Federalists Chapter IV – Return of the Fedi.

“And I looked, and behold a pale horse: and his name that sat on him was Death, and Hell followed with him. And power was given unto them over the fourth part of the earth, to kill with sword, and with hunger, and with death, and with the beasts of the earth.”
In other words, I heard John Ashcroft speak during Day Three of the Federalist Society Convention: Or How I Learned to Love The Legal Culture War and Start Blogging It.
Sorry about the delay folks. Holy Mother of God, I’ve had the worst cold ever. This has been more like a severe sinus infection, with massive ropes of snot shooting out of my face holes, every time I breathed. More like pnuemonia of the head, than a common cold.

I can’t even describe the misery I’ve been in. Since I’m tougher than leather, and dumber than the cows it comes from, I stuck it out at work. Ever sat through a meeting with government regulators, with your ears plugged completely shut? I assure you, it’s no worse than sitting through the same meeting with your ears wide open – that is, utterly excruciating. Really, it’s been that bad. I don’t know how to describe it when the room spins, and I haven’t even been drinking. Have you ears ever run the way your eyes do when you cut onions? That’s been me the last couple days.
I was both back at work, and able to hear my co-workers today, and a couple of them told tales about having this selfsame cold. So if you get it, batten down the hatches folks. I shit you not, it’s the worst thing this side of malaria. Unbelievable a cold can make you feel that bad, but there it is.
Fortunately, I was healthy for the last day of the Federalist Society convention, last Saturday, and I’m on the upswing today. So here’s a rundown on Saturday.
The first event was a speech by John Ashcroft, a.k.a. the Attorney General, a.k.a. the cloven hoofed beast.
First impression? Um, he’s a straightforward, God-fearing chap, with a good heart, lot of brains, a lot of integrity, and a tin ear for politics outside the Ozarks. He’s a guy I wouldn’t mind working for, even though I might not agree with him all the time. Yep, he comes across as likeable. I even checked for cloven hooves, horned protrusions from the skull, a fuzzy tail and goat droppings, and found none. Not even a nauseating sulfurous stench… though the fat guy from The Financial Times next to me was wearing a bit too much Drakkar, but that doesn’t count. So perhaps all our theories about Mr. Ashcroft’s infernal origins are wrong…
The speech appeared to be his standard stump speech in support of the PATRIOT Act and DOJ’s actions in the wake of 9/11. He talked about the hysteria of the critics, and cited Senator Diane Feinstein’s statements from the Washington Post a few weeks ago. She had a staffer call the ACLU to find out what these horrible allegations of abuses of rights under PATRIOT were – and they had none. Hard to beat that for a defense.
But what about the proliferation of government power and laws?
The A.G. argued that contrary to infantile libertarian thinking, sometimes laws can make you more free. As an example, those who live in lawless lands are slaves to rapists, robbers and murderers; but if you pass and enforce laws against those things, the people protected by the laws are suddenly free to live without being raped, robbed and murdered; and they are free of the fear of those things. Ergo, PATRIOT + the absence of major attacks since 9/11 helps us be free from terrorism and fear. That makes sense up to a point – it’s an attractive argument, but I’m not sure that it carries the day because it is an open-ended argument lends itself to statism in our modern regulatory state. The more laws we have pushing security, the safer we’ll be from attack – but at some point we would have no freedom of action whatsoever. So it’s an argument that works best when that center mass of the law is fairly moderate, as it is now.
On the other side of the coin, it’s a supremely successful political argument – look Ma, no attacks! This will fly with a lot of folks who don’t pay very close attention to civil liberties issues; even Ashcroft boosters have serious questions. Ashcroft’s argument on the merits was pretty strong; he cited specific ways that the Act merely extended normal law enforcement techniques to terrorism investigations, resulting in the breakup of terror cells in Portland, Seattle, Detroit, Buffalo and Alexandria VA; and in the arrest and last week’s plea of a truck driving Al Qaida target spotter. Okay, Ashcroft 7, ACLU 7, a couple minutes before halftime. We’ll have to see how the rest of the game plays out.
The other thing Ashcroft said that was really profound was that the guarantee in the Constitution of freedom isn’t the guarantee that we’ll be happy, or that we’ll have total freedom of action. It’s a guarantee that we will be free to make consequential choices – that we can make choices about how we live, but these choices come with costs, duties, rights and privileges. It’s a more complex version of freedom than the porno & pot libertarianism a lot of folks espouse as complete freedom. Hmmmm… freedom of consequential choices.
The panel following the A.G.’s speech was more interesting.
Mary Beth Buchanan, the U.S. Attorney for the Western District of Pennsylvania said that the civil liberties concerns over PATRIOT were overblown. A few measures might be called into question, but for the most part, it gave law enforcement agents the ability to keep up with evolving technological and terrorism challenges. Spoken like a true prosecutor, with ongoing investigations in her district, thought I.
Morton Halperin, a liberal Olde Washingtone Hande, made a bunch of disingenuous attacks.
At the outset and quite revealingly, he kept calling the executive branch “the government” – as in “the government said…” and “the government arrested…” and “the government charged…” I think this shows and interesting view of presidential power, and one quite at odds with Constitutional reality – the idea of President and agencies as all conquering hero, as if the courts and Congress had no stake in things.
Halperin then turned to the Guantanamo detainees, arguing that they had been denied due process. He stated the patently absurd proposition, that the U.S. Constitution is at all times and all places applicable – so the Gitmo detainees deserved at least a court hearing (individualized hearing, I presume) to determine their detention status, and that a denial of such hearing is further a violation of the Geneva Convention.
As for status hearings, I have reason to believe those are granted – hence the ongoing repatriation of detainees who claim no Al Qaida involvement. We’re down to 650 detainees, from a high of 1500. As for court hearings – the detainees are quite lucky that I am not president. Were I president, they would receive the customary and usual treatment meted out under the Geneva convention, for those found wandering around the battlefield in civilian clothes, acting as rabble and bearing arms. That is, summary court martial and likely execution as spies and saboteurs, or looters.
In contrast, Halperin would grant courts general jurisdiction over anybody seized on the battlefield – a tragicomic standard for troops to abide by. “Hey, Hadji, drop the RPG. You got the right to remain… “BLAM!”
But when you are a doctrinaire liberal, I suppose there’s no reason to let the harsh realities of life color your world view. Sorry, as usual, I digress.
Lest you think the Federalists are lock-step Bush backers, Halperin then scored a direct hit that got heads nodding all around the ballroom. He argued that Danny Padilla, the alleged dirty bomber who is being held incommunicado in a Norfolk Navy brig, is entitled to a hearing. He pointed out that DOJ’s position on Padilla is untenable; Padilla is an American, captured on American soil, held in an American facility on American soil. He therefore has, at a minimum, a right to habeas corpus – a judicial hearing to determine if he may legally be held. Halperin argued further that Padilla’s habeas right has been denied by DOJ’s policy of holding him incommunicado.
The facts bear this out. Padilla has had no contact with an attorney or his family, or anyone else other than (presumably) interrogators. A lawyer has filed a habeas petition on his behalf, but he has done so without contact with Padilla, which has been denied. As Halperin points out, DOJ now argues that the habeas petition should be dismissed, since it wasn’t filed in the customary way, by Padilla himself.
After a bit of back and forth, former DOJ Criminal Division deputy chief Alice Fischer, now a partner at Latham & Watkins, agreed that (a) Padilla can’t talk to anyone, or send letters, or communicate in any way; and (b) a lawyer has filed a habeas petition on his behalf, in spite of never having talked to him. She also stated that DOJ has moved to dismiss, on the grounds that (1) the existence of Padilla’s habeas petition in federal court proves he can exercise his habeas right, so the right wasn’t denied; and (2) Padilla didn’t file the habeas petition himself, so it’s not filed in the customary way and it must be dismissed.
Does this strike anyone else as excessively cute? The standard I would point to would be the standard applied in the WWII German saboteur cases – ex parte Quirin, I believe. In those cases, American citizens working as saboteurs for the Germans landed via submarine to wreak havoc. When they were captured, the Roosevelt Administration attempted to classify them as saboteurs, court martial them and execute them. Yet the courts granted them hearings to determine if the classification was proper, on a habeas basis I believe – and then found the Executive Branch had the power to hold them and dispose of them during wartime.
It also stuck CATO’s Bob Levy as excessively cute. He pointed to this as the worst abuse of power by DOJ in the entire post- 9/11 period. Levy thought the Yasser Esam Hamdi case – the guy who was born in Louisiana, but taken to Yemen as a 5 month old, and captured in Afghanistan – was a totally different situation since he was captured on the battlefield, and citizenship was thus irrelevant. Levy also made the interesting suggestion that we ought to be applying ethnic and religious profiling in transportation security operations – noting that either religion or ethnicity plus religion was present in all the Al Qaida affiliates. Levy is a very serious guy, and he’s a staunch libertarian worth listening to on these debates – he knows theory and believes in it, but knows we’re at war too.
The second panel was on non-governmental organizations and their usurpation of sovereignty, through hijacking of the UN process. When you look at the Rio declarations that led to Kyoto, and you notice the declarations are extreme, consider that it was written essentially by Earth First and Greenpeace, who were savvy enough to send dozens of staffers to patiently sit through hundreds of hours of UN deliberations; to volunteer work product, and to shout down opposition at meetings. The upshot of the discussion was that if conservatives want to keep the UN and other consensual international bodies from getting hijacked by lefty wackos, conservative non-profits need to step up, and put some butts in some seats at some conferences. The team can’t win if it leaves the field at halftime.
Stephen Rickard, of Freedom Investment Project and formerly of Amnesty, also made a really good point about the rhetoric conservatives use in the debate. Assuming that a lot of humanitarian non-profits do a lot of good work in the world – and I sincerely believe that they do – conservatives should avoid using rhetoric that can be used to undermine legitimate NGOs. As an example, he pointed to some rhetoric by somebody at a conservative think tank, perhaps Heritage, saying that something Amnesty did was illegitimate and undermining the lawful government. He then pointed out that Robert Mugabe used nearly identical language to slander Amnesty’s invaluable efforts in calling attention to the abuses in Zimbabwe. Not only does this devalue the work that Amnesty does, but it gives beasts like Mugabe political cover to harm or kill human rights workers. Rickard was right – we should be precise in our criticism, and if we do it publicly, avoid overbroad rhetoric. Human rights ain’t a game folks, words matter here.
The final panel I sat in on was a debate, more or less about affirmative action. The fellow from Duke who was supposed to tell us how great the University of Michigan affirmative action cases were, failed to show. Brian Jones, General Counsel for the Department of Education, was the consummate professional and said nothing of consequence, as any good lawyer and faithful political appointee in his contentious position would do. Professor Gail Heriot of the University of San Diego Law pointed out that every time our society draws lines on the basis of race, we come to deeply regret it some years later. Therefore the fuzzy discrimination permitted under Grutter would be something we’ll all regret, in some years.
The best commentary came from Ralph Boyd, who was recently freed from voluntary servitude as the Deputy Attorney General for Civil Rights – so he could speak his mind. He noted the irony – the stated rationale for racial preferences in schools, claimed by Michigan, Columbia, Harvard, and the top schools in the country, is viewpoint diversity. Yet the schools don’t test for viewpoint diversity – they test for racial diversity. And racial diversity is supposed to yield up viewpoint diversity on issues of race. So instead of using race as a proxy for viewpoint on race, why not test for attitudes about racial matters, instead of using a constitutionally suspect classification – race? Um, unless you really don’t care about viewpoint, and you actually think skin color is what matters… [ed. – but I’m sure the good liberal folks at Michigan, Columbia, Harvard and so forth don’t think feel that way. Right? Right? Hello? It’s empty in here…]
Boyd also pointed out that there is some room for enforcement under the decisions – if you take the Court at its word, schools must try to find racially neutral ways to arrive at a racially diverse student body, before resorting to preferences. Since schools are federally funded, the federal government could enforce this decision under Title VI, a federal civil rights statute that says schools receiving federal funds can’t discriminate on the basis of race, among other things. But that would take some political willpower to do – never mind the fact that 85% of the American people are in favor of race neutrality. It would take willpower to overcome the noisy 15% – less than half of which is Black or Hispanic; more than half of which is White, well educated and liberal as all getout.
Worse, he said, the beneficiaries of racial affirmative action aren’t poor kids. They are overwhelmingly middle to upper middle class kids. The real crisis, he said, is in the achievement gap between poor Black children, and other kids. The deficit starts early; part of it is due to cultural factors, as pointed out by Johnathan Ogbu and Thomas Sowell; but part is due to failing schools, obdurate teacher’s unions, and low expectations. And that’s where the racial preferences problem has to be addressed.
Shades of No Child Left Behind…
So that was it, in a nutshell. I sat through lunch, with a delightful Cordon Bleu, and a nice puddingy thing, both of which had the same sponge-y texture of Judge Patricia Wald’s justifications for using speculative commentary on international law as a basis for judicial decisions here in the ‘States…
Yeah, and that’s where it lost me too. I left, felled by rhinovirus; went home, and went to bed, where I laid for three days dreaming textualist dreams, and dancing about dreamland like… ahh, I was going to say “the plaintiffs in Lawrence v. Texas but I’m not going to go there. More on that this week, or maybe next.