Disturbed and Uncertain

I was going to do a passionate denunciation of the recently passed detainee bill, but I'm now not sure that what I thought was its most outrageous aspect is actually in there. Nonetheless, there is plenty I either dislike or am queasy about. Although the question of how to interrogate suspected terrorists, and what to do with them afterwards, is not easy either conceptually or morally (or legally).

I'll post more analysis when I have time and energy, but on the subject of the statute's removing federal court habeas corpus jurisdiction and otherwise restricting federal judicial review:

--I gather the issue of when non-citizens have habeas corpus rights may be complex, or maybe I just haven't seen the right sources explaining it.

--Whatever the scope of habeas corpus, the Constitution says it can't be suspended except in cases of rebellion or invasion. Neither of which is happening. The Constitution (Article III, Section 2., second paragraph) does say that the U.S. Supreme Court has appellate jurisdiction, as to both laws and fact, over a host of matters "with such Exceptions, and under such Regulations as the Congress shall make." Lower federal courts exist only "as the Congress may from time to time ordain and establish" same -- which could be read to allow that they be established with the same sorts of "Exceptions". Also, it's not entirely clear that the Founders intended the U.S. Supreme Court to have the power to declare statutes unconstitutional. HOWEVER -- now that we have hundreds of years of case law saying that the federal courts do have that power, then it seems to me we cannot read Article III, section 2. as making it perfectly OK for Congress and the Executive Branch to conspire to pass unconstitutional laws by prohibiting the courts from calling them on it.

By the way, appellate jursidiction as to fact is part of what the detainee statute explicitly purports to take away. Which leaves detainees without recourse if the military commission makes utterly unsupported findings of fact -- unless you can call that a legal issue, or unless the statute's own procedures say that factual findings must be supported. (I don't have the energy right now to read it through looking for the latter.)

UPDATE: a reasonable way to read the "exceptions and regulations" language is that Congress could, in some initial legislation, have done some fine-tuning of the Supreme Court's jurisdiction, as long as it didn't outright remove any of the broad categories of jurisdiction listed in Article III, sec. 2. That'd be quite a different kettle of fish from passing a statute later on that violated some part of the Constitution, and then tacking on a tailor-made exception to keep the Court from entertaining challenges to that statute.

My New Slogan

Here's my latest slogan, ready to put on a bumper sticker or T-shirt:

"JUST SAY NO . . . to the Caliphate."

As for what I'm talking about, see this article by Daniel Pipes of the New York Sun., or this one by James Brandon for the Christian Science Monitor.

Caveat re Constitutional Law

To clarify a slightly earlier post: I wrote (in general terms) about the significant differences between the ACLU principles I grew up with (as I then understood them, at least), and constitutional law as it has been shaped by the U.S. Supreme Court. I do not mean to say that when ACLU and USSC are in conflict, I always agree with the USSC. For example: not that anyone cares, but I do not endorse the degree to which 4th Amendment protections have been eroded during the drug war. I have also felt for many years that the right to peaceably assemble is under-protected in comparison with the rights to freedom of speech and of the press. ("Time, place and manner" regulations of an assembly are intrinsically more burdensome than "time, place and manner" regulations of primarily verbal expression.)

And I emphatically do not endorse the decades-long weakening of the fundamental principle of limited federal powers, with the concomitant drastic expansion of the scope of the Commerce Clause. I was cheering for the turn toward constitutional reality that U.S. v. Lopez seemed to herald. Raich v. Ashcroft (aka Gonzales v. Raich - ??) largely squelched that hope, and the Rapanos/Carabell cases were not much more encouraging.

Mission Statement

Here's a mission statement I'd like to see from Bush & co.:

"We are fighting those who want to establish an Islamic theocracy over most of the world. It is necessary to fight them because, even though they're religiously batshit, not all of them are technologically batshit or logistically batshit."

Bureaucrats and Secular Puritans

I'm not surprised, but I'm still ticked off -- even though it doesn't directly affect me.

The local public schools, based on what they say is state law, are telling parents not to bring home-baked goodies to school on their kids' birthdays -- because home kitchens aren't Inspected the way commercial kitchens are. And because sugar is sinful, anyway. Not their language, but that's the underlying feeling, as I read it.

We've got an unholy coming-together (damn, I know there's a word for that!) of governmental nannies and busybodies who think every human activity needs their oversight and regulation, and the contemporary secular equivalent of Puritans, who don't want people indulging in anything that's fun instead of wholesome. (Hey, guys, remember that chocolate is good for you after all!...)

And again I say DAMN! -- Americans should be able to sell or give away food from their kitchens without interference! Are we supposed to be unable to figure out that people's kitchens vary, and that there's some slight theoretical risk that a particular household is too sparing with the disinfectant? Or must we march on toward the utterly impossible goal of risk-free living?

Shopping while hungry

So this is what happens when I eat breakfast too early and go to Marsh at 10 a.m.:

--polenta (which I have eaten in restaurants once or twice and don't know how to prepare -- but the package says I can just "heat and serve"...)
--breaded chicken livers
--half a spinach quiche
--3 ounces of smoked salmon, which must be kept at 38 degrees F or lower, and I have no idea how cold my refrigerator is, except I think it's pretty cold
--half a chocolate cake (my eldest had requested this one)
--grape tomatoes, even though I had some, because the ones I had were getting wrinkly

Now I'm trying to stall eating it.

An Echo of my Past

I'm just now getting around to posting my reactions to a Molly Ivins column from late August. She's discussing the opinion by federal district court judge Anna Diggs Taylor, holding the NSA warrantless surveillance program unconstitutional. Ivins notes that many "soi-disant" (self-styled -- I had to look it up) legal scholors are complaining that Judge Taylor's opinion was not well written. (More on that in a moment.) Her response: "Nevertheless, warrantless spying is illegal. Did it ever occur to these literary critics that Taylor has a lay-down hand? The National Security Agency program is flat unconstitutional . . . ."

Ivins doesn't appear to be troubled by even a hint of doubt about what the law is. She betrays no sign of knowing that the case involved -- and should have turned on -- several very complicated legal issues. Assuming that she's not being disingenuous, I think I know where she's coming from.

I grew up in the ACLU the way Catholics grow up Catholic. The creed I absorbed was quite straightforward. I wouldn't have stated, in so many words, that civil liberties were simple and absolute, because those terms would have suggested the possibility of limits and complexities. (Disclaimer: I'm not saying that ACLU's lawyers held or hold such views. I can't say the extent to which my parents, extremely intelligent laypeople and first generation Americans, saw the shades of gray that I didn't even imagine.)

It was a significant shock to get to law school, take constitutional law, and discover that the case law of the U.S. Supreme Court did not always uphold what I believed to be our constitutional rights. I wish I could remember more details about that encounter with cognitive dissonance. I'm not sure how Molly Ivins has protected herself against similar disorienting experiences -- but it appears she has managed it.

As for Judge Taylor's opinion: here are links to a few comments from the "soi-disant legal scholars", otherwise known as law professors whose widely read blogs regularly include technical legal commentary.

--Prof. Ann Althouse's op-ed in the New York Times;
--an August 17, 2006 post by Prof. Eugene Volokh;
--Prof. Orin Kerr's August 18, 2006 post about the opinion, the criticism of the opinion, the criticism of the criticism, and how the opinion's defenders are unwittingly echoing the arguments of President Bush's supporters.

UPDATE: see more recent post, "Caveat re Constitutional Law".