Balkinization  

Saturday, March 27, 2004

JB

I-95 in Connecticut

Has become I-47 1/2 and I-47 1/2.

Traffic should be fun for the next couple of weeks, with potentially important long term side effects.



Friday, March 26, 2004

JB

Digital Cops in a Virtual Environment

Today The Information Society Project at Yale Law School (of which I am the director) begins its three day conference on cutting edge issues in cybercrime. We've gathered together a number of top experts and it promises to be one of the biggest events of its kind. You can learn more about the conference here.


JB

Senate Passes Unborn Victims of Life Act

The Senate passed the Unborn Victims of Life Act, which amends existing federal crimes to allow prosecution of persons who cause death to a fetus during the commission of a federal crime.

Opponents of the measure feared it would undermine Roe v. Wade. That is because of the definition section, which says that fetuses are defined to be "children":

`(d) As used in this section, the term `unborn child' means a child in utero, and the term `child in utero' or `child, who is in utero' means a member of the species homo sapiens, at any stage of development, who is carried in the womb.'.

Undermining Roe may be the purpose of one or more of its original sponsors, but it won't have that effect. Roe is a constitutional rule, and cannot be overturned or limited by statute. Congress can call a fetus a child but that doesn't change the constitutional right to abortion.

In any case, the statute by its own terms does not reach abortions:

`(c) Nothing in this section shall be construed to permit the prosecution--

`(1) of any person for conduct relating to an abortion for which the consent of the pregnant woman, or a person authorized by law to act on her behalf, has been obtained or for which such consent is implied by law;

`(2) of any person for any medical treatment of the pregnant woman or her unborn child; or

`(3) of any woman with respect to her unborn child.


This produces a perverse result for pro-life forces: Congress officially says that a fetus is a child, but also officially says that ending the life of this child through abortion is legal. Should a pro-life Senator vote for such a bill?

Equally interesting is the death penalty provision:

`(D) Notwithstanding any other provision of law, the death penalty shall not be imposed for an offense under this section.

This produces another perverse result: it distinguishes between born children and unborn children (as defined by the statute). Crimes against born children may deserve the death penalty under federal law; however, according to Congress, no crimes against the latter do. Why should this be, if fetuses are defined as children? Are pro-life forces conceding that the life of a born child is more valuable than the life of a fetus? Again, should a pro-life Senator vote for such a bill?

One suspects that most pro-life politicians will say, yes, on the theory that half a loaf is better than none; by defining the unborn as children, the bill symbolizes disagreement with Roe. But the symbolism cuts both ways, for the bill as actually written doesn't treat unborn children the same as other children, and it actually undermines the claim that abortion is the functional equivalent of murder.




Thursday, March 25, 2004

JB

Hoisted By His Own Petard?

Today at lunch I was explaining the legal issues in the Newdow case (which concerns the Pledge of Allegiance) and why as a predictive matter Newdow is likely to lose no matter how good his legal arguments on the merits (see my previous post for a summary).

Suddenly it occurred to me: If Newdow wins his case, it will prove that atheism is wrong, because it's going to take a miracle.


JB

Impervious to Facts

Harold Meyerson argues that the Bush Administration has a problem with empiricism:

[T]he security professionals who stayed at their station on Sept. 11 soon found they had philosophical differences with the neo[conservatives] in the shelter. They were empiricists: They took in as much information as they could and derived their conclusions on that basis. And, as Clarke and many of his fellow professionals were soon to discover, this has been a tough administration for empiricists.

Step back a minute and look at who has left this administration or blown the whistle on it, and why. Clarke enumerates a half-dozen counterterrorism staffers, three of whom were with him in the Situation Room on Sept. 11, who left because they felt the White House was placing too much emphasis on the enemy who didn't attack us, Iraq, and far too little on the enemy who did.

But that only begins the list. There's Paul O'Neill, whose recent memoir recounts his ongoing and unavailing battle to get the president to take the skyrocketing deficit seriously. There's Christie Todd Whitman, who appears in O'Neill's memoir recalling her own unsuccessful struggles to get the White House to acknowledge the scientific data on environmental problems. There's Eric Shinseki, the former Army chief of staff, who told Congress that it would take hundreds of thousands of American soldiers to adequately secure postwar Iraq. There's Richard Foster, the Medicare accountant, who was forbidden by his superiors from giving Congress an accurate assessment of the cost of the administration's new program. All but Foster are now gone, and Foster's sole insurance policy is that Republican as well as Democratic members of Congress were burnt by his muzzling.

In the Bush administration, you're an empiricist at your own peril. Plainly, this has placed any number of conscientious civil servants -- from Foster, who totaled the costs on Medicare, to Clarke, who charted the al Qaeda leads before Sept. 11 -- at risk. In a White House where ideology trumps information time and again, you run the numbers at your own risk. Nothing so attests to the fundamental radicalism of this administration as the disaffection of professionals such as Foster and Clarke, each of whom had served presidents of both parties.

The revolt of the professionals poses a huge problem for the Bush presidency precisely because it is not coming from its ideological antagonists. Clarke concludes his book making a qualified case for establishing a security sub-agency within the FBI that would be much like Britain's MI5 -- a suggestion clearly not on the ACLU's wish list. O'Neill wants a return to traditional Republican budget-balancing. The common indictment that these critics are leveling at the administration is that it is impervious to facts. That's a more devastating election year charge than anything John Kerry could come up with.


Because, as I have noted previously, presidential systems have inherent tendencies to corrupt the policy making process, I think that what Meyerson is describing is a matter of degree, rather than kind. But at some point, differences of degree become quite worrisome indeed, and this Administration seems to have reached a tipping point in a wide range of different areas. Clarke's story is making front page news because it concerns a key issue in Bush's re-election campaign-- the President's boast that he has kept America safe. As we learn more details about how the Administration's foreign policy has been conducted, this boast looks increasingly empty. However, as Meyerson points out, the same corruption of the policy process has occured in other areas ranging from fiscal policy to environmental policy.

I do think it's time for a change.



Wednesday, March 24, 2004

JB

What's Law Got To Do With It?

The Supreme Court heard arguments today in Elk Grove Unified School District v. Newdow, and it is very likely that Newdow will lose. The only question is whether the Court will reach the merits or will dismiss on standing grounds. That's not because the law is clearly against Newdow. Indeed, as William Safire puts it in his column, "The only thing this time-wasting pest Newdow has going for him is that he's right." Rather Newdow will lose because no matter what the existing doctrine says the Supreme Court is not going to hold that government officials' use of the phrase "under God" in the Pledge of Allegiance violates the Establishment Clause. The doctrine will simply be parsed or altered in such a way as to avoid this result.

Newdow's strongest argument is that under the Establishment Clause, government may not itself engage in religious activities or encourage citizens-- and particularly schoolchildren-- to affirm particular religious beliefs. When public school teachers lead their classes in the post 1954 version of the Pledge of Allegiance (which includes the words "under God") it is doing both of these things. Newdow can point to the fact that the Pledge was changed in 1954 due to a lobbying campaign by, among others the Knights of Columbus, to draw attention to the difference between God-fearing Americans and the godless Soviet Union.

The best response to this argument is that when government officials lead the post-1954 version of the pledge, they are neither engaging in religious activities nor are they encouraging citizens to affirm particular religious beliefs. They are not engaging in religious activities because the inclusion of the words "under God" does not make the Pledge religious in character any more than the inclusion of the words "In God We Trust" makes the distribution of coinage or currency a religious activity. They are not encouraging others to affirm particular beliefs because the Pledge does not assert the religious belief that God exists but merely acknowledges a historical association between patriotism and belief in God.

The first response, that no religious ceremony is occurring, is quite plausible. The second argument-- that there has been no endorsement of religious belief-- is quite tricky to pull off. One embarrassment is that many people who support the use of the words "under God" in the pledge do so precisely because they like the association of patriotism with religion and with belief in God: they want to affirm that the United States is a country that believes in God and places itself under Divine protection. However, this is not a theory that the Supreme Court can adopt. The most basic principle of Establishment Clause jurisprudence is that the state is not supposed to prescribe what is orthodox in matters of belief about religious questions.

Rather, the Supreme Court must come up with a way of arguing that the use of term "under God," despite the legislative history, has nothing whatsoever to do with affirming or endorsing particular beliefs about God but is purely ceremonial. In the alternative, they must show that it is a permissible form of "ceremonial Deism" that has no strongly religious overtones and carries no religious endorsement in the eyes of a reasonable person. Put another way, the Court must come up with a justification that insists, without directly saying so, that people who support the post-1954 Pledge because they think it endorses their religious beliefs are simply being unreasonable. In part this is because, as I pointed out last year, ceremonial Deism tries to have it both ways: it seeks to satisfy the religious sentiments and traditions of a large portion of the public while denying that anything particularly religious is going on. It can do this because the expression "under God" seems rather plain vanilla to most members of the public (that is, to those who are not atheists). If the words "under God" were changed to read "under Jesus Christ," or "under God whom we all believe in and adore" the religious meaning would no longer be backgrounded and the Court would not be able to accept the pledge as a form of ceremonial Deism. It is no accident that at the oral argument Solicitor General Olsen agreed that if the pledge included the words "under Jesus" it would go too far. The phrase "under God" is just bland enough to mean nothing to those who want it to mean nothing and to mean everything who want it to mean everything.

Mr. Dooley once said that the Supreme Court follows the election returns. That is, the Supreme Court never strays too far from the views of a national political majority. This case is a perfect example. Even without reading the briefs, it is all but certain which way this case will come out. As Tina Turner might say, what's law got to do with it?


JB

Ernie Miller Joins the Copyfight

Congratulations to Ernie Miller, a fellow of Yale's Information Society Project, for joining Copyfight, which has just become a group blog. Ernie started the ISP's blog, Lawmeme, and he also runs his own blog, The Importance Of.



Tuesday, March 23, 2004

JB

Federal Marriage Amendment Revised

The sponsors of the Federal Marriage Amendment have tinkered with its language, "saying the changes were intended to make it clear that they do not seek to bar same-sex civil unions allowed by state law," the New York Times reports. (My analysis of the previous version, explaining why it would ban civil unions, appears here).

The revised amendment reads as follows:

Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any state, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and woman.

Actually, this version still prevents *courts* (like the Vermont Supreme Court in Baker v. State) from holding that civil unions are constitutionally required, because it says that state constitutions may not be construed to require that the legal incidents of marriage be conferred on same sex couples. Civil unions bestow most if not all of the legal incidents of marriage except for the name.

The amendment would permit *legislatures* to pass civil unions laws in some cases. But there's a twist, because the proposed amendments' sponsors forgot that legislators interpret constitutional provisions too, and indeed, are normally required to do as part of their oaths of office.

The irony of the new version is that legislatures could pass civil unions laws as long as they did not believe that they were interpreting the state or federal constitution and promoting constitutional values-- such as equal protection of the laws-- by doing so. For then the legislature (or the executive official) would be construing the state or federal constitution to require civil unions.

Put another way, if legislatures sincerely believed that civil union laws were necessary to protect important constitutional values of equality and civil rights for gays and lesbians, they would not be permitted to pass such laws. On the other hand, if the legislature thought that a civil unions bill would bring more tourism into the state, that would be a permissible reason.

But of course, that's what the authors of the proposed amendment think about equal rights for gays-- they don't see it as an issue of civil rights. And that's precisely where they're wrong.




Monday, March 22, 2004

JB

Clarke: Bush Ignored Al Qaeda, Used Iraq As Political Tool

From the Washington Post:

Although expressing points of disagreement with all four presidents [Reagan, George H.W. Bush, Clinton and George W. Bush that he served under], Clarke reserves by far his strongest language for George W. Bush. The president, he said, "failed to act prior to September 11 on the threat from al Qaeda despite repeated warnings and then harvested a political windfall for taking obvious yet insufficient steps after the attacks." The rapid shift of focus to Saddam Hussein, Clarke writes, "launched an unnecessary and costly war in Iraq that strengthened the fundamentalist, radical Islamic terrorist movement worldwide."

Among the motives for the war, Clarke argues, were the politics of the 2002 midterm election. "The crisis was manufactured, and Bush political adviser Karl Rove was telling Republicans to 'run on the war,' " Clarke writes.


And there's this:
Like former Treasury secretary Paul H. O'Neill, who spoke out in January, Clarke said some of Bush's leading advisers arrived in office determined to make war on Iraq. Nearly all of them, he said, believed Clinton had been "overly obsessed with al Qaeda."

I think what is particularly galling is the Administration's repeated assertions that only they know how to keep America safe and that those who disagree with them are appeasers or worse. For too long the Bush Administration has gotten a pass on their efforts to combat terrorism, and the President has been praised repeatedly for exercising strong and decisive leadership in the face of the 9/11 attacks. Clarke's book argues that there were, to the contrary, serious failures of leadership both before and after 9/11. I hope this opens a real debate about whether the Administration's foreign policy really has been effective and really has helped keep America safe.



Sunday, March 21, 2004

JB

Bush: Weak On Terror, Confused On Policy

So says Richard Clarke, who has advised four presidents on terrorism policy, and was Bush's advisor leading up to the 9/11 attacks:

"Frankly," [Clarke] said, "I find it outrageous that the president is running for re-election on the grounds that he's done such great things about terrorism. He ignored it. He ignored terrorism for months, when maybe we could have done something to stop 9/11. Maybe. We'll never know."

Clarke went on to say, "I think he's done a terrible job on the war against terrorism."

. . . . Clarke says that as early as the day after the attacks, Secretary of Defense Donald Rumsfeld was pushing for retaliatory strikes on Iraq, even though al Qaeda was based in Afghanistan. Clarke suggests the idea took him so aback, he initally thought Rumsfeld was joking. . . . .

After the president returned to the White House on Sept. 11, he and his top advisers, including Clarke, began holding meetings about how to respond and retaliate. As Clarke writes in his book, he expected the administration to focus its military response on Osama bin Laden and al Qaeda. He says he was surprised that the talk quickly turned to Iraq.

"Rumsfeld was saying that we needed to bomb Iraq," Clarke said to Stahl. "And we all said ... no, no. Al-Qaeda is in Afghanistan. We need to bomb Afghanistan. And Rumsfeld said there aren't any good targets in Afghanistan. And there are lots of good targets in Iraq. I said, 'Well, there are lots of good targets in lots of places, but Iraq had nothing to do with it.

"Initially, I thought when he said, 'There aren't enough targets in-- in Afghanistan,' I thought he was joking.

"I think they wanted to believe that there was a connection, but the CIA was sitting there, the FBI was sitting there, I was sitting there saying we've looked at this issue for years. For years we've looked and there's just no connection." Clarke says he and CIA Director George Tenet told that to Rumsfeld, Secretary of State Colin Powell, and Attorney General John Ashcroft.

Clarke then tells Stahl of being pressured by Mr. Bush.

"The president dragged me into a room with a couple of other people, shut the door, and said, 'I want you to find whether Iraq did this.' Now he never said, 'Make it up.' But the entire conversation left me in absolutely no doubt that George Bush wanted me to come back with a report that said Iraq did this.

"I said, 'Mr. President. We've done this before. We have been looking at this. We looked at it with an open mind. There's no connection.'

"He came back at me and said, "Iraq! Saddam! Find out if there's a connection.' And in a very intimidating way. I mean that we should come back with that answer. We wrote a report."

Clarke continued, "It was a serious look. We got together all the FBI experts, all the CIA experts. We wrote the report. We sent the report out to CIA and found FBI and said, 'Will you sign this report?' They all cleared the report. And we sent it up to the president and it got bounced by the National Security Advisor or Deputy. It got bounced and sent back saying, 'Wrong answer. ... Do it again.'

"I have no idea, to this day, if the president saw it, because after we did it again, it came to the same conclusion. And frankly, I don't think the people around the president show him memos like that. I don't think he sees memos that he doesn't-- wouldn't like the answer."

Clarke was the president's chief adviser on terrorism, yet it wasn't until Sept. 11 that he ever got to brief Mr. Bush on the subject. Clarke says that prior to Sept. 11, the administration didn't take the threat seriously.

"We had a terrorist organization that was going after us! Al Qaeda. That should have been the first item on the agenda. And it was pushed back and back and back for months.

"There's a lot of blame to go around, and I probably deserve some blame, too. But on January 24th, 2001, I wrote a memo to Condoleezza Rice asking for, urgently -- underlined urgently -- a Cabinet-level meeting to deal with the impending al Qaeda attack. And that urgent memo-- wasn't acted on.

"I blame the entire Bush leadership for continuing to work on Cold War issues when they back in power in 2001. It was as though they were preserved in amber from when they left office eight years earlier. They came back. They wanted to work on the same issues right away: Iraq, Star Wars. Not new issues, the new threats that had developed over the preceding eight years."

Clarke finally got his meeting about al Qaeda in April, three months after his urgent request. But it wasn't with the president or cabinet. It was with the second-in-command in each relevant department. For the Pentagon, it was Paul Wolfowitz. Clarke relates, "I began saying, 'We have to deal with bin Laden; we have to deal with al Qaeda.' Paul Wolfowitz, the Deputy Secretary of Defense, said, 'No, no, no. We don't have to deal with al Qaeda. Why are we talking about that little guy? We have to talk about Iraqi terrorism against the United States.'

"And I said, 'Paul, there hasn't been any Iraqi terrorism against the United States in eight years!' And I turned to the deputy director of the CIA and said, 'Isn't that right?' And he said, 'Yeah, that's right. There is no Iraqi terrorism against the United States."

Clarke went on to add, "There's absolutely no evidence that Iraq was supporting al Qaeda, ever." When Stahl pointed out that some administration officials say it's still an open issue, Clarke responded, "Well, they'll say that until hell freezes over."

By June 2001, there still hadn't been a Cabinet-level meeting on terrorism, even though U.S. intelligence was picking up an unprecedented level of ominous chatter. The CIA director warned the White House, Clarke points out. "George Tenet was saying to the White House, saying to the president - because he briefed him every morning - a major al Qaeda attack is going to happen against the United States somewhere in the world in the weeks and months ahead. He said that in June, July, August.

Clarke says the last time the CIA had picked up a similar level of chatter was in December, 1999, when Clarke was the terrorism czar in the Clinton White House. Clarke says Mr. Clinton ordered his Cabinet to go to battle stations-- meaning, they went on high alert, holding meetings nearly every day. That, Clarke says, helped thwart a major attack on Los Angeles International Airport, when an al Qaeda operative was stopped at the border with Canada, driving a car full of explosives.

Clarke harshly criticizes President Bush for not going to battle stations when the CIA warned him of a comparable threat in the months before Sept. 11: "He never thought it was important enough for him to hold a meeting on the subject, or for him to order his National Security Adviser to hold a Cabinet-level meeting on the subject."




JB

Hate Speech Codes For Broadcasting?

Ernie Miller offers his take on the FCC's recent decision that Bono's use of the word "fucking" (as in "fucking brilliant") during the Golden Globes violated federal laws against broadcast indecency. This decision is known as the "Golden Globe Awards" decision.

A little background is necessary to understand why the Golden Globe Awards decision is so important. 18 USC section 1464 makes it a crime to broadcast obscene, profane or indecent programming. The government has given the FCC jurisdiction over violations of section 1464, which the FCC enforces through a combination of warning letters, fines, and, in extreme cases, revocation of broadcast licenses. The Supreme Court upheld the FCC's power to issue such sanctions in the Pacifica case in 1978.

The FCC defines broadcast indecency as "language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities." In its Golden Globe Awards decision, the FCC held that virtually any use of the F-word, as it is known at the FCC, was indecent, because it is always sexually suggestive. (For those of you who were wondering, the F-word in FCC stands for federal.). This decision strikes me as fucking implausible. Did that turn you on? No, I thought not.

Second, the FCC held that the F-word was also profane. The FCC has not, until this case, actively enforced section 1464's prohibition on profanity. One reason for this is that profanity traditionally meant blasphemy, and there would be serious first amendment problems with punishing speech because it was blasphemous. To solve this problem, the FCC has redefined profanity as "including language that denot[es] certain of those personally reviling epithets naturally tending to provoke violent resentment or denoting language so grossly offensive to members of the public who actually hear it as to amount to a nuisance." That is to say, the new definition of profanity has nothing whatsoever to do with religious belief.

One question is whether the FCC is authorized to redefine statutory language in this way. But assuming that it does under the Chevron doctrine, there are many more problems.

Most news accounts assume that the FCC can ban indecency whenever it likes. This is not true. The Pacifica decision said that the FCC could punish indecency when children were likely to be in the audience. As a result, the FCC requires that indecent programming be relegated to what is called the safe harbor that falls between 10:00pm and 6:00am local time. In a 1995 case called Action for Children's Television v. FCC (ACT III) the D.C. Circuit held that the FCC could require that all indecent programming be broadcast in the safe harbor period.

The D.C. Circuit acknowleged that indecent speech, unlike obscenity, was constitutionally protected by the First Amendment and that the safe harbor requirement discriminated on the basis of the speech's content. Nevertheless, it held that the safe harbor requirement passed the constitutional test of strict scrutiny that the courts apply to content based restrictions on speech: The government had a compelling interest in the protection of children from indecency and a compelling interest in assisting parents in raising their children free from indecency. The D.C. Circuit did not require any showing of that indecency caused harm to children; instead it argued that it was common knowledge that exposure to indecent programming harms children. The D.C. Circuit also held that the safe harbor rule was narrowly tailored to achieve this compelling state interest because (most) children are presumed not to be watching during the hours of the safe harbor. Whether this justification holds water is disputable, and it becomes even more disputable given the possibilities for time shifting using VCR's and Tivo. ACT III is best understood as a compromise decision that holds that adults have to be given some period when they can watch indecent programming; Congress and the FCC simply settled on a particular time period and the D.C. Circuit more or less accepted it.

This set of rules describes the current state of the law regarding what you can and can't say on broadcast television and radio, and when you can say it. (Section 1464 does not apply to cable television, by the way; it only applies to broadcast stations, whether or not they are carried by cable).

Now the plot thickens. The FCC now takes the position that the safe harbor rule applies to profane speech as well as indecent speech. (Obscene speech, by the way, is constitutionally unprotected, so it can be banned 24 hours a day).

Ernie Miller's point is that the FCC's definition of profanity read literally would seem to include racial epithets and other forms of hate speech. After all, the N-word is much more likely than the F-word to be one "of those personally reviling epithets naturally tending to provoke violent resentment or denoting language so grossly offensive to members of the public who actually hear it as to amount to a nuisance."

If so, then presumably the FCC could impose a hate speech code on broadcast television within the safe harbor period. It would argue that under the reasoning of ACT III the state has a compelling interest in protecting children from profanity and assisting parents in raising their children free from profanity. The ban is narrowly tailored because, just as in ACT III, most children are presumed not to be in the audience during the safe harbor. The only way to avoid the force of this reasoning would be to deny that hate speech causes any significant harm to children. The FCC would have to say that although it is obvious that hearing the F-word is bad for children, hearing the N-word is not obviously bad for them. I'd like to see them try that one.

Of course, any decision to expand broadcast profanity to include hate speech would be highly politically charged, and therefore is likely to lead to accusations of political favoritism and censorship on the part of the FCC. But the decision to punish the F-world but not the N-word is itself hardly politically neutral. All of this suggests that the original decisions in ACT III and in Pacifica were on shaky ground, because they assumed that 1464 could be enforced in a way that did not favor one political ideology over another and did not chill very much protected speech. The FCC's expansion of its jurisdiction to cover what it defines as profanity puts that assumption under a great deal of strain. My advice to the FCC would be to stop now before they completely f*** things up.




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