On one hand, we have Harriet Miers and Josh Bolton, one the one-time lawyer for the President of the United States and the other the former White House Chief of Staff. Both of them were allegedly involved in the White House’s firing of U.S. Attorneys who weren’t willing to follow along with efforts to discredit or damage Democratic politicians in their districts, and both ignored Congressional subpoenas to provide documents and testify about the dismissals.

On the other hand, we have Roger Clemens, the baseball pitcher for the Boston Red Sox, Toronto Blue Jays, Houston Astros, and New York Yankees. He was allegedly a user of performance-enhancing drugs during much of his baseball career, and gave testimony before a Congressional inquiry into the use of drugs in sports which was directly contradicted by his former trainer.

In what can be said to be one of the most poignant statements about what’s wrong with politics and justice in America, the Department of Justice has agreed to investigate whether Roger Clemens lied to Congress, but has refused to investigate Harriet Miers and Josh Bolton for not complying with Congressional subpoenas. The fact that our Executive Branch isn’t wiling to hold its own people responsible for abiding by the law is abhorrent; the fact that this is all taking place alongside the same Executive Branch spending its time on the private behavior of athletes competing in games is just the icing on the proverbial cake.

Most of my (two or three) regular readers know I’m a huge Dahlia Lithwick fan, so it’ll come as no surprise that I think her latest missive is pretty freaking amazing. Stemming from when, in 2004, two West Virginians were thrown out of a state-government-sponsored event (attended by the President) when they deigned to show up with anti-Bush T-shirts on — and then were handcuffed, booked, and put in jail — Lithwick then takes a look at our current Administration’s history of preventing any dissenting voices from attending official White House events. She concludes with a look at the actual White House advance manual for such events, finding that it appears to have become the official policy of the United States to only allow those who are supportive of the Administration to be within earshot of the President. I guess, if nothing else, it explains how clueless Bush is that many of us out here disagree with him… but it’s a sad statement nonetheless.

I’ve got a few short takes today, to try to assuage my guilt for being a bit swamped these days (and also to get rid of a few of these tabs in my browser).

Remember the lawsuit Verizon filed against Vonage, threatening to bankrupt the upstart VOIP provider over technology the Baby Bell claimed was its own? It looks like Vonage might have finally rolled out workarounds to all the disputed tech, and also posted better-than-expected financials — which makes me pretty excited, being that I’ve been nothing but satisfied with our service from the company.

I’ve been slowly working my way through Jane Mayer’s amazing New Yorker piece on the CIA “black sites”, and it’s pretty clear that this is a must-read article for those who wish to learn how far our government has taken its torture of detainees in the all-important war on terror. The worst part of it is that at this point, there’s no question that what the public knows only scratches the surface, and that when tomorrow’s historians uncover the full details of this administration’s assaults on fundamental American liberties, we’ll either be aghast or will have long ago given up the right to express our outrage. (Let’s hope for the former.)

It’s amazing, but Apple really does look to be violating the script.aculo.us license on every single page that’s generated by the .Mac photo gallery. Either that, or they’ve struck some licensing agreement with the tool’s author, Thomas Fuchs — but seeing as how script.aculo.us is released under the extremely permissive MIT license, that’d seem unlikely for Apple to have done.

Cool — I hadn’t put two and two together, but Movable Type 4.0 is using Codepress to provide inline syntax highlighting in its template editors, and has extended the tool so that it recognizes all the Movable Type template tags. A long time ago, I bookmarked Codepress so that I’d remember to come back and take a look at it… looks like I don’t have to do that anymore. :)

Finally, this page might be dangerous for me. That is all.

Thanks to the Los Angeles Times, we now know that despite President Bush’s proclamation that 30 months in prison was an “excessive” punishment for Scooter Libby, the Bush Justice Department has presided over the sentencing of 198 individuals convicted of obstruction of justice, and the average prison sentence received by those individuals was 70 months. I’d comment on this more if I thought it was needed, but that’s really a finding which speaks for itself.

In light of the President commuting Scooter Libby’s prison sentence yesterday, calling it “excessive”, I figured I’d link to the U.S. Supreme Court decision from two weeks ago which upheld the 33-month sentence of Victor Rita. Rita was convicted of perjury and making false statements — essentially, the same as Libby — and challenged the sentence as excessively harsh and unreasonable; the Court disagreed, saying that the sentence was well within federal sentencing guidelines and appropriate given the crimes of which Rita was convicted. Unfortunately for Rita, he isn’t a friend and confidante of Dick Cheney; I’d assume he’s pretty bitter about Libby walking around a free man…

Awesome — Cheney appears to believe that the Office of the Vice President is not a part of the Executive Branch. Does that mean that he’s also no longer the first in the chain of Presidential succession? We can only hope…

Comparing this with this, it couldn’t be any clearer how different the criminal justice systems are for the rich and poor.

Jesus, as if there weren’t reason enough to think that our current White House has not one whit of respect for the rule of law, Dahlia Lithwick’s Slate column today about the attempt to coerce an ICU-bound John Ashcroft into certifying the legality of the NSA wiretapping program should be enough to cement that fact. It really does play like a Harrison Ford thriller — the acting Attorney General finding out that Bush’s Chief of Staff and the White House Counsel intended to take advantage of Ashcroft’s heavily medicate state and then racing, sirens ablaze, to the hospital to intervene, the President overtly being told that his program was illegal and then deciding to continue it despite that fact, the whole bit. The Post has more on the whole escapade, including a damning editorial and a piece about Alberto Gonzales refusing to retract a 2006 sworn statement that the NSA program had aroused no dissent or controversy within the Bush administration (leading to speculation that there are other surveillance programs we don’t know about).

While I don’t hold a lot of sympathy for those who have been willing to unquestioningly carry Bush’s water over these past six-plus years, I actually do feel a little bad for the rank and file Republicans — I suspect that their party will find it incredibly hard to avoid being defined for years to come by the abhorrent behavior, intransigent lawlessness, and reckless disregard for the truth that’s emanated from the Oval Office since 2001.

Ah, crapola: the Vonage verdict is in, and it bars the company from signing up any new customers during the ongoing patent fight with Verizon. Seeing as how Vonage loses 650,000 customers a year, and now can’t gain a single one for the foreseeable future, I’m pretty sure this is the sign of the apocalypse for the VoIP company.

My cursory research of other options for our home VoIP phone service brought me to the doorsteps of Packet8 and AT&T CallVantage, and then to two smaller companies, SunRocket and BroadVoice. Does anyone have experience with either? Specifically, the features I like a lot with our Vonage service are its rock-solid reliability (we’ve never had an outage or problem), the free calling to England (my sister and her family live there), and the feature where it attaches voicemail messages to email and sends them to us. Looking at the feature sets of all four of these options, it looks like the voicemail thing is pretty universal among them all, but only BroadVoice has a reasonable plan with free calling to England, and (of course) there’s no way to know about reliability other than asking for users’ experiences.

I’ll be the first to admit that I’ve only tangentially been paying attention to the lawsuit Vonage is involved in with Verizon — I knew that Vonage was found to have violated a few Verizon patents, but I had no clue that my home phone company might be forced to shut down its service this coming Friday! Apparently, in an effort to avoid a court-ordered shutdown, Vonage struck a deal with VoIP Inc. today to carry all its calls on VoIP’s network, a move that both companies claim routes around at least two of the technologies that Verizon has patented. But in the end, we still have a phone company that is a quarter of a million dollars in debt, now owes Verizon over $50 million for the use of its patents, and is churning through subscribers at increasing rates. So even if Vonage makes it through Friday — hell, even if the company makes it through the next few months — I’m not naive enough to think that I don’t need to be doing any research on who our next phone provider will be. Anyone have any suggestions?

Update: Clint Ricker has a bit more about the patents involved in the dispute over at IPUrbia.

In a little-reported incident, the Chief of the General Services Administration Lurita Doan — the woman appointed by the Bush administration as head of the agency which directs $66 billion a year in U.S. Government procurement contracts — allowed the Deputy Political Director of the White House to come in and give an overtly political presentation to 40 GSA staffers, a presentation which included lists of Democrats the GOP is targeting in the 2008 election and Republicans who would need “defense” in order to hold onto their seats. (The presentation, in PDF format, is available from the House Oversight Committee website.) Worse still, people present at the meeting recall Doan standing up at the end and asking employees for ways in which the GSA could “help our candidates.” Video from her testimony in front of the House Government Reform Committee today is already online, and it’s amazing to watch her stammer “I don’t recall” and “it wasn’t my meeting” repeatedly. If I weren’t so cynical about our current government, I’d also say that the video provides a great view of her career dissolving, but given that our Attorney General is still in command of the DoJ despite being part of attempts to pressure U.S. Attorneys to engage in political prosecutions and then overtly lying to Congress about it earlier this month, Doan is just as likely to be the future recipient of the Presidential Medal of Freedom.

The Washington Post reported today on a DC-area general contractor which has filed a $6 million lawsuit against two homeowners for posting their bad experiences with the company on Angie’s List. (Both also posted their opinions in the Mount Pleasant neighborhood forum, and apparently, this posting is also cited as a basis for the lawsuit.) It’s hard for me to see the contractor coming out on top here, being that I’d imagine neither homeowner will have a problem describing their own experiences with the contractor, documenting how their renovations went poorly, and how those experiences led to them forming negative opinions of the company, but now both will have to spend time and money fighting for their right to have and share an opinion.

It bears mentioning that it’s precisely because of personal opinions like these that Shannon and I belong to the DC chapter of Angie’s List — I value the opinions of a company’s customers far more than I do the company’s own claims, and I’m not sure I’d ever hire someone to do $30,000 worth of work on my house without finding out how other people feel about the work the company has performed in the past. And because of this, I hate hearing about lawsuits like these, because if consumers become so worried about being sued that the utility of services like Angie’s List or Consumers’ Checkbook is diluted, it’ll be that much harder to figure out which companies are worth trusting with what can be incredibly large investments of money. (It’s sort of like the world of job references these days, where companies more or less refuse to accurately talk about bad experiences they’ve had with ex-employees for fear of being sued.) I guess for the time being, another way that DC-area homeowners can vet potential contractors is by searching the publicly-available building permit database to find other jobs the company has done, and then tracking down and asking those people what they think of the work… it sure as hell beats trusting the few hand-picked references the contractor passes on when asked.

The government has now officially put more thought into the design of Guantanamo’s court bathrooms than the charges against its prisoners.

Dahlia Lithwick has a great year-ending list of the 10 most outrageous U.S. civil liberties violations of 2006, and it’s a good’un.

One brief update on the National Campaign for Fair Elections public service announcement: apparently, the organization is doing good work today! After calling the Putnam County elections bureau, the friend I mentioned in today’s earlier post also called NCFE and was told that they’d immediately put a lawyer in the voting precinct to make sure that they stopped incorrectly mandating identification before allowing registered voters to cast their ballots. Now that’s service.

With all the voting problems people are already reporting (just take a look at Josh Micah Marshall’s excellent Talking Points Memo for examples), I suspect the NCFE will be busy today.

After failing to make it to vote in the primary (I was attending on the peds oncology service, and couldn’t get out of the hospital in time!), Shannon and I woke up early squirrelly this morning and hustled our way to the polling station. Voting in DC is a bit weird; you vote for local races that have meaning, but the national races are for “shadow representatives” that functionally have as much relevance as a seamstress at a nudist colony. As a first-time DC voter, I had to show identification before I could vote, but interestingly Shannon was asked for her ID as well, and she’s not a first-time voter. (I also just heard from a friend in New York who was also barred from voting until he produced an ID, and is now pursuing an explanation from his county board of elections.) In any event, we slid our ballots into the electronic reader, ate a celebratory donut, and immediately started stressing about watching the returns this evening… here’s hoping for the sweeping repudiation of the Bush administration that’s been trending towards finality in the pre-election polls.

One public service announcement: if you have any problems voting (electronic voting machines that malfunction, officials that wrongly prevent you from casting a ballot, whatever), the National Campaign for Fair Elections has set up a toll-free hotline, 866-OUR-VOTE. The group has monitors and attorneys on-hand to help deal with problems as they arise, so it’s probably worth giving them a call with any issues.

Seen in NYC this past weekend:

Don’t worry about that whole no-parking-at-fire-hydrants thing, there, Mr. Police Officer…

Seriously, when will someone get enough of a backbone to challenge the idiotic continued usage of signing statements by our President? Yesterday, we had the top of the Executive Branch food chain explicitly state that he feels he has additional power to change Homeland Security’s privacy rule audits, and also that he can defy the rules Congress spelled out about the qualifications of any potential FEMA director. The arrogance is astounding — each statement says, “I know what the words of the law state, but even though I’ll sign my name to the law, I won’t abide by those words.”

The FEMA bit is plainly insane, because the text of the bill stated that any potential director of the agency had to have at least five years experience and a “demonstrated ability in and knowledge of emergency management and homeland security,” and Bush’s signing statement explicitly declares that he doesn’t intend to abide by those requirements. This is immensely galling, given FEMA’s performance during Katrina under Michael Brown, someone who clearly wasn’t qualified to have the job or manage an emergency. The text of the statement (emphasis mine):

Section 503(c) of the Homeland Security Act of 2002, as amended by section 611 of the Act, provides for the appointment and certain duties of the Administrator of the Federal Emergency Management Agency. Section 503(c)(2) vests in the President authority to appoint the Administrator, by and with the advice and consent of the Senate, but purports to limit the qualifications of the pool of persons from whom the President may select the appointee in a manner that rules out a large portion of those persons best qualified by experience and knowledge to fill the office. The executive branch shall construe section 503(c)(2) in a manner consistent with the Appointments Clause of the Constitution.

Here’s my big question: what’s the actual difference between these signing statements and line-item vetoes? And if there isn’t any, didn’t our Supreme Court rule that the Constitution doesn’t allow for line-item vetoes? Will it take Congress changing party hands in order to get the body to stand up for its Constitutionally-vested power to define the laws that go before our President for signature?

When news of a detainee “compromise bill” started rumbling off of Capitol Hill, I was a bit suspicious that none of the media coverage contained even the slightest bit of detail about how the new legislation would deal with the major problems inherent in our current system of torturing them until they give us what we want. As the days have unfolded, I’ve read the daily paper anxious for more information, and been both surprised and alarmed that there wasn’t any. So when the U.S. House of Representatives approved the legislation yesterday, I was intrinsicly hopeful that perhaps they had details that sufficiently put to rest fears that we’d continue crapping all over the Geneva Conventions, the Nuremberg Principles, and any other half-moral set of guidelines that dictate we as a nation shouldn’t be torturing people. Well, it turns out that that’s not quite the case — most lawmakers haven’t the foggiest clue which interrogation methods are currently used in our War on Terror, and none of them know what practices will be allowed or disallowed by the new legislation. (And yes, this includes John McCain, who apparently doesn’t actually give a crap about prisoners’ rights or standing up for what’s just.) As always, Dahlia Lithwick masterfully puts it into words, this time skipping the humor and going straight for deserved damnation.

For the five years since 9/11, we have been in the dark in this country. This president has held detainees in secret prisons and had them secretly tortured using secret legal justifications. Those held in secret at Guantanamo Bay include innocent men, as do those who have been secretly shipped off to foreign countries and brutally tortured there. That was a shame on this president. But passage of the new detainee legislation will be a different sort of watershed. Now we are affirmatively asking to be left in the dark. Instead of torture we were unaware of, we are sanctioning torture we’ll never hear about. Instead of detainees we didn’t care about, we are authorizing detentions we’ll never know about. Instead of being misled by the president, we will be blind and powerless by our own choice. And that is a shame on us all.

Update: Unsurprisingly, the Senate just voted to kill an amendment which would have guaranteed habeas corpus rights to all non-citizen detainees. (Yep, even good ol’ John McCain voted against it.) Let’s be very clear: this means that those detainees who aren’t U.S. citizens will have absolutely no venue in which to challenge their detention, meaning that there’s almost no way to review this abhorrent bit of the legislation once enacted. (Congress and the President decided to be generous to citizens — we all have been granted the kindness of military tribunals to which we can appeal our detention.) Far from fearmongering, that parenthetical statement is a particularly important bit of info, since the new law also gives the President and military pretty much sole authority over the definition of “enemy combatant”, meaning that it’s not exaggerated to say they can go so far as to declare American citizens on American soil as enemy combatants. As a result, our Congress is a hair’s breadth from ensconsing our Executive branch in virtually unfettered power to detain, interrogate, and permanently imprison anyone they so choose. Truly, completely shameful.

The New York Times now has part two of its series online on the miscarriage of New York State town and village justice. It’s as frightening as the first.

Tomorrow’s New York Times has a fascinating — and fascinatingly frightening — look at the abhorrent state of New York State’s town and village courts. 75% of the nearly 2,000 judges don’t have any formal legal training, and the state practices little to no oversight into how they run their “courtrooms” (a word deserving of the quotations, given some of the descriptions in the article). Misogyny, racism, and petty grievances take precedence over justice in a few of the towns the Times profiled, and disciplinary action is scarce to nonexistent. Let the article serve as a warning: never run afoul of the law in upstate New York.

There’s been a bit of press given lately to Amazon Unbox, the internet behemoth’s move into the video download business, and I’d imagine that between it and Apple, the online video market is going to explode over the coming months. It’s for that reason that I’m grateful to people like Cory Doctorow, who put quite a bit of effort in Friday explaining how godawful the terms of service are for Amazon Unbox, and why people should treat the new service as they would an ebola-infected colony of monkeys. Summarizing any of the salient points of Cory’s analysis doesn’t do the whole thing justice; suffice it to say that the terms of service dictate when and where you’re allowed to watch any downloaded videos, prevent you from deciding how and when Amazon’s software runs on your computer and updates itself, and prevent you from recourse if and when Amazon decides that you’re no longer allowed to watch the things you’ve paid for and downloaded. If you had to find a single pullquote from the piece, this is it:

So this is just like renting a movie from Blockbuster, except that while you can give your Blockbuster movies to your boyfriend to watch after you’re done with them, these movies are only for you. Oh, and they cost more. Oh, and you have to pay for the bandwidth to transfer them to your home. Oh, and you have to wait for them to download. Oh, and you have to let them invade your privacy.

Given that Amazon has precious little independent interest in enforcing most of the the restrictions placed on users by the terms of service, it becomes clear that what’s being enforced are the desires of content producers like the MPAA, and by using a service agreement, the whole setup avoids the need for an actual legal basis for the demands placed on Unbox users. Most of my tens of readers know that I’m not one to tilt towards tin-foil-hat conspiracy land — the terms of service for Amazon Unbox are purely awful, and I couldn’t recommend more strongly that people find another way to spend their entertainment money.

Now seems as good a time as any to dump a few links here that have accumulated in tabs in my browser over yesterday and today:

• Michael Bronner has a fantastic article over at Vanity Fair’s website that uses the recordings of NORAD’s efforts the morning of 9/11 to paint the picture of just how unprepared our country was to deal with the attacks, and how chaotic the information flow was as it reached from the trenches up to those invested in protecting the airspace of the East coast. I guess it doesn’t surprise me how difficult it was for the commander of the Northeast Air Defense Sector to get reliable information that morning, but it’s astounding nonetheless, and in all honesty it serves as a potent argument for the creation of the Department of Homeland Security, and the establishment of clear and decisive plans for dealing with crises on the scale of 9/11.
• Pamela Colloff has an equally fantastic article in the latest Texas Monthly about Charles Whitman’s massacre from the top of the University of Texas Tower 40 years ago yesterday, an article that’s almost entirely told through the first-person words of people who were in the thick of it. It’s a very moving piece, and gives a voice to how shocking the event was at the time, and how different the immediate police response was in 1966 than it’d be in 2006. (via MetaFilter, which has a bunch more links to related info)
• Dahlia Lithwick took a look this past weekend at privacy rights in the age of weblogs, using the affair between Robert Steinbuch and Jessica Cutler (the skanky ex-Capitol Hill assistant who was once better-known as Washingtonienne) as her focal point. I’m not sure if this is the first time, but I found myself disagreeing with Lithwick’s final point, that Cutler’s exposition of the affair on her weblog might have violated Steinbuch’s privacy. It seems to me that a person has every right (absent a specific contract to the contrary) to talk about that which is going on in his or her own life; it’s not like Cutler was passing on a rumor of someone else’s affair, she was talking about her own sexcapades.
• In August of 1958, young and new-to-the-business photographer Art Kane was tasked by Esquire Magazine with taking a photo to illustrate an article about jazz. He wasn’t entirely sure how best to approach the assignment, so he started out by doing something I’m sure he felt would be a failure: he contacted as many major New York City jazz musicians as he could, and asked if they would meet on 126th Street at 10 o’clock in the morning. Much to his surprise, 57 of them showed up, leading to one of the most amazing photos I’ve ever seen. My favorite bit of the photo is the lower right corner, in which Dizzy Gillespie’s goofing off caused Roy Eldridge to turn around just as the image was captured. (via kottke)

In what can only be described as an only-in-New-York-City case, a state appellate court ruled yesterday that the co-op board at 941 Park Avenue erred when it gave the owner of one of the apartments the right to take over the elevator vestibule which they shared with another co-op, including painting the other owners’ front door, and preventing the other owners from being able to receive their mail or guests at their door. My favorite excerpt from the opinion (all emphasis added by me):

To the extent the Moores are concerned about the security or privacy implications of someone unknown to them wandering into their apartment, they have recourse to the self-help remedy of locking their door. As to the nuisance the Moores might suffer from another resident’s guests ringing or knocking on their door, there is a panoply of reasonable options that would not impair the market value of the Moores’ apartment or otherwise tarnish its luxury status. For example, a tasteful marker could be affixed to, or next to, the doors indicating the apartment numbers or the residents’ names. In the alternative, the Moores’ door might be painted one color, the Brauns’ another, and the service and elevator doors a third. Barring the existence of three respectable colors in the paint spectrum or a fashionable marker design, the Brauns and the Moores might wait in their respective entranceways for their guests during the interim between the doorman’s calling up and the elevator door’s opening. Insofar as the Moores might find it “embarrassing and disturbing” to open “the door to retrieve mail and hav[e] a stranger staring at them,” as they remonstrated to the Board in one letter, even the one-man building escort they advocate would not shield their vision from other people in the hallway.

It’s the kind of case you have to read the opinion to believe; it’s also the kind of case people should have to understand before diving into the New York co-op real estate market. As a good friend of mine (and lawyer-in-training) wrote to me when I forwarded him the link to the opinion: so long as there are petty, pissed-off, rich people in this world, there will never be a shortage of work for lawyers willing to serve them.

And today, TPM Muckraker presents a big, huge, gargantuan reason why it should now be obvious how foolish it was that Congress was willing to allow U.S. Attorney General Alberto Gonzales to testify about the NSA wiretapping policy without having to be sworn to an oath of truthfulness. From details that are now leaking out of the NSA like a sieve, it turns out Gonzales was lying the whole time.

It’s particularly saddening to note that this news hit on the same day we’ve learned that our Department of Justice has dropped its investigation into the NSA wiretapping program because the government refuses to grant high-enough security clearances to the DOJ lawyers. It’s fascinating, really — we now have a government which has implemented programs in direct contravention of the rule of law, and is willing to use its ability to grant or deny security clearances as a way to prevent a lawsuit into that program. Exactly how far does this all have to go before the other branches of government put their collective feet down and say that this has clearly crossed the line?

I’m pretty sure I’m only one of about three hundred million people who figured they’d never have occasion to utter the phrase “Anna Nicole Smith won her case in front of the U.S. Supreme Court today…” (The decision, for those who are actually interested, is here.)

Over at Slate, John Dickerson has a great article arguing that the most important point to focus on in the is-it-a-leak-if-Bush-authorized-it debate is that regardless of the answer, the whole situation makes clear how hypocritical our President is, and how little we can trust the words that come out of his mouth. (Remember, Scooter Libby’s grand jury testimony only confirms something that’s been discussed out in the open for a while now.)

Since the beginning of the Valerie Plame investigation, Bush has been firmly on-record as saying that leaks of information will not be tolerated. With quotes like “If there’s a leak out of my administration, I want to know who it is,” “somebody in our government wanted to show off to his family, or her family, in between Christmas and New Year’s by leaking information in the press that he or she thought would be helpful to the government,” and calling the NSA wiretapping leak “a shameful act” that is “helping the enemy,” it’s hard to then argue that Bush’s choice to authorize his staff to leak information from the National Intelligence Estimate is anything but pure hypocrisy.

The sum of everything that we’ve learned about the Bush Administration — the deceit in the run-up to the war in Iraq, the approval of use of torture in our treatment of prisoners, the authorization of warrantless wiretaps of American citizens on U.S. soil (something the Administration is now saying it can do even if both participants in a phone conversation are within national borders!), the brazen lobbyist influence within the White House, and now the authorization from the Oval Office to use classified information for political ends — is so much worse than anything which occurred during Clinton’s eight years in office, and yet it was then that we as a nation found ourselves wrapped up in impeachment hearings. It’s all just stunning.

I would have done nearly anything to be at the Supreme Court for yesterday’s Hamdan v. Rumsfeld oral arguments. Alas, since I wasn’t there, I’m content reading Dahlia Lithwick’s recap of the discourse, and happy knowing that if her portrayal is correct, even the Justices are growing weary of the Executive’s attempts to create a new set of rules that require no checks or balances.

Reason number 2,143 that our government shouldn’t be in the business of wiretapping people without warrants: Iyman Faris, a defendant who pled guilty to plotting to blow up the Brooklyn Bridge, is now seeking to reverse his plea based in part on the fact that he was the target of warrantless wiretaps. In our current political and judicial climate, I doubt that the case will go very far, but it certainly feels plausible enough that authorities might have used evidence obtained in extralegal means to pressure a plea from Faris. To me, it all feels like an episode of Law & Order, with the corrupt cop leaving in his wake a trail of criminal appeals based on the invalidity of his testimony…

There’s no question that I’ve always been somewhat skeptical about claims that cellphones can cause problems with airplane guidance and control systems; I’ve always seen it as existing in the same class of claims as ISPs claiming that voice-over-IP might “disrupt their networks,” claims that are as much about protecting control as they are about ensuring safety or quality. This month, researchers at Carnegie Mellon University are publishing results of a study of in-flight cellphone (and GPS receiver) use that validates their continued furtive in-flight use, and reviews a sizable chunk of retrospective data about interference, and the editorial board of IEEE Spectrum has referenced the article in a call for a systematic study both of portable electronic use and interference aboard airplanes before any changes are made to the current use bans. (Sadly, as is generally the case, most news reports and weblog posts about the article aren’t doing a good job of explaining the findings; most of them either make the direct claim or appear to want readers to make the conclusion themselves that the study found clear evidence of navigation or control system interference, something the study very definitively did not do.)

Sure, my personal stake in this is that I don’t want to be on an airplane that crashes as a result of someone’s need to stay on their cellphone for the duration of the flight — but I’d be lying if I didn’t say that I’m also very interested in any finding that might prevent having someone screaming details about their personal life into their cellphone in the seat next to me.

Over at the New Yorker, Jane Mayer has written what amounts to a must-read report on how the U.S. executive branch has come to condone cruelty and torture in its ongoing fight against terrorism. Alberto Mora, the recently-retired general counsel to the U.S. Navy, plays a large role in the article — he’s one of the few senior Pentagon officials who saw the shift in policy not just as dangerous, but as a violation of the most basic ideals of our country.

As [Mora] sees it, the authorization of cruelty is equally pernicious. “To my mind, there’s no moral or practical distinction,” he told me. “If cruelty is no longer declared unlawful, but instead is applied as a matter of policy, it alters the fundamental relationship of man to government. It destroys the whole notion of individual rights. The Constitution recognizes that man has an inherent right, not bestowed by the state or laws, to personal dignity, including the right to be free of cruelty. It applies to all human beings, not just in America -— even those designated as ‘unlawful enemy combatants.’ If you make this exception, the whole Constitution crumbles. It’s a transformative issue.”

No summary I could provide of the piece could do it the slightest bit of justice; it’s a long read, but well worth the time (if not the rise in blood pressure).

Being in the final year of my fellowship (the three years of pediatric hematology/oncology specialty training that more or less finishes my formal training), I’ve started thinking about the future. I know that, in my world, satisfaction is derived from about a million different things, only one of which is compensation — but that doesn’t make stories like this any less depressing. In addition to the sheer salary numbers that are being thrown around (here’s a salary chart from the online message board discussed in the article), the idea that New York City law associates are spending any amount of time whining on message boards about their relative poverty is a bit disheartening, and certainly doesn’t elevate the esteem of the legal profession in the eye of the average outsider looking in. (It also doesn’t engender any sympathy from those of us in the medical profession who might be considered analogous to “Year 6” associates in that table and yet don’t make anywhere near those salaries.)

I can’t even begin to describe how angry it makes me that many states are considering sanctioning the idea that health care providers can deny people care based on religious beliefs. Forget about pharmacists who exercise their religion at work and refuse to fill prescriptions for birth control medication; the absolute truth — no exaggeration at all — is that “right of refusal” laws like these could grant a doctor the right to put you on a ventilator even if you have a perfectly valid, legal living will stating your preference otherwise, and could allow everyone from doctors to social workers and pharmacists to completely decline care for gay patients. Hell, they’d even let fundamentalist pediatricians and internists refuse to treat sexually-transmitted diseases in unmarried patients, and Jehovah’s Witness physicians could refuse to give patients blood transfusions.

This crap is the perfect illustration of the idiocy of mixing religion and government. With laws allowing medical providers to enforce their religious beliefs on patients, where do you draw the line? What religious beliefs are acceptably covered by these laws? Who determines if some provider’s religious beliefs are worthy of protection? Ultimately it comes down to this: why are a doctor’s religious beliefs more important than the will of the patient?

The Ninth Circuit Court of Appeals ruled yesterday in support of airport regulations demanding the display of identification by travelers — and in support of the existence of secret laws, laws that our government can prohibit people from scrutinizing yet can impose on those same people. (The decision, in PDF form, is here.) As reflected in my feelings back when the case (Gilmore v. Gonzales) was being argued, this is somewhat disappointing; it seems perfectly contrary to the ideals of our country for there to be laws whose words exist behind lock and key, but whose force exists in the lives of each of us.

This morning, while I was slowly waking up and surfing the web (totally uncaffeinated, since the reason I was awake was to wait for our grocery delivery, which contained the all-important milk for my coffee!), I read a news story that woke me up in a hurry by getting my blood boiling. The article is about Sam Beaumont, an Oklahoma rancher who, in 1977, met Earl Meadows, fell in love, and lived for over twenty years with the man and his three children. In 1999, Beaumont had a stroke, and Meadows cared for him until he died a year later. Beaumont’s will left everything to Meadows, but the state of Oklahoma invalidated the will because it had one too few witness signatures — and (as you’d expect) Oklahoma has no common-law rules that would allow for Meadows to remain the rightful inheritor. That left everything (their ranch, all the animals) being auctioned off with the proceeds being split among dozens of Beaumont’s cousins. Oddly, though, this is now a common-enough story that it alone is barely enough to enrage people, and isn’t what made my blood pressure explode — what did that was the fact that all the cousins are now suing Meadows for back rent on the property. (The relationship and controversy are among those profiled in the 2003 documentary Tying the Knot.)

Seriously, for all those out there who feel that gay people are going to hell, my rebuttal is that there’s a very special place in hell for people like those cousins, looking to actually profit from their bigotry and closemindedness (and for certain elected representatives of the fair state of Oklahoma who spout hate on the floor of the U.S. Senate).

Oh, great — two more government agencies appear to have been lapping at the warrantless search bowl for the past three years. According to David Kaplan over at U.S. News and World Report, the FBI and the Department of Energy have been performing radiation monitoring at over one hundred sites in and around the Washington, D.C. area, in many cases going onto private property without warrants in order to set up the surveillance equipment. It also looks like, at times, they’ve extended the program into Chicago, Detroit, Las Vegas, New York, and Seattle, and that many of the people who have been caught up in the surveillance have been U.S. citizens.

Seriously, what does it take for the people of this country to start caring about how power-hungry our government has become?

Since I pointed yesterday to Bruce Schneier’s piece on Bush’s use of the NSA for domestic spying, I’d be remiss if I didn’t also send you his way to read today’s piece on what the spying means for privacy rights, and for the idea of Presidential power. It feels to me like nobody’s stated the issues more clearly and forcefully:

Schneier’s piece is chock-full of legal analysis and precedent that demonstrates how illegal the wiretapping efforts of the Bush Administration are, and provides tons of links to other peoples’ analysis of the program and the Administration’s stated justifications for it. One link, to Scott Rosenberg’s view over at Salon, is also worth a read, for the first postscript as much as for the rest of it.

The thing that makes me happy with the entire brouhaha over gay marriage is that it’s continuing to expose as total crap the notion that the institution of marriage should form the basis for granting hundreds of rights to specific people. (You know — a married couple gets to inherit each others’ possessions, make decisions for each other, gain custody of children, that sort of thing.)

For example, take the Manhattan Supreme Court Appellate decision from two days ago, saying that gay couples have no fundamental right to marriage. The panel of judges came to that conclusion after, in part, finding that marriage laws are based in their ability to ensure the production of children; their words are as follows:

Marriage promotes sharing of resources between men, women and the children that they procreate; provides a basis for the legal and factual assumption that a man is the father of his wife’s child via the legal presumption of paternity plus the marital expectations of monogamy and fidelity; and creates and develops a relationship between parents and child based on real, everyday ties. It is based on the presumption that the optimal situation for child rearing is having both biological parents present in a committed, socially esteemed relationship. The law assumes that a marriage will produce children and affords benefits based on that assumption.

No matter how you feel about this notion, if one takes it as true, why then should childless heterosexual couples be afforded any of the rights of marriage? Why should the courts deem them worthy of the title, and confer upon them those things that it excludes from homosexual couples simply because the latter cannot pair up to produce children? Parse it even further — what about couples that marry, intend to procreate, but find themselves unable to do so? Should their marriage certificate be revoked?

The remainder of that paragraph goes on:

It sets up heterosexual marriage as the cultural, social and legal ideal in an effort to discourage unmarried childbearing and to encourage sufficient marital childbearing to sustain the population and society; the entire society, even those who do not marry, depend on a healthy marriage culture for this latter, critical, but presently undervalued, benefit. Marriage laws are not primarily about adult needs for official recognition and support, but about the well-being of children and society, and such preference constitutes a rational policy decision.

Why, then, do married couples get to inherit each others’ belongings well after their children have left the nest? Why don’t we make each and every right that our various levels of governments grant married couples contingent on the production of the first child, and then terminate ‘em all as soon as a couple’s youngest child reaches the age of 18? Reason: because this is all complete horseshit, an attempt to perpetuate a social custom under the guise of something with greater meaning. Until we as a society can separate the notion of a couple making a commitment to each other from the idea that that commitment has some larger (mostly religious) meaning, we’ll continue to see dubious justifications like this coming out of our courts, and continue to commit injustices against those who happen to make a commitment to someone of the same gender.

I’m jealous of the people who’ll be able to (try to) go to tomorrow’s Ninth Circuit Court of Appeals hearing in Gilmore v. Gonzales; to me, it really is one of those court cases that might define liberty in America.

For those who don’t recognize the case title, Gilmore v. Gonzales is John Gilmore’s lawsuit against the government for being banned from flying without providing some form of identification. It was originally filed in 2002 (then named Gilmore v. Ashcroft), and was dismissed by the U.S. District Court in northern California on jurisdictional grounds; so far, the government has refused to even disclose the text of the law requiring identification for airline travel, and has requested sealing of all government evidence in Gilmore’s case. (The Ninth Circuit denied the motion to seal evidence, the DOJ asked it to reconsider, and the court has yet to rule on that motion.) To me, the notion that we have a government which claims that there are laws by which we must abide but which we cannot read is pretty offensive… we’ll see how the Ninth Circuit feels.

A ruling came out of the Florida courts yesterday that’s managed to pique my interest a bit. In the case, a group of accused drunk drivers requested access to the program code for the breathalyzer that was used to document their blood alcohol levels; the court agreed with their request, and ordered the state to provide them with the code. The kicker is that the manufacturer of the breathalyzer claims the source code as a trade secret and is refusing to surrender it to the state, meaning that all of the drunk driving convictions obtained by using the device can now be called into question (and potentially overturned).

To me, this makes perfect sense. If a tool is going to be used to document some fact that’s used to make decisions about right and wrong — criminal and legal — then that tool better be as transparent as possible so that experts can be sure it works the way it’s advertised. In medicine, we would never make clinical decisions based on experimental or unverified test results; in fact, there’s an entire certification process through which new laboratory tests must be put before they can be used to make clinical decisions, and that process forces the people who develop and manufacture the tests to open their processes up to independent experts for verification. Why should the criminal justice system treat tools used to gather evidence in a different manner? (This is all the more important in the Florida case, as the breathalyzer in question has a questionable accuracy record (PDF), and was even subject to a recent software recall.) Conversely, why would a police department feel comfortable using a tool that operates in a completely hidden, unverifiable way?

It makes me happy when rigorous scientific standards find their way into places they logically belong.

Things that make me want to pull my hair out:

• Michael Chertoff, our Director of Homeland Security, stated today that the disaster along the Gulf Coast is “breathtaking in its surprise” and that its occurrence was “not reasonably forseeable”. (You can listen to the second quote yourself.) He claimed outright that the hurricane and the levee breaches were two entirely separate and unrelated catastrophes, and then used that to explain why we weren’t prepared for the aftermath. (In that recording snippet, he even panders a bit by offhandedly stating that we weren’t prepared for an atomic bomb, either.) A few media outlets, CNN included, immediately called him on the claim, but unfortunately it doesn’t seem like anyone did so during the interview. I really can’t believe that there are still excuses coming out of the mouths of cabinet-level officials on this.
• Mike Brown, the head of the Federal Emergency Management Agency, has no prior disaster management experience and was forced to resign from his last job for “supervision failures”.
• In contrast to the amazing response on the part of the American Association of Law Schools, the American Association of Medical Schools and the American Council for Graduate Medical Education seem to be totally stuck in the “it’s too early to figure out how we can help” stage. It just might be time for medical schools and residency programs just to offer up assistance, and then figure out how to make it work later.

Things that make me happy:

• My old hometown in Texas, San Antonio, is warming my heart by doing a hell of a job welcoming refugees — between busloads of people arriving at Kelly CityBase and planeloads of people arriving at Lackland Air Force Base, San Antonio expects to house more than 25,000 people displaced by Katrina.
• Through Friday morning, the Red Cross estimates it had raised almost $200 million dollars to go to Katrina-related disaster relief, and has done an amazing job feeding, clothing, and giving shelter to the people hit hardest.
• Even up here in Boston, people are offering up help; I learned today that my hospital is in the pool of places willing to provide any needed specialty and critical care beds for children who are evacuated from the Gulf coast.

In the midst of what feels like a worsening of the situation along the Gulf coast this morning, I finally saw something that put a bona fide smile on my face: a listing of all the law schools that are extending offers to accommodate the displaced law students of Loyola and Tulane. A bunch of the offers waive tuition entirely, and promise to allow the students to remain until such time as their home school returns to operation. It’s things like this that make me remember that the power of this country derives from its people; while the various levels of government continue to try to get a handle on the larger disaster, there are people who are doing what they can within their own communities (towns, universities, whatever) to help with the smaller disasters.

Update: as is usually the case, Rafe says it better.

Trust me when I say that you should spend the few minutes it’ll take to read this transcript of a White Plains, NY court session. The quick background: appearing before U.S. District Court Judge Colleen McMahon is Michael Maschio, a lawyer for Elektra Entertainment Group, and Patricia Santangelo, a woman sued by the Recording Industry Association of America (RIAA) for sharing copyrighted music. And to ruin the punchline of the transcript a little bit: the lawyer keeps trying to get the judge to endorse the jackassed way the RIAA attempts to force defendants to give in, and the judge will have absolutely none of it. My favorite little snippet:

MR. MASCHIO: It would be helpful to resolve this case if the defendant would put in, under oath, a denial in writing.
THE COURT: Fine. But I’m going to give her some time to find a lawyer.
MR. MASCHIO: That’s okay. We would just like — we think it’s appropriate for her to say, yes, I did this or, no, I did not do this under oath. The other thing is that —
THE COURT: First of all, you didn’t file a verified complaint, and she doesn’t have to file a verified answer. So she doesn’t have to do anything under oath.
MR. MASCHIO: Well, okay.
THE COURT: I’m going to give her 60 days to find a lawyer. And she’s not in default. And she will not be in default if there is no answer, because, right now, there is a general denial on the record for her. Okay?
MR. MASCHIO: Okay. The other thing, your Honor, I don’t know if you want to do this. I brought a consent scheduling order.
THE COURT: No. I don’t want to set a scheduling order. In fact, I don’t want anything to happen in this case for a while.
MR. MASCHIO: Okay.
THE COURT: I’m in no hurry to see this case resolved. So far, Mrs. Santangelo has raised enough issues, including the use of a screen name or an account name — not hers, but some other person’s — that suggests that she might have some really interesting defenses to this. And there are defenses that maybe even ought to be litigated. The whole concept of a young person using the parent’s computer access is bad enough, but if this name is not hers, she doesn’t pay for this account.

(Thanks go out to Mike Godwin — yes, that Mike Godwin — for the pointer!)

Reading the emails I’ve received about my Boy Scouts Jamboree post two days ago, I think I’m going to need to start including a section in my posts entitled “Arguments you might notice I’m not making”. For example, that Boy Scouts bit would contain the following list of things that I’m specifically not arguing:

• The Boy Scouts of America don’t build character or impress values on individual scouts.
• The BSA exists as a recruiting arm of the U.S. military.
• There should be no way that a cent of federal money should end up in the hands of organizations which encompass any element of religion.
• The BSA shouldn’t be allowed to exclude athiests and agnostics from membership.

If you’re looking to drop me a line refuting any of the above arguments, you can feel free to, but don’t expect me to put up a huge fight!

Reading about the fatal tragedy at the Boy Scout Jamboree, two things struck me. First of all, the death of four people in front of their entire troop really is a horrible tragedy, and given the way that it appears the four died, I can’t imagine it’ll be all that easy for some of the kids to recover from that. In an entirely different vein, though, I also realized that the Jamboree is taking place on federal land — the Army’s Fort A.P. Hill — which means that our government still feels it appropriate to give access, funding, and support to an organization that specifically excludes gay, athiest, and agnostic people. I honestly don’t understand how this can still be occurring.

Doing a little reading this evening about the state of our government’s Boy Scout support, I discovered a few interesting things. First, I learned that a judge in the Northern Illinois U.S. District Court issued a ruling earlier this month which bars government support of future Boy Scouts Jamborees. The decision is available (in PDF form) from the ACLU’s website; it contains a thorough description of how the Boy Scouts meet the standard of a religious organization, and as such, how explicit government support thus violates the Constitution’s prohibition of a link between government and religion. Seems logical to me, and would seem to put this whole issue to bed. Oh, if it were only that easy.

The other thing I learned tonight demonstrates why it’s not that easy; it revolves around an argument made by the government in the Illinois court case that has set the stage for at least one future attempt to maintain government support of the Boy Scouts. Essentially, the U.S. claimed that the plaintiffs in the lawsuit — people who, as federal taxpayers, brought suit under their right to exercise oversight over the way their tax money was being spent — lack standing to claim harm because the money wasn’t spent pursuant to the clause of the Constitution dealing with taxation and government spending (Article I, section 8, clause 1). Instead, the Department of Defense claimed that their support of the Boy Scout Jamboree derived from the specific powers vested in Congress over military affairs (Article I, section 8, clauses 12-14), and as such, taxpayers wouldn’t have the same right to question the way the money is spent. The District Court judge found ample evidence that the money was spent at least in part under Congress’ taxation and spending authority, and dismissed the argument. The reason this is interesting to me is that it appears our Senate took note of this, and passed an amendment to the Defense Department spending bill yesterday, an amendment which explicitly allows the Secretary of Defense to support the Boy Scout Jamboree on the basis of it being required “for defending our national security and preparing for combat.” (To see the amendment, you can follow this link to the Congressional Record documents, click the link to page S8686, and then scroll down two or three screens to “SA 1342”, the relevant text.)

Now you see why I find this so fascinating? It’s clear that the Constitution forbids our government from supporting organizations that mandate religious faith (like the Boy Scouts), and it’s also pretty clear that there’s no way the Senate would get the country to amend that ban out of the Constitution. So in order to get around it, the Senate is trying to pass laws that aim to prevent ordinary taxpayers from having sufficient standing to bring suit — “what we do might be unconstitutional, but you don’t have the right to file a court case to demonstrate that, so we can do it anyway.” And as the final straw, they did all of it by declaring that the Boy Scout Jamboree is vital for national security.

Ignoring fundamental prohibitions built into our Constitution is pretty bad… but getting caught doing so, and then responding by passing laws which aim to restrict oversight of the unconstitutional actions, is worse.

Update: Hey, lookie there — via Rafe, I appear to have ignited a MetaFilter shitstorm. Fun fun.

Ever since the New York Police Department announced the beginning of random baggage screening in the subway system, I’ve had a hard time putting my finger on exactly what rankles me so much about the idea. Having anonymously ridden the subways of NYC for twelve years, the whole invasion of privacy aspect definitely gets to me… but each time I think of that, I remember that I basically submit to the possibility of a cavity search every time I walk into an airport. There’s my gut telling me I’d be naive to think that the searches will actually be executed in a random way, but it’s hard for me to hold a suspicion against the entirety of New York’s finest. Then, there’s the fact that the police have acknowledged that they’ll arrest people in whose bags they find things illegal but entirely unrelated to terrorism (i.e., drugs); there’s no “but” to this one, since blind searches resulting in incriminating evidence would assuredly be illegal if it weren’t for the overwhelming fear of terrorism gripping America, a fear that’s been magnified in the weeks following the bombs in London.

Tonight, I think I figured out the specific concern I have: every rationale that’s been given for why the searches are necessary is a reason that would equally apply to a plan for random baggage screens anywhere in New York City — on the streets, in Central Park, anywhere at all. The threat of terrorism applies equally to the subway system as it does to the Great Lawn, Times Square, and the sidewalk in front of the Today Show studio, and if we accept the idea that vague threats of insane actions justify the intrusion into our possessions without any warrants or suspicions, then we also might have to accept that that intrusion might have to occur wherever we might find ourselves, be it on the Westside IRT or strolling around Bethesda Fountain. I’m fairly certain that, as a nation, we wouldn’t accept an intrusion into our privacy that broad and baseless — which makes me wonder whether we should accept one that might be narrower in its geographical focus, but equally broad in its application, and equally baseless.

Today’s much-linked news story about a guy who used Google Maps to beat a traffic ticket in Manhattan court is pretty interesting to me, but apparently not for the reason that it is to most people (that a guy was able to think quickly, whip out a laptop, and demonstrate the flaw in the ticket via an online map). To me, the whole story is interesting because there was a traffic cop who was willing to state, under oath of law, an outright lie (that West 110th Street in Manhattan is one-way), and likewise, there was a judge who seemed powerless to do anything but believe her lie until the quick-witted defendant proved her wrong using Google Maps. I mean, did nobody in that courtroom have even the slightest familiarity with Manhattan above 96th Street? It’s not like the double-sized width of 110th Street is somehow hidden, nor is it anything but obvious that there are cars driving in both directions on the street, separated by a yellow line. It boggles the mind.

From Title 4 § 8(k) of the U.S. Code:

The flag, when it is in such condition that it is no longer a fitting emblem for display, should be destroyed in a dignified way, preferably by burning.

From House Joint Resolution 10, passed by the U.S. House of Representatives this past Wednesday:

The Congress shall have power to prohibit the physical desecration of the flag of the United States.

I’ll just come out and admit it — I don’t understand. (And apparently, neither does John Scalzi, who’s post on cracking the amendment ends with a comment I’d love on a bumper sticker: “Real Americans don’t take away the freedoms of other Americans.”)

A quick morning note on how absurd the Schiavo case has become: Terri Schiavo’s parents filed an amended complaint in Federal court today, demanding a jury trial in part because her husband and the Florida state courts violated her Eighth Amendment rights banning cruel and unusual punishment. Seriously.

Not even dealing with the notion that the Eighth Amendment applies to something other than penalties imposed on a person who has violated the law, I again return to the fact that withdrawing life-supporting measures is only cruel, harmful, or whatever other pejorative term people invent if it violates the wishes of the person involved. Just because her parents feel that it’s cruel doesn’t make it so. And talk about a slippery slope — what would prevent Schiavo’s parents from making this exact same claim in the case that an actual living will was present?

Reading the dissent in today’s Eleventh Circuit Court of Appeals ruling on the Schiavo case, I think I found the words to explain what’s so offensive to me about the actions of Congress and Schiavo’s parents to date. The following quote, from the dissenting judge’s reasoning on why a preliminary injunction forcing the resumption of feeds would be approriate, is what gave me focus (emphasis mine):

In fact, I fail to see any harm in reinstating the feeding tube. On the other hand, a denial of the request for injunction will result in the death of Theresa Schiavo.

The Florida courts went through an excruciatingly detailed process to determine what Terri Schiavo herself would have felt was harmful, and ruled that there is clear and convincing evidence that she would feel it harmful to be artificallly supported in any manner. And as a result, replacing her feeding tube would be the very definition of harmful, for the very reason that it would prolong her life. I guess what I wonder is if the presence of a living will specifically forbidding the continuation of artificial sustenance would have changed the dissenting judge’s opinion on the harm of replacing the tube. Put another way: can the judge truly ignore what has been determined to be Schiavo’s ideas of benefit and harm and then substitute his own in order to decide how to proceed?

Extended more broadly, that’s exactly what all the supporters of the Congressional bill did — used their own views (or, says the skeptical side of me, the views of the various groups that support them) about good and bad, benefit and harm, moral and immoral, and then imposed those views on Terri Schiavo and the country. In the end, that idea that the views of someone other than me matter at all when I’m hooked up to life-sustaining equipment is what’s so frightening.

Two quick morning observations about the continuing Terri Schiavo abomination:

First, it’s at least a little heartening to me to see that this afternoon’s Federal court hearing is before James D. Whittemore, a Clinton appointee and someone who’s expressed an understanding of the difference between state and federal powers. We’ll see how it plays out, but at least I feel that much more secure that by putting the issue into the hands of the Federal judiciary, Congress actually has taken a lot of the politics out of the debacle.

Second, how has it not come up in the popular press that the same President who flew back to Washington to sign the Schiavo bill also put his signature on the Texas Futile Care Law while governor of that state in 1999, a law that allows hospitals to discontinue life-sustaining measures over the objections of parents? (It’s the law that led to Texas Children’s ending life support on a baby last month, after a protracted legal battle that wasn’t able to tug at the heartstrings of our elected Federal representatives.) It’s hard to reconcile the two acts on Bush’s part, other than to observe that both laws had strong support from the religious right.

Update: thanks go out to Rafe for the pointer to this great (but long) post at Obsidian Wings, which says it all much better than I could deign to.

Wow — I just found the text of the Terri Schiavo bills being considered by the House and Senate, and honestly can’t believe what I’m reading. To quote from the Senate Bill, S. 686 (emphasis mine):

Any parent of Theresa Marie Schiavo shall have standing to bring a suit under this Act…. In such a suit, the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings. The District Court shall entertain and determine the suit without any delay or abstention in favor of State court proceedings, and regardless of whether remedies available in the State courts have been exhausted.

So, to paraphrase, the Senate is demanding the following:

1. that Schiavo’s parents can start another lawsuit;
2. that the Federal District Court will then have to start anew in considering the new suit, without reliance on any prior state court hearings;
3. and that the Federal District Court cannot decline or defer to the prior decisions of state courts.

Now, to quote from the House bill, H.R. 1332 (emphasis again mine):

In hearing and determining a claim or cause of action removed under this section, the court shall only consider whether authorizing or directing the withholding or withdrawal of food or fluids or medical treatment necessary to sustain the incapacitated person’s life constitutes a deprivation of any right, privilege, or immunity secured by the Constitution or laws of the United States. The United States district court shall determine de novo any claim or cause of action considered under subsection (c), and no bar or limitation based on abstention, res judicata, collateral estoppel, procedural default, or any other doctrine of issue or claim preclusion shall apply.

To paraphrase the House:

1. the Federal courts must consider whether withholding life support deprives Schiavo of some right;
2. the Federal courts must not consider whether continuing life support deprives her of her right to determine her own fate;
3. the Federal courts again cannot rely on prior state hearings or decisions.

This is so much worse than I originally thought. Is there any doubt that this is a horrible violation of both separation of powers and states’ rights?

For those who are interested in a reasonable attempt to look at the reality of the Terri Schiavo case, Matt Conigliaro has an amazingly detailed information page, including a list of questions and answers that demonstrates how reductionist the media coverage (and Congressional “inquiry”) has become. Conigliaro is an appellate lawyer and has run a website for over two years focused on Florida law, and his coverage of the case over that time period has led to (relatively ridiculous) accusations of bias from both sides of the ostensible debate. Reading his numerous posts, it’s hard to see that bias; instead, he seems to be a good legal analyst, and very empathetic to both positions in what is fundamentally an emotionally wrenching debate however you look at it.

After reading Conigliaro’s chronology and Q&A section, I’m left with the understanding that every single court that has held a hearing has concluded that Schiavo is in a persistent vegetative state and that there is clear and convincing evidence — the strongest burden of proof available in civil cases — that she would have wished removal of life support measures. This determination was based on more than just evidence from reports of conversations with her husband, as well, something that’s not mentioned too much in media reports of the conflict. I’m also left with the realization that every attempt to subvert the ultimate court rulings have come from the realm of politics — initially, Terri’s Law, and now, a farcical consensus bill from the U.S. Congress, something that manages to be both unsurprising and terrifying at the same time.

What I’ve been confused about — and while slightly less so, remain confused about — is what the law being rushed through Congress right now aims to do. It seems from reports that it’s a case-specific law, allowing Federal judicial review of the state court rulings in Schiavo’s case; what I don’t understand is how there’s some idea that this will lead to a different outcome. As I understand it, the Eleventh Circuit Court of Appeals has denied every appeal and dismissed every case brought by those who have tried to overturn the rulings of the Florida courts, and the U.S. Supreme Court has twice declined to intervene, once in January and once yesterday. So we now seem to have have what might be well less than a majority of our Congressmen (since it only takes a majority of present legislators, not of all legislators, to pass a law) furiously posturing, and the President himself returning to Washington, D.C. early, all in the name of likely having no effect on the ultimate outcome whatsoever.

In the end, it seems that most everyone agrees on the right for people to create formal living wills that spell out how we wish to be treated in the case of tragedies like this. In Schiavo’s case, there isn’t a written living will, but every level of court available for recourse has determined her wishes in a manner that is as legally binding as a living will would have been. In spite of this, we now have the highest elected body of legislators in the country acting to force an entirely different set of wishes. What gives them the right? What would prevent Congress — or any elected body — from acting similarly even if a formal living will existed? Therein lies the real horror of the Schiavo case; apparently, it’s one more way that some seem willing to let the lawmakers of this country intrude on the private debates and decisions of its citizens.

I tried to reply to Joe Holcomb’s rant about the Google Toolbar violating the DMCA over on his website, but his comment page won’t accept my comment, so I’ll do it here. This is the comment I tried to post:

Joe, I assume that you mean that Google violates Title V of the DMCA because it creates a copy of a protected design and then republishes it for use in trade; if I’m wrong, then I apologize. But if I’m right, then I feel I need to correct you, because despite you saying that Title V is “the section that protects copyrighted works online,” that’s just not true — Title V protects “certain original designs” (note the lack of the word copyright anywhere in the Title). And to be very specific, Title V only applies to boat hull designs. (The definition is right there in Chapter 13, Section 1301(b)(2): “A ‘useful article’ is a vessel hull, including a plug or mold, which in normal use has an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.”) Perhaps that’s why the short title of Title V is “Vessel Hull Design Protection Act.”

I seriously wish that people would stop trying to redefine reality in order to try to satisfy their position in this argument. Nothing in the behavior of the Toolbar is automatic, the links that the Toolbar creates have characteristics which distinguish them from any and all other links on the page, and the Toolbar never rewrites links that authors have already included in their websites which earn those authors affiliate money. And now, I can add to that list that web pages are not vessel hulls, and Google isn’t profiting on the backs of the poor, mistreated boat hull designers’ work.

UPDATE: It turns out that Joe must have comments set to need moderation before posting, because he’s been putting ‘em up when he posts his replies. And his latest reply is hilarious — he makes up or assumes definitions to fit his idea of what the DMCA should protect. The best example is Joe’s statement that Title V of the DMCA extends its legal protections to “an original design of a useful article,” but then totally omits that Title V very specifically defines what “useful article” means: “a vessel hull, including a plug or mold, which in normal use has an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information” (section 1301(b)(2), to be exact). I think I’ve come to the realization that he’s not doing this with total intention to mislead, but rather, he just doesn’t have any idea how to read the law. I guess that’s why there’s a whole cadre of professionals out there who make a living interpreting and defending the law!

Isn’t it the sickest kind of irony that the man who parked his SUV across a set of railroad tracks in order to commit suicide, then changed his mind, but caused a horrible train derailment and 11 deaths by leaving the truck on the tracks might face the death penalty?

While checking in for his flight from London’s Gatwick Airport to Dallas-Fort Worth, Cory Doctorow found himself asked for a list of the names and addresses of every single person with whom he’d be staying in the U.S., a request which was explained as the result of some unnamed security regulation. He asked for escalating levels of detail about the unusual request, to much confusion, and eventually was told that his Platinum AAdvantage cardholder status absolved him of any requirement to provide the list. (That last part is the oddest to me — could there really be TSA directives that are as specific as making exceptions for people who are members of the elite frequent-flyer programs? If so, can AAirpass members expect to have a certain amount suspicious information ignored given their contribution to the business of air flight?)

It frightens me how much about air travel is now dictated by some functionary’s proclamation that an odd rule or occurrence is the result of heightened security. (My own, way less-significant, example: last month, Shannon and I were unable to check in online for the return leg of a flight for which online check-in for the first leg hadn’t been a problem. When I called to ask why, I was told that the representative didn’t have a definite answer, but that it was very likely to be security-related. It was clear that that statement ended the conversation, and ended any inquiry into whether there could actually be a problem with the online check-in system.) It’s all just so silly; I hope that, at a minimum, John Gilmore’s case ends up forcing a greater deal of transparency upon the security-related apparatus that has grown so prominent over the past four years.

I know I’m stating the obvious, but why on Earth is the media covering Martha Stewart’s call for sentencing reform? Is there something unique about her plea that stands apart from all the other entreaties of pampered aristocrats who have been caught and jailed for breaking the law? More importantly, is there something unique about her plea that stands apart from all the other ordinary, lower- or middle-class, first-time nonviolent offenders who have been incarcerated for their crimes?

Ashley McKathan, a judge in rural Covington County, Alabama, showed up to court yesterday wearing the Ten Commandments. Is it just me, or do Alabama judges seem significantly more prone to violating their own canons of ethics than those from other states? I also love that this article actually quotes Roy Moore, the guy who lost his job as chief justice of Alabama’s highest court for disobeying the law and behaving like a jackass; that’s sort of like asking Latrell Sprewell how he feels about Ron Artest’s NBA suspension, which is to say that it’s great theater but incredibly unimaginative. Of course, the same can be said for McKathan’s new robes…

I’m right there with Chris and Al — every time I hear about the lawyers of Massachusetts refusing to take cases from indigent clients because of low pay, I have a small seizure. Medical caregivers (physicians, nurses, nurse practitioners, etc.) are all required by law to provide emergency treatment to anyone who walks into their office, regardless of ability to pay. Why should the legal profession be any different?

Dahlia Lithwick is en fuego in her piece, “Proof, Negative” which was posted to Slate yesterday. In it, she takes a look at the information about Jose Padilla unveiled by the Justice Department on Tuesday, and wonders whether or not the release of supposed facts gathered via secret, coercive military interrogation does more to hurt the government’s case than it does to help it. And while I generally try to avoid copy-and-pasting huge blocks out of the articles I link to, when it’s Dahlia and her piece is as good as yesterday’s, I cannot avoid it.

The U.S. Constitution didn’t simply hatch out of an egg one morning. Like the Magna Carta, the Bill of Rights was largely conceived to correct for failures of earlier systems. In 1603 Sir Walter Raleigh was tried for treason and not permitted to cross-examine his accuser. This, it turns out, engendered unreliable evidence. The Sixth Amendment’s confrontation clause was the constitutional remedy for this problem. Unremitting and unwanted prosecutorial interrogation could lead to false confessions. This made for unreliable evidence. The Fifth Amendment was, in part, the constitutional remedy for this. Years of delay prior to trials degraded evidence. The Sixth Amendment’s right to a speedy trial was the constitutional remedy for this. Indefinite government detention without charges led to innocent men languishing in prison without recourse. The right to habeas corpus is thus codified in Article I, Section 9 of the Constitution to remedy this. We sometimes forget that the purpose of these and other constitutional protections is not only to let guilty guys roam free (attractive though that prospect may seem), the purpose is also to protect the quality of the evidence used in criminal trials. A conviction based on a tortured confession isn’t justice. It’s theater.

I only wish I could have been the one to break it down that simply.

Am I the only one who feels that, between the Cheney recusal refusal and the Hattiesburg marshal mishap, there might be some evidence that Justice Antonin Scalia feels he’s above the rules and laws of the country that appointed him to the Supreme Court? At least he’s trying to apologize for the more recent incident through the press, rather than issuing 21-page, fully-annotated justifications of his actions.

Well, that’s certainly one way to handle it! Last week, the county commissioners of Oregon’s Benton County voted to start issuing same-sex marriage licenses today, but under extreme pressure from the state’s attorney general, they’ve taken a unique tack on the issue — the county commissioners have stopped issuing any marriage licenses.

That’s brilliant! It’s a way to guarantee that the county isn’t discriminating, and in addition, a way to expose man-and-woman couples to the treatment that same-sex couples have experienced forever. It’s also a strategy that isn’t explicitly banned by state laws of questionable Constitutionality, so even bigger cities — San Francisco, New York, etc. — could act similarly until the courts work out where this country is going with marriage rights.

There are two great columns over at Slate about Hiibel v. Sixth Judicial District Court of Nevada, one of the more interesting cases before the Supreme Court this term. The first is Dahlia Lithwick’s wrap up of the arguments before the Court, and as always, provides a look at the blow-by-blow that took place in oral arguments. The second article is Barbara Babcock’s view of the threat posed by a ruling that upholds Nevada’s law (while lamenting Dudley Hiibel’s role as an unexpected defender of civil rights). Both are worth a read.

Sorry ‘bout that, Boy Scouts — you made your bed, and now you’ve gotta lie in it.

Over the past few days, there’s been a lot in the news about the release of Supreme Court Justice Harry Blackmun’s personal papers, and out of it all, NPR’s in-depth pieces have each risen to the top. I spent an extra precious few minutes in the shower yesterday morning so that I could catch the end of one of Nina Totenberg’s segments, and I find that I’m checking in to the NPR website a few times a day to see what else I’ve missed. As is typical of NPR’s coverage, the pieces plunge below the surface of the story, conveying details that don’t make it into the fifteen-second evening news blips or the six column-inch newspaper snippets; I laughed this morning when I learned that Blackmun and the other Justices pass notes up and down the bench (frequently not related whatsoever to the case being argued before them), and that Blackmun fell asleep on the bench at least once. (I also laughed that it was Blackmun’s own papers that ratted out his somnolence!) The well-produced pieces have made the difference between me appreciating the fact that the papers were released to me wanting to stop into the Library of Congress on our next trip down to Washington.

How did I miss Dahlia Lithwick’s Slate piece last week on the Massachusetts gay marriage ruling? She dissects the most popular argument used by critics of the ruling, that gay marriage tarnishes all marriages, by listing some of the real threats to the institution of marriage in America (like the fact that nearly half of all U.S. marriages end in divorce). Of course, my real question is whether there’s anyone out there who really believes the weakening-of-marriage argument, or whether it’s just something that’s knowingly thrown out there by people who fully realize that they actually just hate the lifestyle of gay people (but also realize that they can’t use that as their argument without exposing themselves as bigots).

It’s been a lot of fun to listen to the various reactions, all around Boston and in the media, to yesterday’s affirmation of gays’ right to marry. As you’d expect, the most amusing group of people has been the nutjob representatives of the religious right, ready and willing to decry the “pro-homosexual agenda of the Court” that aims to “knock out the underpinnings of modern society as we know it.” (I actually heard some hysterical intolerant utter this phrase on the radio today.) There’s plenty of fear and loathing coming out of the far right, predicting the downfall of Massachusetts, America, and the entire Western way of life if a ruling stands which lets gay people enjoy the same rights as their straight brethren. While the fear generally makes me laugh, the people that make me cringe are those who try to convince otherwise reasonable people of their ways with arguments that are based on a fabulously flawed understanding of the American system of government. For example, I’ve heard a handful of opponents of gay marriage say that the Court “ignored the will of the people of Massachusetts with its ruling,” as if any court’s purpose was to interpret the law according to public opinion. (The fact that there are two women and a black man on the Supreme Judicial Court of Massachusetts is a fine testament to the fact that past courts ignored public opinon and gave people who weren’t white men the right to vote, as well as own property, receive public money, and attend school.) Others claim that “law shouldn’t be made in the courtroom,” as if interpreting the law is the same as creating it. (The fact that the Court threw the issue back to the legislature is a good demonstration of the differences between the two branches.) Have as jackassed a perspective on the rights of man as you want, but don’t try to blame views that don’t mesh with your own on an overexuberant judiciary; a major part of the true foundation of this country has always been the existence of a branch of government that’s concerned more with the rights of the people than with their opinions.

Dahlia Lithwick weighed in on the Do Not Call fracas this week, and while there’s been plenty of ink on the relevant legal precendents, her contribution is a Constititional dissection of the ways not to think about the controversy.

Dahlia Lithwick’s at it again, this time surmising that the Ninth Circuit’s decision to halt the California recall election was as much about showing the Supreme Court what Bush v. Gore would look like if its logic were extended to every election in the country as it was about enforcing fairness in the Golden State.

How can Alabama Supreme Court Chief Justice Roy Moore expect anyone to abide by his judicial decisions when he is so clearly willing to ignore others? My absolute favorite statement by Moore: “Our Constitution very plainly says that the system of justice in Alabama is established invoking the favor and guidance of almighty God.” Is it possible that a state Chief Justice really thinks that his state’s constitution takes precedence over the Constitution of the United States? My second favorite statement: “If the rule of law means to do everything a judge tells you to do, we would still have slavery in this country. If the rule of law means to do everything a judge tells you to do, the Declaration of Independence would be a meaningless document. ” Seriously… what would Moore say if a defendant repeated those words back to him?

Cool — a pretty good list of law weblogs. Wonder if I’ll ever have time to read those weblog things again, though…

I thank the editors at The Morning News for passing along a link that finally makes sense of the many layers that sit between a bottle of wine and your lips. It’s amazing to me how convoluted and arcane the laws are that govern importation and sale of alcohol; it’s even more amazing to me that the entire three-tier structure of alcohol control is based in the grant of state power contained in the 21st Amendment to the U.S. Constitution. Of course, the Internet has challenged the logic of the rigid distribution network, and even more, has brought about efforts to fight it in the courts. Given the roots of the scheme in the Constitution and its taxation value to each individual state, though, it’ll probably be a long time before there’s any real change seen by consumers.

Once again, I missed one of Dahlia Lithwick’s dispatches from the Supreme Court, this one about the arguments in Lawrence v. Texas challenging the state’s law banning same-gender sex. It’s possibly her best column ever; it’s damn funny, and perfectly frames much of the idiocy of anti-homosexual statutes. And, as always, it brings to the forefront the interplay of the Justices themselves during the oral arguments, highlighting their attempts to steer the arguments towards their personal points of view, and to save the lawyers from the traps set by the other Justices.

While I don’t have much faith that it will be resolved to the benefit of consumers, I am pretty happy to see that the issue of whether or not the big telcos can be sued under antitrust laws is going to be resolved by the Supreme Court once and for all. Any customer in a big city can tell you about the terrible service given to competitors by the market’s dominant carrier; in New York City, the alternative providers are all still at the mercy of Verizon, whether you’re talking about standard phone service or higher-bandwidth connections. It’d be nice to see the legal system back up the pro-competition laws, and give customers the power to demand adequate service.

What do you think makes an applicant more attractive to a college, getting great grades and working hard in an internship, or having a propensity for filing lawsuits against your school demanding better grades? Does the fact that the lawsuit is over a grade given by the applicant’s mother change the answer at all? How about the fact that the lawyer representing the student is that same aforementioned mother?

Right to free speech? The Direct Marketing Association feels that making phone calls to offer people products and pressure them into donations despite their explicitly-stated preference against such calls is within their right to free speech?!? That’s just unbelievable. I also love that part of the DMA’s argument is that the already-existent state do-not-call registries “provide enough protection” to consumers, an argument which naturally begs the question: how does a national do-not-call registry violate a telemarketer’s right to free speech, yet a state one doesn’t? (Are states actually allowed to abridge the most basic of American rights?)

It really shouldn’t come as so much of a surprise that the DMA is attempting to ground its annoying-as-all-hell business practice in the Bill of Rights; after all, his is an industry that already has managed to receive exemptions from caller ID requirements, has started to use prerecorded sales pitches despite Federal laws prohibiting this, and which actually charges consumers for the privilege of using the web to request inclusion on its own do-not-call and do-not-mail lists. I’d love to see a day when unsolicited calls are banned outright.

Of all people, Scott Turow (a lawyer before he was an author) wrote an op-ed piece that provides the best explanation of the political and legal realities which led to George Ryan’s commutation of the death sentences of all 167 Illinois prisoners scheduled to die. Turow served on Ryan’s commission looking to reform the capital punishment laws of Illinois; as such, I suspect that he’s in a position to comment on the specifics of the state’s death penalty and how it’s applied.

Eric Eldred, Larry Lessig, and the basic principles of copyright lost today as the Supreme Court sided with the government’s Sonny Bono Copyright Term Extension Act in a 7-2 vote. Donna Wentworth is keeping up-to-date with stories and reactions as they’re released.

Somehow, I missed that Dahlia Lithwick’s dispatch from the Supreme Court arguments in Virginia v. Black hit the net yesterday. In the course of a single article, Lithwick dubs the case A Charlie Brown Redneck Christmas, compares Clarence Thomas’ rare speaking role to Darth Vader’s proclamation of paternity to Luke Skywalker, and acknowledges the tendency of interracial couples in New York City to make out in public while bound together by Saran Wrap. (OK, so she may be sensationalizing a bit with that last one…) In any event, it’s classic Dahlia, and similar to what she suspects about the other Justices, Chief Justice Rehnquist’s absence seems to have caused her to loosen up a bit more than usual.