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Archive for June 2009

Quote Of The Day: Fred Thompson Metaphor

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This is not photoshopped.

Speaking on NPR this morning, Prof. Eric Schnapper (University of Washington Law School) offered the quote of the day while discussing the Supreme Court’s recent decision in Ricci v. DeStefano:

“This case could be the Fred Thompson of the court’s term: much anticipated but quickly forgotten.”

Bruce Barry discusses the staying power of such a metaphor:

The metaphorical possibilities here are vast. Sarah Palin was the Fred Thompson of VP candidacies. The Titans 2008 playoff run was the Fred Thompson of NFL postseasons. My third wife was the Fred Thompson of romantic relationships. This post is the Fred Thompson of Pith entries…

Written by Angelo

June 30, 2009 at 1:27 pm

Posted in Law, Politics, Random

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Annotating Obama’s LGBT Pride Event Speech

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Don't expect to see Obama parading a gay pride flag anytime soon

Don't expect to see Obama parading a gay pride flag anytime soon

Yesterday, President Obama spoke at a White House LGBT pride event.  You can read the full transcript after the jump.  Here are some highlights…

And though we’ve made progress, there are still fellow citizens, perhaps neighbors or even family members and loved ones, who still hold fast to worn arguments and old attitudes; who fail to see your families like their families; and who would deny you the rights that most Americans take for granted.

Pres. Obama wonders why people can’t see that gay families are just like their families, yet apparently doesn’t recognize that his own opposition to gay marriage is a perfect example of the otherness he noted in his speech.  Sure sure, he supports civil unions with the same legal benefits.  But, this only underscores the otherness by refusing to support marriage equality in name as well.  I realize the political realities.  I understand why he needed to shift his position.  But, political considerations do not suddenly turn an internally inconsistent position, or a bad position into one that is worth applauding.

For we know that progress depends not only on changing laws but also changing hearts. And that real, transformative change never begins in Washington.

In other words: don’t hold your breath on Don’t Ask, Don’t Tell, ENDA or DOMA because it isn’t happening anytime soon.  Get out there and start working locally.

We’ve been in office six months now.  I suspect that by the time this administration is over, I think you guys will have pretty good feelings about the Obama administration.

I can appreciate Obama’s sentiment here.  I do think that he needs to be given some leeway to politically manuever.  On the other hand, I don’t think he’s entitled to any leeway on DADT, which is something he hasn’t taken action on solely because he’s afraid of the political consequences.  However, note the use of “administration” and not term.  This could very well mean that his administration intends on tabling major gay rights initiatives until the second term.  Something that has already been implied by Obama’s OPM head.

On DOMA…

Someday, I’m confident, we’ll look back at this transition and ask why it generated such angst, but as Commander-in-Chief, in a time of war, I do have a responsibility to see that this change is administered in a practical way and a way that takes over the long term.  That’s why I’ve asked the Secretary of Defense and the Chairman of the Joint Chiefs of Staff to develop a plan for how to thoroughly implement a repeal.

I know that every day that passes without a resolution is a deep disappointment to those men and women who continue to be discharged under this policy — patriots who often possess critical language skills and years of training and who’ve served this country well.  But what I hope is that these cases underscore the urgency of reversing this policy not just because it’s the right thing to do, but because it is essential for our national security.

So…Ending DADT is essential for national security.  Obama is the Commander-in-Chief during war time, so his paramount concern is national security.  Thus, he thinks we need to wait before taking action on DOMA.  Yup, makes perfect sense to me.  It makes total sense to delay something that you consider vital to national security in order to advance national security.

Overall, the speech was nice, but meaningless.  It can be summed up quite simply though: For now, you’re on your own.  And, I can respect that.  Obama has to consider a much broader array of political considerations when setting his administration’s priorities.  Kudos for not standing in the way of progress, but he is far from a champion on gay rights issues.  The gay community would be wise to take his advice, continue acting locally and stop pretending that he is drastically different from most other politicians on this issue.

Transcript: Read the rest of this entry »

Written by Angelo

June 30, 2009 at 12:51 pm

Posted in Politics

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Impeachment via Coup in Honduras: The Moral Hazard of Charisma

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Honduras was set for a constitutional amendment that would have established a constitutional convention to grant more powers to the President. Instead, President Zelaya was kidnapped by masked members of the military and put on a plane to Costa Rica.

President Manuel Zelaya was awakened Sunday by gunfire and detained while still in his pajamas, hours before an unpopular constitutional referendum many saw as a power grab. An air force plane flew him into forced exile in Costa Rica as armored military vehicles with machine guns rolled through the streets of the Honduran capital and soldiers seized the national palace. “I want to return to my country,” Zelaya said in Costa Rica. “I am president of Honduras.”

Congress voted to accept what it said was Zelaya’s letter of resignation, with even Zelaya’s former allies turning against him. Congressional leader Roberto Micheletti was sworn in to serve until Jan. 27 when Zelaya’s term ends. Micheletti belongs to Zelaya’s Liberal Party, but opposed the president in the referendum. “My slogan will be the reconciliation of the grand family of Hondurans … and a grand national dialogue,” Micheletti said after Congress gave the military a long standing ovation. Zelaya denied resigning and insisted he would serve out his term, even as the Supreme Court backed the military takeover and said it was a defense of democracy.

His ouster came hours before polls were to open on a constitutional referendum that Zelaya was pushing ahead even after the Supreme Court and the attorney general said it was illegal. The constitution bars changes to some of its clauses, such as the ban on a president serving more than one term, they said.

Other governments  – from the US to Venezuela to Cuba to the EU to the OAS – have roundly condemned the coup.  And after what happened in Iran, it’s easy to understand why people would rush to making condemnations.

But the situation in Honduras is more complicated than it was in Iran. Taking the countering view, Francisco Toro:

Seen in context, Sunday’s military powerplay was different in important ways from the traditional Latin American putsch. The generals move came at the unanimous–yes unanimous–behest of a congress outraged by Zelaya’s not-particularly-subtle attempts to extend his hold on power indefinitely. It followed a series of clearly unconstitutional moves on Zelaya’s part, including his attempt to unilaterally remove the chief of the army, which, according to Honduras’s Constitution, can only be done by a congressional super-majority.

And congress’s request had been seconded by the nation’s Supreme Court, which is sworn to uphold a constitution that explicitly makes the act of “inciting, promoting or backing the continuation in power or re-election of the President of the Republic” punishable with the loss of Honduran citizenship.

So while we wince at the image of soldiers kidnapping a president, it’s important to recognize that the move against Zelaya was, if not strictly speaking constitutional, certainly institutional.

If anything, the hemisphere’s unanimous, outraged reaction to events in Tegucigalpa–which, for once, saw Washington and Caracas in strong agreement against the coup–underlines the region’s pathologically imbalanced veneration of presidential power. After all, in 1999, when Hugo Chávez, with the agreement of the Venezuelan Supreme Court, moved to shut down Venezuela’s democratically elected congress, we heard nary a peep from the OAS. And in 2007, when Ecuador’s own neoauthoritarian president Rafael Correa moved to shut down congress with the Supreme Court’s approval, nobody cried coup. In neither case were those closures allowed by the existing constitution, yet nobody would’ve taken cries of a “coup” seriously.

Toro is overlooking some things. For one, I doubt the US and EU are condemning the coubecause they fetishize presidential power.

Julian Sanchez takes a sane approach:

So, obviously it’s never a good sign for democracy when the president is bustled out of the country under military guard. But I’m nevertheless a bit perplexed about the univocal condemnation—and simliarly one-sided coverage—of the  ouster of Honduran president Manuel Zelaya. Without pretending to any expertise on the Honduran political scene, here’s what I’ve gathered to be the context: Zelaya was pushing for a national referendum on whether he should be able to seek reelection, though the constitution limits him to a single term due to end in January. The country’s Supreme Court declared this move illegal, and the congress recently passed legislation similarly barring any such plebiscite, but Zelaya was apparently undissauded. This weekend, under an order from the Supreme Court, the military spirited Zelaya off to Costa Rica. The line of succession was observed, and the president of the congress, a member of Zelaya’s own party, ascended to the presidency with the confirmation of the legislature.

Grant that this is a mess either way, that this is hardly an outcome that a liberal democrat should feel comfortable with, and that there are almost certainly aspects of this that I’m missing. Is it actually obvious that Zelaya is on the side of “democracy” here?  It sounds like he’s the one trying to circumvent the law to extend his own power, and that his removal had the backing of the other legitimate branches of government. That’s not to say I think the United States ought to support the coup—again, I don’t really understand the details of the situation, and I don’t know that it would be our affair in any case—but since we’ve been hearing a lot recently about the virtues of remaining netural on the internal power struggles of sovereign nations, a principle I think is generally a sound one, I’d think it behooves us to follow the same policy here.

I’d add in that when presidents start getting dropped on otherwise neutral countries (Costa Rica in this case) a lot of the justification for neutrality goes out the window. But I agree that the universal condemnation of the coup seems to overlook the rather delicate problems. Legal analysis of the situation indicates uncertainty about what the proper procedure was.

On the other hand, the criticism from establishment conservative blogs like Powerline is that Obama is standing with Chavez and Ortega.That’s not terribly convincing. Kidnapping a president while wearing ski masks and dumping them in another country doesn’t terribly sound like the rule of law to me, even if there was broad political support.

Why isa mere referendum such a problem? Honduras has a population of about 7.5 million spread out over 110,000 kilometers squared; in US terms, both are almost identical to Virginia, except that Honduras has more of its population centered in cities and a lower education level of people voting. Indeed, there are reports that more than any other state in Central America, Honduras has an education crisis.

When you have a populace with education problems mixed with democracy, the result is that people can be swayed by charisma and populist sounding arguments rather than well reasoned positions. At the end of the day, this is a moral hazard of democracy: people will be swayed by bad arguments and charismatic leaders. Some conservatives would argue it happened in the US in 2008 (and liberals would use 2004).

Randy Paul points out that disarmament is a more realistic goal, and indeed it would help blunt this happening in future scenarios. But it wouldn’t solve the underlying problem of smaller, uneducated countries being prone to wild political swings that exceed constitutional boundries. Perhaps the best solution is a bigger country, although Iraq is showing that comes with its own challenges.

Getting people together to make political decisions is never easy. But when masked men in guns take an elected official and dump him in another country, that’s not following the rule of law – just as Selaya’s actions subverting the entire government likely were not following the rule of law either.

Kevin Casas-Zamora asks for everyone to calm down and deal with Zelaya like a criminal:

That’s why Zelaya, though he bears by far the greater responsibility for this crisis, must be reinstated in his position as the legitimate president of Honduras. The Organization of American States, the neighboring countries, and the U.S. government (which is still enormously influential in Honduras) should demand no less. They should also call upon all political actors in Honduras to take a deep breath and do what mature democracies do: allow the law to deal with those who try to step outside it. If Zelaya must be prosecuted for his harebrained attempt to subvert the Honduran Constitution, then let the courts proceed as rigorously as possible. And the same applies to the coup perpetrators. If Honduras is to have a decent future, its politicians and soldiers, in equal measure, must learn that the road to democracy and development runs through the rule of law.

Dark clouds are gathering again over Central America, and the United States would do well to pay attention. The current crisis in Honduras, the governance problems in Guatemala, and the ongoing destruction of democracy in Nicaragua form an ominous trend. U.S. President Barack Obama now has the opportunity to show both friends and foes in the Western Hemisphere that the United States has finally decided to side unequivocally with democracy — and that the rule of law matters in Tegucigalpa as much as it does in Washington.

This is an ad hoc fix, though, and one can imagine a similar situation arising again. While not exactly similar to Cuba and Venezuela, the quickness of both sides in resorting to force over law is sad and harkens back to an era that people had thought past.

Written by John Whitehouse

June 29, 2009 at 5:26 pm

Posted in Foreign Policy, Law

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Obama Speech To LGBT Pride Event Not Worthy Of Press Distribution?

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[Update: A transcript has been sent to the distribution list.  My apologies for jumping the gun on this one.]

tiredPresident Obama just delivered a speech at a White House LGBT pride event.  I’ll refrain from commenting on the substance at this point as this post is about something else.  After watching the speech, I figured I’d look over the transcript and post about it.  However, I couldn’t find the speech in my email.  The White House press office was very careful to send out transcripts of Obama’s remarks on energy, and Michelle’s remarks on healthcare.

I don’t want to read too much into the speech not being emailed yet, but the lack of transcript does underscore the administration’s continued slights against the gay community.  If the speech was related to a legislative priority, I guarantee that it’d have been in my inbox hours before the event along side background materials.  I’m just saying is all.

Written by Angelo

June 29, 2009 at 4:26 pm

Posted in Politics

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David Simon Weeps

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John Judis:

I don’t usually contact newspaper editors, but at least a year ago, I called up the editor at the Post whom I understood to be in charge of reporting about the Metro system. She didn’t answer, but I left a message saying that as a regular rider on the Metro’s Red Line (where the crash occurred), I had come to believe that the system was breaking down. There were long delays almost every day from trains malfunctioning. The escalators at the subway stops never worked. It was clear to me–a layman and novice rider–that something very bad was going on with the system, and I suggested she (it was a woman as I remember) put some reporters on the issue.

I’m not saying this to take pride in my predictive powers. The breakdown of the system (and it was fairly sudden) was obvious to anyone who was riding it regularly. And I am sure that if I called, many other people must have written letters or emails or made calls.

There were a few scattered stories about management or train problems, but nothing like the kind of extensive front page day after day expose that would have triggered action. I don’t know, but maybe it might have prevented the crash this week. No, the newspaper was too busy assigning its metro reporters to do a year-long investigation of “Who Killed Chandra Levy?” The result of that exercise was a meandering twelve part series on Levy’s death that failed to answer the original question. The police, fortunately, answered it months later. I have never seen such a sheer waste of journalistic talent.

And now in the wake of the Metro crash, how is the newspaper responding? With a front page fluff piece on three people who survived the crash. Maybe it’s a wonderful piece, a real tear-jerker by an author with the skills of a Tony Lukas or Joan Didion. I don’t know, because I am not wasting my time reading it. I am still waiting for the newspaper to do what local newspapers should do, and get to the bottom of what happened, and do it in a way that will prevent future crashes.

This is how I feel about local newspapers. I’m not sure there ever was a golden age of reporting, but I’m quite certain that the rise of alternative media – blogs, news channels, etc. – make the personal interest stories … well, less interesting. I’d love more information on why accidents happen, what it would cost to prevent them, and what can be done. And that’s really only a story someone with access can tell.

I don’t need extensive stories to know that tragedies were tragic for the victims. If there is nothing else to write on or if it’s brilliantly written that’s one thing, but the lack of investigative journalism on metro areas is actively making things worse.

Put it this way: outside of the NY Times, describe what newspapers do right nowadays. I’d have more sympathy for their war to save themselves if they fulfilled n important public niche. They did once, I’m not sure how well they do nowadays.

Written by John Whitehouse

June 29, 2009 at 2:54 pm

Posted in News Media

Everybody Calm Down, Franken Will Be Certified Eventually

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Panic! What if the Minnesota Supreme Court does not order Pawlenty to sign the certification?

These musings from Gov. Tim Pawlenty (R-Minn.) don’t seem to add much to the status of the Minnesota Senate race.

I’m prepared to sign [the certification] as soon as they give the green light. I’m not going to defy an order of the Minnesota Supreme Court. That would be a dereliction of my duty.

But what’s the “green light?” If the court rules for Democrat Al Franken but doesn’t specifically order the governor to sign a certificate? Will he? Signs point to no; he suggests that he’d abide by a stay if one was issued by a higher court. And there would be considerable pressure on Pawlenty to wait for former GOP Sen. Norm Coleman’s next move even if the state Supreme Court ordered the signing of a certificate; that action could, theoretically, be stayed.

My expertise in this area is limited (I was in the room when Mark Ritchie talked about the case for an hour a month ago), but I don’t think this should be a big concern. There’s no real legal issues that make this case compelling to the U.S. Supreme Court, and even if the Minnesota Supreme Court does not issue an order for the certificate (which they probably will), Franken could file suit for an order for Pawlenty to do that. Point being, Pawlenty can’t hold out forever in legal limbo – this will end sooner or later. And all signs point to it being sooner, unless one of the Courts issues a surprising opinion. That has happened before, but the odds are against it. For now, patience is in order – in the case of a surprising ruling, there will be plenty of more time to consider why that happened and what that means. Ritchie has said that he expected this case to conclude with the Minnesota Supreme Court. While there will be pressure if the court does not order the certificate, the pressure will be bipartisan. Obviously, with Pawlenty looking to run in 2012 likely, he will be under pressure to hold out, but he risks being viewed as highly partisan if he does that.

And if he’s viewed as really partisan, he’s really just a poor man’s Sarah Palin. His appeal is through a bipartisan approach. That makes this a doubly tough spot for Pawlenty. He may very well be hoping the Minnesota Supreme Court takes the decision out of his hands.

Written by John Whitehouse

June 29, 2009 at 2:09 pm

Posted in Law, Politics

Who Is Enforcing the Convention Against Torture?

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Civil liberties advocates are upset that the Obama administration, contra campaign promises, is not prosecuting cases under the Convention Against Torture. Daphne Eviatar writes:

Marcy Wheeler made a great point on Friday that’s worth following up on. President Obama’s declaration to commemorate the 25th anniversary of the United Nations Convention Against Torture tosses the responsibility for developing “effective policies and programs for stopping torture” to the State Department, asking it to “solicit information from all of our diplomatic missions around the world …”

But the President’s speech seemed primarily aimed at stopping torture abroad, which is presumably why he’s called on the State Department to get involved. But what about torture committed by our own government?

I know some are still debating which techniques constitute “torture” — such as in this scolding piece from The Washington Times — but because the Convention Against Torture, which the president was commemorating, prohibits torture AND cruel, inhuman and degrading treatment, as I’ve noted before, at this point we can put that debate aside. There’s little question that the sort of techniques engaged in by U.S. government officials — whether partial drowning, “walling,” weeks ofsleep and food deprivation or locking detainees inside a tiny box with what were believed to be deadly insects is, at the very least, cruel and degrading.

It’s odd, therefore, as Marcy points out, to see the president — who vowed on his third day in office to end torture — refusing to prosecute those who engaged in acts that clearly violate the anti-torture convention he commemorated on Friday.

The answer to the question strikes me as rather obvious: Obama is concerned not with proseecutions, but with prosecuting the war on terrorists (or whatever silly abbreviation is now en vogue) in a responsible way without using terrorists, and not prosecuting past offendors. This is obvious because that is what Obama has said.

The key excerpt from his address to the CIA:

What makes the United States special, and what makes you special, is precisely the fact that we are willing to uphold our values and our ideals even when it’s hard, not just when it’s easy; even when we are afraid and under threat, not just when it’s expedient to do so. That’s what makes us different.

So, yes, you’ve got a harder job. And so do I. And that’s OK, because that’s why we can take such extraordinary pride in being Americans. And over the long term, that is why I believe we will defeat our enemies, because we’re on the better side of history.

So don’t be discouraged by what’s happened in the last few weeks. Don’t be discouraged that we have to acknowledge potentially we’ve made some mistakes. That’s how we learn. But the fact that we are willing to acknowledge them and then move forward, that is precisely why I am proud to be president of the United States, and that’s why you should be proud to be members of the CIA.

Essentially Obama is arguing that the benefits of prosecution are also gained by admitting mistakes, that essentially the torture was the fault of the state and not individuals. There’s no real legal basis for this, as far as I can tell, outside of normal prosecutorial discretion.

Moreover, it’s easy to sit on the sidelines and say that Obama should start prosecuting people that he’s counting on to protect the country. But its difficult for a President to pull that trigger – one terrorist attack and the rest of Obama’s agenda is down the tubes for a long time.

In related news, a left-leaning government in Spain is abandoning universal jurisdiction – in which their courts were able to investigate anything – and towards jurisdiction that appears to be based on the passive personality principle, in which a connection to the country in required:

In parliament, [the left-leaning Spanish government] is sponsoring a controversial change in the law, which would limit the future scope of universal jurisdiction to cases in which (i) the victims are Spanish, (ii) the alleged perpetrators are in Spain, or (iii) some other clear link to Spain can be demonstrated. On Thursday, the proposal was approved by lawmakers in the lower house by an overwhelming 341-2 vote, with three abstentions. Senate approval is seen as a formality.

“Without a connection to Spain, it presents problems of obtaining proof and co-operation from other states. And then the cases do not conclude.”
He has a point. All too often, inquiries by the Audiencia Nacional have produced complex legal arguments with the states concerned, filling pages of court documents but rarely the dock. Only Rodolfo Scilingo, an Argentine former naval officer, has been convicted in Spain under universal jurisdiction – although the court’s defenders point out that a second Argentine, Ricardo Cavallo, was extradited from Spain to face trial back home.

The government’s approach has appalled campaigners who argue that, with or without convictions, the Audiencia Nacional has commendably shed light on dark acts committed by closed regimes.

“Universal jurisdiction doesn’t necessarily work,” argues Angel Lossada, Secretary of State for Foreign Affairs, explaining the government’s policy.

This is relevant, since the argument by some here in the US favoring prosecutions is that under the Convention Against Torture, states are required to exercise universal jurisdiction.

Glenn Greenwald, just over a month ago:

The views that Ronald Reagan not only advocated, but signed a treaty compelling the U.S. to adhere to, are ones that are now — in the view of our dominant media narrative — the hallmarks of The Hard Left: torture is never justified; there are “no exceptional circumstances” justifying it; it must be declared to be a serious criminal offense ; and — most of all — the U.S., as Ronald Regan put it, “is required either to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution.” Reagan’s explicit view that the concept of “universal jurisdiction” permits signatory nations (such as Spain) to prosecute torturers from other countries (such as the U.S.) is now considered so fringe that it’s almost impossible to find someone in mainstream American debates willing to advocate it.

My emphasis.

Greenwald was arguing for universal jurisdiction, but now with Spain yet another advocate of that view is going out. It’s not just countries. International tribunals like the International Court of Justice have viewed exercise of that type of jurisdiction skeptically in recent decisions. The wikipedia listing of universal jurisdiction seems mostly accurate (though a bit unnecessary to have Henry Kissinger as the main opponent of it gives how it’s fallen into disrepute.

As it exists, the legal framework allows states like the US to flaunt the convention. As it is, a country is on an honor system to obey the convention, with the only check of international tribunals to enforce it – and those international tribunals are voluntary (and using a realist lens, they’re representative of a global coalition exerting pressure). Of course, the US is likely in an unseemly group in countries flaunting the convention as it is, and I’m no happier than that than you are (really, I’m anti-torture … I also have a realist/pessimist streak depending on your point of view). But there’s essentially a giant gap in the legal framework that exists, and Obama is steering the country through that gapto save the rest of his agenda.

I want to spend more on this topic in future posts as well, to hopefully refine my position a bit more and make it more clear. For the moment, I’d just appreciate if no one called me a pro-torture sympathizer. I just don’t see any realistic option for prosecutions being in Obama’s interest. And if you can’t make a legal system that makes prosecuting in your best interest, you failed at building a system for the times.

The legal framework for the new wwar – whatever you want to call it – is still being figured out. That’s the most important thing happening right now, and whether person X is prosecuted or not for torture is a small part of that.

Written by John Whitehouse

June 29, 2009 at 1:41 pm

Posted in Foreign Policy, Law

Tagged with ,