Topic: Law and Civil Liberties

With Allies Like These…

Close readers of my blog entries will have detected an increasingly irritated tone of late. What with farm subsidies, Doha doldrums, idiotic “solutions” to the trade deficit “problem” and a campaign season upon us, my long-suffering colleagues have become used to my cries of despair.

And now this, through a tip from my colleague and next-door-office-mate, Brink Lindsey (who has no doubt tired of my “You’ve got to be kidding me” exclaims as I read the headlines every morning). The United States has banned Vegemite, that staple food of Aussies everywhere and an emotionally crucial link to the motherland for all us expatriates living in the United States.

According to this article, the FDA allows folate (or folic acid, which has been added to Vegemite) to be added only to breads and cereals (never mind that Vegemite was practically invented for nutritional purposes, to stave off Vitamin B deficiencies).  From a 1996 news release from the FDA:

specified grain products will be required to be fortified with folic acid at levels ranging from 0.43 milligrams to 1.4 mg per pound of product. These amounts are designed to keep daily intake of folic acid below 1mg, because intakes above that amount may mask symptoms of pernicious anemia, a form of vitamin B12 deficiency which primarily affects older people.

Heaven forbid that the flood of Vegemite pouring into the United States should upset the delicately balanced just-enough-but-not-too-much-folic-acid directive from the FDA.

Australia is an ally of the United States. A small ally, yes, but loyal. Our troops have served side by side in World War II, Korea, Vietnam and the Gulf wars. Australian troops are in Afghanistan and Iraq. And, more to the point, our countries have signed a free-trade agreement

Part of me is taking comfort that this truly is a non-tariff barrier implemented to protect consumer health (misguided though that aim may be), rather than an act of disguised protectionism designed to shield the politically powerful import-competing domestic Vegemite industry located in electorally important swing-states. But it’s unfair all the same. And I’m angry.

Thank goodness my parents smuggled contraband Vegemite through customs when they visited me in July, but I think not of my own well-stocked shelves, but the growling bellies of my compatriots. I plan to share this story with my Australian friends. Expect outrage.

(Please note I am filing this under Civil Liberties, as well as Trade).

Althouse on Judicial Activism

Ann Althouse has an insightful op-ed in the Wall Street Journal, which argues that judicial activism is inevitable in a system, like ours, in which the Constitution forces courts to define and protect individual rights.  The tough question for Courts isn’t whether to be active or inactive, but how best to define and protect the constitutional rights that courts are institutionally obligated to defend:

There was a time – not all that long ago – when we openly praised the activist judge and scoffed at the stingy jurist who invoked notions of judicial restraint. That restraint was a smokescreen for some nasty hostility toward individual rights, we’d say. Now we all seem to love to wrap ourselves in the mantle of the new fashion [of judicial restraint]. But that fashion comes at the price of candor.

 Hat tip:  Jonathan Adler.

A Democratic Congress, Scary? Compared to What?

The office of House Majority Whip Roy Blunt (R-MO) has produced a document titled “Pelosi’s House.”  It is a list of 

out-of-the-mainstream bills introduced by Democratic Members [that] deserve particular attention because the principle [sic] advocates are the very individuals who would be in a position to schedule committee markups and move the legislation through the Congress should the Democrats take control. 

The list includes bills that would nationalize health care, create an adult diaper benefit under Medicare, reduce mandatory minimum sentences for crack cocaine, etc.

The list is less scary than its authors seem to think.  Reducing jail time for selling crack cocaine is actually a good idea.  And most of the bills have little support even among Democrats.  A bill that would nationalize health care has only 19 cosponsors, which is less than 10 percent of Democratic House members and less than 5 percent of the full House.

I mean really.  If the Democrats were to take control of the House, probably the worst they could do is add an expensive new prescription drug entitlement to Medicare. 

Oh, wait.  The Republicans already did that.  So the Democrats would have to shoot for something else, like a new adult diaper entitlement.  At least the GOP would go back to opposing such things.  Right?

O’Reilly Interviews Bush

Bill O’Reilly got an exclusive interview with President Bush recently. The second and third segments were the most interesting to me.

In the second segment, O’Reilly asks some pretty good questions about torture, such as: How can anyone make a judgment about your policy when it’s all kept secret? Bush repeats his point that the terrorists can’t be told. O’Reilly could have followed up with: “But it’s out there already, isn’t it?”

During the same segment, Bush says when his agents pick up people from the battlefield, he wants to know what they know. O’Reilly should have followed up with: “But to be clear, sir, when you say “battlefield,” you mean any person picked up anywhere, right? So if an American citizen is arrested in Chicago, you are saying that you can employ “tough tactics” against him just on your own say-so, right?

The third segment of the interview is about Iraq. Here Bush restates his case, as you would expect. Still interesting. He seems to believe that having a clearly stated goal is the key to victory. He has established the objective and he believes the finest military in the world can find a way to achieve it. But later Bush says something like ”ultimately, it is up the Iraqi people.” O’Reilly could have followed that up by saying something like: ”Yeah, but that means the Iraqi people might opt for an endless civil war instead of a peaceful political process, right? If they go that route, we get out, right?”

GOP Crime Record

This is the glistening new headquarters of the Bureau of Alcohol, Tobacco and Firearms:

IMHO, this is a fitting symbol of the GOP’s administration of the federal government.  When the Republicans took control of the Congress in 1995, there was talk of abolishing the ATF for its appalling role in the Waco incident. (For background, read this and/or watch this).  But the GOP “grew in office” as they say, and steadily expanded the budget of the ATF and then approved the construction of a fancy new headquarters.  There is still oversight, mind you.  The ATF director wanted a $65,000 conference table and the Bush administration put a stop to that.  Bush’s people cracked down and said “You guys have to make do with a $33,000 table!”

For an article about how ATF continues to run amok, go here.

For an article about the GOP’s criminal justice record over the past 10 years, go here.

Why the Controversy Will Continue

Good op-ed in today’s Washington Post entitled “The Unlearned Lessons of Abu Ghraib.”  The author, Christopher Graveline, was an Army JAG officer who participated in the prosecution of 10 soldiers for detainee abuse at the Abu Ghraib prison.  Graveline writes: 

President Bush has signed into law Congress’s latest attempt to clarify our country’s position on proper treatment of detainees and the boundaries of legitimate interrogation techniques. Unfortunately, this legislation demonstrates that both the administration and Congress have failed to learn important lessons from what Bush described as the “biggest mistake that’s happened so far” in Iraq: the detainee abuses at Abu Ghraib.

By dissociating potential criminal responsibility from overly aggressive interrogation practices that could be classified as “minor” breaches of the Geneva Conventions, and setting up a situation in which different interrogation practices can be used by our military and the CIA, our national leadership has ensured more abuse scandals. …

The new law grants too much latitude in an area where precision and oversight are critical. If confusion reigned in Washington during the past several weeks over whether waterboarding or other, “harsher” techniques would be permissible under the legislation, imagine the results when our agents and service members are faced with the same question halfway around the world and years removed from this debate – especially if the threat of criminal responsibility is gone.

To illustrate that point, compare Scenario A with Scenario B below.

Scenario A: This is a random misdeed by U.S. personnel and it is illegal.

In this scenario, the man under the hood is a prisoner in U.S. custody.  But this is a rogue operation against the prisoner that was not authorized by the president.  Incidents like this will be investigated–and whoever did this will face prosecution.

Scenario B: This is Long-time standing and it is permissible.

In this scenario, the man under the hood is also a prisoner in U.S. custody.  Long-time standing is an interrogation technique reportedly used by the CIA.  And President Bush says the Military Commission Act will revive the CIA program. Thus, if this tactic was indeed authorized by the president, there is no need for any investigation in this scenario.  The American interrogators were just doing their job.

This Washington Post editorial sums it up well.  President Bush alludes to “tough tactics,” but he will not publicly identify what will be done.  Bottom line: tough tactics will be used–and then there will be more media reports of torture, and then, in response, the administration will restate its opposition to torture.  The Military Commission Act has done little to clarify the rules and to settle the controversy surrounding the treatment of prisoners in U.S. custody.

Lemon Laws

My dad once told me that, when buying a car, check three boxes: (1) Do you need the car?  (2) Is the car too expensive?  (3) Does the car work?

This paternal wisdom is generally applicable not just to cars, but to all sorts of things–like the Virginia Marriage Amendment.  The Arnold and Porter memo that David linked to yesterday demonstrated that the vaguely worded amendment is destined to generate a great deal of costly litigation and may possibly surprise voters by curtailing contract and property rights of unmarried gay and straight couples.  As such, it’s a bit like an overpriced, poorly maintained 1966 Mustang–overly expensive, liable to break down, with a not-insignificant-risk it will explode on impact.

Here’s one more reason to oppose it, even if you are a committed foe of gay marriage:  There’s absolutely no need for it.  Opponents of gay marriage suggest the amendment is needed to defend against “out-of-control” state judges, who might impose gay marriage on the Virginia electorate from the bench, like the Massachusetts Supreme Judicial Court did (so the standard conservative story goes) in Goodridge v. Department of Public Health.

Yet, there’s virtually no risk that will happen in Virginia.  One, Virginia judges are elected by the reliably conservative state General Assembly, guaranteeing they will not stray very far from current enactable preferences of Virginia’s staunchly red-state voters.  Two, the Virginia Supreme Court has consistently interpreted the Virginia Constitution’s narrowly worded anti-discrimination provisions (I say narrowly, because the Virginia constitution does not include a general equal protection clause at all. See Boyd v. Bulala, 647 F. Supp. 781, 786 (W.D. Va. 1986) (“The Virginia Equal Protection Clause contains no equal protection clause as such”)) to provide “no more” protection than has been recognized by the U.S. Supreme Court under the U.S. Constitution’s Equal Protection Clause.  Wilkins v. West, 264 Va. 447, 467 (2002); Archer v. Mayes, 213 Va. 633, 638 (1973).

In this, Virginia’s constitutional precedents differ markedly from those of Massachusetts, where, prior to Goodridge, courts had long recognized that the broadly worded Massachusetts Constitution provides more protection for individual liberty than the federal Constitution. That means that if gay marriage is ever recognized in Virginia, it will be the U.S. Supreme Court and federal constitutional law that drive its recognition.  Under the Supremacy Clause, no state constitutional amendment can defend against that.

As a result, the Virginia Marriage Amendment can’t plausibly be justified as a defensive amendment.  To put it in my dad’s terms: its too expensive, it’s at risk of breaking down, and there’s no conceivable need for it.  A lemon all around.