A LITTLE QUIZ
or, HOW'S YOUR HISTORY?

Time Warp Cast of Characters:

1. NJ Gov A. Harry Moore on war preparedness, 1938
2. Sen. Joseph McCarthy (R-Wisc), March 17, 1954, before the Irish Fellowship Club of Chicago
3. President D.D. Eisenhower, Farewell Address (edited), Jan. 1961
4. R. Nixon - Checkers Speech, 23 September 1952
5. R. Nixon - After losing California Gubernatorial race in 1962
6. R. Nixon - campagning for Presidency, 1968
7. R. Nixon - Trying to explain away Watergate, 1973
8. Today Show host Matt Lauer (NBC) on Clinton, 2004
9. Rush Limbaugh to 1994 Freshman GOP congress. (Edited)
10. George W. Bush mangling yet another sentence.
11. Dick Cheney selling the WMDs and the War.
12. Helen Thomas and Ari Fleischer (Bush Press Secretary) interchange at press briefing.
13. David Gregory (NBC) and Scott McClellan (NEW Bush Press Secretary) interchange at July 2005 press briefing.
14. R. Nixon - Resigning 1974
15. George W. Bush during the leadup to the Iraq invasion, 2003.

How many did you guess right?

Courage.
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LET'S DO THE TIME WARP AGAIN

Well, getting up and being at the radio station at 7:30 in the ante meridian was not the annus horribilis I'd expected (and yes, Virginia, I KNOW that annus = year).

(Wreaks havoc with the old matutolagnia, though.)

Nonetheless, for those who missed it, or wanted to hear it again, here is the "Time Warp" mix, 2 megs of MP3 audio, and 68 years of American history compressed into four minutes and sixteen seconds. I mixed it up aww by my widdle se'f. Shucks.

Enjoy.

Time Warp (MP3)

(A little suggestion: right click and choose "save as" on the pulldown menu.)

Courage.
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Still editing. Check Back Tomorrow.
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Still editing. Check Back Tomorrow.
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Still editing. Check Back Tomorrow.
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CLASS WARFARE
or, WHEN IS A WAR NOT A WAR? (Part II)

In yesterday's thrilling edition, we saw young John G. Roberts leave Indiana, attend Harvard and then Harvard Law School.

After rising through the profession, he married fellow lawyer Jane Sullivan in 1996.

According to the Los Angeles Times: "Jane Roberts attended the College of the Holy Cross in Worcester, Mass., and graduated magna cum laude in 1976. In 1984, she graduated cum laude from the Georgetown University Law Center." They married in 1996, and a few years ago (both are about 50 years old) they adopted children in their early forties.

According to "LifeSite News" http://www.lifesite.net/ldn/2005/jul/05072101.html

Married in their forties John and Jane Roberts were unable to conceive children of their own, but have adopted a boy and a girl, and Roberts has consistently shown a deep love for his role as a father.

She is, by all accounts, a "devout Catholic" and is on the Board of Governors of the John Carroll Society (named after the first US Bishop), according to its webpage: "On February 15, 1953, O'Boyle celebrated the first Society-sponsored Red Mass. In succeeding years, the congregation has frequently included the President of the United States and leading federal jurists, cabinet officials, congressmen and diplomats. Today, the Red Mass is celebrated annually on the Sunday before the first Monday in October, prior to the opening of the Supreme Court's judicial year."

Here's a piece of the "homily" delivered at the most recent "Red Mass":

"In the face of the challenges at hand, we appeal to Catholic jurists and intellectuals and all people of good will to help rebuild consensus around the foundational principles necessary for democracy: the dignity of the human person who has both rights and responsibilities, the inalienable right to life, the relationship between truth and freedom, convictions about the common good, the centrality and importance of marriage and family, the need to nurture and protect the most vulnerable members of society, the need for solidarity among people."

The Most Reverend Seán P. O'Malley, OFM Cap
Archbishop of Boston
Homily for the 51st Annual Red Mass, St. Matthew's Cathedral
Washington, DC
October 3, 2004 (from their webpage)

She is also involved with "Feminists for Life" which had this to say from their webpage:

"Jane Sullivan Roberts currently serves as legal counsel to Feminists for Life of America (FFLA) on a pro bono basis. From 1995 to 1999 she served as Executive Vice President on the Board of Directors of FFL. Serrin Foster, President of FFL, said, "Jane is a brilliant attorney. We are very proud of her and appreciative of her service to Feminists for Life and women and children." Ms. Roberts is married to Supreme Court nominee John G. Roberts, Jr.

"Established in 1972, Feminists for Life is a nonsectarian, nonpartisan, grassroots organization that seeks real solutions to the challenges women face. FFL's efforts are shaped by the core feminist values of nondiscrimination, nonviolence, and justice for all. FFL continues the tradition of early American feminists such as Susan B. Anthony who sought to address the root causes that drive women to abortion."

So, we have to surmise that Roberts is, himself a devout Catholic, else there would probably be hell to pay at home. You see, if Roberts is confirmed, the U.S. Supreme Court will have four Catholic Justices out of nine. So, one gets the feeling that Catholic beliefs just might be very important in the next few terms of the Court. And we should probably remember that while the United States government is built on a bedrock of separation of Church and State, the Church doesn't see it quite that way (from the October 6, 2002 Red Mass homily):

"All too often in recent years, it has been a sign of our time that some urge that the role of religion in public life be marginalized and even suppressed. And too frequently, men and women of faith have not challenged the assertion that religion is a strictly private matter and that faith in God, and its accompanying moral and social values, have no role to play in our national life. We are even told that our children should not utter God's name when reciting the Pledge of Allegiance, as if that would do them harm or make them less fully Americans. Instead of accepting this claim, our faith in God leads us to another conclusion. As we face the signs of our times -- the moral decline in society, the threats against life both from abroad and from within, and the lack of trust in our leaders -- we recognize that this time, our time, is a time for religious renewal. It is a time for us to recover our sense of God, of the sacredness of human life and of doing what is right, whatever the cost and whatever the circumstance. It is a time for us to be not more reticent, but more courageous in professing our faith in God and acting upon it.

"Pope John Paul II, the outstanding religious and moral leader in the world today, had this to say to visiting Bishops from the United States in 1998, 'The survival of a ... democracy depends not only on its institutions, but to an even greater extent on the spirit which inspires and permeates its procedures for legislating, administering, and judging. The future of democracy, in fact, depends on a culture capable of forming men and women who are prepared to defend certain truths and values. It is imperiled when politics and law are sundered from any connection to the moral law written on the human heart.' (Address of Pope John Paul II to the Bishops of Region X, June 27, 1998)

The Most Reverend Wilton D. Gregory
Homily for the Red Mass, Basilica of the Shrine of the Immaculate Conception
Washington, DC
October 6, 2002

Now, you should know that I'm leaving out the stuff about being a Good Samaritan, about how we should turn away from nuclear weapons and that sort of thing. I don't cast aspersions on the sincerity of the church fathers. But I think it's important to understand that Roe v. Wade is now going to go before four Catholic Justices, and how the Church is more than happy to tell those jurists what they should rule in such cases.

I will be curious to see how Roberts manages the tension between his religious and secular duties -- especially considering that his religion states clearly that they are one and the same. He should NOT separate them.

Now, again, Roberts is adjudged brilliant and fair-minded. Let's give him the benefit of the doubt. Here are more clues:

Harvard CRIIMSON, July 19, 2005
Alum Tapped for High Court
President Bush nominates John G. Roberts '76 to post of Associate Justice of the Supreme Court

By ADAM M. GUREN
Crimson Staff Writer

[...]

Roberts graduated from the College with a summa cum laude degree in History in only three years.

"John was a serious student," said Robert N. Bush '77, who was Roberts' roommate for three years, first in Straus Hall and then in Leverett House. "There were no parties, but John did have a social life."

The son of a steel executive, Roberts attended private school in Indiana. By the time he arrived at Harvard in the fall of 1973, he had developed a passion for history.

"John loved history, and said he'd be a history professor, but he also mentioned law," Bush said.

Bush, who has no relation to the President, said that he has not seen Roberts since graduation. But he said he has many fond memories of life with the future nominee, which include playing Nerf football in their room and hearing Roberts endlessly quote the 18th-century literary critic Samuel Johnson.

And though a top student, Roberts complained about classes he did not like having to take-which in his case were science classes.

"John took 'Physics for Poets' and grumbled the whole time," Bush said.

Bush remembers Roberts visiting professors frequently and attending church regularly.

And there was one thing Roberts could never do without-Pepto Bismol. "He was a great consumer of Pepto Bismol and always had a bottle or two on hand," said Bush.

He also remembers Roberts as a stickler for formality.

"When he was considering law schools, John removed Stanford from his list because the Stanford interviewer was wearing sandals and didn't have a tie," Bush said.

[...]

So he's not exactly casual, and was already working on an ulcer in college. Fair enough. And:

From dKosopedia, the free political encyclopedia.

He was a law clerk for Henry Friendly, U.S. Court of Appeals for the Second Circuit, 1979-1980, and for Associate Justice William Rehnquist, Supreme Court of the United States, 1980-1981. He then took a job as special assistant to William French Smith, the attorney general, U.S. Department of Justice, 1981-1982, before being appointed associate counsel to President Ronald Reagan, White House Counsel's Office, 1982-1986.

He entered private practice in 1986 as an associate at the Washington D.C. law firm of Hogan & Hartson, but left to serve from 1989-1993 as Principal Deputy Solicitor General under Kenneth Starr, U.S. Department of Justice. He returned to Hogan and Harston in 1993 as a partner where he remained until he was appointed to the Court of Appeals for the District of Columbia. In private practice and as Principal Deputy Solicitor General he has argued more than 30 cases in front of the United States Supreme Court.

It is often pointed out, in the sporting press nowadays, that he has argued 39 cases before the Supreme Court, winning 25 of them. What this Monday Night Football statistic means in handicapping the point spread, we do not yet know -- except to divine that being a trial lawyer is equated with being a gladiator, except that no gladiator could have survived so long in the Roman Coliseum with 14 losses.

Which brings us up to the present day:

Washington Post
Friday, July 22, 2005

It has been a long time since so much syrupy nostalgia has been in evidence at the White House. But Tuesday night, when President Bush announced his choice for the next associate justice of the Supreme Court, it was hard not to marvel at the 1950s-style tableau vivant that was John Roberts and his family.
...

The wife wore a strawberry-pink tweed suit with taupe pumps and pearls, which alone would not have been particularly remarkable, but alongside the nostalgic costuming of the children, the overall effect was of self-consciously crafted perfection. The children, of course, are innocents. They are dressed by their parents. And through their clothes choices, the parents have created the kind of honeyed faultlessness that jams mailboxes every December when personalized Christmas cards arrive bringing greetings "to you and yours" from the Blake family or the Joneses. Everyone looks freshly scrubbed and adorable, just like they have stepped from a Currier & Ives landscape.
...

But the Roberts family went too far. In announcing John Roberts as his Supreme Court nominee, the president inextricably linked the individual -- and his family -- to the sweep of tradition. In their attire, there was nothing too informal; there was nothing immodest. There was only the feeling that, in the desire to be appropriate and respectful of history, the children had been costumed in it.

Yes. What kid has worn that short pants outfit since the time of Buster Brown? And his wife looked like a chaperone at a prom. So, we know the strict formality is still there. I wonder if the Pepto-Bismol swigging Roberts ever graduated to the "hard stuff", like Maalox, Mylanta, Prevacid?

On the other hand ...

Washington Post
What Makes Roberts Different
By Douglas T. Kendall, founder and executive director of Community Rights Counsel, a nonprofit, public-interest law firm in Washington
Sunday, July 24, 2005

[...]

I have particular knowledge about one of these cases, having worked on it. In 2002, the property rights movement was at its zenith; developers had won a string of Supreme Court victories that undercut environmental and land-use laws across the country. That year, the court agreed to hear a challenge to a carefully crafted consensus plan to save Lake Tahoe from the damaging effects of overdevelopment. Facing the prospect of a devastating defeat, the Tahoe Regional Planning Agency did a very smart thing: It hired the best conservative Supreme Court advocate it could find. That advocate was Roberts, and he wrote the best legal brief I've ever read in a takings case. His argument in front of the court aimed at and won the court's two swing votes, O'Connor and Justice Anthony Kennedy, resulting in a surprising and broad Supreme Court victory that stopped the takings movement in its tracks.

Does this prove that Roberts is a fan of environmental safeguards? No. Indeed, his few judicial opinions on these kinds of laws suggest he's skeptical about them. But his work on the Tahoe case does demonstrate that he has the ability to see both sides of a divisive issue. This is a critical quality for a Supreme Court justice. Roberts's combination of intellect, skill, and open-mindedness should temper, at least somewhat, anxiety about his nomination....

But you've been wondering about the second part of the blog title, which I've been teasing you with.

Well, now it's time:

You see, the Bush Administration (the Younger) is already in hot water for their "lawyering" of this War. When you look at it from a legal point of view, they argue that we're not really fighting a war "in any conventional sense" and, therefore, the practices of kidnapping, imprisonment in detention facilities away from the U.S. mainland, or sending "terror" suspects to countries for "interrogation" (rendering), why those processes don't contravene the Geneva Convention (since they aren't "prisoners of war" -- having neither uniforms nor bugles) nor do they fall under the Fourth Amendment, because they're not US citizens (mostly) and aren't being held in U.S. jurisdiction, (exactly).

Then again, the Federal Judge ordered the release of the Abu Gharib photographs delayed until Friday, July 23, because the Pentagon had claimed that it needed time to blur out the faces and insignia of the U.S. torturers, and the faces of the prisoners, because showing their faces (and other parts) would CONTRAVENE their rights under the Geneva Convention. The Pentagon came back on July 23, filing a "secret brief" that the pictures shouldn't be released at all. Again, the Geneva Convention banning the showing off and humiliating prisoners of war.

Here's the Fourth Amendment:

Amendment IV - Search and seizure. Ratified 12/15/1791.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

And here's the Fifth:

Amendment V - Trial and Punishment, Compensation for Takings. Ratified 12/15/1791.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger [...]

And the Sixth:

Amendment VI - Right to speedy trial, confrontation of witnesses. Ratified 12/15/1791.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

Well, they're prisoners of war, and they're NOT prisoners of war ("enemy combatants" as per then-White House Counsel Alberto Gonzales, lately the Attorney General). And because they're NOT prisoners of war, we can torture them, but because they're prisoners of war, we can't SHOW them being tortured (it would humiliate them).

They don't get Fourth Amendment (or Fifth or Sixth) rights because they're not citizens (the Amendments say nothing about citizenship) and (more importantly) they're NEVER BEEN IN THE US! (Mostly).

So, this question came before the Pepto-Bismol Swigging, Stiff, Formal, Republican Operative and now Judge on the D.C. Circuit Court, Roberts. And the three judge panel ruled unanimously that, well, see for yourself:

(from the case):

Argued April 7, 2005 Decided July 15, 2005
No. 04-5393
SALIM AHMED HAMDAN,APPELLEE
v.
DONALD H. RUMSFELD, UNITED STATES SECRETARY OF
DEFENSE, ET AL.,APPELLANTS
Appeal from the United States District Court
for the District of Columbia (04cv01519)

Before: RANDOLPH and ROBERTS, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge RANDOLPH.

Afghani militia forces captured Salim Ahmed Hamdan in Afghanistan in late November 2001. Hamdan's captors turned him over to the American military, which transported him to the Guantanamo Bay Naval Base in Cuba. The military initially kept him in the general detention facility, known as Camp Delta. On July 3, 2003, the President determined "that there is reason to believe that [Hamdan] was a member of al Qaeda or was otherwise involved in terrorism directed against the United States." This finding brought Hamdan within the compass of the President's November 13, 2001, Order concerning the Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833. Accordingly, Hamdan was designated for trial before a military commission.

In December 2003, Hamdan was removed from the general population at Guantanamo and placed in solitary confinement in Camp Echo. That same month, he was appointed counsel, initially for the limited purpose of plea negotiation. In April 2004, Hamdan filed this petition for habeas corpus. While his petition was pending before the district court, the government formally charged Hamdan with conspiracy to commit attacks on civilians and civilian objects, murder and destruction of property by an unprivileged belligerent, and terrorism. The charges alleged that Hamdan was Osama bin Laden's personal driver in Afghanistan between 1996 and November 2001, an allegation Hamdan admitted in an affidavit. The charges further alleged that Hamdan served as bin Laden's personal bodyguard, delivered weapons to al Qaeda members, drove bin Laden to al Qaeda training camps and safe havens in Afghanistan, and trained at the al Qaeda-sponsored al Farouq camp. Hamdan's trial was to be before a military commission, which the government tells us now consists of three officers of the rank of colonel. Brief for Appellants at 7. In response to the Supreme Court's decision in Hamdi v. Rumsfeld, 124 S. Ct. 2633 (2004), Hamdan received a formal hearing before a Combatant Status Review Tribunal. The Tribunal affirmed his status as an enemy combatant, "either a member of or affiliated with Al Qaeda," for whom continued detention was required.

On November 8, 2004, the district court granted in part Hamdan's petition. Among other things, the court held that Hamdan could not be tried by a military commission unless a competent tribunal determined that he was not a prisoner of war under the 1949 Geneva Convention governing the treatment of prisoners. The court therefore enjoined the Secretary of Defense from conducting any further military commission proceedings against Hamdan. This appeal followed.

[...]

In the joint resolution, passed in response to the attacks of September 11, 2001, Congress authorized the President "to use all necessary and appropriate force against those nations,
organizations, or persons he determines planned, authorized, committed, or aided" the attacks and recognized the President's "authority under the Constitution to take action to deter and
prevent acts of international terrorism against the United States."[...]

[The Supreme Court] held that an "important incident to the conduct of war is the adoption of measures by the military commander, not only to repel and defeat the enemy, but to seize and subject to disciplinary measures those enemies who, in their attempt to thwart or impede our military effort, have violated the law of war." Id. at 11. "The trial and punishment of enemy combatants," the Court further held, is thus part of the "conduct of war." Id. We think it no answer to say, as Hamdan does, that this case is different because Congress did not formally declare war. It has been suggested that only wars between sovereign nations would qualify for such a declaration. See John M. Bickers, Military Commissions are Constitutionally Sound: A Response to Professors Katyal and Tribe, 34 TEX. TECH. L. REV. 899, 918 (2003). Even so, the joint resolution "went as far toward a declaration of war as it might, and as far or further than Congress went in the Civil War, the Philippine Insurrection, the Boxer Rebellion, the Punitive Expedition against Pancho Villa, the Korean War, the Vietnam War, the invasion of Panama, the Gulf War, and numerous other conflicts." ... We therefore hold that through the joint resolution and the two statutes just mentioned, Congress authorized the military commission that will try Hamdan.

[...]

That a court has jurisdiction over a claim does not mean the claim is valid. See Bell v. Hood, 327 U.S. 678, 682-83 (1946). The availability of habeas may obviate a petitioner's need to rely on
a private right of action, see Wang v. Ashcroft, 320 F.3d 130, 140-41 & n.16 (2d Cir. 2003), but it does not render a treaty judicially enforceable. We therefore hold that the 1949 Geneva Convention does not confer upon Hamdan a right to enforce its provisions in court. See Huynh Thi Anh v. Levi, 586 F.2d 625, 629 (6th Cir. 1978).

Another problem for Hamdan is that the 1949 Convention does not apply to al Qaeda and its members. The Convention appears to contemplate only two types of armed conflicts. The first is an international conflict. Under Common Article 2, the provisions of the Convention apply to "all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them." Needless to say, al Qaeda is not a state and it was not a "High Contracting Party." There is an exception, set forth in the last paragraph of Common Article 2, when one of the "Powers" in a conflict is not a signatory but the other is. Then the signatory nation is bound to adhere to the Convention so long as the opposing Power "accepts and applies the provisions thereof." Even if al Qaeda could be considered a Power, which we doubt, no one claims that al Qaeda has accepted and applied the provisions of the Convention.

[...]

The second type of conflict, covered by Common Article 3, is a civil war -- that is, an "armed conflict not of an international character occurring in the territory of one of the High Contracting Parties . . .." In that situation, Common Article 3 prohibits "the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by a civilized people." Hamdan assumes that if Common Article 3 applies, a military commission could not try him. We will make the same assumption arguendo, which leaves the question whether
Common Article 3 applies. Afghanistan is a "High Contracting Party." Hamdan was captured during hostilities there. But is the war against terrorism in general and the war against al Qaeda in particular, an "armed conflict not of an international character"? See INT'L COMM. RED CROSS, COMMENTARY: III GENEVA CONVENTION RELATIVE TO THE TREATMENT OF PRISONERS OF WAR 37 (1960) (Common Article 3 applies only to armed conflicts confined to "a single country"). President Bush determined, in a memorandum to the Vice President and others on February 7, 2002, that it did not fit that description because the conflict was "international in scope." The district court disagreed with the President's view of Common Article 3, apparently because the court thought we were not engaged in a separate conflict with al Qaeda, distinct from the conflict with the Taliban. We have difficulty understanding the court's rationale.

[...]

While the district court determined that the actions in Afghanistan constituted a single conflict, the President's decision to treat our conflict with the Taliban separately from our conflict with al Qaeda is the sort of political-military decision constitutionally committed to him. See [cite snipped]. To the extent there is ambiguity about the meaning of Common Article 3 as applied to al Qaeda and its members, the President's reasonable view of the provision must therefore prevail.

Suppose we are mistaken about Common Article 3. Suppose it does cover Hamdan. Even then we would abstain from testing the military commission against the requirement in Common Article 3(1)(d) that sentences must be pronounced "by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples." See Councilman, 420 U.S. at 759; New, 129 F.3d at 644; supra Part I.

[...]

Although we have considered all of Hamdan's remaining contentions, the only one requiring further discussion is his claim that even if the Geneva Convention is not judicially enforceable, Army Regulation 190-8 provides a basis for relief. This regulation, which contains many subsections, "implements international law, both customary and codified, relating to [enemy prisoners of war], [retained personnel], [civilianinternees], and [other detainees] which includes those persons
held during military operations other than war." AR 190-8 § 1-1(b). The regulation lists the Geneva Convention among the "principal treaties relevant to this regulation." § 1-1(b)(3); see Hamdi, 124 S. Ct. at 2658 (Souter, J., concurring) (describing AR 190-8 as "implementing the Geneva Convention"). One subsection, § 1-5(a)(2), requires that prisoners receive the protections of the Convention "until some other legal status is determined by competent authority." (Emphasis added.) The President found that Hamdan was not a prisoner of war under the Convention. Nothing in the regulations, and nothing Hamdan argues, suggests that the President is not a "competent authority" for these purposes. Hamdan claims that AR 190-8 entitles him to have a "competent tribunal" determine his status. But we believe the military commission is such a tribunal.

[...]

We therefore see no reason why Hamdan could not assert his claim to prisoner of war status before the military commission at the time of his trial and thereby receive the judgment of a "competent tribunal" within the meaning of Army Regulation 190-8.

For the reasons stated above, the judgment of the district court is reversed. So ordered.

Well, Roberts signed onto that one.

Military Tribunals will go ahead as planned on Guantanimo. Is he a prisoner of war, or NOT a prisoner of war? Yes, when needed, no when not. The court kind of doesn't really say, except to say that the Geneva Convention can't be enforced by a court.

Then again, since the Geneva Convention wasn't signed by Al Qaeda, they might not be subject to it. And, of course, if we capture someone in Afghanistan and they are "Taliban" then it might apply, but if they're "Al Qaeda" then they aren't. Prisoners with rights or anything, I mean.

But even though Section 3 reinforces the "due process" requirements that the Amendments (4, 5 and 6) command, a World War II citation (In re Yamashita) says that due process doesn't apply here, and, after all, the Geneva Convention can't be enforced, anyway.

BeSIDES, the Court says, it's part of the President's war powers to punish the enemy, including setting up his own courts. But then again, we aren't at war with Al Qaeda.

It is all VERY confused. But whatever the President says, goes.

And Roberts signed on to this. Hook, line and sinker.

Still, one of the Justices had problems with this, filing a concurrence ("I agree, BUT ...")

WILLIAMS, Senior Circuit Judge, concurring: I concur in all aspects of the court's opinion except for the conclusion that Common Article 3 does not apply to the United States's conduct toward al Qaeda personnel captured in the conflict in Afghanistan. Maj. Op. 15-16. Because I agree that the Geneva Convention is not enforceable in courts of the United States, and that that any claims under Common Article 3 should be deferred until proceedings against Hamdan are finished, I fully agree with the court's judgment.

[...]

I assume that our conflicts with the Taliban and al Qaeda are distinct, and I agree with the court that in reading the Convention we owe the President's construction "great weight." Maj. Op. at 15. But I believe the Convention's language and structure compel the view that Common Article 3 covers the conflict with al Qaeda.

Hmmm. Here's what the Los Angeles Times wrote:

"By Richard A. Serrano
Times Staff Writer
July 16, 2005

A three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia found that the United States could bring Salim Ahmed Hamdan and three other detainees charged with war crimes before the tribunals without violating the Geneva Convention.

Resumption of the tribunals would mark the first time since World War II that prisoners of war and so-called enemy combatants would be tried in a court-martial setting.

[...]

Justice Department lawyers who have defended the military tribunal process said Friday that the decision was a "major win for the administration" in the war on terrorism. Atty. Gen. Alberto R. Gonzales said the ruling reaffirmed the Bush administration's "critical authority" to proceed with the tribunals.

[...]

Neal K. Katyal, a lead lawyer for Hamdan and a Georgetown University law professor, called the decision "contrary to 200 years of constitutional law." ... "As many retired generals and admirals of our military have stated," Katyal said, "the cavalier treatment of individuals at Guantanamo Bay " and the setting aside of the Geneva Convention in the military commission process -- threatens our troops, our interests and our way of life."

[...]

The Supreme Court ruled last year that detainees should be given some kind of due process, but was vague about what type. If the justices agree to hear the Hamdan case, they will have the opportunity to spell out how prisoners in the war on terrorism should be tried.

If the case is accepted and Roberts is confirmed, I'm sure he can explain to them when a war is a war and when a prisoner of war isn't a war, and when a prison isn't a prison, and whether a trial is a trial. I can't make heads or tails of it myself, but Roberts is "the best legal mind of his generation" so I guess it's beyond my ken.

Still, I wonder, if it were Catholics being tried, whether Roberts would decide the same way. I'm not singling out Catholicism for prejudicial treatment, except that it's not an accident of birth. It is a volitional belief system, and one that demands of its adherents that they NOT observe the separation of church and state that our Constitution demands.

Given that Pope Joey Rats, when he was running the Inquisition last year, before his promotion, told Catholic priests to deny Communion to John Kerry because Kerry had exercised his SECULAR duty in being personally against abortion, but, as a Senator, being in favor of a woman's right to decide the issue, individually. Yeah. Given THAT, I have to ask how John, "Super Straight Conservative" Roberts, with his devout Catholic Lawyer Wife -- who is a big mover & shaker in the Pre-Supreme Prayathon of "Red Mass" -- is going to set his priorities.

The Los Angeles Times carried this:
http://www.latimes.com/news/printedition/opinion/la-oe-turley25jul25,1,3397898.story?coll=la-news-comment

The faith of John Roberts
By Jonathan Turley, law professor at George Washington University.

July 25, 2005

Judge John G. Roberts Jr. has been called the stealth nominee for the Supreme Court - a nominee specifically selected because he has few public positions on controversial issues such as abortion. However, in a meeting last week, Roberts briefly lifted the carefully maintained curtain over his personal views. In so doing, he raised a question that could not only undermine the White House strategy for confirmation but could raise a question of his fitness to serve as the 109th Supreme Court justice.

The exchange occurred during one of Roberts' informal discussions with senators last week. According to two people who attended the meeting, Roberts was asked by Sen. Richard Durbin (D-Ill.) what he would do if the law required a ruling that his church considers immoral. Roberts is a devout Catholic and is married to an ardent pro-life activist. The Catholic Church considers abortion to be a sin, and various church leaders have stated that government officials supporting abortion should be denied religious rites such as communion. (Pope Benedict XVI is often cited as holding this strict view of the merging of a person's faith and public duties).

Renowned for his unflappable style in oral argument, Roberts appeared nonplused and, according to sources in the meeting, answered after a long pause that he would probably have to recuse himself.

It was the first unscripted answer in the most carefully scripted nomination in history. It was also the wrong answer. In taking office, a justice takes an oath to uphold the Constitution and the laws of the United States. A judge's personal religious views should have no role in the interpretation of the laws. (To his credit, Roberts did not say that his faith would control in such a case).

So that's really in line with what I'm afraid of in all of this. Given the choice between the Constitution and the Pope, he punts and hides in a corner. Priests may well pursue him to convince him that it is his religious duty to use his vote for the Church. That's the straitjacket that an inflexible righteousnesss clothes one with.

Is this John G. Roberts?

And former "Crossfire" host Bill Press wrote in his syndicated column (July 22, 2005):

Perhaps most troubling of all about Roberts's record is a little-known case involving a young girl and a single French fry. It happened on the Washington subway system, where eating and drinking are prohibited. A 12-year-old was spotted on the subway eating a French fry. She was arrested, handcuffed, frog-marched off to police headquarters, finger-printed and detained for three hours until her mother arrived to pick her up. The outraged mother filed suit against the Metro. The court ruled for the mother, but Roberts sided with the city - a frightening insight into his lack of regard for individual rights and his excessive tolerance for the abuses of Big Brother.

I guess she didn't wear a tie.

All right: we know some things about this fellow, but, really, we don't know anything about him. He could be another Scalia (Bush's Dream) or he could end up as another Justice Brennan (who was appointed by Eisenhower, a Union-Busting, Republican New Jersey lawyer) who ended up as the guts, brains and engine of the Warren Court -- the fellow who personally "turned" Harry Blackmun, who went from being a childhood friend of Chief Justice Warren Burger to writing Roe v. Wade.

I have a feeling that only time will tell. But at least we know something. Still, we don't know this:

When is a war not a war? Whenever it suits the Administration to say so? And when is a prisoner of war a prisoner of war? When George Bush wants it? I only ask because we need judges that won't rubber stamp any kind of depredation on the rights of the accused.

Right now, I think Roberts leans a whole lot to the Antonin "Scarface" Scalia side of the scales of Justice. But I don't really know.

You'll have to ask John G. Roberts, and then you be the judge.

For now.

Courage.
.

CLASS WARFARE
or, WHEN IS A WAR NOT A WAR? (Part I)

A quick note: there was no blog yesterday. I am editing a novel, and that pretty well drains the linguistic battery in my brain. As I've noted before: I'm a working writer, and the blog is pro bono. So, hopefully, by week's end I'll be back to dailies.

And they'll be worth every penny you paid for 'em. 'Nuff said.

Another quick note: I have noted in the "progressive" -- heck in ALL -- coverage of Supreme Court nominee John G. Roberts, the continual and disparaging use of the term "white male." GOOGLE:

Lack of diversity on high court disappoints
Kansas City Star, MO - 11 hours ago
... to President Bush's nomination of federal appellate judge John Roberts Jr ... as many Hispanics had openly advocated, the president selected a white male to fill ...

The Court gets another white male: John Roberts
Oregon Daily Emerald, OR - Jul 21, 2005
Tuesday night President Bush announced his Supreme Court nominee to the nation: Judge John Roberts, a Harvard graduate with law experience within the White ...

Young justice might be good for Supreme Court
Everett Navy Base News, WA - 12 hours ago
... They'll have lives and opinions and struggles. John Roberts Jr. ... Yes, he's another white male. The high court has plenty of those. ...

Public has right to know about Roberts
San Jose Mercury News, United States - Jul 23, 2005
... And for this time, the president has chosen John Roberts.'' For this time ... black man and one woman -- we want to know whether yet another white male, of boarding ...

SOUTER IN ROBERTS' CLOTHING
Yahoo News - Jul 20, 2005
... to disappoint all the groups he had just ginned up and nominate a white male. ... But unfortunately, other than that that, we don't know much about John Roberts. ...

Andy Borowitz: Roberts Vows to be the Most Generic White Male in ...
YubaNet (satire), CA - Jul 21, 2005
... as either "Jim Rogers" or "Bob Roberts," with over seventy percent confusing him with CBS news anchor John Roberts, yet another prominent generic white male. ...

Give Us A Break Department: Roberts Nomination Setback To ...
The Moderate Voice - Jul 22, 2005
... who suggests that just because Bush appointed Roberts (who is a white male, in case ... But was John Roberts chosen because he's the best choice for the court or ...

Activists stake out positions on Roberts
NorthJersey.com, NJ - Jul 21, 2005
... of all Americans, so I want to learn more about John Roberts before coming to ... groups said they were disappointed that the president had chosen a white male. ...

Not another white man!
Salon - Jul 20, 2005
... And now that George W. Bush has picked John Roberts, another white male, to replace O'Connor, the court will become significantly less diverse. ...

Bush back on his game -- for now
Houston Chronicle, United States - Jul 20, 2005
... control, such as the Senate debate over his nominee, John Roberts, and developments ... that made Bush look inclusive, even after he picked Roberts, a white male. ...

The Prince Of The Right
CBS News - Jul 21, 2005
Judge John Roberts is a white male who has spent his entire adult life in Washington. Those facts themselves mean nothing, but they ...

Selection doesn't serve diversity, groups complain
Dallas Morning News (subscription), TX - Jul 20, 2005
... The nomination of a conservative such as John Roberts to the Supreme Court caught few legal experts by surprise. ... "This nomination of a white male ... ...

Nominee no stranger to Supreme Court
Washington Times, DC - Jul 20, 2005
... "John Roberts knows his way around the court and is a solid candidate for nomination ... to approach the law as a Roman Catholic, nor as a white male," Mr. Coffin ...

Critical Theory
New Republic (subscription), D.C. - Jul 21, 2005
... the political risk-taker in the White House decided not to take risks: He picked the sane, smart, and safely conservative John Roberts--a white male with a ...

Nomination disappointing to those hoping for a woman or a minority
Concord Monitor, NH - Jul 21, 2005
... reaction to President Bush's nomination of federal appellate judge John Roberts Jr. ... Hispanics had openly advocated, the president selected a white male to fill ...

Some Disappointed Nominee Won't Add Diversity to Court
Washington Post, United States - Jul 21, 2005
... Latino justice, as many Hispanics had openly advocated, the president selected a white male to fill ... And, for this time, the president has chosen John Roberts.". ...

(Go ahead, GOOGLE it yourself. "John Roberts" "white male")

Well, as a white male, I've watched for most of my life every fringe group in this country scream and yell and bitterly complain when the slightest slight is applied to THEIR pigeonhole. I have listened to the most blatant racial and sexual pandering at Democratic Convention nominating sessions, and I have remained silent.

But I'm going to draw the line here: how DARE you disparage me for my "race" and my gender. If you don't like Roberts, make it because he's a dick. But don't pull my "classification" into it.

I have spent my entire life doing my level best to avoid being racist, sexist and homophobic. I did this before it was "fashionable" and long before it was PeeCee. I didn't kill your damned grandfather. I didn't beat your damned grandmother. I didn't oppress you; I wasn't afforded any privilege, I wasn't given any magic keys to anybody's kingdom.

Your inability to look beyond the color of a person's skin, or their genitalia is *your* shame and your degradation, but I ain't the excuse you're looking for to explain your lack of ultimate success in whatever endeavor you'd like to blame "white males" for.

And, if Roberts is a nefarious weasel bastard, it AIN'T because he's got a dick and not much melanin. So don't even go there, you racist, sexist bastards. If we are ever going to have equality under the law in this society, disparaging people because of the accident of their birth isn't the path that's going to take us there.

Besides: if these "white male" bastards have been oppressing ALL of everybody else for all time, then isn't it kind of stupid to continually be pissing them off? And if they haven't, why treat them as if they have? You can't have the argument both ways. Heck, you can't have it, either way. Just to warn you: If you decide to push that button in my presence, I WON'T be polite. And I will let you have it (rhetorically) with both barrels. Equality means just that, and I refuse to accept that I'm a second class citizen.

That said, I know quite a bit about John Roberts by the unfortunate accident of our shared zeitgeist (and not because we're both "white males" you racist pricks).

We both graduated from high school, class of 1973, in a heavily Catholic milieu, and we both finished college in 1976. We both worked in steel mills. And, for a time, we were both pre-law. We were both young Republicans through Watergate, and both got to drive around Massachusetts in 1974 continually assaulted by "DON'T BLAME ME, I'M FROM MASSACHUSETTS" bumper-stickers (the only state that George McGovern carried in the 1972 presidential election) referring to Watergate.

There, more or less, the resemblances end (thank God), but I know quite a bit about the cultural influences that formed him.

One of them, I think you'll pick up real quick: he has been disparaged because of the color of his skin and because of his gender, beginning his senior year in high school. There is a LOT of "angry white male" rage out there, and, whether he shows it or not, I have a feeling it's there.

He was the darling of his Catholic High School, which means that he probably had not an ounce of rebellion in him. He was a "straight arrow." He grew up in a tri-level faux-English Tudor split-level ranch house in an affluent neighborhood. Upper middle middle class, you might say. Lake Michigan was a block away.

He probably rode a bike and shot off Estes rockets. Or he had a chemistry set or a telescope. It was a comfortably middle class upbringing. They probably got a color television set somewhere between 1965 and 1967, when they were still pricey, but increasingly ubiquitous.

He came of the first Television generation, and probably never knew a time when there wasn't a TeeVee in the house. He watched the John F. Kennedy funeral on a Saturday morning, and wondered if the cartoons would ever come on. (They didn't).

He was up for the last year of the Vietnam draft. He may have spent (as I did) a sleepless night before the lottery. Since only the top seventeen numbers would go, he knew the odds on his side were pretty good. He got a draft number higher than seventeen, and was classified 1-H, (for "Hold") and never had to decide what to do if he was drafted.

(I "won" the lottery that day: I came in at 351, a number that I will never forget.)

His high school days were filled with football pep rallies, wrestling, track and proms. He has that dumb "Prince Valiant" disco hairdo that was the compromise of most of my generational, male cohorts: not long, not short. He graduated from high school in a year that the entire class, across the USA went from "Love Generation" wannabes to the proto-"Me" Generation polyesterizers.

And Roe v. Wade was decided that year, in 1973. I wonder what the Catholic fathers at his high school had to say about it. And I imagine that first impression has remained with him, and hardened over the years. He never had to (as I did) accompany a girlfriend on a long bus ride to an abortion clinic, to keep both from having their future derailed by the tyranny of biology.

He probably knew someone who did, though. He might, if he'd been that Eagle Scout kind of guy, have accompanied a friend whose boyfriend skipped out, and who didn't want to go alone. If he had, he'd have been one of the very, very few males of that time who did. Abortion clinic waiting rooms were notable for their lack of male significant others. Then again, he might have talked her out of it.

When he got to Harvard, he was immediately informed that, as co-captain of his Catholic high school football team, and "Mr. Clean" he was a sleazoid White Male Oppressor. He was verbally assaulted, directly and indirectly throughout his entire collegiate career, and, as a Reaganaut in Training, he learned to be passive-aggressive and hold it in.

So, he knows what it's like to be discriminated against, if that provides any solace. But, sad to say, I don't think he has a lot of empathy for those for whom it is a constant in life. He's probably just quietly pissed off.

He was raised to be an Eagle Scout. I don't know whether or not he was ever even in scouts, but the comment that he's been "an Eagle Scout" in his private life, from promoters inside the Beltway is as telling a statement about Roberts' background as it is about his deportment.

He was raised to take his place at the tiller of society, yes, as a white male. He was raised with "Rawhide" and "Batman." He was raised with "Leave it to Beaver" morality and without video games (Pong wouldn't show up until he was in college, usually in bars and pubs, and I wonder if Roberts ever frequented them. He strikes me as a narrow moral prig, when you look at it.)

He came of the last generation to read books for fun. I'm certain that virtually every dorm room he ever visited had "Stranger in a Strange Land" and/or "Dune" and/or a volume of "Lord of the Rings" (the old Ace ripoff paperback trilogy) dog-eared and lying face down on a convenient flat surface. Whether he did much reading for fun isn't apparent: he graduated in 1976 (I dropped out in 1976), so his nose was to the grindstone.

I am sure that he was drawn into the Republican circles at Harvard: the old money, East Coast Establishment. The conversation probably often was an unburdening of passive-aggressive white male rage. If you remember PeeCee, you have no idea how intense it was on college campuses, then. If you used "man" as a suffix, you were immediately (and often with great hostility and condescension) CORRECTED. You learned to rein in your tongue. You learned to self-censor. And Harvard was the epicenter of the cultural quake.

It was easier than trying to fight a Quixotic battle: the very language was a battlefield. Political views were openly radical at Harvard, and moderate-to-conservative views were not acceptable. I debated in those years, and traveled to colleges and universities all over the US, and it was the same everywhere you went.

Feminism was the battlefield, and white males need not apply. (The left-leaning male of the era became either a Quisling, willing to scream louder than anyone else, or else gravitated to ecology, where, until the mid-90s, one could be a white male and PeeCee, without automatically being on the losing side of any proposition by virtue of one's suspect race and gender).

So, I would imagine that there's an astonishing amount of passive-aggressive anger in our Nominee.

Then again, I'd be curious to know whether he grew his hair long, and continued to wear flare jeans. Whether he toted a backpack around Cambridge, and if he had a little fling with being a campus liberal. After all, he'd been the ROLE MODEL in High School, and finding himself an outcast wouldn't have set well with him. Perhaps that explains why he finished the four year program in three: he buried himself in getting his degree so that he wouldn't have to participate in the hyper-liberal politics of mid-70's Harvard.

I wonder what he listened to? The Captain and Tennille, or Led Zeppelin? The Bay City Rollers or The Rolling Stones? The Carpenters or Jethro Tull and the Who? Tony Orlando & Dawn and Carly Simon, or the Moody Blues and Pink Floyd? Did he own a copy of "Dark Side of the Moon"?

It would tell me a lot about him. I was listening to the latter, and most of those people who were shooting for the house in the suburbs and the six-figure incomes listened to the former. 1973 was the high water mark of rock and roll. I wonder if he even noticed.

We also know that Roberts was bright.

OK: I was bright, too. I was a National Merit Scholar, so I can probably make the statement without seeming to bray.

My point is only this: Intelligence is more than just getting good grades, graduating summa cum laude and being on the Law Review. I knew a Rhodes Scholar. He was a hippy-type guy, beloved of the PeeCee troops on the campus, and, other than his infuriatingly patronizing attitude (he knew it ALL, and hob-nobbed with the Philosophy profs), basically he only colored inside the lines.

If there's anything that stands out about Roberts' educational and later legal career, it's that he has mapped out and followed an ambitious program of utter conventionality. He colored perfectly, not a mark outside the lines. But that is NOT creative intelligence. It is as easily attributable to eidetic memory and careful self-control. So, we only know that he's bright. Whether he can actually think for himself, originally and fundamentally, we don't know, and may not know for a few years.

Now, while the Rhodes Scholar and Roberts might well have been diametrically opposed in their coping strategies, the essential sameness applies: they colored inside the lines; they followed whatever written and unwritten rules were required to get good grades. They both saw "good grades" as their passport, and coveted them as greedily as any miser. At Harvard, I'm sure that he had no problem espousing, or SEEMING to espouse views alien to his thinking as a means of getting that summa cum laude appellation.

But intelligence is more than just playing the game superbly, if conventionally. He made the Harvard Law Review, the ne plus ultra of Lawyerdom. That Harvard cachet has been an "E" ticket ride to the top ever since John Adams (the Elder) and John Quincy Adams (the Younger).

John Roberts undoubtedly used those good Harvard connections to rise within political society. He clerked for a Circuit Court Judge (Friendly) and then, the plum of all jobs for a young lawyer on the make: he clerked for a Supreme Court Justice. Rehnquist was still an Associate Justice, and it was on the Burger Court, so I can well imagine the amount of Conservative Rage that he and the Burger clerks fumed about at the clandestine lunch bull sessions they'd have, away from those "awful" liberal judge' clerks: Brennan and Marshall, Blackmun (the turncoat!) and the rest.

And he would have been IN the Court when Reagan was elected to begin the dismantling of the New Deal -- that conservatives have dreamed of ever since the landslide of 1932 swept the Republicans from power. Those must have been interesting law clerk conversations in the lunchroom.

He would spend a huge chunk of his career in intimate contact with the Supremes. But I'm getting ahead of myself.

(tomorrow: Part II)

Courage.
.