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]

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.

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.

Amsterdam, Netherlands, May 27—Geneticists at Leiden University Medical Center (LUMC) have announced the first complete sequencing of a woman’s genome. The announcement was made at Bessensap, an annual meeting bringing together scientists and the press in the Netherlands.

The DNA of Marjolein Kriek, a clinical geneticist at LUMC, will be made public after a full bioinformatics analysis that will take approximately six months. “We considered that sequencing only males, for ‘completeness’, slows insight into X-chromosome variability. So it was time, after sequencing four males, to balance the genders a bit,” remarked Gert-Jan B. van Ommen, head of the LUMC team.

eurekalert.org via partner’s subscription to компютри втора употребаBioTechniques Weekly

I guess that answers Dorothy Sayers’ question.

Farewell to the crown, farewell, the velvet gown, won’t you all come tumbling down? Goodbye to the crown! (Chumbawamba, “Farewell to the Crown”)

Nepal votes out their monarchy and institutes a republic. Gyanendra has to vacate the palace within two weeks or face eviction. Also, he had to start paying his own electric bills a while back. Ha ha, I love that. It is balm to my troubled soul. The palace building will be turned into a museum.

The NYT also reports that former Illinois governor George Ryan, with six years left on his prison term for racketeering and fraud, will seek executive clemency from Bush.

The lawyer, James R. Thompson (also a former Illinois governor), said any larger purpose in the conviction and sentence of Mr. Ryan, 74, had been served. “The man has gone from being the governor of the state of Illinois to being a prisoner in a federal penitentiary,” Mr. Thompson said, later adding: “His career is gone. His reputation is gone.”

Ah if only that were the standard for all prisoners. Anyway I will say that Ryan did a good thing by ordering a moratorium on the death penalty after learning of wrongful convictions.

And, finally, the NYT reports on McCain’s use of Bush for fundraising:

Despite the efforts by the McCain camp to keep at arm’s length a president with an approval rating stalled at 28 percent, it is worth remembering that that 28 percent can be fiercely loyal and often wealthy. … “He is very popular with high-dollar donors,” [conservative economist] Mr. Bartlett said of the president.

updated 5/29: Also this note on how the presidential fundraising travel expenses get billed:

By blending official events with party fundraising, Bush dramatically reduces the cost of presidential travel that’s charged to the political campaigns. Taxpayers pick up the rest of the tab.

Still even though I had massive external provocations (why is it that people in Boston do not seem to have learned how to make left turns in an intersection?) Tom Ashbrook was far more annoying. “On Point”, hosting an hour-long discussion on the earthquake in China’s Sichuan province. At one point a caller made the eminently reasonable point that US resources were committed to Iraq, leaving us vulnerable to natural disasters; he brought up the US national response to Hurricane Katrina.

Now, there are sooo many reasonable responses to this point. But Tom Ashbrook totally ran this one off the rails onto his own bizarre tangent. Which apparently was an interest in discussing how authoritarian governments stack up against democratic governments in responding to natural disasters.

The conversation went like this:

Caller Ron from Sumter, South Carolina: The catastrophe that we had in New Orleans was very small death-wise compared to this one and we saw how that tested our resources. We need to focus our resources on strengthening this country for something exactly like this. Because it could have very easily been San Francisco. How could this country absorb that? Would we be able to absorb it with so many of our resources being sent to Iraq? And I don’t hear anyone saying that. It’s all about Beijing, Beijing, China. But we should use this as an example. Any candidate — no names mentioned — that says staying in Iraq, using our resources over there, when we are in global warming, we teeter every day on the brink of destruction from not another country but from nature. We need to be using our resources to strengthen this country ….

Tom Ashbrook: [We've got your point and it's strongly made.] Orville Schell, it is interesting, if you get online it is not at all hard to find a kind of debate about China’s system and America’s system and whether the speed so far of China’s response to this earthquake may show that it’s more effective, it’s a more authoritarian political system than america’s democracy. There is a kind of dialog that’s underway here about who’s got the better system that works better when the chips are down …

Guest Orville Schell [one of three white male guests; the other was a Chinese male guest]: It’s a very interesting point, and when foreigners do go to China they are just simply flabbergasted … by the level of development … It’s not one or two potemkin cities; it’s all over the country. And we do ask ourselves is democracy the best system and possibly not the most efficient system and maybe China has the answer with its new form of sort of authoritarian and marketized economy. …

Okay, that’s the part that infuriated me. Schell then went on to say what, like, a million other people have already said: That shoddy construction was responsible for the scale of the disaster. He tied this into over-fast development that is poorly planned, and then finished by quickly, in one sentence or so, responding to part of the caller’s point by saying that disasters like this aren’t something any country can really handle. (Which, I think is crap.)

Okay, Tom Ashbrook, I appreciate that it is hard to run a radio show, and respond to issues on the fly, but come on! There is so much wrong here.

First of all, this was almost completely non-responsive to a completely reasonable caller. Ashbrook could have taken it to the election and the candidates’ positions; discussion of global warming; resource allocation to Iraq; whether the US is prepared to meet such a calamity — all reasonable responses to the caller’s question.

Instead, Ashbrook started talking about online chatter comparing democracies and authoritarian regimes in responses to government. Dude, that wasn’t what the caller was talking about. If you’re interested in raising this discussion — which you clearly are — just do it on your own question, and don’t hijack Sam from South Carolina. Or if you’re going to hijack a caller’s question, at least do it on one of the crackpots, and not on somebody making a perfectly reasonable point about US decisions to allocate resources leaving us in a bad place.

Second, while there might have been some interesting points to be made about this online chatter, neither Ashbrook nor Schell chose to make any of them. Instead, they discussed democracies and authoritarian governments in utterly inapposite ways, comparing choices of the government, to choices of the people in electing governments. These two are not the same thing.

Hurricane Katrina was not a failure of “democracy”. It was a failure of the Bush administration. I reluctantly concede that a large number of people in this country had fucked up and stupid priorities in electing Bush, but they still expected, and deserved, a minimum of competence in fulfilling basic government functions like disaster management. The Bush administration chose to prioritize rewarding minor political appointees rather than effective administration. That they were more than usually corrupt and incompetent may not be unexpected, but it wasn’t unreasonable to expect otherwise. (Boy, my grammar certainly got tortured and quadruply negative when having to discuss the reasonableness of not expecting the worst of the Bush administration.)

So why are they going on about authoritarian governments? If online chatter has been comparing disaster responses of an authoritarian government with disaster responses of a democratic government, well, one ought to point out that

(a) disaster response has mostly and most directly to do with government priorities;

(b) to the extent that government competence or interest in disaster response has to do with accountability to the populace, then an authoritarian government has no more reason to make its citizens a priority than does a democratic government, and, rather obviously, has a lot less reason to do so. We might discuss to what extent, and why, China departs from what might be expected of authoritarian governments. Or, as the caller suggested, we might discuss why and to what extent the US departs from what might be expected of democratic governments. But to just assume that whatever differences exist, between China and the US, can be attributed to the method in choosing government is just — well, stupid. So maybe online chatter is being that stupid (or maybe not), but if you the radio show host raise a stupid issue, or raise an issue stupidly, then you really have to point out what’s stupid about it!

(c) if we’re talking about government operations, rather than methods of choosing governments, the US government –especially under the Bush administration — is also authoritarian. In its operation, the US government is not “democratic”. FEMA staff don’t vote on how to respond, or have committee meetings which slow things down. FEMA — and every other government agency in this country — is an authoritarian entity in its operation. The marginal difference in authoritarianism between China and the US does not seem likely to me to account for the differences in Chinese and US disaster responses.

Anyway in retrospect and after listening to the radio archive I blame the whole thing on Tom Ashbrook, and hereby cut white guy Orville Schell a little more slack for attempting to respond to the caller and attempting to make some reasonable conversation out of Tom Ashbrook hijacking of the caller’s question. And, okay, sure, maybe some of my irateness had to do with Boston traffic, and was not wholly due to the willful oversimplification of complex questions and perhaps inadvertent fostering of anti-democratic discourse. Still.

First, this morning in an article about same-sex marriage in the NYT, there was utter stupid cluelessness that led me to conclude the article must have been written by a straight person. And indeed, But then I just looked at the byline and it was by Adam Nagourney, which explains this article. Why is Adam Nagourney so bad? Anyway today he wrote in paragraph 1:

Gay marriage is an issue on which the three major presidential candidates — John McCain, Barack Obama and Hillary Rodham Clinton — are pretty much in agreement. All oppose it, while saying at the same time that same-sex couples should generally be entitled to the legal protections afforded married couples. All think the decision should be left to the states.

Later in the same article Nagourney sums up the positions of the candidates:

Mr. McCain supports marriage “between a man and a woman” and opposes any legal recognition of a same-sex relationship. But he is against an amendment to the Constitution, backed by many conservatives, that would ban same-sex marriage. … Mr. Obama and Senator Clinton are more explicit in their support of civil unions, but both campaigns were quick to restate their views that the candidates believe the act of marriage should be between a man and a woman, a formulation that seems to have succeeded in taking the sting out of the issue.

First of all, “opposing any legal recognition of a same-sex relationship” is not even remotely equivalent to “support of civil unions”, and only a total jack-ass would think it is, or write language that suggests that it is.

Second, McCain’s position is not “less explicit”; it is contorted and confused. At some times he has come out clearly against civil unions. Other times he has equivocated and said states should be able to do what they want (although, I note, that was more often in the context of states passing anti-same-sex-marriage laws). Call his position(s) vague or call it muddled (one suspects the obfuscation is deliberate because McCain is not apparently a stupid man), but they’re certainly not easy to understand, and thus there is no way to accurately say that McCain’s position is equivalent to Obama and Clinton’s. Thus Nagourney’s writing is not just uninformative; it is actually mis-informative.

Then, Nagourney wrote from the frame of one of his interview subjects. Fourth paragraph, he quotes Brian Brown from an anti-my marriage group, who says, “The court has interjected itself into national politics and made same-sex marriage a major issue in the upcoming national election.” No, actually, the court accepted a case that was litigated to it, for very appropriate reasons, as courts around the country have done, and delivered a decision in a timely fashion as in fact it is required to do. But this is an attempt to color the decision as “activist judges”, notwithstanding the fact — central to any “activist judge” article — that the California legislature did, in fact, pass gay marriage, and it was vetoed by Schwarzenegger, who said it should be left to the courts. An unusual twist in the usual fact situation, and one might think it would be highly relevant when you’re quoting someone who is making the same old tired argument that this is an activist court. But no. Nagourney didn’t bother to mention that (although all he had to do was read wikipedia on the topic), and then he closed the article with this line: “So the California Supreme Court may have created a laboratory to test once and for all just how powerful this issue really is.” Adopting the anti-SSM “activist judge” framing, despite its even-less-than-usual relevance.

Also, way to misuse the “laboratory for democracy” allusion.

None of this kind of shoddy writing is unusual for Adam Nagourney. About every other time I read a non-science article in the NYT that pisses me off with its bias, poor writing, and factual errors, it turns out to be an Adam Nagourney piece. Had I noticed the byline before starting the article my expectations would have been much lower and I probably would not have needed to write this blogpost.

But really, why, why do we have so much crappiness in our journalists? There must be millions of bright young women or people of color clamoring for Adam Nagourney job. All the time we hear affirmative action advocates having to justify and appease right-wingers by saying “but we will only hire / admit women and people of color who meet the basic standards”. What we really should be saying is, hey you white men, do you meet the basic standards? Adam Nagourney has gotten a pretty sweet ride so far; given that, is he as head-and-shoulders above the pack as one might expect? Clearly not. Somebody, fire Adam Nagourney and hire someone good. Or at least competent.

part 2

For the non-law-geeks out there, federal and state constitutional guarantees of “equal protection” apply only to certain protected classes (”suspect classifications”), and now homosexuality, in California, gets the highest protection. Here’s how it works. When determining whether a law or action violates equal protection, a court will determine whether (a) a fundamental right is being violated, in which case the court will apply “strict scrutiny”; or (b) what classes of people are being treated differently. If the class is race, the court applies “strict scrutiny”, as it does with violations of fundamental rights. Gender gets “intermediate” scrutiny. The lowest level of scrutiny is a “rational basis review”. If the class has not been deemed a “discrete and insular minority” that has routinely and historically suffered discrimination, then the court applies a rational basis review — a much lower standard of review. Basically, a law that discriminates a class of people is okay under rational basis review, so long as the government has any rational basis for the action. Any law that creates multiple classes is subject, by default, to this review. For instance, “taxpayers” and “non-taxpayers”.

Courts have consistently declined to apply any heightened scrutiny to laws that discriminate on the basis of sexual orientation. Instead, they have applied “rational basis review with bite” — finding that some laws that discriminated against homosexuals did not even have a rational basis. For instance, Colorado’s Amendment 2 failed rational basis review. This is nice on the one hand, because it is an affirmative slap at the law, making it plain that really nasty discrimination is irrational. On the other hand, it makes it very hard to strike down such laws, because it doesn’t recognize the “class-ness” of homosexuality — the fact that gay people are treated as a class and routinely discriminated against.

So the California decision is the first to recognize that gay people are treated as a class and routinely discriminated against. Which means that, in California, we have a lot more protection now. And even if the right-wingers who are freaking out manage to define California’s marriage laws to exclude me and Michele, that won’t undo the strict scrutiny holding.

Ha.

The Open Letter to Libraries is posted @ DBD’s website, and they have also made a sample letter / template available for us to send our own letters.

Link via cory @ boingboing