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".

Heads gotta roll

Call me an armchair overseas military planner, but I do believe something drastic had better happen in the Israeli military. They rested on their laurels and forgot how to be the amazingly effective fighting force that Israel still needs. Major housecleaning and redirection of energies is indicated. Someone is a lot more likely to call the next bluff, so it had better not be all bluff.

the ones that didn't get away

I've been too sluggish and too busy (not a great combination) to blog, even though I've had a few ideas for a change, and now I can't remember all of them. So here's what I can still dredge up:

--Braces are a whole different critter than when I had them. Elder Daughter is now sporting what I'd call tooth jewelry. It's delicate, rather pretty, and directs attention away from the crookedness of the underlying teeth. What I wore certainly merited the term "metal mouth".

--It is Not Good to start five days out of seven with the bone-deep knowledge that I shouldn't have to be awake yet. This is at the top of my gripes with the school year (my kids', that is). And of course, it is a terrible idea to get my night-owl insomniac teenage daughter out of bed at 6:35 a.m. -- which leaves barely enough time for her to make the bus.

I assure you that those ideas that have gone a-glimmering were more profound. Even.

A Moment of Peace Dearly Bought

Is there any way to look at this Israeli-Lebanon ceasefire other than, "Hezbollah wins"? Or less succinctly: "Many Israelis and even more Lebanese died so Hezbollah could win"?

I hope to G-d we didn't pressure Israel into this. That would bode extremely ill for our own future in the war against Islamist jihadism.

I can find a silver lining or two. Israel now knows, though I hope its intelligence forces already knew, how sophisticated and well-prepared Hezbollah has become. The rest of the world knows it too. That's a mixed bag, but may eventually come in handy.

And maybe there's some complex and under-the-table way that this is preparation for some move by somebody against Iran or Syria. But I ain't betting on it.

reaping

Once a year, at least -- rarely, twice -- my daughters and I go to visit my parents and much other family in Los Angeles, CA. And every year, as our date of returning to Indiana bears down on us, I get to explain to one or both daughters just why my husband and I decided to leave Los Angeles and start our family so far away.

This year, my younger daughter's anguished questions focused on just why we didn't fully appreciate how weird and wrong it would seem to spend so little time in a place that feels so like home, full of family we love. She hasn't quite focused yet on the fact that every time we visit, it may be the last time my parents or aunts or uncles are there, or are healthy, or are able to enjoy our visit and their own lives.

I try to remember the reasons and the way we weighed them -- the way I weighed them. My husband had disliked southern CA from the moment he got there (seeking a major change of scene). I didn't see it as the best place to raise a family. Bloomington, IN sounded like it might be a better one. I'd lived away from my parents and the other L.A. relatives for much of my adult life up to that time. I was younger, all the relatives were younger, this part of our lives ws dimmer in the distance. My parents didn't have a slew of doctors they would have to live near, and we knew less about why they wouldn't be comfortable in Indiana -- not that I think we thought about that very much.

If I hadn't been willing to relocate, Paul and I might well have parted -- our bond was still tentative then. And of course, if anything -- even far less major events -- had been different, our children would have been conceived at different moments and they wouldn't be the same children....

It's still not right, even if I can't say (as if it would matter if I said) that I want the alternate never-leaving-L.A. future with all its implications.

two hands

On the one hand, it's frustrating and too bad that this last week of summer vacation, I'm too busy and too jet-lagged to enjoy sleeping late.

On the other hand, it's a good thing I have this last week to recover from jet lag before I have to resume getting up at a ridiculous hour.

Did Israel decide Iran had enough rope?

So Israel has decided to treat the latest act of war by Hezbollah as, by gum, an act in a war, and is fighting a war in return. Israel's ambassador to Washington is also talking very tough about Iran's part in Hezbollah's activities.

I wonder if this is as much about how to solve the problem of Iran-about-to-have-nukes as about Hezbollah. Perhaps Israel has been biding its time, waiting for Iran's interference in Lebanon to become blatant enough that (a) there'd be sufficient provocation to go into Lebanon and (b) attacking Iran would be a logical next step. If Iran's nuclear program wasn't sufficient casus belli, now Israel has a better one.

Meme offered -- jobs you'd be lousy at

As I was wondering what the heck I could post, since I haven't been posting often enough for anyone to keep checking my blog, I recalled occasional past thoughts of being a columnist. Clearly I don't have something to say often enough to be good at that job. Hence the meme: what jobs would you be lousy at, suck at, be promptly fired from?

--Cook. I barely and rarely cook, even after producing a daughter who claims to want to be a chef. When I do cook, it's either assisting her, or using the crockpot. I'd say I generally assemble meals rather than cook them.

--Taxi driver. I have overcome a fear of driving that haunted me through and beyond my 20's, but I still have no sense of direction to speak of. I could get people places, but I'd spend too long studying maps.

--Truck driver. I do not like driving anything big. My CR-V is at my limit.

--Teacher of masses of young children. I have insufficient patience, am not very playful (except verbally, to some extent), and have no idea how to control more than three kids at a time. (I have two.)

--Waitress. In college, when people typically brought coffee back to a tableful of people in the dining room, I could barely manage two cups. I do not have much upper body strength and couldn't balance anything tricky with one arm. I have a fairly bad memory, and I constantly forget what I left or entered a room for. The diners would lynch me before my first shift ended.

--Anything that requires a lot of physical strength/lifting ability.

--Con artist. I'm a lousy liar and dislike trying to lie.

Anyone else want to play?...

There shouldn't be a way to get there from here

OK, here is how the National Academy of Sciences summarizes its recent report on global temperature over the centuries:

"There is sufficient evidence from tree rings, retreating glaciers, and other "proxies" to say with confidence that the last few decades of the 20th century were warmer than any comparable period in the last 400 years, according to a new National Research Council report. There is less confidence in reconstructions of surface temperatures from 1600 back to A.D. 900, and very little confidence in findings on average temperatures before then."

And here's how the Associated Press summarizes the same report:

"It has been 2,000 years and possibly much longer since the Earth has run such a fever.
The National Academy of Sciences, reaching that conclusion in a broad review of scientific work requested by Congress . . . ."

Scuse me?? !

Not only in biology

I gather there has been some recent support for the hypothesis that too clean an environment is bad for children's development. If kids don't have bacteria and dirt to exercise their growing immune systems, those systems don't, in effect, learn what they're supposed to be doing, and instead go apeshit about the wrong stimuli. Result, the ongoing increase in allergies and asthma.

Is it too cute to draw a parallel between this problem and the effect of our overall societal obsession with safety? If people don't grow up in an environment with a certain baseline level of risk, if they don't learn how to handle some risk as a matter of course, what may be the permanent distortions in their social and political development, and what sort of society will they produce?...

the Dixie Chicks are dissing me

I was not particularly hot and bothered about the infamous Dixie Chicks remark (something like "we're embarrassed the President is from Texas") -- although I didn't think much of their (well, her -- the lead singer's, I guess) judgment in making this crack to an audience outside the U.S. I don't know whether it was more self-expression or pandering to an anti-Bush audience. Certainly, some of the reported reaction was way out of line. (Boycott, sure, if you feel like that. Death threats, go lock yourself up.) But I think I am by now fed up with the angry smugness and offhand condescension that has been showing up in their interviews. They seem to be making a point of telling country music listeners that the Chicks are too smart and cool and progressive to want their patronage.

So why is their new album -- consistently reviewed as not really country in sound -- going to debut as #1 on some country music chart(s)?? Do that many listeners miss their music that much??

Publicity is not always the obvious answer

So. We have personal data on millions of veterans in a laptop computer. It's stolen in a routine burglary. The chance that either the thief or the fence knows they have a gold mine of data: pretty small. Eventually, some user may stumble on this data. Chance that this user, this purchaser of a hot laptop, will have the know-how and mindset for massive identity theft, or for marketing the personal data: hard to determine.

If I had to decide whether to alert millions of veterans, giving them a chance to protect themselves but greatly increasing the chance that some bad guy would know what s/he was sitting on -- it wouldn't be an easy call, and I probably wouldn't make it overnight.

So maybe we should cut the VA some slack on this one.

Open Bed, Insert Child

My daughter liked that description of how quickly I would put her to bed if I allowed her to stay up and watch a late-evening television show on a school night. (Her usual bedtime ritual is a good deal more prolonged.)

About that wolf

I consider it simplistic and inaccurate to label Bush's actions re Iraqi WMD as "crying wolf". However, even accepting that formulation for the sake of argument, and considering the threat posed by Iran in that light, there is a fairly important aspect of the original fable that people should keep in mind:

The last time, when the villagers didn't come running, a real wolf showed up.

And the flock Bush is guarding is us.