Topic: Law and Civil Liberties

Politics and the English Language

Over at the Corner, Ramesh Ponnuru notes that a post of his,  reporting from a recent Club for Growth summit, occasioned much outrage on the left side of the blogosphere (as in this entry from Glenn Greenwald, who’s my kind of liberaltarian).  Ponnuru explains:

What happened is that Ed Crane, the head of the libertarian Cato Institute, asked Romney and Giuliani on separate occasions a polemically-phrased question about the president’s authority to designate detainees as enemy combatants—or, as Crane put it, arrest citizens without review.

Giuliani said he’d only want to use the power ”infrequently,” where Romney said he’d like to hear from some smart lawyers before deciding whether to eviscerate what Justice Scalia has, somewhat “polemically,” called “The very core of liberty secured by our Anglo-Saxon system of separated powers.”

I believe that the basis for Ed’s question was the Jose Padilla case, in which the Bush administration asserted the right to seize an American citizen on American soil and hold him without charges or access to counsel for the duration of the war on terror–in other words, perhaps forever.  (Padilla has since been charged in civilian court, but the administration has never renounced the power it asserted). 

I wasn’t there, so I didn’t hear the exact phrasing of the question, but from the account above, Ponnuru seems to think that asking whether the president should have the power to “arrest citizens without review” is an example of polemical phrasing.   Yet that was the very power asserted in the Padilla case.   You can defend that constitutional theory or oppose it, but the description is neutral and accurate.  In contrast, “designate detainees as enemy combatants” is a euphemistic word-cloud, obscuring what’s really at issue. 

Democrats and Civil Liberties

Back during a blogosphere brouhaha about “libertarian Democrats,” Jesse Walker of Reason offered this advice to Democratic candidates who wanted to attract libertarian votes:

The short answer – and this applies to Republican candidates too – is: (a) Don’t be as bad as the other guy, and (b) Be actively good on at least one important issue.

He went on to urge Democrats to “Be good on the issues where the left is supposed to be good.” Like, you know, peace and civil liberties. And the problem for libertarians who are tired of being yoked to an increasingly less libertarian Republican party is that the Democrats aren’t following this advice. Not only have they seized on their narrow 2006 victory to start pushing for national health insurance, more regulation, public housing, and a budget that implicitly requires a massive tax increase, they have dithered about the war in Iraq and completely ignored real civil liberties reforms. Democrats are far more concerned about the firings of eight U.S. attorneys than about the authority the president claims to arrest American citizens and hold them without access to a lawyer or a judge.

Now two leading lefty pundits have called the Democrats out on these issues. Arianna Huffington wants to know when the Democratic presidential candidates are going to say something about the war on drugs. She’s embarrassed to have to admit that a conservative Republican senator from Alabama, Jeff Sessions, thinks the penalties for crack cocaine use are excessive, while liberal Democrats look the other way.

And John Nichols of the Nation thinks Democratic candidates ought to be able to endorse a package of constitutional reforms being supported by the chairman of the American Conservative Union. The American Freedom Agenda, endorsed by several prominent conservatives, envisions such reforms as

  • Restore habeas corpus to prevent the illegal imprisonment of American citizens;
  • Prohibit torture and extraordinary rendition;
  • Prohibit unconstitutional wiretaps, email and mail openings via warrantless searches.

Nichols thinks Hillary Clinton, Barack Obama and John Edwards don’t endorse such goals because they’re cautious politicians. Maybe. Or maybe it’s because they want to be president, and they want to exercise just as much power as President Bush exercises.

So far it’s hard to find the issue(s) on which Democrats are “actively good.” Maybe their 2008 strategy for attracting moderates, centrists, and libertarian-leaning voters is to hope the Republicans keep on spending, centralizing, preaching, incarcerating, and struggling in Iraq.

Federal Stem Cell Funding in the Future?

On Thursday, April 12, two bills dealing with embryonic stem cell funding will come up for votes by the U.S. Senate. The president has promised to veto one of the bills should it come to his desk, but he supports the other. Ironically, the vague language of one of the bills and subsequent confusion in the press regarding the provisions of both bills have made passage of a funding bill more likely.

Here is my summary of what the bills would do: S. 5, which is essentially the same bill as the one passed by the House in January, allows federal funding of a wide range of embryonic stem cell research. S. 30, a “compromise” bill negotiated with the White House, allows federal funding of embryonic stem cell research but of a kind that is essentially worthless.

But that is not how the bills have been described in the press. Two examples follow:

The Washington Times reported this morning:

The White House yesterday signaled support for legislation that provides federal funding for stem-cell research using embryonic cells that have no chance of surviving.

The legislation, authored by Sen. Johnny Isakson, Georgia Republican, seeks a middle ground in the highly charged debate over stem-cell research. His bill skirts moral concerns over using embryonic stem cells while ensuring federal funding for the breakthrough science.

Mr. Isakson’s bill would allow scientists to conduct research on embryos they determine are incapable of surviving in the womb but whose stem cells are still viable for research. The bill would also allow funding for research on stem cells from embryos that have died during fertility treatments.

The Kaiser Family Foundation’s Kaisernetwork.org reported something similar:

The White House on Thursday announced its support for a bill (S 30), co-sponsored by Sens. Norm Coleman (R-Minn.) and Johnny Isakson (R-Ga.), that would allow federal funding for stem cell research using embryos with no chance of survival, the Washington Times reports (Lopes, Washington Times, 4/6).

Currently, federal funding for human embryonic stem cell research is allowed only for research using embryonic stem cell lines created on or before Aug. 9, 2001, under a policy announced by President Bush on that date.

Coleman and Isakson’s measure would fund research on stem cells taken from “dead” human embryos or extracted from living embryos without destroying them. In addition, it would allow federal funding for research on stem cell lines derived from embryos that are not likely to survive during the freezing process or in the womb.

I’m sure the reporters who wrote those articles had access to some interpretations by members of Congress or the White House to which I’m not privy. But I don’t see much similarity between what they describe and the actual language of the two pieces of legislation. Here is what the two bills, in relevant part, actually say:

S 30: It is the purpose of this Act to—

(1) intensify research that may result in improved understanding of or treatments for diseases and other adverse health conditions; and

(2) promote the derivation of pluripotent stem cell lines without the creation of human embryos for research purposes and without the destruction or discarding of, or risk of injury to, a human embryo or embryos other than those that are naturally dead.

By contrast, 

S 5: (b) Ethical Requirements— Human embryonic stem cells shall be eligible for use in any research conducted or supported by the Secretary if the cells meet each of the following:

(1) The stem cells were derived from human embryos that have been donated from in vitro fertilization clinics, were created for the purposes of fertility treatment, and were in excess of the clinical need of the individuals seeking such treatment.

(2) Prior to the consideration of embryo donation and through consultation with the individuals seeking fertility treatment, it was determined that the embryos would never be implanted in a woman and would otherwise be discarded.

(3) The individuals seeking fertility treatment donated the embryos with written informed consent and without receiving any financial or other inducements to make the donation.

The appeal of S. 30 to both sides of the debate may be that “without risk of injury” is open to interpretation. Those in favor of embryonic stem cell research can claim that funding for research done without the intent of injuring embryos, even if it in fact might injure some embryos, is acceptable. Those who worry about the well-being of embryos are likely to interpret the phrase very narrowly, as not allowing the funding of any research with even a potential for harming embryos.

The result will be the same whether both, neither, or one of the bills is passed. The nonsensical waste of time debating federal funding will continue, while researchers who truly care about making progress will do so with private funding.

Does Gitmo Hurt More than It Helps?

This morning, NPR did a story on media coverage of the British sailor crisis in the Arab world. Ramez Maluf, a journalism professor at American University in Beirut, pointed to this commentary by an Arab blogger on the subject:

Iranians should consider those 15 pirates as enemy combatants, and treat them in the same way as they treat our “detainees” in Gitmo. They should be put in orange jumpsuits, and their eyes, hands, and feet should be binded [sic]. After that, they should be kept rotting in cages there for five years without any legal process. That would be just like the U.S. style of democracy. It would be very fair.

Thank God, it appears that the Brits are about to be released. Apparently, what the British are supposed to do is state that they “regret” the incident, and will endeavor to make sure it doesn’t happen again, without admitting that the British entered Iranian territorial waters. I imagine that both of those statements are true, though I suspect that “making sure it doesn’t happen again” may mean different things to the English than it does to the Iranians. There are different ways to ensure that such an incident doesn’t happen again.