The Limits on "Religious Freedom"

Apparently, in the minds of some people, there are none. At least, not for them:

The ACA has a series of outs for religious employers who say medication like contraception violates their moral beliefs. It’s essentially three-tiered: for-profit organizations have to cover contraception in their health plans; explicitly religious organizations like churches don’t have to provide contraception if they believe birth control is morally wrong; and religiously-affiliated non-profits that are neither owned nor controlled by religious groups do not have to provide contraception either, but they have to fill out a form certifying that they are religiously-affiliated, and then a third party administrator makes sure that employees can get contraception if they need it. The third-party administrator, and not the employer, pays for contraception coverage.

In the case that led Sotomayor to issue the injunction, an organization called the Little Sisters of the Poor Home for the Aged objected to the ACA’s contraception requirement. All the Little Sisters have to do is fill out a form and the organization will be under no obligation to pay for birth control for its many employees – which include home health aides, nurses, administrators and a variety of women who may not be Catholic or, like 98% of sexually active Catholic women, may choose to use a birth control method other than natural family planning – but apparently a form is too great an intrusion on their religious liberty.

Got that? Filling out a form that excuses them from directly providing contraception to their employees, which would violate their religious freedom, violates their religious freedom.

This is sort of a hallmark of the religious right -- or, frankly, the right in general: they, and no others, have the right to unrestricted freedom.

Sadly, there's no such thing. All freedoms have limits, the more so when you live in a social grouping -- like, say, the United States.

Here's an analysis from Ian Milhiser at ThinkProgress with a key detail.

Today's Required Reading

Gaius Publius at AmericaBlog has done my work for me this morning, taking off from stories by John Schiffman and Kristina Cooke at Reuters and Yves Smith at Naked Capitalism. Just a few key points from those articles:

A secretive U.S. Drug Enforcement Administration unit is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.

… The unit of the DEA that distributes the information is called the Special Operations Division, or SOD. Two dozen partner agencies comprise the unit, including the FBI, CIA, NSA, Internal Revenue Service and the Department of Homeland Security.

So all these agencies -- two dozen, you got that? -- are funneling information into DEA. Why DEA? Well, the program was started in 1994 as a resource to fight Latin American drug cartels. But the DEA doesn't just sit on the information. No, it shares it.

Today, the SOD offers at least three services to federal, state and local law enforcement agents: coordinating international investigations such as the Bout case; distributing tips from overseas NSA intercepts, informants, foreign law enforcement partners and domestic wiretaps; and circulating tips from a massive database known as DICE.

The DICE database contains about 1 billion records, the senior DEA officials said. The majority of the records consist of phone log and Internet data gathered legally by the DEA through subpoenas, arrests and search warrants nationwide. Records are kept for about a year and then purged, the DEA officials said.

About 10,000 federal, state and local law enforcement agents have access to the DICE database, records show.

And as Gaius Publius points out, the information doesn't necessarily stop with those local cops. Being a Chicagoan, I know better, and I'm going to take it one step farther: you can bet that information is finding its way to outside parties -- non-law enforcement -- who have an interest. In return for (insert your favorite quid pro quo here).

And then when they nail someone based on an "anonymous tip," they lie about the source.

After an arrest was made, agents then pretended that their investigation began with the traffic stop, not with the SOD tip, the former agent said. The training document reviewed by Reuters refers to this process as “parallel construction.” … “Parallel construction is a law enforcement technique we use every day,” one official said. “It’s decades old, a bedrock concept.”

Gee, perjury on the part of prosecutors. Who would have guessed?

Smith draws an interesting parallel:

In a weird but more disturbing analogue to chain of title abuses, where banks would forge signatures and fabricate documents to remedy the failure to transfer assets properly to securitization trusts, Reuters reported today that the Drug Enforcement Agency would doctor up where it got evidence from so it could use it in court. Now why would the DEA bother to go to all that trouble? Chorus: Because if a decent defense lawyer found out where it came from, it would in most cases be inadmissible.

Just another facet of the corporate state: Banks and the Feds operating on the same principles. And who else, do you suppose?

But it's all for "national security." There, don't you feel safer?

Read GP's post, then dig into the linked articles.

And then check your blood pressure.

Out In the Open

It seems there's been a spate of public honesty lately, usually from people who probably shouldn't have opened their mouths. The latest example to cross my radar is one Alessio Rastani, a stock trader who tells all. From David Atkins at Hullabaloo:

But of course, the greatest honesty in his rant is not about his love of profit from economic calamity, but rather his frank admission that the financial industry owns the world's governments lock, stock and barrel. Some would call that arrogance. I would call it a frank assessment of reality. Senator Durbin has already admitted as much for the American government; the only surprise is in hearing such candor from one of the Wall St. players on the inside.

So you see, it's not that I'm paranoid. It's just that I can connect the dots.

"Liberty and Justice for All"

I've been under the weather for the past couple of days -- which is putting it mildly, but I'd rather not dwell on it. I'm back to normal, though, whatever that is.

Happy 4th of July, and I hope everyone will take some time today to think about what those words in the title of this post really mean. That is what counts as real "traditional American values."

As a footnote to that idea, read this piece from Ed Brayton on the writing of the Declaration of Independence:

The assertion that each individual had rights that were unalienable and that the principal job of government is to secure those rights had never before been declared so boldly.

The more I read about what's going on in Washington -- and Wisconsin and Ohio and Florida and any number of other places in this country -- the more I realize we're in danger of losing it completely.

In other news, I've finally connected with Red's latest CD, Until We Have Faces. It took awhile, but we found some common ground at last. Look for more on that in Reviews in Brief sometime soon.

And on that note, I've got a lot of catching up to do. We'll see how I manage.

FISA

I've just spent a few minutes writing Speaker Pelosi and my Congressional delegation about the House's FISA bill, which I discussed yesterday:

Dear Speaker Pelosi:

I am gratified that the House has passed the FISA bill without retroactive immunity for telecoms and with provisions that safeguard our basic liberties while also enabling our intelligence services to do their jobs. I have to admit I was also somewhat surprised -- it was an unexpected victory for Americans.

I was also delighted to read your speech concerning the bill; this quote particularly stuck in my mind:

"We understand our responsibility to protect the American people. What the president is trying to do is something that we think should be stopped. I am stating a fact. The president is wrong, and he knows it."

I can't tell you how refreshing it is to hear someone in Washington acknowledge reality. Thank you for that.

And don't back down.

Copies sent to Rep. Schakowsky and Sens. Durbin and Obama.

Take a few minutes. Send your own e-mails. They need to know what somebody besides their corporate contributors thinks about it.

Footnote: Here's post from BooMan with some interesting details on the NSA's attempts to enlist the telecoms, quoting this story from USA Today:

According to sources familiar with the events, Qwest's CEO at the time, Joe Nacchio, was deeply troubled by the NSA's assertion that Qwest didn't need a court order — or approval under FISA — to proceed. Adding to the tension, Qwest was unclear about who, exactly, would have access to its customers' information and how that information might be used.

Financial implications were also a concern, the sources said. Carriers that illegally divulge calling information can be subjected to heavy fines. The NSA was asking Qwest to turn over millions of records. The fines, in the aggregate, could have been substantial.

The NSA told Qwest that other government agencies, including the FBI, CIA and DEA, also might have access to the database, the sources said. As a matter of practice, the NSA regularly shares its information — known as "product" in intelligence circles — with other intelligence groups. Even so, Qwest's lawyers were troubled by the expansiveness of the NSA request, the sources said.

The NSA, which needed Qwest's participation to completely cover the country, pushed back hard.

Trying to put pressure on Qwest, NSA representatives pointedly told Qwest that it was the lone holdout among the big telecommunications companies. It also tried appealing to Qwest's patriotic side: In one meeting, an NSA representative suggested that Qwest's refusal to contribute to the database could compromise national security, one person recalled.

In addition, the agency suggested that Qwest's foot-dragging might affect its ability to get future classified work with the government. Like other big telecommunications companies, Qwest already had classified contracts and hoped to get more.

Unable to get comfortable with what NSA was proposing, Qwest's lawyers asked NSA to take its proposal to the FISA court. According to the sources, the agency refused.

The NSA's explanation did little to satisfy Qwest's lawyers. "They told (Qwest) they didn't want to do that because FISA might not agree with them," one person recalled. For similar reasons, this person said, NSA rejected Qwest's suggestion of getting a letter of authorization from the U.S. attorney general's office. A second person confirmed this version of events.

Is it any coincidence that Nacchio was investigated and indicted? (See "Politics of Corruption" below.)

FISA, Again

Here's Digby on Harry Reid's determination to ram Bush's FISA bill through the Senate. Here's the post by Glenn Greenwald that she's working from, with the money quote:

To do so, Reid announced that, unlike for the multiple filibusters from Republican colleagues, he would actually force Dodd and company to engage in a real filibuster. This is what Reid said:

[I]f people think they are going to talk this to death, we are going to be in here all night. This is not something we are going to have a silent filibuster on. If someone wants to filibuster this bill, they are going to do it in the openness of the Senate.

That is what Democrats have been urging Reid to do to the filibustering Republicans all year -- in order to dramatize their obstructionism -- but he has refused to make them actually filibuster anything, generously agreeing instead that every bill requires 60 votes. Instead, he reserves such punishment only for the members of his own caucus trying to take a stand for the rule of law and the Constitution, those who are trying finally to bring some accountability to this administration.


Reid's leadership in the Senate has been nonexistent, and I'm really tired of his pandering to the Republican minority -- did you hear that, Harry? MINORITY. I really wonder how many contributions his campaign fund has gotten from telecoms and their lobbyists and employees. It would be interesting to see those figures.

Scary Picture

This is a graphic representation of the degree of surveillance under which citizens in various countries live, including the US and Europe, via Wired. Do follow the link and read that post. Greece and Romania score significantly higher on privacy protections than the US. Hell, Argentina is significantly better than the US.

And just keep all this in mind the next time you use your preferred customer card at the grocery store. It's not just the government -- in fact, the government is probably the least of it -- it's your phone company, your bank, your employer, your city government -- and your local Jewel.

Not very reassuring, is it? Especially for those of us in the land of the free.

Image: Privacy International and EPIC

Antidote to the Powerful

From Digby.

One of the biggest capital punishment cases to come before the U.S. Supreme Court in a generation was put together largely by a young, fresh-out-of-law-school member of Kentucky's overworked and underpaid corps of public defenders.

David Barron, 29, filed an appeal on behalf of two Kentucky death row inmates, arguing that the three-drug cocktail used in lethal injections across the country can cause excruciating pain, and thus amounts to cruel and unusual punishment in violation of the Eighth Amendment to the Constitution. . . .

"There's something to be said about representing the people who society casts aside," Barron said. "They are the ones often left to fend for themselves."

There are still heroes in this country.

Hate Crimes

I've been sort of mulling over this issue for a couple of days, since I saw this post by Matt at The Malcontent. I suppose I was thinking of hate crimes laws as one of those things that are probably good but seem to have a lot of baggage attached. I've seen arguments on the right against such legislation that never seemed quite to jell. I think this passage from Matt's post highlights some of the misconceptions -- or misrepresentations -- that seem to be prevalent on the right:

The sine qua non of the gay-rights movement has been "equality." Yet hate-crimes laws are the very essence of inequity. In singling out favored groups for protection, you must necessarily afford lesser protections to others. Proponents will tell you that a straight white male could theoretically be the victim of a hate crime, but in practice, it is rarely if ever the case. With a single piece of legislation, "hate crimes" undercuts everything we have tried to do to demonstrate to the rest of America that we want equality, not "special rights."

There are two elements to hate crimes laws, as there are to civil rights laws or any other legislation that denotes a class of citizen as singled out for protection. The most basic is the concept of "remedy": "harm" and "remedy" are so basic to American jurisprudence that I think it's safe to say it couldn't exist without them. People tend to forget that. Remedy is an attempt to right a wrong, in the case of hate crimes, one that is or has been countenanced by society at large. Absent this, hate crimes laws make little sense, and I can see how one could question their legitimacy. (This also applies to things like affirmative action, the infamous Title IX, and similar legislation that grew out of the civil rights laws of the 1960s.) It's simply that these laws are designed to curtail and hopefully repair as much as possible the effects of historic discrimination against certain groups. It's not that these groups are "favored" by the law. It's that they are recognized as having been historically disfavored and the law recognizes this as a basis for action. I think Matt's comment about a straight white male as a potential target of a hate crime makes my point: in practice, a straight white male is seldom the target of a bias-motivated attack. The point is, straight white males are not historically the victims of prejudice. (And it seems that in those areas we designate as "hate crimes," they are much more likely to be the perpetrators.)

This brings in the second element, which is particularly relevant to hate crimes legislation: as a matter of social policy, the government is saying that we will not tolerate violence based on irrational prejudice. In a society founded on the idea of rule by rational laws, this should come as no surprise. We want everyone to be treated equally. This is something that is intrinsic to our society, a basic component of our national ideals: not only do we want all to be equal before the law, but we want all to be equal in our daily lives, free of the fear that comes of being a target, not for something you've done, but just because of who you are. I think David Neiwert said it better than I can:

Hate-crimes laws are indeed relatively new laws. But they represent something that I think is a long thread running through our history, something many of us almost instinctively understand -- that is, the ethical imperative to stand up against the bullies and the thugs and the nightriders, because their whole purpose is to terrorize, oppress and disenfranchise the people they deem different or "not American."

(I'm not going to dwell on the idiocy of a statment like "In singling out favored groups for protection, you must necessarily afford lesser protections to others. " That should be self-evident. It echoes quite nicely the claims by the right that "everyone is protected against crime" [which is on its face laughable] and "giving rights to others takes away your rights," complete with semantic codes such as "favored groups.")

I've made the point elsewhere that "hate crimes" are not independent entities. They are simply a designation that allows for greater resources to be brought into play in investigating crimes motivated by bias. It's an attempt to bring motivation into play in the investigation and punishment of a crime, which, as Matt points out, is nothing new -- the difference between first degree murder and manslaughter is all about motivation. In the case of bias crimes, it's the specific motivation itself that is cause for concern, because of the fact that crimes motivated by bias are likely to be more violent and more extreme than others. (My source for this is Frederick Lawrence, from his book Punishing Hate: Bias Crimes Under American Law, as quote by David Neiwert in the post linked above.) "Hate cime" is also a concept that is not always understood clearly or applied appropriately. (For a prime example of "hate crime" run completely amok, see this story. Matt's attempt to conflate incidents like this with the attitude of all supporters of hate crime legislation is spurious. 'Nuff said.)

Perhaps hate crimes laws are not the best way to combat prejudice, but until we come up with something better -- or until we're all perfect -- I think we do have a real need for them, particularly in a country where tolerance is controversial. It doesn't really help Matt's argument that his position is echoed even more vociferously by the radical fringe with definite racist and homophobic overtones. (If you object to my including "racism" as part of the right's arsenal, please go back and read anything that Michelle Malkin has written on immigration.) I doubt very much that he wants to place himself in that camp. For a chilling analysis of the "religious" right's response to hate crimes laws, see this post by David Neiwert. I recommend that you click on the links at the bottom of this post, "Who Would Jesus Bash?" Neiwert has done some extraordinarily careful and thorough work on this topic.

And after looking at all this and finally thinking about it seriously, it's clear to me, at least, that aside from any personal considerations, and particularly now more than any time in the last century, we do need hate crimes laws. Badly.

The Enemy Within

This story from Mark Graber at Balkinization has been hitting the blogosphere the past couple of days.

I am posting the below with the permission of Professor Walter F. Murphy, emeritus of Princeton University. For those who do not know, Professor Murphy is easily the most distinguished scholar of public law in political science. His works on both constitutional theory and judicial behavior are classics in the field. Bluntly, legal scholarship that does not engage many themes in his book, briefly noted below, Constitutional Democracy, may be legal, but cannot be said to be scholarship. As interesting, for present purposes, readers of the book will discover that Murphy is hardly a conventional political or legal liberal. While he holds some opinions, most notably on welfare, similar to opinions held on the political left, he is a sharp critic of ROE V. WADE, and supported the Alito nomination. Apparently these credentials and others noted below are no longer sufficient to prevent one from becoming an enemy of the people.

"On 1 March 07, I was scheduled to fly on American Airlines to Newark, NJ, to attend an academic conference at Princeton University, designed to focus on my latest scholarly book, Constitutional Democracy, published by Johns Hopkins University Press this past Thanksgiving."

"When I tried to use the curb-side check in at the Sunport, I was denied a boarding pass because I was on the Terrorist Watch list. I was instructed to go inside and talk to a clerk. At this point, I should note that I am not only the McCormick Professor of Jurisprudence (emeritus) but also a retired Marine colonel. I fought in the Korean War as a young lieutenant, was wounded, and decorated for heroism. I remained a professional soldier for more than five years and then accepted a commission as a reserve office, serving for an additional 19 years."

"I presented my credentials from the Marine Corps to a very polite clerk for American Airlines. One of the two people to whom I talked asked a question and offered a frightening comment: "Have you been in any peace marches? We ban a lot of people from flying because of that." I explained that I had not so marched but had, in September, 2006, given a lecture at Princeton, televised and put on the Web, highly critical of George Bush for his many violations of the Constitution. "That'll do it," the man said. "

Here's Josh Marshall's take.


We've all seen the stories of bizarre variations on the "no fly" lists -- Sen. Ted Kennedy being barred from boarding was one of the most prominent -- but we haven't really thought about it very much, probably because the stories we've seen have been presented as flukes, the result of carelessness and lack of initiative, and have ignored the core issue -- governments abuse power. That is why we have always been leery of giving the government a lot of power, why the bulk of the Constitution -- and the Bill of Rights that is part of it -- is about limits on the power of the federal government and how the power it does have is to be allocated. Suddenly we see the executive arrogating to itself powers to which it has no right in law or tradition, and we sit there and nod, too many of us, because we're told it will make us "safer." I'm reminded of nothing more than the upscale urbanites who "need" SUVs because they offer more protection on the road. What's going to protect us from them? (Especially the ones who can't unpeel themselves from their cell phones long enough to actually drive the damned things.)

Professor Murphy's outrage, as expressed in the last paragraph of the letter published at Balkinization, is perfectly appropriate and should be felt by all of us. When you factor in things such as Attorney-gate (and see this post at TPM on that one) and the politicization -- or do I mean Christianization? -- of the Department of Justice (which started long before Alberto Gonzalez and Monica Goodling -- remember Ashcroft's daily prayer meetings?), the Patriot Act and the Military Tribunals Act, signing statements and everything else this administration has done, we have a real mess on our hands.

In essence, the Bush administration and its allies have spent the last six years undermining the Constitution in any way they could. It's been an underhanded, sneaky, back-door process because their philosophy is repellent to most Americans -- accountability and transparency in government, the rule of law, checks and balances, freedom of speech (and all the other freedoms we take for granted), all are anathema to this administration and its enablers if they are applied outside a small circle of like-minded intimates. In the free marketplace of ideas, they'd go home broke at the end of the day.

It will take decades to undo the damage that the Bush administration and its Congress have done to this country and its government. The real problem is that no one is going to try very hard -- once you have things like this in place, when the opposition comes into control it discovers that it likes the power.

We have to keep yelling.

)Crossposted at Politics.Wikia.)

Another David Hicks Post

From Lindsay Beyerstein at Majikthise, on this story:

Australia will not enforce a US-imposed gag on Guantanamo Bay detainee David Hicks despite it being a condition of the plea bargain that secured his release, Attorney-General Philip Ruddock said.

Hicks's US military lawyer, Major Michael Mori, has said his client could be sent back to Guantanamo if he talks to reporters.

But Ruddock said Canberra could not extradite Hicks back to the United States if he spoke to the media because he would not be breaking Australian law.

"In Australia, we have a position about freedom of speech," Ruddock told ABC television late on Tuesday.

Y'know, I like that attitude. I've had to deal with a gag order as part of a separation agreement from an employer who shall remain nameless. It was the typical corporate strong-arm stuff: sign the agreement or don't collect severance. Since the severance amounted to several thousand dollars, I signed. Just don't expect me to say anything about that company, because I can't tell you what I think of them.

Maybe Bush thinks he's just running another business. Fits his track record.

The Sad Case of Virginia

Considering the depths to which the Commonwealth of Virginia has fallen in recent years, this look back by Poputonian at Hullabaloo is a distinct nostalgia trip:

Be it enacted by the General Assembly of Virginia that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or beliefs; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.

And though we will know that this Assembly, elected by the people for the purpose of legislation only, have no power to restrain the acts of succeeding Assemblies, constituted with powers equal to our own, and that therefore to declare this act irrevocable would be of no effect in law; yet we are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present, or to narrow its operation, such act will be infringement of natural right.

This is a bill passed by the Virginia General Assembly in 1786, the year before the Constitutional Convention was convoked.

Susan Jacoby, in Freethinkers (link at Hullabaloo; it looks like a fascinating read), quotes Thomas Jefferson:

Expressing his pride in Virginia's leadership, Jefferson observed that "it is comfortable to see the standard of reason at length erected, after so many ages, during which the human mind has been held in vassalage by kings, priests, and nobles, and it is honorable for us, to have produced the first legislature who had the courage to declare, that the reason of man may be trusted with the formation of his own opinions."

I wonder what General Pace thinks of that idea. (See below)

What Took Them So Long?

Cully Stimson does have his defenders, at last.

From Cliff May at The Circle Jerk in the Corner™:

Many of those who criticize Guantanamo allege that detainees at the facility do not have legal representation. They are either misinformed or lying: Not only does the International Committee of the Red Cross have regular access to detainees, there also are scores of American attorneys representing detainees on a pro bono basis.

Why do they do that? Maybe it is because they are genuinely concerned about protecting due process for detainees. Or maybe it is because they are, as Stimson said “receiving moneys from who-knows-where.” (Or – and this is my conjecture – perhaps they are currying favor with governments and groups that are or can become rewarding clients.)

Notice, by the way, that May doesn't allude to the immense amount of pressure, including reams on negative publicity and several court cases, that finally got that legal representation for those incarcerated. That's a good example of mendacity, of a clumsy and rudimentary sort.

From his fellow jerker, Mark Steyn:

It seems an almost parodic illustration of the uneven playing field on which we have chosen to play: our enemies are extended every benefit of the doubt while the mildest observation on the part of government officials will prompt howls of outrage and sustained campaigns to hound them from office. . . .

Since then, the level of legal representation they’ve attracted is certainly striking. It may be merely the cachet that attaches to springing goatherds from the clutches of the Bush police state but it’s not inconceivable that it’s yet another by-product of the vast amount of walking-around money various jihad-friendly front organizations have sluiced about the western world. I agree that idle speculation isn’t terribly useful, but, given that The New York Times has managed to shut down the wire-transfer surveillance program, it’s pretty much all that’s left.

For those who aren't familiar with Steyn, as I wasn't until recently, he's a well-known right-wing extremist. I'm not familiar with May's writings, but he seems to share Steyn's complete lack of moral fiber.

I sometimes hate being right, but when the whole Cully Stimson flap started, I alluded to the fact that he'd done his job and the smear was out there. (From a post at EA Forums: "Granted, he doesn't repudiate the implied threats, but then I'm still pretty much convinced that was his mission. It wouldn't make any difference if he repudiated them or not -- the message is out there." Cross-posted to this blog here.). The fact that he was sacrificed, or chose self-immolation, take your pick, simply reminds us of one of the defining characteristics of the Bush administration. (And remember, this is a president who is "loyal" to his friends and supporters.) And of course, we could have expected the Corner to pick up the mantra. I'm just suprised it took them so long.

Andrew Sullivan claims that "this kind of smear really is beneath him," "him" in this case being May. I guess that only supports my contention that Sullivan is essentially clueless. The correct analysis, I would suspect, is that this kind of smear is beneath anyone who has the best interests of democracy at heart, as May claims to do, or who has any self-respect or integrity at all, which in May's case I can't address. It's an open question at this point as to whether May actually belongs within any of those groups.

Related posts:

And You Wondered Why I Like To Read Fantasy
Stimson and Liberals: A Sort of Grand Synthesis
Stimson Update
More on Stimson
The Price Of Speaking The Party Line

(You might think from the number of posts devoted to this topic that I thought it was important. I did. I tend to bristle at any attempt to undercut, subvert, or otherwise injure the Constitution and/or our real traditions. I saw this episode, and still do, as an attempt to do just that. The comments by May and Steyn, neither of whom I believe has any reverence for our founding princples whatsoever, only confirm my opinion. The post "Stimson and Liberals" is the key one here.)

PS: TBogg has weighed in on this one, and as usual, it's choice. Seems Andy McCarthy also wants to chant the mantra.

Smacking Down Sullivan

Which is something I seem to do regularly. Probably because I want to like him and get really pissed when he makes a fool of himself. Of course, he doesn't know I exist, so. . . .

Sullivan on the Catholic Charities adoption wars in Britain:

If the Church wants to side with bigots against the needs of children, it should be able to do so. It pains me, but it is none of the government's concern.

This is probably one of the most egregious statements I've seen on his blog ever. It is, after all, not the Catholic church that is charged with the welfare of Britain's citizens, and in particular, its children -- it is the British government. If the Church is involved, it is as a surrogate for the government, and the government does indeed have an interest in the welfare of children. That is a long-established fact of life. One of Sullivan's readers points out:

None of these kids was born under the legal guardianship of the Church or its agencies. That guardianship is presumably assigned by British law on the theory that Catholic charities (among others) will do a good job of looking after the children's best interests. But if the charities turn down potential adoptive parents on spurious grounds, they aren't doing that.

Sullivan maintains that "The issue is how spurious the grounds are. They are spurious by any objective measure of parenting skills; but the Church has a right to uphold bigotry as part of its theology." It does, as long as its theology is an internal matter. These children are not. Since British law also rests on the idea of rational laws interpreted rationally, Sullivan's protests are beside the point. This is not a matter that affects only the Church and its members. He goes on to say "The state can and should withdraw support for such bigotry, but the Church still has a right, in my view, to maintain its stance of stigmatization and discrimination against homosexuals." Which is exactly what the government is doing, in a roundabout way: the state requires that the criteria for evaluating prospective adoptive parents be rational, which is not a term that applies to Catholic teachings on homosexuality, and that their primary consideration be the welfare of the children. The Church's primary consideration, as we have seen again and again, is the welfare of the Church (and it's a rather grandiose notion of "welfare"). The Church's alternatives here, as they have been in similar cases in the US, are clear: comply with the law or get out of the business.

So basically, Sullivan has argued himself around to supporting the British government's stance. His initial argument was just as flawed as the Church's: no one is demanding that the Church change its teachings. It is merely being told that it cannot apply those teachings to this particular government-sponsored function, because the Church's teachings are contrary to the law of the land.

I think the brouhaha, and perhaps Sullivan's misperception, is that this particular episode originates in Britain's nondiscrimination laws. The whole point of that, of course, is that gays have suffered discrimination and, as a matter of living up to its reponsibility to its citizens, the government wants it to stop. The real issue (or at least one of the real issues, and one that I'm going to dispense with as succinctly as possible, because it should be a no-brainer) is whether the British government or the Catholic Church will govern Britain. Duh.

While he was flailing around trying to cover his butt from the objections to his original post, he came up with a reference to a post by Arthur Silber, which is not, in fact, on topic here, although Sullivan tries to make it seem so. Much as I admire Silber and think the essay makes some good points, it simply doesn't apply in this instance.

The link here, I think, goes back to Sullivan's first post on the adoption imbroglio.

. . . my political principles - specifically my belief in unfettered religious freedom - tell me that the right of religious organizations to practice bigotry and even cruelty in their own affairs is integral to a free society.

The idea of "unfettered religious freedom" is, in itself, conceptually questionable. Assuming we mean "freedom" as the ability to enforce one's will without hindrance, there's no such thing as "unfettered freedom." Never has been, never will be -- the universe itself imposes restraints. Even the beasts of the field, if I may wax biblical for a moment, even though they neither sow nor reap, still have to eat, which means that their freedom is constrained by that necessity.

I find, the more I learn of libertarianism, that it is an impoverished philosophy. Of course, my feelings about political philosophies in certain regards are pretty much the same as my feelings on art: the less it has to do with human reality, the less it's worth. We are social animals, and there's simply no getting around that basic biological fact. One can argue the evolution of behavior all one wants to, but we're wired to work in groups, and that's something that goes back to a time long before we were even remotely human.

Given that, we have to ask ourselves, what is a society for? (Ahem -- "First Causes" is listed in the subhead to this blog, after all.) For a change, I think the obvious answer is also the correct one: a society exists for the mutual benefit of its members. However, we must remember that word "mutual." It imposes restrictions on the behavior -- the freedom -- of all the members. In good ol' American parlance, "Your right to swing your fist ends where my nose starts."

Of course, the development of human society over the past two or three million years has gotten terrifically complicated, and there's no room to go into any detail here, but I think that basic question still has to be our guiding principle. Given that, things like theologies are pretty ephemeral, while children and their well-being are eternal. So, the Church is wrong. Sullivan is wrong. (Silber, on the other hand, may be right, but he's not arguing this particular question.)

Given my insistence on dealing with the requirements of our physical make-up, among other basics, is it any wonder that I find things like libertarianism empty posturing?

(I have to point out, as well, that I'm more than a little irritated at Sullivan for, in the last paragraph to his first post, putting the onus on gay couples. ["There are plenty of avenues in Britain for gay couples to do the selfless and admirable job of raising abandoned or orphaned children in need. There's no need to trample religious liberty in the process."] Excuse me -- they are not the ones causing the problem. It's the Church's insistence, not on its freedom to preach a disgusting philosophy, but that its philosophy should be paramount in a secular state, that is causing the problem. That phrase about "trampling religious liberty" smacks of Sullivan trying to get in touch with his inner wingnut.)

Write Your State Rep

Sara Robinson over at Orcinus reminded me of this travesty from the late, great 109th Congress. You see, they did manage to pass a law or two:

We all know that whenever the 109th Congress was faced between a choice between fear and common sense, common sense was always the loser by a knockout. One of the greatest monuments to their casual relationship with reality has to be the federal Real ID act -- a Congressional done deal that's going to have all 300 million of us tagged for surveillance like feedlot beef within the next few years.

Looks like the states, where there is still some contact with reality (well, in most of them, anyhow), are digging in their heels:

The Rebel Alliance is forming -- and has begun to strike back. Last Thursday, Maine's legislature fired the first shot over the bow, telling Congress point-blank just where they could stick the whole idiotic idea. According to the Times, both houses voted -- unanimously in the Senate and 137 to 4 in the House -- to reject the act wholesale. They're also formally asking Congress to repeal Real ID. The ACLU confirms that several other states, including Georgia, Montana, New Hampshire, New Mexico, and Washington, may soon fall in behind Maine's lead.

This is one of those rare situations where an important national civil liberties battle can successfully be fought at the state level. Given the short deadlines they're under, most states are going to be working out their policy responses to Real ID between now and this summer. Fortunately, it’s usually a lot easier to get the attention of a state legislator than it is to get through to a Congressperson -- so these people, in every state, need to be hearing loudly from us that Real ID is an unreal idea. It's going to be up to the individual states to hold the line, and refuse to cave in and do the dirty work of a federal government that has lost all sight of its own Constitutional boundaries.

Let's hear it for Maine. Now if Illinois will jump on the bandwagon. . . . (yeah, right.)

Come to think of it, write your congresscritter, too. Especially if it's a Republican.

Update:

Montana has joined the team.

Stimson Update

Even USA Today has nothing but contempt for Stimson.

It's easy to understand how annoying these pesky lawyers and their challenges must be to the Pentagon, which runs a prison camp that has given America an international black eye. Deriding their firms, many of which represent Fortune 500 companies, and trying to instigate retribution is certainly one way, albeit a pretty sleazy one, to discourage more challenges.

An interesting note:

Charles Stimson did not respond to a request to reply to this editorial.

Of course not -- he's done his job.

Update: I just ran across this article in the Chicago Tribune. This is the sort of thing that Stimson's defending:

Being an enemy combatant does not mean a prisoner did anything wrong, the administration said in documents written by the Department of Defense in 2004.

The term does not require evidence that a prisoner knowingly took any action against the United States, or even that he was a willing participant in the conflict. As a result, many prisoners at the base are, by any reasonable standard, completely innocent.

The article details stories of "detainees" at Guantanamo who were prisoners of the Taliban but were nevertheless determined to be "enemy combatants," some of whom have not yet been released. The larger issue, of course, is that the president can determine that anyone is an "enemy combatant," including American citizens who have no connection to terrorists at all. (I'm sure you all remember Brandon Mayfield.) Considering the demonstrations we've had of the president's judgment, that does not make me comfortable at all.

Update II: Stimson Apologizes:

From WaPo:

During a radio interview last week, I brought up the topic of pro bono work and habeas corpus representation of detainees in Guantanamo Bay, Cuba. Regrettably, my comments left the impression that I question the integrity of those engaged in the zealous defense of detainees in Guantanamo. I do not.

I believe firmly that a foundational principle of our legal system is that the system works best when both sides are represented by competent legal counsel. I support pro bono work, as I said in the interview. I was a criminal defense attorney in two of my three tours in the Navy Judge Advocate General's Corps. I zealously represented unpopular clients -- people charged with crimes that did not make them, or their attorneys, popular in the military. I believe that our justice system requires vigorous representation.

I apologize for what I said and to those lawyers and law firms who are representing clients at Guantanamo. I hope that my record of public service makes clear that those comments do not reflect my core beliefs.

CULLY STIMSON

Deputy Assistant Secretary of Defense for Detainee Affairs
Defense Department
Washington

I actually cross-posted this comment at Epinions Addicts:

I think as an apology it's a high-water mark from this administration. He actually apologizes, a far cry from the standard inside-the-Beltway "I regret that some people were offended" sort of "apology." Granted, he doesn't repudiate the implied threats, but then I'm still pretty much convinced that was his mission. It wouldn't make any difference if he repudiated them or not -- the message is out there.

Of course, considering that whole issue, if the blue-chip law firms are all doing pro bono work for Gitmo detainees, who are the Fortune 500 companies going to find to represent them? (Under the category of "Empty Threats")

And You Wondered Why I Like To Read Fantasy

This is the DOD's guy on detainee affairs:

In his radio interview, Mr. Stimson said: “I think the news story that you’re really going to start seeing in the next couple of weeks is this: As a result of a FOIA request through a major news organization, somebody asked, ‘Who are the lawyers around this country representing detainees down there?’ and you know what, it’s shocking.” The F.O.I.A. reference was to a Freedom of Information Act request submitted by Monica Crowley, a conservative syndicated talk show host, asking for the names of all the lawyers and law firms representing Guantánamo detainees in federal court cases.

Mr. Stimson, who is himself a lawyer, then went on to name more than a dozen of the firms listed on the 14-page report provided to Ms. Crowley, describing them as “the major law firms in this country.” He said, “I think, quite honestly, when corporate C.E.O.’s see that those firms are representing the very terrorists who hit their bottom line back in 2001, those C.E.O.’s are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. And we want to watch that play out.”

Needless to say, lawyers are all over this.

David Kurtz at TPM has been following this story, here, here, and here.

The DOD is, of course, "disavowing" the remarks, but anyone want to make any guesses on consequences for Stimson? Aside from a Medal of Freedom, I mean.

Jonathan Adler and Eugene Volokh at Volokh Conspiracy have also been following this one. From Adler:

I have also noticed that Stimson is a graduate of my alma mater, the George Mason University School of Law. [Ack!] I guess he must have slept through professional responsibility; he should have to take it again. Hilzoy is less forgiving: "if either having no clue whatsoever about how our legal system works or being willing to try to subvert it is grounds for disbarment, then Charles Stimson should be disbarred."

Volokh's analysis is devastating.

Is he really appealing not to the CEOs' patriotism, or anger over mass murder, but to their anger that terrorists cost business money? To look at the flip side, should construction and security contractors who made money (perfectly honorably, I should stress) as a result of the terrorist attacks start giving more business to law firms who are representing detainees, on the theory that "those firms are representing the very terrorists who [benefited] their bottom line back in 2001"? Yes, CEOs should surely look out for the bottom line; that's their job. But this strikes me as a context in which the concerns about past impacts on the bottom line should be the least relevant.

Unfortunately, Balkinization doesn't touch on this one, which surprised me, and I would really love to see Glenn Greenwald's comments, which at this point don't exist. Pity. Michael Froomkin had a comment on it with this observation:

It's true that the list of law firms donating time to representing the victims of torture, humiliation (and a total lack of due process) at Guantanamo reads a bit like a who's who of the elite of the corporate bar. And they deserve credit for it.

I'd just add one thing: the first firm to cave on this issue is going to find it awfully hard to recruit elite law students, as they will have demonstrated a serious lack of moral fiber. If you won't stand up for your most desperate clients, what kind of firm are you?

Referencing this comment by Alberto Conzales:

"Good lawyers representing the detainees is the best way to ensure that justice is done in these cases."

Ann Althouse says:

Gonzales is obviously right, and I would like to know how Stimson could even entertain the notion that it might be acceptable to say what he did.


Even Andrew Sullivan gets it, and makes the necessary link:

But the more you think about it, the threats of a Pentagon official, Cully Stimson, against lawyers doing a constitutional duty defending terror suspects speaks volumes about the core malice of this administration. Sources among the heroic community of pro bono lawyers who are defending some of the innocent and some of the guilty at Gitmo tell me that Stimson's comments are not isolated, that there has been a full program dedicated to the harassment of Gitmo lawyers - surveillance, pettty harassment, pressure on their law firms.

TPM, in one of the posts linked above, also mentions this program of harassment.

Does anyone really need any further proof of this administration's complete disdain for the American system of government?

(And after looking at the photo, I wonder where the wingnuts find all these cute guys with really badly warped heads?)

Update: Looking back, Carpetbagger Report was was one of the first on the scene.

Liberals

Just a note -- more of a ramble, really -- on the continuing vilification of "liberals" by the right. I'm not even talking "classical" liberalism, necessarily -- today's liberalism in its essential characteristics is little different than the liberalism that informed the Founders when they put this country together.

A summary: liberalism is characterized by an emphasis on personal freedom balanced by the common good. It's as prone to nannyism as conservatism, but I think the motivations are more wholesome. (If you don't believe conservatism is prone to nannyism, you haven't been paying attention.) The problem with liberalism in this regard is that it wants everyone to conform voluntarily, and if they won't, liberals will pass laws to insure that they do. Conservatives won't bother with the voluntary part. This is the sort of thing conservatives come up with.

Liberals are skeptical, particularly about strong leaders. By way of contrast, Josh Marshall, in his follow-up to the post I linked to yesterday, points out a significant characteristic of the right:

President Bush [is] an epochal figure, a man of destiny in a grand historical struggle who has powers to answer to grander than Congress or the constitution.

I remember Clarence Thomas, I believe it was, in his Senate confirmation hearings, stating that he believed in a "higher law," which, if I had been in that chamber, would have diqualified him in my eyes immediately. For a Supreme Court justice, there can be no "higher law" than the Constitution. Liberals are willing to let the Constitution be the "sacred document" that forms the foundation of our society. Conservatives seem to need a god of some sort. Perhaps it's just that they can't bring themselves to trust humanity to that great an extent, whereas liberals are all about trusting people to do the right thing.

If you think Marshall's making this up, note this comment reported by Glenn Greenwald:

Boston Herald columnist Jules Crittenden assures us that salvation is imminent, in a post solemnly entitled "On Reflection":

George Bush will address us tonight, and show us the way forward.

We need merely place our Faith in the Strong and Great Leader and everything will good:

Tonight, our president is expected, once again, to defy the logic of polls and popularity, and dole out the bitter medicine. What must be done. What should have been done a long time ago. I remain confident in our future and the future of Iraq, because for now, we have a president who will do this.

Conservatism, particularly the messianic, evangelically tinged conservatism of today's far right, is prone to authoritarianism and hero-worship -- and frankly, they don't have a very good record in picking heroes. Remember, in 1776, it was the conservatives who wanted to be ruled by a king. Liberals find this sort of adulation suspicious, at best, and are much more prone to be looking at reality -- i.e., what has he/she actually done? (OK -- on the reality issues, the right wing has George W. Bush, the left wing has PETA. That just supports my ongoing contention that the extremes tend to meet in an area that has nothing to do with right or left.)

I'm not sure that the Republican party has been "hijacked" by the Christianists. I think that the Republicans always had that potential because they are, in effect, the party of received wisdom. They prefer a strong executive, while liberals prefer the brawling mess that is Congress. The Republicans move in lockstep, while the Democrats can't come up with a coherent agenda. (Sidebar and explication: A fault in contemporary discourse: the idea that the forms override the substance. In this example, to have an agenda doesn't say anything. The value of having an agenda depends entirely on content. Bush has an agenda. It's repellent to anyone who believes in what this country has always stood for, but he has one.)

What I find remarkable, Andrew Sullivan and other apologists notwithstanding, is conservatism's poverty of ideas. Liberalism can deal with rational argument based on empirical evidence. That's the basic mode. It's not mistake that this country is a product of the Enlightenment -- if it weren't for classical liberalism, there would be no USA as we know it. Conservatism, with its basis in received wisdom and tradition, is ill-equipped to deal with the rapidly changing circumstances of life in general, not to mention life in the contemporary world. It falls back on "realism" and "pragmatism" because the world doesn't behave the way it should to a conservative's way of thinking, so the theory goes out the window.

Liberalism is the basis of America. It always has been -- it's that basic thrust toward rule by the governed and the inclusion of everyone in that system that goes back to Andrew Jackson, if not before. It's been an incremental progress, but the basic idea has always been the same. Conseratives, by their very nature, are suspicious of the American system of government. (Granted, both the left and right have trouble with basic concepts such as minding their own business, but I don't think that's a matter of political philsophy, just that we are, biologically, social animals, even though theortetically we may admire the rugged individualist as he has become an American archetype -- Daniel Boone, for example, who I think would have been appalled at today's conservatives. The Puritans would be delighted.)

OK -- so it turned out to be more about conservatives than liberals.

Ten Most

The only list we need to pay attention to this year, from Dahlia Lithwick.

Presumption of Guilt

Here's the NYT story on the detention of Donald Vance, who was not only a U.S. citizen, but was working for the FBI tracking abuses.

Expand this treatment to several thousand people in Iraq, Afghanistan, Guantanamo, and several secret prisons scattered around Europe, North Africa, and the Middle East, and gauge the reaction you get from some of our own citizens. The presumption too often is that they must be guilty of something, else they wouldn't have been detained. I've run into it myself in discussion groups -- the automatic assumptoin that all of these people are dangerous terrorists, when the fact point to the conclusion that most of them have been innocent. No suspicion that our own military and intelligence services are incompetent or abusive, or that the administration has given a green light to behavior that we have traditionally condemend in the strongest possible terms. "They're all terrorists."

We have had since our founding a basic principle of law in this country: the accused is innocent until proven guilty. There have always been some who presume guilt, but they've been marginalized. Now they're catered to.

Bush deserves to burn in a Christanist hell for doing that.