"Objectively Pro Rape"

That's the headline given to the Balloon Juice post where I found the link to this Think Progress article. The article discusses Senator Al Franken's bill amendment that was recently voted on: "Sen. Al Franken (D-MN) proposed an amendment to the 2010 Defense Appropriations bill that would withhold defense contracts from companies like KBR 'if they restrict their employees from taking workplace sexual assault, battery and discrimination cases to court.'" This amendment stems in part from what Think Progress reports as a gang rape of Jamie Leigh Jones, who was "prevented from bringing charges in court against KBR because her employment contract stipulated that sexual assault allegations would only be heard in private arbitration."

The amendment passed Senate Vote by a vote of 68-30 with Senators Byrd (D) and Specter (D) not voting. The 30 nays?

NAYs ---30
Alexander (R-TN) Barrasso (R-WY) Bond (R-MO) Brownback (R-KS) Bunning (R-KY) Burr (R-NC) Chambliss (R-GA) Coburn (R-OK) Cochran (R-MS) Corker (R-TN)	Cornyn (R-TX) Crapo (R-ID) DeMint (R-SC) Ensign (R-NV) Enzi (R-WY) Graham (R-SC) Gregg (R-NH) Inhofe (R-OK) Isakson (R-GA) Johanns (R-NE)	Kyl (R-AZ) McCain (R-AZ) McConnell (R-KY) Risch (R-ID) Roberts (R-KS) Sessions (R-AL) Shelby (R-AL) Thune (R-SD) Vitter (R-LA) Wicker (R-MS)

Apparently, for these Republicans, it's ok for contractors to go overseas and help in the fight to defend our constitution from the menace of those marauding insurgents that we created, but it would be ghastly to allow the employees of these agencies the benefits guaranteed by the Constitution...

It's a First Amendment Issue, Just the Wrong Clause

In 2006, Brittany McComb delivered her valedictorian speech at her high school in Nevada. According to this article on Americans United for the Separation of Church and State, her speech was interrupted by school officials, who pulled the plug on her microphone after she stated "[God's love] is something that we all desire, it's unprejudiced, it's merciful, it's free, it's real, it's huge, it's everlasting... God's love is so great that He gave up His only son."

You see, the school officials warned her that while she was able to reference her faith during her speech, she would not be allowed to proselytize. She apparently decided she didn't need to obey the officials. She even went on Fox News' Hannity and Colmes, arguing that the school district violated her First Amendment rights, (again from the article linked above), "[the school district] denied me free speech, and it denied me the right to be who I am and who, you know, God made me to be."

While to an 18 year old who feels like she's been wronged, perhaps this could seem like the case. While she got the correct Amendment, she's unfortunately viewing the wrong clause. You see, the school district was right. Let's see why.

All right, the short answer is that the school district was right because the 9th Circuit Court of Appeals said so. Of course, those Christian Conservatives out there looking for a reason to discount this will point to this being the 9th Circuit Court of Appeals, which is full of those "Activist Judges," you know, the ones whose opinions don't match your own. So let's delve just a little deeper, shall we?

First off, we have the Supremacy Clause - i.e. The Constitution and all laws and treaties entered pursuant to it shall be the "Supreme Law of the Land," (see U.S. Const. Art. VI). Then, you look at Marbury v. Madison 5 U.S. 137 (1803), which says that the interpretation of the law is the province of the judicial department. This is all background to the part that matters with respect to this case.

The two cases that bear most heavily on McCombs's situation are Lee v. Weisman and Santa Fe ISD v. Doe. The former case, Lee v. Weisman 505 U.S. 577 (1992), involved a school in New Jersey that invited local clergy to deliver invocations at graduation ceremonies. The Court held that unconstitutional coercion occurs when 1. the government directs 2. a formal religious exercise 3. in such a way as to oblige the participation of objectors," (See Jones v. Clear Creek ISD, 977 F.2d 963, 971 [5th Cir. 1992]). You see, you can't create a situation where a student is obliged (even if the ceremony isn't *mandatory,* it's still a rite of passage and the alternative to avoid this to avoid being preached to fails any rational balancing. Of course, Lee involved a rabbi who had been invited to speak. McCombs is a student. Surely that's different, right?

Wrong. This situation was addressed just a few years ago in Santa Fe ISD v. Doe, 530 U.S. 290, (2000). This involved a school district in Texas that would invite a student from the high school to deliver an invocation at a football game. Here, the Court differentiates between private (protected speech) and public speech,

The delivery of a message such as the invocation here–on school property, at school-sponsored events, over the school’s public address system, by a speaker representing the student body, under the supervision of school faculty, and pursuant to a school policy that explicitly and implicitly encourages public prayer–is not properly characterized as “private” speech.

This is, as you may have guessed, unacceptable, and not unlike the facts presented in McCombs's situation.

What the school and the 9th Circuit Court of Appeals are saying, in a nutshell, is that there is nobody preventing McCombs from being a Christian, or believing in God, or worshipping God. In fact, there's nothing wrong with anybody believing anything they want. However, nobody, not McCombs, not any of the other students at the school, can use the public forum to proselytize to a captive audience. This was absolutely the right decision.

The Constitution Is Not Perfect

And anyone who suggests that the Founders believed it to be perfect is either misinformed, stupid, or trying to push an agenda.

The easiest way to tell that the Founders did not believe the Constitution to be flawless is that they incorporated a method by which to amend the Constitution. Had they believed it to be a perfect document, then why would it necessitate amending? There are two suggestions - time is not a vacuum, which is to say that what was the case in 1789 (public stocks, slavery, women having fewer rights than gravel) is not going to necessarily hold true in 2009. This is in part why the founders wrote somewhat vaguely, to give room for interpretation.

Another piece of evidence that the Founders did not believe the Constitution to be perfect comes from the date of the Bill of Rights, also known as the First 10 Amendments. If you look carefully, or not even carefully, but at all, you will see that the Bill of Rights were not incorporated concurrently with the Constitution. In fact, one of the great hangups with the Constitution was the premise that it had no Bill of Rights. The People would not ratify the Constitution until said Bill was at least promised to be forthcoming. That the People would require something beyond what was written in the Constitution itself in order to even ratify it should supply sufficient evidence for anyone willing to think for half a second that the Founders believed the Constitution to be perfect as written.

I write this as a rant not for any reason other than it's been bugging me for some time as I have seen it written on blogs and heard it from people here and there that somehow Liberals dislike America because they believe the Constitution to be flawed. I think this idea, that questioning the omnipotence of the Constitution, is glib. But I recognize that reasonable people can come to differing opinions on what is or is not the case, and I'm certain there are several who will come here (okay, maybe 3) and read this and consider my opinion to be pure tommyrot. To them, I merely ask for proof that the Founders believed the Constitution was perfect as written, if they got this far in my late night rant.

Suspending the Writ

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. (Constitution, Art. I, Sec. 9, Cl. 2).

Some people don't seem to understand what this means. I have read and heard more than one person suggest that because Al Qaeda attacked the World Trade Center in 2001, we are under invasion. This is not true. But even if it were true, it would be a moot point, because the public Safety would not require suspension of the Writ (to this point, the Government didn't even offer the invasion theory as an argument in favor of denying the writ to the detainees, rather they merely said the Constitution doesn't apply to those detained by our Government).

Let's see if we can break this down a bit, so you can follow along at home. First, we need to consider the argument - that we have been invaded. While one can easily point to the words of the President and those who support him on this war on "terror" and show that we are fighting them abroad so that we don't have to fight them here, let's delve a little deeper. Black's law dictionary (seventh edition, which is the most recent edition I have) defines invasion as: 1. A hostil or forcible encroachment on the rights of another (not applicable to our discussion), 2. The incursion of an army for conquest of plunder (definitely applicable to our discussion), 3. Trusts. A withdrawal from principal (metaphorically speaking, and also not pertinent to the discussion). It should be clear from the plain language of the definitions provided that the second definition is the one with which we should concern ourselves.

There are two prongs to this definition - the first includes the incursion of an army. 19 individuals hardly qualifies as an army, though they are tied to a network with a common goal, so perhaps, in the light most favorable to the apologists' position, one could construe Al Qaeda as an "army," though this is a stretch, because traditionally, armies have been tied to a country. The second prong, "for conquest or plunder" is the key to the definition. It is quite clear by the nature of the attacks (suicide missions) that the attackers did not intend conquest (Conquest, according to Black's Law Dictionary, is "An act of force by which, during a war, a belligerent occupies territory within an enemy country with the intention of extending its sovereignty over that territory. [emphasis mine]), and, just as clearly did not plunder (see "Pillage - the forcible seizure of another's property"), as they did not seize the property (Seize: "To forcibly take possession"). Looking at the legal definitions of the terms involved in an invasion, it should be glaringly apparent to everyone involved that the attacks on 9-11 did not serve as an "Invasion" of the United States.

Not that it would matter, even if it did. The Suspension Clause notes that the Privilege shall not be suspended "unless in times of rebellion or public invasion the public Safety may require it. (emphasis mine). Who determines what qualifies as a situation where the suspension is "required?" Well, anyone who has taken Constitutional Law should be able to tell you who the interpreters of the Constitution are, as denoted in Marbury v. Madison. The Court, of course, gets to decide what the Constitution means. And the Court has decided when the public safety may require the suspension of the Writ. In Ex parte Milligan, 71 U.S. 2 (1866), the Court addressed the concept of when the public safety may require suspension. In a nutshell, suspension is justified when there is such a breakdown in the region that the legal system can no longer function, thereby requiring martial law. The purpose of this is to limit the arbitrary use of executive power. It does not take a genius to see that there has been no breakdown of the legal system in Guantanamo Bay, short of the denial of basic legal protections for the detainees by the Government holding them, therefore, there is not backing for the premise that the Writ should be suspended.

This, of course, was known to the Government during oral arguments, which is why it was not brought up before the Court to decide, and the argument presented was merely that the Writ didn't apply. The majority of the Court disagreed, and (as I've said previously) rightly so.

Highlights from Boumediene v. Bush

The PDF of the decision is available here.

It's too simple to say why the Court ruled the way it did in one or two sentences. You need a little more. I'm going to go through some of what I consider the highlights from the majority opinion here.

The issue of the case is whether the petitioners (individuals classified as enemy combatants by our Government who are being held at Guantanamo Bay, Cuba indefinitely) have the Constitutional privilege of Habeas Corpus. The holding is that the petitioners do have this privilege, and that the Military Commissions Act, Sec. 7, is an insufficient substitute for this privilege.

Habeas Corpus, for those who are unaware, is the right to challenge the validity of one's detention before the court (Black's Law Dictionary, 7th edition). This right is guaranteed under the Constitution in Art. I, Section 9, Cl. 2: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

Taken in strict constructionist terms, this may seem to be all the reasoning one might need. However, there is more to what constitutes what is Constitutional than simply reading the plain language of the Constitution. One must also consider stare decisis - previous rulings by the Court interpreting the Constitution, and consider how the law in question compares to the laws previously ruled upon.

After conceding that the State was authorized to detain those captured and classified as Enemy Combatants for the duration of the conflict (Hamdi v. Rumsfeld 542 U.S. 507 [2004]), the Court set out to determine how and whether the law applied. First, the Court noted that these individuals were all captured, some on the battlefield, others in such locations as Bosnia and Gambia, and noted that none of the individuals petitioning the Court were citizens of a nation with whom the United States was now at war. The CSRT (the "alternative" to habeas review authorized under the MCA) had reviewed these individuals' petitions (the petitioners were not authorized legal counsel in these - it's not a trial - and they were not able to view much of the evidence presented against them - Democracy in action).

Now to get into the decision - The Court had to first determine whether the MCA served to deny federal court jurisdiction for habeas proceedings - which it did - and then the Court had to determine if this law was valid, thereby requiring the petitioners' cases be dismissed. In otder to determine the validity of the claim, the Court had to consider which of two possible reasons the Petitioners were barred from seeking Habeas relief: their status as "enemy combatants" as they were designated by the U.S., or because they were housed in Guantanamo Bay.

The Government's position was that these were non-citizens who were designated enemy combatants, and they were housed outside the United States, therefore they have no Constitutional Rights. Another way of putting this is "We get to designate what these people are, and we designated them enemy combatants. We did this because we think that Eisentrager [339 U. S. 763 (1950)] will allow us to deny them Constitutional rights." This justification should give Americans pause, because it basically says that the Executive Branch can designate whomever they want "enemy combatants" and deny them right to challenge their classification, to view the evidence that led to that determination, which goes against one of the fundamental tenets of our nation - that we were distrustful of the Government's power of the People.

The Court referred to the Magna Carta in its support for the importance of the Suspension Clause - that No man would be imprisoned contrary to the law of the land (Art. 39). It also cited Blackstone, who stated that the Habeas Corpus Act of 1679 (which established the procedures for issuing the writ and served as the model for the Colonies' habeas statutes) was the "stable bulwark of our liberties." The Court tied these, and other concepts together -

This history was known to the Framers. It no doubt confirmed their view that pendular swings to and away from liberty were endemic to undivided, uncontrolled power. The Framers' inherent distrust of governmental power was the driving force behind the constitutional plan that allocated powers among three independent branches. This design serves not only to make Government accountable but also to secure individual liberty.

Justice Kennedy's opinion also points out that the Suspension Clause existed in the original draft of the Constitution - predating the Bill of Rights - providing even more evidence of the importance of the Writ to the Framers.

So the Writ is important to America. How does this apply to foreigners? Well, the Government said that the Writ has no application to individuals classified as enemy combatants and held outside the United States (see Eisentrager). The difference, the Court notes, is that Eisentrager deals with individuals held in German prisons, whereas the detainees at Guantanamo Bay are held on a U.S. government facility in a U.S. territory under complete U.S. control. Generally speaking, citizenship of the individual seeking relief is viewed as more of a non-factor based on American and British precedent, see e.g., Sommersett's Case, 20 How. St. Tr. 1, 80-82 (1772) and generally Khera v. Secretary of State for the Home Dept., A.C. 74, 111 (1984).

The Government argued that the Writ does not apply because, like Scotland and Hanover with respect to England (where the writ did not apply), Cuba has its own court system. This is a false analogy, though, as the detainees, while technically on Cuba, are held in a U.S. Territory and are not authorized access to Cuban courts, whereas prisoners in Scotland and Hanover were. In terms of sovereignty, the Court notes that there are two types - De Jure sovereignty (which is what Cuba holds over Guantanamo Bay), and De Facto sovereignty, such as that held by the United States over the same. The Court held that De Facto sovereignty controls questions regarding habeas standing, which makes sense.

This is one of the reasons supporting a rejection of Eisentrager. Another is that relying solely on Eisentrager would mean that the Court reversed its position from the Insular Cases, where it said that questions regarding extraterritoriality needed to be viewed individually based on the circumstances. Further, the prisoners in Eisentrager had already been tried and convicted (this is important to the Court in distinguishing the cases) and they did not challenge their status, as the detainees are.

The meat of the decision, indeed the lines that I've heard the most over the past couple of days, come from this next section. The Government claimed that it has no jurisdiction over Guantanamo Bay because of the lease treaty of 1903, and thus the Constitution has no effect there. Because of the importance of the Court's answer to this, I will include the complete text from the opinion here:

The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint.
Our basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply. Even when the United States acts outside its borders, its powers are not "absolute and unlimited," but are subject "to such restrictions as are expressed in the Constitution." Murph v. Ramsey, 114 U.S. 14, 44 (1885). Abstaining from questions involving formal sovereignty and territorial governance is one thing. To hold the political branches have the power to switch the Constitution on or off at will is quite another. The former position reflects this Courts recognition that certain matters requiring political judgments are best left to the political branches. The latter would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the President, not this Court, say "what the law is." Marbury v. Madison, 1 Cranch 137, 177 (1803).
These concerns have particular bearing upon the Suspension Clause question in the cases now before us, for the writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. The test for determining the scope of this provision must not be subject to manipulation by those whose power it is designed to restrain. (emphasis mine)

Basically, Eisentrager does not apply, and the detainees are entitled to habeas relief in U.S. Courts because there are no other courts in which they could challenge the validity of their detention.

The Court did touch on the question regarding suspension of the Writ, and noted that there is no invasion or rebellion, the requisites for which the Writ may be suspended under the Constitution. The case law the Court cited shows incidents where habeas was intended to be streamlined and strengthened, not diluted as the Government sought to do in Boumediene.

Given the length of the majority opinion, I will look at the dissent in a future post. Again - I agree with this decision and find it good for our Nation.

A Victory for Liberty

The Supreme Court ruled today that Guantanamo Bay detainees may challenge the validity of their detention in U.S. Courts. This is a good thing for those who love liberty.

Basing most of what I am about to write on my memory from National Security Law and ConLaw, I will try to explain what I understand as President Bush's (and Congress) intent was in the law that was overruled. In essence, the law that was challenged denied habeas corpus to the detainees at Guantanamo Bay.

The President was probably relying (as he had in Hamdan v. Rumsfeld) on the premise that because the detainees were being held outside the United States - that is, they were in Cuba - that they would not be subject to habeas corpus - that the Constitution and the laws of the United States would not protect them. Since this failed in Hamdan (executive order), he created tribunals that would review the detention process. This review does not meet muster for what is required in a Habeas petition. Justice Kennedy commented on this in the Opinion (quoted from - Lyle Denniston at SCOTUS Blog): "[The Suspension Clause] protects the rights of the detained by a means consistent with the essential design of the Constitution. It ensures that, except during periouds of formal suspension, the Judiciary will have a time-tested devise, the writ, to maintain the 'delicate balance of governance' that is itself the surest safeguard of liberty. [Those who wrote the Constitution] deemed the writ to be an essential mechanism in the separation-of-powers scheme." Justice Kennedy also noted that the political branches of government do not have "the power to switch the Constitution on or off at will."

President Bush stated that he "strongly agree[s] with those who dissented. And their dissent was based upon their serious concerns about US national security."

There are a couple things wrong with this. First off - it betrays the argument that we hear most often in favor of conservative-appointed justices - that they follow the Rule of Law. President Bush seems to argue that the justices he appointed, as well as Thomas and Scalia rule according to how they feel. This is exactly what Conservative refer to as Judicial Activism, and it strikes me as odd that the President would argue in favor of supporting the decision of Justices who let their opinions determine how they rule as opposed to the law and, particularly, the Constitution. Second, this decision should be one that President Bush applauds, because it holds one of his basic tenets on the war on terror undisturbed - that "we will not allow this enemy to win the war by changing our way of life or restricting our freedoms (emphasis mine).

Preserving habeas corpus review for those detained by our Government can be viewed as nothing less than ensuring that our freedoms are not restricted. This is a good ruling.

Nelson at the Liberal Journal has also posted on this topic.
Thanks to Just Wondering at Vim and Vinegar for linking to this post.

For more information on this matter, look at Melissa's post at WriteChic.

Cruel and Unusual

One of the reasons there is a need for lawyers is that laws are often vague, despite attempts to not do otherwise. Take the 8th Amendment - it puts a ban on cruel and unusual punishments. But, there is nothing that explains what Cruel and Unusual means. Hence the need to parse it out.

Some people will argue that we should retain the standards that were in place in 1791 (strict constructionists). The theory is that if the American People want something to change, then they will band together and petition the Government to make such a change. Of course, with Bureaucracy, this is fallacy, but many people believe that until we tell the officials to change the rules, then we should keep things the same. One very real problem with strict constructionists is that they are only strict constructionists with regard to the laws and rules they think should remain the same (Note the Activist decision on minimum pricing a few months ago).

There are people who argue the "living constitution," that the Constitution should be interpreted to meet the mores of America today. These people note the inefficiency of Government, and how times change much more quickly than laws. They think that one of the roles of The Court is to act as a gap filler, and that decisions that reflect today's world are the best solution. The problem here is that a living Constitution can ultimately be little different than rule by public opinion, which is difficult to follow for any sense in the world.

There are other approaches, but I'll leave it at these two for now.

The Supreme Court recently granted cert on a case in Kentucky challenging Lethal Injection, claiming that the chemical cocktail used causes undue pain in the person being killed. This has had the result of Texas planning to stay executions here until such time as the Court renders its opinion (because Texas uses the same cocktail).

There are a couple arguments at stake here, but all of them revolve around the concept of "what is cruel and unusual?" First, there's the concept of the chemical cocktail. Is it cruel and unusual to cause undue pain to a person who we are killing? People have spent centuries trying to come up with a humane way of killing people (Guillotine), despite the obvious oxymoronic nature of said attempts. This is up to 8th amendment debate because lethal injection was not a method of capital punishment at the time the Bill of Rights was created. Second, and probably not the question that will be answered, but undoubtedly at the crux of the issue, is whether or not Capital Punishment qualifies as cruel and unusual. Here's where the debate between Originalism/Strict Constructionism and other theories comes in. According to one strict constructionist argument, since we had capital punishment at the time of the 8th amendment, then it cannot be considered cruel and unusual, until Congress passes a law or amendment defining capital punishment as cruel and unusual. And those who embrace a living Constitution and oppose capital punishment would argue something similar to the concept that in America today, it is unnecessarily cruel to put someone to death, or that capital punishment is only a deterrent to the person being killed, and we can keep that person from killing again by putting him in prison for life, making capital punishment unnecessary altogether.

While we wait for the Court to reach its decision, let's see what you think...

Weakening America

A Federal Judge today demonstrated once again that the Left hates America. Judge Ann Aiken, of Oregon, ruled 2 provisions of the USA PATRIOT Act unconstitutional. Apparently, she believes that the Fourth Amendment (Wait until you hear this) applies to American people. You see, Congress, knowing how important our security is, saw fit to, what's the best word here, "streamline" our Constitutional rights and liberties. President Bush needed this streamlined approach to freedom in order to protect us from Iraq, you see, and Congress did what it could to help him.

One of the things they did was make it possible for the Executive Branch to protect us by searching our properties, possessions, and conversations without securing a warrant, using the Foreign Intelligence Surveillance Act. As the Executive Branch said some years ago - if you've done nothing wrong, then what do you have to be concerned about?

Well, then the problem came. The problem was that one of those people who did something wrong got caught. And rather than admit he did something wrong, he decided to challenge The Decider's law. Who was this rapscallion, and what did he do, you might be asking yourself. Well, I'll answer. His name is Brandon Mayfield, and what he did was he was held as a material witness by the FBI because a fingerprint that was not his was found on the site of the Madrid train bombings from 2004. Brandon had the gall to be offended that the FBI recorded his phone calls, searched his house and law offices (really, Attorney-client privilege is not affected when they don't KNOW they're being listened in on), and put him under 24-hour surveillance.

Now, I hate to beat a dead horse, but come on. He had to know this was going to happen. He was a Muslim, and we're at war on Terror. If he didn't want to be detained, then he shouldn't have had fingers.

At any rate, he gets the case to the Activist judge, whose opinion cannot be relied upon, because she's a liberal. And we all know those activist judges. They read the Constitution and twist the words around to mean whatever they want it to mean. In this case, the judge read the Fourth Amendment, which protects against unreasonable searches and seizures and requires warrants, and then she read the Supremacy Clause, which states that the Constitution and all laws and treaties passed pursuant to it shall be The Supreme Law of the Land, and then she read precedent which shows that First in Time applies to laws and treaties, but the Constitution trumps all. And then she made the stereotypical Activist Decision - that the Fourth Amendment trumps the USA PATRIOT Act. What a sad day for America.

But, Steve, how do you know she's an activist judge? Well, that's simple - she was appointed by President Clinton (the first one). Which means she's a Democrat appointee, which means she's a liberal, which means she's an activist judge. Very simple. And unfortunate. I'm sure the ACLU had something to do with the choice of venue.

FirstAmendment and the Military

When an individual enlists in the military, or takes the officer's oath in the military, he or she swears to uphold and defend the Constitution of the United States.

Now, it's no real secret that military members enjoy abridged Constitutional rights. For example, individuals living in barracks are subject to warrantless searches without probable cause. Additionally, military members are often given gag orders by the Commanding Officers or base commanders, especially regarding controversial topics.

However, it's paramount to note that the Military officially endorses the concept of free exercise of religion. When I was in basic training, we had a lesson on how to wed religious practices with the government activity (military being a federal entity, and all), and how having chaplains available jives with the concept of free exercise and does not conflict with the concept of establishment of religion.

Unfortunately, not everyone seems to understand that Free Exercise, even in the military, applies to even those who do not share their beliefs, and that this extends to those who believe in no Deity. The writers at Americans United report on a suit filed against an Army Major who allegedly threatened a soldier who followed procedure to convene a meeting of Atheists and non-believers. According to the complaint, the Major threatened UCMJ action against the attendees and threatened to prevent the specialist (e-4, just above a private, not yet an NCO) from re-enlisting.

Now, of course there are going to be people who support the alleged actions of this Army Major. We know this, because even in a country where people are free to choose whatever religion they wish to follow, people insist that some religions are wrong, or that they deserve to be discriminated against. Some people have suggested that Muslims should not be allowed to hold public office, such as Representative Keith Ellison from Minnesota. I've heard it argued that because the Koran does not allow a person to swear to anything else, that his oath was not to be trusted, and thus, as a result of his Religious Faith, he should not be allowed to hold office - his religion failed the test, as it were. This despite the fact that the Constitution is quite clear in stating that No Religious Test shall be used in determining eligibility to hold public office (U.S. Const., Art. VI).

It's bad enough that things like this happens to public officials - to be derided for their faith. But it's even more egregious when such attempts to deny a person their right to believe, or in the above case to not believe, occur against those who are fighting for our nation, and for the freedom of another. And when it's a Commissioned Officer threatening a lower enlisted individual, that just tops it off.

Gotta Love Americans

First off, so many Americans don't get it. In a recent poll on the anniversary of Constitution Day, a majority of those polled (55%) said that the Constitution establishes America as a Christian Nation. I wonder how many of these respondents have read the Constitution...

But it gets better. While nearly all (97%) of the respondents said that the right to practice the religion of your own choice is essential or important, only 56% said freedom of religion applies to all religions. Perhaps they thought the First Amendment reads "Congress shall make no law respecting the Establishment of Christianity nor prohibiting the free exercise of any denomination thereof..."

And since it is a USA Today article, there is a chart next to the article.

Fair and Balanced

I was watching some political talking heads program on Fox this morning. The show itself was all right, I didn't it really slanted right as far as many think, except for one part. One guy, in discussing the commutation of the Libby sentence, in the same breath, connected it with the terrorist attacks in London and suggested a justification for the warrantless wiretaps, inviting a debate.

I have a piece to say on that issue, being, 1. the Fourth Amendment still exists, 2. there is a legitimate means for the Executive to obtain warrants with little to no probable cause (indeed the FISA courts are, by law, not allowed to gauge the substance of the FISA warrant applications, rather can only check to see if there are no procedural irregularities), and 3. the President has yet to show that using FISA, which allows for warrants AFTER THE FACT is unduly burdensome to such a point that it would justify violating the Supreme Law of the Land, other than to say "trust us."

I'm sorry, but the President, has burned through all his trust; there needs to be some substance to support it. Referring to all acts of insurgency as "Al Qaeda" without any evidence connecting them to Al Qaeda is not the way to do it. The attacks in London are evidence that wiretapping can be used to limit potential threats, but it does not suggest that I need to forfeit my right to be free from unreasonable governmental intrusion. And to the guy on Fox (I don't check any of their names), if you are so sold on winning the war on terror, enlist. Do your part. Don't tell me what rights I need to give up or defend against having stripped from me.

Sorry, I'm tired and grumpy.

On Commuting Scooter Libby's Prison Sentence

I've gone to several blogs over the past several days that have addressed President Bush's handling of the Scooter Libby sentence. What I've noticed, mostly from anonymous commentators, because the anonymous usually are the loudest and most ignorant, wishing to spew bile without anyone knowing who they are, is that there are a couple basic arguments that are going through the system in defense of the President.

First - "The President has absolute power to grant pardons." Yes. That is true. Under Article II, Section 2, Clause 1, the President "shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in cases of impeachment." However, Libby was not pardoned. His prison sentence was commuted. To clarify that he was not pardoned, the president himself has said that he has not ruled out pardoning Libby at a later time. This means, necessarily, that President Bush did not use his Pardoning power. Perhaps is granted a reprieve, but that seems to be more a matter of semantics, and there seems to still be a potentially legitimate question as to the Constitutionality of the President's act, though most people also seem to agree that it is within his power.

Second - "Clinton granted 450 pardons" aka the Clinton did it too defense. I feel it would be remiss to let this defense go without noting that this administration rode into Washington under the premise that it would "restore honor to the White House," that Bush would be a different President, a better President, than Clinton was. It boggles my mind how on the one hand, the President can express a desire to be better than his predecessor while on the other, his supporters insist that people should not criticize his actions because "Clinton did it, too." It rings hollow, and does not address the fact that President Bush is a poor President.

Third - "Congress's approval ratings are worse than the President's. They should just shut up." This is apparently true, according to recent polls. But what it fails to mention is that Congress' approval ratings are as low as they are because, in the minds of many Americans, Congress has not done enough to pull in the reins on President Bush, and they view this Congress as weak in the face of the President. This isn't a dislike of the "Democrat Congress," it's a dislike of the "Do nothing to stop an unpopular President and an unpopular war-stonewalling Congress." Ultimately, the digust goes back to the President.

Perhaps the act of commuting Libby's sentence would not be so difficult to swallow on the premise of the President's explanation if he had used his authority and discretion a little more prior to now. According to the internet research I've done (admittedly cursory), while he was Governor of Texas, President Bush pardoned 19 people, six of whom proved their innocence, something Libby didn't do. He has pardoned 113 as president, as of March 11 2007. All the while, the president has expressed as his rationale the importance of the rule of law and the decisions reached by the people. That is what makes the pre-incarceration sentencing of Libby all the more bizarre and seemingly hypocritical, and reeks of cronyism.

President Bush isn't the first president to be unpopular. He's also not the first president to engage in apparent (or outright) cronyism. That said, it doesn't make it right, and it doesn't do anything but preserve a few popularity points from his base. But, when you're near the bottom, you do what you must to keep from hitting it, regardless of how it looks.

A tale of two hypotheses

The first one comes from a while back, when the President insisted that he did not need a Warrant to listen in on the telephone conversations of United States Citizens, despite Supreme Court rulings otherwise, the Fourth Amendment, and an unquestionably reasonable alternative to his program (the FISA courts which have a 99.96% Warrant Approval rate and are available post facto). The president's position was that this was a necessary tool in the war against terror and that it's not unconstitutional as he understands the Constitution, and besides, if you have nothing to hide, then why the concern if someone is listening, but they won't be listening anyway, because the NSA follows strict guidelines, but we can't tell you what those are because it would help the Enemy (you know, Terror, which is not an entity, but a theory and therefore the War on Terror could conceivably never end). i can't begin to tell you how many people (all Bush apologists) who argued that this is a minor inconvenience - yes, facially violating the Fourth Amendment is a "minor inconvenience" - and I need to be "rational."

Now, these same people are defending Alberto Gonzalez and the administration in defending him against requests to go up before Congress pursuant to a subpoena to testify as to the involvement regarding the firing of 8 US Attorneys for, what the document dumps have illustrated, appear to be partisan reasons (i.e. they weren't "loyal bushies"). The president has gone so far as to say that he has proposed "reasonable" alternatives to testifying under oath, which is, talking off the record, and that the information Gonzalez et al. possess is protected under "executive privilege." This is a separation of powers issue, and there is certainly an issue to consider as to whether or not this is something that could be protected by executive privilege. I would like to limit executive privilege, and I fear that the administration's attempts to expand it would impermissibly extend the power of the executive branch to such point that there may no longer be co-equal branches in government, which is, in my estimation, exactly what this president wants - expansion of Presidential powers under a Unitary Executive Theory. For those Republicans who support this concept, I ask you, are these the keys you'd be willing to hand Hillary should she win in '08? That scares me almost as much as Bush operating under this theory, but I digress. The point is that in this case, the President has essentially been asked - "if you have nothing to hide, then why do you resist these people going under oath to testify?" One idea, as John Dean, the author of the link above says: "[Y]ou show me a White House aide who does not want his conversations and advice to the president revealed, and I will show you someone who should not be talking with or advising the president."

Anyway, here's the contrast - the first problem is a Constitutional issue - the administration violated the Fourth Amendment - the rights preserved for the protection of the People from the overreaching of the Government. The second one is a personal issue. Nowhere in the Constitution or the Bill of Rights is there any mention of "executive privilege." The concept, such as it exists, is a creature of the Administrations past (Nixon and Clinton relied on this concept), and any reach it does have is limited and should remain limited - lest we become a nation of subjects and no longer a nation of the Free.