Tuesday, November 15, 2005

Posse Comitatus Sticks in Bush's Craw

November 15, 2005

In his speech in Jackson Square following Hurricane Katrina, Bush called for a greater military role in disaster relief and a “reconsideration” of a 130-year-old civil rights law: the Posse Comitatus Act of 1878. The Latin phrase means “power of the county,” deriving from roots which roughly translate to “capable of being joined with a retinue or force.” Enacted in the wake of the Civil War Reconstruction, the PCA expressly prohibits local government from giving civil police duties to the military without authorization from Congress. The move is gaining increasing support at all levels of the armed forces, which comes as no surprise given military disdain for civilian inefficiency.

Of course, after the abuses of the Reconstruction, many people were a bit gun shy about letting the military police their streets, but the underlying reasoning of the Act is simple federalism. Local governments should be responsible for their own day-to-day operations, including running their police forces. There's no denying that a large-scale natural disaster like the hurricane that took out New Orleans hardly constitutes “day-to-day operations,” but there are several exceptions to the law specifically to deal with events local police forces just aren't organized or equipped to handle.

The most obvious way to get around the statute is expressly provided in the act itself: get the authorization of Congress. They have a tendency to move slowly, but anything catastrophic enough to justify the use of the military as a police force is almost certainly going to be important enough to justify an emergency meeting of Congress. This is just exactly what happened in the wake of Katrina, except Congress passed funding resolutions instead of military authorizations.

A much more important exception is the National Guard. The Guard is not considered part of the military unless explicitly called upon by the federal government, so they are exempt from the PCA. They may be used as a police force under the authority of a state's governor when local law enforcement is overwhelmed. In fact, the National Guard was mobilized to provide support days before Katrina even made landfall. Governor Blanco's August 26 declaration of emergency called the Guard into action three full days before Katrina hit land. By August 28, they had supplied the Superdome with food and water and established over 500 troops as security.

Further, the 1984 Stafford Act specifically authorizes the use of military forces under FEMA authority. If a competent bureaucrat (okay, maybe that's an oxymoron) instead of a Bush lapdog (but that's redundant) had been in charge of the Agency at the time, he might have invoked this power instead of writing memos to his staffers asking how his tie looked on TV.

One member of New Orleans' City Council complained that the police and National Guard's time was being eaten up by preventing theft and violent crime when they should have been out rescuing people, but this reasoning is exactly backwards. The PCA has been treated as an exclusion of the military from the most basic powers of the police: search, seizure, and arrest. It has long been held that the military may lend facilities and equipment to law enforcement, as well as providing assistance by way of advice and reconnaissance. Consequently, it's perfectly legal and, I would argue, more logical to use the armed forces for search-and-rescue operations.

The benefit of using the military in disaster relief is to allow local police to be police while the people who have experience jumping out of helicopters to retrieve prisoners of war put their skills to new use pulling helpless flood victims off of rooftops. Remember, the purpose of law enforcement is to prevent crimes, not punish those who commit them. The last thing we want to see is local police with little experience in disaster control trying to mount rescue operations while soldiers with years of “shoot to kill” training under their belts endeavor to control theft and violent crime.

To encourage a review of the PCA in these circumstances is unnecessary and suspicious. Certainly, the military has a role to play in natural disaster situations—but it's the role of rescuer, not of the police. Let those who know the streets patrol them, and let the ones who can drop a bomb on a target from 30,000 feet drop food on a family from 300 yards. It just makes more sense to stick with what you do best.

Tuesday, November 08, 2005

'Scalito' Even Worse Than His Namesake

November 8, 2005

Apparently I’m not the only one who thought Miers was set up to fail. (Bush Regime Nominates Stealth Candidate, October 11, 2005; Losing Miers' Religion, October 18, 2005) Now that she actually has, half the press seems to agree that everyone knew she wasn’t the “real” candidate all along. Makes me wonder why they didn’t say so at the time. Why did the Bushies do it? Not only can they now claim to have at least tried to replace O’Connor with another woman, they have an excellent position from which to argue the immateriality of ideology. “Look, our own party went nuts when we tried to nominate a moderate. Hell, the Democratic minority leader endorsed her! Now when we nominate someone who is both competent and will please our base, you cry foul on ideology? This is an impossible position! You know, we think you dirty Democrats just don’t want a new Supreme Court Justice at all. Poor, poor Justice O’Connor, who wants nothing more than to retire from the court and spend some quality time with her ailing husband, is being forced to decide case after case because you rats are holding up the nomination process!”

It’s a good line of patter. Don’t buy it for a minute.

Miers also made the newest pick look impeccably qualified. And to be fair, that wasn’t necessary; Alito is definitely no slouch. Princeton undergrad, Yale law school, and straight into a clerkship with a federal judge on the Third Circuit. He was appointed to that circuit himself by Bush Sr. fifteen years ago, and he has amassed such a conservative record that he’s actually nicknamed “Scalito.” (I bet he hates that.) The reality, though, is that he breaks with conservative tradition even less often than Scalia, who actually has quite the respectable libertarian streak.

The real public fireball here is Alito’s dissent in Planned Parenthood v. Casey, a case in which the court was asked to rule on the constitutionality of a Pennsylvania statute placing certain restrictions on abortion. The court, 2-1, ruled that none of the provisions imposed an “undue burden” except for one requiring a woman to notify her spouse. The dissenter was Alito, and on reading his opinion, he actually sounds sensible.

First, the woman is only required to notify her husband, not seek his permission. This is not a regulation making it impossible to get an abortion if ones spouse does not agree to it. Second, the major objections to this law centered around the implications for victims of domestic violence. Battered women who seek abortions may well suffer violent repercussions if their husbands are notified that they are doing so, but Alito points out that the law specifically exempts those who fear they may suffer physical harm as a result of giving notice. The law also exempted women who were pregnant as a result of spousal sexual assault, those who could not find their husbands to notify them, and, significantly, those who believe that their husbands are not the father of the fetus they intend to abort.

This seems to make pretty good sense until you look at the ideology underlying these arguments. The implication here is that abortion, if not murder, is at least morally suspect. Alito’s belief that an abortion is something more than a health decision on the part of the woman in question is a right-to-lifer position, a curtailment of individual liberty.

Indeed, his concern for individual rights in general seems to be pretty much nonexistent. In his dissent from one 2004 case, Alito said that there was nothing wrong with strip-searching a ten-year-old girl on the basis of a warrant issued only for her father, who was the subject of a long-term narcotics investigation, and those of his “business” associates who were present at the time of the raid. One of the two judges voting against him was current head of Homeland Security Michael Chertoff, a man not exactly known for his libertarian leanings. No Supreme Court Justice’s rulings are this draconian.

Alito becomes much more concerned for civil liberties, however, when it comes to expression of religion. He distinguished a case in which two Muslim police officers claimed a religious underpinning for keeping their beards from a Supreme Court case barring Native Americans from using peyote for even religious reasons. Many expected the peyote case to be controlling precedent, but Alito managed to wriggle around it by pointing out that the police department allowed exceptions to the beard rule for medical reasons and so should allow a religious exemption as well.

Alito’s record on the separation of church and state, on the other hand, is less than stellar, to put it charitably. In the 1999 case ACLU-NJ v. Schundler, a district court declared a publicly-funded Christmas display featuring a nativity scene, a menorah, and a Christmas tree unconstitutional and ordered the display suitably removed. The city appealed and, while the appeal was pending, added Santa, Frosty the Snowman, Kwanzaa decorations, and a sign saying that the purpose of the scene was to celebrate cultural diversity. The appellate court didn’t buy it. The three judge panel affirmed the lower court’s decision that the first display unconstitutional and remanded the issue of the second display back to the district with a statement of strong skepticism. The district followed the appellate court’s lead and held the second display unconstitutional also.

When the city appealed the matter of the second display, however, the panel included Alito. In a stunning display of insouciance, Alito took the exceedingly rare measure of contradicting a ruling by a panel on the same circuit; the court upheld the constitutionality of the new display 2-1. In the opinion of the court, Alito argued that the court’s skepticism in the previous case was mere dicta, advice which does not constitute legal precedent. The dissenter Judge Nygaard, who sat on both the first panel and Alito’s panel, wrote a pissed off opinion accusing Alito of improperly weighing the previous decision.

Alito also upheld a preliminary injunction allowing the Child Evangelism Fellowship, a group describing their mission as “evangeliz[ing] boys and girls with the gospel” and “discipl[ing] them in the word of god and in a local church,” to distribute literature to students in a public elementary school during school hours. Alito argued that since such groups as 4-H and the PTA were allowed to distribute material, preventing this unabashed proselytizing somehow constituted viewpoint discrimination. This is a direct and blatant violation of the First Amendment.

The problem with using these cases to predict what Alito will do in the future is that lower court judges are restricted by precedent from higher courts. Sitting on the 3rd Circuit Court of Appeals, Alito was bound by the decisions of the Supreme Court—and nothing else. It is considered the mark of a bad judge to be overruled by higher courts, but even so, Alito was overruled following an opinion in which he upheld the sentence of an inmate who was given incompetent counsel. If he is placed on the Supreme Court, nothing will stop him from radically enforcing his own far-right views.

When the Neo-Conservatives try to portray Alito as a mainstream conservative, don’t listen. He’s even more radical than Scalia, and when there is no higher authority waiting in the wings to put him in his place, he won’t have to delicately dance around prior decisions. He can do some of his own overruling for a change.

Tuesday, November 01, 2005

The Schizophrenia of Modern American Politics

November 1, 2005

Those of you who’ve been reading my rants regularly for the past few weeks probably think of me as a left-wing psychopath bent on domination of the government by baby-killing, tree-hugging liberals. I got news for you; I’m as conservative as they come, and the fact that I rail against the current political status quo proves it. I unfortunately happen to be part of a dying breed: the political conservative with socially liberal views. I think each is a logical correlate of the other, and this is why I hate the two-party system. The reigning political parties have become horrifically schizophrenic in their ideology, presumably as a result of their attempts to pander to everyone without alienating anyone.

The problem with lumping “conservatives” all into the same party is that the views of political conservatives and social conservatives are diametrically opposed. Political conservatives think government needs to stay the hell out of people’s lives, that its sole purpose is to perform the bare-bones, absolutely necessary function of helping to keep us all from hurting each other to get what we want. Political conservatives recognize government as a necessary evil that is needed to maintain a military for self-defense and enforce laws against violence. They believe that to be free is to be unregulated.

Social conservatives, on the other hand, want everyone to believe the way that they do, share their moral code and accept it as objectively correct. They want to see Sunday treated differently from other days of the week because it is their day of worship, want to see god explicitly referred to in legislation, and they think that if most people have certain superstitions then it’s okay to enshrine those superstitions in laws which apply to everyone. Their logic goes that democracy is majority rule and their traditions are in the majority, so they should rule.

The rift between social liberals and political liberals creates a similarly schizoid party of just “liberals.” A political liberal wants Mommy Government to take care of people, expects support from his fellows when he is unable or unwilling to provide it to himself. The political liberal looks to government to help define the societal place of each and every individual, imposing on the state the duty to act as ombudsman of equality. The social liberal, on the other hand, thinks individuals should be free to do as they like and determine their own futures without the interference of Uncle Sam. Ask any party-line Democrat and he will tell you he believes people should be free to do as they like—but he will also tell you that it is the government’s job to mitigate the consequences of bad decisions. This is just plain crazy.

Political liberalism and social conservatism are absolute anathema to the entire idea of America. In fact, when combined they create totalitarianism, a system in which the government provides for the psychological and physical well-being of its citizens by supplying them with the beliefs and material goods it decides they need in order to be happy. The core of the American political ideology is a rough-and-tumble expectation that each individual is self-determining and will do what is necessary to achieve his own goals and defend his own beliefs, not have them handed to him on a silver platter stamped with the Presidential seal.

Sure, the founding fathers were Christian (well, technically deists) but they instituted a system of government that created the much-vaunted marketplace of ideas. The entire purpose of the freedom of speech granted by the First Amendment is to promote the spread of those ideas that are most useful to the people at large, most desired in the free and open exchange of thought, EVEN IF THEY ARE NOT THE IDEAS OF THE FOUNDERS. This system of exchange is what our forefathers sought to protect, not the ideas that dominated the marketplace at the time the Constitution was written. I think this is an incredibly important and all too often overlooked aspect of the founders’ approach to government: they recognized their own fallibility. This is critical to recognizing the schism between political conservatism and social conservatism. The social conservative says, “Good enough for the founders of my nation is good enough for me. I will live the way they lived.” The political conservative says, “Good enough for the founders of my nation is good enough for me. I will govern the way they governed.”

The ideological underpinnings of American governance are not dogmatic in definition but in process. The Constitution, including the Bill of Rights, is barely 5,000 words long; it defines not the laws of America but the framework under which they shall be made. Our founders constructed a document dedicated to preserving flexibility and encouraging change in society and law while preserving the process whereby the government goes about its duties.

The political conservative holds fast to the value of self-determination and eschews government interference at every turn; he believes that old government was good government not least because it was small. The social conservative would legislate his own choices and call it “tradition,” expecting the legal system to reinforce his own presuppositions. The political liberal would use Uncle Sam as the Great Equalizer, preventing those who make good choices from getting too far ahead and keeping those who make bad choices from falling too far behind. The social liberal, on the other hand, believes all should be free to do as they please and act on their beliefs as long as they harm no one.

This is completely insane, and it makes me wonder how anyone can take either party seriously. I’d really like to know what those of you who consider yourselves conservative or liberal in the modern American sense of the terms have to say about this. Do you agree with my characterization of the political / social split? Do you think this looks schizoid? Please e-mail me with thoughts and opinions, because these contradictions between the parties’ political and social philosophies have been bugging me for a long time.