members of Congress.

Since 1907, federal law has prohibited corporations from giving money to candidates. And since 1947, corporations and unions have been barred from spending money on their own to urge voters to elect or defeat federal candidates. Corporate executives, as individuals, can contribute money to a corporate political action committee or PAC, but these amounts are relatively modest compared to the funds available to the corporate treasury.
At least 24 states have similar bans on corporate spending in state races.
All those spending limits have come under growing legal attack from conservatives and libertarians who say the government should not be allowed to set limits on campaign spending and electioneering, even when corporate or union money is in play.

Three justices – Antonin Scalia, Anthony Kennedy and Clarence Thomas – have already said they would overrule past decisions that had upheld federal and state restrictions on corporate election spending. Chief Justice John Roberts and Justice Samuel Alito also have said they favor free speech over the campaign funding limits. But they have not yet said whether they would go along and give corporations a free speech right to spend on campaign ads.

That was the issue before the court Wednesday. It was a rare re-argument in a seemingly narrow case of a small nonprofit group called Citizens United. It had produced a video called “Hillary: The Movie,” which was designed to undercut Hillary Rodham Clinton’s 2008 campaign for the presidency. However, it got tied up in a legal battle with the Federal Election Commission.

Because Citizens United is incorporated and received a small amount of corporate money, the group and its movie came under FEC regulation. Any amount of corporate money can trigger regulatory action under the election laws.
In March, the justices debated whether the law should apply to a nonprofit group that produced a campaign-related video. But rather than decide that narrow question, the justices said in June they would focus instead on whether to say that all corporations, like individuals, have a right to spend freely to elect or defeat candidates.

Washington lawyer Ted Olson, the former solicitor general under President George W. Bush, pressed the justices to rule broadly. “Corporations are persons entitled to protection under the First Amendment,” said Olson, who represented Citizens United.

Sens. John McCain, R-Ariz., and Russell Feingold, D-Wis., co-sponsors of the 2002 campaign funding law, were in the courtroom and listened intently to the 90-minute argument. The ruling could strike down part of the McCain-Feingold Act that restricted corporate and union-funded election ads in the months before the election.

The court will meet behind closed doors later this week to vote on the case. A decision could come within a few months.

by Gary Crooks
The Spokesman-Review

While heading into work on Friday, I saw a small group on the corner of Second Avenue and Lincoln Street waving signs in opposition to Referendum 71, which would give voter approval to the “everything but marriage” law that was adopted by the Legislature last spring. The law grants to registered same-sex couples the same rights and benefits accorded married couples under state statutes.

Normally, I wouldn’t mind such a political display, but among those holding “Protect Children” placards were children themselves. Do you suppose the kids independently researched the topic before deciding they’d be imperiled if discrimination against same-sex couples were brought to an end? More likely, adults shoved the signs into their hands for emotional appeal. Must be that indoctrination I’ve been hearing about.

The use of children in politics has always bugged me, whether it’s the serene family photos on glossy brochures or those oh-so-cute appearances at political rallies. Then there’s the positioning of children near the lectern to dissuade questions about why politicians were sleeping around. But the anti-Referendum 71 example strikes me as particularly odious, because the signs make it seem like the issue is about child predators and one side is all for them.

The logical leap is that a household with a man and a woman is better for child-rearing. There is no firm empirical evidence of this, but even if there were, there are many socioeconomic factors that determine outcomes for children. Divorce and single parenthood matter. So do income, educational level and the age at which people marry.

So where are the campaigns to prohibit marriage (and the rights that go with it) for those who have low incomes or are under 25 years old or don’t have college degrees? Where are the signs protesting the impending marriages of those who tried it before and failed? There aren’t any, and I wonder why. Isn’t this about the kids?

Mixed message. Speaking of protecting children, a justice of the peace in Hammond, La., is making headlines for refusing to sign a marriage license because the couple is biracial. That’s right, Keith Barnwell turned away the couple because of his concern for their yet-to-be-born children. For one thing, he says, mixed-race couples are more apt to get divorced.

Barnwell says he’s not racist, because he has officiated at many marriages involving African-American men and women. But why would he do that when those couples have an above-average divorce rate? Don’t those kids matter?

Maybe we need to pass a law that prohibits adults from using children as an excuse for their bigotry.

You don’t say. It’s interesting how many arguments against gay marriage were first used to defend state laws that barred mixed-race nuptials. Here’s one:

“We aren’t bigoted,” said the backers of anti-miscegenation laws. “We just worry, what will happen to the children? They’ll be taunted and teased.”

It’s like telling a shoe salesman that size matters. Minorities don’t need a heads-up on the possibilities of bigotry. Neither do gays and lesbians. It’s a truth that’s self-evident.

Follow the balloon. A nation is transfixed. What is it? What keeps it aloft? How high will it go? What if it crashes? What if there’s too much inflation or sudden deflation? What if rescuers can’t get there in time? What if there’s no way to bail out? Who built it? Who approved it? Who could think it would ever be safe?

But enough about the economy, how about that balloon boy?

Smart Bombs is written by Associate Editor Gary Crooks and appears Wednesdays and Sundays on the Opinion page. Crooks can be reached at garyc@spokesman.com or at (509) 459-5026.

by Leonard Pitts Jr.

Christmas is probably unconstitutional.

I’m no lawyer, but the logic seems unassailable to me. Consider: Santa Claus aside, Christmas is an explicitly Christian holiday and the only holiday of any religion to be observed by the federal government. Which would seem to violate the First Amendment edict that Congress “shall make no law respecting an establishment of religion.” Yet to the best of my admittedly limited knowledge, no one has ever sued Christmas before the Supreme Court.

Not that I’m trying to give any ideas. No, I’m only trying to tease out an opinion I can live with in a case the court heard last week, about a cross in the Mojave Desert.

The original cross (it has been replaced a number of times over the years) was erected in 1934 as a tribute to the dead of World War I and sits in a remote corner of what is now the Mojave National Preserve. Its legal troubles began 10 years ago with a former employee of the National Park Service who sued because he thought the cross an improper display on federal land in that it celebrated one faith over others.

It’s a contention Justice Antonin Scalia sharply disputed last week. “It’s erected as a war memorial,” he said. “I assume it is erected in honor of all the war dead.”

To which Peter Eliasberg, a lawyer representing the American Civil Liberties Union, shot back: “I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew.”

Scalia was unconvinced: “I don’t think you can leap from that to the conclusion that the only war dead that the cross honors are the Christian war dead. I think that’s an outrageous conclusion.”

But Eliasberg’s conclusion was, of course, perfectly valid, and Scalia’s obstinate insistence that the cross is a generic symbol manages to simultaneously demean Christianity and deftly illustrate the sort of bullying the Constitution discourages. How easily and readily the majority embraces the myopic view that its symbols and norms represent us all.

That said, I keep wondering what good can come of this.

The plaintiff is said to be a devout Catholic, so we can take it on – ahem – faith that he is motivated solely by principle. For the record, the principle is one I support.

You need only look at Iran to know the separation of church and state is a good thing. You do not post the Ten Commandments in court for the same reason you do not mandate prayer in schools or require Bible study to get a job: There is a coercive effect that is wholly unfair to those of other faiths or no faith at all.

But I have trouble seeing the coercive effect of a cross in the middle of nowhere.

I submit that this is a battle poorly chosen. Yes, the argument arguably has legal merit, but you have to ask yourself: What’s the point? Is someone really injured by a cross in the desert? Or is this not about validating principle at all costs – even public peace and common sense?

Indeed, by the same reasoning, one might sue cities that allow crosses to be planted at roadsides where traffic fatalities have occurred. Except that if it comforts some grieving family and your only “injury” is to glimpse it while driving by at 65 mph, why would you bother? Principle absent human compassion is just intellectual masturbation.

So forgive me if I am unimpressed by the argument that a cross in the middle of nowhere is unconstitutional. Understand: I think the argument may well be correct.

But that’s not the same as being right.

Leonard Pitts Jr. is a columnist for the Miami Herald. His e-mail address is lpitts@miamiherald.com.

President tells gay rights group he supports them
by Michael D. Shear, Anne E. Kornblut And Ed O’Keefe / Washington Post

Associated Press

WASHINGTON – President Barack Obama, struggling to keep promises he made during last year’s campaign, pledged to continue fighting on behalf of gays and lesbians – including ending the military’s ban on openly gay service members – as he appeared at a fundraising dinner for the nation’s largest gay advocacy group Saturday night.

“I will end ‘don’t ask, don’t tell,’ ” Obama said at the Human Rights Campaign dinner. Recounting the ongoing effort to bring full civil rights to gays and lesbians, the president said: “I’m here with a simple message: I’m here with you in that fight.”

Obama did not offer specifics on how he would advance the cause of allowing gays to serve openly in the military, or of gay marriage, two areas where his inaction as president have disappointed many of his gay supporters.

But on the eve of a major gay rights rally in Washington, an event aimed in part at pressuring Obama and Congress, the president was met with a standing ovation and resounding cheers. Obama acknowledged the frustration of some activists, portraying himself as a forceful ally in a lengthy fight. And while he said that gay rights are only one part of his agenda, which is loaded down with domestic and international challenges, he said that would not deter him.

“My commitment to you is unwavering, even as we wrestle with these enormous problems,” Obama said. “Do not doubt the direction we are headed and the destination we will reach.”

Just days after winning the presidency, Obama vowed that he would be “a fierce advocate for gay and lesbian Americans.”

But nine months later, many in the community say he has done little to make good on that statement. They accuse the president of putting their agenda on the back burner – behind Wall Street regulation, health care, climate change and a series of foreign-policy issues. And although his sweeping rhetoric is appreciated, many are concerned that he has so far offered little beyond the symbolic and the incremental. Many gay rights activists are disappointed that Obama has not moved forward on two major issues: ending the military’s “don’t ask, don’t tell” policy, under which gay soldiers can be discharged for their sexual orientation; and his failure to work toward ending the Defense of Marriage Act.

“As someone who supported Barack Obama early on during the primaries, and raised nearly $50,000 for him during the campaign, it gives me no pleasure to burst the pink champagne bubbles of hope,” John Aravosis, a gay rights activist and popular blogger, wrote in the Huffington Post. “But President Obama’s track record on keeping his gay promises has been fairly abominable.”

One victory that appears near is the passage of legislation that would broaden the definition of federal hate crimes to include attacks based on gender, sexual orientation, gender identity or disability. The House passed the legislation last week. Final action in the Senate is expected this week, and Obama has said he will sign the bill.

Thousands of gay men and women are expected to gather on the National Mall in Washington for today’s National Equality March.

 Not everyone is on board. Rep. Barney Frank, an openly gay member of Congress, said he’d rather see gay rights supporters lobbying their elected officials than marching in Washington, calling the demonstration “a waste of time at best.”

 Frank said in an interview with the Associated Press that he considers such demonstrations to be “an emotional release” that does little to pressure Congress.

 “The only thing they’re going to be putting pressure on is the grass,” the Massachusetts Democrat said Friday.

Inside the Supremes’ new term.

By Dahlia Lithwick | NEWSWEEK

Published Sep 24, 2009 From the magazine issue dated Oct 5, 2009

Next week the Supreme Court will begin its 2009 term, secure in the knowledge that it remains completely misunderstood by the American public. A Gallup poll conducted in September showed the court’s current approval rating—61 percent—to be higher than it’s been in a decade. (Last year that number was 50 percent.) This fall, 50 percent of Americans believe the court is not too liberal or too conservative; that’s up from 43 percent last year. The number of Americans who believe the court is too conservative has dropped from 30 to 19 percent.

All this public admiration for the court’s moderation came the same week the court was hearing a campaign-finance-reform case that may dismantle a longstanding system of campaign-finance restrictions. The issue in Citizens United v. Federal Elections Commission is not limited to the constitutionality of the McCain-Feingold campaign-finance-reform law. The reason court watchers got so worked up about this case is that it squarely tests Chief Justice John Roberts’s stated commitments to preserving precedent, deferring to the elected branches, and issuing narrow rulings instead of sweeping ones. Oral arguments revealed that the court’s five conservatives feel nothing but contempt for campaign-finance regulations that demonize corporations, restrict core political speech, and—to quote the chief justice—”put our First Amendment rights in the hands of FEC bureaucrats.”

But that’s where the public confusion kicks in. In last term’s cases on voting rights, reverse discrimination, and a school strip search, the court opted for narrow, case-specific rulings rather than the sweeping ones foreshadowed by dramatic oral arguments. All this hardly means the 2008 term was a triumph for liberals at the high court. On balance, the term continued a clear trend in which big business always prevails, environmentalists are always buried, female and elderly workers go unprotected, death-row inmates get the needle, and criminal defendants are shown the door. So how to explain these new poll numbers showing that 49 percent of Republicans believe the Roberts Court is too liberal and 59 percent of Democrats believe the court is “about right”?

In part, the numbers reflect a focus on the wrong data; we continue to believe in the court we see on TV. Thus, the highly charged confirmation hearings of Justice Sonia Sotomayor this summer contributed to the idea that the court was swinging leftward, even though it’s clear that her substitution for Justice David Souter will do nothing to alter the balance of the court (indeed, she is generally expected to move the court to the right in some areas of criminal law). Similarly, the refusal of the court to go all the way in the big-banner civil-rights cases last year leads to the broad perception that the court is quite liberal.

To be sure, progressives who claim that the court’s eventual ruling in September’s campaign-finance fracas will conclusively reveal the heart of darkness that lurks inside the Roberts Court are also overstating their case. It’s true that the Roberts Court is a fundamentally conservative creature and will remain that way for the foreseeable future. But as we learned yet again last term, it’s also a court that is deeply aware of, even responsive to, public opinion. This is a court willing to reverse the Warren revolution with a tablespoon instead of a wrecking ball, and that may be too nuanced an approach to be captured in public-opinion polls.

The term that opens next week promises to provide another fistful of cases that will slowly deepen our understanding of the Roberts Court. Among them: yet another challenge to a cross on government property (raising questions about who has standing to be offended by religious symbols); a dispute over the constitutionality of a federal statute criminalizing depictions of animal cruelty; questions about whether juveniles may be sentenced to life without parole; another hot eminent-domain case; and maybe even a quarrel over whether the name “Washington Redskins” is offensive. If the tea leaves are correct, we may also see another confirmation hearing next summer.

As a generation raised on a constant diet of reality television and the inevitable “big reveal,” we will continue to look to the high drama of oral argument and the staged fireworks of judicial-confirmation hearings for our views about the Supreme Court. What really happens at the high court in the coming years will continue to occur by the tablespoon—even if we are too busy with imagined wrecking balls to see it.

Hearing could test reach of Second Amendment
Robert Barnes / Washington Post

Tags: gun rights u.s. supreme court

Associated Press The Supreme Court sits for a group photograph Tuesday ahead of the new session. The justices are: Samuel Alito Jr., Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, Anthony M. Kennedy, John Paul Stevens, Chief Justice John G. Roberts, Antonin Scalia and Clarence Thomas.

WASHINGTON – The Supreme Court set up a historic decision on gun control Wednesday, saying it will rule whether restrictive state and local laws violate the Second Amendment right to gun ownership that it recognized last year.

The landmark 2008 decision to strike down the District of Columbia’s ban on handgun possession was the first time the court had said the amendment grants an individual right to own a gun for self-defense. But the 5-to-4 opinion in District of Columbia v. Heller did not address the question of whether the Second Amendment extends beyond the federal government and federal enclaves such as Washington, D.C.

Most court observers think that the five justices who recognized the individual right will also find that the Second Amendment applies to state and local governments, a move that could spark challenges of state and local laws governing gun registration, how and when the weapons can be carried, and storage requirements.

The court will hear a challenge of handgun laws in Chicago and the neighboring village of Oak Park, Ill. It was filed by Alexandria, Va. attorney Alan Gura, who successfully argued the Heller case. He said the Chicago ban is “identical” to the one found unconstitutional in the District.

The announcement came as the court prepared for its new term, which will officially begin on Monday. Justices sifted through more than 2,000 petitions accumulated through the summer and selected 10 to hear.

Also on the list was an examination of an anti-terrorism statute, widely used by federal prosecutors, that bans material support to groups that the State Department designates as terrorism organizations.

Solicitor General Elena Kagan told the court that the law is a “vital part of the nation’s effort to fight international terrorism,” but a lower court said some of the statute was unconstitutionally vague.

The decision to accept the Chicago gun case was a natural progression from the decision in Heller, which split the court on ideological grounds. The liberal justices said the Second Amendment guaranteed only a collective right for gun ownership to maintain militias.

If the amendment is extended, the next question will be about the kind of restrictions allowed. The Heller opinion by Justice Antonin Scalia said some requirements would be constitutional, but it was not specific.

Gura hopes for a “definitive ruling” on Chicago’s restrictions, and said he thinks that at a minimum the court would strike the same kind of handgun ban it found objectionable in Washington.

But gun-control advocates played down the importance of the case, saying few states or municipalities had such restrictive laws. Only a handful of states do not protect gun ownership in their constitutions, and 33 filed a brief advocating that the court find that the Second Amendment applies to them.

“Even if the court were to hold the Second Amendment applicable to states and localities, such a ruling is unlikely to change the crucial holding by the Supreme Court in Heller that a wide range of reasonable gun laws are presumptively constitutional, and that the Second Amendment right is narrowly limited to guns in the home for self-defense,” said Paul Helmke, president of the Brady Campaign to Prevent Gun Violence.

The method by which the court might apply the Second Amendment is what interests constitutional scholars. The Bill of Rights originally was thought to be a restriction on the federal government, a perception furthered by a 19th Century court ruling that differentiated between state and federal rights.

Since then, the court has gradually applied most of the 10 amendments to the states in a process called “incorporation,” but not the Second Amendment.

Gura is supported by liberal and conservative scholars who say the issue should be taken care of by the post-Civil War 14th Amendment, which says a state may not “abridge the privileges and immunities” of citizens nor deprive liberty “without due process of law.”

Clark Neily, a senior lawyer at the conservative Institute for Justice, said in a statement: “This case is about more than guns – it is about whether the Supreme Court should interpret the Constitution as the powerful protection of liberty it was intended to be. His organization sees the “privileges and immunities” clause as a protector of “economic liberty” and “armed self-defense.”

Liberal scholars such as Doug Kendall of the Constitutional Accountability Center consider the clause an “explicit protection for substantive liberty that would reinforce the constitutional underpinnings of Roe v. Wade and the court’s ruling protecting sexual autonomy for gays and lesbians.”

Justice Sonia Sotomayor was part of a panel on the U.S. Court of Appeals for the 2nd Circuit that said in an unrelated case that only the Supreme Court could decide whether the Second Amendment applies beyond the federal confines. Because the court accepted the case from the U.S. Court of Appeals for the 7th Circuit, she is free to participate.

The case is McDonald v. Chicago. The earliest it would be argued is Jan. 11.

THE nation is abuzz with praise for law enforcement. After months of careful investigation, involving extensive surveillance and international monitoring of travel and financial records, the authorities disrupt a major Qaeda cell operating domestically, arresting the primary conspirators. The conspirators are indicted and detained, and the nation breathes a sigh of relief.

Until the subway explodes.

The situation described above is not, thankfully, what has happened in the wake of the arrests this month of Najibullah Zazi, his father and several alleged confederates in Colorado and New York. Instead, it describes what happened in England in 2004 when the authorities, in Operation Crevice, arrested several terrorists (five of whom were eventually convicted) but had insufficient evidence to charge several other associates. Those other men went on to bomb the London subway on July 7, 2005.

Taken together, the Zazi and British cases illustrate a daunting challenge facing the criminal justice system in dealing with domestic terrorism attacks: law enforcement must constantly balance its need to develop evidence sufficient to convict the conspirators against the potentially devastating consequences of allowing the conspiracy to ripen into an attack.

To arrest the suspects prematurely is to run the risks of acquittal, of forcing prosecutors to advocate and courts to accept overly broad interpretations of existing criminal statutes, and perhaps of arresting innocent people. To decide to wait, however, continuing surveillance in the hope of developing better proof, is to risk losing the suspects and placing the public in mortal peril.

Police departments, prosecutors and the F.B.I. all face similar challenges in other criminal contexts. Anyone who has been involved at a senior level in serious investigations is aware of the suspected sexual predator or armed bank robber — or even the suspected serial killer — who must be left at large because of the lack of admissible evidence. Sometimes, proof is developed and the perpetrator is caught; sometimes, people get hurt.

As a society, we have weighed the risks to public safety in curtailing police power against the risks to public liberty of allowing too much police power. The balance we have struck is reflected in our constitutional protections. The question posed by terrorism, however, is whether the stakes — possibly tens of thousands of deaths — are sufficiently higher to alter that balance in favor of greater government power.

History shows that our decisions have yielded mixed results. During the mid-1990s, the authorities were able to develop strong evidence against Omar Abdel-Rahman, known as the Blind Sheik, and his fellow conspirators who were plotting to blow up New York City landmarks; they were convicted in 1995. In an earlier case, however, the unwillingness of a confidential informant to develop evidence that could be used in court led the F.B.I. to cut ties with him in 1992; the group on which he had been informing went on to bomb the World Trade Center the following February.

Prosecutors in the Zazi case to date have been unable to charge several other suspected co-conspirators — as many as 24, according to some reports. And while Mr. Zazi has now been accused by authorities of conspiring to make bombs, the other arrestees have been charged only with the relatively minor offense of lying to the authorities. Law enforcement is described in several news reports as “stretched thin” as it conducts surveillance of Mr. Zazi’s associates.

This has an ominous precedent: in the wake of the 2004 arrests, British authorities followed the other associates who had appeared on video surveillance with the conspirators, but eventually lost interest and moved on to other investigations. Those forgotten men proceeded to kill 52 people and wound 700 more.

Time will tell whether the decision to arrest Mr. Zazi and his associates was premature. If the case against them does not develop beyond what has been reported, and if no useable evidence is developed against the 24 other men, the decision to arrest will be second-guessed. That would be grossly unfair. From a public safety perspective, law enforcement officers and prosecutors cannot be faulted for acting when they believe that the public is in imminent peril, even if that means compromising an investigation.

The larger issue raised here is whether there is a viable alternative to the nerve-racking game of chicken that law enforcement must play in terrorism cases. The obvious — though extremely unpopular — alternative is the passage of a preventive detention statute.

Such statutes have been upheld in the context of people with a demonstrated proclivity toward violent conduct, like sexual predators; the concept could be adapted, in a way that withstands constitutional scrutiny, to cover people with a demonstrated proclivity toward terrorism. That approach would give law enforcement additional means to disrupt potential terrorist plots. It has the virtue of honesty, obviating the strained and sometimes disingenuous use of material-witness and false-statement statutes that are now frequently used to arrest and hold suspected terrorists, and would remove the temptation to criminalize conduct that borders on free speech.

Still, preventive detention is hardly a panacea. What should the burden of proof be in using “civil commitment” regarding terrorism? When should that burden be adjusted, if ever? How often would a subject’s status be reviewed? How long may someone be held? There is, moreover, something about detaining someone before he has committed an offense that runs counter to our core constitutional values.

The Zazi case may well end up providing more questions than answers. In the absence of some mechanism allowing for preventive detention, the F.B.I. and police must continue to make hair-trigger judgments in real time about whether and when to arrest and charge suspects. Those are decisions our law enforcement officials routinely make, and make well, in other contexts; in terrorism cases, however, we have to ask if the stakes are too high for the system we have in place.

John Farmer Jr., a former attorney general of New Jersey, is the dean of the Rutgers School of Law at Newark and the author of “The Ground Truth.”

Expert questions arson finding that led to execution

For years, death-penalty opponents and supporters have been working their way toward a moment in which each side would rethink things. They were seeking a case in which a clearly innocent defendant was wrongly put to death. In a 2005 Supreme Court case that actually had nothing to do with the execution of innocents, Justices David Souter and Antonin Scalia tangled over the possibility that such a creature even existed. Souter fretted that “the period starting in 1989 has seen repeated exonerations of convicts under death sentences, in numbers never imagined before the development of DNA tests.” To which Scalia retorted: “The dissent makes much of the newfound capacity of DNA testing to establish innocence. But in every case of an executed defendant of which I am aware, that technology has confirmed guilt.” Scalia went on to blast “sanctimonious” death-penalty opponents and a 1987 study on innocent exonerations whose “obsolescence began at the moment of publication,” then concluded that there was not “a single case—not one—in which it is clear that a person was executed for a crime he did not commit.”

This suggested that if anyone found such a case, the Scalias of the world would rethink matters. As of today, the Innocence Project, a national organization dedicated to exonerating the wrongfully convicted through DNA testing, claims there have been 241 postconviction DNA exonerations, of which 17 were former death-row inmates spared execution. The gap between their facts and Scalia’s widens every year. And now we may have found that case of an innocent put to death: Cameron Todd Willingham, executed by the state of Texas in 2004 for allegedly setting a 1991 house fire that killed his three young daughters.

David Grann, who wrote a remarkable piece about the case in last week’s New Yorker, sifted through the evidence against Willingham to reveal that the entire prosecution was a train wreck. And at every step in his appeal, Willingham’s claims of innocence were met with the response that he’d already had more than enough due process for a baby killer.

But you needn’t take Grann’s word for it. In 2004 Gerald Hurst, an acclaimed scientist and fire investigator, conducted an independent investigation of the evidence in the Willingham case and came away with little doubt that it was an accidental fire—likely caused by a space heater or bad wiring. Hurst found no evidence of arson, and wrote a report to try to stay the execution. According to documents obtained by the Innocence Project, it appears nobody at the state Board of Pardons and Paroles or the Texas governor’s office even took note of Hurst’s conclusions. Just before Willingham was executed, he told the Associated Press, “[T]he most distressing thing is the state of Texas will kill an innocent man and doesn’t care they’re making a mistake.”

Since Willingham’s death, two other independent inquiries found no evidence of arson. In 2007 the state of Texas commissioned another renowned arson expert, Craig Beyler, to examine the Willingham evidence. Beyler’s report, issued two weeks ago, concluded that investigators had no scientific basis for claiming the fire was arson.

One might think that all this would give a boost to death-penalty opponents, who have long contended that conclusive proof of an innocent murdered by the state would fundamentally change the debate. But that was before the goalposts began to shift this summer. In June, by a 5–4 margin, the Supreme Court ruled that a prisoner did not have a constitutional right to demand DNA testing of evidence in police files, even at his own expense. “A criminal defendant proved guilty after a fair trial does not have the same liberty interests as a free man,” wrote Chief Justice John Roberts. And two months later, Justices Scalia and Clarence Thomas went even further when the Supreme Court ordered a new hearing in Troy Davis’s murder case, after seven of nine eyewitnesses recanted their testimony. Justice Scalia, dissenting from that order, wrote for himself and Thomas, “[T]his court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”

As a constitutional matter, Scalia’s assertion is not wrong. The court has never found a constitutional right for the actually innocent to be free from execution. When the court flirted with the question in 1993, a majority ruled against the accused, but Chief Justice William Rehnquist left open the possibility that it may be unconstitutional to execute someone with a “truly persuasive demonstration” of innocence. Now, in Scalia’s America, the Cameron Todd Willingham whose very existence was once in doubt is legally irrelevant. We may execute a man for an accidental house fire, while the Constitution itself stands silently by.

Lithwick also writes for slate.com.

Justices could overturn finance restrictions

Judge rejects challenge to Referendum 71

Kathleen Parker is a columnist for the Washington Post Writers Group. Her e-mail address is kathleenparker@washpost.com.

‘Everything but marriage’ referendum, still facing court hurdle, would come in November

Linda P. Campbell is a columnist for the Fort Worth Star- Telegram. Her e-mail address is lcampbell@star-telegram.com.

July 21, 2009 in Nation/World

Leonard Pitts Jr.

Leonard Pitts Jr. is a columnist for the Miami Herald. His e-mail address is lpitts@miamiherald.com.

Kathleen Parker is a columnist for the Washington Post Writers Group. Her e-mail address is kathleenparker@ washpost.com.

Amy Goodman is the host of “Democracy Now!,” a daily international TV/radio news hour airing on more than 750 stations in North America. Denis Moynihan contributed research to this column.

Posting said judges ‘deserve to be killed’

May 29, 2009

By Michael Gerson

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Page Printed from: http://www.realclearpolitics.com/articles/2009/05/29/entering_the_trap_96716.html at May 29, 2009 – 10:06:26 AM PDT

Beth Thew is secretary-treasurer of the Spokane Regional Labor Council, AFL-CIO.

By WILLIAM GLABERSON and HELENE COOPER

President-elect Barack Obama plans to issue an executive order on his first full day in office directing the closing of the Guantánamo Bay detention camp in Cuba, people briefed by Obama transition officials said Monday.

But experts say it is likely to take many months, perhaps as long as a year, to empty the prison that has drawn international criticism since it received its first prisoners seven years ago this week. One transition official said the new administration expected that it would take several months to transfer some of the remaining 248 prisoners to other countries, decide how to try suspects and deal with the many other legal challenges posed by closing the camp.

People who have discussed the issues with transition officials in recent weeks said it appeared that the broad outlines of plans for the detention camp were taking shape. They said transition officials appeared committed to ordering an immediate suspension of the Bush administration’s military commissions system for trying detainees.

In addition, people who have conferred with transition officials said the incoming administration appeared to have rejected a proposal to seek a new law authorizing indefinite detention inside the United States. The Bush administration has insisted that such a measure is necessary to close the Guantánamo camp and bring some detainees to the United States.

Mr. Obama has repeatedly said he wants to close the camp. But in an interview on Sunday on ABC, he indicated that the process could take time, saying, “It is more difficult than I think a lot of people realize.” Closing it within the first 100 days of his administration, he said, would be “a challenge.”

The president-elect drew criticism from some human rights groups Monday who said his remarks suggested that closing Guantánamo was not among the new administration’s highest priorities. But even if the detention camp remains open for months, the decision to address Guantánamo on the day after his inauguration seemed intended to make a symbolic break with some of the most controversial policies of the Bush administration.

Several national security and legal analysts have argued in recent weeks that Mr. Obama is in a delicate political position after having committed himself to closing the prison. Sarah Mendelson, the author of a report for the Center for Strategic and International Studies on how to close the prison, said Mr. Obama’s remarks on Sunday appeared intended to indicate the difficulty of the task, which she said it could take a year to complete.

“I thought he was trying to manage expectations of how quickly those detainees who remain can be sorted into two categories: those who will be released and those who will be prosecuted,” Ms. Mendelson said.

Aside from analyzing intelligence and legal filings on each of the remaining detainees, diplomats and legal experts have said the new administration will need to begin an extensive new international effort to resettle as many as 150 or more of the remaining men. Portugal and other European countries have recently broken a long diplomatic standoff, saying they would work with the new administration and might accept some detainees who cannot be sent to their home countries because of concerns about their potential treatment.

The transition official, who asked for anonymity because he was not authorized to discuss the plans, said the administration expected to announce its Guantánamo plans next Wednesday.

Brooke Anderson, a transition spokeswoman, declined to comment on any plans, saying only, “President-elect Obama has repeatedly said that he believes that the legal framework at Guantánamo has failed to successfully and swiftly prosecute terrorists, and he shares the broad bipartisan belief that Guantánamo should be closed.”

In formulating their policy in recent weeks, Obama transition officials have consulted with a variety of authorities on legal and human rights and with military experts. Several of those experts said the officials had expressed great interest in alternatives to the military commission system, like trying detainees in federal courts, and appeared to have grown hostile to proposals like an indefinite detention law.

They also said the transition officials were intensely focused on new international efforts to transfer many of the detainees to other countries.

Several said the officials appeared concerned that a proposal for a new law authorizing indefinite detention would bring the new administration much of the criticism that has been directed at the Bush administration over Guantánamo. A former military official who was part of a series of briefings at the transition headquarters in Washington said the officials had spoken about the indefinite detention proposal as a way of creating a “new Guantanámo someplace else.”

“That is very much not the desire of the Obama team,” said the former military official, who insisted on anonymity because of his concerns about how the transition officials would react to public discussion of their comments.

Catherine Powell, an associate professor of law at Fordham, said transition officials appeared most interested at a meeting last month in showing international critics that they were returning to what they see as traditional American legal values.

“They are really looking for tools that we have in our existing system short of creating an indefinite detention system,” Ms. Powell said.

Mark P. Denbeaux, a Seton Hall law professor who has been a prominent lawyer for Guantánamo detainees, said that at a briefing he attended with senior officials of the transition last month the officials seemed to have decided to suspend the military commissions immediately.

“Their position is they’re a complete and utter failure,” Mr. Denbeaux said.

The Pentagon has been pressing ahead with plans to begin a trial on Jan. 26 of one of its high-profile suspects, a Canadian detainee named Omar Khadr. Mr. Khadr’s case has drawn wide attention, partly because he was 15 when he was first detained on charges of killing an American soldier in a firefight in Afghanistan in 2002.

Some human rights groups said Monday that they were alarmed by Mr. Obama’s vague timetable and lack of specifics in his remarks Sunday. They said they worried that the administration might yield to pressure to display its toughness in dealing with terrorism in its detention policies.

“The devil is in the details,” said Anthony D. Romero, the executive director of the American Civil Liberties Union, who has been pressing the new administration to publicly commit to immediately close Guantánamo.

Mr. Romero said he had grown concerned because transition officials had provided details of their plans for dealing with the economic crisis, but had yet to provide details for how they will close Guantánamo, which has brought worldwide criticism.

“Just like we need specifics on an economic recovery package,” Mr. Romero said, “we need specifics on a ‘justice recovery package.’ ”

The Democrats are folding like an ironing board over this Roland Burris business, and for some reason people are surprised.

Just to catch up: The governor of Illinois, Rod Blagojevich, is in scalding-hot water over allegations he wanted to sell Barack Obama’s still-warm Senate seat. This was discovered via federal wiretaps of the helmet-haired governor’s phone conversations and fueled by some juicy dialogue better suited for fleet week in Manila.

In response, Senate Democrats took a Churchillian stand, vowing that no Blago appointee would ever be accepted by the Senate. No appointee, the Democrats insisted, so tainted with scandal could be allowed to sit in the same chamber that Ted Kennedy calls home.

The party of the infinitely elastic “living Constitution” suddenly planted their flag of principle in the terra firma of constitutional concrete and watched it flap in the hot wind of their political bloviation. Even after Blagojevich announced he was appointing Roland Burris, a respected but unremarkable black Illinois politician, to Obama’s seat, Senate Majority Leader Harry Reid of Nevada stood his ground, pronouncing the move “unacceptable.”

But that resolve melted like a Hershey bar in a Nevada parking lot the moment Mr. Burris came to Washington. Apparently, the Constitution wasn’t on the Democrats’ side (Fancy that!) and liberals lacked the stomach to stand in the doorway of the Capitol and block admittance of a black man.

Indeed, that was Blago’s thinking all along. When the Democratic governor announced his decision, he assembled various black Illinois pols to support the move, including Rep. Bobby Rush, a Democrat from Chicago’s South Side and a founder of the Illinois chapter of the Black Panther Party. Rush immediately played the race card at the press conference. “There are no African-Americans in the U.S. Senate. And I don’t think any U.S. senator who’s sitting in the Senate right now wants to go on record to deny one African-American from being seated in the U.S. Senate,” he said.

In case you needed a ball peen hammer to drive the point into your forehead, he added: “I would ask you to not hang or lynch the appointee as you try to castigate the appointer …”

Rush assembled more than 60 black ministers Sunday to rally around Burris at a Chicago church. “We are just faced with a hard-headed room of people in the Senate who want to keep an African-American out of the Senate,” Rush said. He condemned the Senate, where until recently Barack Obama served before becoming president of the United States, as “the last bastion of plantation politics.”

And that was all she wrote for Reid, who by next week should be on all fours like Kevin Bacon in “Animal House,” shouting, “Thank you sir! May I have another?” as Burris paddles him.

Now, I certainly understand why Reid & Co. caved. For starters, Reid’s not exactly the brightest crayon in the box.

But why all the fuss in the first place? Isn’t this how it always works? The Atlantic’s Ta-Nehisi Coates, an impressive African-American writer, is amazed that “Reid has been outmaneuvered by the sort of overt, ham-fisted identity politics deployed in the ’70s.”

The ’70s? So this sort of thing stopped more than three decades ago? I had no idea. What planet do my newscasts come from?

I thought this was simply what liberals and Democrats do. When Newt Gingrich introduced the Contract with America, black Democrats denounced it as racist. Charlie Rangel proclaimed, “Hitler wasn’t even talking about doing these things.” When impeachment threatened Bill Clinton, he draped himself in black ministers and staffers. The NAACP ran an ad narrated by the daughter of James Byrd, a black man brutally murdered in a hate crime, insinuating that then-presidential candidate George W. Bush’s refusal to support hate-crime legislation in Texas was like murdering her father again. In the recent campaign, nearly the entire liberal punditocracy insisted that opposition to Barack Obama could only be explained by racism, a story line egged on by Obama himself when convenient.

And don’t tell me Blago’s corruption changes the equation. Has anyone read about the baleful history of minority set-aside programs in cities like Chicago? Cronies and grifters are routinely given sweetheart contracts under the guise of fighting discrimination when in reality it’s all a riot of kickbacks, “pay-to-play” and cronyism. People don’t call Jesse Jackson a shakedown artist for nothing.

There are two reasons why this spectacle shocks some liberals. The first is that Blago, Burris and Rush used this tactic on fellow Democrats. And since Democrats can’t be motivated by racism, any ploy like this must be cynical. When the same gambit is used on Republicans, it’s called “speaking truth to power.” Second, some honestly believed that Obama represented a real change of the racial landscape. So far, alas, these folks just look naive.

Jonah Goldberg is editor-at-large of National Review Online. His e-mail address is jonahscolumn@aol.com.

By MARK MAZZETTI and CARL HULSE

December 23, 2008

By Eugene Robinson

WASHINGTON — Understanding isn’t the same as forgiving. The history-be-my-judge interviews that President Bush and Vice President Cheney have been giving recently help me understand why they acted with such contempt for our Constitution and our values — but also reinforce my confident belief, and my fervent hope, that history will throw the book at them.

The basic argument that they’re making deserves to be taken seriously. I don’t think either man would object to my summing it up in one sentence: We did what we did to keep America safe.

That terse formulation of the Bush-Cheney apologia leaves out important details. Cheney came into office with preconceived ideas about restoring executive branch powers and prerogatives that he believed had been lost after Vietnam and Watergate; Bush either shared Cheney’s views or was willing to go along. But the main narrative of the Bush presidency began with the Sept. 11, 2001, attacks by al-Qaeda terrorists — the worst such assault on American soil.

In a not-for-attribution chat with a member of the Bush Cabinet a couple of years ago, conversation turned to 9/11. I said something like, “I can imagine what that day must have felt like for you.” The response was immediate: “No, you can’t.”

The official went on to describe the chaos and anguish — the shock of seeing the 110-story World Trade Center towers collapse into rubble, the fear that other hijacked planes might still be in the air, the gut feeling that the president and those around him were personally under attack. The official talked of how administration officials racked their memories to think of anything they might have done differently to prevent the 9/11 attacks. I doubt that anyone in the Situation Room actually quoted Malcolm X, but essentially a vow was taken to protect the country from another assault “by any means necessary.”

These were human reactions, understandable and appropriate at the time. The truth is that the administration had missed signs that an attack was brewing — most famously, the president’s daily brief titled “Bin Laden Determined to Strike in U.S.” But these portents were lost amid the avalanche of information that buries every president every single day. Anyone in Bush’s position would have been filled with grief, anger and resolve.

Initial reactions are supposed to give way to reasoned analysis, however. For Bush and most of his top aides, this didn’t happen until far too late.

For Cheney, apparently it never happened at all. In an interview broadcast Sunday, he invited Fox News’ Chris Wallace to “go back and look at how eager the country was to have us work in the aftermath of 9/11 to make certain that that never happened again.” People have since become “complacent,” he said, but the administration’s actions have “produced a safe 7.5 years, and I think the record speaks for itself.”

That record, admirably, includes the overthrow of the Taliban regime in Afghanistan, the dismantling of al-Qaeda’s infrastructure and the killing or capture of some of the terrorist organization’s most important operatives. Shamefully, however, it also includes the violation of international and U.S. legal norms by subjecting terrorist suspects to indefinite detention and cruel, painful interrogation; the creation of a mini-gulag of secret CIA-run prisons abroad; and unprecedented domestic surveillance without court supervision — all justified, Cheney maintains, by a state of “war” that has no foreseeable end.

The Bush-Cheney record also includes the invasion of a country — Iraq — that had nothing whatsoever to do with 9/11. This misadventure has claimed more than 4,000 American lives, wasted hundreds of billions of dollars and grievously damaged our strategic position in the Middle East. In an interview with Martha Raddatz of ABC News earlier this month, Bush claimed credit for vanquishing al-Qaeda’s forces in Iraq. When Raddatz pointed out that there were no al-Qaeda forces in Iraq until after the U.S. invasion, the president answered, “Yeah, that’s right. So what?”

Here’s so what: Bush and Cheney, understandably shaken by an unprecedented act of terrorism, declared and prosecuted a “war” without specifying who the enemy is. Rather than focus on the architect and sponsor of the 9/11 attacks, Osama bin Laden, they turned away to lash out at others in pre-emptive blows that dishonored our nation’s most precious ideals.

History will note that the point of the Constitution is that the ends don’t always justify the means — and that nowhere in the document can be found the phrase “so what?”

From Rev. Wright to Rev. Warren
by William Kristol 12/29/2008

Until last week, the most important and most famous man of the cloth with whom Barack Obama was associated was the Reverend Jeremiah Wright, his longtime pastor from Chicago’s South Side. Today, that distinction belongs to the Reverend Rick Warren, best-selling evangelical author (The Purpose Driven Life) and pastor of Saddleback Church, thanks to Obama’s inviting him to deliver the invocation at the Inauguration. Talk about growing in office! Obama’s growing even before he assumes office. Is this smart politics on Obama’s part? Sure. Does it mean Obama has studied the mistakes of his predecessors, Jimmy Carter and Bill Clinton? Probably. Obama may have learned from their examples that, even though everyone says the economic crisis has put social issues on a far back burner, mishandling those issues can severely damage one’s presidency: Recall gays in the military under Clinton and the IRS ruling on Christian schools under Carter. If Obama’s selection of Warren is smart politics, it’s of a piece with four years of smart politics. In his 2004 Democratic Convention speech, with his statement that “We worship an awesome God in the blue states,” Obama tried to reassure red-state awesome-God-worshipers about the Democratic party. Indeed, he has generally gone out of his way not to disparage social conservatives. He knows–better than many Republicans–that social conservatism is the strongest political force on the right. So social conservatives may want to respond with some smart politics of their own. They might try taking Obama at his word. He’s for overturning Don’t Ask, Don’t Tell–but he’s also concerned about the military’s smooth functioning. Social conservatives could offer to join a bipartisan commission to study how the policy has been working and to consider alternatives–asking for assurances up front that Obama isn’t dogmatically committed to the conclusion that there’s nothing problematic about open gays serving anywhere and everywhere in the military. Similarly, Obama has said he wants to reduce the number of abortions. Maybe pro-lifers should offer to work with him on this. He and the Democratic Congress are going to try to funnel gushers of money to Planned Parenthood. How about some money for crisis pregnancy centers? Obama says he’s not hostile to faith-based initiatives. Social conservatives might offer to work with him to make sure his ACLU-type appointees don’t inadvertently–contrary to Obama’s wishes–shut down many of those fine programs. No conservative should kid himself about what the Obama administration is going to be like. Many of its key policies will be anathema to social conservatives. But social conservatives need to persuade some social moderates, and social undecideds, and social conflicteds, and social uncertains of the reasonableness of conservative concerns, and the sincerity of conservatives’ claims that they seek progress in these areas, not merely conflict. There will be plenty of occasions to draw lines with the Obama administration. For now, it might be a good idea to offer a few olive branches to Obama as well. And the selection of Rick Warren may turn out to have significance beyond short-term political maneuvering. One can see this from the hysteria on the left and among gay activists. They sense that Obama isn’t willing to sign on to their campaign to delegitimize, to cast out beyond the pale of polite society, anyone who opposes same-sex marriage–and in particular, anyone (like Warren) who supported Proposition 8 in California, the initiative that overturned the California Supreme Court’s legalization of same-sex marriage. The assault on Prop 8 supporters has been extraordinary in its mean-spiritedness and extremism–but the left knows what it’s doing. The purpose has been to intimidate people with an opposing point of view from defending their position. To be against same-sex marriage, even against the judicial imposition of same-sex marriage, is to be a bigot. As one leftwinger said on CNN, Warren is a “hatemonger” comparable to “the grand wizard of the Ku Klux Klan.” Or, as the Human Rights Campaign’s Brad Luna told Byron York of National Review, dismissing the fact that the benediction will be delivered by the Reverend Joseph Lowery, who is more friendly to gay marriage: “I don’t think any Jewish Americans would feel much comfort in knowing that an anti-Semite is starting the inauguration with an invocation, but we’re going to end it with a rabbi.” So the claim is, opposing same-sex marriage is tantamount to being a racist or an anti-Semite. Making that charge is at the heart of the agenda of the gay lobby. They don’t want to debate same-sex marriage. They want to demonize its opponents. Ironically, Lowery himself, who is a (somewhat equivocal) supporter of gay marriage, refuses to equate the gay rights and the civil rights movements: “Homosexuals as a people have never been enslaved because of their sexual orientation,” he told the Associated Press. “They may have been scorned; they may have been discriminated against. But they’ve never been enslaved and declared less than human.” And, one could add, gender and sex are at least potentially morally relevant in a way a decent society will not allow skin color to be. Skin color is skin deep. Gender and sex are more complicated–which is why even in our “enlightened” age, all distinctions based on gender and sexual orientation haven’t collapsed. God knows, Obama isn’t going to be out there defending such distinctions, or explaining which are reasonable and which aren’t. And it’s certain Obama is going to govern as a pro-abortion rights, not-particularly-pro-traditional-family, social liberal. But he at least seems open to a discussion of these issues. And that leaves some political space for social conservatives to continue making their case over the next few years. Conservatives have to be ready to stand up for themselves–and for each other–if and when the left comes at them from the academy, Hollywood, and the media. Obama’s invitation to Rick Warren doesn’t mean his administration won’t put a heavy thumb on the left side of the scale in our cultural conflicts. It doesn’t even mean that organs of the federal government, over which Obama will of course be presiding, won’t try to stifle nonconforming opinions. But the Warren invitation means that one can at least appeal to Obama’s own precedent against suppressing out-of-favor views. The left senses that the invitation to Rick Warren is a blow to their effort to establish a soft tyranny of “correct” opinion, to enforce society-wide political orthodoxy, on social issues. They’re right. This isn’t the time for conservatives to snipe at Obama’s motives. It’s time to welcome him into the American mainstream, to salute the president-elect’s progress from Reverends Wright to Warren. –William Kristol

Thursday, December 18, 2008

The Washington Times Editorial

NEWSWEEK

It wasn’t so long ago that Barack Obama saw paths around many of the civil-liberty dilemmas that President Bush faced when he launched a war on al-Qaeda around the world. The freshman Senator from Illinois believed, and often claimed, that the White House could and should have avoided the shame of Guantánamo Bay, resisted the urge to engage in torture and shunned domestic eavesdropping.

Such easy exits may be harder to come by now that Obama is preparing to take over as Commander in Chief. Over the past eight years, the Bush Administration has erected a new array of military detention camps, interrogation methods and spy programs of questionable legality. During the presidential campaign, Obama promised to dismantle much of that apparatus, arguing that the Bush Administration’s walk on the dark side had eroded freedoms at home and damaged America’s reputation abroad. But doing so will take more time and prove more complicated than some of his supporters may realize.

In some ways, it makes political sense to go slowly. Ever since 9/11, Obama’s party has been squeamish about walking point on civil liberties out of fear that Republicans would wrap such a move around their necks at election time. And so, though civil libertarians may holler, the Obama team is likely to put the emphasis on national security as it begins to explore options for undoing the policies of the Bush-Cheney era. Here’s a look at what the new President may seek to change and what he may leave in place:

Torture

Once he is sworn in, Obama could simply order a government-wide halt to waterboarding and any other questionable interrogation techniques that have been judged legal during the past eight years. The Executive Order would have to be sweeping and reach deep into the government’s darker recesses. That’s because the Bush team has written so many legal memos okaying various techniques for interrogators working at a wide range of agencies. Some of those opinions have been disclosed publicly, but an unknown number remain classified. Obama will need to direct his Attorney General to issue new legal guidance that supersedes all those legal opinions, seen or unseen, if he hopes to prevent a return to such practices in the future. Former federal prosecutor and onetime trial judge Eric Holder, Obama’s pick to lead the effort as the top man in the Justice Department, earned a reputation as a relatively moderate legal thinker when serving there as a senior official in the Clinton Administration. That concerns some civil libertarians. “If you leave these on the books, you leave a bunch of loaded guns that future Presidents and agency heads can pull out and shoot when they want to,” says Anthony Romero, executive director of the American Civil Liberties Union.

Guantánamo

Obama could fulfill his campaign pledge to close Gitmo by simply issuing an Executive Order. But that would pose the question of what to do with the 225 suspected terrorists detained there who would suddenly have no home. If brought to the U.S. for trial, they would fall under constitutional guarantees of due process, which includes the right to confront their accuser and review all evidence against them. That may not fly with top terrorism hunters, who rely on informants and classified evidence. Because some of the evidence looks to have been gathered during harsh interrogations that may now be regarded as illegal and therefore inadmissible in court, building criminal cases against some detainees may be impossible. That raises the danger of avowed terrorists walking away from U.S. custody on a technicality. “These are enormously complicated problems,” says Benjamin Wittes, a Brookings Institution fellow. “It’s very easy to say, ‘Put everybody on trial.’ But we still haven’t figured out what our trial system looks like for these terrorism cases.”

And even if Gitmo is shuttered, that still leaves the matter of those militants captured more recently in the wars in Afghanistan, Iraq and elsewhere whom Obama says he intends to more fully prosecute. Such knotty questions have led some experts to bet that while he will scale Gitmo back as quickly as possible, Obama won’t fully close it in 2009. They point out that the Bush Administration has already quietly discharged some 500 of the 700 prisoners who have been held there.

Obama may opt to release dozens of others and insist that the remaining handful of high-profile cases be heard in either federal or military courts in the U.S. Already dozens of Guantánamo cases are moving through the federal court system following a pivotal Supreme Court ruling in June, and the Bush Administration is grappling with two separate rulings from federal judges ordering the release of 22 detainees.

Renditions and Secret Prisons

There is no doubt that the murkiest corner of the shadow war on terrorism has been the CIA’s kidnapping suspected terrorists and shipping them to secret prisons around the globe–where obeying the Geneva Conventions is more an exception than the rule–a practice known as rendition. Unfortunately, some of those snatched by CIA officers were innocent. German citizen Khaled el-Masri was one such victim. El-Masri was vacationing in Macedonia in December 2003 when authorities arrested him on wrongful suspicions that his passport was fake. A tragic case of mistaken identity then played out. El-Masri has the same name as an al-Qaeda operative being hunted at the time by CIA officials, and they took custody of el-Masri in Macedonia. Operatives from the agency beat and drugged el-Masri before whisking him to a secret prison in Afghanistan known as the “Salt Pit.” Eventually el-Masri’s captors realized they had the wrong man and let him go, dumping him on a mountain road in Albania.

No one knows how many suspected terrorists have been grabbed by the agency over the past eight years. Already, the CIA has transferred at least 14 detainees from secret prisons to Guantánamo. Dozens or even hundreds of others may still be imprisoned at secret CIA facilities around the world. As many as 20 may have been victims of mistaken identity, a study by the European Parliament found. As part of a broader pledge to end torture, Obama has vowed to halt the practice of rendition. But whether Obama plans to abandon the offshore facilities where interrogations have taken place remains unclear. If he does, any detainees remaining there would probably need to be relocated–possibly to Guantánamo, where their legal status would be examined anew.

Eavesdropping

Obama may leave intact, at least at the outset, one of the most controversial elements of Bush’s war on terrorism: a secret snooping program that spies on some Americans without benefit of a court order. Shortly after 9/11, the National Security Agency began intercepting communications to and from the U.S. by suspected terrorists and confederates in their network. The White House alerted key members of Congress about the program, in part because the Administration was skipping the long-standing practice of obtaining judicial approval in advance for surveillance, as prescribed by a 1974 law. When the program became public in 2005, Justice Department officials struggled to structure it to adhere more closely to existing law, but how much it was actually changed remains unclear. Not all civil libertarians were satisfied, and Obama vowed during the campaign to end warrantless wiretapping. But he is unlikely to halt the program outright; instead, he will probably ask a team of legal advisers to recommend a new approach.

Even after all these policies are modified or abandoned, Obama will face lingering questions about whether anyone should be punished for Bush-era excesses. The feds are now probing whether CIA officials knowingly destroyed tapes of illegal interrogations in 2005, and officials at Justice are looking into whether the department’s lawyers acted appropriately when they wrote legal opinions that approved waterboarding and other unconventional interrogation methods. A similar Justice Department review of attorney behavior regarding the domestic surveillance program is also under way.

Lawmakers from both parties have called for accountability in all these programs, but neither Obama nor top congressional Democrats have signaled much appetite for prosecuting Bush Administration figures once they are out of office. An incoming President will need every vote he can get on economic and energy matters, and is unlikely to spend political capital on a divisive effort to assess blame for the missteps of a previous Administration. But civil rights proponents say a full review may be the only way to ensure that such government abuses do not happen again. Vincent Warren, executive director of the Center for Constitutional Rights, says, “Criminal prosecution of some of the people involved does have a restorative aspect, and not just symbolically.” Obama will probably cooperate with congressional probes of Bush-era behavior. But he may find it trickier politically to go after officials who were, most likely, just following orders.

December 07, 2008

By George Will

WASHINGTON — Reactionary liberalism, the ideology of many Democrats, holds that inconvenient rights, such as secret ballots in unionization elections, should be repealed; that existing failures, such as GM, should be preserved; and, with special perversity, that repealed mistakes, such as the “fairness doctrine,” should be repeated. That Orwellian name was designed to disguise the doctrine’s use as the government’s instrument for preventing fair competition in the broadcasting of political commentary.

Because liberals have been even less successful in competing with conservatives on talk radio than Detroit has been in competing with its rivals, liberals are seeking intellectual protectionism in the form of regulations that suppress ideological rivals. If liberals advertise their illiberalism by reimposing the fairness doctrine, the Supreme Court might revisit its 1969 ruling that the fairness doctrine is constitutional. The court probably would dismay reactionary liberals by reversing that decision on the ground that the world has changed vastly, pertinently and for the better.

Until the Reagan administration extinguished it, the doctrine required broadcasters to devote reasonable time to fairly presenting all sides of any controversial issue discussed on the air. The government decided the meaning of the italicized words.

When government regulation of the content of broadcasts began in 1927, the supposed justification was the scarcity of radio spectrum. In 1928 and 1929, when Republicans ran Washington, a New York station owned by the Socialist Party was warned to show “due regard” for others’ opinions, and the government blocked the Chicago Federation of Labor’s attempted purchase of a station because all stations should serve “the general public.” In 1939, when Democrats ran Washington, the government conditioned renewal of one station’s license on that station’s promise to desist from anti-FDR editorials.

In 1969, when the Supreme Court declared the fairness doctrine constitutional, it probably did not know the Kennedy administration’s use of it, as one official described it: “Our massive strategy was to use the fairness doctrine to challenge and harass the right-wing broadcasters and hope that the challenges would be so costly to them that they would be inhibited and decide it was too expensive to continue.” Richard Nixon emulated this practice. In 1973, Supreme Court Justice William Douglas, a liberal, said the doctrine “has no place in our First Amendment regime” because it “enables administration after administration to toy with TV or radio.”

The court’s 1969 ruling relied heavily on the scarcity rationale. But Brian Anderson and Adam Thierer, in their book “A Manifesto for Media Freedom,” note that today there are about 14,000 radio stations, twice as many as in 1969, and 18.9 million subscribers to satellite radio, up 17 percent in 12 months, and 86 percent of households with either cable or satellite television receive an average of 102 of the 500 available channels. Because daily newspapers are much more scarce than are radio and television choices, should there be a fairness doctrine for The New York Times?

The 1969 court dismissed as “speculative” the possibility that the fairness doctrine would cause broadcasters to “eliminate coverage of controversial issues.” But the proper worry was that the doctrine would continue to stifle the flowering of controversy. A court that considers the doctrine today will note that whereas in 1980 there were fewer than 100 talk radio programs, today there are more than 1,500 news or talk radio stations.

Further subverting the “scarcity” rationale for government supervision of broadcast content, some liberals now say: The problem is not maldistribution of opinion and information, but too much of both. Until recently, liberals fretted that the media were homogenizing America into blandness. Now they say speech management by government is needed because of a different scarcity — the public’s attention, which supposedly is overloaded by today’s information cornucopia.

And these worrywarts say the proliferation of radio, cable, satellite broadcasting and Internet choices allows people to choose their own universe of commentary, which takes us far from the good old days when everyone had the communitarian delight of gathering around the cozy campfire of the NBC-ABC-CBS oligopoly. Being a liberal is exhausting when you must simultaneously argue for illiberal policies on the basis of dangerous scarcity and menacing abundance.

If reactionary liberals, unsatisfied with dominating the mainstream media, academia and Hollywood, were competitive on talk radio, they would be uninterested in reviving the fairness doctrine. Having so sullied liberalism’s name that they have taken to calling themselves progressives, liberals are now ruining the reputation of reactionaries, which really is unfair.

Sign joins Nativity scene as Capitol fray goes on

Protesting the fact that the big evergreen erected each December in the state Capitol was known as a “holiday tree” rather than a Christmas tree, state Rep. John Ahern, R-Spokane, in 2005 added a “Merry Christmas” sign and a menorah. The Spokesman-Review (File The Spokesman-Review ) ‘Religion is but myth’ Text of the sign that a Wisconsin atheist group will soon post opposite a Nativity scene in the Washington state Capitol: “At this season of the winter solstice, may reason prevail. There are no gods, no devils, no angels, no heaven or hell. There is only our natural world. Religion is but myth and superstition that hardens hearts and enslaves minds.”

Richard Roesler
Staff writer
November 29, 2008

OLYMPIA – On Monday in the Washington state Capitol, Christians on one side of the rotunda will erect a Nativity scene, with a 3 1/2-foot-tall Joseph and Mary and a baby Jesus in a manger.

On the other side of the echoing dome, members of an atheist group will post their own display: a 4 1/2-foot-tall sign declaring that there is no God and that “religion is but myth and superstition that hardens hearts and enslaves minds.”

Welcome to the latest chapter in the annual tussle to stake out a piece of holiday real estate in what lawmakers like to call “the people’s house.”

Things were simpler in 2005, before state Rep. John Ahern, R-Spokane, decided to launch a protest against the long-standing offend-no-one practice of declaring the annual evergreen towering inside the Capitol a “holiday tree.” (The 30-foot trees, surrounded by gifts, are donated by the Association of Washington Business.)

Ahern objected, saying the thing was clearly a Christmas tree. In protest, he gathered with a few dozen supporters on the steps of the Capitol to sing carols that year. Then he tucked a little “Merry Christmas” sign at the base of the tree, along with a shiny cardboard cutout of a Jewish menorah.

And so it began. The next year, bearded orthodox rabbis gathered with Gov. Chris Gregoire to light a large menorah in the rotunda. That triggered a request by Olympia real-estate agent Ron Wesselius to erect the Nativity scene.

State officials balked. Wesselius sued. The state settled, and Wesselius last year was allowed to prop up the figures on the Capitol’s third floor.

As a result, Capitol officials now say they’ll honor virtually any request for a religious or political display.

As long as it’s not disruptive, costs taxpayers nothing and is not seen as the state endorsing any viewpoint, “it’s pretty much wide open,” said Steve Valandra, spokesman for General Administration, the state agency that issues the permits. “It’s free expression.”

After all, he pointed out, state officials had to let about a dozen uniformed neo-Nazis use the Capitol steps for a white-separatist rally in July 2006. Hundreds of state troopers spent the afternoon keeping the Nazis and hundreds of counter-demonstrators separated.

Still, some think the religious expressions go too far.

The Olympian newspaper recently decried the competing displays as “an out-of-control struggle for religious superiority” and “escalating nonsense.”

“How long will it be before the Capitol is filled with competing displays?” the paper asked. “Goat sacrifices?”

Ahern said religion is under attack in popular society, and all major religions should be free to have a display in the Statehouse.

“We are a Judeo-Christian nation, and we need to honor the different times of year for Christians, Jews and even Muslims,” he said.

Christmas trees, menorahs and displays for Ramadan should all be welcomed, Ahern said. But the atheist sign, he said, is a step too far.

“This is bizarre,” he said. “Atheism is not a religion. It doesn’t belong there. And I would definitely not want to see Satanism up there at all.”

The request for the atheists’ display came from the Freedom From Religion Foundation, a Wisconsin-based group that says a local member asked it to put it up. For years, the group has erected a nearly identical sign in the Wisconsin state Capitol in Madison. To protect the sign, the group tapes to it a little note: “Thou shalt not steal.”

Valandra said that so far, things have worked out pretty well. Wesselius erected his Nativity display last year on the third floor, with no complaints.

This year, the only applications for displays were for the Nativity scene and the atheist sign. Both will remain up until Dec. 29.

The closest the state has gotten to turning someone down, Valandra said, was last December, when a Tacoma truck driver announced plans to torch a Mexican flag on the Capitol steps. But as officials mulled it – Would it pollute? Does that require a burn permit? – the man dropped the idea.

As for the specter of some religious group slaughtering goats before horrified tourists and schoolchildren, Valandra said that scene is unlikely.

“I don’t think slaughtering animals on the Capitol campus would be permitted, and you can quote me on that,” he said.

SAN FRANCISCO — In one of the nation’s largest displays of support for gay rights, tens of thousands of people in cities across the country turned out in support of same-sex marriage on Saturday, lending their voices to an issue that many gay men and lesbians consider a critical step to full equality.

The demonstrations — from a sun-splashed throng in San Francisco to a chilly crowd in Minneapolis — came 11 days after California voters narrowly passed a ballot measure, Proposition 8, that outlawed previously legal same-sex ceremonies in the state. The measure’s passage has spurred protests in California and across the country, including at several Mormon temples, a reflection of that church’s ardent backing of the proposition.

On Saturday, speakers painted the fight over Proposition 8 as another test of a movement that began with the riots at the Stonewall Inn in New York in 1969, survived the emergence of the AIDS crisis in the 1980s, and has since made enormous strides in societal acceptance, whether in television shows or in antidiscrimination laws.

“It’s not ‘Yes we can,’ ” said Tom Ammiano, a San Francisco city supervisor, referring to President-elect Barack Obama’s campaign mantra. “It’s ‘Yes we will.’ ”

Carrying handmade signs with slogans like “No More Mr. Nice Gay” and “Straights Against Hate,” big crowds filled civic centers and streets in many cities. In New York, some 4,000 people gathered at City Hall, where speakers repeatedly called same-sex marriage “the greatest civil rights battle of our generation.”

“We are not going to rest at night until every citizen in every state in this country can say, ‘This is the person I love,’ and take their hand in marriage,” said Representative Anthony D. Weiner of Brooklyn.

In Los Angeles, where wildfires had temporarily grabbed headlines from continuing protests over Proposition 8, Mayor Antonio R. Villaraigosa addressed a crowd of about 9,000 people in Spanish and English, and seemed to express confidence that the measure, which is being challenged in California courts, would be overturned.

“I’ve come here from the fires because I feel the wind at my back as well,” said the mayor, who arrived at a downtown rally from the fire zone on a helicopter. “It’s the wind of change that has swept the nation. It is the wind of optimism and hope.”

About 900 protesters braved a tornado watch and menacing rain clouds in Washington to rally in front of the Capitol and on to the White House. “Gay, straight, black, white; marriage is a civil right,” the marchers chanted.

In Las Vegas, the comedian Wanda Sykes surprised a crowd of more than 1,000 rallying outside a gay community center by announcing that she is gay and had wed her wife in California on Oct. 25. Ms. Sykes, who divorced her husband of seven years in 1998, had never publicly discussed her sexual orientation but said the passage of Proposition 8 had propelled her to be open about it.

“I felt like I was being attacked, personally attacked — our community was attacked,” she told the crowd.

And while some speakers were obviously eager to tap crowds’ current outrage, others took pains to cast the demonstrations as a peaceful, long-term, campaign over an issue that has proved remarkably and consistently divisive.

“We need to be our best selves,” said the Rev. G. Penny Nixon, a gay pastor from San Mateo, Calif., who warned the San Francisco crowd against blaming “certain communities” for the election loss. “This is a movement based on love.”

The protests were organized largely over the Internet, and featured few representatives of major gay rights groups that campaigned against Proposition 8, which passed with 52 percent of the vote after trailing for months in the polls. The online aspect seemed to draw a broad cross-section of people, like Nicole Toussaint, a kindergarten teacher who joined a crowd of more than 1,000 people in Minneapolis.

“I’m here to support my friends who are gay,” said Ms. Toussaint, 23. “I think my generation will play a big role.”

The big crowds notwithstanding, it has been a tough month for gay rights. Proposition 8 was just one of three measures on same-sex marriage passed on Nov. 4, with constitutional bans also being approved in Arizona and Florida. In Arkansas, voters passed a measure aimed at barring gay men and lesbians from adopting children.

That vote was on the minds of many of the 200 people who protested Saturday in front of the State Capitol in Little Rock. One of those, Barb L’Eplattenier, 39, a university professor, said some of her gay friends with adopted children were fearful of state action if they appeared in public. “They think their families are in danger,” said Ms. L’Eplattenier, who married her partner, Sarah Scanlon, in California in July.

The protests over Proposition 8 also come even as same-sex marriages began Wednesday in Connecticut, which joined Massachusetts as the only states allowing such ceremonies. By contrast, 30 states have constitutional bans on such unions.

At a Boston rally on Saturday, Kate Leslie, an organizer, said the loss in California had certainly caught the attention of local gay men and lesbians who have had the right to marry since 2004.

“You’re watching people who could be you and are part of your community being stripped of their rights,” Ms. Leslie said. “And in some ways that’s why so many people are infuriated in Massachusetts and willing to stand up for a rally.”

In California, a State Supreme Court decision legalized same-sex marriage in May. As many as 18,000 couples married, some traveling from other states to tie the knot. Such marriages may be challenged in court.

David McMullin, a garden designer from Atlanta, was one of those who made the trip, marrying his partner in Oakland, Calif., in September, in part to let their two adoptive children feel part of a married family.

“We just want our kids to know we’re O.K.,” said Mr. McMullin, who had come to a protest in front of the Georgia State Capitol. “We have rights as people even if we don’t have rights as citizens.”

Supporters of the proposition have repeatedly argued that Proposition 8 was not antigay, but merely pro-marriage.

“The marriage is between a man and women,” said Frank Schubert, the campaign manager for Protect Marriage, the leading group behind passing Proposition 8. “If they want to legalize same-sex marriage, they are going to have to bring a proposal before the people of California. That’s how democracy works.”

Equality California, a major gay rights group here, indicated this week that it would work to repeal Proposition 8 if legal challenges fail.

Such dry approaches seemed a million miles away, however, from the boisterous scene in front of San Francisco City Hall on Saturday, where as many as 10,000 people gathered, carrying signs, American flags and even copies of their marriage licenses.

One of those was Lawrence Dean, 57, who had married his partner, Steven Lyle, in San Francisco in July. It was the fifth time that the couple of 19 years had held a ceremony to announce their commitment, and, of course, accept wedding gifts.

“If we keep this up, maybe I won’t have to again,” Mr. Dean said, looking out at the protest. “I have enough pots and pans.”

Reporting was contributed by Robbie Brown from Atlanta; Steve Barnes from Little Rock; Christina Capecchi from Minneapolis; Francesca Segrè from Los Angeles; Katie Zezima from Boston; Ashley Southall from Washington; Steve Friess from Las Vegas; and C. J. Hughes from New York.

Reaction is strong to America’s first black president

This undated file photo provided by Gary and Alina Grewal, of Hardwick Township, N.J., shows a charred cross that had been burned on the lawn of their home after they placed a banner congratulating President-elect Barack Obama. Associated Press (File Associated Press )

Jesse Washington
Associated Press
November 16, 2008

Cross burnings. Schoolchildren chanting “Assassinate Obama.” Black figures hung from nooses. Racial epithets scrawled on homes and cars.

Incidents around the country referring to President-elect Barack Obama are dampening the postelection glow of racial progress and harmony, highlighting the stubborn racism that remains in America.

From California to Maine, police have documented a range of alleged crimes, from vandalism and vague threats to at least one physical attack. Insults and taunts have been delivered by adults, college students and second-graders.

There have been “hundreds” of incidents since the election, many more than usual, said Mark Potok, director of the Intelligence Project at the Southern Poverty Law Center, which monitors hate crimes.

One was in Snellville, Ga., where Denene Millner said a boy on the school bus told her 9-year-old daughter the day after the election: “I hope Obama gets assassinated.” That night, someone trashed her sister-in-law’s front lawn, mangled the Obama lawn signs and left two pizza boxes filled with human feces outside the front door, Millner said.

She described her emotions as a combination of anger and fear.

“I can’t say that every white person in Snellville is evil and anti-Obama and willing to desecrate my property, because one or two idiots did it,” said Millner, who is black. “But it definitely makes you look a little different at the people who you live with, and makes you wonder what they’re capable of and what they’re really thinking.”

Potok, who is white, said he believes there is “a large subset of white people in this country who feel that they are losing everything they know, that the country their forefathers built has somehow been stolen from them.”

Grant Griffin, a 46-year-old white Georgia native, expressed similar sentiments: “I believe our nation is ruined and has been for several decades and the election of Obama is merely the culmination of the change.

“If you had real change it would involve all the members of (Obama’s) church being deported,” he said.

Change in whatever form does not come easy, and a black president is “the most profound change in the field of race this country has experienced since the Civil War,” said William Ferris, senior associate director of the Center for the Study of the American South at the University of North Carolina. “It’s shaking the foundations on which the country has existed for centuries.”

“Someone once said racism is like cancer,” Ferris said. “It’s never totally wiped out, it’s in remission.”

If so, America’s remission lasted until the morning of Nov. 5.

The day after the vote hailed as a sign of a nation changed, black high school student Barbara Tyler, of Marietta, Ga., said she heard hateful Obama comments from white students, and that teachers cut off discussion about Obama’s victory.

Tyler spoke at a press conference by the Georgia chapter of the NAACP calling for a town hall meeting to address complaints from across the state about hostility and resentment. Another student, from a Covington middle school, said he was suspended for wearing an Obama shirt to school Nov. 5 after the principal told students not to wear political paraphernalia.

The student’s mother, Eshe Riviears, said the principal told her: “Whether you like it or not, we’re in the South, and there are a lot of people who are not happy with this decision.”

Other incidents include:

•Four North Carolina State University students admitted writing anti-Obama comments in a tunnel designated for free speech expression, including one that said: “Let’s shoot that (N-word) in the head.” Obama has received more threats than any other president-elect, authorities say.

•In Standish, Maine, a sign inside the Oak Hill General Store read: “Osama Obama Shotgun Pool.” Customers could sign up to bet $1 on a date when Obama would be killed. “Stabbing, shooting, roadside bombs, they all count,” the sign said. At the bottom of the marker board was written “Let’s hope someone wins.”

•Racist graffiti was found in places including New York’s Long Island, where two dozen cars were spray-painted; Kilgore, Texas, where the high school and skate park were defaced; and the Los Angeles area, where swastikas, racial slurs and “Go Back To Africa” were spray- painted on sidewalks, houses and cars.

•Second- and third-grade students on a school bus in Rexburg, Idaho, chanted “assassinate Obama,” a district official said.

•University of Alabama professor Marsha L. Houston said a poster of the Obama family was ripped off her office door. A replacement poster was defaced with a death threat and a racial slur. “It seems the election brought the racist rats out of the woodwork,” Houston said.

•Black figures were hanged by nooses from trees on Mount Desert Island, Maine, the Bangor Daily News reported.

•Crosses were burned in yards of Obama supporters in Hardwick, N.J., and Apolacan Township, Pa.

•A black teenager in New York City said he was attacked with a bat on election night by four white men who shouted “Obama.”

•In the Pittsburgh suburb of Forest Hills, a black man said he found a note with a racial slur on his windshield, saying, “Now that you voted for Obama, just watch out for your house.”

Emotions are often raw after a hard-fought political campaign, but now those on the losing side have an easy target for their anger.

“The principle is very simple,” said B.J. Gallagher, a sociologist and co-author of the diversity book “A Peacock in the Land of Penguins.” “If I can’t hurt the person I’m angry at, then I’ll vent my anger on a substitute, i.e., someone of the same race.”

By Charles M. Madigan

October 20, 2008

The earth may be about to shift under American politics.

The pieces are in place for realignment. There is a simple way to understand what that means by looking at presidents associated with realignments.

Try these: Andrew Jackson, Abraham Lincoln, William McKinley, Theodore Roosevelt, Franklin Roosevelt and Ronald Reagan.

Who you are determines whether this is good or bad news. The most important thing to remember is that no one will be able to say on Nov. 5 whether a realignment has happened or not, although certainly a number of people will say it has.

It takes a long time to measure realignment. Political scientists are still arguing about whether there was a realignment under McKinley.

A lot of people are disturbed by the possibility of realignment, largely because realignments change the direction of politics and government so completely that what comes after one bears little resemblance to what happened before.

It would be nice to think that it’s just one politician who is responsible for all of this. If that were the case, it would not be Sen. Barack Obama. It would be President George W. Bush.

Why?

Realignments need a series of components, with an important one being a flash point. They also tend to follow cycles. The other parts include changes in voting behavior, usually the arrival of a new bloc of voters (young people this time around) and, over a longer period of time, changes in attitude toward government.

Lincoln had emancipation and the Civil War. Teddy Roosevelt had reform. Franklin Roosevelt had the Great Depression. Reagan had the Iranian hostage crisis and the sense that Jimmy Carter had become powerless.

The next president, Obama or not, will have Bush, who has presented at least four realignment-level disasters: The U.S. knew Osama bin Laden was threatening an attack and could not stop it; the wars in Iraq (early on) and Afghanistan (later and now); the pathetic inability of the federal government to respond to the damage of Hurricane Katrina; and, now, the collapse of the economy.

One would have been enough.

Put the four together and they create an undeniable swelling statistical wave. Four of every five people don’t like the direction the nation has taken. That’s all the fuel anyone needs for change.

If this theory about the election is correct, Nov. 4 may open an era of civic engagement, a change that will replace what we have had since the era that began with Reagan’s election to the White House, an era defined by ideals.

“Ideals” is not a good or a bad word in this context. It is just a description. It’s better to use examples to show the differences in these eras.

The era of civic engagement under Lincoln led to emancipation of black people and the salvation of the Union. Under Teddy Roosevelt, it led to crackdowns and regulation of the robber barons whose excess had defined the end of the 19th Century. Franklin Roosevelt’s civic era delivered the Tennessee Valley Authority, Social Security and an assumption that government was responsible for helping people.

By contrast, prayer in school, anti-abortion legislation, prohibitions aimed at gay behaviors and lifestyles and arguments that government should have less influence on people’s lives are some of the earmarks of ideals eras.

Charles M. Madigan, a professor at Roosevelt University, is writing a book about the presidential campaign.

Saturday, October 18, 2008

Paul Greenberg

COMMENTARY:

There was a small but revealing moment on the final night of the editorial writers’ convention here in Little Rock not long ago.

Our distinguished guest speaker of the liberal persuasion was waxing nostalgic for the heady time when the old Fairness Doctrine ruled the airwaves and all was right with the world of broadcast opinion. For in those days impartial government bureaucrats enforced the rule that, for every opinion voiced on radio and television, equal time had to be allotted to its opposite, and all was right with the world.

It all sounds fair enough – like so many abstract doctrines – if you didn’t have to live with it. To appreciate, and apprehend, how the “Fairness” Doctrine really operated, just listen to one of my heroes in this business – Nat Hentoff, a true liberal who has seen it all in his couple of lifetimes in Medialand:

“I was in radio under the reign of the Fairness Doctrine, at WMEX in Boston in the 1940s and early ’50s,” he remembers. And being Nat Hentoff, he naturally aired a few of his opinions from time to time. Uh oh. “Suddenly Fairness Doctrine letters started coming in from the FCC and our station’s front office panicked. Lawyers had to be summoned, tapes of accused broadcasters had to be examined with extreme care; voluminous responses had to be prepared and sent. After a few of these FCC letters, our boss announced that there would be no more controversy of any sort on WMEX. We had been muzzled.”

The Unfairness Doctrine had claimed another victim. Which was just the way the mainstream media wanted it. Why debate others’ ideas when it was so much easier to stifle them with lawyer letters?

It was a deliberate strategy. To quote one of the Democratic Party’s apparatchiks back then, Bill Ruder: “Our massive strategy was to use the Fairness Doctrine to challenge and harass the right-wing broadcasters, and hope that the challenges would be so costly to them that they would be inhibited and decide it was too costly to continue.”

It worked. Broadcast opinion was soon largely reserved for the right people with the right opinions, that is, moderately leftish ones. Or what our guest speaker called “legitimate” news outlets – like the New York Times instead of all those loudmouths agitating over the airwaves.

The gamut of political opinion on the television networks, all three of them in those pre-cable days, ran roughly from center to left-of-center.

This is the period today’s nostalgic gliberals refer to as The Golden Age of television news. Golden for their opinions, anyway. At a time when the tube was still the dominant, shaping medium, ABC, NBC and CBS were the holy trinity. Any other viewpoint was considered less than respectable, even heretical, or just ignored. Which was easy to do if they couldn’t be aired.

There was but one Truth in those days and Walter Cronkite was its prophet. They called him the most trusted man in America, and doubtless he was, for though he had imitators, he had no real competition. How things have changed. Mr. Cronkite tried writing a syndicated column not long ago and it fell flat.

Because in this age of alternatives like 24/7 television news, radio talk shows all over the dial, and the ubiquitous Internet with all its bloggers, one for every taste and many with no taste at all, there is a multiplicity of other viewpoints to choose from. And lots of fact-checkers out there to catch us all. Just ask Dan Rather, formerly of CBS.

Wild and crazy thing, the First Amendment, when it burgeons in all its glory. It produces the widest variety of fruits, or just fruitcakes, for you can’t have liberty without inviting license. But I’ll gladly bear the abuses to enjoy the freedom.

There are always those who’d like to improve on freedom of speech. Shut up, they explain. All they want is what’s fair, meaning their idea of what’s fair. There’s a difference.

They sigh for the good old days when riffraff like Rush Limbaugh and numerous imitators could be shut out of the public discourse. It is those who claim to speak for The People who resent it most when people choose to listen to somebody else.

We knew who our betters were in the good old days, when we tuned in to find out what was politically correct long before it had acquired that label. No wonder our current elite, or those who would like to be, dream of restoring the Fairness Doctrine in all its constricting glory.

On his Web site, Barack Obama says the country should “clarify the public interest obligation of broadcasters who occupy the nation’s spectrum.” I’m not sure what that means, but I have an idea. The senator can put all the lipstick he wants to on the Fairness Doctrine, but it would still be unfair. Those who wax sentimental for it mystify me. I would much prefer to win a fair fight, or even lose one, rather than tie the other guy’s hands. For the best response to an idea one detests is not to suppress it, but to offer a better idea. It’s only fair.

Paul Greenberg is a nationally syndicated columnist.

Organization’s voter drive is at center of controversy

Greg Gordon
McClatchy
October 18, 2008

WASHINGTON – The furor over the Association for Community Organizations for Reform Now’s national voter registration drive exploded with new controversies Friday, including a call by Barack Obama for an independent prosecutor, a Supreme Court ruling over voter access and the disclosure of a death threat against an ACORN worker.

What remains unclear is whether the presidential campaigns of Democrat Obama and Republican John McCain will reach a truce over voter access to the polls by Election Day or whether their legal and rhetorical battles will persist to the finish line – or beyond.

Republicans allege that ACORN is engaged in rampant voter fraud, but they’ve offered no proof of such a systematic effort. The GOP does have evidence that some of the group’s 13,000 canvassers submitted fraudulent applications, but ACORN says it alerted authorities to most of the phony forms.

Democrats counter that the GOP is trying to whip up fears of voter fraud so it can knock students and low-income minorities off the voter rolls to enhance McCain’s chances of victory.

On Friday, the U.S. Supreme Court overruled an attempt by Republicans to challenge the validity of 200,000 voter registrations in Ohio, saying that the party lacked the standing to sue.

The Republicans had sued to force Ohio Secretary of State Jennifer Brunner, a Democrat, to provide county election officials with lists of registrants whose personal information did not exactly match Social Security or driver’s license data, a step that would leave those voters vulnerable to eligibility challenges.

Tensions began to escalate Thursday with disclosures that the FBI is investigating ACORN and the possibility that it’s engaged in a vote-fraud scheme.

On Friday, Obama’s legal counsel, Robert Bauer, wrote to Attorney General Michael Mukasey, charging that the inquiry is politically motivated and that it risks repeating the 2007 scandal over the Bush administration’s politicization of the Justice Department.

Bauer asked Mukasey to broaden a special prosecutor’s investigation to examine the origin of the ACORN inquiry.

A Justice Department spokesman declined to comment, except to say: “We will review the letter.”

Earlier Friday, ACORN told McClatchy that one of its senior staffers in Cleveland had received a death threat and that its Boston and Seattle offices had been vandalized sometime Thursday, reflecting the mounting tensions over the group’s role in registering 1.3 million mostly poor and minority Americans to vote.

ACORN attorneys drafted a letter alerting the FBI and the Justice Department’s Civil Rights Division of the incidents, said Brian Kettenring, a Florida-based spokesman for the group.

Kettenring said that a senior ACORN staffer in Cleveland, after appearing on television this week, got an e-mail that said she “is going to have her life ended.” A female staffer in Providence, R.I., got a threatening call from someone who said words to the effect of “We know you get off work at 9,” then uttered racial epithets, he said.

McClatchy is withholding the women’s names because of the threats.

Separately, vandals broke into the group’s Boston and Seattle offices and stole computers, Kettenring said.

The incidents came the day after McCain charged in the final presidential debate that ACORN’s voter-registration drive “may be perpetrating one of the greatest frauds in voter history” and may be “destroying the fabric of democracy.”

McCain’s comments provoked a response from ACORN.

“I would not say that Senator McCain is inciting violence,” Kettenring said, “but I would say that his statements about the role of this manufactured scandal were totally outlandish.”

Michael Barone
October 11, 2008

“I need you to go out and talk to your friends and talk to your neighbors,” Barack Obama told a crowd in Elko, Nev. “I want you to talk to them whether they are independent or whether they are Republican. I want you to argue with them and get in their face.” Actually, Obama supporters are doing a lot more than getting into people’s faces. They seem determined to shut people up.

That’s what Obama supporters, alerted by campaign e-mails, did when conservative Stanley Kurtz appeared on Milt Rosenberg’s WGN radio program in Chicago. Kurtz had been researching Obama’s relationship with unrepentant Weather Underground terrorist William Ayers in Chicago Annenberg Challenge papers in the Richard J. Daley Library in Chicago – papers that were closed off to him for some days, apparently at the behest of Obama supporters.

Obama fans jammed WGN’s phone lines and sent in hundreds of protest e-mails. The message was clear to anyone who would follow Rosenberg’s example: We will make trouble for you if you let anyone make the case against The One.

Other Obama supporters have threatened critics with criminal prosecution. In September, St. Louis County Circuit Attorney Bob McCulloch and St. Louis City Circuit Attorney Jennifer Joyce warned citizens that they would bring criminal libel prosecutions against anyone who made statements against Obama that were “false.” I had been under the impression that the Alien and Sedition Acts had gone out of existence in 1801-02. Not so, apparently, in metropolitan St. Louis. Similarly, the Obama campaign called for a criminal investigation of the American Issues Project when it ran ads highlighting Obama’s ties to Ayers.

These attempts to shut down political speech have become routine for liberals. Congressional Democrats sought to reimpose the “fairness doctrine” on broadcasters, which until it was repealed in the 1980s required equal time for different points of view. The motive was plain: to shut down the one conservative-leaning communications medium, talk radio. Liberal talk-show hosts have mostly failed to draw audiences, and many liberals can’t abide having citizens hear contrary views.

Corporate liberals have done their share in shutting down anti-liberal speech, too. “Saturday Night Live” ran a spoof of the financial crisis that skewered Democrats like House Financial Services Chairman Barney Frank and liberal contributors Herbert and Marion Sandler, who sold toxic-waste-filled Golden West to Wachovia Bank for $24 billion. Surprising, but not for long. The tape of the broadcast disappeared from NBC’s Web site and was replaced with another that omitted the references to Frank and the Sandlers. Evidently NBC and its parent, General Electric, don’t want people to hear speech that attacks liberals.

Once upon a time, liberals prided themselves, with considerable reason, as the staunchest defenders of free speech. Union organizers in the 1930s and 1940s argued that they should have access to employees to speak freely to them, and union leaders like George Meany and Walter Reuther were ardent defenders of the First Amendment.

Today’s liberals seem to be taking their marching orders from other quarters. Specifically, from the college and university campuses where administrators, armed with speech codes, have for years been disciplining and subjecting to sensitivity training any students who dare to utter thoughts that liberals find offensive. The campuses that used to pride themselves as zones of free expression are now the least free part of our society.

Obama supporters who found the campuses congenial and Obama himself, who has chosen to live all his adult life in university communities, seem to find it entirely natural to suppress speech that they don’t like and seem utterly oblivious to claims that this violates the letter and spirit of the First Amendment. In this campaign, we have seen the coming of the Obama thugocracy, suppressing free speech, and we may see its flourishing in the four or eight years ahead.

Michael Doyle
McClatchy
October 5, 2008

WASHINGTON – A business-friendly Supreme Court will start another season Monday on familiar turf.

With a closely watched case involving cigarette advertising, Chief Justice John G. Roberts Jr. will resume the corporate focus that’s marked his three-year tenure. The cases may not sound sexy, but they can be crucial for companies and consumers alike.

“The question,” noted Robin Conrad, the executive vice president of the National Chamber Litigation Center, “comes down to who gets to regulate business.”

So far, the Supreme Court has agreed to hear some 41 cases for the 2008-09 term, which begins on the traditional first Monday morning in October. The National Chamber Litigation Center, the increasingly active litigation arm of the U.S. Chamber of Commerce, has identified at least 16 of these as business cases.

The court typically hears about 75 cases each term, and some of the most important disputes may not have matured yet. The justices will continue adding cases through early next year.

Unlike recent years, the court hasn’t yet scheduled a Guantanamo Bay or obvious national-security case, though they might yet arise. The culture war issues, including abortion, bandied about by presidential candidates are nowhere to be seen yet, although there’s one case involving dirty words on television. Other high-profile disputes, including all-but-certain legal challenges to the new $700 billion financial bailout package, remain dormant.

“It’s going to take a while (for the bailout law) to get to the Supreme Court,” former Solicitor General Paul Clement predicted.

The pending business interests, meanwhile, revolve around high-dollar, dry-sounding issues such as pre-emption.

The term’s inaugural case, for instance, called Altria Group v. Good, will determine whether federal authority freezes out consumers from challenging cigarette advertising in state courts. A similarly themed case, Wyeth v. Levine, centers on state vs. federal authority over drug labeling.

The facts can be gruesome. Vermont resident Diana Levine lost her right arm below the elbow after the allegedly unsafe injection of a medicine. The implications may be sweeping. Nearly 30 groups – ranging from the California Medical Association to Democratic Sen. Dianne Feinstein, of California, and Democratic Rep. Debbie Wasserman Schultz, of Florida – have filed friend-of-the-court briefs, known as amici curiae, in Wyeth.

“This case may win the amici sweepstakes for this term,” joked David Vladek, a law professor at Georgetown University Law Center.

The pre-emption theme surfaces in different ways, though the core principle remains the same. As Conrad put it: Who gets to regulate?

In Altria, for instance, three Maine residents claim that the manufacturer of Marlboro Light and Cambridge Light cigarettes – the firm more commonly known as Philip Morris – deceptively advertised the cigarettes as essentially safer. The tobacco company and business allies including drug manufacturers argue that a federal cigarette-labeling law blocks smokers from taking action under state deceptive-practices laws.

Every Supreme Court term contains a surprise or two, but handicappers already are predicting some likely winners and losers. Count business among the probable winners. In the past two terms, the U.S. Chamber of Commerce has prevailed in 21 out of 31 cases in which it’s filed briefs.

“This is a court that feels comfortable with business,” said lawyer Beth Brinkmann, who’s argued numerous cases before the high court.

Individual case winners also might be predictable. Next Wednesday, for instance, the justices will hear in Winter v. Natural Resources Defense Council a challenge that some label as the Pentagon v. whales.

The Navy’s 3rd Fleet wants to use mid-frequency active sonar for training exercises off the Southern California coast. Environmentalists contend that the underwater sonar emissions disrupt whales, dolphins and other marine mammals. The legal question, one being closely watched by timber companies, builders and others, is when “emergency circumstances” can overcome a court’s injunction.

In a wartime case coming out of the often-reversed 9th U.S. Circuit Court of Appeals, where a Navy victory is simultaneously a win for business interests, the odds appear set.

“For the whales, it’s not looking so good,” Georgetown law professor Lisa Heinzerling said.

Leonard Pitts Jr.
The Miami Herald
September 22, 2008

Of course, we all have questions for Sarah Palin:

Does she actually think living across the Bering Strait from Russia constitutes foreign policy expertise? Does she really take the parable of Adam and Eve as literal truth? How, exactly, does one field dress a moose? And why would one want to?

My first question, though, would not be one of those. I’d simply ask which books she wants to ban – and why.

Yes, there’s a list of titles floating around the Internet right now, but it’s a fake. It is, however, established fact that our would-be vice president has in the past tried to pull books off library shelves.

The New York Times reports that as a member of the City Council of Wasilla, Alaska, Palin complained to colleagues about a book called “Daddy’s Roommate,” described in promotional material as being “for and about the children of lesbian and gay parents.”

Laura Chase, who ran Palin’s campaign for mayor, explained that the book was harmless and suggested Palin read it.

Chase told the Times that Palin replied she “didn’t need to read that stuff. It was disturbing that someone would be willing to remove a book from the library and she didn’t even read it.”

Later, as mayor, Palin reportedly asked the town’s librarian three times whether she would agree to remove controversial books from the shelves. Three times the librarian refused. Palin fired her, but eventually bowed to public pressure and gave the woman her job back.

“I’m still proud of Sarah,” said Chase, “but she scares the bejeebers out of me.”

And in that context, it seems apropos that next week is Banned Books Week. As you doubtless know, that’s the week set aside each year by the American Library Association to bring attention to attempts by some of us to regulate what others of us may read. The ALA’s Office for Intellectual Freedom reports that it has seen 9,700 “challenges” – a challenge is defined as a formal written request to remove a book from a library because the content offends or is deemed inappropriate — since 1990. Chillingly, the office suggests that’s probably an undercount. It estimates that for every challenge reported, four or five are not.

So Palin has company, to say the least.

Count among that number the woman from a Cuban exile group who bragged to a Miami Herald reporter how in 2006 she checked out and kept an elementary school library book that she felt painted too rosy a picture of life on that communist island. Like Palin, she thought she had good reason. Would-be book banners always do.

I’m reminded of how someone challenged me the other day on my contention that anti-intellectualism has overtaken this land. I mentioned by way of example Palin’s Bible literalism, but really, there’s so much more. There’s the “Jay Walking” segment on Leno. There’s this notion that “elite” is a four-letter word. There’s the White House’s censorship and politicization of science. There’s the recent survey which found that more people can name all five Simpsons than all five freedoms enumerated in the First Amendment.

And there’s this: as many as 50,000 incidents since 1990 in which a book was forced to justify its existence. We’re talking books like “The Adventures of Huckleberry Finn,” books like “The Color Purple,” books like “Harry Potter” and, yes, books like “Daddy’s Roommate,” books that offended because they expressed ideas that made someone uncomfortable. As if any other kind of idea was worth expressing.

We are becoming the stupid giant of planet Earth: richer than Midas, mightier than Thor, dumber than rocks. Which makes us a danger to the planet – and to ourselves. This country cannot continue to prosper and to embrace stupidity. The two are fundamentally incompatible.

So do us all a favor: Annoy Sarah Palin. For goodness’ sake, read.

Gene Policinski
September 9, 2008

School administrators can gain from a recent court decision some much-needed guidance on how to react to student voices they dislike.

The good news for students – and for all Americans – is that this newest legal lesson supports more speech instead of placing more limits on student expression.

A landmark 1969 U.S. Supreme Court decision – Tinker v. Des Moines Independent Community School District, involving students and Vietnam War protest armbands – put forth the idea that young citizens don’t automatically surrender their First Amendment rights at the schoolhouse door.

But since then, courts at various levels have set about defining when and how officials legally could shut down student expression. A number of those legal limits have been driven by security, education or drug-related concerns.

No principal, no superintendent – and no judge, for that matter – wants to be the person whose inattention, inactivity or decision results in another Columbine-style massacre. Judges have recognized that teachers cannot teach and students cannot learn amid chaos or fear. And the dangers of drug use are painfully obvious.

Still, in various cases in just the past five years, students have been silenced because the message was politically incorrect or offended administrator sensibilities or community views. After voicing or writing sharp political views about the war in Iraq or illegal immigrants or gay rights or after penning provocative illustrations involving Old Glory, students have been told to sit down, shut up and wait their turn as citizens until they leave school – or face suspension or worse.

Many disputes are settled out-of-court, more often than not with an apology to the student and reinstatement. But the 8th U.S. Circuit Court of Appeals weighed in on Sept. 2 with a common-sense decision supporting the rights of students to object to – of all things – a school policy.

A three-judge panel agreed that school officials in Watson Chapel, Ark., violated the constitutional rights of three students in 2006 who were disciplined for wearing black armbands or wristbands to school to protest a new policy enforcing school uniforms and for handing out a flier objecting to the policy.

The administrators agreed in court that the student protest did not disrupt classes or order at the school.

The 8th Circuit panel said that despite restrictive decisions since it was handed down, including the 2007 Supreme Court decision in the so-called “Bong Hits for Jesus” case, “Tinker remains good law.” Students in both Tinker and the Watson Chapel case were exercising a right of protest against a government policy – something officials in every school ought to celebrate by example, not denigrate.

Advocates for student expression have feared that school officials and lower courts would expand legal controls into other areas of student free expression based on the ruling in that “Bong Hits” case. In that case – officially called Morse v. Frederick – the high court said officials may clamp down on student speech regarded as encouraging drug use.

School officials in Arkansas even argued that the subject matter was too mundane to get constitutional protection. The decision in the Watson Chapel case, however, squarely affirms that non-disruptive student speech, be it on issues of international interest or on local policies such as school uniforms, is protected by the First Amendment.

In an era in which educators struggle to motivate students to think critically, and to instill basic American values of good citizenship, arbitrarily denying basic rights to speak out, to write in protest, to assemble and to peaceably “seek redress” seems wrong-headed.

Students should learn about First Amendment freedoms in the classroom rather than the courtroom.

Robyn Blumner
The St. Petersburg Times
August 26, 2008

I had a conversation with a seemingly smart woman recently who thought that Roe v. Wade would never be overturned regardless of who wins the presidency. Though deeply pro-choice, she said she has voted for a Republican as president in the past because she likes the concept of local control and thinks Republicans represent that ideal better.

Now had she said that she’s willing to forgo abortion rights for other Republican political values, that would be one thing. (Although President Bush’s imperial presidency stands starkly inapposite to her stated interest in decentralized power.) But she couldn’t even contemplate a world without Roe’s protections. She was horrified by the prospect and yet, through determined denial, she was willing to be an instrument of the ruling’s demise.

We are almost certainly one U.S. Supreme Court justice away from Roe’s being consigned to the dustbin of history. With two of the court’s liberals being the two oldest members on the court – Justice John Paul Stevens is 88 years old and Justice Ruth Bader Ginsburg is 75 – the next president is going to be the decider.

And if he wins, Sen. John McCain promises to be the one to overturn Roe by picking justices who will do the deed. On this, McCain couldn’t be clearer.

In case you missed his recent appearance before the evangelical audience of pastor Rick Warren’s Saddleback Church, McCain was asked: When is a baby entitled to human rights? His emphatic response: “At the moment of conception.” (Add wild applause here.)

Think about this.

Were this view to come to pass and a single-cell zygote were imbued with 14th Amendment rights to life, liberty and property, not only would abortion rights go away, but infertile couples would lose the option of in vitro fertilization. It would also mean the end of all embryonic stem cell research.

This last bit is at odds with McCain’s expressed stance. He has said he would allow federal funds for embryonic cell research in narrow circumstances, on embryos slated for destruction in fertility clinics.

But to state the obvious, embryos with rights equivalent to a bar mitzvah boy may not be destroyed for scientific experimentation, even if that science holds immense medical promise for, you know, the born.

And those fertility clinics McCain speaks of would have to close because it would not be OK – not in the least – to freeze all those petri-dish-souls who are not lucky enough to be implanted in a womb.

A 5-day-old embryo of about 150 cells used in stem cell research is smaller than a grain of sand. (Note that the brain of a fruit fly has 250,000 cells.) The idea of human rights flowing to such an entity is just plain silliness. But the consequences of this view are not silly at all.

Right now a controversy is swirling around Mike Leavitt, secretary of Health and Human Services, who proposed new regulations on Thursday that potentially embrace the human-rights-at-conception paradigm.

The regulations would deny federal funds to hospitals, clinics, pharmacies and health plans that don’t allow their employees to opt out of providing care that offends their personal convictions.

In other words, if a doctor holds the belief that human rights attach at conception, he must be allowed to refuse to provide emergency contraception to patients who need it – even a rape victim.

Catholic hospitals and pharmacies too would be able to deny women access to so-called morning-after pills.

Extremists claim it’s a chemical abortion by occasionally preventing the implantation of a fertilized egg.

Pro-choice Republican voters are deluding themselves if they think Roe is eternal no matter who wins the White House. If McCain is president he promises to grant human rights to microscopic cells, and he very well may succeed.

David Sarasohn
August 23, 2008

Before we leave these Olympics, it’s worth noting that they’ve produced one record that shoots way past Michael Phelps’ eight gold medals.

According to the New York Times, this year the Chinese have compiled a previously unimaginable statistic: 77 protest permits applied for, 0 protests actually happening.

No doubt somewhere there’s a Beijing bureaucrat telling a TV reporter that nobody gave him a chance to pull it off, but he knew that if he just played his game, he could do it.

Not only have no permits been given, but the Times reported that two Chinese ladies in their 70s, applying for a permit to protest because they felt inadequately compensated when their land was taken for development, were sentenced to a year in re-education camp for “disturbing public order.”

It’s a reminder that as we approach the next two weeks and our national party conventions, which these days require massive security arrangements, demonstration areas, parade routes and detention facilities, there are worse things than a little public disorder.

Especially for the Democrats’ gathering in Denver, the conventions are likely to feature considerable upheaval. (New York, site of the 2004 GOP convention, is still plowing through the lawsuits and investigations of security preparations and police behavior, long after the convention’s economic benefits have been tallied and spent.) This year’s Democratic convention features a protest group called “Recreate ‘68,” which as an agenda ranks with “Hurricane Katrina, One More Time.”

Not to mention the demonstrations threatened by Hillary Clinton supporters.

Still, even if you end up peeling the occasional demonstrator away from the police horse, and the whole occasion considerably distorts both the municipal budget and commuting schedules, the disorderly approach beats a system where people come to the police station to apply for protest permits and don’t actually come out.

Although theirs saves on the cost of signs.

To get this year’s games, China made a wide range of promises to the International Olympic Committee about opening up its society and access, promises the IOC believed because it was convenient to believe them. Nobody actually believed Beijing was going to open up – except maybe the 77 Chinese who showed up to apply for permits.

“In order to ensure smooth traffic flow, a nice environment and good social order, we will invite these participants to hold their demonstrations in designated places,” explained Liu Shaowu, the Olympics’ security director.

Can’t beat that good social order.

This week, Chinese officials told the Times that the reason none of the requests produced an actual demonstration in the designated places was that complaints were “properly addressed by relevant authorities or departments through consultations.”

Or labor camp sentences.

You’ve got to hope that word of this approach doesn’t get to the Bush administration.

These Olympics have, of course, produced other illustrations of how the Chinese government sees its society working.

The world was hugely impressed by the dazzling display of the opening ceremonies, with 15,000 performers functioning in concert. Afterward, the ceremony’s director, Zhang Yimou, proudly told a Chinese newspaper that only North Korea could have coordinated things better.

When your ideal for how things ought to work is North Korea, you’ve got a pretty demanding vision of social order.

This kind of outlook can give you a much friendlier attitude toward American demonstrators lying down in the middle of the street.

Northwest signers Among the college presidents backing the Amethyst Initiative are Robert Hoover of the College of Idaho, Thomas Hochstettler of Lewis & Clark College, Phil Creighton of Pacific University, Loren J. Anderson of Pacific Lutheran University and M. Lee Pelton of Willamette University.

Justin Pope
Associated Press
August 19, 2008

College presidents from about 100 of the nation’s best-known universities, including Duke, Dartmouth and Ohio State, are calling on lawmakers to consider lowering the drinking age from 21 to 18, saying current laws actually encourage dangerous binge drinking on campus.

The movement called the Amethyst Initiative began quietly recruiting presidents more than a year ago to provoke national debate about the drinking age.

“This is a law that is routinely evaded,” said John McCardell, former president of Middlebury College in Vermont who started the organization. “It is a law that the people at whom it is directed believe is unjust and unfair and discriminatory.”

Other prominent schools in the group include Syracuse, Tufts, Colgate, Kenyon and Morehouse.

But even before the presidents begin the public phase of their efforts, which may include publishing newspaper ads in the coming weeks, they are already facing sharp criticism.

Mothers Against Drunk Driving says lowering the drinking age would lead to more fatal car crashes. It accuses the presidents of misrepresenting science and looking for an easy way out of an inconvenient problem. MADD officials are even urging parents to think carefully about the safety of colleges whose presidents have signed on.

“It’s very clear the 21-year-old drinking age will not be enforced at those campuses,” said Laura Dean-Mooney, national president of MADD.

Both sides agree alcohol abuse by college students is a huge problem.

Research has found more than 40 percent of college students reported at least one symptom of alcohol abuse or dependence. One study has estimated more than 500,000 full-time students at four-year colleges suffer injuries each year related in some way to drinking, and about 1,700 die in such accidents.

A recent Associated Press analysis of federal records found that 157 college-age people, 18 to 23, drank themselves to death from 1999 through 2005.

McCardell’s group takes its name from ancient Greece, where the purple gemstone amethyst was widely believed to ward off drunkenness if used in drinking vessels and jewelry. He said college students will drink no matter what, but do so more dangerously when it’s illegal.

The statement the presidents have signed avoids calling explicitly for a younger drinking age. Rather, it seeks “an informed and dispassionate debate” over the issue and the federal highway law that made 21 the de facto national drinking age by denying money to any state that bucks the trend.

But the statement makes clear the signers think the current law isn’t working, citing a “culture of dangerous, clandestine binge-drinking,” and noting that while adults under 21 can vote and enlist in the military, they “are told they are not mature enough to have a beer.” Furthermore, “by choosing to use fake IDs, students make ethical compromises that erode respect for the law.”

“I’m not sure where the dialogue will lead, but it’s an important topic to American families, and it deserves a straightforward dialogue,” said William Troutt, president of Rhodes College in Memphis, Tenn., who has signed the statement.

But some other college administrators sharply disagree that lowering the drinking age would help. University of Miami President Donna Shalala, who served as secretary of health and human services under President Clinton, declined to sign.

“I remember college campuses when we had 18-year-old drinking ages, and I honestly believe we’ve made some progress,” Shalala said in a telephone interview. “To just shift it back down to the high schools makes no sense at all.”

Speed of heart extractions raises ethical questions

Rob Stein
Washington Post
August 14, 2008

WASHINGTON – Surgeons in Denver are publishing their first account of a controversial procedure in which they remove the hearts of severely brain-damaged newborns less than two minutes after the babies are disconnected from life support, and their hearts stop beating, so the organs can be transplanted into infants who would otherwise die.

A detailed description of the transplants in today’s issue of the New England Journal of Medicine immediately ignited an intense debate about whether the first-of-their-kind procedures are pushing an already controversial organ-retrieval strategy beyond acceptable legal, moral and ethical bounds.

The doctors who performed the operations as part of a federally funded research project defended the practice, and some advocates for organ donation praised the operations as offering the first clear evidence that the procedures could provide desperately needed hearts for terminally ill babies.

Critics, however, are questioning the propriety of removing hearts from patients, especially babies, who are not brain dead and are asking whether the Denver doctors wait long enough to make sure the infants met either of the long-accepted definitions of death – complete, irreversible cessation of brain function or of heart and lung function. Some even said the operations are tantamount to murder.

“This bold experiment is pushing the boundaries and raising many questions,” said James Bernat, a Dartmouth medical professor who wrote one of four commentaries that the journal published with the report – an unusual step that anticipated the firestorm of reaction the procedures would cause. The journal posted them on its Web site with a videotaped debate among three prominent bioethicists.

“This clearly shows the feasibility of doing this,” Bernat said. “The question is: Should this be done?”  This is the issue I would like you to focus on for this post – Kautzman

The operations are occurring as transplant advocates have become increasingly aggressive in trying to bridge the gap between the number of available livers, kidneys, hearts and other organs and the number of Americans on the waiting list for transplants.

Since the 1970s, most organs have been removed only after doctors declared a patient brain dead. But in the hopes of obtaining more organs, federal health officials, transplant surgeons and organ banks have been intensely promoting “donation after cardiac death,” or DCD. DCD usually involves patients who have devastating and irreversible brain damage but are not actually brain dead. Their families consent to removing life support, and their organs are removed minutes after the patients’ hearts stop beating.

While the procedure has become increasingly common in adults, it remains highly controversial. Critics say it endangers the care of dying patients – a California surgeon is facing criminal charges that he tried to hasten the death of a potential DCD donor in 2006 – and has raised questions about whether the donors are truly dead.

To address such concerns, hospitals follow strict guidelines, including requiring a clear division between doctors caring for the patients and those removing and transplanting the organs. Most also require surgeons to wait at least two minutes – and usually five – after a heart stops to make sure it does not spontaneously start beating again on its own, which has occurred in rare cases.

The Washington Post reported last year that doctors at the Denver Children’s Hospital had started removing hearts from babies, sometimes waiting only 75 seconds to increase the chances that the organs would be viable. The new report marks the first time the doctors have described their efforts in a medical journal.

The report details three cases between 2004 and 2007 involving babies who experienced severe brain damage from oxygen deprivation during birth. Their parents decided to discontinue life support several days following their birth after doctors told them there was no hope. The surgeons waited three minutes before removing the first baby’s heart, but just 75 seconds for the second and third after an ethics panel monitoring the research decided that would be sufficient.

Surgeons transplanted the hearts into three babies 1 to 4 months old who were dying of heart problems. Six months later, all three recipients were alive.

“We’re very pleased with the lives we saved,” said Mark Boucek, who led the team before moving to the Joe DiMaggio Children’s Hospital in Hollywood, Fla. “We’re trying to deal with a very difficult situation where children die waiting for transplant and parents of other children want to donate.”

James Burdick of the Health and Human Services Department, which funded the study, agreed.

“In a very important way, it’s a wonderful story. You had three situations with hopeless medical problems who would have otherwise died but got this gift of life,” he said. “It’s an important demonstration of what is possible.”

But critics questioned whether the donor babies were truly dead when their hearts were removed. In those cases, the hearts were restarted in another child’s body, meaning cessation was not irreversible, they argued.

“This practice cannot be ethically justified,” said George Annas, a Boston University bioethicist. “The donors are not dead. I understand that they would like us to change the definition of death, but they can’t do that by themselves. It’s very problematic to start treating a baby as an organ donor before it’s dead.”

Robert Veatch, a Georgetown University bioethicist, went further, saying the deaths were equivalent to murder.

“The whole issue is whether the infants from whom the hearts were taken were dead. It seems very clear to me that they were not,” he said. “I think it’s illegal, and if it’s illegal, what we’re talking about is the physicians causing the death of the three patients, and that would be homicide. It’s immoral. I think it should be stopped.”

Boucek, the cardiologist, argued that the hearts were incapable of functioning in the newborns from whom they were removed, satisfying the criteria for pronouncing the babies dead.

“At the end of the day, we feel we are on very firm ground,” he said. “There is no question these all met the criteria that one would establish for death.”

Les Payne
August 6, 2008

As a full-blooded descendant of Africans enslaved in Alabama, I admit to a cautious surprise Tuesday upon hearing that the U.S. House of Representatives passed an official apology for slavery, the segregated Jim Crow era and the “vestiges” of racial discrimination that “still linger to this day.”

“Whereas millions of Africans and their descendants were enslaved in the United States and the 13 American colonies from 1619 through 1865,” read the prelude to H. Res. 194 that was generated by Rep. Steve Cohen, D-Tenn., and issued by voice vote.

The U.S. Senate will not join the resolution that, while not mentioning reparations, promises to rectify “lingering consequences of the misdeeds committed against African-Americans under slavery and Jim Crow.”

In the interest of public service, I offer the text of the resolution, edited for space:

“Whereas slavery in America resembled no other form of involuntary servitude known in history, as Africans were captured and sold at auction like inanimate objects or animals;

“Whereas Africans forced into slavery were brutalized, humiliated, dehumanized, and subjected to the indignity of being stripped of their names and heritage;

“Whereas enslaved families were torn apart after having been sold separately from one another;

“Whereas the system of slavery and the visceral racism against persons of African descent upon which it depended became entrenched in the Nation’s social fabric;

“Whereas slavery was not officially abolished until the passage of the 13th Amendment to the United States Constitution in 1865 after the end of the Civil War;

“Whereas after emancipation from 246 years of slavery, African-Americans soon saw the fleeting political, social, and economic gains they made during Reconstruction eviscerated by virulent racism, lynchings, disenfranchisement, Black Codes, and racial segregation laws that imposed a rigid system of officially sanctioned racial segregation in virtually all areas of life;

“Whereas the system of de jure racial segregation known as ‘Jim Crow,’ which arose in certain parts of the Nation following the Civil War to create separate and unequal societies for whites and African-Americans, was a direct result of the racism against persons of African descent engendered by slavery;

“Whereas a century after the official end of slavery in America, Federal action was required during the 1960s to eliminate the de jure and de facto system of Jim Crow throughout parts of the Nation, though its vestiges still linger to this day;

“Whereas African-Americans continue to suffer from the complex interplay between slavery and Jim Crow – long after both systems were formally abolished – through enormous damage and loss, both tangible and intangible, including the loss of human dignity, the frustration of careers and professional lives, and the long-term loss of income and opportunity;

“Whereas the story of the enslavement and de jure segregation of African-Americans and the dehumanizing atrocities committed against them should not be purged from or minimized in the telling of American history; …

“Whereas a genuine apology is an important and necessary first step in the process of racial reconciliation;

“Whereas an apology for centuries of brutal dehumanization and injustices cannot erase the past, but confession of the wrongs committed can speed racial healing and reconciliation and help Americans confront the ghosts of their past; …

“Whereas it is important for this country, which legally recognized slavery through its Constitution and its laws, to make a formal apology for slavery and for its successor, Jim Crow, so that it can move forward and seek reconciliation, justice, and harmony for all of its citizens:

“Now, therefore, be it Resolved, That the House of Representatives –

(1) acknowledges that slavery is incompatible with the basic founding principles recognized in the Declaration of Independence that all men are created equal;

(2) acknowledges the fundamental injustice, cruelty, brutality, and inhumanity of slavery and Jim Crow;

(3) apologizes to African-Americans on behalf of the people of the United States, for the wrongs committed against them and their ancestors who suffered under slavery and Jim Crow; and

(4) expresses its commitment to rectify the lingering consequences of the misdeeds committed against African-Americans under slavery and Jim Crow and to stop the occurrence of human rights violations in the future.”

Uproar about the apology is likely to flood in from those locked into denial about continuing post-Jim Crow villainies. The resolution, however, seems clear in its delineation, and proper consideration requires a sense of its tone, language, context and a reading of U.S. history.

Insists, ‘I Am Not a Racist,’ Despite Anger Over His S.C. Comments

By KATE SNOW

MONROVIA, Liberia Aug. 4, 2008 —

 

In his first broadcast interview since his wife dropped out of the Democratic presidential race, former President Bill Clinton said he still has regrets, and insisted he’s “not a racist,” despite controversies surrounding his comments about Sen. Barack Obama’s win in the South Carolina Democratic primary.

 

Clinton reflected on his wife’s campaign, his future and the work his foundation is doing across Africa in an exclusive wide-ranging interview with ABC News in Monrovia, Liberia. He and daughter Chelsea spent time in four African nations over the past six days. On Monday, the former President will address the World AIDS Conference in Mexico.

At times, he appeared to grow testy as he discussed his wife’s failed bid for the nomination and was asked if he deserves at least some of the blame for his wife’s losses.

Clinton at first said he did not want to rehash events of the past year because it “interferes with the issue which is who should be elected in November.” But then he offered a lengthy defense of his own role and chastized the media for its coverage.

When asked, “Do you personally have any regrets about what you did, campaigning for your wife?” Clinton, at first, answered, “Yes, but not the ones you think. And it would be counterproductive for me to talk about.”

 

But then he added, “There are things that I wish I’d urged her to do. Things I wish I’d said. Things I wish I hadn’t said.

 

“But I am not a racist,” he continued. “I’ve never made a racist comment and I never attacked him [Obama] personally.”

 

Clinton was referring to an uproar surrounding some of his comments in the South Carolina Democratic primary that prompted anger among some in the African-American community. After Obama, D-Ill., defeated his wife there, Clinton seemed to downplay the significance of the victory by noting Jesse Jackson had won South Carolina in 1984 and 1988, which some observers found offensive.

 

The controversy later brought an apology from Hillary Clinton, who told reporters, “You know, I am sorry if anyone was offended. It was certainly not meant in any way to be offensive.”

 

Bill Clinton suggested he is still mad at one politician, South Carolina’s Rep. Jim Clyburn, who abandoned his neutrality to back Obama after claiming that the former president had injected race into the campaign.

When Clyburn’s name was brought up as a supporter who criticized the former president, Clinton interrupted to say Clyburn was never a supporter of the Clintons.

When Clyburn’s description was changed to “longtime friend,” Clinton replied, “Used to be.”

Pressed on whether Clinton “severely damaged” his standing with African-Americans as Clyburn has claimed, Clinton snapped, “Yeah, that may be. By the time he got through working on it, that was probably true.”

But Clinton says that he has no hard feelings towards Obama, the man who defeated his wife.

“I’m not and never was mad at Senator Obama,” Clinton said.

“You know he hit her hard a couple of times and they hit us a few times a week before she ever responded in kind. The only thing I ever got mad about was people in your line of work pretending that she somehow started the negative stuff. It’s a contact sport,” Clinton said.

The Obama campaign’s only response to Clinton’s comments was to say, “We had a hard-fought primary. We head to the fall, a united Democratic Party, and look forward to the general election.”

More significant is the likelihood that both Sen. Hillary Clinton and Bill Clinton will have prominent speaking roles at the Democratic convention later this month, where Obama will be nominated to be the party’s presidential nominee.

ABC News’ Jake Tapper and Tahman Bradley contributed to this report.

 

 

Jamie Barnett
The Washington Post
July 28, 2008

Did you know that your safety and security depend on gay men and lesbians?

An estimated 65,000 gay men and lesbians serve in the U.S. armed forces, though by law they cannot be open about their sexuality. As we fight two wars, our military is stretched thin. Those gay and lesbian soldiers, sailors, airmen, Marines and members of the Coast Guard are essential.

Without them, we would stretch to a dangerous point the length of time troops must spend in Iraq and Afghanistan. Without them, we would lose crucial military leadership, expertise and skills. Without them, we would have a hard time meeting our military commitments worldwide.

A hearing of a House Armed Services subcommittee this week offered a critical opportunity to break the silence surrounding how military preparedness has been hurt by the 1993 “don’t ask, don’t tell” policy barring gay men and lesbians from serving openly. The military has spent more than $363 million since 1994 to throw out gay men and lesbians whose expertise we desperately need, including expensively trained and hard-to-recruit linguists, jet pilots, cyber-warriors, doctors and combat-tested master sergeants. This purging of talent takes place at the same time the military, in order to meet its manpower quotas, feels compelled to increase the number of waivers it grants to people who have had problems with the law – in some instances almost twice as many as in years past.

These patriotic gay and lesbian warriors want to serve. Yes, some “out” themselves to leave the service, usually because they have been made to feel unwelcome, unappreciated or even unsafe in their units. An estimated 3,000 gay service members depart each year rather than continue to serve under a policy that forces them to deceive their fellow warriors and to contradict the honor and integrity that are core values in our services. Those members who stay make an incredibly difficult personal sacrifice.

“Don’t ask, don’t tell” also damages our nation’s ability to recruit the best and the brightest. Competing with industry is hard enough already. The military estimates that only three in 10 high school graduates are qualified to serve; the “don’t ask, don’t tell” policy further reduces the pool of eligible recruits. And would you want to serve when you have to hide an essential part of yourself or would be unable to tell the chain of command about discrimination or harassment without risking your career?

Some fear a backlash from heterosexual service members, but I don’t. I grew up in Mississippi and attended segregated schools until I was a sophomore in high school. Integration was tumultuous, but it led to respect, understanding and, ultimately, a greater opportunity for blacks and whites alike to succeed. I believe integration of lesbians and gay men in the military will be easier: It has already taken place. Sadly, we just don’t recognize the gay service members among us for who they are.

It is up to Congress and the president to craft policy on gay men and lesbians serving in the military, but it is the responsibility of senior military commanders to advise our nation’s leaders on how law and policy affect military readiness. I raised this issue in 2003 when a task force I served on worked on the Navy’s diversity strategy. Senior leaders must state plainly how “don’t ask, don’t tell” affects recruiting, retention and our ability to develop essential military skills. They should speak up about how it affects military honor and integrity. It is our duty, something military leaders understand well, to speak openly of how “don’t ask, don’t tell” injures our military and weakens our preparedness.

Washington Post
July 20, 2008

PIERRE, S.D. – In a victory for antiabortion forces, doctors in South Dakota are now required to tell a woman seeking an abortion that the procedure “will terminate the life of a whole, separate, unique living human being.”

The U.S. Court of Appeals for the 8th Circuit last week lifted a preliminary injunction that prevented the language from taking effect. A spokesman for Planned Parenthood, which runs the state’s only abortion clinic, said doctors will begin reciting the script to patients as early as this week.

On another front, South Dakota voters will be asked in a Nov. 4 referendum to consider broad limits on abortion for the second time since 2006. The ballot measure includes exceptions for rape, incest and the woman’s health that were not part of the 2006 wording rejected by voters.

Antiabortion forces in South Dakota have been trying for years to halt the procedure and to build a winnable challenge to Roe v. Wade, the 1973 Supreme Court decision legalizing abortion nationwide.

A law that took effect July 1 requires doctors to ask a woman seeking an abortion if she wants to see a sonogram of the fetus. About 700 abortions are performed in South Dakota each year.

The doctors’ script that officially took effect Friday has been tied up in court since 2005, when Planned Parenthood challenged a law that instructed physicians what to tell abortion patients. Under the law, doctors must say that the woman has “an existing relationship” with the fetus that is protected by the U.S. Constitution and that “her existing constitutional rights with regards to that relationship will be terminated.” Also, the doctor is required to say that “abortion increases the risk of suicide ideation and suicide.”

The message must be delivered no earlier than two hours before the procedure. The woman must say in writing that she understands.

Karen Heller
The Philadelphia Inquirer
July 8, 2008

When did teen pregnancy become entertaining?

You know, the stuff of a break-out summer comedy, an Oscar-winning independent film, and now the ABC Family series “The Secret Life of the American Teenager.” Nothing quite says “a new kind of family” – the network’s slogan – like a 15-year-old’s unplanned pregnancy.

It’s only a matter of time before some artist makes “Large Times at Gloucester High.”

Apparently, pregnancy provides a better plot device than abortion, especially since the procedure has become one of culture’s dirty words. In “Knocked Up,” one pothead slacker is so uncomfortable he calls it schmabortion, putting a lie to Hollywood’s leftist tendencies.

Teen pregnancy is on the rise for the first time after a 14-year downturn. In real life, misguided teens think pregnancy is a wondrous adventure – that is, until they have to care for a baby on a daily basis.

“A teenage pregnancy immediately turns the odds against mother and baby,” says Dayle Steinberg, president of Planned Parenthood of Southeastern Pennsylvania.

Teens believe they’re superheroes when it comes to birth control and health care. Young expectant mothers, the poor ones not depicted in “Juno” or on ABC Family, are more likely to risk unhealthy behavior (smoking, drinking) and less likely to receive prenatal care, putting mother and child at risk.

A baby proves a powerful hindrance to schooling, while tethering young mothers to government services and financial dependency. Education, not family income or background, is the great indicator of economic success. Teen pregnancy stagnates education, obstructs future career choices and clogs income.

“Hollywood entertains and Planned Parenthood prevents,” Steinberg says. “Responsible behaviors aren’t promoted enough.”

Studies show teenagers aren’t receiving adequate information at home or in the classroom about sex and reproductive health. Abstinence-only sex education, granted substantial federal funding in recent years, teaches the fallibility of contraception and inaccurate information about abortion, according to a congressional investigation.

The lessons have had no effect on curtailing teenage sexual activity, which nearly half of 15- to 19-year-olds experience. Meanwhile, one in four teenagers contracts a sexually transmitted infection. They represent a fourth of the sexually active population, but half of the people with sexually transmitted infections, suggesting a laxity when it comes to prevention. Last year, an 80 percent increase of gonorrhea cases occurred in Delaware County, Pa., for example, more than a quarter among teenagers.

But that doesn’t exactly make for entertainment, does it?

“Secret Life” offered a public-service announcement on teens talking to adults, though the show seems more likely to boost pregnancy-test sales. Scenes from future episodes suggest that the heroine will continue school and get help from her mother.

If only. Teenagers come to Philadelphia’s Women’s Medical Fund when life doesn’t work out like that.

“These are teens who can’t tell their parents, and they don’t have any money and don’t have access to help,” says executive director Susan Schewel.

Recently, the Women’s Medical Fund helped a 16-year-old obtain an abortion. She felt she couldn’t tell her mother – her father isn’t in the picture, and the father of her child isn’t, either.

“By making my decision,” the girl wrote to the fund with her $25 contribution, “I am now able to move forward in my life and continue my schooling, knowing I can still reach for the stars.”

There’s a secret life of an American teenager you don’t tend to see in movies or on television.

Our View: First Amendment principles uniquely American

July 6, 2008

A neo-Nazi is jailed for displaying swastikas. A woman is prosecuted for denying the Holocaust. A man is arrested for using a racial epithet. A magazine that publishes an article bemoaning the rise of Islam as a threat to Western values is forced to stand trial.

If you find any of that appealing, you might be better off living in another country. There’s plenty to choose from: Germany, Canada, Great Britain and France are just some of the examples of countries that clamp down on speech more than the United States.

While other countries have chosen to head off thoughts that cause discomfort, Americans see the First Amendment as a bulwark against government oppression and a key protector of freedom. Well, not all Americans. There are plenty who would willingly forgo free-speech rights in times of war or when hate is spewed or when indecency is shown.

Many people wanted to deny parade permits for Richard Butler and his Aryan Nations followers. Others fight for hate-speech laws and other forms of government censorship. In other words, they’d like for America to be more like France or Germany or Canada.

It’s remarkable that the United States stands alone in protecting free speech to the extent that it does. Because of the First Amendment, no other citizens have the right to speak their minds like Americans. Yet so many otherwise patriotic people hate to love it.

Some conservatives feel there’s too much freedom in times of peril. They’d prefer more controls on the media, for fear that criticism or bad news will aid our enemies. Some liberals feel that reasonable speech does not provide a sufficient counterbalance to hate speech.

The irony is that these First Amendment critics are free to bash it and its defenders with indecent language that is brimming with bile. And they often do.

Other countries presume to reach a consensus on what is over the line and then construct laws to protect civility. And so in an otherwise progressive country like Canada, the magazine Maclean’s had to explain itself to a government tribunal after publishing an opinion piece by Mark Steyn that mocked and heaped scorn on the religion of Islam. On June 28, the magazine prevailed.

As the New York Times recently noted, Steyn’s screed isn’t unlike many seen in conservative magazines and blogs in the United States. But if the British Columbia Human Rights Tribunal had decided that the article was sufficiently injurious to the “dignity, feelings and self-respect” of Muslims, the magazine could’ve been forced to print a rebuttal or compensate the “wounded.”

It might seem nice to drive vile thoughts underground, but as civil liberties lawyer Harvey Silvergate told the New York Times: “Sending Hitler on a speaking tour of the United States would have been quite a good idea.”

Ultimately, the controls clamped on free speech in other countries are condescending. It’s the government telling people that they are too impressionable or ill-equipped to form their own opinions and to fire back.

“Only in America” is often the punch line to a putdown. But in the case of the First Amendment, it’s a point of pride.

April 29, 2008

By LINDA GREENHOUSE

WASHINGTON — The Supreme Court upheld Indiana’s voter identification law on Monday, concluding in a splintered decision that the challengers failed to prove that the law’s photo ID requirement placed an unconstitutional burden on the right to vote.

The 6-to-3 ruling kept the door open to future lawsuits that provided more evidence. But this theoretical possibility was small comfort to the dissenters or to critics of voter ID laws, who predicted that a more likely outcome than successful lawsuits would be the spread of measures that would keep some legitimate would-be voters from the polls.

Voting experts said the ruling was likely to complicate election administration, leading to both more litigation and more legislation, at least in states with Republican legislative majorities, but would probably have a limited impact on this year’s presidential voting.

The issue has been intensely partisan, with Republicans supporting increased identification requirements for voters and Democrats opposing them. In what the court described as the “lead opinion,” which was written by Justice John Paul Stevens and joined by Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy, the court acknowledged that the record of the case contained “no evidence” of the type of voter fraud the law was ostensibly devised to detect and deter, the effort by a voter to cast a ballot in another person’s name.

But Justice Stevens said that neither was there “any concrete evidence of the burden imposed on voters who now lack photo identification.” The “risk of voter fraud” was “real,” he said, and there was “no question about the legitimacy or importance of the state’s interest in counting only the votes of eligible voters.”

The three others who made up the majority, Justices Antonin Scalia, Clarence Thomas, and Samuel A. Alito Jr., said in an opinion by Justice Scalia that the law was so obviously justified as “a generally applicable, nondiscriminatory voting regulation” that there was no basis for scrutinizing the record to assess the impact on any individual voters. “This is an area where the dos and don’ts need to be known in advance of the election,” Justice Scalia said.

In a dissenting opinion, Justice David H. Souter said that for those on whom the law had an impact, the burden was “serious” and the state had failed to justify it. Like the Virginia poll tax the court struck down 42 years ago, he said, “the onus of the Indiana law is illegitimate just because it correlates with no state interest so well as it does with the object of deterring poorer residents from exercising the franchise.” The other dissenters were Justices Ruth Bader Ginsburg and Stephen G. Breyer.

Six states in addition to Indiana — Florida, Georgia, Hawaii, Louisiana, Michigan, and South Dakota — now require voters to provide photo identification before casting a ballot. Bills are pending in two dozen other states, although they are not likely to pass this year in more than a handful, due to short legislative sessions and Democratic opposition.

The Indiana law, adopted by the Republican-controlled legislature in 2005 without a single Democratic vote, is regarded as the strictest in the country. It requires a voter to present a photograph as part of an unexpired document issued either by Indiana or the federal government, a requirement that in most cases can be satisfied only by a current driver’s license or a passport. The state’s motor vehicle agency provides a free photo ID card for people who do not drive, but obtaining it requires a “primary document” like an original birth certificate or a passport.

Would-be voters without proper identification may cast a provisional ballot that will be counted only if they appear within 10 days at a county clerk’s office and present acceptable photo identification or, alternatively, swear either that they are indigent or that they have a religious objection to being photographed.

The Indiana law was challenged in separate suits filed by the Indiana Democratic Party and by another group of plaintiffs that included elected officials and community groups. The plaintiffs argued that the state had failed to justify a requirement they said would place a special burden on thousands of eligible voters in Indiana who lack driver’s licenses, a group that disproportionately includes the poor, the elderly and people with disabilities.

The plaintiffs lost, both in Federal District Court in Indianapolis and in the United States Court of Appeals for the Seventh Circuit, in Chicago. Writing for the 2-to-1 majority at the appeals court, Judge Richard A. Posner agreed with the plaintiffs that the law would have the greatest impact on people who were “low on the economic ladder and thus, if they do vote, are more likely to vote for Democratic than Republican candidates.” While that fact gave the Democratic Party standing to sue, he said, it did not make the law unconstitutional.

The suits were filed before the statute took effect, challenging the law “on its face.” This technique, known as a “facial challenge,” has been a staple of election litigation, based on the notion that once an election has taken place, the asserted damage has been done and it is too late to make judicial amends.

A debate over the legitimacy of a facial challenge in the voter ID context did not enter this case until the Bush administration filed a brief at the Supreme Court stage supporting Indiana. Solicitor General Paul D. Clement told the court in his brief that, as a facial challenge, the suit was premature and based on nothing more than “speculation and as-yet untested evidence.” In the decision on Monday, Crawford v. Marion County Election Board, No. 07-21, the Supreme Court did not go quite so far as to make facial challenges unavailable. But Justice Stevens said in his opinion that in their effort to invalidate the statute in all its applications, the plaintiffs failed to carry their “heavy burden of persuasion,” given the weight of the state’s interest in election integrity.

In his dissenting opinion, which Justice Ginsburg also signed, Justice Souter examined the case from the opposite end of the telescope. Given that there was “no evidence of in-person voter impersonation fraud in a state, and very little of it nationwide,” he said it was Indiana’s job to justify placing even a slight burden on even a limited number of people. “The interest in combating voter fraud has too often served as a cover for unnecessarily restrictive electoral rules,” Justice Souter said.

Justice Breyer, in a separate dissenting opinion, compared Indiana’s law with those in Georgia and Florida, which also require photo identification but accept a range of more broadly accessible documents. Florida accepts student identification cards, employee badges and cards from neighborhood associations, for example, and accepts a provisional ballot as long as the voter’s signature matches one on file. Indiana has not justified its “significantly harsher” requirements, he said.

The vote of Justice Stevens, a reliable anchor of the court’s liberal bloc, was something of a surprise. Some speculated that his strategic aim was to keep Chief Justice Roberts and Justice Kennedy from joining the Scalia camp. Edward B. Foley, an election law expert at Ohio State University, said the Stevens opinion might represent an effort to “depoliticize election law cases.”

Thursday, Apr. 03, 2008

By NANCY GIBBS

Back in olden days–in 1974, to be exact–Mr. T. Harding Jones of the Concerned Alumni of Princeton lamented how “coeducation has ruined the mystique and the camaraderies that used to exist” on campus. Admitting girls to Princeton, he predicted, was “going to prove a very unfortunate thing.”

I landed at college a few years later, at the very moment the number of female undergraduates nationally reached parity with that of men–though my school was still 3-to-2 male. Like my peers, I suspect, for every pterodactyl who thought I had no business being there, I found three gentle mentors who smoothed the way.

But a gender gap has reopened: if girls were once excluded because they somehow weren’t good enough, they now are rejected because they’re too good. Or at least they are so good, compared with boys, that admissions committees at some private colleges have problems managing a balanced freshman class. Roughly 58% of undergraduates nationally are female, and the girl-boy ratio will probably tip past 60-40 in a few years. The divide is even worse for black males, who are outnumbered on campus by black females 2 to 1.

While educators debate whether there is a “boy crisis” that warrants a wholesale change in how to teach, colleges are quietly stripping the pastels from brochures and launching Xbox tournaments to try to close the gap in the quality and quantity of boys applying. “It’s a gross generalization that slacker boys get in over high-performing girls,” says Jennifer Delahunty, dean of admissions at Kenyon College, “but developmentally, girls bring more to the table than boys, and the disparity has gotten greater in recent years.”

Of course, admitting this is taboo, as Delahunty learned two years ago. She was in marathon committee meetings, stacking glorious girls on the waiting list while less accomplished boys wiggled through, when she got an e-mail informing her that her own daughter had been wait-listed. The experience inspired her to write a confessional Op-Ed, “To All the Girls I’ve Rejected,” for the New York Times, responses to which lit up her inbox. “It pissed off the feminists and the misogynists–I got both sides of the spectrum,” she told me. “The misogynists said women already have too many advantages. And the feminists said, How dare you not treat women like men.” But what most amazed her was the reaction of young women: by and large, they assumed this is just how things work. “Why aren’t they marching in the streets? That’s the part that slays me,” Delahunty says. “It isn’t fair, and young women should be saying something about it not being fair.”

But when it comes to private-college admissions, the law is murky, the process opaque, the needs of the institution primary. This includes ensuring that the freshman class is not 70-30 female, because that makes the school less attractive to male and female applicants alike. U.S. News & World Report found that the admissions rate of men at the College of William and Mary, for example, was an average of 12 percentage points higher than that of women–because, as the admissions director memorably told the magazine, “even women who enroll … expect to see men on campus. It’s not the College of Mary and Mary; it’s the College of William and Mary.”

But the gap persists on campus, where women tend to win more honors, join more clubs, do more volunteer work. “We sit and talk about why no men are applying for leadership roles,” says Jason Zelesky, associate dean of students at Clark University in Massachusetts, which is 60-40 female. “Do we need to concentrate more on traditional masculine words–’Be a leader on campus,’ as opposed to ‘Come join our team’?” He’s launching a “men helping men” support program to help boys adjust to their minority status.

I wonder if there’s a price boys pay for the “soft bigotry of low expectations.” The college deans I talked to worry that there is some message boys are not receiving, role models they are missing, that speaks to the importance of an education both broad and deep. “I found it harder to talk to guys in interviews, even after 40 years,” says Haverford dean Greg Kannerstein, “because they seem narrower in their interests than the women.” He wonders if schools and parents have wrapped boys in cotton, focused on “support” at the expense of accountability. “For a long time, guys were left on their own, which was not so great either,” he says. “Now maybe we’re shielding them a little too much.” That would be the crowning irony, if it turns out that girls emerge stronger somehow from having the game rigged against them.

Memorandum released An 81-page memo released Tuesday undergirded some of the highly coercive interrogation techniques employed by the Bush Administration, including extreme temperatures, head-slapping and a type of simulated drowning called waterboarding.

Dan Eggen and Josh White
Washington Post
April 2, 2008

WASHINGTON – The Justice Department sent a legal memorandum to the Pentagon in 2003 asserting that federal laws prohibiting assault, maiming and other crimes did not apply to military interrogators who questioned al-Qaida captives because the president’s ultimate authority as commander in chief overrode such statutes.

The 81-page memo, which was declassified and released publicly Tuesday, argues that poking, slapping or shoving detainees would not give rise to criminal liability. The document also appears to defend the use of mind-altering drugs that do not produce “an extreme effect” calculated to “cause a profound disruption of the senses or personality.”

Although the existence of the memo has long been known, its contents have not been previously disclosed. Nine months after it was issued, Justice Department officials told the Defense Department to stop relying on it. But its reasoning provided the legal foundation for the Defense Department’s use of aggressive interrogation practices at a crucial time, as captives poured into military jails from Afghanistan and U.S. forces prepared to invade Iraq.

Sent to the Pentagon’s general counsel on March 14, 2003, by John Yoo, then a deputy in the Justice Department’s Office of Legal Counsel, the memo provides an expansive argument for nearly unfettered presidential power in a time of war. It contends that numerous laws and treaties forbidding torture or cruel treatment should not apply to U.S. interrogations in foreign lands because of the president’s inherent wartime powers.

“If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network,” Yoo wrote. “In that case, we believe that he could argue that the executive branch’s constitutional authority to protect the nation from attack justified his actions.”

Interrogators who harmed a prisoner would be protected by a “national and international version of the right to self-defense,” Yoo wrote. He also articulated a definition of illegal conduct in interrogations – that it must “shock the conscience” – that the Bush administration advocated for years.

“Whether conduct is conscience-shocking turns in part on whether it is without any justification,” Yoo wrote, explaining, for example, that it would have to be inspired by malice or sadism before it could be prosecuted.

The declassified memo was sent by the Defense and Justice departments late Tuesday to Democrats on Capitol Hill, including Sens. Carl Levin, of Michigan, and Patrick Leahy, of Vermont, who had seen the document in classified form and pushed for its public release.

The document is similar, though much broader, than a notorious memo primarily written by Yoo in August 2002 that narrowly defined what constitutes illegal torture. That document was also later withdrawn.

In his 2007 book, “The Terror Presidency,” Jack Goldsmith, who took over the Office of Legal Counsel after Yoo departed, writes that the two memos stood out” for “the unusual lack of care and sobriety in their legal analysis.”

Among many other problems, Goldsmith wrote, both memos “were wildly broader than was necessary to support what was actually being done.”

The documents are among the Justice Department legal memoranda that undergirded some of the highly coercive interrogation techniques employed by the Bush administration, including extreme temperatures, head-slapping and a type of simulated drowning called waterboarding.

In 2005, in the wake of public controversy over such methods, Congress limited Defense Department officials to interrogation methods listed in the Army’s field manual, which was rewritten to forbid many of the aggressive methods. The CIA was exempted, however, and President Bush vetoed recent legislation that would have applied the same requirements to that agency.

Yoo, now a law professor at the University of California at Berkeley, defended the memo in an e-mail Tuesday, saying the Justice Department altered its legal opinions “for appearances’ sake.” He said his successors “ignored the Department’s long tradition in defending the President’s authority in wartime.”

“Far from inventing some novel interpretation of the Constitution,” Yoo wrote, “our legal advice to the President, in fact, was near boilerplate.”

Yoo’s 2003 memo arrived amid strong Pentagon debate about which interrogation techniques should be allowed and which might lead to legal action.

After a rebellion by military lawyers, then-Defense Secretary Donald Rumsfeld in December 2002 suspended a list of aggressive techniques he had approved, the most extreme of which were used on a single detainee at the military prison at Guantanamo Bay, Cuba. The prisoner was subjected to stress positions, nudity, hooding, exposure to dogs and other aggressive techniques.

Largely because of Yoo’s memo, however, a Pentagon working group in April 2003 endorsed the continued use of extremely aggressive tactics. The top lawyers for each military service, who were largely excluded from the group, did not receive a final copy of Yoo’s March memo and did not know about the group’s final report for more than a year, officials said.

Thomas Romig, who was then the Army’s judge advocate general, said Tuesday after reading the memo that it appears to argue that there are no rules in a time of war, a concept Romig found “downright offensive.”

March 29, 2008

By EDMUND L. ANDREWS

WASHINGTON — The Treasury Department will propose on Monday that Congress give the Federal Reserve broad new authority to oversee financial market stability, in effect allowing it to send SWAT teams into any corner of the industry or any institution that might pose a risk to the overall system.

The proposal is part of a sweeping blueprint to overhaul the nation’s hodgepodge of financial regulatory agencies, which many experts say failed to recognize rampant excesses in mortgage lending until after they set off what is now the worst financial calamity in decades.

Democratic lawmakers are all but certain to say the proposal does not go far enough in restricting the kinds of practices that caused the financial crisis. Many of the proposals, like those that would consolidate regulatory agencies, have nothing to do with the turmoil in financial markets. And some of the proposals could actually reduce regulation.

According to a summary provided by the administration, the plan would consolidate an alphabet soup of banking and securities regulators into a powerful trio of overseers responsible for everything from banks and brokerage firms to hedge funds and private equity firms.

While the plan could expose Wall Street investment banks and hedge funds to greater scrutiny, it carefully avoids a call for tighter regulation.

The plan would not rein in practices that have been linked to the housing and mortgage crisis, like packaging risky subprime mortgages into securities carrying the highest ratings.

The plan would give the Fed some authority over Wall Street firms, but only when an investment bank’s practices threatened the entire financial system.

And the plan does not recommend tighter rules over the vast and largely unregulated markets for risk sharing and hedging, like credit default swaps, which are supposed to insure lenders against loss but became a speculative instrument themselves and gave many institutions a false sense of security.

Parts of the plan could reduce the power of the Securities and Exchange Commission, which is charged with maintaining orderly stock and bond markets and protecting investors. The plan would merge the S.E.C. with the Commodity Futures Trading Commission, which regulates exchange-traded futures for oil, grains, currencies and the like.

The blueprint also suggests several areas where the S.E.C. should take a lighter approach to its oversight. Among them are allowing stock exchanges greater leeway to regulate themselves and streamlining the approval of new products, even allowing automatic approval of securities products that are being traded in foreign markets.

The proposal began last year as an effort by Henry M. Paulson Jr., secretary of the Treasury, to make American financial markets more competitive against overseas markets by modernizing a creaky regulatory system.

His goal was to streamline the different and sometimes clashing rules for commercial banks, savings and loans and nonbank mortgage lenders.

“I am not suggesting that more regulation is the answer, or even that more effective regulation can prevent the periods of financial market stress that seem to occur every 5 to 10 years,” Mr. Paulson will say in a speech on Monday, according to a draft. “I am suggesting that we should and can have a structure that is designed for the world we live in, one that is more flexible.”

Congress would have to approve almost every element of the proposal, and Democratic leaders are already drafting their own bills to impose tougher supervision over Wall Street investment banks, hedge funds and the fast-growing market in derivatives like credit default swaps.

But Mr. Paulson’s proposal for the Fed echoes ideas championed by Representative Barney Frank, the Massachusetts Democrat who is chairman of the House Financial Services Committee.

Both see the Fed overseeing risk across the entire financial spectrum, but Mr. Frank is likely to favor a stronger Fed role and to subject investment banks to the same rules that commercial banks now must follow, especially for capital reserves.

The Treasury plan would let Fed officials examine the practices and even the internal bookkeeping of brokerage firms, hedge funds, commodity-trading exchanges and any other institution that might pose a risk to the overall financial system.

That would be a significant expansion of the central bank’s regulatory mission.

When Fed officials agreed this month to rescue Bear Stearns, once the nation’s fifth-largest investment bank, they pointedly noted that the Fed never had the authority to monitor its financial condition or order it to bolster its protections against a collapse.

In two unprecedented moves, the Fed engineered a marriage between JPMorgan Chase and Bear Stearns, lending $29 billion to JPMorgan to prevent a Bear bankruptcy and a chain of defaults that might have felled much of the financial system.

For the first time since the 1930s, the Fed also agreed to let investment banks borrow hundreds of billions of dollars from its discount window, an emergency lending program reserved for commercial banks and other depository institutions.

But Mr. Paulson’s proposal would fall well short of the kind of regulation that Democrats have been proposing. Mr. Frank and other senior Democrats have argued that investment banks and other lightly regulated institutions now compete with commercial banks and should be subject to similar regulation, including examiners who regularly pore over their books and quietly demand changes in their practices.

In a recent interview, Mr. Frank said he realized the need for tighter regulation of Wall Street firms after a meeting with Charles O. Prince III, then chairman of Citigroup.

When Mr. Frank asked why Citigroup had kept billions of dollars in “structured investment vehicles” off the firm’s balance sheet, he recalled, Mr. Prince responded that Citigroup, as a bank holding company, would have been at a disadvantage because investment firms can operate with higher debt and lower capital reserves.

Senator Charles E. Schumer, Democrat of New York, has taken a similar stance.

“Commercial banks continue to be supervised closely, and are subject to a host of rules meant to limit systemic risk,” Mr. Schumer wrote in an op-ed article on Friday in The Wall Street Journal. “But many other financial institutions, including investment banks and hedge funds, are regulated lightly, if at all, even though they act in many ways like banks.”

Mr. Paulson’s proposal is likely to provoke bruising turf battles in Congress among agencies and rival industry groups that benefit from the current regulations.

Administration officials acknowledged on Friday that they did not expect the proposal to become law this year, but said they hoped it would help frame a policy debate that would extend well after the elections in November.

In a nod to the debacle in mortgage lending, the administration proposed a Mortgage Origination Commission to evaluate the effectiveness of state governments in regulating mortgage brokers and protecting consumers.

The bulk of the proposal, however, was developed before soaring mortgage defaults set off a much broader credit crisis, and most of the proposals are geared to streamlining regulation.

This plan would consolidate a large number of regulators into roughly three big new agencies.

Bank supervision, now divided among five federal agencies, would be led by a Prudential Financial Regulator, which could send examiners into any bank or depository institution that is protected by either federal deposit insurance or other federal backstops. It would eliminate the distinction between “banks” and “thrift institutions,” which are already indistinguishable to most consumers, and shut down the Office of Thrift Supervision.

Any effort to merge the Commodity Futures Trading Commission with the S.E.C. is likely to provoke battles.

Yet another proposal would, for the first time, create a national regulator for insurance companies, an industry that state governments now oversee.

Administration officials argue that a national system would eliminate the inefficiencies of having 50 different state regulators, who have jealously guarded their powers and are likely to fight any federal encroachment.

Arthur Levitt, a former S.E.C. chairman who has long pushed for stronger investor protection, said his first impression of the plan was positive. Even though the S.E.C.’s powers might be reduced, Mr. Levitt said, the plan would create a broader agency to regulate business conduct in all financial services.

“It’s a thoughtful document,” he said. “I’m intrigued by the fact that it puts an emphasis on investor protection, and that it establishes an agency specifically for that purpose, which would operate across all markets. I think that’s a very constructive first step.”

 

The last time the court issued a major decision on the right to bear arms was in 1939, when criminals wore fedoras.

Dahlia Lithwick

NEWSWEEK

Updated: 12:52 PM ET Mar 15, 2008

This week the Supreme Court will hear arguments in the most important gun-control case in 69 years. And almost lost amid all the political posturing on both sides of the case about the constitutional contours of the “right to bear arms” is the quiet, crucial fact that the high court is about to step into a cultural conflict for the first time in 69 years.

Think about it: abortion, homosexuality, affirmative action, separation of church and state, the death penalty. The court has waded into almost every hot-button social issue dividing this country.

And both conservatives and liberals suspect that in doing so, the high court has messed things up. Its most acerbic conservative, Justice Antonin Scalia, says the court should not conduct itself like an unelected superlegislature. It’s not for the court to invent new rights, it’s for the people: “You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it.”

A growing number of legal thinkers, including the University of Chicago’s Cass Sunstein, agree that judicial “minimalism” is preferable to resolving sprawling social problems with broad moral judgments. Many of the country’s pre-eminent liberal scholars believe that matters as important as abortion and segregation were better left up to the democratically elected branches; that the broad brushstrokes of the Warren Court launched a backlash still being felt today.

With District of Columbia v. Heller, these court critics may have fished their wish. The case tests the constitutionality of D.C.’s sweeping gun ban prohibiting handgun possession at home unless guns were registered before 1976, and requiring all guns—including rifles and shotguns—to be unloaded and either disassembled or bound by a trigger lock. Last year, by a 2-1 vote, a federal appeals court struck down the ban, claiming that the Second Amendment confers upon “the people” an individual right to bear arms, rather than a collective right to arm its militias.

Still, the most dramatic aspect of Heller may well be that the last time the Supreme Court issued a major proclamation on the right to bear arms, it was 1939 and the criminals in question sported fedoras and drove Packards. That makes this case a natural experiment in what happens when the Supreme Court butts out. If the gun fight is any indication, it’s not clear democracy moves to the driver’s seat when the court lets go of the wheel.

The Supreme Court determined in 1939 in U.S. v. Miller that an individual right to a gun had no “reasonable relationship to the preservation or efficiency of a well regulated militia,” and thus the Second Amendment did not confer individual rights to guns. The court followed this with many decades of constitutional radio silence on the subject. When faced with opportunities to revisit Miller, the court either upheld it or declined to hear appeals that would raise it. In the wake of that silence, 10 of the 12 federal appeals courts also sided with this “collective rights” view of the Second Amendment.

But in the face of the courts’ quiet resistance, a well-funded and powerful lobby group, the National Rifle Association, forcefully and effectively pushed the claim that the Second Amendment confers an individual right to bear arms. Four million-plus-members strong, the group has handed out millions of dollars and is credited with winning the 2000 election for George W. Bush. Whatever financial or political clout it has exhibited pales next to its legal influence: polls show that while a slight majority of Americans would support stricter gun laws, about 75 percent of them believe the Constitution confers a personal right to own a gun.

The vacuum created by the courts was filled not only with special-interest groups but, more recently, with legal academics intent on preserving strong individual rights under the Constitution. And according to Robert Spitzer, a political scientist at SUNY Cortland and author of “The Politics of Gun Control” (2003), the failure of the Supreme Court to revisit the question of the Second Amendment for decades in fact created “the allegation of some legal pathology; that the court was avoiding it or embarrassed by it.” That embarrassment prompted an important liberal thinker, Prof. Sanford Levinson of the University of Texas, to pen a 1989 law-review article in favor of a “strong reading” for the individual-rights theory of the Second Amendment. Other prominent liberals and libertarians have followed, many less interested in reshaping modern gun-control policy than insider constitutional housekeeping: you can’t be for strong individual constitutional rights, and treat the Second Amendment like elevator music. But when Robert Levy, a senior fellow at the Cato Institute and the engine behind the Heller lawsuit, determined the time was ripe to challenge the D.C. gun ban in court, one of the factors motivating him was this intellectual shift in the liberal academy.

So long overdue is Supreme Court scrutiny in Heller that the Bush administration has staked out one position, while Dick Cheney has taken another (rumors surfaced last week that the administration might change its position again at oral argument). But the more interesting question is whether, absent judicial pronouncements, large constitutional matters will be thrashed out by the people and the democratic process or by well-funded interest groups and well-meaning academics.

URL: http://www.newsweek.com/id/123509

Cal Thomas
Tribune Media Services
March 18, 2008

In his several explanations and denunciations of his longtime pastor, Democratic presidential candidate Barack Obama asks us to believe that he never heard any of the sermons in which the Rev. Jeremiah Wright asked God to damn America.

Neither was he present, he says, for the Rev. Wright’s message in which he said America got what it deserved on Sept. 11 because we bombed Hiroshima and Nagasaki to end World War II and have bombed other countries.

He apparently also missed the one about how America created AIDS. The implication appears to have been that it was a plot to wipe out blacks because the disease disproportionately affects African Americans.

Other church members must have told Obama what the Rev. Wright said, or he could have viewed the sermon on the church’s Web site. It appears many others besides just the Rev. Wright share this point of view. If one looks at the video, church members are standing, shouting approval and applauding. This is not one man speaking for himself. From the reaction, one can fairly conclude he is speaking for most, if not all, of the congregation. But not for Barack Obama, he says.

A statement issued by the church Sunday accused critics of attacking “the legacy of the African-American Church.” That is like excusing racism in some Southern white churches 50 years ago because of a “legacy” of bigotry. Hate from a preacher – black or white – can never be justified.

I have attended enough churches over the years that if I missed a Sunday service at which the pastor had said something as incendiary as the Rev. Wright, I would have heard about it and done more than denounce it. I would have left that church. Obama says the Rev. Wright is a “Bible scholar” and has spoken at seminaries around the country. He specifically mentioned Union Theological Seminary, which is theologically and politically liberal. Liberal seminaries teach a “social gospel” that is more social than gospel and more the earthly agenda of the Democratic Party than the Kingdom of God.

As the left attempts to peel off religious voters from their ties with the Republican Party, which has used and abused them, they are encountering some of the same pitfalls experienced by conservatives. These include outrageous statements from their own preachers. In the ’60s, some conservative preachers denounced Dr. Martin Luther King Jr., calling him a fellow traveler with communists. They opposed integration as “unbiblical.” In the late ’70s, they began a too-close association with Republican politicians who were all too happy to have their votes, but advanced little of their agenda, either because they could not, or because they would not.

The voice that black people should be listening to is not the Rev. Jeremiah Wright, but Bill Cosby. At Jesse Jackson’s 33rd annual Rainbow/PUSH Coalition conference in Chicago in 2004, and at many other venues, Cosby called on his fellow blacks to stop blaming the “white man” for their problems. Cosby suggested most of the problems in black America are caused by “what we are doing to ourselves.”

This is the attitude that appeals to others, especially whites, and makes them want to help poor blacks escape poverty. Blaming whites for black problems may empower the speakers, but it repels people who genuinely want to assist the disadvantaged.

Obama says the Rev. Wright is no longer among his campaign’s “spiritual advisers.” Obama should not be asked which of the Rev. Wright’s outrageous statements he disagrees with, but rather which ones he does agree with. That Obama remains a member in good standing of Trinity United Church of Christ indicates that he prefers the company of many people who have demonstrated that they believe what their pastor has said.

The religious left will get no further than the religious right in its attempt to use government and political power rather than the power of God. Political power can only empower itself and that is not real power. As with the right, the religious left will sully its primary message in favor of another kingdom (the world) and another king (a presidential candidate), which violates several biblical admonitions. By rejecting those admonitions, they are setting themselves up for frustration, disappointment and failure.

Associated Press
March 18, 2008

WASHINGTON — The Supreme Court today upheld the state of Washington’s open primary election system, a setback for the Republican and Democratic political parties in the state.

By a 7-2 vote, the court says the state may use a primary system that allows the top two vote-getters to advance to the general election, even if they are from the same party.

Washington never held a primary under the new system because of legal challenges.

“Wow!” Washington Secretary of State Sam Reed said when told of the decision. “That’s terrific! It means the people of the state of Washington are going to be able to control who gets elected through this process.”

Reed said the top-two system will take effect with the August primary election.

“This is a victory for the state of Washington,” he said.

Reed said the ruling sets a precedent that will allow other states to break political party control on primary elections.

“I think we’ll see it around the country,” he said.

Writing for the majority, Justice Clarence Thomas said that overturning Washington’s plan would have been an “extraordinary and precipitous nullification of the will of the people.”

In dissent, Justice Antonin Scalia said Washington’s system would cause a political party to be associated with candidates who may not represent its views. Scalia was joined by Justice Anthony Kennedy.

Under Washington’s system, all candidates for a particular office may list their political party preference after their names.

Lawyers for the political parties said David Duke has identified himself as a Republican, despite GOP repudiation of his racial views, while perennial presidential candidate Lyndon LaRouche has called himself a Democrat, despite wide disagreement with Democratic leaders.

In his majority opinion, Thomas wrote that “there is simply no basis to presume that a well-informed electorate will interpret a candidate’s party-preference designation to mean that the candidate is the party’s chosen nominee” or that the party approves of the candidate.

Thomas added that “we cannot strike down” Washington’s plan “based on the mere possibility of voter confusion.”

The major parties challenged the law in federal court, asserting a First Amendment right to select their own nominees without outside interference.

The top-two plan was created after state voters approved a law in 2004 allowing them to pick their favorite candidate for each office. The top two vote-getters would advance to the November general election, even if they are from the same party.

A federal judge and the 9th U.S. Circuit Court of Appeals in San Francisco struck down the election plan.

Washington state Attorney General Rob McKenna argued there was no evidence that the parties would be harmed, since they can publicize through advertising and other means which candidates they support.

Tuesday’s decision is the second of two this year on the rights of political parties. In New York, the justices said the state’s method of electing trial judges, which gives party bosses effective control of the process, does not violate the Constitution.

The top-two plan was intended as the replacement for Washington’s old “blanket primary,” in which voters could vote for one party for governor and another party for the state legislature, for example.

The Supreme Court threw out blanket primaries, to which the political parties also objected, in a case from California in 2000. The Washington state government and the Washington State Grange have been sparring with the political parties ever since. The Washington State Grange advocates for farmers and has a long history of supporting populist ballot measures.

The cases are 06-713, Washington State Grange v. Washington State Republican Party, and 06-730, Washington et al. v. Washington State Republican Party.

Our View: Ahern, in talk with teens, offers free speech lesson

At a glance •The First Amendment to the U.S. Constitution says: “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.” •In a 2007 survey, 58 percent of Americans said they would prevent protests during a funeral procession, even on public streets and sidewalks; 74 percent would prevent public school students from wearing T-shirts with slogans that might offend others; and 34 percent think the press has too much freedom. Source: First Amendment Center, www.firstamendmentcenter.org

March 12, 2008

The seven young people representing Planned Parenthood of the Inland Northwest traveled to Olympia for a firsthand lesson in civics. They came away with a firsthand understanding of free speech.

They hoped to lobby state Rep. John Ahern, R-Spokane, for more money for sex education. Ahern had other plans. In a meeting in his office with the teens, he said repeatedly: “By the way, I need to find out how many unborn babies were killed by Planned Parenthood.”

A parent of one of the teens filed a complaint with the Legislative Ethics Board. Last week, the board announced its dismissal of the complaint. Board attorney Mike O’Connell explained: “The legislator is entitled to his opinion and … there’s no ethical provision which addresses language which some people think to be offensive.”

The teens may be disappointed that Ahern wasn’t sanctioned. But their disappointment should be tempered by the lifelong lessons offered to them in that Jan. 21 meeting with the 6th District lawmaker.

The teens belong to Planned Parenthood’s advisory board. More and more agencies and organizations are asking teens to join their boards as advisory or full-fledged members. Teens add a different perspective, and they learn how adults function in the business and civic arenas. It isn’t always impressive.

Ahern discovered his foot in his mouth a few times this legislative session. And he seemed more amused than remorseful, though he did apologize for wondering, during a hearing on a gay rights bill, what would prevent a person from registering a dog as a domestic partner.

Ahern isn’t apologetic about his behavior with the students. He said he believes the parent who filed the complaint made a mountain out of a molehill. The students, according to the complaint, found Ahern’s words threatening, offensive and abusive. But the ethics board rightly found that Ahern’s words constituted his opinion, and opinion is protected speech.

Women and men in the United States have the right to speak eloquently or stupidly, profoundly or crudely. They also have a right to speak first and think later.

The teens can learn from Ahern what not to do when they become legislators visited by young people from their districts: Don’t speak abusively, even though you possess the ability – and the right – to do so.

President’s aide says CIA needs ‘valuable tool in the war on terror’

Dan Eggen
Washington Post
March 8, 2008

WASHINGTON – President Bush today will veto legislation meant to ban the CIA from using waterboarding and other harsh interrogation tactics and will argue that the agency needs to use tougher methods than the U.S. military to wrest information from terrorism suspects, administration officials said.

Bush’s decision to veto an intelligence authorization bill that contains the waterboarding provision is the subject of his weekly presidential radio address, to be broadcast today, the White House said.

“The bill would take away one of the most valuable tools on the war on terror: the CIA program to detain and question key terrorist leaders and operatives,” White House spokesman Tony Fratto said Friday.

Although long expected, Bush’s formal move to veto the bill reignites the Washington debate over the proper limits of U.S. interrogation policies and whether the CIA has engaged in torture by subjecting prisoners to severe tactics, including waterboarding, a type of simulated drowning.

The issue also has potential ramifications for GOP presidential nominee John McCain, R-Ariz., a longtime critic of coercive interrogation tactics who nonetheless backed the Bush administration in opposing the CIA waterboarding ban. The Democratic presidential candidates, Sens. Hillary Rodham Clinton of New York and Barack Obama of Illinois, both support the ban, though neither was present for last month’s Senate vote for the bill that Bush is to veto.

The legislation would have limited the CIA to using 19 less-aggressive tactics outlined in a U.S. Army field manual on interrogations. Besides ruling out waterboarding, that restriction would effectively ban temperature extremes, extended forced standing and other harsh methods that the CIA used on al-Qaida prisoners after the Sept. 11, 2001, attacks.

Bush and his aides have argued that the CIA’s “enhanced interrogation program” was crucial in uncovering terrorist plans and averting deadly plots. CIA Director Michael Hayden has also spoken out against the Senate bill and defended the methods as lawful and effective.

In a statement to the Washington Post, Hayden said the Army manual guidelines were intended for “a different population of detainees, a different group of interrogators, and for different intelligence needs” than those of the nation’s chief spy agency. The CIA has not specified all the tactics it wants to keep using but says it no longer uses waterboarding. Administration officials have not ruled out using the tactic again.

Many Democrats and human-rights groups say the tactics are often counterproductive and that, regardless, they constitute illegal torture under U.S. and international law. Senate Majority Leader Harry Reid, D-Nev., said Friday that Bush has “compromised the moral leadership of our nation,” and said the administration is ignoring the advice of military experts who oppose harsh techniques.

Retired Army Lt. Gen. Harry Soyster, a former director of the Defense Intelligence Agency, suggested that those who support harsh methods simply lack experience and do not know what they are talking about.

“If they think these methods work, they’re woefully misinformed,” Soyster said at a news briefing called in anticipation of the veto. “Torture is counterproductive on all fronts. It produces bad intelligence. It ruins the subject, makes them useless for further interrogation. And it damages our credibility around the world.”

In two separate forums earlier this week, FBI Director Robert Mueller III and Navy Rear Adm. Mark Buzby, commander of the military detention facility at Guantanamo Bay, Cuba, defended the efficacy of less-coercive, “rapport-building” interrogation tactics.

“We get so much dependable information from just sitting down and having a conversation and treating them like human beings in a businesslike manner,” Buzby told reporters in a conference call Thursday.

Kempthorne seeks compatibility with state laws

Richard Simon and Judy Pasternak
Los Angeles Times
February 23, 2008

WASHINGTON – In a victory for gun rights advocates, the federal government is preparing to relax a decades-old ban on loaded firearms in national parks.

Interior Secretary Dirk Kempthorne said Friday his department would suggest new regulations by the end of April that could bring federal rules into line with state laws concerning guns in parks and public lands. His announcement came in a letter to 51 senators who have written to him about the issue. A near majority of the Senate, including Democrats and Republicans from Western states, has backed a drive to repeal the ban, which has been in place in some parks for 100 years.

The proposed rule change might let visitors carry loaded weapons into national parks in states with few gun restrictions, such as Montana.

Gun rights advocates, notably the National Rifle Association, have said the ban infringes on their Second Amendment right to bear arms and their ability to defend themselves from predators, human and animal.

“If you’re hiking in the backcountry and there is a problem with a criminal or an aggressive animal, there’s no 911 box where you can call police and have a 60-second response time,” said Gary Marbut, president of the Montana Shooting Sports Association. “Here in Montana, we are very used to being able to provide for our own personal protection.”

Kempthorne’s decision to review the ban was hailed by the NRA. “This is an important step in the right direction,” said the organization’s chief lobbyist, Chris W. Cox.

On the other hand, the National Parks Conservation Association called Kempthorne’s action “alarming.” Tom Kiernan, the group’s president, said a loosening of the ban would be “a blow to the national parks and the 300 million visitors who enjoy them every year.”

His view is echoed by gun-control advocates and some rangers who say permitting firearms would be dangerous for visitors and wildlife and alter the national park experience.

“Parks have long been sanctuaries for both animals and people,” said Butch Farabee, a former acting superintendent at Montana’s Glacier National Park who is retired. “There need to be places in this country where people can feel secure without guns and know that the guy in the campground across the way does not have one.”

The federal government would not cede authority over firearms in national parks to the states, said Interior Department spokesman Chris Paolino, but would like to reflect the policies of host states. In drafting proposed new rules, Paolino said, the department also would take into consideration the ban on firearms in federal buildings.

“It’s important to note this is the beginning of the process,” Paolino added.

Weapons originally were prohibited in national parks to prevent “opportunistic poaching” of wildlife, said Frank Buono, a former assistant superintendent of California’s Joshua Tree National Park.

A 1908 Yellowstone National Park regulation, for example, required that visitors “having firearms, traps, nets, seines or explosives” surrender them at the entrance unless they received written permission from the park superintendent.

A similar policy was in effect at most parks for decades. Then the Reagan administration in 1983 required that visitors unload and store their firearms before entering most national parks.

Supporters of the repeal effort note that state gun laws currently apply to federal land managed by the Forest Service and the Bureau of Land Management, and they see no reason why that should not be the case in national parks and wildlife refuges.

So far, half the Senate seems to agree. Nine Democrats and 41 Republicans have signed letters to Kempthorne calling on him to lift the gun ban. “We do not believe that allowing law-abiding citizens to transport and carry firearms – rather than forcing them to disassemble or store them in their trunks – will increase the chances that they will be tempted to violate prohibitions on discharge,” one group of senators wrote.

Advocates believe it is, foremost, an issue of ending an unconstitutional infringement on their right to bear arms. But they also contend that park visitors are “increasingly vulnerable” to crime.

“While park rangers now use bullet-proof vests and automatic weapons to enforce the law, regular Americans in states where conceal-and-carry law exists are denied the opportunity for self-defense,” Coburn said in “talking points” distributed by his office.

The National Park Service says there were 116,588 reported offenses in national parks in 2006, the most recent year data are available, including 11 killings, 35 rapes or attempted rapes, 61 robberies, 16 kidnappings and 261 aggravated assaults.

Supporters also believe that gun owners should be able to protect themselves against dangerous animals, dismissing arguments that firearms would ruin the park experience.

Officials at Glacier – which recorded 10 deaths from grizzly bear attacks between 1967 and 1998 – said the last attack was in 2005, when a bear mauled two hikers. One of the victims, Johan Otter, of Escondido, Calif., said the idea that a gun could have stopped the 400-pound bear that charged him is naive. “We only had, like, half a second between seeing the bear and the impact,” Otter said.

Organizations that represent current and retired park workers oppose a repeal, saying it not only would endanger visitors, rangers and wildlife but would change the character of the parks.

Bill Wade, executive council chairman of the Coalition of National Park Service Retirees, said, “How many of you would want to go out there if you knew that people were running up and down the Appalachian Trail with guns?”

In Ohio, Clinton Has Small Edge

By Dan Balz and Jon Cohen
Washington Post Staff Writers
Friday, February 22, 2008; A07

AUSTIN, Feb. 21 — Sen. Hillary Rodham Clinton, facing a pair of big Democratic primary tests on March 4 that could determine the fate of her presidential candidacy, is deadlocked with Sen. Barack Obama here in Texas and holds a slender lead over him in Ohio, according to two new Washington Post-ABC News polls.

The closeness of the races in Texas and Ohio underscores the challenges facing Clinton over the next 12 days of campaigning as she seeks to end Obama’s double-digit winning streak in their battle for the Democratic nomination. Those victories have given Obama a lead in delegates to the national convention and have put Clinton’s candidacy at risk unless she can rack up a string of big victories of her own.

In Ohio, Clinton leads Obama in the new poll by 50 percent to 43 percent, a significant but tenuous advantage given the shifts that have taken place in advance of previous primaries as candidates intensified their campaigns. In Texas, the race is about even, with Clinton at 48 percent and Obama at 47 percent.

In recent contests in Virginia and Wisconsin, Obama cut into Clinton’s coalition, a potentially significant change in the Democratic race. At this point in Ohio and Texas, Clinton is doing better than she did in those states among her more reliable voters, but she has yet to make deep inroads into Obama’s core supporters.

The Post-ABC News polls show Clinton with solid support from white women, seniors, voters with less education and those with lower incomes in both Ohio and Texas. She holds a big lead among Hispanics in Texas. Obama has large advantages among independents, African Americans and better-educated voters in both states.

Clinton advisers have expressed optimism about her prospects in the two contests, but the new polls suggest that the momentum Obama achieved in his string of victories has turned both into true battlegrounds. Clinton’s husband, former president Bill Clinton, said this week that she must win Texas and Ohio to keep her candidacy viable.

In Ohio, the economy and health care are roughly tied for the top spot on voters’ agendas, while in Texas health care is the clear No. 1 concern, followed by the economy and Iraq. In Ohio, the war in Iraq also comes in third place, but far below the other two; just 9 percent of voters there called it their most important voting issue.

Obama and Clinton supporters in both states are highly enthusiastic about the candidates, and more than seven in 10 said they definitely will stick with the candidate they have embraced. But that leaves a sizable number of likely voters in both states either undecided or open to changing their minds between now and primary day.

The Democratic electorates in the two states hold both candidates in high regard, with more than seven in 10 saying they would be satisfied with Obama or Clinton as their party’s nominee in November. More than six in 10 said they believe either candidate could defeat Sen. John McCain, the presumptive Republican nominee, in the general election, although when they were asked who has the better chance, Obama came out ahead by 11 percentage points in both Ohio and Texas.

Democratic voters in both states are split evenly on the attributes they are looking for in a nominee — strength and experience, which have been Clinton’s calling card, or fresh ideas and a new direction, which embody Obama’s message. Almost eight in 10 Democratic voters favoring strength and experience in a candidate back Clinton, and roughly the same proportion of those seeking change opt for Obama.

Most in both states view Clinton as the stronger leader, but majorities in Ohio and Texas said Obama has the experience to serve effectively as president. About four in 10 said Obama does not have the necessary resume.

Obama holds only narrow edges in both states on the question of who “would do the most to bring needed change to Washington,” and about seven in 10 said Clinton would do enough to set a new course.

The two candidates run about evenly as the one more in touch with “people like you.”

On the issues, Clinton has big head-to-head leads on handling the economy and health care, while the two are more closely matched on dealing with the war in Iraq and immigration.

Obama campaign officials have argued that victories in Texas and Ohio alone would not be enough to put Clinton on a path to the nomination. Given Obama’s lead among pledged delegates, now in the neighborhood of 150, Clinton would need big wins to make real gains in the delegate count, because of Democratic Party rules that award delegates proportionally on the basis of the popular vote.

The Texas system in particular, which includes both a primary and caucuses on the same day, may benefit Obama, who has excelled in previous caucuses. Given the closeness of the race, that system will make it all the more difficult for Clinton to come out of the state with a big gain in the overall delegate battle.

But Clinton campaign officials counter that victories for her in Ohio and Texas would seed doubts about Obama because he would by then have lost the vast majority of the most populous states that have voted. The Clinton camp hopes such doubts would prompt the superdelegates — members of Congress, governors and party officials who have automatic voting rights at the convention and who may hold the balance of power in the nominating battle — to rethink the race.

The demographic contours of the two upcoming contests provide insights into what each candidate needs to do over the next two weeks to win.

Clinton holds sizable leads in Ohio and Texas among white women — 17 percentage points in Texas and a whopping 35 points in Ohio. She is doing well among white men in Ohio as well, leading Obama by 12 percentage points in that group. In Texas, Obama leads among white men by 10 points. If Obama were to stay stuck at 40 percent among white men in Ohio, it would be one of his worst showings among those voters since Super Tuesday.

Seniors break for Clinton by wide margins in both states; Obama’s only win so far among older voters was in Virginia, according to network exit polls.

Obama has overwhelming leads, roughly 4 to 1, among black voters in both states. But Clinton has solid support in the Hispanic community in Texas, leading Obama by about 20 percentage points among a group of voters who proved crucial in her victories in California and other Super Tuesday states.

Clinton is seeking to hold two other core groups in her once-strong coalition — less-educated, lower-income white voters and self-identified Democrats. By focusing on the economy, particularly in Ohio, she hopes to prevent the kind of shift to Obama seen in Wisconsin on Tuesday.

The Post-ABC News polls show her with wide leads among white voters with annual family incomes under $50,000 in both states, and with a 16-point advantage among those from union households in Ohio. She leads Obama by 11 points among white voters in Texas who do not have a college degree and by 38 points among those voters in Ohio. Obama will need to cut into that margin in Ohio if he hopes to overtake Clinton there.

Independents lifted Obama to many of his early victories, but he has also carried the support of mainline Democrats since Super Tuesday. These new polls, however, show Clinton leading Obama by double-digit margins among Democrats. Both Ohio and Texas hold open primaries, in which any registered voter may cast a ballot.

The polls were conducted by telephone Feb. 16 to 20, among random samples of 611 Ohio adults and 603 Texas adults likely to participate in the Democratic primaries in those states. Sampling-error margins are plus or minus four percentage points for the full samples; error margins are larger for subgroups.

Cohen reported from Washington. Polling analyst Jennifer Agiesta in Washington contributed to this report.

Kevin O’Brien

February 15, 2008

More than six years after Americans watched Muslim terrorists destroy the World Trade Center, damage the Pentagon and kill more than 3,000 innocents, the Bush administration is about to attempt justice for some of the high-ranking alleged perpetrators.

Six al-Qaida members, a cast headlined by Sept. 11 mastermind Khalid Sheikh Mohammed, are headed for trial by a U.S. military tribunal.

The questions before the court will involve 169 charges, including conspiracy, murder in violation of the laws of war, and terrorism.

The question before the nation is broader: Are we more interested in defending ourselves from terrorists or defending terrorists against intrusions upon their “rights”?

For the last five or six years, the defendants have lived at the U.S. detention facility at Guantanamo Bay. The key word in that sentence isn’t “defendants,” “detention” or “Guantanamo.” The key word is “lived.” That’s the thing they got to do that their victims didn’t.

I can’t help but feel a little apprehension about seeing them go before a court – even a military court. We haven’t done very well at justice in this war.

In fact, lawyers have provided some of the finest aid and comfort to the enemy that money can buy. In doing so, they’ve worked hard to sow confusion in Westerners’ minds about what constitutes justice.

War isn’t a courtroom drama. The calculations of the people who must save their own lives by pulling a trigger shouldn’t have to include, “What would a lawyer say about this?” Yet those calculations are made every day. But only by our side.

We ought to be ashamed that our own good men have been wounded and killed because hesitation is built into their rules of engagement.

We ought to be ashamed that American lives have been sacrificed to fears that some terrorist might file a lawsuit against his interrogators.

What we don’t need to be ashamed about – not for one second – is that Khalid Sheikh Mohammed got water up his nose before he cracked. By the standards of his own organization, which has a penchant for cutting off the heads of its captives and gleefully packing the videotapes off to Al-Jazeera – Mohammed says he himself wielded the knife that killed journalist Daniel Pearl – he’s gotten off pretty light, so far.

The people we’re fighting have never shown the slightest inclination toward playing by the rules of the Geneva Convention, or anything else that might pass for “civilized” warfare.

They do not wear uniforms, nor do they act under the auspices of any nation or government. They target civilians. They don’t mistakenly commit the occasional atrocity in the heat of battle. Rather, they strive for atrocities, planning them carefully for maximum loss of life and shock value.

Their most effective weapons are terror, stealth, propaganda and our own civilized sensibilities, which they understand perfectly, sneer at, and use against us at every opportunity.

And some of their most effective propagandists, unwitting and otherwise, are people who demand that Americans focus on the legal niceties of this war and the legal rights of enemies who find our laws quaint, silly and useful.

So, although there were worse ideas than leaving Mohammed and his boys to rot in the warm Cuban breeze, the complaints of the I-dotters and T-crossers have won them a day in court. It isn’t the court they would have preferred – a civilian trial court where the whole legal circus could have come to town. But with the military promising all kinds of openness and transparency, the defendants and their advocates probably will have ample opportunity to spew their venom and insult our intelligence.

With the legal strategizing and handicapping already well under way, the Telegraph of London offered this bit of odd phrasing: “Legal experts said the willingness of Mohammed, known as ‘KSM’ in intelligence circles, to take credit for terrorism could complicate the tribunal process.”

Complicate? Killers who brag about their murderous exploits usually simplify the process.

Then again, maybe those legal experts are hoping for an acquittal.

Leonard Pitts Jr.
The Miami Herald
February 14, 2008

You have no right to read this.

The First Amendment gives me the right to write it, but doesn’t necessarily give you the right to read it. Or so I was once told by an attorney. While the right to free speech certainly implies a corresponding right to hear what is being spoken, he said, the First Amendment doesn’t explicitly grant such a right. So theoretically, it could be argued that no such right exists.

The key word being “theoretically.” As a practical matter, the freedom to read whatever we choose is such an intrinsic part of our national character as to make legal theory superfluous. People would rise in outrage if government ever attempted to dictate what they read. Theory and reality are often two different things.

I bring up the First Amendment in order to discuss the Second. The Supreme Court is pondering what is expected to be a landmark ruling on that amendment which, for the record, reads as follows: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

At issue is whether a District of Columbia law banning handgun ownership is constitutional. The key question is this: Does the Second Amendment confer an individual right to gun ownership, or does it refer only to the right of a state to raise a militia? I’ve always thought the latter, a view buttressed by many legal rulings, including the Supreme Court’s, when it last weighed in on the subject, nearly 70 years ago.

But in a very real sense, and for reasons similar to those just mentioned, I also think that’s beside the point. Regardless of whether a right to individual gun ownership can be found in the Second Amendment, the perception of that right is so deeply ingrained that legal theory is – here’s that word again – superfluous. Do you really think, regardless of what the court rules, it would be possible to ban firearms on a national scale? I think any attempt to do so would lead to uprisings we can scarcely imagine.

What we have here, then, is another case of theory versus reality. It’s a confrontation that did not have to happen.

The problem with this debate is that it has always been defined by its most extreme voices, its most uncompromising, ideologically pure voices.

But what if gun control advocates got over the idea that getting the right ruling from the right court would magically make guns disappear? And what if gun advocates got over the notion that every attempt at firearms regulation is a step toward totalitarianism? Where might this debate go then?

What if supporters of gun control could concede that hunting is, for some, an honored tradition? That some people feel it necessary to have a weapon in the home for protection? That some entirely rational folks simply like guns?

Could gun rights people then concede that you don’t need an assault weapon to go deer hunting? And that manufacturers who flood poor, violence-prone neighborhoods with cheap handguns ought to be held accountable? And that guys who sell guns from the trunks of their cars are nobody’s friend? And that background checks and gun safety classes for new gun owners make us all safer? And that gun registration isn’t totalitarianism any more than a driver’s license is? And, most of all, that all of us are tired of seeing children shoot children with guns they never should have had access to?

It’s called compromise and no, it would hardly mollify ideological purists. It would not make guns disappear, nor acknowledge an individual right to bazooka ownership. What it would do, though, is recognize that ideological purity has its limits. That’s a good thing to remember.

When theory confronts reality, put your money on reality every time.

By Gregory Rodriguez

I imagine he said it as if he were confessing a deep, dark secret. And, of course (wink, wink), he had no idea his little confession would make the rounds. But when Sergio Bendixen, Hillary Clinton’s pollster and resident Latino expert, told the New Yorker after her win in New Hampshire that “the Hispanic voter–and I want to say this very carefully–has not shown a lot of willingness or affinity to support black candidates,” he started a firestorm of innuendo that has begun to shape how the media are covering the race for the Democratic presidential nomination in the heavily Hispanic Western states. After the Jan. 19 Nevada caucuses, in which Latino voters supported Senator Clinton by a ratio of nearly 3 to 1, some journalists literally borrowed Bendixen’s analysis word for word before going on to speculate about Barack Obama’s political fortunes in such delegate-rich states as California and Texas. Ignoring the possibility that Nevada’s Latino voters actually preferred Clinton or, at the very least, had fond memories of her husband’s presidency, more than a few pundits jumped on the idea that Latino voters simply didn’t like the fact that her opponent was African American. The only problem with this new conventional wisdom is that it’s wrong. “It’s one of those unqualified stereotypes about Latinos that people embrace even though there’s not a bit of data to support it,” says political scientist Fernando Guerra of Loyola Marymount University, an expert on Latino voting patterns. “Here in Los Angeles, all three black members of Congress represent heavily Latino districts and couldn’t survive without significant Latino support.” Nationwide, no fewer than eight black House members–including New York’s Charles Rangel and Texas’ Al Green–represent districts that are more than 25% Latino and must therefore depend heavily on Latino votes. And there are other examples. University of Washington political scientist Matt Barreto has begun compiling a list of black big-city mayors who have received large-scale Latino support over the past several decades. In 1983, Harold Washington pulled 80% of the Latino vote in Chicago. David Dinkins won 73% in New York City’s mayoral race in 1989. And Denver’s Wellington Webb garnered more than 70% in 1991, as did Ron Kirk in Dallas in 1995 and again in 1997 and ‘99. If he had gone back further, Barreto could have added longtime Los Angeles mayor Tom Bradley, who won a majority of Latino votes in all four of his re-election campaigns between 1977 and 1989. Are these political scientists arguing that race is irrelevant to Latino voters? Not at all. Hispanics, coming from many countries, are hardly monolithic; but all things being equal, Latino voters would probably prefer to support a Latino candidate over a non-Latino candidate, and a white candidate over a black candidate. That’s largely because they are less familiar with black politicians, as there are fewer big-name black candidates than white ones, and because, stereotypes not withstanding, many Latinos don’t live anywhere near African Americans. California, for example, which has the largest Latino population in the country, is only 6% black. Furthermore, in politics, things are never equal. “It’s all about context,” says Rodolfo de la Garza, a political-science professor at Columbia University. “It always depends on who else is running. Would Latino Democrats vote for a black candidate over a white Republican? Hell, yes. How about over a Latino Republican? I’m very sure they would.” Guerra says name recognition and the role of mediating entities such as unions, political parties and Latino elected officials are also important. For a well-known black politician or incumbent, there is little problem winning Latino voters. But when the candidate is not well-known, it helps to be endorsed by mediating institutions that people trust. Part of Obama’s problem in Nevada was that, apart from the late endorsement by the Culinary Workers’ Union, he didn’t have a lot of that institutional support. And though he has begun to build those relationships in California–including the endorsement of the Latina head of the Los Angeles County Federation of Labor–he may not have enough time to attain the kind of recognition among Latino voters that Clinton enjoys. But if there’s one thing we’re learning in this historic year, it’s that voters are even less easy to pigeonhole than candidates.

Rodriguez is author of Mongrels, Bastards, Orphans, and Vagabonds: Mexican Immigration and the Future of Race in America