Senator McCain's Eligibilty to Hold Office in Question?

The New York Times reports this morning on an interesting issue that could potentially, but is not likely to, affect the current Presidential election. The question has arisen as to whether John McCain, likely to be the Republican nominee for President, is eligible to hold the office of President. As Senator McCain was born in the Panama Canal Zone, there is an issue as to whether he is a “natural born citizen” pursuant to the Constitutional requirements for the office.

Senator McCain was born in 1936 in the Panama Canal Zone on a military installation while his father was assigned there as a Navy officer. Accordingly, his official birthplace is the Panama Canal Zone, and not one of the fifty states constituting American soil. However, Senator McCain and his campaign staff are assured that he is still eligible. According to his advisers, Senator McCain’s qualifications were first examined in 1999 when he first sought to run for President; the issue was reviewed again prior to his current campaign. Both times, McCain’s advisers came to the conclusion that he was eligible to run.

In support of McCain’s qualifications, Senator Lindsey Graham says he does not understand how “the son of a military member born in a military station could not run for president.” By declaring McCain as ineligible to run, Graham states that “[i]f that becomes a problem, we need to tell every military family that your kid can’t be president if they take an overseas assignment.”

Many feel, as I do, that McCain is in fact eligible and that his campaign for President will be continued. However, as many of the scholars quoted in the article state, there has never been a definitive answer to such an issue. Even though the issue had been raised in previous campaigns, no ruling was ever required either due to the fact that the issue became moot due to the questioned candidate not winning or due to the fact that allegations were based merely on rumor and never pursued. As such, until some ruling or amendment is provided, the question will remain.

Further, as the article states, this situation is much different than the case of Arnold Schwarzenneger, who was born in Austria. Senator McCain holds no other citizenship outside of the United States; his citizenship was established by statute, not through the naturalization process through which Governor Schwarzenneger obtained citizenship. For some, the fact that McCain was born a citizen, rather than later in life having become a citizen, may prove to be a deciding line in determining his eligibility.

The issue here becomes interesting, not just for this election but also for future elections. As Senator Graham indicates, a disqualification of Senator McCain from holding the office of the President would set precedent against any child born on any military base not on U.S. soil from one day running for President. If the Constitution is read literally, only those born within the fifty states would ever be eligible, even though those born on these military installations were there solely due to orders from the U.S. government.

Having no political affiliation with either party, I feel that declaring Senator McCain ineligible from holding the office of the President, while perhaps being a literal interpretation of the Constitution, would not be within the original intention of the Constitution. It is my opinion that the drafters of the Constitution intended to prevent those born in other countries with foreign citizenship, not persons born as U.S. citizens (whether born on U.S. soil or on military installations), from running for President. The drafters of the Constitution could not have planned for all future issues; times have changed and the U.S. presence overseas has obviously increased. Having the ability to look at this subject in the present, it seems that it is time to fully address this question and provide definitive answers for Senator McCain and for others in the future who may face similar issues.

In Brief: RIP Larry Norman and Rightward Bound

--Paste staff writer Andy Whitman has a very good obituary for Larry Norman, the pioneer Christian rock artist who died Sunday of heart failure at 60. So also does Chris Willman for Entertainment Weekly. My familiarity with Norman is limited, but I know Whitman and Willman are making valid claims about his historical significance. He was Christian contemporary music before it (or the Christian music industry) even existed, and 1969’s Upon This Rock was definitively the first album of its kind. Even when Only Visiting This Planet came out in 1972, evangelicals were only just beginning to build a grassroots industry for Christian folk, rock, and gospel—albeit one that, unlike Norman, remained separate from “secular” music. It wasn’t until later in the decade that Christian music began to merge with mainstream labels and became a highly profitable enterprise.

In the DVD extra scenes section of the documentary Why Should the Devil Have All the Good Music?, there is a clip of Norman during a question-and-answer session at Cornerstone from earlier this decade. The clip is only a few minutes long, but he talks about playing with numerous classic artists during the late ‘60s and early ‘70s—Janis Joplin, Buffalo Springfield, and so forth. This includes the claim that Pete Townshend listened to Norman’s mini-rock-opera “The Epic” and became inspired to write his own rock-opera, which later became 1969’s Tommy. As Whitman writes, Norman was “prone to fanciful tales that bore little or no relationship to the truth,” and this is likely an example. He was also rather paranoid, and (if I remember correctly) was reluctant to give interviews to mainstream media outlets out of deep distrust for their agenda.

Still, Whitman’s right in suggesting that current Christian contemporary music artists can learn a lot from Norman’s “emotional directness and honesty,” and the fact that he was willing to tackle controversial material. Perhaps even more importantly, he was musically innovative, and influenced non-Christian artists as well. The fact that Frank Black of The Pixies—a group that largely set the tone for modern “alternative” rock in the 1990s—considers Norman as a key influence speaks volumes. The Christian music industry may have made a lot of money in the past three decades, but it’s sorely lacked groundbreaking creativity; looking to what Norman accomplished artistically, and how he did it, can only help.

--I just received in the mail a copy of Rightward Bound: Making America Conservative in the 1970s, which I’ll be reviewing for PopMatters. Although I haven’t had the chance to yet begin it, I noticed something that is encouraging. Rightward Bound is an edited volume that is attempting to provide a historical overview of the “conservative revolution.” The paperback edition is $19.95. Therefore, while Harvard University Press is publishing the book first and foremost for an academic audience, it is also potentially accessible to non-academics.

And I can only applaud that. Many academic books are going to have an inherently limited audience due to the technical nature of their subject matter, and that’s fine; it’s a necessary component of academia, after all. The cost of academic books is another prohibitive factor that is sometimes unavoidable. So when a university press like Harvard is willing to publish an introduction of sorts to new scholarship on the conservative movement in the ‘70s, and offers a reasonable price on the paperback, that’s good news. I’ll likely post my pre-review opinions of the book later, but I was glad to see those two things straight away.

Discrimination Based on Genetic Testing

The New York Times has an interesting article today regarding some patients’ reticence of obtaining genetic testing that may reveal severe illness for fear that they will be either subject to higher insurance premiums and/or job discrimination. Instead of discovering such a disease early and reporting any warning signs to their doctor for proper early treatment, many of these patients instead monitor their symptoms and only report the problem when it becomes absolutely necessary.

Many of these people are turning to services that send testing kits and results right to the person's home; such services avoid the necessity of a doctor who may report any known genetic disposition for illness to the person’s insurance carrier. Some patients are paying for genetic tests out of their own pocket, deciding to pay the expensive lab fees rather than have their insurance pay for it. If results are found pointing to a predisposition for a serious medical condition, these patients often plead, even beg, that their doctor not list these results on their medical charts.

Aside from potentially not being able to obtain insurance or have their insurance premiums increase, many of these people fear job discrimination. Although employers are prohibited from discriminating based on sex, an existing handicap, race and religion, there is no current law explicitly disallowing employers from screening out employees who may cause an increase in their already burgeoning insurance premiums. Previously, the Equal Employment Opportunity Commission and other employers have settled any such dispute in manners not requiring a legal opinion; as such, no precedent has yet been set. The House of Representatives has passed the Genetic Information Nondiscrimination Act, which would prevent any such practices, but this bill is currently awaiting approval in the Senate.

Even though employers may not ask questions about any genetic predisposition to disease, the mere fear of such discrimination is preventing people from obtaining testing that may save their life. The New York Times article discusses two specific cases in which the patient either refused to have the genetic test or had the genetic test done outside the knowledge of her doctor; in both cases, the patient’s family history suggested that these women were prone to very serious illness. However, since neither woman reported anything to their doctor, nothing was written in their file warning of the potential illness. One of these women was sent home as being told she merely had a cold when she actually was suffering from an alpha-1 antitrypsin deficiency; the other was prescribed medication that interacted with her condition to create blood clots. Another woman described in the article chose to have surgery to remove any potential problems, rather than have a genetic test that she feared would disqualify her from obtaining health insurance.

The fear of having genetic testing results used against them has many patients not fully cooperating with their doctors, leading to inaccurate and sometimes dangerous treatment. The fear of losing their insurance and/or being discriminated against in employment opportunities has many of these patients turning to less-than-conventional methods to ensure nobody finds out of even the potential that they may have some genetic predisposition to some serious illness. Until some legislation is passed and/or a court rules on such issues, it is unfortunate that these people will be afraid to turn to the people who can best help them.

In Brief: Marketing Digital Books and the Flaws of “Marry Him!”

--“Random House will sell selected books by the chapter, while HarperCollins will offer selected titles for free,” reports Nate Anderson in an ArsTechnica blurb from earlier this month. Random House is experimenting with an iTunes-style format of selling books by the chapter, with the idea that one could purchase and download sections of a book à la carte without having to purchase the entire work. HarperCollins’ give-away approach is more restrictive in terms of user-friendliness—you can’t download, copy or transfer any of the available content—but it’s free, after all.

Anderson thinks that these are both “important experiments,” but is more jazzed about the potential of the HarperCollins model. His main argument against the viability of separable book downloads is that it isn’t a conducive approach for fiction, as well as for non-fiction books that contain “extended arguments.” This is true, and he’s also right to suggest that Random House will need to broaden their selection of books that are reasonable for downloading in chunks, such as essay collections and cookbooks. Yet I think this has potential in other areas as well. For example, one possibility (outside of Random House) is a system that would allow students and academics to download certain book chapters and essays for research purposes. College library catalogs are slowly increasing their selection of online full-text books, but it often remains limited; a broad-scale system that integrates downloading—even at cost to the user—would probably find an audience in academia.

Of course, I’m still somewhat of a Luddite on this issue…

--There’s been a bit of a flap over Lori Gottlieb’s essay “Marry Him!” for The Atlantic’s March issue, thanks to this argument:

“My advice is this: Settle! That’s right. Don’t worry about passion or intense connection. Don’t nix a guy based on his annoying habit of yelling “Bravo!” in movie theaters. Overlook his halitosis or abysmal sense of aesthetics. Because if you want to have the infrastructure in place to have a family, settling is the way to go. Based on my observations, in fact, settling will probably make you happier in the long run, since many of those who marry with great expectations become more disillusioned with each passing year. (It’s hard to maintain that level of zing when the conversation morphs into discussions about who’s changing the diapers or balancing the checkbook.)”

Unsurprisingly, several feminists have written strongly-worded disagreements in response (Bella DePaulo providing one example), and I can’t blame them. A primary reason why Gottlieb’s argument and evidence is flawed is that she relies too much on inductive reasoning—in other words, projecting her own personal experiences into general truth-claims. The worst example is her statement about single “single 30-year-old women”:

“…if you say you’re not worried [about finding someone to marry], either you’re in denial or you’re lying. In fact, take a good look in the mirror and try to convince yourself that you’re not worried, because you’ll see how silly your face looks when you’re being disingenuous.”

This is a ridiculously sweeping statement because it assumes that all of these women: 1) are in need of a fulfilling romantic relationship; 2) want to start a romantic relationship with express intent to marry; and 3) “want a traditional family” (her words). Gottlieb is honest about how she has longed for “The One,” and that many of her women friends who are single have felt the same way. But what about women who, well, don’t actually want marriage? Who have already been through a marriage and divorce by thirty and aren’t ready to try again? Who are (gasp!) content being single? She doesn’t want to adequately account for women whose experiences are different than her own, so she resorts to calling them “disingenuous.” Hmm.

Another troubling example appears later in the article after Gottlieb briefly mentions the movie Broadcast News: “Unless you meet the man of your dreams (who, by the way, doesn’t exist, precisely because you dreamed him up), there’s going to be a downside to getting married, but a possibly more profound downside to holding out for someone better” (emphasis in original). This reduces marriage to a least bad decision, as opposed to a good decision, for women. Consequently, she is parroting a traditional (and sexist) line of reasoning—it’s better to be unhappy in marriage than a spinster—that continues to place significant social pressure upon American women. And since her evidence in the essay consists of anecdotal examples and not particularly insightful television and film analysis, she’s unable to even support that argument. In short, Gottlieb demonstrates how not to write about gender issues.

Do you have a favorite tragic figure from casebooks?

Who is your favorite tragic figure from the casebooks? Prawfsblawg invites your nominations in the comments to this post. After receiving your input, Prawfsblawg will compile a list of candidates, and then elect the Greatest All-Time Victim in Caselaw History.

Professor Johnson presents an interesting question in his post. A package that explodes when dropped, a cow that unexpectedly turns fertile, a hairy hand, or a little boy who pulls a chair out from under an old lady are the foundation of the American legal profession. Click here and cast your vote. I’d say that the little boy who had to pay $11,000 won’t soon forget that it is impolite to pull chairs out from under an arthritic old lady . . . even if he didn't mean it.

Go ahead, take a chance and cast your vote. It might be fun!

Supreme Court Limits Personal Injury Cases Against Medical Device Manufacturers

On Wednesday, the United States Supreme Court issued a ruling in the case of Riegel v. Medtronic Inc., No. 06-179, holding that makers of medical devices can not be held liable for injuries caused by these devices if the Food and Drug Administration approved the device prior to its marketing and it meets the specifications set forth by the F.D.A.. The ruling in the Court was 8-1, with Justice Ginsberg as the sole dissenter.

Justice Scalia, writing for the majority, found that state laws allowing lawsuits for personal injury against these manufacturers conflict with federal law. Under the federal laws, the F.D.A. has the responsibility to ensure that benefits outweigh the risks and that the device is safe for use as intended. When such suits are brought in state court, Justice Scalia contends that the jury “is not concerned with its benefits” and “the patients who reaped those benefits are not represented in court.”

In her dissent, Justice Ginsberg stated that the preemption only goes to the states creating “their own premarket approval process on new medical devices.” She contends that Congress merely passed the law to “protect consumer safety”, not to prevent states from hearing cases based on injuries caused by these devices, a matter she asserts that has been “a domain historically occupied by state law.”

Edward M. Kennedy, the sole Senate sponsor of the 1976 legislation, agrees with Justice Ginsberg’s analysis. He states, “In enacting legislation on medical devices, Congress never intended that F.D.A. approval would give blanket immunity to manufacturers from liability for injuries caused by faulty devices.” Mr. Kennedy and Representative Henry Waxman, who served on the House panel that approved the legislation, state that Congress will need to act in order to correct this ruling and implement the original intent of the 1976 law.

The ruling on Wednesday does not prevent lawsuits asserting that a device was manufactured contra to the F.D.A. specifications set forth. Also, suits may be brought under state law if they “mirror federal rules, as opposed to supplementing them.” For now, the ruling also does not cover the manufacturing of drugs; this is a issue that will be heard by the Supreme Court next term.

It is uncertain the exact number of lawsuits that will now have to be dismissed, but it is most certain that this ruling, until potentially corrected by Congress, will prevent many personal injury lawsuits merely because the F.D.A. granted previous approval of a device. While it is the job of the Supreme Court to determine the intent of Congress when no stated intent is obvious, it seems here that there were a number of potential witnesses for the government, such as Edward M. Kennedy, that could have provided an accurate view of what the 1976 legislation intended. Until Congress is able to act and correct this ruling, which will most likely not be anytime soon due to the process required, the original intent of the law seemingly will not be met. While Congress had intended to protect consumers while seemingly still providing the power to state courts to hear personal injury liability cases regarding these devices, this Supreme Court has instead taken the power from the states and placed it more fully in the hands of the federal government.

For more information you can read the entire New York Times article here, the Supreme Court decision here and obtain background information from the Supreme Court of the United States Wiki here.

The Creation Museum’s Spectacular Failure

The Christian Century’s Jason Byassee presents a first-hand account of the Petersburg, Kentucky-based Creation Museum, which opened last May. The museum, which is the first of its kind to advocate young-earth creationism, the belief that 1) God created the earth in six twenty-four hour days (based on a literal-factual reading of Genesis); and 2) Earth is about 6,000 years old (based on chronological and genealogical documentation found elsewhere in the Bible). Accordingly, Byassee notes that the Christian apologetics group Answers in Genesis (AiG), who funds the museum, tries to ignore old-earth creationism and fails to directly cite intelligence design theory as part of the museum’s message. Instead, there are “abundant references to Darwin himself at the museum in the course of doling out ammunition with which to attack him.”

Ironically, Byassee demonstrates that the Creation Museum’s attacks upon Darwin and evolution require quite a bit of borrowing from evolutionary theory, as well as from intelligent design theory. It argues that dinosaurs did indeed once roam the earth, but they coexisted with people until the Genesis Flood made them largely extinct. The eyes of a chameleon are “irreducibly complex,” and therefore couldn’t have evolved. There are billions of stars and galaxies, but “gravitational fields” are responsible for their great distance from Earth in only 6,000 years’ time. Even a mocking reference to “Enlightenment High School” in one of the museum videos “represents great trust in the Enlightenment. It is, after all, creation science that is presented as superior to Darwinian theory.”

After a lengthy account of the museum’s displays and visitors, Byassee offers an admirable amount of restraint in his criticisms, even as he refers to the Creation Museum’s “worldview” as a “spectacular failure.” He argues that AiG is too anthropocentric in its claims; humans “remain part of the animal world even as they reflect the image of God.” Additionally:

“A further theological problem for AiG is that it seems to think that the move away from its ‘biblical worldview’ explains all wars and suffering—as if the Fall has to do with the loss of a worldview, not the human condition of sin.”

In other words, AiG is promoting an either/or theology based upon Biblical hermeneutics, or interpretive approaches. Believing in a young earth means accepting their hermeneutic that we are to read the Bible as the inerrant word of God. This makes the creation story of Genesis a simple, straightforward, and entirely factual account of God’s activity. Any other hermeneutic, on the other hand, leads to what they term as “the slippery slide to unbelief” in the hopeless state of humanity. In their view, there is no in-between position to one to take. We are either correct and on the side of righteousness, or compromised and proxy to the kind of evil that results in “wars and suffering.”

As an evangelical organization, the hermeneutic upon which AiG relies is quite familiar to evangelicalism in general. Fred Clark of Slacktivist calls this a “means what it says and it says what it means” approach, and contends that it leads to two problems:

“First, such an approach doesn't work. Second, this isn't really what they're doing anyway. The supposedly literal approach begins with certain presuppositions (cultural, personal, psychological, economic) and then finds these very same presuppositions as obvious and self-evident in the plain meaning of the text. Thus the sacred word becomes a mirror and our exegesis begins to resemble Stuart Smalley's daily affirmations.”

Thus we have the Creation Museum stridently presenting a “factual” hermeneutic of the earth’s creation that is loaded with naïve assumptions about science, history, evidence and human nature. Byassee gets it right when he points out that AiG is basically demonizing those whose disagree with young-earth creationism, holding them responsible for the state of the world today. What’s sad about this is that AiG purports itself to be a “Christianity-defending” group. Yet in constructing what amounts to a theological and ideological house of cards, they demonstrate remarkably little faith—whether in God, humanity, or even the possibility of their own fallibility.

Massachusetts Town Seeking to Create "Off Limits" Areas for Sex Offenders

After a rape of a six year-old boy at a public library, the New York Times is reporting that the city of New Bedford, Massachusetts is attempting to pass legislation that would “bar high-risk sex offenders from entering or coming within a certain distance of numerous public places.” Other cities in the area are also considering similar legislation.

In response to this incident, the mayor is seeking such legislation that would require known “high-risk” sex offenders to leave the area if caught within such a restricted area. If the offender refused to leave, the person would be arrested. The mayor likens this regulation to the parole standards sex offenders are already limited by in that “they are not to mix or interfere with children”; the proposed ordinance would, according to the mayor, just build on these restrictions by creating areas where children are known to be on regular occasion, and preventing sex offenders from entering these locations.

Already in response to the incident the public library has set up computers at the doorways that flash pictures of known sex offenders. Aside from this visual identification method, it is being proposed that people entering the locations would need to present valid identification; in doing so, library staff could more readily identify offenders by more than just a visual comparison to potentially outdated pictures.

States have already attempted to pass legislation which limits where sex offenders may live, setting forth adequate distances from schools and other locations which are heavily populated by children. Just as these previous attempts to protect children have been met with somewhat different results, there is a possibility that the legislation being considered in New Bedford may come under Constitutional scrutiny. It is feared that the designation of “off-limit” locations for these sex offenders may not be specific enough and open the door for the creation of unlimited such locations; such a broad power could potentially interfere with these people’s fundamental rights.

While it is certainly difficult to argue with the need to protect children from such sexual predators, it would in fact seem that the passage of such an ordinance would not pass a Constitutional challenge. While it is easy to classify schools, playgrounds and kid focused areas such as some restaurants, the same is not true of all locations. To prevent people from entering a library or a museum merely because a large number of children visit these locations would seem to deny people of their rights to attempt to better themselves through continued learning. Therefore, in order to help ensure that such an ordinance would be found Constitutional, it would seem that the key would be to enumerate specific criteria for what constitutes “off limits” areas. Unfortunately, this may not cover all the areas the city would like it to, but at least there would be a start and increased awareness of this regrettable situation.

A College Football Controversy and Investigative Journalism’s Importance

Sports Illustrated college football writer Stewart Mandel points to an “explosive” Seattle Times investigative series on the 2000 University of Washington Huskies football. In the course of their year-long research, Times reporters Ken Armstrong and Nick Perry found that while the 2000 team was incredibly successful—finishing with an 11-1 record, winning the Rose Bowl, and finishing #3 in final national rankings—“there remained a disturbing level of criminal conduct and hooliganism by the players on that team.” Moreover:

“Former coach Rick Neuheisel and athletic director Barbara Hedges accepted most of it, demanding little discipline or accountability from their athletes. And other community institutions, including prosecutors, police, judges and the media, went along.”

It’s difficult to characterize any one aspect of the series as particularly damning simply because nearly all of it’s damning. Standout (and current NFL) tight end Jerramy Stevens was arrested for rape a month before the beginning of the season, yet continued to play during the police investigation. The case resulted in a dismissal of charges, even though lead detective Maryann Parker mentions that there was “overwhelming evidence” against him. Linebacker Jeremiah Pharms robbed and shot a marijuana dealer in March of 2000, and also continued to play during an investigation that produced a “wealth of information” (in Armstrong and Perry’s words) and eventually led to his arrest and conviction. Safety Curtis Williams—who was paralyzed from the neck down after an on-field collision late in the season—had multiple assault convictions on his record but remained on the team thanks to a decision from the university’s Athletic Financial Aid Committee. One of the series’ only bright spots is the story of linebacker Anthony Kelley, whose trip to South Africa as a junior inspired him to prioritize academics and to later work with other university students on an overseas studies program.

Armstrong and Perry’s work is important because it reminds us of the potential consequences when winning (and potential revenue) supersedes all other concerns at the collegiate level. It’s evident that although Neuheisel and the athletic department had plenty of opportunities to hold players accountable, they largely failed to do so. What’s perhaps even worse is that from a legal perspective, it appears that a different standard was in place for the players mentioned above due to their football background. Yet the response in Seattle to the series has been highly negative, with many fans upset at what they perceive to be an unfair besmirching of the university. While it’s understandable that the university fan base is passionate about the success of the 2000 season, there is no excuse for the creation of a permissive atmosphere for violent crimes, or deemphasizing educational concerns.

On another level, when we consider how budget cuts continue to wreak havoc on newspapers, the Times series is all the more impressive. It’s not surprising that Mandel calls this “the most thoroughly reported, meticulously written investigative project I've read in my nine years covering this sport.” At its best, investigative journalism provides a vital social service that forces the public to consider new ways of thinking. Armstrong and Perry likely knew that their work would be controversial, but their research is persuasive. Moreover, they are uncompromising in their findings, and even criticize the Times for failing to document Williams’ multiple arrests before 2000. The series is a fine testament to their efforts and their paper’s willingness to support such a lengthy and costly project.

Irish Cardinal challenges release of child abuse files

Early last week, Ireland learned about High Court proceedings brought by Cardinal Desmond Connell, challenging the right of current Archbishop of Dublin Dr. Diarmuid Martin to release diocesan files to a government-backed commission of inquiry into allegations of rape and child sexual abuse. The documents had been classified as legally privileged during his time as Archbishop of Dublin. Then, suddenly on Monday of this week, the former Archbishop of Dublin dropped his attempt to prevent a state inquiry into clerical sex abuse.

Diarmuid Martin, who succeeded Connell as Archbishop of Dublin in 2004, had pledged to cooperate fully with the inquiry. Martin has already handed over more than 60,000 church documents to the investigation into how senior members of the Dublin clergy handled complaints of abuse against more than 100 priests. The Catholic Church in Ireland is struggling to restore trust after a string of child sex abuse cases.

Previously, Cardinal Connell had promised to disclose all, but was slow to produce. He was appointed archbishop in 1988, but did not initiate an investigation into allegations until seven years later in 1995. Up until then, he had only removed two priests. It wasn’t until 2002 that Connell supplied to Gardai the names of 17 priests. Since then Archbishop Martin has disclosed that 135 abuse allegations were made against 147 priests.

Cardinal Connell may want to leave the past in the past, but his efforts at stopping the investigations will only lead observers wondering what is he trying to hide?

click here for an interesting editorial on this investigation.

Politics and Waterboarding

In what is seen as a message to the White House, the Senate yesterday passed legislation regarding the prohibition of interrogation practices, specifically including the practice of waterboarding as a condemned practice. According to the Los Angeles Times, the measure has already been approved by the House of Representatives and is expected to be vetoed by the President. The CIA has previously admitted to the use of waterboarding as an interrogation technique. Instead of condemning this practice, the White House has indicated that this technique may be authorized again in the proper circumstances.

As is the case with most issues in Washington, the issue of waterboarding seems to have supporters on either side of the question. “Many Democratic lawmakers have denounced waterboarding as a form of torture that has undermined U.S. moral standing in the world.” On the other hand, it appears that Republicans refer to waterboarding as nothing more than an “enhanced” interrogation technique and claim the practice to be legal.

According to the article, “[t]he decision by Republicans to allow a vote on the measure – forgoing procedural moves that could have blocked it from coming to the floor – suggested that party leaders saw political advantage in setting up a presidential veto”, and this led to the measure passing 55-41 in the Senate and 222-199 in the House. In this count, five Republicans voted to approve the legislation while one Democrat voted against it. Included in those voting against the legislation for the Republicans was Senator John McCain, who has denounced waterboarding in his current Presidential campaign, but claims he “does not want to bind U.S. intelligence officers with restrictions designed for the military.” Senators Clinton and Obama did not take part in the vote.

We have spoken a bit about waterboarding in this blog, each time discussing it as a violation of human rights. Today, my conclusion is no different and I hope that such methods are eliminated from the CIA’s list of interrogation techniques. What is different in the case today is that the House and Senate have taken steps to pass legislation to specifically condemn the use of waterboarding only to most likely have the legislation vetoed by the President. From the vote count presented in the article, it is unlikely that a supermajority could be obtained to override this veto, and the article itself mentions a “political advantage” seen by Republicans in allowing the President to veto it.

Whatever this “political advantage” may be, it is disheartening to see such legislation used in this way. Instead of looking at the overall issue of human rights, Republicans (and Democrats) are attempting to put themselves in position for a run at this November’s Presidential race. John McCain, expected to be the Republican candidate, outwardly criticizes such interrogation practices and then votes against measures to stop them; this stance seems to be an obvious ploy to garner favor with voters while still staying on the Republican Party’s “good side” (not that he is the only candidate that has ever used or is currently using such practices, but he is the only current candidate who took place in this specific vote and which we are able to analyze). While such political maneuvering continues, these interrogation techniques continue to be used, violating the human rights of all who are subject to them.

Music Royalties and How Not to Make a Living

Nate Anderson of ArsTechnica presents an informative overview of the Copyright Royalty Board (CRB)’s current hearing on songwriter royalty rates for the music industry. The CRB’s decision later this year will, as he writes, “determine—for the first time—what songwriters get for digital downloads and streaming music.” When we consider the precipitous drop in CD sales and the continuing shift toward digital music, it is safe to say that this decision is critical for all three parties involved. A brief breakdown:

Side One
Participants: Recording Industry Association of America (RIAA), representing major-label music companies; Digital Media Association (DiMA), representing third-party digital media companies, including Amazon, Apple, Best Buy, and Yahoo!
What they want: A reduction in “mechanical rates,” or royalties that songwriters and publishers receive for copies of their music. Specifically, both seek a lower per-track mechanical rate for digital downloads (5-6 cents for RIAA, less for DiMA), and little to no mechanical rate for streaming music.
Reasoning: While digital music purchases are growing at an impressive clip, they haven’t offset the profit that major labels have lost from declining CD sales. The RIAA sees a reduced mechanical rate as a necessary move, since it would provide them with a higher profit margin. In contrast, the companies of the DiMA are in a healthier financial position, and their profit margin on digital purchases is arguably better than they claim. Still, there isn’t a foreseeable ceiling for digital music, and lower royalties would result in a significant financial advantage.

Side Two
Participants: National Music Publishers Association (NMPA), representing music publishers and songwriters
What they want: An increased per-track mechanical rate of 15 cents, and 12.5 percent of revenue from streaming music.
Reasoning: Many songwriters and publishers (and bands) depend upon royalties from mechanical rates to make a living, and the current CD mechanical rate of 9 cents per track usually isn’t a path to riches. While RIAA contends that lost CD revenue should require a sacrifice on the NMPA’s part, the NMPA argues that because digital music eschews many of the production and distribution costs associated with CDs, a higher rate is in order.

Which side has more of a case? Anderson’s analysis at the end of the article is telling:

“The move to cut (substantially) songwriter royalties doesn't sound like something done to ‘support the artists,’ though perhaps moving more songs at lower prices would be better for everyone in the long run. On the other hand, it's not hard to imagine prices staying the same and the labels and resellers simply keeping the extra cash. It's also important to note that it's not just the RIAA that wants to lower rates; Apple, Amazon, Napster, iMeem, Live365, RealNetworks, and more are all DiMA members, and they're pushing for the lowest rates of all” (emphasis mine).

Call me cynical, but I believe that “keeping the extra cash” is exactly what the RIAA and DiMA would do, leaving songwriters and publishers in an even worse financial position. Making a living from creating music is difficult enough for most people, even without having the music industry and retailers undercut what little there usually is to financially gain.

The EPA and Mercury Emissions

On Friday, a Federal Court of Appeals found that the Environmental Protection Agency “ignored laws and twisted logic when it imposed new standards that were favorable to plant owners” when establishing new regulations related to mercury emissions from power-plant smokestacks. The U.S. Court of Appeals for the D.C. District’s decision is a second blow to the current administration’s pollution policy after the being previously found deficient, by the United States Supreme Court, in its regulation of greenhouse gasses.

According to the Washington Post, the EPA’s regulations called for a “cap-and-trade program”. Power plants would be required to limit their mercury emissions to a set level starting in 2010; those that could not meet these standards were to have the ability to purchase so called “credits” from plants that were below the regulated level.

As expected, this proposed regulation caught the eye and ire of environmentalists. These environmentalists argued that the ability to purchase credits, thereby sidestepping the regulations, would lead to the creation of “hot spots” in certain neighborhoods. While some reduction may be observed in a sampling of neighborhoods, it is the environmentalists’ claims that several neighborhoods would experience a higher level of pollution caused by mercury output from the power plants than areas in which plants were able to lower their emissions to the EPA approved level.

According to the article, Virginia and Maryland, home to a majority of the area’s power plants, have limits on these plants more stringent than those set by the EPA. However, areas such as Washington, with wind patterns that could aid in the spreading of the mercury emissions, may be more susceptible to mercury pollution if the EPA’s new regulations are approved.

In their decision, the Court of Appeals stated that the EPA “’deploys the logic of the Queen of Hearts, substituting EPA's desires for the plain text’ of Congress's order”. Power companies claim that with such a ruling, the reduction of mercury pollution will actually be stalled, claiming that it is senseless to purchase the necessary equipment without knowing the acceptable levels of emissions that will finally be set.

It is hard to argue with the power companies’ stance that they will not purchase necessary equipment without knowing the final rules to be set by the EPA. Equipping the plant with the necessary parts will be a long and expensive task; having to do such a job potentially twice would at least double this time and expense. It can be argued that these plants should already be doing all they can to limit emissions, but as companies it is their goal to maximize profits while still staying within the scope of any applicable regulations.

Accordingly, it would seem that any blame should be placed on the EPA for attempting to sidestep an order from Congress. The fact that the current administration has already been rebuked by the United States Supreme Court for failing to control the emissions of greenhouse gasses and now is attempting to create exceptions to mercury emissions evidences the fact that the EPA currently is not adequately doing its job of protecting the environment. Had the EPA been concentrating on the protection of the environment, it is assumed that current mercury emissions levels would have already been properly set, instead of creating a “cap-and-trade” environmentally unfriendly program, and power plants would know the required standards needed to be met allowing them to upgrade as necessary to control these emissions.

The Possibilities of Just Peacemaking

Among the books I received for Christmas was David Clough and Brian Stilter’s collective study Faith and Force: A Christian Debate about War. It’s an academic work that's highly readable, and it offers an excellent consideration of both Christian pacifism and just war tradition. (They also discuss the problems of two other positions: Christian realism and the holy war mentality.) One of the book’s highlights is a chapter-by-chapter series of debates between Clough (an English theologian, Methodist, and pacifist) and Stiltner (an American theologian, Catholic, and just war adherent), which originally began via e-mail in 2003 and provided the inspiration for their collaboration. As they explore “the authenticity and practicality” of both positions in relation to humanitarian intervention, the current Iraq War, and responding to acts of terrorism, their debates reiterate and clarify major arguments, divergences, and shared points of commonality.

That last aspect—commonality—is an important one. In my own efforts to maintain a critical attitude towards war and military intervention, I’ve struggled to define exactly where I stand. The pacifism that Clough advocates is largely compelling, and he asks difficult but necessary questions about relying on military solutions. I think he’s correct to argue that even in cases of a humanitarian crisis (where military intervention is perhaps most justifiable), war remains “an exceedingly blunt instrument to attempt the protection of civilians” (100). Conversely, I find that Stiltner' position is appealing in that he is more willing to find common ethical ground with others outside of the Christian church. He also presents reasonable arguments for the necessity of military responses when other alternatives are no longer possible. An internal debate arose as I considered their arguments: if war is necessary, when? How can we avoid resorting to violent means in a turbulent world?

Thankfully, both Clough and Stiltner anticipate this problem, and one of their common-ground solutions is quite promising: the theory of just peacemaking. As they write, just peacemaking theory involves “a collection of ten practices providing practical alternatives to war that was developed by pacifist and nonpacifist Christian ethicists working collaboratively” (66-67). Theologian Glen H. Stassen organized this particular project in the early 1990s, which resulted in the book Just Peacemaking: Ten Practices for Abolishing War. The practices that Stassen and his collaborators originally outlined are as follows:

Initiatives
--Support nonviolent direct action.
--Take independent initiative to reduce threats.
--Use cooperative conflict resolution.
--Acknowledge responsibility for conflict and injustice, and seek repentance and forgiveness.

Justice
--Advance democracy, human rights, and religious liberty.
--Foster just and sustainable development.

Love and Community
--Work with emerging cooperative forces in the international system.
--Strengthen the UN and international efforts for cooperation and human rights.
--Reduce offensive weapons and weapons trade.
--Encourage grassroots peacemaking groups and voluntary associations.

The overarching goal of the above practices is to, as Clough and Stiltner write, “establish a peaceful and just resolution of conflicts using bloodless means” (67). Obviously, it would be difficult for many of us to directly fulfill certain practices; reducing arms trade and strengthening the UN are clearly “macro-” level political goals. Yet other practices are entirely possible on an everyday “micro-” level, such as participating in peacemaking groups, doing what we can to fight injustice, and employing conflict resolution techniques in our own lives. Moreover, while these practices are designed with Christians in mind, they are by no means limited to Christians, as terms such as democracy, conflict resolution, and sustainable development signify.

For Clough and Stiltner, the key is that “[t]hose who participate in the just peacemaking project temporarily set theoretical disagreements to one side and focus on what practical measures they can support” (68; emphasis mine). That certainly doesn’t render irrelevant any individual attempts (like my own) to hash out a sound theoretical position. It does, however, offer encouragement to begin practicing peaceful actions with others in our lives as we ponder the larger ethical issues that that accompany war and military solutions.

Momma moose are smarter than the average bear

Researchers with the Wildlife Conservation Society found that each year for the past 10 years, pregnant moose in and around the Greater Yellowstone Ecosystem move closer to humans when they are getting ready to deliver their young. The moose are seen along the roads and by buildings in order to avoid brown bears that are known to prey on moose calves. The brown bears are dreadfully road-shy so the moose moms are safe . . . at least from them. With the moose moms hitting the road there is strong evidence that the wildlife living in our national parks are profoundly affected by the presence of humans and humans to some degree serve to protect the moose from predators.

Biologist Joel Berger has dedicated his life to learning more about wildlife. He has even gone as far as disguising himself as a moose in order to get close enough to them to test their reactions to predators. His research has shown that even formerly “predator-naïve” moose can quickly learn to be wary of wolves and bears. To read more about Dr. Berger’s moose research, click here.

For more . . .

Roadside is birthing center for moose moms (Earth & Sky)

Pregnant moose get cozy with humans (NPR)

Humans unknowing midwives for pregnant moose (Science Daily)

Uranium Mining in Arizona

For the first time in nearly twenty years, exploratory drilling for uranium deposits will be done in the area just outside the Grand Canyon National Park. According to the New York Times, said drilling will commence with the approval of the Forest Service; however, the Board of Supervisors for Coconino County, Arizona has already unanimously voted to attempt to prevent any drilling in the area.

The major issues cited regarding attempts to prevent this mining is threats to the environment and the effect the mining of radioactive materials will have on the health and well-being of mine workers and others in the nearby area. Apparently a full-dress environmental study was not performed by the Forest Service prior to granting approval. In defense of approving any drilling without such a study, the Forest Service claims that it is not required as any exploration would last less than a year, and it is uncertain whether such exploration will lead to full-scale mining.

According to the Kaibab National Forest’s spokesperson, Barbara McCurry claims that “her agency had little choice but to allow the drilling under the 1872 mining law that governs hard-rock mining claims.” She states that any exploratory drilling will be minimal, and that the agency will attempt to mitigate any potential impact the mining may cause. Also, if this exploratory mining led to a full-scale operation, Ms. McCurry has stated that a full environmental analysis would be required before granting permission.

However, according to Deb Hill, chairwoman of the Coconino Board, “We have a legacy, which isn’t too good, from the uranium mining in the past”. When drilling had been performed in the area previously workers and family members apparently had suffered from different forms of cancer. Also, there are concerns about safely transporting the radioactive material and the potential of contaminating some water sources.

Dusty Horwitt, who has written a report on behalf of the Environmental Working Group in Washington reporting on the new wave of uranium mining, states that, “If uranium mining operations are about to start on the edge of the Grand Canyon and federal officials say there’s nothing we can do, the time is now to reform the 1872 mining law”. In addition to the opposition from the Coconino Board of Supervisors and groups such as the Environmental Working Group, several Indian tribes in Arizona had previously voted to ban uranium mining on their land.

The fact that even this exploratory mining was approved without an environmental analysis, and with very little notice, is a bit worrisome. This would be the case no mater what was being mined as there is a chance that such mining could lead to some type of environmental issues. However, when added into the equation that the exploratory mines are being drilled to search for uranium, a highly radioactive material, questions about health and the environment are further compounded.

Perhaps it is time to rethink the 1872 mining law allowing this exploratory operation. It is clear that the county is wary of allowing drilling and is attempting to stop the same. Also, a number of Indian tribes in the area have previously expressed their opinion on the subject. But even with this opposition, it is likely that this mining will be allowed due to a law passed approximately 135 years ago, when concerns over the environment were not as prevalent and the full dangers of materials such as uranium were not fully known.

Following up on…

--Prison reform: Back in October, I wrote about Senator Jim Webb (D-VA) and his attempts to prioritize prison reform. In a December 12 blog entry, Bradford Plumer (who originally reported on Webb’s efforts for The New Republic) points us toward a relevant U.S. News and World Report feature from Alex Kingsbury concerning the highest prisoner re-entry rate in American history. Kingsbury notes that the term “re-entry” signifies a shift in prisoner reintegration strategies:

“Whereas rehabilitation assumed that individuals could change on their own, re-entry focuses on educating employers and communities about how they can help the offender on the outside. It aims to break though the red tape that has historically delayed social services for felons and to prevent the snags—like drug treatment programs that reject offenders who have been clean only a short time—that keep them from making a healthy return to society.
“In practice, that means synchronizing many different social and correctional services while offenders are still inmates and continuing that assistance after their release. Re-entry programs don't necessarily require more funding, just better coordination of existing resources like job training and stable housing. “Rehab is focused on the individual offender; re-entry is about communities, families, children, coworkers, and neighbors," says Amy Solomon, a criminal justice researcher at the Urban Institute.”

Kingsbury goes on to cite Kansas’ various re-entry programs as a positive model, where ex-convicts receive services that are designed to help them not only merely avoid recidivism, but also, for example, transition into steady employment with a livable wage. The results have been encouraging: since 2003, when the programs began, “the number of parole absconders has fallen by a third and recidivism has been cut in half.” Moreover, Plumer finds in a February 3 entry that in 2007, several states created oversight committees and/or enacted reform measures for their criminal justice systems. There is certainly a lot of room of improvement thanks to the tough-on-crime mentality, but all of this information is encouraging, and perhaps suggests a future broad-based change in American prison policies.

--Mike Huckabee and William Jennings Bryan: In writing about the differences between Huckabee and Bryan, I praised (and relied upon) Georgetown University professor of history Michael Kazin’s biography on Bryan. A few days after I posted my entry, I came across Kazin’s recent article for the start-up Washington Independent on how the two greatly differ. It goes without saying that his argument is stronger and more eloquent than mine. He also demonstrates that I was wrong on one point. While I wrote that “Bryan actively sought to apply his evangelical Christianity—largely based upon the Social Gospel—to the public square,” Kazin finds the following:

“How to apply one’s faith to public life has always been a controversial matter. In 1896, Bryan’s Republican opponents lambasted him for using the Crucifixion as a metaphor for his monetary policy. But neither in that campaign, nor during his two other races for president (1900 and 1908), did he ever, like Huckabee, advertise himself as ‘a Christian leader,’ give sermons in churches or call for amending the Constitution to fit ‘God’s standards.’

“For Bryan, who idolized Thomas Jefferson, the separation between church and state was absolute. As an exponent of the Social Gospel, he used the Bible to justify aid to the poor and scorn for the rich – not to install his faith into law. What’s more, he needed the votes of Catholics and Jews, and so avoided taking positions that would alienate them” (emphasis mine).

I forgot to bear in mind that Jefferson and Jesus were the primary influences upon Bryan’s politics—bad writing on my part. Anyway, the essay, like the biography, is well worth the time.

--Also regarding the Huckabee/Bryan post: In the comments section, I received criticism for 1) relying on Arkansas Times reporter Ernest Dumas’ “facile” analysis of FairTax (as opposed to that of Boston University Department of Economics chair Laurence J. Kotlikoff, a FairTax proponent); and 2) personally characterizing the FairTax plan as “wildly regressive.” The first criticism is a bit puzzling, because while Dumas obviously isn’t an economist, his negative appraisal of FairTax considers the same arguments that many economic experts have forwarded, including those of Bruce Bartlett. I realize that FairTax proponents haven’t exactly warmed to Bartlett’s critiques (and, therefore, would find fault with Dumas), but I’m not sure how that makes Dumas unqualified to write about the subject. Journalists are capable of writing competently about economic issues without possessing doctoral-level expertise, even if we sometimes find fault with their positions.

As for FairTax’s regressive nature, the Annenberg Political Fact Check’s examination of the plan’s numbers is quite compelling. At the end, they write:

“We don’t actually call the FairTax “regressive,” as AFT [Americans for Fair Taxation, who support the plan] implies that we do. We reiterate, however, that those earning between $15,000 (or perhaps as much as about $24,000 – see our addition to the “Who Really Pays” portion of our article above) and $200,000 per year – virtually all middle-class Americans – would pay a higher share of the tax burden under this proposal. Those earning more would see their share drop, as even AFT economists admit” (italics in original).

When citizens in higher-income brackets would pay less in taxes while those in lower to middle-income brackets would face tax increases, I would say that qualifies as a regressive policy proposal. The AFPC was generous in refusing to use the “r-word,” but the above paragraph makes a clear point regardless.

Florida Ruling Prevents Observation of Vote Tally

Just days prior to the primary election in Florida, a legal opinion was issued which disallows observers from being present when the final votes are tallied. According to the Herald Tribune “[t]he closure comes because of questions posed by Sarasota County Election Supervisor Kathy Dent, whose controversial District 13 congressional race drew national scrutiny in 2006.”

Based on this ruling, election observers can be restricted from central computer rooms while votes are being tallied. Also, the public and observers may be prohibited from viewing the certification of votes by the canvassing boards, as long as an alternative, such as loudspeakers to listen in on the canvassing, is provided. Already at least one election observer has been barred from witnessing the vote tally.

Ms. Dent claims she merely sought "clarification and edification" of rules for election workers; she asserts that she has no need or desire to limit scrutiny of the vote counting procedures. In fact, according to the article Ms. Dent “opened her computing room to a handful of observers” for Tuesday’s primary. Observers apparently witnessed modem connection failures and failure to transfer votes electronically leading to manual input.

For those supporting this ruling, primarily it seems Election Supervisors, they cite to the fact that rooms do not really allow for a large number of people, and other valuables and keys are kept in the room which cannot be adequately watched while votes are being tallied. Finally, the issue of trade secrets comes into play as there is allegedly a risk of some of the “observers” gaining entry in order to provide this information to competitors.

Lead counsel of the Florida Democratic Party has already suggested that litigation may be necessary to challenge this ruling. At the least, it has been indicated that talks will be held with the state in order to attempt to reverse this ruling or come to some acceptable middle ground.

Florida, much like Ohio, has been the subject of concern during election season. Since the “hanging chad” incident and the undervote issue which occurred last election in Ms. Dent’s precinct, voter faith in Florida’s election procedure, both inside and outside of the state, has apparently been shaken. This latest decision would seem to shake voter confidence even further. As Florida election law expert Mark Herron is quoted in the article, “"Anytime you move something behind the curtain, people are going to get suspicious”.

Aside from voters’ perceptions, Ms. Dent’s opening of her computer room presents concrete reasoning for why observers should be allowed. With computer errors such as those experienced Tuesday leading to manual input, which is subject to greater threats of error, there are issues that need to be observed and reported upon in order to ensure that no errors actually exist and that any problems are fixed for future elections. I would doubt that the provision of loudspeakers so observers could listen in would not have necessarily provided an accurate picture of the troubles suffered, nor of the manner in overcoming these problems. While issues of security need to be dealt with, it is also necessary to ensure that votes are accurately tallied and recorded.

Human Rights Close to Home: Putting the U.S. Under the Magnifying Glass

Racism, violence against women, genocide, and poverty are what come to mind when someone mentions human rights violations to me. It is a global issue that needs a local solution.

I think that most Americans would agree that human rights violations are occurring in the Middle East and in Third World countries, but my guess is that many would not believe that numerous human rights violations occur in the United States every day. Students at the University of Dayton (UD) hope to change that view and bring the issue closer to home.

“When talking about human rights, there's always been a global emphasis,” said UD senior Erin Aldrich, co-chair of Human Rights Week on campus. “We're trying to show people you don't have to look far outside of the city to find human rights issues.”

UD students have put together a slate of local providers of health care, financial services, housing and education to address the theme of “Human Rights at Home” during Human Rights Week Feb. 3-8.

Started by UD’s human rights program — the first such undergraduate program in the nation — the student-run Human Rights Week aims to engage students in social justice issues locally and globally.