Monday, January 30, 2006

More on Poutre vs Schiavo

Haleigh Poutre, the brain-damaged child abuse victim in Massachusetts, has been transferred from intensive care to a rehab center after showing significant signs of improvement.

Meanwhile, my column on Haleigh Poutre vs. Terri Schiavo is now up at the Boston Globe.

Here's the full text.

THE CASE of Haleigh Poutre, the battered child at the center of a legal and medical dispute in Massachusetts, is so horrific as to evoke medieval tableaux of hell. This 11-year-old girl was failed by all the adults in her life, from her biological and adoptive families to the social workers and medical professionals. Haleigh, who seems to be emerging from her four-month-long coma and has been moved from intensive care to a rehab center, would have been dead today if the stepfather charged in her near-fatal beating had not fought (most likely for self-interested reasons) to keep her alive.

This tragedy should have been a national outrage. Yet it has gotten only scant attention. Syndicated columnist and blogger Michelle Malkin blames this on a ''post-Schiavo syndrome": After last year's pitched battle over whether Terri Schiavo should be kept alive in a vegetative state, most people shudder at the thought of a repeat. Malkin may well be right -- but if so, the blame rests with the right-to-life advocates who made Schiavo their cause célèbre.

To put it simply: Haleigh Poutre is no Terri Schiavo. Schiavo had been in a persistent vegetative state for 15 years, and had undergone a barrage of tests showing that she had no higher brain functioning and no consciousness -- a fact on which all unbiased medical experts agreed. (Her case had also undergone repeated court review.) Haleigh had been in a vegetative state since Sept. 11. After the Supreme Judicial Court ruled that she could be taken off life support, the girl began to show improvement.

Dr. Nancy Childs, a renowned brain injury specialist in Austin, Texas, told The Boston Globe that 16 percent of brain-injured adults recover after three months of unconsciousness. Neurologists also say that children, with their still-growing and more elastic brains, have a better prospect for recovery from brain injuries than adults.

Yet, shockingly, the state Department of Social Services had first sought to terminate Haleigh's life support only three weeks after her hospitalization, after doctors declared her to be virtually brain-dead. Because her records are sealed, we don't know what tests were done to reach this conclusion. It certainly looks like the DSS showed unseemly haste in wanting life support discontinued.

This is the same DSS which had previously overlooked repeated signs that Haleigh was being severely abused. Adoptive mother Holli Strickland, who later committed suicide after being charged with assaulting Haleigh, had managed to convince the social workers that the girl's numerous physical injuries were self-inflicted. (If the child was so emotionally disturbed that she was constantly harming herself, shouldn't she have been placed into treatment?)

Some caution that the high cost of caring for comatose patients may become a financial incentive to end life support. Did such considerations influence the decision-making at the DSS? All of this warrants investigation. But, contrary to the overheated claims of right-to-life advocates, the officials and doctors are not death-happy ghouls: They were quick to order new tests after Haleigh's biological mother reported that she saw some signs of improvement.

All of us -- journalists, politicians, concerned citizens -- must make sure that Haleigh gets every chance at life she can have. I would suggest, however, that the vocal champions of Terri Schiavo's ''right to live" stay away from this case. After the falsehoods and the hysteria they propagated about Schiavo, their involvement here could only do harm.

The ''save Terri" brigade turned a tragedy into a macabre circus. Politicians such as Representative Tom Delay, a Texas Republican, and pundits such as Fox News's Sean Hannity embraced patently absurd claims that Schiavo was able to communicate and even talk. They made wildly misleading claims about the medical credentials of ''experts" who said Schiavo could be conscious. They asserted that Schiavo's coma may have been caused by abuse from her husband, Michael.

With their cries of ''medical terrorism" and their comparisons to Nazi Germany, these so-called champions of life created an atmosphere in which some of their supporters made death threats not only to Michael Schiavo but to judges and legislators who had been on the ''wrong" side of the dispute.

This kind of support is the last thing Haleigh Poutre needs. Haleigh's cause should be championed -- by those who have the moral authority and the credibility to speak about it. This case raises many disturbing issues, from the efficacy of child protection to care for comatose patients. It deserves to be in the spotlight; it does not deserve to be turned into Terri Schiavo II.

A few days ago, Malkin responded to my earlier blogpost on the subject.

Says Malkin:

Young concedes the case deserves public attention, but then castigates those of us who are using our little keyboards to give Haleigh just that.

So, no, sorry, I won't shut up. And I don't plan on watching silently as we head toward Hollandization.

But, of course, I didn't castigate those who are "using their little keyboards" to give Haleigh public attention. I said that those who have squandred their credibility and moral authority by either lying or uncritically repeating lies about the Schiavo case ought to stay away from this one. I say this for the same reason that, for instance, if there was a black teenage girl came forward with a credible complaint of being raped by white policemen, I don't think it would be particularly helpful for Al Sharpton, of Tawana Brawley fame, to appoint himself her champion.

I also believe that it doesn't particularly help Haleigh to have her tragedy exploited to score points against right-to-die advocates.

Thankfully, Haleigh is now getting not only public attention but help. All we can do is hope and (if we believe in prayer) pray that this terrible story may have a happy ending.

Saturday, January 28, 2006

Political beliefs and change

Blogging is scarce at the moment because of a pressing deadline.

However, in case you don't read neo-neocon, I definitely suggest checking out her recent posts on "change" -- evolution, sometimes radical, in views on political issues. A mind is a difficult thing to change is the latest in the author's continuing story of her own political journey. There are also several recent posts on other changers, including Guardian writer Jonathan Freedland. All these are admittedly changes from "left" to "right," at least on foreign policy issues. But I think they're quite fascinating, particularly in view of that recent study about how resistant people are to facts that contradict their strongly held views.

Thursday, January 26, 2006

Richard Posner on warrantless surveillance

Judge Richard Posner, an esteemed jurist and author, defends the NSA warrantless wiretaps program in The New Republic (registration required).

If I understand the judge correctly, he says that the program may well be illegal if it violages FISA, but that the important issue is whether it is effective and necessary.

Writes Posner:

Lawyers who are busily debating legality without first trying to assess the consequences of the program have put the cart before the horse. Law in the United States is not a Platonic abstraction but a flexible tool of social policy. In analyzing all but the simplest legal questions, one is well advised to begin by asking what social policies are at stake. Suppose the NSA program is vital to the nation's defense, and its impingements on civil liberties are slight. That would not prove the program's legality, because not every good thing is legal; law and policy are not perfectly aligned. But a conviction that the program had great merit would shape and hone the legal inquiry. We would search harder for grounds to affirm its legality, and, if our search were to fail, at least we would know how to change the law--or how to change the program to make it comply with the law--without destroying its effectiveness. Similarly, if the program's contribution to national security were negligible--as we learn, also from the Times, that some FBI personnel are indiscreetly whispering--and it is undermining our civil liberties, this would push the legal analysis in the opposite direction.


The next terrorist attack (if there is one) will likely be mounted, as the last one was, from within the United States but orchestrated by leaders safely ensconced abroad. So suppose the NSA learns the phone number of a suspected terrorist in a foreign country. If the NSA just wants to listen to his calls to others abroad, FISAdoesn't require a warrant. But it does if either (a) one party to the call is in the United States and the interception takes place here or (b) the party on the U.S. side of the conversation is a "U.S person"--primarily either a citizen or a permanent resident. If both parties are in the United States, no warrant can be issued; interception is prohibited. The problem with FISA is that, in order to get a warrant, the government must have grounds to believe the "U.S. person" it wishes to monitor is a foreign spy or a terrorist. Even if a person is here on a student or tourist visa, or on no visa, the government can't get a warrant to find out whether he is a terrorist; it must already have a reason to believe he is one.

As far as an outsider can tell, the NSA program is designed to fill these gaps by conducting warrantless interceptions of communications in which one party is in the United States (whether or not he is a "U.S. person") and the other party is abroad and suspected of being a terrorist. But there may be more to the program. Once a phone number in the United States was discovered to have been called by a terrorist suspect abroad, the NSA would probably want to conduct a computer search of all international calls to and from that local number for suspicious patterns or content. A computer search does not invade privacy or violate FISA, because a computer program is not a sentient being. But, if the program picked out a conversation that seemed likely to have intelligence value and an intelligence officer wanted to scrutinize it, he would come up against FISA's limitations. One can imagine an even broader surveillance program, in which all electronic communications were scanned by computers for suspicious messages that would then be scrutinized by an intelligence officer, but, again, he would be operating outside the framework created by FISA.


FISA's limitations are borrowed from law enforcement. When crimes are committed, there are usually suspects, and electronic surveillance can be used to nail them. In counterterrorist intelligence, you don't know whom to suspect--you need surveillance to find out. The recent leaks from within the FBI, expressing skepticism about the NSA program, reflect the FBI's continuing inability to internalize intelligence values. Criminal investigations are narrowly focused and usually fruitful. Intelligence is a search for the needle in the haystack. FBI agents don't like being asked to chase down clues gleaned from the NSA's interceptions, because 99 out of 100 (maybe even a higher percentage) turn out to lead nowhere. The agents think there are better uses of their time. Maybe so. But maybe we simply don't have enough intelligence officers working on domestic threats.


What seems clear is that FISA does not provide an adequate framework for counterterrorist intelligence. The statute was enacted in 1978, when apocalyptic terrorists scrambling to obtain weapons of mass destruction were not on the horizon. From a national security standpoint, the statute might as well have been enacted in 1878 to regulate the interception of telegrams. In the words of General Michael Hayden, director of NSA on September 11 and now the principal deputy director of national intelligence, the NSA program is designed to "detect and prevent," whereas FISA was built for long-term coverage against known agents of an enemy power."

In the immediate aftermath of the September 11 attacks, Hayden, on his own initiative, expanded electronic surveillance by NSA without seeking FISA warrants. The United States had been invaded. There was fear of follow-up attacks by terrorists who might already be in the country. Hayden's initiative was within his military authority. But, if a provision of Fthat allows electronic surveillance without a warrant for up to 15 days following a declaration of war is taken literally (and I am not opining on whether it should or shouldn't be; I am not offering any legal opinions), Hayden was supposed to wait at least until September 14 to begin warrantless surveillance. That was the date on which Congress promulgated the Authorization for Use of Military Force, which the administration considers a declaration of war against Al Qaeda. Yet the need for such surveillance was at its most acute on September 11. And, if a war is raging inside the United States on the sixteenth day after an invasion begins and it is a matter of military necessity to continue warrantless interceptions of enemy communications with people in the United States, would anyone think the 15-day rule prohibitive?

We must not ignore the costs to liberty and privacy of intercepting phone calls and other electronic communications. No one wants strangers eavesdropping on his personal conversations. And wiretapping programs have been abused in the past. But, since the principal fear most people have of eavesdropping is what the government might do with the information, maybe we can have our cake and eat it, too: Permit surveillance intended to detect and prevent terrorist activity but flatly forbid the use of information gleaned by such surveillance for any purpose other than to protect national security. So, if the government discovered, in the course of surveillance, that an American was not a terrorist but was evading income tax, it could not use the discovery to prosecute him for tax evasion or sue him for back taxes. No such rule currently exists. But such a rule (if honored) would make more sense than requiring warrants for electronic surveillance.

Once you grant the legitimacy of surveillance aimed at detection rather than at gathering evidence of guilt, requiring a warrant to conduct it would be like requiring a warrant to ask people questions or to install surveillance cameras on city streets. Warrants are for situations where the police should not be allowed to do something (like search one's home) without particularized grounds for believing that there is illegal activity going on. That is too high a standard for surveillance designed to learn rather than to prove.

Posner makes some good points, particularly about the dubiousness of the FBI's complaints about leads that go nowhere. But as some of the commenters on the TNR site pointed out, his argument begs the question: if the law is so inadquate to current needs, then why not actually change the law? I really don't buy the idea that this would somehow tip the terrorists off to what we're doing (Al Qaeda operatives would have to be pretty dumb to think they at least may be under surveillance, and I suspect they don't have much confidence in American intelligence agencies' strict abidance by the law).

Secondly -- and knowledgeable people are welcome to correct me on this -- I'm not at all sure that intelligence works the way Posner thinks it does: i.e., that it's a random search for a needle in the haystack rather than the pursuit of some actual leads (e.g. observed behavior that leads to suspicion). Posner seems to be offering a prescription for extremely vast and comprehensive surveillance for the purpose of preventing terrorist acts -- basically the electronic equivalent of living under the constant gaze of surveillance cameras not only in the streets but in our homes. I'm also not sure that the only fear people have is surveillance data being legally used against them. There is also the risk of such data being misused by unscrupulous NSA employees, for instance, or even being used for voyeurism. In his October 7, 2001 New York Times magazine article, "A Watchful State," about the use of surveillance cameras in public places in England, Jeffrey Rosen reports that bored operators in the surveillance program routinely amuse themselves by spying on amorous couples in parked cars.

I do think that Posner raises some legitimate issues about the unique problems posed by terrorism in combination with modern technology. One common argument that I don't find persuasive is that if current rules were enough to get us through the Cold War when our adversary was an armed-to-the-teeth nuclear superpower, they're enough to get us through the War on Terror. But there is, in fact, a unique danger in facing a stateless, amorphous opponent undeterred (unlike the Soviet Union) by the threat of retaliation, and with bases in multiple countries including right here in the U.S. Our enemy today is much more flexible than during the Cold War, and it stands to reason that our response needs to be more flexible, too.

At the same time, surely I cannot be the only person troubled by Posner's proclamation that U.S. law is "not a Platonic abstraction but a flexible tool of social policy." If a liberal were to make such a statement in justifying (for instance) a broader application of the Commerce Clause to promote various social causes, conservatives would howl in outrage. Of course the law is not a Platonic abstraction, but make it too flexible, and you will end up with something like an old Russian proverb translateable roughly as, "The law is like a pole: whichever way you twist it, that's where it will go." In America, we are supposed to live under the rule of law, not merely of social policy.

Wednesday, January 25, 2006

Partisanship and (un)reason

This just in: partisan loyalty shuts down your brain.

Via Ron Bailey at Hit & Run:

Democrats and Republicans alike are adept at making decisions without letting the facts get in the way, a new study shows.

(In other news: dogs are adept at barking.)

And they get quite a rush from ignoring information that's contrary to their point of view.

Researchers asked staunch party members from both sides to evaluate information that threatened their preferred candidate prior to the 2004 Presidential election. The subjects' brains were monitored while they pondered.

"We did not see any increased activation of the parts of the brain normally engaged during reasoning," said Drew Westen, director of clinical psychology at Emory University. "What we saw instead was a network of emotion circuits lighting up, including circuits hypothesized to be involved in regulating emotion, and circuits known to be involved in resolving conflicts."

The test subjects on both sides of the political aisle reached totally biased conclusions by ignoring information that could not rationally be discounted, Westen and his colleagues say.

Then, with their minds made up, brain activity ceased in the areas that deal with negative emotions such as disgust. But activity spiked in the circuits involved in reward, a response similar to what addicts experience when they get a fix, Westen explained.

The study points to a total lack of reason in political decision-making.

(They needed a study for that?)

The tests involved pairs of statements by the candidates, President George W. Bush and Senator John Kerry, that clearly contradicted each other. The test subjects were asked to consider and rate the discrepancy. Then they were presented with another statement that might explain away the contradiction. The scenario was repeated several times for each candidate.

The brain imaging revealed a consistent pattern. Both Republicans and Democrats consistently denied obvious contradictions for their own candidate but detected contradictions in the opposing candidate.

"The result is that partisan beliefs are calcified, and the person can learn very little from new data," Westen said.

Presented with the results of the study, Republicans vehemently insisted that its findings applied mainly to Democrats, while the Democrats maintained the reverse.

Just kidding.

We don't need no stinkin' Fourth Amendment

The following gem comes from John Gibson on Fox News yesterday:

Democrats need a plan to combat the new attack coming their way from Karl Rove, the man leading the president's offensive this week, on the once upon a time secret wiretapping program. I've been saying the same thing for weeks and weeks, often to counter some argument about the Constitution my friend, the judge, makes.

Americans get it. We were reminded last week that Usama still wants to kill us in the country we live in, and we understand that he claims to have people already in our country plotting our demise. So when you say, as Bush is saying, if Al Qaeda is calling someone in America, we want to know what they're saying on that call, Americans say, "Yes, we sure do want to know."

If Democrats are going to argue against that position by saying, "You're not obeying the 1978 FISA law, which requires a warrant every time you listen to an Al Qaeda call," they've lost the argument before it even begins.

Now, that doesn't mean the Dems won't try to make that argument and, by pure repetition, hope it wins, but it won't. The polls show it won't.

People may not like the Iraq war, but they get it that the Al Qaeda phone call thing and the current president was named -- and if the current president was named Gore, or Clinton, or Kerry, the American people would make any one of them do the same thing.

The rule goes like this: Nobody should die because politicians want a judge to dot every i and cross every t.

Now, Judge Napolitano is off sick today. And somewhere, he is screaming or clucking his tongue or just shaking his head. It may not fit the parameters of the parchment, but it doesn't mean we don't care about the Constitution or the protections it provides us.

But we also -- we all know that we're not calling Al Qaeda and Al Qaeda isn't calling us. So if Al Qaeda is calling my neighbor, tap him! Find out what's going on between my neighbor and some terrorist overseas.

If the Dems can't beat that argument with something short and to the point --
"It's the Constitution, stupid," "Where is the Fourth Amendment?" something a whole lot better than either of those -- then the Dems just plain lose this argument.

So: appealing to the Constitution and the Fourth Amendment is a silly argument no one cares about. But that doesn't mean we don't care about the Constitution.

Got that?

By the way, once again, the controversy is about phone calls made from the United States to foreign countries -- not from foreign countries to the United States, and most certainly not Al Qaeda communications outside the U.S.

Once again, there is zero evidence that proper legal procedure would have made it any more difficult to collect legitimate intelligence-gathering in these cases. In fact, at least according to this New York Times article (click here if you cannot access the previous link), FBI officials say that the NSA surveillance program generally "led to dead ends or innocent Americans" and "diverted agents from counterterrorism work they viewed as more productive."

And no, it isn't just about your hypothetical Al Qaeda-loving neighbor. It's also about people like Christopher Hitchens, a staunch supporter of the War of Terror and the war in Iraq, and Larry Diamond, a democracy specialist at the Hoover Institution and a former adviser to the U.S.-led Coalition Provisional Authority in Iraq.

And if John Gibson can beat all that with, "But it's to save us from the terrorists!", then we're in trouble.

Update: For anyone asking, "Where's the harm in this program if no one is being hauled into court because of possibly illegal surveillance?", read Larry Diamond's statement.

The company we keep?

From a press release by the National Gay and Lesbian Task Force:

WASHINGTON, Jan. 23, 2006 — The National Gay and Lesbian Task Force today denounced the United States' vote against two gay rights organizations' applications to join the United Nations Economic and Social Council. The United States joined the repressive, anti-gay regimes of Iran, Zimbabwe, China, Cameroon and others in voting against even granting a hearing to the application of the International Lesbian and Gay Association (ILGA) and the Danish Association of Gays and Lesbians (Landsforeningen for Bosser og Lesbiske — LBL). Instead, the two groups' applications were summarily dismissed without a hearing.

"It is an absolute outrage that the United States has chosen to align itself with tyrants — all in a sickening effort to smother the voices of lesbian, gay, bisexual and transgender people around the world," said Matt Foreman, executive director of the National Gay and Lesbian Task Force. "Apparently Iran, which President Bush has deemed part of the 'Axis of Evil,' is a suitable partner when it comes to discriminating against gay people."

The governments of Iran and Zimbabwe are among the most repressive anti-gay regimes in the world. President Mugabe of Zimbabwe has long scapegoated and persecuted gay men and lesbians. The recently-elected president of Iran, Mahmoud Ahmadinejad, has overseen an anti-gay campaign in recent months, in which many young people accused of homosexual acts have been executed. Also leading the charge against the application of the two gay groups was Egypt, which has persecuted gay men in recent years.


Today's vote to summarily dismiss the applications of ILGA and LBL was as follows, according to ILGA: Yes: Cameroon, China, Cuba, Iran, Pakistan, Russian Federation, Senegal, Sudan, United States of America, Zimbabwe No: Chile, France, Germany, Peru, Romania; Abstention: Colombia, India, Turkey Not present: Ivory Coast.

I'm not a big fan of the U.N., and I seriously doubt that having two gay rights groups on the U.N. Economic and Social Council would have done much to change the actual lives of gay men and women for the better. Still, as a symbolic gesture, this vote and our alliance with the likes of Cuba, Iran, Sudan and Zimbabwe is, to put it mildly, not a proud moment for America.

More: A poster in the comments pointed out that ILGA originally lost its consultative status with ECOSOC in 1994 (after gaining it in 1993) because its membership roster had included the infamous North American Man-Boy Love Association (NAMBLA) and two other groups that advocate sex between adults and minors. By the time its consultative status at the U.N. had been terminated, ILGA had already expelled NAMBLA and the other two pro-pedophilia groups from its ranks by a vote of 214-30. (More on the subject here.) ILGA's attempts to regain consultative status at the UN have been blocked because opponents believe that it has not presented suffiicient proof that it has severed all ties to pro-pedophilia groups. This is mainly because ILGA has refused to present a full list of its member organizations to UN officials, arguing that such a list could expose member groups to persecution in some countries.

Since the mid-1990s, ILGA's Constitution includes an endorsement of the Convention on the Rights of the Child, which explicitly condemns the sexual exploitation of minors (defined as anyone under 18).

I think the original association between ILGA and NAMBLA does point to a disturbing aspect of the gay rights movement, at least in the past: a tendency among some activists to view groups like NAMBLA as being questionable but basically "on the same side," and to be sympathetic to all forms of sexually unconventional behavior. ButI also believe it's an aspect the movement has almost entirely outgrown in the last decade, and particularly with the new emphasis on marriage rights as a goal.

Leaving aside that larger issue, is ILGA's past association with NAMBLA a legitimate reason to deny it consultative status with ECOSOC? It seems to me this association has been repudiated enough to move past this issue, and at very least to consider the organization for membership. (The vote joined by the U.S. was to summarily reject its application without consideration.) Furthermore, no reasons are given as to why the application of the Danish gay and lesbian assocation was rejected as well.

Meanwhile, responding to my post, Joe's Dartblog notes that ECOSOC is a useless organization whose record "is a series of 1989-era websites, full of sound, fury, and resolutions signifying absolutely nothing," and whose rejection of the two gay groups will mean absolutely nothing to the lives of actual gays and lesbians around the world. I basically said the same thing. But once again, the symbolism of joining with Iran, Zimbabwe, Cuba and China to reject two gay rights groups is very, very bad.

Yes, Virginia, there is left-wing bias in the classroom

In response to my post about right and wrong ways to fight left-wing political correctness on college campuses, in which I took David Horowitz to task for peddling what turned out to be an unsubstantiated anecdote about a Fall 2004 classroom airing of Fahrenheit 9/11 at Penn State, Robert Shibley of FIRE writes:

I don’t know about Penn State, but we did learn that at the Rhode Island College School of Social Work, they were definitely showing Fahrenheit 9/11 in class in fall 2004. Here’s an e-mail from a professor acknowledging that from our case: (the full case is at and is, frankly, a real scandal). Actually, the professor admits that several professors were showing the movie to their graduate and undergraduate social work classes. He also goes on to say that social work is basically only open to liberals, which is the crux of what our case there is about (FIRE believes that there should not be a political litmus test for the study of any subject at a public university).

Read the linked pages. This is indeed an outrageous (and fully documented) story, and the Fahrenheit 9/11 showing is only the tip of the iceberg.

On October 14, 2004, student Bill Felkner emailed professor James Ryczek to note that Fahreneit 9/11 had been shown in several classes at the school and asking if there was any possibility of airing the anti-Michael Moore film, Fahrenhype 9/11, for balance.

Ryczek's reply, dated October 15:

Actually no school money was used for the showing of the film, per se. Dan Weisman (BSW Program Faculty) bought the film on his own and offered to organize and show the film at the times he arranged, although he and some other BSW faculty are showing it in class. The announcements were made in MSW classes just to let students know that they can go if they wish.

I don’t believe there would be an objection to showing the other film if you or someone else were to organize it…the space here is definitely a community space to be used by members of the community (especially students).

But, there may be a broader issue here that I’d be happy to discuss more with you (based on your comment about having a problem with the school, if it did promote and sponsor the film).

As I have mentioned in class, and I assume you’ve heard in other classes, Social Work is a value-based profession that clearly articulates a socio-political ideology about how the world works and how the world should be. In fact NASW, the professional organization, puts out position papers on just about everything in the realm of public discourse and debate. We also have a PAC specifically organized to promote certain candidates with whom we share the same political agenda and outlook…and as you may have guessed, is working actively to defeat Bush. So, as a social worker, I don’t find it at all unusual that a film like 9/11 might officially be sponsored by the school, and that the alternate view film might not be sponsored. In short, by and large as a profession we do take sides…and indeed in this school, we have a mission devoted to the value of social and economic justice.

Now that being said, I don’t think anyone here would want to quash alternative views. Again, as I have said in class…I want us to have an open discussion and debate about issues. In fact, questioning is an extremely important social work skill, and I know that I am doing a great deal of questioning with students about how they have traditionally thought about certain issues ….and that is challenging for both me and the student.

Yet, if a student finds that they are consistently and regularly experiencing opposite views from what is being taught and espoused in the curriculum, or the professional “norms” that keep coming up in class and in field, then their fit with the profession will not get any more comfortable, and in fact will most likely become increasingly uncomfortable.

... So, I think anyone who consistently holds antithetical views to those that are espoused by the profession might ask themselves whether social work is the profession for them...or similarly, if one finds the views in the curriculum at RIC SSW antithetical to those they hold closely, then this particular school might not be a good fit for them.

Never mind that the issues addressed in Fahrenheit 9/11 have very little to do with any of the issues and values relevant to social work. Unless, of course, one believes that any attacks on Bush are relevant to the issues and values relevant to social work.

Later, the school told Felkner that he was required to publicly advocate for liberal policies if he wanted to pursue his degree.

Social work may be a more "values-specific" field than most, though I'm sure there are many social workers who would disagree with Ryczek's blanket statement that politically liberal values are inherent to the profession. But in fact, similar claims about the inherent "fit" of politically liberal values to the field have been made about the academy in general (on the grounds that free inquiry, dissent, and a rejection of various orthodoxies are inherently "liberal" values).

The problem is there, and it needs to be fought with facts.

Professors holding left-of-center views -- which is the principal crime imputed to them by those conservative UCLA alumni whose now-rescinded "cash for class notes" offer recently made such a stir -- is not a problem. (Though I do think that a serious ideological imbalance in any field, particularly in the humanities, is a bad thing for the academy: diversity of ideas is its lifeblood.) Professors pushing their beliefs on students and punishing or marginalizing dissenters, on the other hand, is something that should not be tolerated. And there is far too much indoctrination and intellectual intolerance in the academy, particularly in certain fields (be it social work or women's studies and ethnic studies) where many professors sincerely believe that a particular ideology is the foundation of the field itself.

Tuesday, January 24, 2006

The warrantless eavesdropping defense

From Bush's speech at the University of Kansas yesterday, on the subject of warrantless surveillance:

This is -- I'll repeat to you that you hear words: domestic spying. These are not phone calls within the United States. This is a phone call of an Al Qaida, known Al Qaida suspect, making a phone call into the United States.

I'm mindful of your civil liberties, and so I had all kinds of lawyers review the process. We briefed members of the United States Congress, one of whom was Senator Pat Roberts, about this program.

You know, it's amazing that people say to me, "Well, he was just breaking the law."

If I wanted to break the law, why was I briefing Congress?



Federal courts have consistently ruled that a president has authority under the Constitution to conduct foreign intelligence surveillance against our enemies. Predecessors of mine have used that same constitutional authority.

BUSH: Recently, there was a Supreme Court case called the Haas case. It ruled -- the authorization for the use of military force passed by the Congress in 2001 -- in other words, the Congress passed this piece of legislation, and the court ruled, the Supreme Court ruled it that it gave the president additional authority to use what it called the fundamental incidents of waging war against Al Qaida.

I'm not a lawyer, but I can tell you what it means: It means Congress gave me the authority to use necessary force to protect the American people, but it didn't prescribe the tactics. It said, "Mr. President, you've got the power to protect us, but we're not going to tell you how."

And one of the ways to protect the American people is to understand the intentions of the enemy. I told you it's a different kind of war with a different kind of enemy. If they're making phone calls into the United States, we need to know why to protect you.

First of all, Bush is airbrushing an important fact. He repeatedly refers to the NSA monitoring phone calls into the United States. But the NSA was always allowed to monitor incoming international calls without FISA warrants, as long as the results could not be used against Americans; the point is that, under the Bush policy, this rule was also applied to outgoing international calls.

Secondly, to quote Joe Gandelman at The Moderate Voice:

So he argues he was trying to protect Americans (fair enough) and that it's vital to know the enemy's intentions (fair enough). But neither of these factors explain why it was somehow impossible to understand the intentions of the enemy either by either using warrants, getting warrants after the fact as allowed by FISA or by going to Congress and having them make any changes that would have made the functioning of the FISA law more efficient in the eyes of the administration.

Wesley Clark basically made the same point on Fox this morning, and I have to say I agree.

As for Bush briefing Congress: Clark pointed out that only a few members of Congress were briefed about the surveillance program, their objections were given no weight, and since the program was highly classified they were bound by secrecy not to go public with their concerns about it. This is not my (or, I hope, anyone's) idea of legislative oversight.

I am still not convinced by the rationales given by Bush defenders for bypassing those FISA warrants. Yes, sometimes speed is of the essence, but as critics have repeatedly pointed out, the warrants can be obtained retroactively up to 72 hours later. The other reason that has been cited is the possibility of leaking and the need to prevent it; but are those concerns based on any actual instances of leaking? I would think that FISA courts, set up specifically to deal with foreign intelligence surveillance, know how to keep their secrets.

But, once again: if Bush and his advisors were so convinced that warrantless surveillance was necessary, why not specifcially ask Congress for those powers? So as not to tip off the Al Qaeda and the rest of the terror network? Sorry, but I don't see why the Al Qaeda would change its behavior based on the knowledge that its operatives can be subject to warrantless surveillance; surely terrorists would assume that U.S. intelligence agencies would have no trouble obtaining warrants to monitor Al Qaeda communications.

So far, none of the explanations are wholly convincing, and this executive power grab remains troubling.

Monday, January 23, 2006

Not another Terri Schiavo

The tragic case of poor Haleigh Poutre, the brain-damaged 11-year-old girl in Massachusetts whom the Department of Social Services wanted taken off life support over the objections of the stepfather charged in the beating that left her comatose, is making some waves around the blogosphere. Michelle Malkin has a lot of links here. She also laments a "post-Schiavo syndrome" that she believes has made a lot of people, on the left and the right, unwilling to grapple with this case. In particular, she chides John Cole for his "Dear God, not again" riposte to her earlier "Haleigh wants to live" post, a response Malkin sees as epitomizing "a jaded and shockingly callous exasperation."

Actually, I think that Malkin has a point about Schiavo fatigue, and that this case is genuinely deserving of attention. First of all, there is the egregious mishandling by the Massachusetts DSS of ample evidence that Haleigh was being abused. (The girl had been removed from the custody of her biological mother at the age of four; prior to that, she had been sexually abused by her mother's boyfriend. In 2001, she was legally adopted by her aunt, who committed suicide last September after being arrested, along with her husband, in the beating that sent Haleigh to the hospital with near-fatal injuries. The entire timeline of this terrible case can be found here.) Second, it appears that DSS sough to have Haleigh's life support terminated with unseemly haste, a mere three weeks after she lapsed into unconsciousness on September 11.

According to The Boston Globe:

Several neurologists who specialize in brain injuries said yesterday that it is hard to know if there was enough conclusive medical evidence about Haleigh's condition to warrant the DSS's decision to seek to withdraw life support within three weeks of her hospitalization.

''Three weeks is early with what we know can happen with recovery," said Dr. Nancy Childs, executive medical director of Texas NeuroRehab Center in Austin, Texas, who has been working with brain-injured patients for more than 20 years.

Childs said statistics show that 52 percent of brain-injured adult patients recover consciousness a month after their trauma and that 16 percent recover after three months. She also said that, in general, brain-injured children, with their growing and elastic brains, ''have a better outcome" than brain-injured adults.

Indeed, plans to remove Haleigh's feeding tube have been suspended because the girl showed signs of improvement after being taken off a ventilator (she is now breathing on her own). I certainly hope that more is done to ensure that this poor girl gets every chance she can have, and that Terri Schiavo fatigue will not keep her from getting all the attention she deserves.

However, if the "post-Schiavo syndrome" becomes a complicating factor in this case, the fault will rest squarely with the so-called "champions" of Terri Schiavo.

After all the lies and all the hysteria from the "save Terri" brigade (the junk science intended to prove that she was conscious and responsive, the peddling of an absurd affidavit from a nurse alleging a conspiracy to conceal evidence of Schiavo's condition, the bizarre claim that the dying Schiavo tried to say "I want to live," the false charges that her husband Michael had abused her and possibly caused her coma, the cries of Auschwitz ... the list goes on and on), any cause seen as Schiavo redux is going to be seen with a certain degree of cynicism.

Incidentally, it is also worth noting that while the Massachusetts DSS has certainly screwed up in this case, it was also the same DSS that asked for additional tests to determine if Haleigh might be emerging from her vegetative state. The doctors and the social workers are not ghouls who would knowingly starve to death a living person (and yes, by living I mean having either some consciousness or some prospect of regaining it).

I'm not saying that we should all relax and leave this to the professionals. This case certainly merits all the public attention it can get, including attention from journalists, bloggers, and public officials. But those responsible for the macabre circus that was the Terri Schiavo case have squandered all moral authority on this issue. The best thing they can do for Haleigh Poutre is keep quiet and leave this case to those who have some credibility.

European anti-Americanism: A walk down memory lane

You know how the rise of anti-Americanism in Europe is all the fault of Bush and his warmongering, narrow-mindedness, religious fundamentalism, and so on and so forth?

The other day, I was doing a Lexis/Nexis searh in search of something else (material related to the Echelon surveillance program), and I came across an article with the headline:

Europe's Dim View Of U.S. Is Evolving Into Frank Hostility

Sample paragraph:

Poking fun at America has always been a European pastime, particularly among the French. In the past, Americans have been ridiculed as Bermuda-shorts-wearing louts who call strangers by their first names and know nothing about the good life. But today's criticism is far from being an amusing rejection of food rituals. Experts say that it has a virulence and an element of fear never seen before.

And this was published when?

April 9, 2000.

Some more excerpts:

Just read the title of his new book and you'll get an idea of Noel Mamere's perspective: "No Thanks, Uncle Sam."

Mr. Mamere, an outspoken though hardly extreme member of the French Parliament, has devoted an entire book to his argument that America is a worrisome society these days. It has a record number of armed citizens. It embraces the death penalty, turns the poor away when they need medical care, and its legislators have failed to approve a nuclear test ban. Yet, argues Mr. Mamere, the United States throws its weight around and would have the entire world follow in its steps.

At this moment, he says in his closing chapter, "it is appropriate to be downright anti-American."

In France, indeed in Europe, Mr. Mamere is by no means alone in his criticism of the United States. Wander a French bookstore these days and you will find any number of catchy titles ("The World Is Not Merchandise," "Who Is Killing France? The American Strategy," "American Totalitarianism" to name a few) deploring the American way -- from its creation of a society ruled by profit to depictions of the United States as an unchecked force on its way to ruling the world. The books are only one sign of what experts say is a growing backlash of anti-Americanism. More and more often, Europeans talk about America as a menacing, even dangerous force intent on remaking the world in its image.

The article notes that this perception is linked to the United States' sole-superpower status since the fall of the Berlin wall.

The Europeans read menace in a wide range of recent events. Far from seeing America's involvement in Kosovo as a hand of support from across the Atlantic, for instance, many Europeans saw it as an American manipulation of NATO. And the humiliating fact that the intervention would not have been possible without American air power only rammed home the perception of America's military superiority, and of European deficiency.

But suspicion runs high in other areas as well. The Clinton administration's cheerleading -- for instance, its repeated description of the United States as being the "indispensable" nation -- strikes a threatening chord here. And recent disputes such as America's decision last year to impose an import tax on goods like Roquefort cheese and foie gras because the Europeans would not accept hormone-enhanced beef from the United States only fuels the European sense that the United States is a bully.


To be sure, the average European is embracing much that comes from the United States. Its films, its music, its fashion and, even if no-one in France particularly cares to admit it, its fast food. The weekly best-seller list shows more than half the top selling novels in France are translations of American books. There are frequent complaints of a brain drain as young people flock to Silicon Valley and elsewhere in America to get their start in life.

But at the same time the view of a belligerent United States is growing too. Polls conducted by CSA in the last few years suggest that Europeans have some extremely negative views of the United States. In April last year, 68 percent of the French said they were worried about America's status as a superpower. Only 30 percent said there was anything to admire across the Atlantic. Sixty-three percent said they did not feel close to the American people.

Another CSA poll in September 1998, which compared the attitudes of the Germans, Spanish, French, Italian and British toward the United States, found they had deep reservations too. ...

"We have the impression that America has no more enemy," says Michel Winock, a professor at the Institut d'Etudes Politiques de Paris who often writes on the subject of anti-Americanism. "It does what it likes now when it wants. Through NATO it directs European affairs. Before we could say we were on America's side. Not now. There is no counterbalance."

The European/American divide, the article notes, stems partly from differences on social issues such as the death penalty, and is exacerbated by many European commentators' preoccupation with American social ills such as police violence and racism.

"Never has America been so loved and so hated," says the novelist Pascal Bruckner, who has also written on anti-Americanism. "But in some ways America should be glad. We are not condemning the Russians for a lack of morality. We don't care. They don't count."

Felix Rohatyn says he has felt the change of attitude take place since 1997, when he arrived in Paris as the American ambassador.

"The anti-Americanism today encompasses not a specific policy like Iranian sanctions but a feeling that globalization has an American face on it and is a danger to the European and French view of society," Mr. Rohatyn said in an interview. "There is the sense that America is such an extraordinary power that it can crush everything in its way. It is more frustration and anxiety now than plain anti-Americanism."

Claims that today's European anti-Americanism is Bush's (or the Bush Administration's) fault often focus on the overwhelming sympathy for the United States in Europe right after 9/11, symbolized by the "Nous sommes tous Américains" -- "We are all Americans" -- editorial in Le Monde, published on September 13, 2001. It is a common charge that we have "squandered" that sympathy by our post-9/11 actions, and particularly the war in Iraq. Yet it is very likely, given the pre-9/11 climate in Europe, that this surge of sympathy was inevitably going to be temporary and probably short.

The 2000 New York Times article is a useful reminder of that.

Friday, January 20, 2006

Two views contra Alito

The other day, I said that despite reservations about Alito's record, I believe he can and should be confirmed because (as a Washington Post editorial argued) a qualified nominee should not be rejected because he reflects the ideology of a duly elected president.

Here are two interesting arguments to the contrary, both from people who are not wild-eyed radicals.

The New Republic (regigstration req'd) makes a two-part argument:

More important in our view are the central questions of the confirmation hearings: namely, Alito's views about congressional and executive power. We were especially troubled by Alito's vote to strike down the federal ban on the possession of machine guns, on the grounds that Congress had not offered convincing evidence of a connection between machine-gun possession and interstate commerce. Indeed, in his hearings, Alito emphasized that, in his view, Congress needs to explicitly identify the effects of its laws on interstate commerce for them to pass constitutional muster. Alito reaffirmed his view that the Supreme Court's 1995 decision striking down the federal ban on guns in schools was a constitutional "revolution"--a development he seemed to view as positive. And he refused to say that all of the Supreme Court's Commerce Clause decisions of the past 50 years are "well-settled precedents," allowing only that "most" of them are settled. Showing little of Roberts's emphasis on the importance of judicial deference to Congress, Alito raised fears that he would join Scalia and Thomas in overturning a host of federal laws. After all, many of the cases upholding congressional power during the last 50 years are arguably inconsistent with the original understanding of the Constitution; and, if Alito is willing to deny Congress the power to regulate machine-gun possession, it's not unreasonable to fear that he might deny Congress the right to regulate drug possession or protect the environment.

So far, I see mostly good news here. As far as I'm concerned, curbing Commerce Clause overreach would definitely a good thing. But a Scalia-type justice denying Congress the right to regulate drug possession? Did the editors at TNR sleep through Gonzales v. Raich?

And then there is executive power. Alito was questioned extensively on his views about the theory of the "unitary executive," which holds that all executive power is vested in the president and cannot be infringed upon by Congress or the courts. Alito had endorsed this theory in the Reagan Justice Department and reaffirmed his support for it as recently as 2000. Perhaps most disturbingly, he did not convincingly explain his enthusiasm, as a Justice Department official, for presidential "signing statements," which an executive can use to record his interpretation of a bill, whether or not that interpretation meshes with the legislature's intent. Bush, for example, is now using a presidential signing statement to argue that the recent congressional ban on torture does not, in fact, prevent the executive from ordering torture in certain circumstances. In a conflict between the president and Congress, nothing in his record suggests that Alito would defer to Congress's explicit wishes. As tnr Legal Affairs Editor Jeffrey Rosen argues this week, Alito might join advocates of unchecked executive power, such as Thomas, who argue that the president can do whatever he likes in the war on terrorism, despite the opposition of Congress and the lower courts. As the Bush administration's rejection of congressional efforts to restrict domestic surveillance and torture suggests, the prospects of an imperial presidency unrestrained by the courts or Congress could be grave.

Although the decision is not easy, our concerns about Alito's lack of commitment to bipartisan judicial restraint compels us to urge Senate Democrats to vote against his nomination. We recognize that this strategy has risks: If the Democrats regain the White House and Republicans retain the Senate, well-qualified Democratic nominees may face an uphill battle when senators feel free to oppose them on the grounds of judicial philosophy alone. But the confirmation process has already become so polarized that we suspect Republicans will oppose Democratic nominees no matter what Democrats do now. Still, we urge Democrats to resist the call of liberal interest groups for a symbolic and self-defeating filibuster, which would prompt Republicans to retaliate by eliminating the filibuster with the so-called nuclear option, ensuring Alito's confirmation while permanently marginalizing Senate Democrats. If the Senate vote takes place more or less along party lines, Alito will be confirmed but Democrats will at least have taken a stand for bipartisan judicial restraint.

If Alito is confirmed, we hope that he proves to be practitioner of restraint rather than a justice in the mold of Scalia and Thomas. But the stakes for the Court are too high, at the moment, for us to vote our hopes rather than our fears.

The second point, I think, is well-taken, and it is echoed by Matt Welch at In particular, Welch points out that Alito's deference to the executive could backfire on some of the conservatives who support him now if the Democrats recapture the White House.

A good rule of thumb when weighing the wisdom of a high-voltage appointment, or fundamental shift in governance, is how that re-balancing of power will affect things when the other team's in charge. Because some other team will be in charge some day, and they will find their own unique opportunities to abuse whatever power they inherit.

George Bush and Dick Cheney have been very deliberately accumulating and building power in the executive branch since taking the oath of office. On just his 10th day in office, Bush let us know that "I am mindful not only of preserving executive powers for myself, but for predecessors as well."

The remark was played up as a comical Bushism—somewhat inaccurately, since he was justifying the decision not to reverse one of Bill Clinton’s pardons. But as we've come to learn, it was a dead-sober glimpse into the core Bush/Cheney governing philosophy of rolling back what the veep recently described as the "erosion of presidential power and authority ... at the end of the Nixon administration."

Says Welch:

[T]he deal-breaker for me was this mealy-mouthed response to Sen. Russ Feingold (D-Wisc.), who is consistently one of the only members of the Judiciary Committee to approach nomination hearings with the seriousness they warrant:

SEN. FEINGOLD: But it is possible under your construct that an inherent constitutional power of the president could, under some analysis or in some case, override what people believe to be a constitutional criminal statute. Is that correct?

JUDGE ALITO: Well, I don't want to—I don't—I want to be very precise on this. What I have said—and I don't think I can go further than to say this—is that that situation seems to be exactly what is to fall exactly within that category that Justice Jackson outlined, where the president is claiming the authority to do something, and the thing that he is claiming the authority to do is explicitly—has been explicitly disapproved by Congress. So his own taxonomy contemplates the possibility that—he says that there—this—there is this category, and cases can fall in this category, and he seems to contemplate the possibility that that might be justified.

But I'm not—I don't want to even say that there could be such a case. I don't know. I would have to be presented with the facts of the particular case and consider it in a way I would consider any legal question. I don't think I can go beyond that.

I don't feel comfortable with a Supreme Court unclear on the notion of whether the president can legally break the law; the existence of such a deferential bench is a standing invitation for Bush and his successors to do just that.

Today these crimes will be justified in the name of being "serious about fighting the war"; tomorrow they will be justified in the name of being "serious about protecting our children." Which is why yesterday is almost too late to finally begin showing some seriousness about protecting the constitutional liberties that neither of the major political parties respect when they hold the keys to the White House.

I think Alito's confirmation, at this point, is pretty much an inevitability. And maybe Welch is overreacting. But at the very least, it's something to think about. And, I would say, to worry about as well.

What real media bias looks like

At, the Cato Institute's David Boaz examines interesting inconsistencies betwen the press coverage of the Ruth Bader Ginsburg Supreme Court nomination in 1993 and the Samuel Alito nomination today:

In the past three months, the major media have repeatedly hammered away at the theme that Judge Samuel Alito Jr. would "shift the Supreme Court to the right" if he replaced retiring Justice Sandra Day O'Connor.

According to Lexis/Nexis, major newspapers have used the phrase "shift the court" 36 times in their Alito coverage. They have referred to the "balance of the court" 32 times and "the court's balance" another 15. "Shift to the right" accounted for another 18 mentions.

Major radio and television programs indexed by Lexis/Nexis have used those phrases 63 times. CNN told viewers that Alito would "tilt the balance of the court" twice on the day President Bush nominated him. NPR's first-day story on "Morning Edition" was headlined "Alito could move court dramatically to the right."

.... [N]ote the contrast to 1993, when President Bill Clinton nominated the liberal Ginsburg to replace conservative White. White had dissented from the landmark decisions on abortion rights in Roe v. Wade and on criminal procedure in the Miranda case, and he had written the majority opinion upholding sodomy laws in Bowers v. Hardwick. Obviously his replacement by the former general counsel of the ACLU was going to "move the court dramatically to the left."

So did the media report Ginsburg's nomination that way? Not on your life.

Not a single major newspaper used the phrases "shift the court," "shift to the left," or "balance of the court" in the six weeks between Clinton's nomination and the Senate's ratification of Ginsburg. Only one story in the Cleveland Plain-Dealer mentioned the "court's balance," and that writer thought that Ginsburg would move a "far right" court "toward the center."

The only network broadcast to use any of those phrases was an NPR interview in which liberal law professor Paul Rothstein of Georgetown University said that Ginsburg might offer a "subtle change...a nuance" in "the balance of the court" because she would line up with Justice O'Connor in the center.

No one thought that some momentary balance on the Court had to be preserved when a justice retired or that it was inappropriate to shift the ideological makeup of the Court. ...

For another striking contrast, take a look at The Washington Post's respective headlines on the days the two judges were nominated. For Ginsburg:

"Judge Ruth Ginsburg Named to High Court; Clinton's Unexpected Choice Is Women's Rights Pioneer"

"A Mentor, Role Model and Heroine of Feminist Lawyers"

"Nominee's Philosophy Seen Strengthening the Center"

For Alito:

"Alito Nomination Sets Stage for Ideological Battle; Bush's Court Pick Is Appeals Judge with Record of Conservative Rulings"

"With a Pick from the Right, Bush Looks to Rally GOP in Tough Times"

"Comparisons to Scalia, But Also to Roberts"

"Judge Participated in 2002 Vanguard Case Despite Promise to Recuse," and "Alito Leans Right Where O'Connor Swung Left"

Despite the Post's claim that Ginsburg was a centrist, she has in fact been a consistently liberal vote on the Supreme Court. Research by Richard J. Timpone, director of the Political Research Laboratory at Ohio State, finds that she is the most liberal member of the Court on economic issues and virtually tied with Justices John Paul Stevens and Steven Breyer on civil liberties.


The issue is not Ginsburg's record, but the media's notion that the Supreme Court exists in some sort of delicate balance which will be upset by the introduction of a conservative justice. The Senate has every right to consider whether Judge Alito will be too conservative, too accommodating to executive power, or too dismissive of discrimination claims. But the Supreme Court's current ideological makeup is not divinely ordained, and we should stop wringing our hands over whether he will "shift the court" in some direction.

Is this an example of media bias? I would say so.

This, in fact, is the way in which liberal media bias typical plays itself out. Not ignoring or even defending a possible domestic surveillance program under Clinton while aggressively pursuing evidence of a supposedly similar program under the Bush administration (a scoop is a scoop no matter whose side you're on), but acting on the unspoken assumption that a shift in the ideological makeup of the Supreme Court is something to worry about if it's a shift to the right.

Regardless of where one stands on the Alito nomination, David Boaz has an excellent point.

Thursday, January 19, 2006

How not to fight PC on campus

A group of Republican UCLA alumni, determined to expose left-wing extremism at the university, is offering students up to $100 per class for documented evidence of bias in the classroom (such as notes or taped recordings). In response to this tactic, two of the group's board members, including my friend Stephan Thernstrom, the Harvard historian, have resigned from the group's board. According to the Los Angeles Times:

Thernstrom said he joined the alumni group's more than 20-member advisory board last year because he believed it "had a legitimate objective of combating the extraordinary politicization of the faculty on elite campuses today."

Still, Thernstrom said, "I felt it was extremely unwise, one, to put out a list of targets of investigation and to agree to pay students to provide information about what was going on in the classroom of those students. That just seems to me way too intrusive. It seems to me a kind of vigilantism that I very much object to."

Generally speaking, people do not like paid snitches. But even aside from the questionable tactic of paying students for dirt on professors, there's also the issue of what the group regards as radical.

John Cole writes:

I don’t have a problem with identifying and criticizing those who use their lectern as an opportunity to berate, belittle, or otherwise abuse students. I don’t really have a problem with accountability and having outside groups look into whether or not professors are abusing their positions. But what I do fear are the kinds of kids who are going to keep Andrew Jones and his group in business. They are the kid who sat in every class with you and loudly and annoyingly recited something he heard on Rush Limbaugh, thinking this showed the professor was a left-wing crank. This is, I am betting, the kid who screamed bias because the teacher seemed to spend more time looking to the left side of the class than the right, or the kid who saw bias because the professor refused to call 1992-2000 the “Dark Years.”

I saw Adam Jones, the head of the group, on "Hannity & Colmes" last night, and I can tell John Cole that he would win his bet. (You can watch a clip here.) When asked for specific instances of professorial misconduct, Jones talked about how Ramona Ripston, executive director of the Southern California chapter of the ACLU (which, to the Hannitized, is of course an automatic marker for Evil with a Capital E -- kind of like mentioning Dracula) was asked to teach a class at the university and taught it in a "one-sided" manner, and his complaint about it was not treated very seriously.

More about the group's grievances can be found in this informative post by David Schraub at The Debate Link. Most of these grievances seem to focus not on actual classroom bias or mistreatment of students, but on faculty members' political views (such as opposition to the war in Iraq or support for affirmative action) and off-campus activities. And there's some downright bizarre stuff, too. One professor is denounced for being too critical of the Japanese-American internment:

Kang's strange preoccupation with this historical footnote is in defiance of all reasonable history. Kang was born in South Korea, a country that (in its original undivided form) suffered for 50 years under a harsh imperial Japanese occupation. Moreover, South Korea was a country saved from Communist despotry by the United States not less than a decade after our brief use of Japanese internment camps.

As Schraub notes:

Of course, calling the Japanese internment a "historical footnote" might be the most radical thing I've read today. But more importantly, the implication that a "good" Korean should just laugh at American injustice toward other Americans (of Japanese descent) is both morally appalling, and gives lie to their self-proclaimed support for treating individuals as individuals, and not markers for their specific ethnic group.

More from Professor Bainbridge and Eugene Volokh.

John Cole writes:

[W]hile I have no problem with an honest acounting of what professors are doing, and I have no doubt that there are, by any standard, some radicals at UCLA, I am afraid a bunch of little David Horowitz’s are not the folks I want rooting them out.


Meanwhile, in case you've missed the news, "big" David Horowitz has a bit of egg on his face. Last week, a Pennsylvania legislative committee was holding hearings on the Academic Bill of Rights, which Horowitz has been pushing as a means to rectify political bias and indoctrination in academia. (While a lot of the bill consists of unobjectionable declarations of the principles of openness and not punishing students for dissenting viewpoints, it also contains provisions that could penalize professors for expressing their political views in class or failing to include enough diverse viewpoints -- which is open to a lot of potentially troubling interpretations.) According to InsideHigherEd:

[A]s hearings ended in Philadelphia Tuesday, critics of the Academic Bill of Rights were saying that they had scored key points. David Horowitz, the conservative activist who has led the push for the hearings in Pennsylvania and elsewhere, admitted that he had no evidence to back up two of the stories he has told multiple times to back up his charges that political bias is rampant in higher education.

In an interview after the hearing, Horowitz said that his acknowledgements were inconsequential, and he complained about “nit picking” by his critics. But while Horowitz was declaring the hearings “a great victory” for his cause, he lost some powerful stories. For example, Horowitz has said several times that a biology professor at Pennsylvania State University used a class session just before the 2004 election to show the Michael Moore documentary Fahrenheit 9/11, but he acknowledged Tuesday that he didn’t have any proof that this took place.

In a phone interview, Horowitz said that he had heard about the alleged incident from a legislative staffer and that there was no evidence to back up the claim. He added, however, that “everybody who is familiar with universities knows that there is a widespread practice of professors venting about foreign policy even when their classes aren’t about foreign policy” and that the lack of evidence on Penn State doesn’t mean there isn’t a problem.

“These are nit picking, irrelevant attacks,” he said.

Others think that it’s quite relevant that Horowitz couldn’t back up the example, especially since there have been previous incidents in which his claims about professors have been debunked.

The other example Horowitz was forced to back down on Tuesday is from the opposite end of the political spectrum. He has several times cited the example of a student in California who supports abortion rights and who said that he was punished with a low grade by a professor who opposed abortion. Asked about this example, Horowitz said that he had no evidence to back up the student’s claim.

In the interview, he said that he didn’t have the resources to look into all the complaints that he publicizes. “I can’t investigate every story,” he said.

Horowitz noted that when he publicizes such stories, he does not print the names of the professors involved, and that he has stated many times that a professor involved in such an incident would be welcome to write a rebuttal that he would post on his Web site. “I have protected professors. I have not posted their names and pilloried them. My Web site is open to them,” he said.

Even if these examples aren’t correct, he said, they represent the reality of academic life.

I love the "fake but accurate defense," amusingly reminiscent of some classic arguments I recall hearing on the left: it doesn't matter whether Tawana Brawley was actually raped or not, because, you know, everybody knows that young black women get raped and abused by racist white cops.

(By the way, see the post by Clifton Snider in the comments section on the article for an example of Horowitz, apparently, falsely targeting a professor -- by name -- as a political bully in the classroom.)

Is it a problem that academia tilts so heavily to the left? Yes, it is. Is left-wing political correctness and speech suppression on campuses a problem? Yes, it is. (And it's too bad that when the American Historical Association voted recently to condemn the "Academic Bill of Rights" as an infringement on academic freedom, it declined a proposal to simultaneously condemn campus speech codes.)

But David Horowitz is clearly not part of the solution. Rather, he is a discredit to his cause.

For an example of how how to really fight for academic freedom, look at the Foundation for Individual Rights in Education (FIRE), co-founded by University of Pennsylvania professor Alan Charles Kors and Boston civil rights attorney Harvey Silverglate. FIRE is scupulously and genuinely non-partisan, defending professors and students who are penalized for expressing any unpopular views, left or right, or prevented from freely expressing such views on campus. And it is equally scrupulous in its fact-checking. Oh, and it doesn't pay anyone to snitch, either.

Off the plantation

Last night on Fox News' "Hannity & Colmes," amidst fulminations against Hillary Clinton's "the House is run like a plantation" remark, the hapless Alan Colmes repeated asked how it was different from Newt Gingrich's rather similar 1994 comment ("Since they [the Democrats] think it is their job to run the plantation, it shocks them that I’m actually willing to lead the slave rebellion"). Dick Morris brushed him off with a dismissive accusation of reciting talking points off Hillary's faxes (which really seemed to get under Colmes' skin, and I don't blame him). Larry Elder at least took the question seriously, and stressed that the big difference was Hillary's line, "And you know what I'm talking about!" which, addressed to a black audience, clearly had an implication of, "The Republicans who run the House are racist bigots."

At first I thought that Elder was reaching for excuses; now I think that he has a point, but he should have made it better. And he should have been much tougher on his comrades-in-arms on the right who have used plantation metaphors to score political points.

Robert George comments:

First, as a quick aside, the left is really stretching in claiming that Gingrich's comments are the same as Hillary's. Not to defend a former boss, but the context here matters: He said those words in the course of a Washington Post profile of the man identified as the likely next Speaker of the House. If the context is about the majority abusing its powers when running a legislative body, then the partisan analogy holds.

But -- important difference. He was not speaking to a black audience -- or even obliquely referring to one; there was not an implicit racial connotation to his words. Yes, talking about plantations usually conjures up images of American slavery, but referring to oneself as the "leader of the slave rebellion," one could be referencing Spartacus as much as anything.

Hillary, on the other hand, made a clear -- "and you know what I'm talking about" line to a black audience. I'm actually a little surprised that those on the left whose eyes were raised when Ross Perot made reference in 1992 to "you people" when speaking to a Southern black audience, didn't find Hillary's implied "you people" just a little it pandering.

But conservatives don't get a free pass on this. I don't know who started it -- though this was an early entry -- but too many on the right have adopted the "plantation" language as a favorite trope in trying to dislodge minority (particularly African American) allegiance to the Democratic Party. It matters little whether those comments have come from black conservatives or white conservatives (or Latino conservatives), it is inherently insulting and counterproductive to the very principle that the writer is advocating.

It's very difficult to convince someone of the validity of your argument by suggesting that continuing to vote for the other party is evidence of a slave-like mentality. Invite individuals over with the power of your positive arguments, not by trashing the "family" that they have been part of for large segments of their lives. In short, suggesting that blacks have a plantation mentality for continuing to support Democrats -- and then expecting them to support Republicans -- makes about as much sense as trying to convince a Republican to switch parties because, well, "the GOP are Nazis."

It's actually worse really.

The plantation rhetoric is the manipulation and exploitation of American racial tropes that are better of dead and buried. Yes, the left-wing will often use it against black conservatives. (We've been down that road before; no need to dredge all THAT fun stuff up again.) But that is hardly an excuse. This country will never move beyond its history until it decides to leave noxious racial references dead and buried -- especially on King's birthday.

I think Robert's a leetle too easy on Newt; when you're talking about plantations and slave rebellions, in an American context, it's pretty clear you're not talking about Spartacus. But other than that, I think Robert's comments are right on the money, and I don't have much to add to this except to say, "Right on!" I will add, though, that the demagoguery of HRC's speech is amplified by the fact that she made it not only to an African-American audience in Harlem, but also on Martin Luther King Day. In this sense, the analogy to Newt's comment in the Washington Post interview is a bit thin.

The left and the wrath of God

As we all know by now, New Orleans Mayor Ray Nagin has apologized for his Martin Luther King Day remarks in which he said that Hurricane Katrina was God's punishment to America for "being in Iraq under false pretenses" (among other things), and that the Almighty also wanted New Orleans to be "a majority-African American city" after rebuilding.

In the brouhaha over Mayor Nagin's foray into Pat Robertson-land, there has been hardly any discussion of the larger issue: the fact that religiously charged rhetoric, even the rhetoric of religoius zealotry, can be found on the left as well as the right, among Democrats as well as Republicans -- particularly Democrats speaking to the African-American community, in which politics and faith have traditionally had a close relationship. Think of Jesse Jackson, back in 1992, likening Dan Quayle to King Herod and Mary to a single mother on welfare. Or take a look, for instance, at this October 2004 Washington Post story about John Kerry's campaign stop at a black church in Miami:

Congregants waved fans emblazoned "People of Faith for Kerry-Edwards." Kerry smiled after former U.S. representative Carrie Meek (D-Fla.) said he is "fighting against liars and demons."

Kerry, who has compared Bush to those in the Bible story who ignored the wounded man before the Good Samaritan helped him, joked about the risk of being upstaged by Jackson and Sharpton. He said he didn't mind because "God's speaking here today, and we're going to listen."

The minister, the Rev. Gaston E. Smith, endorsed Kerry, saying, "To bring our country out of despair, despondency and disgust, God has a John Kerry."

When a conservative minister says this kind of thing about George W. Bush, it's widely taken as a sign that America is sinking into a Dark Age of religious fanaticism. Somehow,
the rhetoric of the "religious left" -- aside from an over-the-top rant like Nagin's -- is not met with the same condemnation.

Wednesday, January 18, 2006

The assisted suicide ruling

The Supreme Court has ruled, quite properly in my view, that the federal government does not have the authority to block the Oregon state law permitting physician-assisted suicide by prosecuting doctors who prescribe lethal doses of federally controlled drugs (Gonzales v. Oregon).

Much of the discussion of the ruling has focused on the dissent by Antonin Scalia, who wrote:

The prohibition or deterrence of assisted suicide is certainly not among the enumerated powers conferred on the United States by the Constitution, and it is within the realm of public morality (bonos mores) traditionally addressed by the so-called police power of the States. But then, neither is prohibiting the recreational use of drugs or discouraging drug addiction among the enumerated powers. From an early time in our national history, the Federal Government has used its enumerated powers, such as its power to regulate interstate commerce, for the purpose of protecting public morality--for example, by banning the interstate shipment of lottery tickets, or the interstate transport of women for immoral purposes. ... Unless we are to repudiate a long and well-established principle of our jurisprudence, using the federal commerce power to prevent assisted suicide is unquestionably permissible. The question before us is not whether Congress can do this, or even whether Congress should do this; but simply whether Congress has done this in the CSA [Controlled Substances Act]. I think there is no doubt that it has. If the term "legitimate medical purpose" has any meaning, it surely excludes the prescription of drugs to produce death.

John Cole, Bill at INDC Journal, and Publius (among others) feel that this is a hypocritical position on Scalia's part, considering his invocation of federalism and state's rights and his opposition to Commerce Clause overreach in cases like United States v. Morrison. Baseball Crank at disputes this charge:

This misunderstands the role of the Court and the role of enumerated powers. First, as Scalia noted, this is a long-settled doctrine, and nobody in the case was calling to overturn it. Even Justices who think that we may properly revisit long-settled Constitutional doctrines are usually hesitant to do so without any party to the case asking them to. All Scalia was doing here was assuming that Congress legitimately intended to legislate for this purpose, given 100+ years of history saying it could.

More to the point, there is a big difference between saying that Congress (or another branch of government) can go beyond its enumerated powers, and saying that Congress can act within those powers for unenumerated purposes. Here, we have the latter -- there is no question that the drugs involved in this case traveled in interstate commerce, and even Scalia is unlikely to sign on, at this late date, to a sufficiently cramped view of the commerce power to find that Congress can't regulate the use of goods shipped in interstate commerce; that battle was lost 70+ years ago.

As for the VAWA comparison, Crank writes:

... the Court in that case found an absence of proper basis for the commerce power in the first instance - i.e., an insufficient nexus between interstate commerce and domestic violence - rather than creating an affirmative rule repealing the commerce power, even when otherwise applicable, based upon the intended use of that power.

It is worth noting that the other regulated "immoral" activities Scalia cites actually do involve crossing state lines. By contrast, in physician-assisted suicide, the medicines cross state lines at some point, but their use occurs strictly within a single state. Using this kind of logic, one could argue that violence against women was a proper subject for congressional legislation under the Commerce Clause if either the victim or the perpetrator had crossed a state line at some point in their lives.

More to the point, the majority opinion by Justice Anthony Kennedy makes a very strong case that the CSA was intended to prohibit the illicit use of drugs related to addiction and recreational use, and not physician-assisted suicide. It may seem odd to describe assisted suicide as "legitimate" medicine, but it seems pretty clear that under the CSA "legitimate" means simply related to a medical purpose (rather than recreation, drug habit, or profit).

Do Scalia's own moral views influence his perception of what constitutes "legitimate medical purpose" or where the Commerce Clause may be legitimately applied? It's hard to avoid such a conclusion, considering that Scalia's opinions are so often colored by his personal views on such issues. Take Scalia's dissent in Lawrence: unlike Clarence Thomas, he did not simply argue that anti-sodomy laws were constitutionally permissible, but clearly didn't see anything particularly wrong with such laws.

Meanwhile, Thomas's separate dissent in Gonzales focuses on the contradiction between the majority opinion in this case and in Raich, the medical marijuana case, in which Thomas was also a dissenter. I agree with Thomas about the court's inconsistency (surely there is an irony somewhere in the Supreme Court saying that a state can't legalize medical marijuana but can legalize assisted suicide!), but it's disappointing that he chose to express his protest by writing an opinion that, in turn, is inconsistent with his own stance in Raich.