Archive for June, 2008
a good day for basic human liberties

yaay habeas corpus.

Kennedy is the difference between a conservative — someone whose values I frequently dislike and disagree with, but who is in many ways a respectful person — and a proto-fascist.

For the right-wingers who like to throw the term “fascism” around, the core concept of fascism is that the State takes precedence over the Individual. Habeas corpus — the right to appeal imprisonment by the State (to another arm of the State, usually) — is the fundamental human right that distinguishes fascism from non-fascism. Other human liberties — freedom of expression, freedom of belief, freedom of movement — are likely more germane to most of the people most of the time. But habeas corpus is the counter to the most basic power representatives of the State assert: the power to imprison individuals. It’s pretty limited as far as rights go — it boils down to a right to argue with the reasons for imprisonment. But without this fundamental check on the State’s power, every other human liberty is a hollow promise.

Roberts’ dissent — effectively, “what are they complaining about? we treat them so well!” — is the same response that can be heard in any institution that has robbed people of their liberty, from dictators to slaveholders to prison keepers to that horrid Austrian guy who said, “I could have killed my daughter” (instead of imprisoning and raping her for decades).

So yaay habeas corpus. Yesterday’s decision gives me some hope that we may yet arrest our slide into unmitigated fascism.

… a few more thoughts on reading Boumediene v. Bush:

Souter’s concurrence (joined by Ginsburg & Breyer): Souter takes on the dissent’s cries of judicial activism, which essentially argued that the case wasn’t sufficiently politically ripe — that the Supreme Court should have sat on its hands and not rushed to judgment to cut out the proper executive (read: military) procedures. I liked it a lot so I quote in full:

A second fact insufficiently appreciated by the dissents is the length of the disputed imprisonments, some of the prisoners represented here today having been locked up for six years []. Hence the hollow ring when the dissenters suggest that the Court is somehow precipitating the judiciary into reviewing claims that the military (subject to appeal to the Court of Appeals for the District of Columbia Circuit) could handle within some reasonable period of time. See, e.g., post, at 3 (opinion of ROBERTS, C. J.) (“[T]he Court should have declined to intervene until the D. C. Circuit had assessed the nature and validity of the congressionally mandated proceedings in a given detainee’s case”); post, at 6 (“[I]t is not necessary to consider the availability of the writ until the statutory remedies have been shown to be inadequate”); post, at 8 (“[The Court] rushes to decide the fundamental question of the reach of habeas corpus when the functioning of the DTA may make that decision entirely unnecessary”). These suggestions of judicial haste are all the more out of place given the Court’s realistic acknowledgment that in periods of exigency the tempo of any habeas review must reflect the immediate peril facing the country.
It is in fact the very lapse of four years from the time Rasul put everyone on notice that habeas process was available to Guantanamo prisoners, and the lapse of six years since some of these prisoners were captured and incarcerated, that stand at odds with the repeated suggestions of the dissenters that these cases should be seen as a judicial victory in a contest for power between the Court and the political branches. [] The several answers to the charge of triumphalism might start with a basic fact of Anglo-American constitutional history: that the power, first of the Crown and now of the Executive Branch of the United States, is necessarily limited by habeas corpus jurisdiction to enquire into the legality of executive detention. And one could explain that in this Court’s exercise of responsibility to preserve habeas corpus something much more significant is involved than pulling and hauling between the judicial and political branches. Instead, though, it is enough to repeat that some of these petitioners have spent six years behind bars. After six years of sustained executive detentions in Guantanamo, subject to habeas jurisdiction but without any actual habeas scrutiny, today’s decision is no judicial victory, but an act of perseverance in trying to make habeas review, and the obligation of the courts to provide it, mean something of value both to prisoners and to the Nation. [some internal cites omitted]

©rappy birthday to the ©opyright alliance

Bill Patry was withering in his critique of the Copyright Alliance’s efforts to define itself as one of the big kids. For example,

Leaving aside the painfully juvenile use of © in voi©e, the math used by the Alliance challenges even the math used by the IIPA in its annual country “piracy” reports.

That is pretty funny, and you should probably go over there & read Bill Patry’s scathing comments instead of my own overheated meanderings. If you’re staying here, you should know that basically the Copyright Alliance is an organization designed to give voice to copyright-holders, the “11 million Americans whose livelihoods depend on the principle of copyright.” Not just give voice, but “one voice”, as their new ad campaign says.

In the few minutes I had today between efforts to get various air conditioners running (thank you, East Coast heatwave), I spared a few of my non-melted brain cells to this organization and its ad campaign. “One Voice.” Probably not an original observation, but one voice for copyright holders — or even those who profit from copyrights — is utterly impossible. There are just too damn many of us and our personal financial interests in copyrights are far too diverse for us to have remotely any ability to speak with “one voice” on copyright. Every creator is representing reality to some extent, but every aspect of reality that they represent also has its own interest. Photographers’ interests are in opposition with those of their subjects and the creators of their subjects and of course those who commissioned their works. Everybody is in opposition with those who seek to represent the same slice of reality

The copyright industry, in fact, has shot itself in the foot. By expanding copyrights ever further, they have in a sense radically democratized copyright ownership. We all now have copyrights in every chicken pot. Instead of a limited monopoly granted only to a few for a short time — a compromise most of us could roll with in order to keep those few doing what they did — now copyright is something that each of us has over all kinds of stuff, and something that each of us interfaces with multiple times on a daily basis. Thus with everybody holding and using multiple copyrights simultaneously we all have the potential to interfere equally with one another. It’s like mutually assured destruction, and so it’s no surprise that some folks are going to advocate for copyright disarmament.

My brain cells really are melting into one another — the similes just keep on coming. I am also reminded of the Libertarian Heinlein myth that an armed society is a polite one — the “wisdom” goes that if everybody has a gun, then everyone has an interest in being polite to everyone else. So too must have gone the wisdom with copyright at some point — if we all have copyrights then we will all be interested in respecting them, we can all live together in the best of all possible copyright maximalist worlds. But the Heinlein armed society is a myth because people may not act in their own self-interest, or their definition of self-interest may not correspond with your definition of their (or your) self-interest, or their self-interest may be benefited by disproportionate harm to others’ self-interest, or they just may not be able to act in a way that makes reciprocity function smoothly … well one could go on for a while but it’s like Dick Cheney shooting birds in a blind — too easy to be sportsmanlike. Anyway just as the Heinlein armed society is a myth, so too is the universal copyright / copyright-respecting society. Everyone can probably find someone to agree with them about how copyrights should be defined, respected, used, and so on, but the differences in opinion mount so quickly it’s hard to imagine a large group of individuals sustaining “one voice” for any significant amount of time.

So there you have it. Heat-addled ruminations on the decline and fall of the copyright industry and its lobbying arm. I’m spinning off into ecological models now, with the copyright industry outgrowing its ecology in the absence of natural predators, so I think I’m going to go splash some cool water on my face & lie down in the shade.

Tech Coed

My father-in-law (in Massachusetts) was in town for his fiftieth MIT reunion — class of 1958! He took my partner and me to a couple of events, and we noticed among the red-jacketed men a few red-jacketed women. By various accounts, there were nine to fifteen women (out of a thousand students) in the Class of ’58 at MIT, a half dozen of whom were at the 50th reunion.

Tonight, five of them — representing mathematics, chemical engineering, mechanical engineering, and physics — got together and revisited a song they sang back in the 50s, called something like “My mother was a Tech Coed” — apparently a takeoff of another MIT favorite, “My father was a something something engineer.” We chatted with some of them tonight for a while, and got to hear amazing stories about classes, the women’s dorm that held only 17 students — so the rest had to live off-campus — and other experiences of MIT in the 1950s.

But the song was the highlight, and they were kind enough to give us permission to reprint the lyrics that they sang — they said there were probably ten or fifteen verses altogether in the original. The first four are what they recalled of those verses. The last two they wrote at the reunion.

She never held me on her knee
But she was all the world to me
That lady with the pointy head
My mother was a Tech coed.

She couldn’t cook she couldn’t sew
But she could fix a radio
She used T-squares to make a bed
My mother was a Tech coed.

As she approached maternity
She also got her PhD
And started working on Pre Med
My mother was a Tech coed.

Her cocktails were a potent brew
She learned the trick in 5.02*
She always bought her cakes and bread
My mother was a Tech coed.

Now 50 years have come and gone
I still remember dear old mom
Her dying breath she taught me well
Above all else, that Tech is hell.

We are the queens of gray and red
The very coolest Tech coeds.

* Second semester freshman chemistry.