Monday, June 25, 2012

The Tim Corrimal Show – Episode 213

I may be a day late and a dollar short (well, I’m always a dollar short), but the good news is: Episode 213 of The Tim Corrimal Show has now been posted.
On this weeks’ show, Tim and I were joined by my longtime Twitter pal Minna (@asiangrrlMN), a featured blogger at Angry Black Lady Chronicles and fiction contributor at Osborne Ink; and John Scheirer (@RealAmericanLib on Twitter), author of Tales of a Real American Liberal. Tim’s and my usual co-host, Joe Santorsa (@Marnus3 on Twitter) was off this week.
On this week’s show, after identifying our Twitter Friends of the Week – and please do check out mine, @Nicole1515, lawyer extraordinaire and author of the Main Street Law Blog – we turned to our regular political discussion. Among other things, Tim played a NSFW clip from Mildly Relevant News, and a really NSFW clip from The Jimmy Dore Show in which “Mitt Romney” calls in gets a few things off his chest. 
Speaking of Mittens, we spent considerable time discussing the state of the 2012 Presidential election, including the Republican nominee’s rather unfortunate stop at an Iowa diner; and Tim played a lengthy Face The Nation clip featuring Maryland Gov. Martin O’Malley (D) and AFL-CIO Pres. Richard Trumka, in which they destroyed certain media-created myths about Scott Walker’s recall election in Wisconsin and recounted Mitt Romney’s abysmal record on job creation as governor of Massachusetts.
Finally, on my “Legal Corner” segment we discussed last Wednesday’s vote by the House Oversight Committee to hold Attorney General Eric Holder in contempt of Congress for allegedly failing to turn over certain documents as to which the Obama Administration has asserted a claim of executive privilege. That the Committee’s vote was an exercise in political theater is manifest; but our focus was on the legal, more so than the political, ramifications of the vote.
As an initial matter, Congress’ legal authority to hold an individual in contempt derives from 2 U.S.C. § 192, which states:
Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.
2 U.S.C. § 194 then describes the procedure for prosecuting contempt of Congress as follows:
Whenever a witness summoned as mentioned in section 192 of this title fails to appear to testify or fails to produce any books, papers, records, or documents, as required, or whenever any witness so summoned refuses to answer any question pertinent to the subject under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee or subcommittee of either House of Congress, and the fact of such failure or failures is reported to either House while Congress is in session or when Congress is not in session, a statement of fact constituting such failure is reported to and filed with the President of the Senate or the Speaker of the House, it shall be the duty of the said President of the Senate or Speaker of the House, as the case may be, to certify, and he shall so certify, the statement of facts aforesaid under the seal of the Senate or House, as the case may be, to the appropriate United States attorney, whose duty it shall be to bring the matter before the grand jury for its action.
Which means that from here, the contempt issue goes to the full House for a vote, and, assuming the Republican majority sustains the Committee’s finding, Speaker Boehner will then refer the matter to the U.S. Attorney for the District of Columbia, who is directed to present it to a grand jury to seek an indictment. Simple, right.
Nope. As NBC’s Pete Williams explains:
The Justice Department has long taken the position, as a separation of powers matter, that Congress cannot force the Justice Department to undertake a prosecution of an executive branch official. The courts have never resolved the question.
The Justice Department, under both Democratic and Republican administrations, has further claimed that a U.S. attorney must not initiate a prosecution when the president has asserted executive privilege over what Congress seeks.
Moreover, the contempt citation lasts only as long as current Congress remains in session; after new Congress is elected in November, if the conflict hasn’t been resolved (and it won’t be, of course), the next Congress would have to issue new contempt citation, and the process starts over.
The Administration’s claim of executive privilege further complicates matters. In Quinn v. United States, 349 U.S. 155 (1955), the Supreme Court held that when an individual refused to answer questions on Fifth Amendment grounds (i.e., that his answer may incriminate him), there was not adequate proof of a deliberate or willful refusal to answer Congress’ questions, which is an essential element of a contempt charge under 2 U.S.C. § 192. Logically, then, Attorney General Holder could argue that his refusal to produce documents – based as it is on a legally recognized privilege – likewise isn’t deliberate or willful. The problem, though, is this: Under Quinn, Congress is supposed to rule on the validity of the privilege, at least in the first instance. See 349 U.S. 165-170. So if the House, in its infinite wisdom, finds that the Administration’s executive privilege claim was invalid, the Attorney General would have to look to the courts to resolve the issue.
The Supreme Court has provided some guidance as to the scope of executive privilege in cases not involving contempt of Congress. In Cheney v. United States District Court for the District of Columbia, 542 U.S. 367 (2004), for example, the Court pointed out that there is a sliding scale under United States v. Nixon, 418 U.S. 683 (1974), where executive privilege is at its narrowest when the President has to respond to a criminal prosecution, but is broader when the President (or, in the Cheney case, the Vice President) is asked to respond to discovery in a civil case:
The need for information for use in civil cases, while far from negligible, does not share the urgency or significance of the criminal subpoena requests in Nixon. As Nixon recognized, the right to production of relevant evidence in civil proceedings does not have the same “constitutional dimensions.” [418 U.S.] at 711.
But courts have generally avoided defining the precise scope of executive privilege vis-à-vis Congress, which is the issue here. As NBC’s Pete Williams notes, the courts punted on this very issue just a few years back in connection with the U.S. Attorney hiring and firing scandal under George W. Bush. During the Watergate hearings, in Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F. 2d 725 (D.C. Cir. 1974), the Court of Appeals for the District of Columbia Circuit held that Pres. Nixon was not required to produce certain tapes subpoenaed by Congress – but the case never made it to the Supreme Court because the House impeachment proceedings essentially rendered the issue moot. Ultimately, Pres. Nixon’s refusal to produce subpoenaed material became part of the Articles of Impeachment against him, and we all know how that ended.
So, political Kabuki aside, it’s unlikely that the dispute between the House of Representatives and Attorney General Holder will be resolved in court, let alone by way of an actual conviction.
In any event, please give the show a listen. Hope you enjoy it.

Friday, June 22, 2012

Your Friday Clash Song: No Elvis, Beatles Or The Rolling Stones …

“1977,” first released as the b-side to the “White Riot” single on March 18, 1977, later included on the Clash On Broadway compilation in 1991.
I chose this song because earlier today, rock ’n roll deejay extraordinaire and Your Best Friend In The Whole World Lin Brehmer of WXRT – who’s obviously a glutton for punishment – chose to answer  The World’s Most Confounding Musical Question on today’s installment of his “Lin’s Bin” feature. (Note: today’s installment has not yet been posted on WXRT’s website. I’ll update with a link when it’s available.)
No,  The World’s Most Confounding Musical Question isn’t Is Dave right about Led Zeppelin?  The World’s Most Confounding Musical Question is: What was THE year in Rock ’n Roll History?
Impossible to say, right? Unpossible, even. As the kids say.
But Mr. Brehmer is nothing if not a lunatic brave soul, and so he came up with four – count ’em, four – years that qualify: 1964, 1969, 1977 and 1993. Actually, I could just leave it at that, because I think a pretty strong argument could be made for any of those years … and because they all occurred in my lifetime; ergo, they must be important.
But I don’t get paid to say “good enough for me,” so I have to explain why I think of those four, 1977 was THE year.
First of all, take a look at a partial list of albums released in 1977:
The Ramones, Leave Home
The Buzzcocks, Spiral Scratch
The Damned, Damned, Damned, Damned
Cheap Trick, Cheap Trick
Iggy Pop, The Idiot
The Clash, The Clash (UK version)
Dave Edmunds, Get It
The Jam, In the City
Parliament, Live: P-Funk Earth Tour
The Tubes, Now
Little Feat, Time Loves A Hero
Bob Marley, Exodus
Neil Young, American Stars ’n Bars
Elvis Costello, My Aim Is True
Iggy Pop, Lust For Life
Cheap Trick, In Color
Talking Heads, Talking Heads: 77
Pete Townshend and Ronnie Lane, Rough Mix
Rolling Stones, Love You Live
Ian Drury, New Boots and Panties!!
Boomtown Rats, Boomtown Rats
Tom Waits, Foreign Affairs
The Sex Pistols, Never Mind the Bollocks, Here’s the Sex Pistols
Blondie, Plastic Letters
Graham Parker and the Rumour, Stick To Me
The Ramones, Rocket to Russia
The Jam, This Is The Modern World
Brian Eno, Before and After Silence
All kinds of great stuff there, to be sure, but what really stands out is the emergence of punk and what came to be known as “new wave” (a cloying 1980s marketing term, but it stuck). The Clash, Ramones, Elvis Costello, Talking Heads, Iggy Pop, Boomtown Rats, the Jam … even the Sex Pistols (whom I consider to be the Monkees of punk, but that’s the subject of another post) – it’s hard to imagine another year in rock history with as many genuinely new acts exploding on the scene at the same time. And by “new,” I mean revolutionary. I mean acts that tore down the walls and built the whole thing over again from the ground up. New, like that.
Because if you look at the full list of albums released in 1977, you’ll realize that’s exactly what rock ’n roll needed at the time.
So, yeah, “1977”:
In 1977
You’re on the never never
You think it can’t go on forever
But the papers say its better
I don’t care
Cause I’m not all there
No Elvis, Beatles or the Rolling Stones
In 1977 …
Ah, yes. I remember it well. Now: Turn. It. Up.

Sunday, June 17, 2012

To The Old Man

My old man was a guy who did things. That’s him in July 1966, probably on his birthday; I’m the one in the foreground. He was 45. I was four.
By the age of 45, my father had already done a lot more than I’ve done at 50. Probably more than I’ll ever do in my whole life. He was born in 1921, came of age in the Great Depression, fought the Nazis in World War II, and came home to help integrate our schools and fight for open housing. Forty years ago, the Oak Park Public School District adopted its official Policy on Human Dignity, which was drafted by my father and a colleague. A year later, my father drafted a similar policy for the village’s Human Relations Commission. Those policies have evolved to be even more inclusive over the years, but it was my dad and a handful of others in the village who got that ball rolling.
I’m sorry that my dad didn’t live to see Barack Obama elected President. I’m pretty sure he would’ve approved. But here’s the thing: I can say with some degree of confidence that the work my dad did here in our village on the western edge of Chicago had an impact. It set an example for other communities around the country. It changed attitudes. And so in some small way, the work my dad did helped pave the way. 
That’s living a life.
In any event, all that stuff was grand, as my mother would’ve said, but it’s not what made him my dad. I’m proud of the work he did, but a man’s work, even a man’s avocation, isn’t what makes him a parent.
Which is why the strongest memories I have of my dad are memories of completely mundane things. Hanging out with him in his basement workshop on a rainy afternoon, learning how to hold a hammer the right way, or how to use a miter-box. Watching him tune up the engine of a 1972 VW Microbus – the damn thing had a Porsche engine in the back with two carburetors – during the course of which I might have learned a new expression or two. It’s the day-to-day stuff, running errands, puttering around the house, shadowing my old man while he did all the things you had to do to keep a turn-of-the-20th-century house from collapsing to the ground … those are the things that stand out.
Years ago I saw Paul Sorvino interviewed on television, just after his daughter Mira won an Oscar for Mighty Aphrodite, and he said something remarkably insightful for a Hollywood actor. He said that when it comes to being a parent, there’s no such thing as “quality time.” There’s just time. You can’t just show up for a school play or a little league baseball game – or birthdays, or Christmas; whatever – and call that being a parent. You have to be there, all the time. Involved in everything.
My old man did that. He may have changed the world in his own way, but what matters more than any of that was this: He was there.

Friday, June 15, 2012

Your Friday Clash Song: Police And Thieves Redux

Yes, I’ve used this selection in the past, but this is a different version of “Police And Thieves.”  This is the studio version that first appeared on their debut album, The Clash, released in the UK in 1977. It’s also on the U.S. version of The Clash, released in 1979. And here’s the live version I posted the last time, which comes from the film Rude Boy (1980).

(Although the film came out in 198o, this clip shows the pre-new-teeth Joe Strummer. So it’s still pretty early in the band’s career.)
In any event, I had to go back to the well for this Friday’s Clash selection after reading about the New York Police Department’s “stop-and-frisk” policy. From yesterday’s New York Times:
Last year, police officers in New York City stopped and frisked people 685,724 times. Eighty-seven percent of those searches involved blacks or Latinos, many of them young men, according to the New York Civil Liberties Union.
The practice of stop-and-frisk has become increasingly controversial, but what is often absent from the debate are the voices of young people affected by such aggressive policing on a daily basis.
So, the Times made this video of Tyquan Brehon:
By his count, before his 18th birthday, he had been unjustifiably stopped by the police more than 60 times. On several occasions, merely because he asked why he had been stopped, he was handcuffed, placed in a cell and detained for hours before being released without charges. These experiences were scarring; Mr. Brehon did whatever he could to avoid the police, often feeling as if he were a prisoner in his home.
Watch the whole thing. It’s really unsettling.
If you want to look at it in a technical legal way, the Supreme Court considered the legality of “stop-and-frisk” searches many years ago – in Terry v. Ohio, 392 U.S. 1 (1968), to be precise – and concluded that while the police may be able to stop individuals on the street to question them generally, they cannot, for example, pat down the subject to search for weapons without a reasonable suspicion that the person might actually be a threat:
Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. Cf. Beck v. Ohio, 379 U.S. 89, 91 (1964); Brinegar v. United States, 338 U.S. 160, 174 -176 (1949); Stacey v. Emery, 97 U.S. 642, 645 (1878). And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or “hunch,” but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience. Cf. Brinegar v. United States supra.
 392 U.S. at 22-23.
But the antiseptic language of Terry, although relevant to the NYPD’s “stop-and-frisk” policy, belies the real tragedy here. It’s bad enough that the police intimidate anyone who’s innocently walking down the street. I’ve had my own unpleasant encounters with local police, who think they can bully anyone who speaks his mind in public. But going out of their way to target people of color in New York City? That just reinforces the belief that the police really aren’t on the side of law abiding citizens, irrespective of race or ethnicity, but have it in for African Americans and Latinos.
I guess if you’re young and Black (or Latino) and you live in an inner city neighborhood plagued by crime, you have to worry about police and thieves alike.
But, hey. It’s a great song, right.

Thursday, June 14, 2012

More Fun With The International Laws Of Warfare

Clearly, I didn’t offend enough people with yesterday’s post on drone strikes, but you can’t say I didn’t try. And I’m nothing if not persistent, so here I go again.
Without belaboring the point, in yesterday’s post I explained why I object to the “war on terror” (I hate that phrase so much I’ll only write it in quotation marks, grammar and style be damned), in that it isn’t a proper war at all. Consequently, the real reason to object to drone strikes and “kill lists” is that we’re doing things that we might legally be able to do in a proper war, but can’t legally do if the war itself exists outside the recognized laws of warfare.
Turn-about being fair play and all that, it’s also worth noting that our enemy or enemies in the so-called “war on terror” (see?) operate entirely outside the laws of warfare, and that’s not an insignificant thing.
Of course, the first problem is trying to define who the enemy actually is. The simple answer is al Qaeda, of course, but I certainly don’t have a handle on what that organization is, who its members are, whom it’s affiliated with, and so forth. The Council on Foreign Relations has a handy guide to al Qaeda which provides the definition most of us are familiar with:
Al-Qaeda, Arabic for “the Base,” is an international terrorist network founded by Osama bin Laden in the late 1980s. It seeks to rid Muslim countries of what it sees as the profane influence of the West and replace their governments with fundamentalist Islamic regimes. After al-Qaeda’s September 11, 2001, attacks, the United States launched a war in Afghanistan to destroy al-Qaeda’s bases there and overthrow the Taliban, the country’s Muslim fundamentalist rulers who harbored bin Laden and his followers. Like his predecessor George W. Bush, President Barack Obama has committed U.S. strategy to destroying al-Qaeda’s safe haven in the Afghanistan-Pakistan region, and limiting the group's ability to strike U.S. targets.
Simple enough, I suppose, but note that CFR uses the term “network,” suggesting that the organization isn’t really a single organization at all but a group of interconnected individuals and groups who are sympathetic to one another’s goals and work, at least at times, in concert with one another. In fact, the CFR identifies at least ten other organizations al Qaeda is “connected with,” ranging from groups in North Africa (Egypt and Libya, in particular) to Central Asia (Uzbekistan, Kashmir) to the Middle East proper (Iraq, Iran, Yemen) to Southeast Asia (Malaysia, Philippines, Indonesia).
Needless to say, who is or isn’t a part of, or somehow connected with, al Qaeda is less than clear, but however you define the group (or groups), one thing is clear: Collectively, they are a paramilitary organization that utterly disregards the laws of warfare. Which is a fancy way of saying: They’re war criminals.
First and foremost, al Qaeda and its affiliates are war criminals because they frequently, if not exclusively, target civilians: The September 11 attacks, of course, targeted civilians, as did the 2002 attack in Bali, carried out by al Qaeda affiliate Jemaah Islamiah; the Madrid train bombings in 2004; the July 7, 2005 bombings in London; and literally hundreds of attacks in Iraq and Afghanistan alleged to have been carried out by AQI and/or by al Qaeda itself.
That list is woefully incomplete, but the pattern is clear: Civilians are the primary targets of al Qaeda and its affiliates. And its equally clear that targeting civilians is and has been, for at least the last 150 years or so, strictly prohibited by the international laws of warfare. For example, the Instructions for the Government of Armies of the United States in the Field, also called the Lieber Code, adopted by Pres. Abraham Lincoln on April 24, 1863, explicitly provided:
[A]s civilization has advanced during the last centuries, so has likewise steadily advanced, especially in war on land, the distinction between the private individual belonging to a hostile country and the hostile country itself, with its men in arms. The principle has been more and more acknowledged that the unarmed citizen is to be spared in person, property, and honor as much as the exigencies of war will admit.
As the International Committee of Red Cross explains, the significance of the Lieber Code extended well beyond the United States and our Civil War:
Although they were binding only on the forces of the United States, they correspond to a great extend to the laws and customs of war existing at that time. The “Lieber Instructions” strongly influenced the further codification of the laws of war and the adoption of similar regulations by other states. They formed the origin of the project of an international convention on the laws of war presented to the Brussels Conference in 1874 and stimulated the adoption of the Hague Conventions on land warfare of 1899 and 1907.
In the modern era, the Fourth Geneva Convention, adopted August 12, 1949, contains detailed rules and regulations for the protection of civilian populations, and Additional Protocol I, adopted June 8, 1977, explicitly provides:
The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.
Obviously, al Qaeda itself is not a signatory to the Geneva Conventions, but they have been ratified by a total of 194 countries, making the Conventions by far the most coherent, generally accepted body of war-related laws on the planet. It is indisputable, therefore, that al Qaeda’s repeated, intentional targeting of civilians violates all known international laws of warfare.
Moreover, al Qaeda often violates the laws of warfare wherever it operates, even if it’s not attacking civilians. That’s because the laws of warfare have long recognized that military organizations have to be identifiable as such whenever they engage in military operations. Again, this principle goes back at least to the 19th Century when the Institute of International Law adopted the Laws of War on Land, known as the “Oxford Manual,” in 1880. For example, Article 2 of the Oxford Manual specifically states that members of a nation’s armed forces “must have a uniform, or a fixed distinctive emblem recognizable at a distance,” and must “carry arms openly.” Again, the International Committee of the Red Cross explains:
From its origins, the military uniform, which came into general use with the appearance of large national armies in the 17th century, had a primary function of identification. The belonging to a particular armed force distinguished the soldiers from their enemies. The military uniform had and has other complementary functions such as promoting obedience, comradeship and a display of strength. International humanitarian law introduced to this identification element another dimension, namely the distinction between combatants and civilians. Combatants, when engaged in military operations, have to distinguish themselves from the civilian population to protect it from the effects of hostilities and to restrict warfare to military objectives.
Al Qaeda and its operatives very often disregard the long-standing convention – law, actually – that to engage in military operations you must wear an identifiable uniform or operate under a distinctive military emblem, and that’s kind of a big deal. The purpose of the military uniform/emblem requirement is, in large measure, to protect civilians. Hiding among the civilian populations of Afghanistan, Pakistan, and Yemen, dressed not in military uniforms but in the same manner of dress as the local population, al Qaeda and its paramilitary soldiers know full well that they are largely indistinguishable from civilians.
And that further complicates our drone strikes, already, in my view, suspect under the laws of warfare, because al Qaeda and its affiliates know that they are being targeted by us – ostensibly, at any rate, in response to their attacks on innocent civilians here and abroad – so they know they’re putting the civilians around them in harm’s way. 
None of this is meant to, nor can it, excuse the mistakes the United States makes in this so-called “war on terror.” But if we’re going to be critical of the United States and of the Obama Administration for the conduct of this war, let’s not allow our mistakes to excuse theirs.
[Photo credit:]

Wednesday, June 13, 2012

Drones, Civil Liberties And The Laws Of Warfare

You know the old saying, When all you have is a civil liberties hammer, everything looks like a civil-liberties-violation nail. C’mon. Who hasn’t said that?
Yeah, well, anyway, that old saw (see what I did there?) apparently applies to the latest Obama Administration Outrage Du Jour: The President’s ordering targeted killings of individuals alleged to be in league with al Qaeda in the Middle East and Central Asia. I’m neither a fan of drone strikes nor targeted killings, but it’s become increasing frustrating to me that the President’s liberal critics can’t seem to identify the real problem with those policies. For example, one of Pres. Obama’s harshest critics, Glenn Greenwald of, frequently bemoans “the due-process-free assassination of U.S. citizen Anwar Awlaki,” as if the words “due process” were some magical incantation that cures all political ills.  And, like clockwork, once Mr. Greenwald invokes due process! his acolytes on Twitter repeat that canard ad nauseum till it’s ricocheting around the anti-Obama echo chamber like a cartoon bullet.
But, you see, it’s not really a due process issue at all, even when a U.S. citizen like Anwar Awlaki is involved; nor does the validity of the President’s drone program rise or fall on whether the targeted individuals are entitled to due process. Which is why I was pleased to see this editorial in USA Today by Hina Shamsi, the director of the ACLU’s National Security Project. Ms. Shamsi is harshly critical of the President’s drone attacks – but for the right reasons:
When our nation violates the law in the name of our national security, it gives propaganda tools to our enemies and alienates our allies. That is why the government’s targeted killing program, which has resulted in hundreds of civilian deaths, is both unlawful and dangerous.
To be sure, targeted killing is not always illegal, nor is the use of drones. Under international law and our Constitution, the government can use lethal force when, for example, an individual takes up arms against the United States in an actual war, or against a person who poses an imminent threat to life and no means other than killing will prevent the threat. These are not the rules the government is following.
Ms. Shamsi gets two important points right here. First, she correctly identifies why our unbridled use of drone attacks is a bad policy – because the resulting civilian deaths undoubtedly turn local populations against us and actually encourage the violent extremism we’re trying to fight. Second, and more importantly, Ms. Shamsi correctly identifies the actual legal problem with the targeted killing program: It’s not that targeted killings violate an armed combatant’s due process rights; it’s that the current program is inconsistent with the laws of warfare.
As Ms. Shamsi notes, the United States may well have the right to use drone strikes in certain circumstances: “In,” as she says, “an actual war”; or, where “a person … poses an imminent threat to life and no means other than killing will prevent the threat.” And therein lies the problem: Our drone strikes aren’t limited to those imminent-threat situations; and the so-called “war on terror” doesn’t fit within the legal framework of war itself. Or, to use Ms. Shamsi’s phrase, it’s not, legally speaking, an actual war.
Setting aside whether the war in Afghanistan was legally justified (and I’ve argued before that it was, albeit a terrible policy decision), the “war on terror” as it now exists is a wide-ranging military operation that isn’t confined to an identifiable theater of operations where an identifiable enemy exists. Instead, we’re attempting to fight this war across national borders, going wherever we think the enemy might be; going well beyond Afghanistan and, theoretically, into any country on the planet where people who say they’re affiliated with al Qaeda might be found. There is simply no legal framework for this type of war – and that’s the problem with the way we’re waging it.
If the underlying war itself were legitimate, then the laws of warfare would permit the use of targeted drone strikes to knock out the leadership of the opposing military. After all, a surgical drone strike in those circumstances would be considerably better than, say, another Fallujah. Or another Dresden. And in those circumstances, no one would argue that the enemy’s military leaders were entitled to due process (even if one of those leaders happened to be a U.S. citizen who defected). If you’re fighting a legitimate war, you can kill the enemy’s military leaders, and the more targeted those killings the better.
So the problem isn’t that we’re denying anybody due process; the problem is that we’re engaging in these drone strikes in the context of a war that itself defies the laws of warfare.
But if we all agree that drone strikes are bad, why does it matter whether the President’s critics identify the correct legal reason why they’re bad? Because, as a general principle, accuracy always matters; and because there may be times, as the ACLU’s Hina Shamsi points out, where a president can legitimately order drone strikes instead of charging an enemy combatant with a crime, arresting that person and putting him or her on trial with full due process rights. More to the point, by making a false legal argument – that drone strikes are illegal because they deprive the targets of due process – the President’s critics are encouraging people to reach the opposite, and equally incorrect, conclusion: That if the targets of the strikes aren’t entitled to due process in these circumstances, the drone strikes are, a priori, legal and justifiable. 

Tuesday, June 12, 2012

What’s In A Name?

Well, if you’re freshman Congressman and Tea Party favorite Joe Walsh (R-Ill), it may come back to haunt you.
Because if you’re a Republican named Joe Walsh and you’re running for reelection against a wounded Iraq War veteran named Tammy Duckworth, you just might find the real Joe Walsh – yes, that Joe Walsh – is backing your opponent.
Via John V. Moore of Windy City Watch, it turns out the 1970s icon/guitarist/occasional Eagle (although I prefer to think of him as a founding member of the James Gang) is playing a private concert on July 1st to raise money for Tammy Duckworth:
I’m the real Joe Walsh and I’m proud to back a real American success story - Tammy Duckworth. Tammy’s story, her service to our nation and her continued commitment to working families (like the one I come from!) have convinced me that she’s the right choice for Congress. Join me on July 1st when I take the stage for her campaign.
The Chicago Tribune has more, here.
Maybe I’m just a child of the ’70s (more accurately, a child of the ’60s and ’70s), but I’m please to see Joe Walsh endorse the Democrat in this race. At a time when some musicians of that era have clearly gone off the rails – cough Ted Nugent cough, cough – it’s nice to see the real Joe Walsh remembers his roots. Some conservatives may like rock ’n roll music, but rock ’n roll is anything but conservative. It’s too bad so many middle-aged white dudes who make a good living playing the music of revolution don’t get that.
Anyway, good on you, Joe Walsh.

Monday, June 11, 2012

From The Department Of It’s A Small World …

Reuters reports this morning that Robin Roberts, host of ABC’s Good Morning America, has been diagnosed with a blood cancer that’s all too familiar to me:
NEW YORK (Reuters) – Robin Roberts, an anchor on ABC’s “Good Morning America” program who beat breast cancer five years ago, said on Monday she has myelodysplastic syndrome, a blood disorder triggered by her cancer treatment.
Roberts, 51, … expects to undergo a bone marrow transplant this fall with her sister as a donor … .
If you’ve ever read my running blog, Running … From Chicago, you may be aware that my mother died in November 2010 of complications from a myelodisplastic syndrome, or MDS, which is sometimes referred to as pre-leukemia. In fact, that’s the reason my wife Jennifer and I decided to train for and run the Illinois Marathon in Champaign-Urbana this past April 28 (coincidentally, my 50th birthday) with the Leukemia & Lymphoma Society’s Team In Training program: MDS is one of the blood cancers LLS supports through fundraising, research and advocacy. (In case you’re wondering – yes, I finished the marathon … slowly, perhaps, but I finished.)
Although MDS is a serious condition, it is generally treatable; but it often affects senior citizens, and that raises a particular set of concerns. See, for example, this video interview with Dr. Stephen D. Nimer of Memorial Sloan-Kettering Cancer Center entitled “Advances in Blood Cancers: Update on Treatment for MDS,” from LLS’s Cancer Education page. This passage from the transcript (.pdf file) really hits home:
One of the messages that we would like to get out is that if the therapy is tolerable, that it be given to the patients who could benefit from it. It is discouraging to hear if a patient is told, “well, you’re 75; well, you’re 80, why don’t we just observe things” when there are actually drugs available that can help these people and improve the quality of their life and the length of their life. Sometimes we even think patients may be depressed and may choose to avoid getting treated for their underlying disease, for the MDS. Doctors need to be aware of that and family members if they notice the patient is depressed, that that’s not a reason to not be treated either for this disease.
I like to point out that if you’re 75 years old, the life tables predict that you’re going to live to be about 86. So one should not avoid being treated for MDS at age 75 because you think that that’s kind of enough, you’ve lived a long enough life already. A healthy 75 year-old would be expected to live to about age 86, or another 11 years. For some of the patients with MDS, if you look at the impact of the disease, these people are not going to live that long unless they get treated. So we tend to recommend treatment for people who are in good physiologic shape.
That hits home because my mother, who was 86 at the time and had other health issues, elected to forego treatment when she was diagnosed with MDS late in the summer of 2010. I choose not to second-guess that decision, but it’s unsettling to think that anyone might make the wrong decision about treatment for an otherwise treatable condition like MDS, based in part on preconceived notions about age and his or her ability to withstand it.
In Robin Roberts’ case, she indicates that her prognosis is good – although it must be serious if she’s having a bone marrow transplant. Naturally, I hope she recovers fully – and I hope that she is able to bring some attention both to the disease itself and to the generally treatable nature of the disease. I’ll never know if my mother made the right decision in 2010. I can only hope others who are diagnosed with MDS will have available to them all the information necessary to make an informed decision.

Sunday, June 10, 2012

The Tim Corrimal Show – Episode 212

As I mentioned a couple of weeks ago, when I made the decision to return to political blogging here I also decided to return to The Tim Corrimal Show, which I was fortunate enough to be a part of from November 2010 through November 2011. Luckily for me, Tim agreed, and so today Tim, Joe (@Marnus3 on Twitter) and I recorded Episode 212, which has now be posted on the show’s home page. And once again I have to thank the inimitable Lizz Winstead (my “Twitter Friend of the Week” who can be found at @lizzwinstead on the Twitter Machine), whose recent book Lizz Free Or Die provided the kick in the rear end I needed to get back into politics and writing.
In any event, going forward, Tim, Joe and I will generally have at least one additional guest the show, but today it was just the three of us. Among other topics, we discussed the contrast between the pro-austerity GOP nominee Mitt Romney (and Wisconsin’s GOP Gov. Scott Walker, who survived a recall election this past week), and Pres. Obama and former Pres. Clinton, who understand that austerity is precisely the wrong response to our current economic problems. Note, too, that Pres. Obama and Pres. Clinton are, quite remarkably, the two presidents in recent history who’ve had, as Pres. Obama said, “the lowest increases in government spending” during their respective tenures.
Also on today’s show, we called out Sarah Palin, who said earlier this week that Gov. Walker has proven that austerity “works” – despite the fact that Wisconsin, under Gov. Walker, lags behind the country as a whole in job creation, and even lags behind the state of Illinois, which faces an enormous budget deficit and raised personal and corporate income taxes last year.
Facts, you know, are pesky things.
Finally, on my “Legal Corner” segment we discussed the growing trend in marriage equality cases in which the Obama Administration and various state officials – including officials here in Illinois – are refusing to defend laws that discriminate against same-sex couples … and the disturbing contrast between those officials and Gov. Walker, who recently lent his support to a lawsuit challenging Wisconsin’s domestic partnership registry law. (Yeah, Gov. Walker was on the receiving end of a lot of criticism on today’s show.) Needless to say, while I have a hefty dose of respect for those officials who make the difficult decision to refuse to defend duly enacted legislation that runs afoul of due process and equal protection, I think Gov. Walker’s stand against a law as innocuous and fundamentally decent as Wisconsin’s domestic partnership registry is, frankly, cowardly.
In any event, I hope you enjoy the show. We certainly had a great time recording it.
And thanks again, Tim, for having me back!

Saturday, June 9, 2012

Chicago’s Murder Rate And The Question Nobody’s Asking

If you live in the Chicago metropolitan area, you can’t not know this. At a time when the Republican presidential nominee says the country does not need more police officers, the murder rate in our fair city is out of control. As Chuck Goudie of our local ABC affiliate reported this past Wednesday:
Murders are up so far this year in 24 Chicago neighborhoods. The increases have resulted in 216 people killed compared to 158 on this day last year.
That’s a 37% increase over last year for the period from January 1 to June 6, and puts the city on pace to exceed 400 murders this year. And to no one’s surprise, Goudie’s report reveals that 80% of Chicago’s homicides were “gun related.”
Actually, that the murder rate is up 37% in June represents a slight improvement from earlier in the year. Just about a month ago, NPR’s David Schaper reported that murders in Chicago were up – get this – 54% over 2011. Likewise, according to Schaper’s report, “the number of non-fatal shootings [in Chicago was] up 20 percent from a year ago.”
Both the NPR report from May and Chuck Goudie’s report earlier this week cite predictable factors for the increase in murders here: Chicago’s unusually difficult gang problem; the fact that our weather turned warm much earlier than normal this year (March set a record for warm temperatures and gang violence); and then, to quote Chicago Police Supt. Gary McCarthy, there’s “the proliferation of firearms.”
It’s also become fashionable to blame Supt. McCarthy himself, at least to some extent, as Schaper’s report hints: “[S]everal months after McCarthy disbanded a citywide gang strike force, the homicide rate has soared.” That’s because Supt. McCarthy has taken a decidedly less militaristic approach to police work than his predecessor, former FBI agent Jody Weis, who resigned in March 2011 following the election of Mayor Rahm Emanuel. I think in the long run Supt. McCarthy will be vindicated, that honest-to-goodness police work – as in walking the beat, interacting with people, building trust, and just being present – is the best way to combat crime, as opposed to armored vehicles, military fatigues, riot gear and increasingly invasive electronic surveillance.
In any event, whether Supt. McCarthy’s approach proves to be right or wrong in the long run, I find it odd that with all the hand-wringing over Chicago’s escalating homicides, no one wants to ask this question: Is it possible that there’s a causal link between the spike in killings, the vast majority of which are “gun-related,” and the Supreme Court’s recent decision in McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), which struck down the city’s handgun ban? Supt. McCarthy talks about the “proliferation of firearms,” suggesting that easy access to guns, in part, fuels the increase in murders; but no one wants to talk about why guns are easier to access these days.
Don’t get me wrong. I’m not arguing that the increase in Chicago’s gun homicides necessarily is related to, let alone caused by, the McDonald decision. That would be a classic post-hoc logical fallacy. I am, however, saying that the increase in gun deaths in the years following McDonald should, at the very least, lead to a serious discussion on the issue – a discussion that no one, so far, is willing to have.
Gun control advocates always worried that easier legal access to weapons would lead to an increase in violent crime, while gun rights advocates always assured us that easier legal access to weapons would have the opposite effect. In Chicago, at any rate, the statistics belie the pro-gun argument.
[Photo credit: Abel Uribe, Chicago Tribune / June 8, 2012]

Friday, June 8, 2012

Your Friday Clash Song: Baby Drove Up In A Brand New Cadillac …

The Clash’s cover of Vince Taylor’s “Brand New Cadillac,” from London Calling (1979). According to Topper Headon, it was the first song the band recorded for what is probably their best album.
(Here, by the way, is an outstanding version by Vince Taylor himself.)
In any event, I chose this song to honor Republican presidential nominee Willard “Mitt” Romney, known to have a Cadillac or two (guys who own multiple Cadillacs often have nicknames like “Mitt”), on the occasion of his La Jolla, California home being featured on House Fancy – er, I mean, in The New York Times Home Section.
Lest you think it’s unfair to pick on Mittens for his nickname opulent lifestyle, Jon Stewart explains:

Happy Friday, everybody.

Oh, yeah. I almost forgot: Turn. It. Up.