While I've become more cynical thanks to tax class than the course made Jeremy, I do still think that the code is complex because people are constantly conniving, both to read the existing laws in such a way as to minimize tax burden, and to convince Congress to pass new laws for the same purpose. I suppose some tax shelters might be a form of protest against bad laws, but this is decidedly the exception rather than the rule. Nonetheless, people with such schemes may want to patent as soon as possible, lest someone else get the jump on them and later accuse them of infringement:
[A]n organization called Tax Strategies Group complains that John W. Rowe, the former chief executive of Aetna, infringed on its patent by using a certain type of trust to minimize taxes on profits from stock options. The group wants Mr. Rowe to be barred from using that strategy unless he buys a license from them.Wouldn't one always argue that a given tax strategy "was clearly authorized by the tax law," since the alternative seems to be, "Actually, this was a plan that was not clearly authorized by the tax law and is really quite dubious"? That seems to put the kibosh on patenting any such strategies, if they're either clearly authorized and thus obvious to any tax practitioner, or not clearly authorized and thus subject to litigation. (I suppose if one not only developed an extremely creative strategy but also went through the trouble of a test case, licensing it might be a fair way to cover the expenses.) Tax strategies seem to be a peculiarity in the general permission to patent business methods, since presumably most of such methods focus on interactions with the actual conduct of business -- everything from advertising to accounting -- as opposed to interactions with the government. Certainly there are a vast range of government interactions aside from taxes, such as HIPAA compliance for health-related businesses, but the idea behind patents for these is to make such interactions easier, not to stop turning in the required information. Would the PTO license a patent for a way to avoid paying its fees? Rules of confidentiality for attorney-client communications and tax filings further complicate the matter, since Mr. Rowe might have been using the strategy before it was patented, but unless his use of the method was public, that is no defense.
To patent lawyers, all this makes some sense. Others might see it as an example of judicial absurdity.
But if it is legal, the mind boggles at the possibilities. Could I get a patent on taking a deduction for dependents, so that every parent in America would have to pay a royalty to me to take advantage of the tax law passed by Congress?
I presume the patent office would find that obvious, and thus not patentable, but there are plenty of slightly more complicated strategies that might be patentable, particularly considering the fact that patent examiners may not be tax experts.
Indeed, Cheryl E. Hader, a partner at Ropes & Gray who represents Mr. Rowe, argues that the strategy he used was clearly authorized by the tax law and that no patent should have been granted.
More reason to link rather than steal people's ideas -- you don't have the FBI smash your door if you're only pointing to someone else's work. Boing Boing's reading of the existing TSA regulations would mean that Sen. Schumer's concerns and proposed legislation were unnecessary, i.e. that faking a boarding pass was illegal already. Given that Schumer's own website explained how to do it, Rep. Markey (D-MA) needs to backtrack even further on his desire to have such evildoers apprehended.
As predicted by a Republican who saw the New Jersey ruling that the state must permit either civil unions or same-sex marriage, and said, "Karl Rove looks like Cheshire Cat," the GOP is pushing the Either Vote For Us Or Buy a Toaster for Adam and Steve line in the last couple weeks before the election. This is unsurprising, given how much anti-same sex marriage ballot initiatives* were thought to have helped the Republicans get out the vote in 2004. However, the conservatives who really care about this issue already are grumpy that the GOP didn't put enough effort into a federal constitutional amendment to ban gay marriage, and presumably realize that one more blue state's giving rights to gay people -- and not necessarily rights to the word "marriage," just to the accoutrements thereof -- isn't necessarily good reason to vote for the party that didn't prevent it in the first place.
Speaking of '04 flasbacks...
* Am I the only person who was unconvinced by E. Volokh's arguments against the applicability of Romer v. Evans to these marriage bans? I'm with him on the implausibility of such bans' violating the First Amendment or a right to intimate association, but he dodges the issue often raised when a reddish state with a blue spot passes such a ban -- that is, the inability of government employers to give benefits normally associated with marriage to same-sex couples. If the University of Wisconsin-Madison is prohibited from treating domestically partnered potential employees as "married" for the purpose of giving them benefits, then it stands to lose some talented candidates. A state constitutional amendment that prevents same-sex couples not merely from getting married, but from being treated like a couple in any way except for cocktail party invitations, strikes me as approaching the unacceptable broadness evincing animus that Romer held unconstitutional. Volokh's remark,
Here, the law leaves state and local government free to enact bans on sexual orientation discrimination in lots of contexts. The government only mandates that marriage and similar institutions be reserved for opposite-sex couples; and this mandate is closely tied to the government's desire to reserve the special benefits of marriage for that sort of relationship -- a union of one man and one woman -- that Nebraskans think is particularly valuable to society, and thus particularly worth fosteringmisses the point. The law doesn't leave government free to enact bans on discrimination in the grant of benefits to same-sex workers; indeed, it insists that government perform such discrimination itself. Just as Aspen wouldn't be allowed to have an ordinance banning anti-gay discrimination under Colorado's Amendment 2, UW-Madison wouldn't be allowed to grant health insurance coverage to an employee's same-sex partner under an amendment like Nebraska's, which said, not that government never would be required to recognize same-sex unions, but that it never would be allowed to recognize them. To me, precluding others from non-discrimination looks exactly like Romer. I honestly would appreciate someone's poking a hole in my line of thought and showing why it doesn't work, because Romer is such an obvious problem with the anti-same-sex marriage amendments that someone must have come up with a good explanation of why it isn't really a problem.
Putting aside the debate below, I just want to note that in the upcoming Philp Morris v. Williams case, my mock SCOTUS class voted to AFFIRM the judgment of the Oregon Supreme Court. The Chief and Justice Alito did not disturb BMW and State Farm, but nevertheless felt that this case falls into one of the narrow categories of exceptions (i.e., grossly reprehensible conduct). Thus, Stevens, Kennedy, Souter, and Breyer would reverse, while Scalia, Thomas, and Ginsburg would affirm on completely different grounds. If this sort of an actual split occured, I really don't know who'd write a plurality. I'm assuming Roberts and Alito because it is the narrowest ground for announcing the judgment.
Personally I think the Chief and Alito are mistaken. I believe this case will be reversed and my guess is that the Chief himself will author the opinion.
PG notes in her post below that Chris Soghoian has created a fake boarding passs generator and she addresses the plausibility of actually getting through TSA security:
However, you'd still need to put your real name on the pass.
This is fundamentally untrue, although mostly unknown to most Americans.
Remember again, we are just talking about getting through the TSA security. As PG rightly notes you don't have to show any identification to get aboard the airplane. I'm going to quote myself from my other blog:
In January the 9th Circuit decided a case, (which is now on petition for cert. at the U.S. Supreme Court), Gilmore v. Gonzales. In this case the court said something very important about showing identification:
"As noted, we have reviewed in camera the materials submitted by the Government under seal, and we have determined that the TSA Security Directive is final within the meaning of § 46110(a). The Security Directive “imposes an obligation” by requiring airline passengers to present identification or be a “selectee,” and by requiring air- port security personnel to carry out the policy. The Security Directive also provides a “definitive statement” of TSA’s position by detailing the policy and the procedures by which it must be effectuated."
So, in fact you can easily get through the TSA security without any identification because the law says you can. You don't even need to create a fake boarding pass. (For those of you dubbious as to the veracity of this claim, I myself have gone through security without identification to test the law out without any problem whatsoever. Being a selectee means they blow air on you and swab your bag and in fact this line is always moving faster.)
So, in effect, the no-fly list is completely useless. Someone else can buy a ticket under their name and hand me their boarding pass. I can then get through security and board the plane without anyone ever checking my identification and violating no laws.
Adam Cohen just has not been abused enough for this mischaracterized blast from Civ Pro past: "These activist decisions, which give corporations valuable constitutional privileges, relied on the votes of conservative justices, who are supposedly skeptical of 'judge-made' rights. Justices Sandra Day O’Connor and Anthony Kennedy provided key votes for BMW. Justice Kennedy wrote the State Farm 'single-digit ratio' opinion, and Justice O’Connor and former Chief Justice William Rehnquist joined it." The criticism from a commenter on the WSJ law blog is close, but not quite on the mark -- it says, "The Times’ naming of O’Connor and Kennedy as two 'conservative' justices who were instrumental in forming this view of due process vis-a-vis punitive damages is particularly odd, though not unsurprising. No mention of the two justices who might rightly be considered 'conservative' having opposed the reading of a right to be free from punitive damages into the constitution?" Yes, Scalia and Thomas dissented in both BMW v. Gore and State Farm v. Campbell -- but so did Ginsburg. Toward the end of his piece, Cohen admits, "The question of whether there should be constitutional limits on punitive damages has proved difficult to resolve, and it has caused divisions in both the court’s liberal and conservative blocs. (It is one of the very few issues in which John Paul Stevens votes with corporations and Antonin Scalia votes against them.)" The opposition to having the U.S. Supreme Court set limits on how much state court juries can penalize corporations is not inherently conservative or liberal -- it is radical.
Justices like O'Connor, Kennedy, Stevens, Souter and Breyer are grouped together less for their partisan tendencies than for their inclination toward things seeming right. O'Connor's infamous balancing tests were the perfect example of this essentially moderate mindset: on the one hand there's X, on the other there's Y, and we're not going to go all out for either X or Y, but instead try to find the mushy middle. As I've noted before, this is really the way most people think anyway, which is why O'Connor was a fairly popular justice outside the academy and left and right wings. If you didn't have to memorize the four factors of her Newdow concurrence, you had little reason to begrudge them. Similarly, it's just common sense that $4 million in punitive damages for a harm that commanded only $4000 in compensatory is too much, and that $145 million in punitives for $2.6 million in compensatory (the jury's original award, reduced by the trial court to $1 million) is almost as disproportionate. Yet Scalia, Thomas and Ginsburg resolutely stake out the ground in which common sense is tossed aside in favor of their views of the Constitution.
Incidentally, Ginsburg's BMW dissent shows her style to be finer than Scalia's. She remarks,
The Court is not well equipped for this mission. Tellingly, the Court repeats that it brings to the task no 'mathematical formula,' no 'categorical approach,' no 'bright line.' It has only a vague concept of substantive due process, a 'raised eyebrow' test, as its ultimate guide. In contrast to habeas corpus review under 28 U.S.C. § 2254 the Court will work at this business alone. It will not be aided by the federal district courts and courts of appeals. It will be the only federal court policing the area. The Court's readiness to superintend state court punitive damages awards is all the more puzzling in view of the Court's longstanding reluctance to countenance review, even by courts of appeals, of the size of verdicts returned by juries in federal district court proceedings. And the reexamination prominent in state courts and in legislative arenas serves to underscore why the Court's enterprise is undue.C.f. Scalia's concluding paragraph:
The relationship between judicial application of the new "guideposts" and jury findings poses a real problem for the Court, since as a matter of logic there is no more justification for ignoring the jury's determination as to how reprehensible petitioner's conduct was (i.e., how much it deserves to be punished), than there is for ignoring its determination that it was reprehensible at all (i.e., that the wrong was willful and punitive damages are therefore recoverable). That the issue has been framed in terms of a constitutional right against unreasonably excessive awards should not obscure the fact that the logical and necessary consequence of the Court's approach is the recognition of a constitutional right against unreasonably imposed awards as well. The elevation of "fairness" in punishment to a principle of "substantive due process" means that every punitive award unreasonably imposed is unconstitutional; such an award is by definition excessive, since it attaches a penalty to conduct undeserving of punishment. Indeed, if the Court is correct, it must be that every claim that a state jury's award of compensatory damages is "unreasonable" (because not supported by the evidence) amounts to an assertion of constitutional injury. See TXO, supra, at 471 (Scalia, J. concurring in judgment). And the same would be true for determinations of liability. By today's logic, every dispute as to evidentiary sufficiency in a state civil suit poses a question of constitutional moment, subject to review in this Court. That is a stupefying proposition.Even when they're both dissenting, Ginsburg calls the majority's decision "undue" on its own terms, while Scalia races down the slippery slope to "stupefying."
Anyway, the point is that Cohen is missing the point. The Andrade v. Lockyer decision, in which O'Connor, Kennedy, Thomas, Scalia and Rehnquist decided that 50 years imprisonment for violating California's three strikes law by shoplifting is permitted under the Eight Amendment, actually sounds a lot like the BMW and State Farm cases. O'Connor's opinion for the majority says, with no obvious ironic intent: "Thus, in this case, the only relevant clearly established law amenable to the 'contrary to' or 'unreasonable application of' framework is the gross disproportionality principle, the precise contours of which are unclear, applicable only in the 'exceedingly rare' and 'extreme' case. The final question is whether the California Court of Appeal’s decision affirming Andrade’s sentence is 'contrary to, or involved an unreasonable application of,' this clearly established gross disproportionality principle." (emphases added) In other words, O'Connor, Kennedy and Rehnquist know that some numbers are too big, but they cannot tell you ahead of time which are too big, and so years in prison and millions in damages become subject to Potter Stewart's methodology.
As on most tort matters, Overlawyered is recommended reading.
Byron Calame, the current public editor (aka ombudsman) for the New York Times, seems OK except when he leans too heavily on his I'm An Old Newsman shtick. His criticism of Linda Greenhouse's Harvard speech is just, and my only change would have been to push the comparison to judges beyond this sentence, "It doesn’t seem all that different from the way judges and military officers, for instance, traditionally have been expected to exercise restraint in publicly expressing their personal views, especially about politics." Not only are judges expected to exercise restraint just to be polite, they also are called upon to recuse themselves from deciding cases in which they have publicly pre-judged the outcome. Obviously Greenhouse's objectivity isn't important as, say, the Supreme Court's, but her idea that "the hijacking of public policy by religious fundamentalism” and "the ridiculous actual barrier [to be built between the U.S. and Mexico]" are “statements of fact” is laughable. I'm a fan of Greenhouse's work, both in the Times and her Blackmun biography, and I agree with many of her political opinions, but I can see no way to distinguish her declaration, “I really felt I owed this audience [of fellow Harvard alumni] the respect to speak from the heart,” from a similar claim that Justice Scalia was just being real with the folks in Fredericksburg, including his son who's a Roman Catholic priest there.
However, Calame's retreat from supporting the Times's article on the Bush administration's banking-data surveillance program is less laudable. The ability to admit a mistake is a rare and admirable one, but he seems inclined to think, "Gosh, that reader did make a good point in criticizing the paper; I had better do the same" without much effort to refute said point. For example,
I became embarrassed by the how-secret-is-it issue, although that isn’t a cause of my altered conclusion. My original support for the article rested heavily on the fact that so many people already knew about the program that serious terrorists also must have been aware of it. But critical, and clever, readers were quick to point to a contradiction: the Times article and headline had both emphasized that a “secret” program was being exposed. (If one sentence down in the article had acknowledged that a number of people were probably aware of the program, both the newsroom and I would have been better able to address that wave of criticism.)"Secret" does not mean that no one is aware of it; it often means only that no one will acknowledge it. If I have a secret girlfriend, quite possibly many people are well aware that the relationship exists, yet I never admit to it. This makes it a poor secret in the sense of ensuring privacy for my affairs, but it does maintain uncertainty in others' minds that allows plausible deniability to remain. That the government was tracking bank transactions does not seem like much of a stretch for the terrorist mind, which is given to seeing conspiracy even when none exists. Anti-Jewish groups like al Qaeda probably assume the stereotype of Zionist bankers' cooperating with the government to undermine Muslims.
The government did not declare that it was conducting the surveillance, and marked it as classified and perhaps would have denied it had the question been asked of them directly. (That the Bush administration has not denied any of the Times stories regarding its surveillance indicates either more honesty than I would have credited, or a more complicated calculation that if it never denies anything, no one will know what its resources really are going toward.) Conservatives should have no difficulty with this distinction between a fact actually unknown and a fact officially shrouded, given their disdain for the notion that Valerie Plame's connection to the CIA was any secret. Sure, it might have been classified, but sheesh, didn't everyone in Washington know?
Chris Soghoian suggests that his Northwest Airlines Boarding Pass generator shows that "The TSA Emperor Has No Clothes," because of the ease with which one can generate a fake boarding pass that gets you past the first line of security, which does not use a scanner on the pass. (Unlike the attendant at the door before you board the airline, who does.) However, you'd still need to put your real name on the pass. As commenter Michael Stackpole pointed out when ABC's Blotter posted about the ease of forging online-printed boarding passes,
There's a flaw in this story. When I get on a flight, my boarding pass is checked against my ID. If my real name was on a no-fly list, I'd have to have fake ID that is under another name. And if I've gone to the trouble of getting fake ID, I'd have gone to the trouble of having my ticket issued under that faked name.Though Stackpole's remark isn't wholly accurate either. Boarding passes are checked against IDs at security, but I haven't had anyone standing at the door ask for an ID in years. The screening process to get on a plane is atomized: one person ensures that the names on your ID and pass match; another person ensures that the pass is real. For those thinking to try out the fake boarding pass, you may want to check on whether Sen. Schumer had any success with his proposed legislation to make such forgeries a federal offense.
"Congress shall have the power to...fix the standard of weights and measures." U.S. Const., Art. I, sec. 8. This weekend we will fall back to standard time for the last time in October. Next year, Daylight Savings Time will extend from the second Sunday in March to the first Sunday in November. Pub. Law 109-58. However in amending 15 U.S.C. 260a(a), the Energy Policy Act of 2005 did not amend subsection (b), which reads in full: "It is hereby declared that it is the express intent of Congress by this section to supersede any and all laws of the States or political subdivisions thereof insofar as they may now or hereafter provide for advances in time or changeover dates different from those specified in this section. Which brings me to my question: Why the hell aren't Arizona and Hawaii on DST? Has no federal court issued an opinion on this? Can daylight savings ever raise an adequate case or controversy? Should I have made this the topic of my writing requirement?
UPDATE: Subsection (c) is even better: "For any violation of the provisions of this section the Secretary of Transportation or his duly authorized agent may apply to the district court of the United States for the district in which such violation occurs for the enforcement of this section; and such court shall have jurisdiction to enforce obedience thereto by writ of injunction or by other process, mandatory or otherwise, restraining against further violations of this section and enjoining obedience thereto."
This leads me to believe that using standard time alone has been construed to mean that it is not a different changeover time or date. It's just not a changeover. I think this is bogus. Call me French, but I find it hard to believe that the national government cannot uniformly move the nation into DST.
It seems strange to me that I have to reiterate these words today 52 years after the U.S. Supreme Court informed the world in a 9-0 opinion that segregation is not an acceptable educational policy and that "separate educational facilities are inherently unequal." Brown v. Board of Education, 347 U.S. 483 (1954). But here I am once again bemoaning the inadequacy of the government to protect education from political manipulation. To quote Chief Justice Warren's Brown opinion again:
Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.That doesn't mean on some terms, but on ALL terms. This is being negated by the very people who have promised to uphold our rights to equal education:
For the first time in a generation, public schools have won broad freedom to teach boys and girls separately, stirring a new debate about equality in the classroom.For those of you who think that I am overreacting, keep reading the requirements:
The Education Department on Tuesday announced rules that will make it easier to create single-sex classes or schools, a plan that's been expected for almost three years. [link]
The new rules will allow same-sex education anytime schools think it will improve students' achievement, expand the diversity of courses, or meet kids' individual needs.Let me reiterate, separate is not equal. Although as a policy matter I have sympathy for the desire to create better learning environments for children and supposedly some children learn better in single-sex classrooms, I think it is safe to say that the laws of this land make it illegal to educate one portion of our children separately from the other.
Enrollment must be voluntary. And any children excluded from the class must get a "substantially equal" coed class in the same subject, if not a separate single-sex class.
Districts can also offer an entire school for one gender without doing the same for the other gender, as long as there is a coed school that provides substantially the same thing.
The decision of the House of Lords, that the Wall Street Journal's report on Saudi banks' monitoring of potential terrorist activity does not constitute defamation, probably will make Britain a less-favored forum for some libel suits that wouldn't hold up in America (like the one Richard Perle threatened against Seymour Hersh). However, its language seems designed to maintain the stream of suits against gossip rags that report on celebrities' sex lives. "The Lords said the Journal's story was in the public interest and was reported in a serious and responsible way... 'We need more such serious journalism in this country and our defamation law should encourage rather than discourage it,' Judge Baroness Hale wrote in her opinion." Is there really a "serious and responsible" way to claim that Tome Cruise is gay?
Other countries' judges and juries are less likely to give large awards, particularly of punitive damages, than the American justice system is. In other words, to win a lawsuit in the U.S. is quite difficult, but once you do, you potentially could bankrupt the publisher (as in NYT v. Sullivan's half a million dollars, or with Robert Welch Publishing having to sell property to raise enough money to pay Gertz). In Japan, in contrast, winning a libel suit is not difficult, but "The current standard award range of between ¥1 million and ¥5 million (US$10,000 to US$50,000) is not likely to seriously chill Japanese newsmagazine writing. If a Japanese libel victim were to pay the average fee of US$16,000 to sue a publication and were to win an amount that falls within the award range, he or she would actually walk away with significantly less, perhaps even losing money."
On a semi-related note, is it just me or is this Newsweek column verging on the unprofessional for a non-opinion piece? It says Saudi businessmen who file defamation suits "have opened up a new front in the terror wars," and that the family-run Al-Rajih Banking and Investment Corp. is "a Saudi group heavily involved in 'Islamic' banking activities." There's no need for the quotation marks, as Islamic finance is a respectable and increasingly well-established area of law and banking -- look it up, fools.
(Post title explained.)
Reacting to the Columbia melee that became a Daily Show segment and fulfilled conservatives' fantasies of the leftist Ivy League, the University Senate is considering whether to pass a resolution on free speech. I am fairly willing to interpret such idealistic statements in a kind and positive manner, but I sincerely could not figure out what it was supposed to mean.
RESOLUTION ON FREE SPEECH AT COLUMBIA UNIVERSITY
WHEREAS, Columbia University and its community has the responsibility to do everything possible to ensure that we all have the ability to express our intellectual freedom within our institution, and
WHEREAS, the Student Body of Columbia University has a right to invite speakers with varied points of view to campus, and it is unacceptable within our community, to take away someone else’s right to express their opinions and viewpoints, and
WHEREAS, the Student Affairs Caucus represents the entire student body of Columbia University,
THEREFORE BE IT RESOLVED that the Student Affairs Caucus stands behind the principles of free speech on campus, and demands that the Columbia University Community stand firm in our commitment to allow all views to be heard.
It clearly is against forbidding any viewpoint from being expressed at Columbia, but that doesn't really help. The protestors themselves keep saying that they didn't try to keep the Minutemen from coming to Columbia, nor did they attempt to remove the Minutemen from campus once they were here. The protestors' defense is that they, too, were expressing their viewpoint -- they just happened to be expressing it in the same time and space that the Minutemen were attempting to express theirs. As one protestor put it in her Fox News interview (question: has anyone calculated whether it's the Republicans or the protestors who are closer to running out their 15 minutes of fame?), the sponsors of the Minutemen event "shut themselves down," having sensibly realized that no real speaking could occur with the level of noise and proximity of protestors. Until the Senate proposes actual guidelines* that all student groups are mandated to follow or risk losing funding and recognized status, its resolution will have neither meaning nor bite.
- Requirement that all groups bringing speakers offer a response time to those wishing to present the opposing viewpoint;
- Requirement that students, while attending an event, not bring protest material (signs, puppets, etc.) and must constrain their own speech to the Q&A period or response time, and penalizing any student organization -- including those led by people claiming to act individually (though the organization can retain its status and funding if it removes the individual from leadership and membership) -- who does otherwise;
- Rather obviously, the requirement that all students attending an event who are not scheduled speakers remain in the seating area, and that Columbia security will be authorized to publicly spank those who leave it. Not spank them hard, more like a birthday spank, just by way of saying, "Either your parents didn't raise you right, or it didn't take effect if they tried, so let's give it another shot."
At least, I assume that's the rationale behind what otherwise seems like a non sequitur:
Steele said the post-Katrina workload on his short-staffed office has been intense, with just four project managers available to oversee work in the six Mississippi counties: Hancock, Harrison and Jackson, which abut the Gulf of Mexico; and Pearl River, Stone and George to the north. The Corps is also grappling with a June decision by the U.S. Supreme Court that muddied the federal agency's authority in regulating virtually all of the nation's wetlands, a sweeping power it had claimed under the 1972 Clean Water Act.(Neat use of metaphor with the "muddied" there.) I have a mental image of the Army Corps getting recent Supreme Court decisions about their wetlands jurisdiction and mutter, "To hell with all y'all, we ain't regulatin' anything, see how you like that!"
I have to admit that although I know that writing is probably the most important clas that I'm taking, I hate it with a passion that cannot be understated. I thought this opinion out of the 5th Circuit makes it pretty clear how powerful writing can be however. The dissenting opinion was so well written that the majority vacated their own opinion and adopted the dissent:
The panel majority has sua sponte reconsidered arguments made by the dissenting opinion and has concluded that they are well taken. As a result, we now withdraw our original panel majority opinion and the dissenting opinion, replacing them with the following unanimous opinion, which affirms the Order of the district court denying suppression as well as its judgment of conviction by guilty plea and the sentence imposed.
[hat tip: Howard Bashman]
Today in History (1973) - The Saturday Night Massacre.
I was reading a submission to my journal and thinking, "Yes, the legal system needs more education in being sensitive to domestic violence survivors, yada yada, like this hasn't been said for longer than my lifetime." Then I read this news article:
Will a fancy dinner make up for family violence on Christmas Day? A Georgia judge thinks it might.OK, so judges are dumber than I realized.
A woman and her two young children will get a special Christmas dinner at one of Atlanta’s most expensive restaurants this year -- courtesy of a Rockdale County judge who imposed that sentence on a man charged with family violence on Christmas Day.
“Basically you were hung over and didn’t want to be involved in some activities your wife planned,” Chief Superior Court Judge Sidney Nation told Wendell Jerome Herman Rogers II. “You acted up and ruined Christmas, so this year you’re going to make it up to them.” ... Attorneys said dinner at a top restaurant with his wife and two children could set him back more than $300.
"A group of first-year law students at the University of Texas at Austin has been chided by the dean for participating in a “Ghetto Fabulous”-themed costume party and posting pictures from it online."
I leave you with this quote from our beloved Buffalo Wings & Vodka and then I'm turning off comments.
Has anyone made this joke yet:
"Students accused of being racist for parodying black culture by wearing "afro wigs" denied the charges of insensitivity, claiming that they wore the afro wigs "not to impersonate black people . . . but to impersonate Dean Sager."
Because, if not, somebody should.
Despite the cliche that 1L year is the worst, I am much busier this semester than I was two years ago, or six years ago, and so I am not engaging in any election day activities. No going door-to-door for Democratic candidates, and it's not because I'm a little discouraged that the only candidate for whom I canvassed back in college who actually won an election has decided not to bid for the 2008 presidential nomination. (Maybe it was the peculiar magic of his running in an odd-numbered year with no federal Dems on the ticket to jinx him?) No Election Protection, even though my own experience at the polls in Ohio in 2004 reassured me that at least there had been no malfeasance at my precinct.
So I deleted the partisan e-mail from the law school Democrats asking me to join a free trip to Pennsylvania, despite my interest in the Senate race, and am ignoring the encouragement of Working Assets/ Act for Change to "organize non-partisan neighborhood celebrations on Election Day at or near polling stations." This year, just figuring out whether to vote for Kinky is enough work. I'm also a little doubtful about whether throwing a party near a polling site is appropriate. I don't particularly want to encourage voting from people who will change their minds about whether to exercise the franchise based on a donut or pizza; if I'm going to give my time, I'd rather provide transportation, or child or eldercare -- things whose lack legitimately keep people who would like to vote from doing so. I suppose one could say that the provision of donuts or pizza will allow voters to save the time they otherwise would have to spend on getting a meal themselves, but then presumably it ought to be healthy food.
I don't like the sense of having to bribe or coax people to vote, but I do like to see communities that are enthusiastic about elections. For example, Sussex County's return day is pretty cute:
Join history in the making when the winning and losing candidates from Election Day 2006 (November 7) ride together in open horse drawn carriages and antique automobiles in a biennial parade 200 years in the making. The PARADE steps off at 1:30 p.m. starting at Sussex Central Elementary School (former high school)proceeding east on Market Street around the historic Circle, turning at Grace United Methodist Church then west on Pine Street back to Sussex Central Elementary School. After the parade join Delaware's political leaders on the Wilmington Trust Main Stage on The Circle in front of the historic Sussex County Courthouse (circa 1837) to hear the Town Crier deliver the returns from the Courthouse balcony. The dramatic "Burial of the Tomahawk" by Sussex County's party chairmen officially ends Delaware's political season.You'd almost think they didn't get HBO.
As previously noted, the texts of the 15th and 19th Amendments are the same except that where the former says, "race, color, or previous condition of servitude," the latter says, "sex." Yet for some reason the listing of amendments on Cornell's Legal Information Institute website paraphrases them quite differently: "Amendment XV [Rights Not to Be Denied on Account of Race (1870)]" versus "Amendment XIX [Women's Right to Vote (1920)]." Anyone know why the voting rights amendments are paraphrased so differently?
Hearing that another misguided California convert had been charged with treason, I was reminded of the dissent in Hamdi v. Rumsfeld, where Justice Scalia -- joined by Justice Stevens -- staked out a position that would have granted even more rights than the majority's opinion did:
Where the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime. ... The Founders inherited the understanding that a citizen’s levying war against the Government was to be punished criminally. The Constitution provides: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort”; and establishes a heightened proof requirement (two witnesses) in order to “convic[t]” of that offense. Art. III, §3, cl. 1.
In more recent times, too, citizens have been charged and tried in Article III courts for acts of war against the United States, even when their noncitizen co-conspirators were not. For example, two American citizens alleged to have participated during World War I in a spying conspiracy on behalf of Germany were tried in federal court. See United States v. Fricke, 259 F. 673 (SDNY 1919); United States v. Robinson, 259 F. 685 (SDNY 1919). A German member of the same conspiracy was subjected to military process. See United States ex rel. Wessels v. McDonald, 265 F. 754 (EDNY 1920). During World War II, the famous German saboteurs of Ex parte Quirin, 317 U.S. 1 (1942), received military process, but the citizens who associated with them (with the exception of one citizen-saboteur, discussed below) were punished under the criminal process. See Haupt v. United States, 330 U.S. 631 (1947); L. Fisher, Nazi Saboteurs on Trial 80—84 (2003); see also Cramer v. United States, 325 U.S. 1 (1945).
The modern treason statute is 18 U.S.C. § 2381; it basically tracks the language of the constitutional provision. Other provisions of Title 18 criminalize various acts of warmaking and adherence to the enemy. ... The only citizen other than Hamdi known to be imprisoned in connection with military hostilities in Afghanistan against the United States was subjected to criminal process and convicted upon a guilty plea. See United States v. Lindh, 212 F. Supp. 2d 541 (ED Va. 2002) (denying motions for dismissal); Seelye, N. Y. Times, Oct. 5, 2002, p. A1, col. 5. ...
Several limitations give my views in this matter a relatively narrow compass. They apply only to citizens, accused of being enemy combatants, who are detained within the territorial jurisdiction of a federal court. This is not likely to be a numerous group; currently we know of only two, Hamdi and Jose Padilla. Where the citizen is captured outside and held outside the United States, the constitutional requirements may be different.
Some conservatives are hoping to make hay of Senate Minority Leader Harry Reid's selling property to an LLC for the same price he'd paid to buy it, taking an ownership share in the LLC and gaining his profit from the ultimate disposition of the property, without informing Congress of the intermediate steps between his initial purchase and the final sale. Reid apparently continued to report himself as still the direct owner of the property, rather than as a shareholder in a corporation that owned the property. Sadly, after just half a semester of a tax course, I have trouble seeing this as terribly shady. Once I would have, and perhaps most Americans still retain my old innocent perspective that of course one never should take an action in order to minimize tax consequences.
Now, my only reaction is a contemptuous wonder that Reid is still so green as to continue to report his finances as they would seem to the average person, instead of as the elaborate charade of partnerships, trade-offs with untaxed entites (the professor explained arbitrage last week) and corporations existing solely to have assets transferred in and out of them that tax lawyers work so hard to create. There is no allegation that Reid attempted to hide any money he had made; the scandal is that he didn't lay out the whole mechanism in his ethics reports. Does he have any idea how many hours normally would be billed in building this? Show some respect for hard working tax attorneys, Senator!
In a similar vein, Sen. George Allen's neglecting to mention in 1999 that he had Xybernaut stock options, considering that those options never were exercised, in itself strikes me as fairly harmless. He filed amendments disclosing the options for his 2000 and 2001 returns, so it's not like we didn't know that he had ties to the company when he wrote a letter to the U.S. Army on Xybernaut's behalf in December 2001. Must have been a good letter, too; though the company's never had a profitable quarter, in September 2003 the U.S. Defense Department announced $2.13 million in contracts to buy the company's wearable computers. Indeed, the only part of the story that bothers me is Allen's jingoistic justification for keeping corporate disclosure rules loose:
In the Senate, Allen opposed an accounting rule change that requires companies to list options as an expense on their financial reports. Allen co-sponsored a measure to block the rule change and in a hearing that year linked the awarding of stock options to increasing the security of U.S. troops in Iraq. He said stock options make investments in technology companies more attractive, leading to innovations that helped make "it safer for our men and women in uniform."Now that I hear a technologically-oriented former employer may be in trouble for its stock option grants -- rank-and-file employees there also could buy shares at lower prices in a given period -- I feel guilty for not doing more for the troops to justify my purchases.
Today in History (1883) - The U.S. Supreme Court declares part of the Civil Rights Act of 1875 to be unconstitutional. One hundred eight years later, the majority Democratic Senate votes to confirm Judge Clarence Thomas to the Supreme Court, 52-48.
There's a supposed correlation between hemlines and stock prices: they tend to go up and down together. An e-mailer today wondered whether the relationship between grants of certiorari to cases in which a business is involved and won in the lower courts, and its stock price, might be inverse: if the case goes to the Highest, will the business's stock do the reverse?
The immediate catalyst for this thought was a Law.com article on Stephen Breyer's selling Duke Energy stock before the Supreme Court voted on whether to take Environmental Defense v. Duke Energy Corp.. Justice Breyer did so on behalf of a skirt -- specifically, his wife Joanna, the actual owner of the shares . David Lat doesn't find a non-recusal story newsworthy, though don't be surprised if you see a Republican claim that Breyer either should have sold as soon as he knew the Court would review the case, or should have a blind trust for his wife's assets as well as his own.
Nonetheless, there's a nice empirical question. What effect do appellate grants of certiorari have on share prices for businesses involved in the litigation? It doesn't seem likely to come up in securities litigation, as the agency decisions sometimes do, because brokers, executives et al. are unlikely to get advance notice or warning about whether cert will be granted, whereas they do tend to have a pretty good idea as to whether the FDA's inclined to declare a product unfit for the market. (Speaking of Breyer...) Despite what's said about the anti-democratic nature of the judiciary, it's nonetheless quite public; an agency may keep an investigation quiet and give little public notice, but the briefs, motions, orders and decisions in appellate cases seem to be almost equally available to non-insiders.
 It's a retrograde rudeness to refer to any woman as a "skirt," but hopefully if Dr. Breyer ever sees this, she will understand the temptation to maintain theme.
In the latest iteration of Article III judge worship , Stuart Sierra and Columbia Law professor Tim Wu have produced Project Posner, a searchable database of opinions by 7th Circuit judge Richard Posner. While not a particularly useful innovation for law students with free Westlaw and Lexis access (who can make OPINIONBY Posner a search limitation), it's a cute website and helpful to 0L bloggers just developing their Posner obsessions. Note that it collects only almost all of his opinions; some of his greatest hits, like the debate  with Easterbrook about whether nude dancing is art (because the dance of seven veils in Salome is) or merely obscenity (like a streetcorner flasher with rhythm and a boombox), are unavailable.
 "Chief Judge Posner feels less constrained by precedent, history, and the proper limits on appellate judging than, in the Council’s view, he should. . . . He wrote in [his book about Benjamin] Cardozo ‘the appellate judge is the central figure in Anglo-American jurisprudence.’ Whether or not that claim is accurate, it is instructive as a statement of Chief Judge Posner’s self-image.” -- Chicago Council of Lawyers, 1994. When conservatives whine about activist judges, why doesn't Posner show up their hitlists? He seems like the one judge who embraces the title.
 This resulted in the Supreme Court decision Barnes v. Glen Theater, or what First Amendment scholar Vincent Blasi dubbed, "Six Conservatives in Search of the First Amendment: The Revealing Case of Nude Dancing."
I confess that I align more with former Supreme Court Justice Sandra Day O'Connor in concern about judicial independence than I do with Eleventh Circuit Judge William Pryor Jr., so the following should be read with that grain of salt. But I did find his WSJ op-ed declaring that independence not to be "under siege" a little untruthful in its presentation of a couple of facts. Declaring, "Contemporary criticisms of the judiciary are relatively mild," Pryor says,
There have been recent and reprehensible incidents of violence and threats against judges, but we should not forget that those kinds of terrible crimes have occurred before. I work, for example, in the former chambers of the late Judge Robert Vance, who was murdered by a mail bomber in 1989. These offenses typically involve disgruntled litigants or dangerous criminals, not harsh critics of the judiciary as a whole. I am grateful that Congress reacted swiftly to these recent threats by providing home security systems for federal judges, which suggests that the public still appreciates the need for an independent judiciary.Judge Robert Vance was tragically killed as part of a string of mail bombings that targeted individuals and entities whom the convicted bomber, Walter Leroy Moody, Jr., regarded to be civil rights proponents. TIME magazine's speculation that Vance was being punished for his actions as an appellate judge appears to have been correct, and one of Pryor's predecessors as Alabama Attorney General, Jimmy Evans, described Moody as having mounted a "terrorist attack" on the judiciary. I suppose anyone who murders another person is properly deemed a "dangerous criminal," and presumably Pryor meant specifically criminals who appeared before the judge they killed. Moody, however, never appeared before the Eleventh Circuit he had threatened as a whole with another mail package two days after Vance's death, this one disarmed by police before it could reach the court. Moody himself claimed that the bombings were the Klan's revenge against the Federal court system for its handling of a lawsuit. Angry litigants and criminals see the trial judges who have presided over their losses, and their grudges are likely to be personal, but threats to appellate judges seem more political. This makes sense; it is, after all, the appellate judges who are interpeting the law for millions of Americans.
Similarly, Pryor seems to miss the distinction between ire at appellate judges' "making" law, and annoyance with the excesses of the American trial system: "Readers of this publication need no reminder about the potential for judicial abuse. Time and again, the business community has turned to Congress and state legislatures to reform tort laws, class actions and securities litigation, to name a few. These efforts are a healthy part of our democratic process and a recognition of the fallibility of the judiciary." As a general rule, these are not problems created by judges -- though perhaps judges do not exercise their powers to correct abuses as much as they might -- but by plaintiffs and juries (and maybe attorneys). They represent the fallibility of the judiciary, as a body of judges, less than they do the fallibility of a system so dependant on the discretion of individuals.
What bothered me most is that Pryor simply ignores the specific examples O'Connor notes of attempts to trim judicial independence. He says, "I am grateful that Congress reacted swiftly to these recent threats by providing home security systems for federal judges, which suggests that the public still appreciates the need for an independent judiciary," without mentioning that Congress also has passed legislation to strip the federal courts of jurisdiction, and suggested laws that would punish judges who cited foreign law.
In this context of Congressional unfriendliness, Pryor also omits Senator John Cornyn's (R-TX) infamous remark,
"I don't know if there is a cause-and-effect connection, but we have seen some recent episodes of courthouse violence in this country. . . . And I wonder whether there may be some connection between the perception in some quarters, on some occasions, where judges are making political decisions yet are unaccountable to the public, that it builds up and builds up and builds up to the point where some people engage in, engage in violence. Certainly without any justification, but a concern that I have.I do agree with Breyer and Pryor that the rule of law and practice of judicial review are sufficiently established in most Americans' minds that we rarely have to fear mass disobedience; not only Alabama, but the nation generally, "has come a long way since the days of Governor Wallace standing in the schoolhouse door." What may be more worrying is the "John Marshall has made his decision; now let him enforce it!" story of Andrew Jackson's defiance of a Supreme Court decision. I've already remarked the legislative branch's attitude toward to the Supreme Court, and the executive hardly seems more genuinely respectful. I doubt the Bush Administration ever would make such a declaration honestly, but there must be some equivalent to the signing statement that would permit them to avoid abiding by another branch's decision without openly refusing to do.
The Washington Post notes some history about waterboarding of which I was previously unaware:
- In 1947, the United States charged a Japanese officer, Yukio Asano, with war crimes for waterboarding an American, and he was sentenced to 15 years of hard labor. Though the Post article says the victim was a U.S. civilian, the only record I found about the trial says he was punished for actions against POWs. Regardless, both civilians and POW are statuses that alleged terrorists cannot hold. The Bush Administration's handy "enemy combatant" designation ensures that even if such a technique were used on someone like Hamdan, who has been charged only with serving as Osama Bin Laden’s bodyguard and personal driver, buying vehicles and delivering weapons to al Qaeda, it cannot have been a war crime.
- After Vietnam, Navy SEALs and Army Special Forces tried to train soldiers to resist interrogation even under waterboarding, but the "waterboarding proved so successful in breaking their will, says one former Navy captain familiar with the practice, 'they stopped using it because it hurt morale.'" It still leaves open the question of whether breaking someone's will results in useful, truthful information; U.S. pilots in the Korean war who were subjected to "touchless torture" confessed to a bogus plan to use biological weapons against the North Koreans. (Who wants to bet that North Koreans still believe this was a genuine plot?)
- The CIA says that waterboarding was how they got Khalid Sheik Mohammed, to talk, though a "former senior intelligence official" says not all of the information was reliable.
Anyway, the White House says we can't know whether waterboarding is still permitted, because we don't want the terrorists to know and turn out to be better than our military in training people to withstand it during interrogation.
Today in History (1986) - United States District Court Judge Harry E. Claiborne becomes the fifth federal official to be removed from office through impeachment, and the FOX Network begins broadcasting.
Some Columbia Law School organizations may hold an event at which sex toys will be sold, with the idea being to promote sexual choice and safety and further discussion about legislation and recent court decisions regarding obscene devices. It sounds like a better idea than the "Tent of Consent" popular among undergraduates, though I would have been amused if the law school had had such a tent, solely because it would upset alumni assumptions.
Yesterday the Supreme Court refused certiorari, without comment, on 05-1574, Acosta v. Texas. Ignacios Acosta is an employee in an El Paso adult bookstore who was arrested after he sold an "obscene device" to an undercover cop. The El Paso County Criminal Court dismissed the charge against him because it decided that the Texas statute prohibiting promotion of obscene devices was
unconstitutional. The Court of Appeals, 8th District of TX, reversed the dismissal. The petition for writ of certiorari is at SCOTUSblog. I wouldn't have been wholly surprised if the Court had taken it, as there's a split among various courts as to whether such statutes are invalid under the federal Constitution post-Lawrence.
The inquiry begins with the question of whether laws that prohibit giving someone a sex toy are interfering with sexual privacy, as long as they do not prohibit possession or use of sex toys. The courts seem to agree that, as the Eleventh Circuit said in upholding Alabama's ban, "For purposes of constitutional analysis, restrictions on the ability to purchase an item are tantamount to restrictions on the use of that item." Yet despite the Acosta petition's attempt to make all the state statutes sound the same, the Alabama law is very different from Texas's. The former "proscribes a relatively narrow bandwidth of activity. It prohibits only the sale -- but not the use, possession, or gratuitous distribution -- of sexual devices." The Texas law, in contrast, prohibits a fairly broad spectrum of activity: "a person commits an offense if, knowing its content and character, he promotes or possesses with an intent to promote any obscene material or obscene device... 'promote' means to manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise, or offer or agree to do the same."
I disagree with the idea that "restrictions on the ability to purchase an item are tantamount to restrictions on the use of that item." I am restricted from buying a kidney, but I am welcome to have one donated to me for my use should mine fail. I am restricted from paying for the sexual use of another person's body, but I am not restricted from making such use for free, even for homosexual sodomy, thanks to Lawrence. Since the end of Lochner, legislatures can restrict the number of hours a paid employee must work, but to my knowledge cannot restrict volunteer labor. The police power over economic matters is tremendous, as accords with the state's responsibility to enforce contracts and otherwise keep the gears of commercialism running smoothly. If prostitution became like any other service, a 'ho who took my money and failed to provide sex could be sued for breach, whereas my unpaid significant other cannot be civilly penalized for the same failure.
Even aside from my own idiosyncrasies about commercial activity, the Acosta petition is not wholly honest about the right of privacy precedents it cites. The restrictions struck down in Griswold, Baird, Roe, Carey and Casey were total prohibitions, not ones specific to commercial activity. Particularly in Baird, the vaginal foam in question was distributed for free to unmarried women who attended a discussion, not sold. If abortion protestors only harassed the clinics and threatened the doctors whom women paid for their abortions, I suspect that abortion would become a donation of medical services with charitable funding from feminist groups. Abortion also is intensely different from sex toys and contraceptives because it is a service rather than a good that could be sent by mail. All of these bans, like the Texas law against "promoting" dildos, are total rather than particular to commercial activity.
The Texas law, therefore, is defective not in its application to Acosta, but in being written so broadly, and that might provide the Court with reason to wait until someone gets arrested for loaning (!) a sex toy to a friend.
 The employee went astray by telling the cops that the toy would give a woman an orgasm. These toys are able to remain in shops because they normally are marketed as "novelty" items. Training for employees in these stores ought to include a rule against ever admitting that any of the devices might be used for sexual purposes.
 If I remember the Texas statute correctly, however, it employs the same logic as drug prohibition and declares that anyone in possession of an excessive number of sex toys is presumed to be intending to sell them.
Jumping off the Volokh discussion, Will Baude is "baffled by this chart from the VA's website, which lists all of the available emblems except the symbol of the scientologists and the 'MUSLIM (Islamic 5 Pointed Star),' which it claims it does not show 'because of copyrights.'"
I think the VA is referring to the Druze star, but that's shown (on Wikipedia, at least, in a picture) which presumably the alleged copyright holder would have stopped by now. Of course, there are also the Baha'i, but that makes even less sense.First, Christian Scientists are the group whose symbol (Cross & Crown) is "Not shown because of copyrights," and they are quite distinct from Scientologists in a number of respects. While the Scientologists reportedly do not believe that therapy for the mind is useful, the Christian Scientists use only therapy for the mind, in the form of prayer, to heal their sick, though problems regarded as mechanical, such as broken bones, can receive medical intervention. Also, Christian Science is more clearly recognized as a religion by the U.S. government than Scientology is; the latter lost tax-exempt status in 1967, and regained it in 1993 in a questionable fashion. The German government regards Scientology as a commercial enterprise.
At any rate, even if this mysterious symbol has been copyrighted recently, and the term has not expired, and it would not be fair use for the federal government to provide a sample of the symbol to grieving families picking a tombstone, I sort of wonder why the government can't just amend the Tucker Act, infringe anyway, and be done with it.
Second, Wikipedia has many copyrighted images. To take an example famous within the field, Mickey Mouse's entry includes not a mere hand-drawn picture that would violate trademark, but a film poster and movie stills. Disney probably wouldn't sue the U.S. government for putting Mickey's image on a website, but it would be more for fear of bad publicity than certainty that the company would lose under fair use doctrine.
Similarly, the Cross and Crown symbol of Christian Science is trademarked, and this protection is defended as being necessary to ensure that there is no confusion about whether an item is a product of Mary Baker Eddy's church. "The trademark used on books and periodicals is a Cross and Crown seal. The appearance of this seal identifies literature published by The Christian Science Publishing Society." Presumably the Christian Scientists do not want their symbol on a government website, for fear that it will be seen as some sort of endorsement by the Publishing Society.
With regard to the "Islamic 5 Pointed Star," I'm less clear on whether it actually is trademarked and what the reasons thereof would be, though there has been an attempt to patent a "star and crescent structure."
Robert Harris -- of whose book I had heard only through Amber Taylor, so the publisher's strategy worked at least to inform other bloggers -- published an op-ed in the Saturday New York Times that follows the paper's general editorial policy of detesting the legislation that sets the rules on interrogating and trying terrorism suspects. The only NYT-published editorial I have seen that cheers the fact that, to quote the headline of a news analysis, "Detainee Bill Shifts Power to President," is John Yoo's, and he has been banging the drum for presidential wartime powers since 9/11. Harris's piece attempts to compare the current situation of the last remaining superpower with the world's first superpower, but even if all his ancient history is correct, the parallels won't convince those who aren't already afraid of the slippery slope toward tyranny. Describing the Roman law that gave sweeping new powers to the executive in order to fight terrorism, Harris says, "The Lex Gabinia was a classic illustration of the law of unintended consequences: it fatally subverted the institution it was supposed to protect. Let us hope that vote in the United States Senate does not have the same result." Unfortunately, the law's supporters think it actually does protect the rule of law -- for the vast majority of Americans who never will be seriously suspected of involvement in terrorism.
Plutarch said, "Pompey was to be given not only the supreme naval command but what amounted in fact to an absolute authority and uncontrolled power over everyone,” but many people see this legislation as giving the president uncontrolled power only over the bad guys. After all, what business did any non-Afghan have in Afghanistan after 9/11? Anyone we picked up there, at least of those remaining after the weeding out process of the last five years, clearly was up to no good and should be aggressively interrogated until he admits it. If the Bush Administration is not able to detain, waterboard and put before military commissions these terrorists, then the terrorists will become ever more successful, the American people ever more terrorized and ready to abandon even their rights.
Think of it like FDR's introduction of socialism and regulation to the previously laissez faire U.S. economy: in order to save capitalism, to prevent the unemployed masses from revolting and turning communist, he had to bend capitalism a little. The SEC here, a jobs program there -- given this reassurance, plus a world war to get GDP back up, the American people calmed. The Republicans similarly can argue that they are bending rights for a small group in order to safeguard them from what the majority itself would do to them. This is a little different from the obviously absurd notion that Al Qaeda actually could "win" the war on terror and somehow manage to take over our government. Instead of our enemies taking away our rights, we would give them up ourselves in order to gain safety. If the Supreme Court insists on habeas, conventional trials and Geneva Conventions, the citizenry simply will amend the Constitution to say that none of the above need be applied to terrorism suspects.
(This is the one thing that puzzles me mightily, however: in light of the conservative mania for amending the Constitution to keep the Supreme Court from legalizing flag-burning, same sex unions and a host of other dangers to our morals, it's odd that no movement has built since the Hamdi and Hamdan decisions for amending the Constitution to keep the Supreme Court from endangering national security by recognizing rights for terrorism suspects. Damn liberal justices -- well, except for Scalia's fetishization of citizenship -- and their mollycoddling of bin Laden...)