Infamous federal legislation declared unconstitutional

Here's some good news: U.S. District Judge Katherine Forrest, in a 68-page opinion, ruled last week that the infamous Section 1021 of the National Defense Authorization Act, which President Obama signed into law on Dec. 31, 2011, is unconstitutional. The fact that two branches of the US Government saw fit to perpetrate such legislation meant that such a ruling was never a sure thing. Here's journalist Chris Hedges, who was one of the plaintiffs:

It was a stunning and monumental victory. With her ruling she returned us to a country where—as it was before Obama signed this act into law Dec. 31—the government cannot strip a U.S. citizen of due process or use the military to arrest him or her and then hold him or her in military prison indefinitely. She categorically rejected the government's claims that the plaintiffs did not have the standing to bring the case to trial because none of us had been indefinitely detained, that lack of imminent enforcement against us meant there was no need for an injunction and that the NDAA simply codified what had previously been set down in the 2001 Authorization to Use Military Force Act. The ruling was a huge victory for the protection of free speech. Judge Forrest struck down language in the law that she said gave the government the ability to incarcerate people based on what they said or wrote. Maybe the ruling won't last. Maybe it will be overturned. But we and other Americans are freer today than we were a week ago. And there is something in this.

The government lawyers, despite being asked five times by the judge to guarantee that we plaintiffs would not be charged under the law for our activities, refused to give any assurances. They did not provide assurances because under the law there were none. We could, even they tacitly admitted, be subject to these coercive measures. We too could be swept away into a black hole. And this, I think, decided the case.

"At the hearing on this motion, the government was unwilling or unable to state that these plaintiffs would not be subject to indefinite detention under [Section] 1021," Judge Forrest noted. "Plaintiffs are therefore at risk of detention, of losing their liberty, potentially for many years."

The government has 60 days to appeal. It can also, as Mayer and Afran have urged, accept the injunction that nullifies the law. If the government appeals, the case will go to a federal appellate court. The ruling, even if an appellate court upholds it, could be vanquished in the Supreme Court, especially given the composition of that court.

We still live in a police state, but this ruling offers hope. In theory at least, the bill of rights is still in effect. And the theoretical, especially in this case, matters. Without it, we'd be hopeless.

This seems an appropriate moment to quote Augustine of Hippo: “Hope has two beautiful daughters: their names are anger and courage. Anger that things are the way they are. Courage to make them the way they ought to be.”

Living in the future means thinking like an sf writer

I recently read an absolutely fascinating paper at the Brookings Institution site, Endowed by Their Creator?: The Future of Constitutional Personhood, by James Boyle, a law professor at Duke University, that takes up an issue that the author suggests might be looming-- viz., the legal and ethical treatment of human/nonhuman animal hybrids and sentient AIs. He begins with a quote from an article in the Emory Law Journal by Scott Bennett, "Chimera and the Continuum of Humanity: Erasing the Line of Constitutional Personhood":

Presently, Irving Weissman, the director of Stanford University's Institute of Cancer/Stem Cell Biology and Medicine, is contemplating pushing the envelope of chimera research even further by producing human-mouse chimera whose brains would be composed of one hundred percent human cells. Weissman notes that the mice would be carefully watched: if they developed a mouse brain architecture, they would be used for research, but if they developed a human brain architecture or any hint of humanness, they would be killed.

As Boyle writes,

In the coming century, it is overwhelmingly likely that constitutional law will have to classify artificially created entities that have some but not all of the attributes we associate with human beings. They may look like human beings, but have a genome that is very different. Conversely, they may look very different, while genomic analysis reveals almost perfect genetic similarity. They may be physically dissimilar to all biological life forms--computer-based intelligences, for example--yet able to engage in sustained unstructured communication in a way that mimics human interaction so precisely as to make differentiation impossible without physical examination. They may strongly resemble other species, and yet be genetically modified in ways that boost the characteristics we regard as distinctively human--such as the ability to use human language and to solve problems that, today, only humans can solve. They may have the ability to feel pain, to make something that we could call plans, to solve problems that we could not, and even to reproduce. (Some would argue that non-human animals already possess all of those capabilities, and look how we treat them.) They may use language to make legal claims on us, as Hal does, or be mute and yet have others who intervene claiming to represent them. Their creators may claim them as property, perhaps even patented property, while critics level charges of slavery. In some cases, they may pose threats as well as jurisprudential challenges; the theme of the creation which turns on its creators runs from Frankenstein to Skynet, the rogue computer network from The Terminator. Yet repression, too may breed a violent reaction: the story of the enslaved un-person who, denied recourse by the state, redeems his personhood in blood may not have ended with Toussaint L'Ouverture. How will, and how should, constitutional law meet these challenges?

Boyle lists some of the best known genetic experimentation resulting in hybrid creatures, some of which have been used for drug testing, some as a source for harvesting stem cells, some for creating organs that can be transplanted into humans (i.e., as living organ banks). As quoted above, he says that his point is a "simple" one: "In the coming century it is overwhelmingly likely that constitutional law will have to classify artificially created entities that have some but not all of the attirbutes we associate with human beings." The rest of his paper, though, shows that it's not a "simple" one at all.

My heart sinks at the thought. Consider the state of the public sphere in the 21st-century US. Given that Guantanamo continues on, its capricious horrors and tortures all rubber-stamped by the Justice Department, its constinued existence supported by the very POTUS who claimed, on the campaign trail, that one of his first acts as POTUS would be shut that chamber of horrors down; given that so many people don't consider all human beings deserving of human rights; given the state of our many, many prisons and politicians' continued reveling in executing people known to be innocent of crimes they've been convicted of; and given that the most mundane policies of cities--that of how they treat people who lack housing-- which a UN report recently denounced as a widespread violation of human rights: I don't see a morally decent outcome resulting.

Boyle notes that collectively, in the US, we "disagree radically on the status of a fetus and... about the individual in a coma with no brain stem activity at all. How much harder will it be to come to agreement on the status of a chimeric construct or an artificial intelligence?" Boyle's exploration of this question is well worth reading, and draws interestingly on Turing's "Computing Machinery and Intelligence" as well as on a paper about the Turing test that mischievously suggests that Turing himself might not have passed it.

Boyle also discusses the difficulty of establishing "species identity"-- given how similar, genetically, humans are to a huge range of animals and the contentiousness of the question of which differences matter and which don't. When he poses the question of whether the Constitution "protects artificial entities," he cannily points out that according to the Supreme Court, it does: having long ago granted corporations legal personhood-- and then goes on to note that this is probably not a train of reasoning we want to follow: "The history of corporate personhood is hardly one of the Constitution's shining moments. Is its confused and partisan process of pragmatic muddling the best we can do with the more morally wrenching questions that the future can bring us?" He concludes with a reflection on Turing's article: "The most striking conclusion of Alan Turing's article may not be how difficult it is to identify machine consciousness or personhood but how uncertain we are about the boundaries of our own."

You can download a pdf of Boyle's entire paper here.

Not only must constitutional lawyers be thinking science fictionally, but apparently farmers using genetically modfied seed to grow corn for producing ethanol need to be doing so, too. It looks as though Monsanto's genetically modified corn is leading to super-resistant insects (corn borers and rootworms). Farmers using such seed are supposed to do certain things to prevent resistance from developing, but apparently are not, or are taking inadequate measures.

Drone technology and "the social norm"

Whenever the US deploys new technology abroad, against foreign populations, you can be sure it will eventually (sometimes very soon) be adopted for domestic uses. The latest such technology is the drone. The CIA has been using drone technology in Pakistan to do the work of a death squad by remote control. (Death squads, of course, are evil entities, and so it's probably controversial to note that extrajudicial assassinations of persons are what death squads do.) Constantly and scandalously the CIA's drones have killed bystanders there, thus inciting public outrage and the outing and recall of the CIA's chief of station in Pakistan (to prevent his being hauled into a court of law on charges of murder, since he was present in Pakistan on a business rather than a diplomatic visa). We can easily imagine the scenario: the operative seated comfortably in an ergonomic chair at a console in the embassy, perhaps munching a snack or sipping a cup of coffee, killing real people with the ease of someone playing a video game, all the muss and fuss safely distanced and the resulting adrenalin surge utterly guilt-free, even when small children are their victims.

That is in Pakistan. (And Iraq and Afghanistan. And maybe even other places, for all we know, since the US is conducting military operations in dozens of countries abroad.) But now, if you live in the US, the drone will likely be coming in all sizes and shapes and purposes, to a city near you. So far the uses being proposed are that of surveillance, but we all know where taking that road typically ends. If US law enforcement can do something with the equipment they're given, they will.

Here's the Washington Post's Peter Finn:

For now, the use of drones for high-risk operations is exceedingly rare. The Federal Aviation Administration - which controls the national airspace - requires the few police departments with drones to seek emergency authorization if they want to deploy one in an actual operation. Because of concerns about safety, it only occasionally grants permission.

But by 2013, the FAA expects to have formulated new rules that would allow police across the country to routinely fly lightweight, unarmed drones up to 400 feet above the ground - high enough for them to be largely invisible eyes in the sky.

Such technology could allow police to record the activities of the public below with high-resolution, infrared and thermal-imaging cameras.

One manufacturer already advertises one of its small systems as ideal for "urban monitoring." The military, often a first user of technologies that migrate to civilian life, is about to deploy a system in Afghanistan that will be able to scan an area the size of a small town. And the most sophisticated robotics use artificial intelligence to seek out and record certain kinds of suspicious activity.

But when drones come to perch in numbers over American communities, they will drive fresh debates about the boundaries of privacy. The sheer power of some of the cameras that can be mounted on them is likely to bring fresh search-and-seizure cases before the courts, and concern about the technology's potential misuse could unsettle the public.

And the best thing about this, for police departments? It's relatively cheap. As Finn notes, the real question is whether citizens will stand for it:

Still, Joseph J. Vacek, a professor in the Aviation Department at the University of North Dakota who has studied the potential use of drones in law enforcement, said the main objections to the use of domestic drones will probably have little to do with the Constitution.

"Where I see the challenge is the social norm," Vacek said. "Most people are not okay with constant watching. That hover-and-stare capability used to its maximum potential will probably ruffle a lot of civic feathers."

The article notes that there was apparently a revolt in Houston in 2007 against a pilot program for using drones. (Finn couldn't discover the reason for the program's being "aborted," but suspects it had to do with traffic tickets.) My guess is that most people will stand for it. The post 9/11 routine is well established. Some prominent politician receiving campaign funds from a company that makes drone technology will loudly and repreatedly claim that domestic use of the technology will make everyone safer, and then no elected official anywhere will be willing to oppose it. (That's how the boondoggle of the body scanner became standard TSA technology.) After all, for ten years we've been putting up with the security theater we all sacrifice our dignity to at airports, though it's degrading and is purely cosmetic. The politicians know it-- and also know they can't advocate dispensing with any particular component of it, no matter how absurd and ineffective it can be shown to be. As for the "social norm": no one seems to mind that citizens who videotape the police making arrests in public places (particularly when police misconduct is involved) are likely to go to jail for doing so. (Naturally the police can videotape anything they like.)

So tell me. Are we living in a police state yet?

The Party of the Insane; or, Beyond the Know-Nothings

I realized long ago that many Republicans would not be able to pass the tests given to students in Civics classes in the 1950s & 1960s, were such tests administered to people in the US today. (This first became obvious when the Republicans decided that adultery was an impeachable offense for the POTUS when the POTUS is a Democrat). Nevertheless, even I am gobsmacked by the latest piece of nonsense to come out of the Iowa Republican Party. (It's not just Civics exams that the Iowa Republicans would fail, but exams in Logic and History as well.) Desperate to find a way to take President Obama's citizenship away from him (the repeated lie that he was not born in the US not having accomplished all that its propagators have hoped for), some Republicans in Iowa have dug up an attempt to amend the US Constitution back in 1810 that failed because it could not achieve the votes needed for ratification. They are calling this "the original 13th amendment." You all know what the real 13th Amendment is, don't you? It's the amendment that bans slavery and involuntary servitude.

Yeah. Just so.

So what is this failed amendment they want to reintroduce and ratify?

If any citizen of the United States shall accept, claim, receive or retain any title of nobility or honour, or shall, without the consent of Congress accept and retain any present, pension, office or emolument of any kind whatever, from any emperor, king, prince or foreign power, such person shall cease to be a citizen of the United States and shall be incapable of holding any office of trust or profit under them, or either of them.

What, you might wonder, does this have to do with taking away Obama's citizenship? Apparently these bozos believe that merely accepting the Nobel Prize from a committee appointed by the Norwegian Parliament would then require him to be stripped of his citizenship. (I guess they don't know what the word "honour" meant back in 1810.) And I guess that would mean that everyone who ever accepted a Nobel Prize would also be stripped of their citizenship. (Jimmy Carter, Toni Morrison, Paul Krugman, Joseph Steiglitz, any number of scientists-- yeah, I can see why these whackos would like to rid our shores of all recipients of a Nobel.) But apparently Nobel Laureates are not the only ones these guys are targeting. Here's Jason Linkins at the Huffington Post:

In the world of the Thirteenthers, though, it's all a conspiracy, and the leading suspects are those shady characters who put "esquire" after their names. To quote the Web site Constitutional Concepts, "This Amendment was for the specific purpose of banning participation in government operations by attorneys and bankers who claimed the Title of Nobility of 'Esquire.' These people had joined the International Bar Association or the International Bankers Association and owed their allegiance to the King of England." In other words--well, we're not sure how to explain it any better, but Constitutional Concepts CEO Jim Barrus says in an e-mail that enforcement of the 13th Amendment would strike a blow against "the elected politicians who have grand plans of ruling every facet of America," and would essentially delegitimize virtually every act of the federal government since 1819. Who wouldn't want that?

Naturally, most lawyers see it differently. "The esquire thing is ridiculous," says R. B. Bernstein, a professor at New York Law School and author of Amending America. "'Esquire' is not a title of nobility. Back then, they were worried about people accepting literal titles of aristocracy that convey land or privileges, things you can leave to your kids." Lawyers obviously command certain privileges, but they are not inherited.

The "Thirteenthers" (as they call themselves), according to the Iowa Independent

argue that it was ratified and have a plethora of conspiracy theories to back up their assertion. These folks, known as “Thirteenthers,” believe that since the amendment would have banned lawyers and bankers from serving in government (since they joined the International Bar Association or the International Bankers Association, respectively), every act of the federal government since 1819 would be delegitimized.

In a way, this is even more grandiose in its disregard for truth than the Birthers' refusal to admit that Obama was born in the United States. But who knows, it sounds like the kind of re-writing that might make it into Texas's K-12 history texts.

...and Texas will soon be a very bad place for K-12 education

What a month it's been. First Utah goes after pregnant women, and now Texas seems determined to handicap its children by teaching them alternate history as if it were fact.

The New York Times reported today that the Texas Board of Educated is planning to indoctrinate its children and youth with lies, using textbooks that rewrite history-- US history and world history both. It sounds as though the article barely scratches the surface of the School Board's collective fantasies; the examples it gives center on the US Constitution, US history, and the US's "Founding Fathers." Dominated by fantasists (who all seem to be Republican) voted 11-4 on "conservative"- recommended content of future textbooks. It's hard to believe conservatives have become such crackpots. My father was a conservative and a fundamentalist Lutheran, but I've no doubt that he'd have found this appalling.

There were no historians, sociologists or economists consulted at the meetings, though some members of the conservative bloc held themselves out as experts on certain topics.

The conservative members maintain that they are trying to correct what they see as a liberal bias among the teachers who proposed the curriculum. To that end, they made dozens of minor changes aimed at calling into question, among other things, concepts like the separation of church and state and the secular nature of the American Revolution.

"I reject the notion by the left of a constitutional separation of church and state," said David Bradley, a conservative from Beaumont who works in real estate. "I have $1,000 for the charity of your choice if you can find it in the Constitution."

The American Revolution was... religious? It was fought on... religious grounds? I can't begin to imagine how any details of that could even be invented. How in the world are the writers of the textbook going to be able to pull off making such whacko assertions? But since they're apparently writing Thomas Jefferson out of their history, I guess they can do anything.

But I have to wonder. After this kind of "education," will any high-school graduate of a Texas high school ever be considered qualified enough to be admitted to any institutions of higher learning anywhere (except, of course, the online mail-order degree-mills)?

Here's more-- in which we learn that St. Thomas Aquinas and John Calvin were really the authors of all the revolutions that tore apart Europe for more than half a century of its modern history:

Even the course on World History did not escape the board's scalpel.

Cynthia Dunbar, a lawyer from Richmond who is a strict constitutionalist and thinks the nation was founded on Christian beliefs, managed to cut Thomas Jefferson from a list of figures whose writings inspired revolutions in the late 18th century and 19th century, replacing him with St. Thomas Aquinas, John Calvin and William Blackstone. (Jefferson is not well liked among the conservatives on the board because he coined the term "separation between church and state.")

"The Enlightenment was not the only philosophy on which these revolutions were based," Ms. Dunbar said.

Mavis B. Knight, a Democrat from Dallas, introduced an amendment requiring that students study the reasons "the founding fathers protected religious freedom in America by barring the government from promoting or disfavoring any particular religion above all others."

It was defeated on a party-line vote.

Can you hear me giggling hysterically?

Stepping through the Looking Glass

Now this is scary: finding myself agreeing with conservatives like Bruce Fein and Richard Viguerie (of all people) about important issues. Yesterday John Nichols noted in his blog at the Nation that

The Center for Constitutional Rights, Human Rights Watch and MoveOn.org have launched a vital campaign to put restoration of the Constitution on the agenda for Democratic presidential candidates -- just as the conservative American Freedom Agenda movement has done for Republican candidates.

Fein, Viguerie, and other prominent Republicans worried about Bush/Cheney’s expansion of executive power are asking Republican presidential candidates to take a very specific pledge to restore the Constitution:

* Prohibit military commissions whose verdicts are suspect except in places of active hostilities where a battlefield tribunal is necessary to obtain fresh testimony or to prevent anarchy;

* Prohibit the use of secret evidence or evidence obtained by torture or coercion in military or civilian tribunals;

* Prohibit the detention of American citizens as unlawful enemy combatants without proof of criminal activity on the President's say-so;

* Restore habeas corpus for alleged alien enemy combatants, i.e., non-citizens who have allegedly participated in active hostilities against the United States, to protect the innocent;

* Prohibit the National Security Agency from intercepting phone conversations or emails or breaking and entering homes on the President's say-so in violation of federal law;

* Empower the House of Representatives and the Senate collectively to challenge in the Supreme Court the constitutionality of signing statements that declare the intent of the President to disregard duly enacted provisions of bills he has signed into law because he maintains they are unconstitutional;

* Prohibit the executive from invoking the state secrets privilege to deny justice to victims of constitutional violations perpetrated by government officers or agents; and, establish legislative-executive committees in the House and Senate to adjudicate the withholding of information from Congress based on executive privilege that obstructs oversight and government in the sunshine;

* Prohibit the President from kidnapping, detaining, and torturing persons abroad in collaboration with foreign governments;

* Amend the Espionage Act to permit journalists to report on classified national security matters without fear of prosecution; and;

* Prohibit the listing of individuals or organizations with a presence in the United States as global terrorists or global terrorist organizations based on secret evidence.

The CCR, HRW, and Moveon.org are asking Democratic candidates take a more general pledge. As far as I’m able to tell, none of the candidates of either party would be willing to take the specific pledge (since it would mean opposing policies and practices they at least tacitly support).

Federal officials in the US are required to take an oath promising to uphold the Constitution; but for all intents and purposes, that oath has become virtually meaningless. I seem to recall reading that at least one of the White House staff under scrutiny recently in the Justice Department scandals remarked that staff take an oath to faithfully serve the president, not the Constitution, which rather surprised me. I wonder if that's always been the case, or if it's another innovation by the Bush Administration...

US VP No Longer a Part of the US Government?

An editorial in the San Diego Union--- titled “Is he vice president? Or king?”---quotes the Associated Press:

Cheney's office -- over the objections of the National Archives -- has exempted itself from a presidential executive order that seeks to protect national security information generated by the government, according to the House Committee on Oversight and Government Reform.

Under the order, executive branch offices are required to give the Information Security Oversight Office at the archives data on how much material it has classified and declassified.

Cheney's office provided the information in 2001 and 2002, then stopped. Henry Waxman, chairman of the committee, said Cheney's office claims it need not comply with the executive order because it is not an "entity within the executive branch."

This story is actually getting some play in mainstream news venues in the US, with a focus on Waxman’s revelation that Cheney’s staff tried to have the Information Security Oversight Office abolished altogether. What I’m wondering, though, is whether the vice president considers his office a part of the US Government at all. What other branch of government could it belong to besides the executive branch? Surely not the judicial or congressional branches. And these are the only branches of government set forth in the US Constitution. The title of the San Diego Union’s editorial is facetious, but I’ve got to wonder why Cheney is characterizing himself and his office as no longer a part of the government.