I am uncertain regarding the legality of such a ban under U.S. law, but I think that the notion that the wearing of a headscarf in public school would trangress the separation between church and state is dubious. I do not think that one could claim that the wearing of a headscarves in public schools would violate the Establishment Clause. See Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 18 n.8 (1989) ("[I]f the Air Force provided a sufficiently broad exemption from its dress requirements for servicemen whose religious faiths commanded them to wear certain headgear or other attire, see Goldman v. Weinberger, 475 U.S. 503, 106 S.Ct. 1310, 89 L.Ed.2d 478 (1986), that exemption presumably would not be invalid under the Establishment Clause even though this Court has not found it to be required by the Free Exercise Clause.").
But as the preceding parenthetical, perhaps, indicates, it also does not appear to be clear that students have a right to wear such scarves in American public schools. Students' attire-related First Amendment rights are somewhat truncated in non-religious contexts. Newsom ex rel. Newsome v. Albermarle County Sch. Bd., 354 F.3d 249, 258-59 (4th Cir. 2003). Of course, the Free Exercise Clause might alter this calculus. But cf. United States v. Bd. of Educ. for the Sch. Dist. of Philadelphia, 911 F.2d 882 (3d Cir. 1990) (upholding state law prohibiting public school teachers from donning religious garb againt free exercise challenge brought as Title VII suit by a Muslim woman), called into doubt by Tenafly Eruv Ass'n, Inc. v. Borough of Tenafly, 309 F.3d 144, 173 n.33 (3d Cir. 2002).
My knowledge of this area of the law is cursory, however. So there may be cases out there with which I am unacquainted that bear on this issue. If such case law is lacking, it won't be for long. As CNN reports, a case concerning a sixth-grader who was suspended for wearing a Muslim headscarf is proceeding in federal court in Oklahoma. The federal government has involved itself as well, siding with the Muslim girl.
The federal courts have already seen cases of this nature. Consider, or example, the peculiar case of United States v. James, 328 F.3d 953 (7th Cir. 2003). James involved a defendant who was a member of a bizarre, heterodox Islamic sect (viz. "the Moorish Science Temple"). Writing for the court of appeals, Judge Easterbrook observed that:
. . . Some members of this sect hand out what they call "security agreements" that purport to oblige strangers to pay hefty sums for using the members' names, which they deem copyrighted under their private legal system. James is among those who claim a right to compensation for every mention of his name. James demanded that the prosecutor, witnesses, and judge enter into compensation contracts before James would acknowledge the court's authority.
. . . James also refused to cooperate with his appointed lawyer, who would neither support his proposed defense nor enter into a compensation contract for the use of his name. Observing that James also contended that his arrest was a war crime and that the indictment was invalid (the grand jurors had not contracted for the right to use James's name, let alone put it in capital letters), appointed counsel asked the judge to refer James for a mental examination to determine whether he was able to understand the proceedings and assist in his defense. True to form, James refused to take a position on this issue (though he did deny ever being under care for mental problems). Instead of addressing the question at hand, James pro-claimed:I am the secured party in this matter and the name you have just called or used in this courtroom is my property. You do not have my permission to use my private property in this courtroom. I can be addressed as secured party. You do not have my authorization for using my copyrighted name in this courtroom without compensating me. Further use of any of my personal property executes the contract and the security agreement that you received in the mail. The terms of the contract reflect what I am saying here. I am here to do business. If you want to do business, let's do business, or let's call it off and go home.
James was not allowed to go home but was referred for a mental exam. . . .
* * *
Before trial James used his mailing privileges as a federal prisoner to send the judge, the prosecutor, personnel in the clerk's office, and several potential witnesses, copies of the "contract and security agreement" requiring them to pay $500,000 for each use of his name. James mailed the judge a bill for $151 million. He also had a box delivered to the judge's home. This caused concern about the judge's security. Did it contain a bomb or some other dangerous agent? The Marshal Service found that it contained only more of James's pestiferous contracts, but in a drug-and-gun prosecution the box's contents were not the only worry: was James sending the message "I know where your children live"? The judge inferred from these documents, which included references to Article 9 of the Uniform Commercial Code, that James planned to file copies as liens against property owned by recipients. Although such documents would have no legal effect, it could require the recipients to pay counsel for work necessary to clear their titles before selling any of this property. The district judge directed James in open court to cease mailing these documents; he refused to comply, and in sentencing the judge concluded that James had obstructed justice. This added two offense levels under the Sentencing Guidelines. Appellate counsel contends that the addition was improper because the recipients, all of whom are regular participants in the criminal justice system, could not have been intimidated. That's not so clear; the judge reported that members of his staff had begged off from the case:There are individuals in this courthouse who come to work and try to do a good job every single day and by you filing these documents I had clerks in my own chambers who asked to be relieved of any duties with respect to your case because they were either trying to get student loans or they were trying to refinance their houses. They were concerned if their name appeared on any document with respect to your case you would send them one of these frivolous bills and that would preclude them from getting financing. Because of that, my own chambers had changes made within it whereby I did much of the clerk's work so that no one else had to deal with you or your name or have any liens impressed upon their property. . . . If these documents would be filed, they could tie up someone's personal property as well as someone's real estate. So I find that you filed these for purposes of intimidation and harassment. . . .
What is more, the enhancement is authorized not only for successful obstruction but also for any attempt to obstruct or impede the administration of justice. U.S.S.G. § 3C1.1. A defendant who commits perjury at trial does not evade the enhancement just because the jurors see through the façade. Likewise with unsuccessful attempts to intimidate. James should thank his lucky stars that he was not held in contempt of court for disobeying the judge's order to desist.
Id. at 954, 956-57; see also United States v. Orrego, No. 04 CV 0008(SJ), 2004 WL 367706, at *2 (E.D.N.Y. Feb 23, 2004) (unpublished opinion) (inmate filed false liens against judge and others on basis of use of his name); United States v. Rodriguez-Ramirez, 291 F. Supp. 2d 266, 267 (S.D.N.Y. 2003) (same).
Frivolous litigation by prisoners is nothing new. The Eighth Amendment, habeas petitions, and section 1983 all provide vehicles for abuse by inmates advancing patently meritless suits. See generally Napier v. Preslicka, 314 F.3d 528, 537-40 (11th Cir. 2002) (appendix to opinion discussing legislative history behind Prison Litigation Reform Act of 1995), cert. denied, 124 S. Ct. 1038 (2004). Clearly, substantial additional reform is required.
"He is lucky to be alive," Phoeung Vat told Reuters.
Mr. Vat is apparently using the term "lucky" in some hitherto unknown sense of the word.
Although highly interesting, it is not clear that the same outcome would be compelled in a civilian setting (i.e., in a non-military criminal setting). As the Court of Appeals for the Armed Forces noted in its opinion:
Major S, the attorney, engaged in a course of conduct with Appellant, his client, which exposed both of them to the possibility of prosecution, conviction, and substantial confinement for the military crimes of fraternization and sodomy.
* * *
Fraternization and sodomy are not minor or obscure matters. The policies of the armed forces on both fraternization and homosexuality have been the subject of significant litigation and public controversy in recent years. . . . [E]ven if not prosecuted for sodomy in a court-martial, the conduct initiated by Major S exposed him and Appellant to administrative proceedings that could have resulted in involuntary termination for homosexuality. Moreover, Major S would have faced the possibility of a discharge for soliciting and committing homosexual acts "with a subordinate in circumstances that violate customary military superior-subordinate relationship."
Hence, unless the the sexual conduct at issue in any given criminal case likewise has criminal implications (e.g., acts of prostitution undertaken to pay for representation), the Cain case is not directly on point. A consensual sexual relationship in a non-military setting is distinguishable from the situation in Cain. This is not to say that a court would not find a conflict of interest sufficient to have resulted in ineffective assistance of counsel on other grounds, of course. For example, the court also cites the Army's version of Rule 1.7 of the rules of professional conduct concerning conflicts of interest.
It is noteworthy that the Court of Military Appeals (the predecessor to the Court of Appeals for the Armed Forces) previously rejected an ineffective assistance of counsel claim that stemmed from a hetrosexual attorney-client relationship. United States v. Babbitt, 26 M.J. 157 (C.M.A. 1988). The court notes Babbitt in passing but does not overrule it ("The facts of this case are distinguishable from the limited, consensual relationship between a civilian counsel and his client that we considered in Babbitt.").
The Chief Judge of the court filed a dissent, maintaining ineffective assistance of counsel claims predicated on conflict of interest must also demonstrate actual prejudice. Babbitt expressly held as much. It would appear then that the Court of Appeals for the Armed Forces has carved out a per se exception concerning homosexual relations. One wonders whether the Equal Protection Clause is implicated by a rule that apparently treats Sixth Amendment claims based on sexual relationships differently depending on whether they are homosexual or heterosexual.
Addendum: For those wishing to compare and contrast similar claims made by criminal defendants in civilian courts in the United States, see the following cases: Blair v. State, No. 00-1890, 2003 WL 1785896 (Iowa Ct. App. Apr. 4, 2003) (unpublished opinion) (affirming denial of post-conviction relief); State v. Carlson, 48 P.3d 1180 (Ariz. 2002) (declining to reverse conviction); Hernandez v. Spears, No. 00-3059-CIV, 2002 WL 1205058 (S.D. Fla. May 9, 2002) (unpublished opinion) (denying habeas relief); Hernandez v. State, 750 So. 2d 50 (Fla. Dist. Ct. App. 1999) (en banc) (refusing to grant post-conviction relief); People v. Singer, 226 Cal. App. 3d 23 (Cal. Ct. App. 1990) (vacating sentence and remanding for trial); Howard v. State, 783 S.W.2d 61 (Ark. 1990) (reversing conviction).
Teenagers as young as 16 should be allowed access to sexually explicit material, Liberal Democrat delegates have agreed.
Don Foster, the party's culture spokesman, says they should also be able to visit sex shops and buy pornography—a plan overwhelmingly supported by the Lib Dems spring conference.
The move would end the "twilight zone" between childhood and adulthood where they can have sex, lawfully marry and have a baby at 16 but cannot watch sex, he said.
* * *
. . . "[T]he reality is sexually explicit material is already readily available to 16 and 17-year-olds on the internet", he said.
* * *
But, Mr. Foster said, the Lib Dems would not be legalising films showing bestiality, snuff movies or depict under-16s in a sexually explicit way.
One of the co-chairs of the Tory party characterized the policy proposal as "irresponsible." One has to take the Tory criticism seriously, of course. Where irresponsible sex and teens are concerned, the Tories have cultivated a certain expertise.
A couple who got into a dispute over a theological point after watching "The Passion of the Christ" were arrested after the argument turned violent.
The two left the movie theater debating whether God the Father in the Holy Trinity was human or symbolic, and the argument heated up when they got home, Melissa Davidson said.
* * *
Davidson, 34, and her husband, Sean Davidson, 33, were charged with simple battery on March 11 after the two called police on each other. They were released on $1,000 bail.
According to a police report, Melissa Davidson suffered injuries on her arm and face, while her husband had a scissors stab wound on his hand and his shirt was ripped off. He also allegedly punched a hole in a wall.
Well, at least no one was crucified.
The first hint of change came without much fanfare or publicity last month as the Department of Homeland Security quietly proposed sweeping changes in the handling of political asylum cases. . . .
* * *
If approved, the rules would for the first time recognize severe cases of domestic violence as equivalent in certain instances to more familiar asylum cases involving political and religious persecution.
Folks on both the Left and the Right seem pleased. They should not be. I suspect that the jubilation is largely the result of dwelling on the emotional aspects of this issue rather than addressing it as a complex legal and/or political matter. Consider, for example, this rather one-sided hyperbolic narrative penned back when it appeared that the Bush administration was going to nix the proposed rules.
Although I can see the emotional appeal of the proposed regulations, they do not really fit within the traditional and legal framework for asylum. In order to receive asylum, one must, among other things, demonstrate that one qualifies as a "refugee" by establishing that he or she is "an alien who is unable or unwilling to return to his [or her] home country 'because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.'" Castellano-Chacon v. I.N.S., 341 F.3d 533, 541 (6th Cir. 2003) (quoting relevant statute). Any regulation promulgated by a department of the executive branch (the Department of Homeland Security in this case) must, of course, fit within the existing statutory framework. See generally Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). For multiple reasons, the proposed rules do not comfortably do so.
Of the aforementioned categories, the proposed battered women regulations are premised on the notion that such women constitute a "particular social group." This stretches that term of art beyond any legally useful meaning. See Gomez v. I.N.S., 947 F.2d 660, 663-64 (2d Cir. 1991) ("The phrase 'particular social group' has been defined to encompass 'a collection of people closely affiliated with each other, who are actuated by some common impulse or interest.' A particular social group is comprised of individuals who possess some fundamental characteristic in common which serves to distinguish them in the eyes of a persecutor—or in the eyes of the outside world in general.") (internal citations omitted). "Possession of broadly-based characteristics such as youth and gender will not by itself endow individuals with membership in a particular group." Id.
If "particular social group" is broad enough to encompass battered women, then it is so broad as to effectively include any proposed group (e.g., battered or neglected children, the poor, the homeless). That is, the proposed regulations represent a radical reformulation of the standards articulated in cases like Gomez. This reconceptualization would effectively turn asylum law into a sort of international welfare program. It is not that these cases are not sympathetic, but the battered women proposal does not comport with asylum law's historical raison d'etre. Asylum law has traditionally existed to allow entry into the United States of those who are subject to direct governmental persecution and those who are victimized by governments that effectively sanction persecution by private actors. Bartesaghi-Lay v. I.N.S., 9 F.3d 819, 822 (10th Cir. 1993). This is a standard that battered women would, in the absence of this new proposal, seldom meet. Cf. Ali v. Reno, 237 F.3d 591, 598 (6th Cir. 2001) (denying such an asylum claim but noting that, under the Convention Against Torture, "a situation in which the authorities ignore or consent to severe domestic violence" might lend itself to an asylum claim).
In addition, these proposed regulations would effectively abrogate a longstanding principle of asylum law, namely that the persecution in question be geographically pervasive. As the Board of Immigration Appeals once put it:
Traditionally, a refugee has been an individual in whose case the bonds of trust, loyalty, protection, and assistance existing between a citizen and his country have been broken and have been replaced by the relation of an oppressor to a victim. Thus, inherent in refugee status is the concept that an individual requires international protection because his country of origin or of habitual residence is no longer safe for him. We consider this concept to be expressed, in part, by the requirement in the [INA] and the [United Nations Protocol Relating to the Status of Refugees] that a refugee must be unable or unwilling to return to a particular "country." We construe this requirement to mean that an alien seeking to meet the definition of a refugee must do more than show a well-founded fear of persecution in a particular place or abode within a country—he must show that the threat of persecution exists for him country-wide.
Mazariegos v. Office of U.S. Attorney General, 241 F.3d 1320, 1325 (11th Cir. 2001) (quoting a B.I.A. decision).
The persecution faced by battered women can in no meaningful sense be portrayed as country-wide. The persecution at issue is the result of a single individual: the victim's spouse. Domestic violence is an issue that can and should be addressed internally by the country of origin not by immigration policy. If one embraces the position advocated by these proposed rules, I can see little reason why a substantial portion of the world's female population would not be immediately be eligible for asylum. Quite apart from any floodgates concern, this proposed reconceptualization would simply render determinations of refugee status that hinged on membership in a "particular social group" lawless by expanding the definition of the phrase in a manner that deprives it of the ability to meaningfully exclude.
The concept of "particular social group" has already undergone some sweeping changes that have removed asylum law far from its foundations. For example, homosexuals have over the last decade or so become eligible for such status. See Pondoc-Hernaez v. I.N.S., 244 F.3d 752, 758 (9th Cir. 2001) ("Since at least 1990, . . . it has been clear that the petitioner's sexual orientation can form the basis of an asylum claim."); see also Hernandez-Montiel v. I.N.S., 225 F.3d 1084, 1096-97 (9th Cir. 2000) (recognizing "particular social group" claim founded on "sexual identity"). Anyone with an eye for dates can appreciate the irony of such decisions. For a decade or more, immigration and federal court judges were granting asylum to members of a "particular social group" whose conduct was criminal until only recently in multiple states. In other words, portions of the United States in some measure engaged in the very sort of state-sponsored persecution (qua criminal prosecution) that served as the basis of refugee status in cases like Pondoc-Hernaez and Hernandez-Montiel!
A similar juxtaposition can be drawn in terms of domestic violence in the United States. Although the United States government does not sit idly by, the mere fact that the federal government feels compelled to act in an area of the law that would traditionally be addressed by the states, perhaps, indicates the pervasiveness of domestic violence here as well. Indeed, the Department of Justice links to a study that maintains just that. See Patricia Tjaden & Nancy Thoennes, Extent, Nature, and Consequences of Intimate Partner Violence iii (Nat'l Institute of Justice and the Centers for Disease Control and Prevention, July 2000) ("Intimate partner violence is pervasive in U.S. society.").
It might further be suggested that the Court's ruling in United States v. Morrison, 529 U.S. 598 (2000) (declaring civil rights remedy provision of the Violence Against Women Act unconstitutional) turns a blind eye, to some degree, to gender-based violence. In fact, opposition to the nomination of Jeffrey Sutton to the appellate bench certainly gave the impression that this is the rather simplistic view that certain feminists took regarding Morrison. At least one prominent feminist legal scholar has explicitly made this argument. See Catherine A. MacKinnon, Disputing Male Sovereignty: On United States v. Morrison, 114 Harv. L. Rev. 135, 136 (2000) ("Morrison went further still by preventing the federal government from legislating equality rights in an area that states have inadequately protected.").
But how does one reconcile the notion of refugee status premised on tolerance of domestic violence by foreign governmental authorities with the apparent feminist belief that the United States government, in effect, does likewise? As with the sexuality-related grants of asylum, the United States itself arguably satisfies the requisite conditions for refugee status on the basis of persecution via domestic violence under the standards of the proposed asylum regulations in question. This ought to give one pause. It certainly provides a sense of the sheer boundlessness of the proposed rules.
I would, perhaps, be a little less disheartened by the bipartisan support for the rules change if I had some sense that those who supported it had some inkling of the foregoing conceptual difficulties or had considered the consequences in terms of the inevitable costs. But one seldom hears anything beyond a recitation of the admittedly heartrending facts of cases like those of Rodi Alvarado from the new regulations' proponents. This is a shame. An important public policy decision like this deserves more than the Lifetime television network treatment that it is receiving.
(Via Arts & Letters Daily.)
Tyler Cowen of the Volokh Conspiracy has now posted on Muslim interest in The Passion in the Middle East. Attributing his information to March 15-21, 2004 issue of Variety, he writes that:
The film is opening in Syria and Lebanon on March 17. In Lebanon the initial run of three prints has been extended to twelve, following an unprecedented show of interest. Some observers are predicting that attendance will break all previous records in the country. Some closed-down moviehouses are looking to reopen to show the picture.
In the United Arab Emirates, the government is changing the law to allow a depiction of a prophet . . . on the screen.
There is strong interest in Bahrain, Kuwait, and Egypt. Bahrain and Egypt have given assurances that the film will be shown uncut. The government of Iran has shown interest as well. The single Palestinian theater in Ramallah has requested a print for showing.
Given the tenets of Islam, it is difficult to not construe this interest in The Passion as a product of anti-Semitism. Although Muslims do regard Jesus as a prophet, they deny His crucifixion altogether. Qur'an 4:157-58, 4:171. A Gospel-based depiction of Jesus's death, resurrection, and mankind's resulting salvation flatly runs counter to Islamic teaching. In the absence of anti-Semitism, what then accounts for this unprecedented interest? Editorials like this one at al Jazeerah's website, which discusses The Passion, Zionism, and the Israeli-Palestinian conflict all in the same breath do little to reassure me regarding this concern.
[I] [r]eturned yesterday evening from Cameron County, the southernmost county in Texas, where I was visiting my ninety-four year old aunt, who retired to Texas from upstate New York three decades ago. As the crow flies, Harlingen, the town in which my aunt lives, lies just 15 miles from Mexico. . . .Virtually every nurse, maid, cook, janitor, and security guard in the Golden Palms, the complex to which my aunt retired, is Hispanic, which in this case, of course, means Mexican. Although I often overheard them speaking Spanish among themselves, when they spoke to residents they invariably did so in perfect, unaccented English. . . .
I spoke to workers at a grocery store, a Wal-Mart, and an authentic Mexican restaurant. (How authentic? There was a mariachi band performing at one end and four Border Patrol guards eating lunch at the other.) Although, again, these workers used Spanish among themselves, when they spoke to me they did so in unaccented English—even when I spoke Spanish, they answered in English.
Since English was being used everywhere, I decided that in Cameron County the great project of assimilation was getting along just fine. . . .
I have mixed feelings about our current level of immigration and border policy. I am neither for nor against the president's temporary worker proposal, for example. I think that whatever policies we adopt, they ought to be based on a clear, depoliticized view of the facts. Given his recitation, I can only conclude that Peter Robinson is little acquainted with the facts in this case. I happen to be intimately familiar with Cameron County. His thumbnail portrait is not at all accurate.
According to statistics from the U.S. Census of 2000, Cameron County has a population of 335,227 persons. Of this number, 282,736 (or about 84.3 percent) are Hispanic or Latino. A map comparing this aspect of Cameron County with other parts of the country is available here. Contrary to Robinson's representation that this effectively means they are "Mexican," what it predominately means is that they are Mexican-American. I know that some do not favor hyphenated designations, but on the border it is a necessity because there are a host of bona fide Mexican nationals in Cameron County (both legally and illegally) at any given time. Moreover, additional census data clarifies that only 226,680 of the 282,736 (or 80.2 percent) Hispanics in Cameron County is of Mexican origin. Of the total population, 25.6 percent was foreign-born.
As far as statistics relating to assimilation, it is difficult to formulate an entirely clear picture. Of the 79 percent of the population (239,872 persons) who report speaking a language other than English (i.e. Spanish) at home, approximately 45 percent of this subset demographic speaks English "less than 'very well.'" That is 35.5 of the overall population (107,847 persons) self-reports an ability to communicate in English "less than 'very well.'" Presumably, this statistic, which does not appear to be broken down any further, contains everything from persons who do not speak English at all to those who are just less than completely proficient in the language. Of the population that is 25 years of age or older, a mere 55.2 percent have graduated from high school. Almost a third of the 25-and-over population (29.3 percent) has less than a 9th-grade education.
Although Harlingen is 15 miles from the border as the crow flies, it is over 30 miles from Mexico if you travel down the sole highway heading due South from Harlingen toward the border. This highway runs through Brownsville, which is Cameron County's largest population center and county seat. The difference that this meager amount of mileage makes is substantial. For example, in Harlingen, only 73.3 percent of the population is Hispanic, a full ten percentage points below the county average. Accordingly, its other statistical data may substantially vary from the county as well, rendering Harlingen a poor gauge for the county as a whole. I can attest that Spanish is far more pervasive in Brownsville, where a full 91.3 percent of the population is Hispanic or Latino, for example. Local politicians employ Spanish in their campaigns for office there, and it would not be atypical to encounter Spanish is retail transactions in Brownsville either. A complete ststistical profile of Brownsville from the 2000 Census is available here.
Assimilation is a complex issue. I would hesitate to draw any firm conclusions from the foregoing data alone. It seems to me that one would need a wide range of additional data. Moreover, it also seems to me that one would want data for all parts of Texas, including major urban centers, rather than just confining one's analysis to border counties like Cameron County. But even if I were willing to confine the inquiry to Cameron County, I would not rely on Robinson's inaccurate and almost purely anecdotal observations.
Technology companies should be required to ensure that law enforcement agencies can install wiretaps on Internet traffic and new generations of digital communications, the Justice Department says.
The push would effectively expand the scope of the Communications Assistance for Law Enforcement Act, a 1994 law that requires the telecommunications industry to build into its products tools that U.S. investigators can use to eavesdrop on conversations with a court order.
* * *
Critics said the government's proposal would have far-reaching impact on new communications technologies and could be enormously expensive for companies that need to add wiretap-capabilities to their products, such as push-to-talk cellular telephones and telephone service over Internet lines.
The Justice Department urged the FCC to declare that companies must pay for any such improvements themselves, although it said companies should be permitted to pass those expenses on to their customers.
This article does not really provide enough details to know whether the Justice Department's proposal merits support or opposition. But it is undoubtedly a story that is worth following.
My musings on this led me to think of instances in which non-believers invoke religious belief as a way of persuading religious believers. Consider, for example gay marriage activists who quote the New Testament at opponents of same sex marriage. In other parts of the world, Christians are frequently aligned with left-wing causes, and secular conservatives will quote passages about rendering unto Caesar what is Caesar's and getting out of politics. For that matter, consider the attempts of westerners to persuade Muslims that Islam, properly understood, is not really inconsistent with modern liberal democracy.
I find all of these arguments slightly off putting. After thinking about, here is why I believe that I have this uneasiness. There is something manipulative about using religious arguments that you do not yourself to subscribe to. Rather than invoking the truth (as you understand it), you are simply grasping at whatever will get the other person to act the way that you want them to act. It is not quite the same as lying to get someone to do something, but it seems similar.
Mr. Oman isn't alone is this assessment. Professor Bainbridge, for one, concurs.
I share this view as well, but only up to a point. It was precisely this sense of manipulation, insincerity, and intellectual dishonesty that led me pen a response to those folks who were so casually throwing around random verses from the book of Leviticus. Snide citation of Scripture from those who do not take the text or faith seriously does not sit well with me.
However, not all Scriptural or religious arguments from non-believers proceed from a position of insincerity or ignorance. It seems to me that non-believers may rightly question a believer's conduct if they perceive a genuine disjunction between it and the believer's professed beliefs. A liberal, for example, cannot object to a conservative's observation that the former is failing to live up to his own principles, nor vice versa, solely on the basis that the latter does not likewise adhere to the principles in question. Why then should religious persons enjoy a faith-based exemption from such criticism? What galls is not the very idea of such criticism, but its all too frequent bad faith. A sincere and informed rebuke from a non-believer is not an unwelcome thing.
The [child pornography] revelations about Zaratti were only beginning. A month after he got out of jail, Zaratti took on a client in a DWI case. She was a small woman, about five feet tall and weighing about 100 pounds.
In an affidavit for a later search warrant, Harris County D.A.'s investigator Johnny Bonds stated that the 32-year-old client he interviewed looked more like she was in her early twenties. She told investigators Zaratti demanded the remainder of his unspecified fee from her, then told her there was a way he would forgive the debt: to have sex with him. And if she refused, he would make sure she got jail time for her offense. According to the affidavit, he told her to come to his home, without makeup and hair arranged in girlish braids, with her pubic area completely shaved. She said she had sex with him on several occasions in August to retire her debt.
At least one time, he led her to a computer on a table in his living room and pulled up a file labeled "Teens" and showed her several images of children engaged in sex, the affidavit stated. One that she recalled vividly was of a young blond girl about 11 years old, having anal and vaginal intercourse with two adult men.
While Zaratti was hosting the viewing session, on the opposite side of the living room was his seven-year-old son, watching television, the affidavit says.
Obviously, any ethics-related inquiry by the State Bar is the least of Zaratti's concerns.
Colorado Avalanche forward Steve Moore will miss the rest of the season with a fractured neck after a hit by Vancouver's Todd Bertuzzi that prompted a police investigation.
Moore also sustained a concussion and deep facial cuts, the Avalanche said Tuesday. He will remain hospitalized in Vancouver indefinitely, Colorado trainer Pat Karns said.
Bertuzzi has been suspended indefinitely pending a hearing at the NHL office in Toronto on Wednesday.
Moore was slugged in the side of the head by Bertuzzi late in Monday night's game, a 9-2 Colorado victory. Bertuzzi struck him from behind and drove his head into the ice. Moore landed face-first—with Bertuzzi on top of him—and lay in a pool of blood for several minutes before he was removed on a stretcher.
B.C. Solicitor General Rich Coleman and Vancouver police said Tuesday a preliminary investigation has begun.
That Islamic extremist groups are now targeting Shiites is surely a sign of desperation. Unable to launch major terrorist attacks in the West, unable to attract political support in the Middle East, militant Islam is searching for enemies and causes.
Consider the progress of Al Qaeda and affiliated terror groups over the past three years. For a decade they had attacked high-profile American targets only—embassies, a naval destroyer, the World Trade Center. Once the United States mobilized against them, and got the world to join that fight, what have they hit? A discotheque, a few synagogues, a couple of restaurants and hotels, all soft targets that could not ever be protected, and all outside the Western world. As a result, the terrorists have killed mostly Muslims, which is marginalizing them in the world of Islam.
* * *
Support for violent Islam is waning in almost all major Muslim countries. Discussions from Libya to Saudi Arabia are all about liberalization. Ever since September 11, when the spotlight has been directed on these societies and their dysfunctions laid bare to the world, it is the hard-liners who are in retreat and the moderates on the rise. This does not mean that there will be rapid reform anywhere—there are many obstacles to progress—but it does suggest that the moderates are not running scared anymore.
Although it may be true that Islamic radicals are presently incapable of attacking Western targets, I think that the opening paragraph of the quoted language misconstrues the significance of more recent attacks on Muslims. Despite varying support and accomodations between Muslim states and radicals, the latter have always been focused on internal change. See generally Bernard Lewis, The Crisis of Islam: Holy War and Unholy Terror (2003). Their aims are reminiscent of those of previous Muslim radicals. See, e.g., Bernard Lewis, The Assassins: A Radical Sect in Islam (2002). The Assassins also made common cause with Muslim polities when expedient. They likewise directed some of their activities toward the Crusaders. But their raison d'etre was always internal change; their conflict was with their fellow Muslims. Recent attacks by radicals directed against their fellow coreligionists does not signify a "search for enemies and causes."
A couple caught kissing on the mouth in public could spend up to five years in jail or pay up to 250 million rupiah in fines, the [Jakarta] Post said. It is unclear whether the ban would also apply to married couples.
It remains to be seen whether the bill, which addresses a great number of sex-related topics, will be adopted. The government has apparently not yet endorsed it, and the public was apparently chagrined to learn of its contents. Indeed, it seems incongruous to even be reading of such national legislation in a newspaper like the Jakarta Post, which just today ran a story with the headline Men Who Can't Get It Up Go Off Half-Cocked in Search of Cure .
Like Singapore's chief judge, the legislation's proponents would, no doubt, invoke Eastern values in support of the bill. In a somewhat related vein, the Jakarta Post also reports that a mayorality of Indonesia "is planning to conduct raids on couples living together out of wedlock." The rationale being that:
"Couples living together out of matrimony are disturbing the public order. Our country has Eastern values that are high in moral standards, not like Western countries, which consent to such practices," he [head of the social office] told The Jakarta Post. This was especially true of Batam, which followed Malay and Islamic cultural norms, he said.
Unlike those convicted of committing public displays of affection under the proposed law, these unwed disturbers of the peace will not face any prison time. Reports the Post:
. . . [C]ouples found living together without proof of a marriage license are liable to a maximum fine of Rp 5 million (US $590.00) and be would be married off en masse.
Like many conservatives, I am not entirely reconciled to the recent decision in Lawrence v. Texas. Justice Thomas's observation in dissent that Texas's criminalization of homosexual conduct was "'uncommonly silly'" but beyond the power of redress possessed by the Court resonates with me. Indeed, Thomas's sentiment finds support even in rather unexpected quarters, which might be taken as an indication of the problematic nature of the exercise of countermajoritarian coercion on the part of the Court.
However, proposed legislation of the sort pending in Indonesia, perhaps, casts Thomas's dissent in stark relief. The legislature that possesses a police power so broad as to allow criminalization of private consensual sexual conduct a fortiori would possess the power to subject public romantic conduct (e.g., kissing and other public displays of affection) to similar sanctions. Such legislative proposals are not limited to Muslim countries by any means. On Thomas's view what would stand between the state and the enactment of such legislation other than its inadvisability? Nothing, I think.
Update: Will Baude notes that, "in principle a state with the power to outlaw public nudity and public orgies should also have the power to outlaw public kissing." I suppose the truth of this proposition rests on the "principle" in question. Nonetheless, I am tentatively inclined to agree. Virginia's attempts to reform its criminal sodomy statute in the wake of Lawrence would appear to vindicate Baude's observation.
Here's a simple question: If a state legalizes gay marriage, what is the age of consent? If we assume, for the sake of argument, that the gay age would be the same as the heterosexual age, the answer is startling. About 30 states fix the age of sexual consent at 16, with a few listing 17 or 18. Now, those minimum ages have qualifications—so many in fact that the whole area of consent law nationwide is a legal minefield. Even while stating a minimum age, some jurisdictions place added restrictions in some circumstances. . . .
But many states lower the age of heterosexual consent in the case of marriage. Even states with a legal age of 16 or higher will allow people to marry younger, provided they have the consent of their parents and—in many cases—the permission of a judge. The fact that such laws exist for heterosexual couples almost certainly means that any state legalizing gay marriage would have to apply those ages equally to homosexual duos.
Based on these observations, Jenkins goes on to pointedly ask "how does that constitutional amendment sound right now?"
I am agnostic where the Federal Marriage Amendment is concerned, and Jenkins's thesis does little to remove me from the fence on which I am perched. As I have argued on prior occasions, I find our age of consent laws to be unconscionably out of date. So the notion that gay marriage might require us to reconsider the age of consent does not unsettle me in the least. Given that Jenkins himself acknowledges that this area of the law is "is a legal minefield," I am somewhat hardpressed to understand his reluctance to see it revised as well.
But I also have reservations concerning Jenkins's empirical premise (i.e., that there will be an epidemic of gay weddings involving young teen boys and older men). I for one would like to see some statistical evidence in support of this hypothesis. In addition, I am not so certain that the age of consent and the age at which persons may wed without parental or state permission coincides in the manner in which Jenkins suggests. For example, in Texas, the sexual age of consent is 17; however, with few exceptions (e.g., parental consent for a child of 14 years of age or older, court-granted permission) one must generally be 18 in order to obtain a marriage license. Tex. Fam. Code §§ 2.101-103; Tex. Pen. Code § 22.011(c)(1). If state law follows a similar pattern in the majority of other states, then the argument that Jenkins presents is a strawman altogether.
Jenkins's column is nonetheless useful in at least one respect. Even if one rejects his conclusion (as I do), Jenkins's commentary serves to highlight the fact that the consequences of legally recognizing gay marriage are not limited to the institution of marriage in its most narrow sense. Whether such recognition would have limited or far broader impact in related (and unrelated) areas of the law is a matter of debate. I wish this aspect of the issue received more attention.
(DMN link via Howard Bashman.)
Update I: I have briefly corresponded with Professor Jenkins via e-mail. Although he has indicated that he would like some time to mull over my critique, he did want to clear up one misimpression. Contrary to my characterization, he does not hypothesize an epidemic of gay marriages involving teenagers. Rather, citing data regarding heterosexual marriages, he posits that if homosexual marriages follow the same trends, then there would likely be "a substantial number" of homosexual unions involving underage partners. See Associated Press, Sharp Increase in Marriages of Teenagers Found in 90's, New York Times, Nov. 10, 2002.
Based on my reading of the indicated AP article, however, I am skeptical. For starters, the data provided by the article is not terribly precise. It contemplates teenage marriages in terms of those involving people aged 15 to 19. This data, therefore, poses a problem in that it includes persons aged 18 and over, who would be allowed to wed no matter what legal changes might occur concerning the law of consent and the recognition of gay marriage. The article also does not break out the marriage statistics for each of the indicated age groups, so we have no idea, for example, how common marriage among 15-year-olds is as compared to 19-year-olds. Lacking such relative data, we have no way of really knowing what the trends are among heterosexuals with any specificity. The article does flatly state, however, that "[m]arriage remains uncommon in this age group."
Moreover, the statistics reported by the AP are silent altogether in a more important fashion. Although the article reports the number of married teens aged 15-19, it does not indicate the average ages of their spouses. So we are left entirely in the dark concerning the salient detail for purposes of Jenkins's thesis (i.e., whether these teens are married to other teens or to older spouses). In short, I think that this article does not support even the more modest proposition that we are likely to see "a substantial number" of homosexual marriages involving underage partners if gay marriage is legally recognized.
The AP article in question relied on marriage information gathered by the United States Census Bureau. So it may be that there is data that will support Jenkins's thesis out there somewhere. However, Census Bureau information generally seems to suggest that Americans are, by and large, waiting until later in life to marry. This fact alone does not preclude "a substantial number" of marriages involving teens and older spouses, but it does at least suggest that a certain unlikelihood. As of now, I think that the empirical component of Jenkins's thesis remains unproven.
Update II: Joe Carter has identified a handy chart that identifies marriageable age across the fifty states. The chart confirms my surmise: setting aside certain exceptions (e.g., parental consent granted for minors of a certain threshold age), all but two jurisdictions require persons to be 18-years-old in order to autonomously obtain a marriage license. Mississippi and Nebraska are the outliers. The former allows males aged 17 and females aged 15 to marry; the latter requires all persons to be 19 in order to obtain a marriage license. Most states (viz. 39) do not allow for common law marriage either, which renders the statutory regime definitive in a majority of jurisdictions. As a result, Professor Jenkins's entire thesis was dependent on a misapprehension of the law. His argument about the age of consent is a strawman.
Had he been sitting in the Oval Office last weekend as rebel forces were threatening to enter Port-au-Prince, Senator John Kerry says, he would have sent an international force to protect Haiti's widely disliked elected leader, Jean-Bertrand Aristide.
"I would have been prepared to send troops immediately, period," Mr. Kerry said on Friday, expressing astonishment that President Bush, who talks of supporting democratically elected leaders, withheld any aid and then helped spirit Mr. Aristide into exile after saying the United States could not protect him.
"Look, Aristide was no picnic, and did a lot of things wrong," Mr. Kerry said. But Washington "had understandings in the region about the right of a democratic regime to ask for help. And we contravened all of that. I think it's a terrible message to the region, democracies, and it's shortsighted."
This is counterfactual nonsense. A dispassionate review of the facts renders it rather doubtful that Aristide or his governmental supporters were democratically elected in any meaningful sense. Indeed, the Clinton administration halted aid to Aristide's regime for this very reason. Former President Clinton's special envoy to Haiti in 1993-94, Lawrence Pezzullo, has characterized the "elections after Aristide's restoration" as "farcical," noting that "[i]nternational and nongovernmental election observers universally criticized them."
What is truly disheartening about this sort of mischaracterization is that Haiti could genuinely benefit from a critical examination of the Bush administration's policies concerning the nation. Although Aristide's opposition includes a large number of his erstwhile supporters, the rebel movement that deposed him is currently most notable for the presence of what one organization has referred to as "men responsible for some of Haiti's worst [human rights] abuses." This assessment in not unique.
There is, however, little doubt that the Aristide regime was guilty of political and human rights abuses as well. So it is beyond bizarre (and, one suspects, entirely political) for folks like Kerry to rally around Aristide. Anyone who actually cares a fig about the fate of Haiti ought to be directing his attention to ensuring that the current crisis does not result in the replacement of one undemocratic regime with another. That is what is in the best interest of Haiti. Aristide's return certainly is not.
[Libertarians] have long dismissed claims on behalf of animals by asserting that mankind's special place in nature and our elevated mental capacity affords us a monopoly on rights. The same logic, however, is used by both [Tom] Regan [in The Case for Animal Rights] and [Matthew] Scully [in Dominion] to assert that along with our special moral standing comes special obligation: the obligation to rise above the savagery of the animal kingdom and treat animals not as moral agents, but as, in Regan's words, "moral patients." Scully makes the following argument:It is logically true that creatures without duties cannot be said to exercise rights in precisely the same sense that we do. On the other hand, it doesn't follow that because they have no rights we bear the animals no obligations. Any rights they have are the mirror image of those human duties.
Although I think that Logan puts forward an interesting thesis, I would go further. One of the stranger things about the libertarian view of any potential legal claims of animals is how poorly thought out it is even within the confines of its own internal logic. That is, even if one takes for granted the libertarian premise about the source of rights (viz. elevated mental capacity as opposed to mere sentience), it does not follow that animals should have no rights but rather varying degrees of lesser rights. Animals, after all, are not utterly devoid of intelligence. They possess minds, albeit ones of varying and lesser ability.
The debate over the film is highly sensitive in France, where a spate of firebombings of synagogues and Jewish schools and attacks on rabbis over the last year has led Israel to denounce it as the most anti-Semitic country in Europe.
Anger with Israel among France's large and growing Muslim population, combined with the strength of right-wing parties in some French districts, have contributed to an atmosphere that has alarmed political and Jewish leaders.
Last year, Paris police were forced to set up a dedicated unit to deal with anti-Semitic crimes. Schoolteachers complain they face a hostile reaction among Muslim students when trying to teach the history of the Holocaust . . . .
However, just a few days ago The Passion found a willing French distributor: a Tunisian Muslim named Tarak Ben Ammar. Reuters reports Ammar as opining that:
"I thought it was my duty as a Muslim who believes in Jesus, who respects and was brought up in the three (monotheist) religions, to have this film shown to the French and let them judge it for themselves," he told TF1 television late on Monday.
"When I saw the film two weeks ago, I was deeply touched because it shows what Christ really went through in his final hours," he told Le Figaro in remarks published on Tuesday.
"It's a powerful film and not at all anti-Semitic, as viewers who go to watch it will see," he said, explaining that the criticism that preceded the film's U.S. premiere last week was based on an early script and not its final version.
Whatever the outcome, I doubt that events in France will settle one way or another the debate about whether the film is anti-Semitic or even whether it might inflame anti-Semites given the preexisting state of affairs in the country. However, what really interested me was Ammar's purported rationale. He states that distribution was his "duty as a Muslim who believes in Jesus" and that he "was deeply touched because it shows what Christ really went through in his final hours." There's just one problem with that explanation. Muslims do regard Jesus as a prophet. Qur'an 4:171. However, they deny the crucifixion altogether. Qur'an 4:157-58.
(1) Justin Blume, Parents Irate Over Passion in School, Washington Post, Mar. 5, 2004, at B1.
"'I saw Jesus getting beaten,'" [11-year old] Cutairra [Ransom] said yesterday. "'Needles were going in his arms. It was scary the way they was beating him.'"
Parents apparently have more than The Passion to be irate about: the state of public education in the District of Columbia. Luckily, the Department of Education is located nearby. Quick, get Rod Paige on the phone! This sixth-grader has passive voice and subject/verb disagreement dysfunction. The story goes on to state that Cutairra is not even in the class that viewed the film.
"Among the issues that school system investigators say they are looking into is how [teacher Ronald] Anthony obtained a copy of the movie, which has not been released on videotape or DVD."
I guess you can file this one away in Professor Solum's copynorms file. I would not want to be Mr. Anthony, however. As Jesus said, "if any man will sue thee at the law, and take away thy coat, let him have thy cloak also." Prepare to hand over your cloak, Mr. Anthony.
(2) Lisette Velasquez, An Act of 'Passion', New Britain Herald, Mar. 2, 2004.
"A local woman with psychological problems purposely drove her car into the water at A.W. Stanley Quarter Park in an attempt to re-enact a scene from the blockbuster film, 'The Passion of the Christ,' police said.
An anonymous caller notified New Britain police early Saturday morning after seeing a womandriving a Chevrolet Lumina into the brook at A.W. Stanley Quarter Park."
The scene in which Jesus and Simon Peter drive that Lumina into the River Jordan was my favorite too! Stunts like this, however, really do underscore the danger of exposing sixth-graders to the film.
(3) Norma Arey, Theater's 'Passion' Tickets Start with 666, Atlanta Journal-Constitution, Feb. 28, 2004.
"'The Passion' is showing at the Movies at Berry Square at Mount Berry Square Mall, and the machine that prints the tickets assigned the number 666, the biblical mark of the beast, as a prefix to all the tickets for the film.
* * *
'Several people have commented on it, but only one made a stink about it.'
That person asked for her tickets to be substituted and was given passes in exchange. She declined to talk about it with a reporter, but a family spokesperson said they had found Scriptures that eased their mind on the 666 reference.
Well, someone's taking this business too seriously. I mean, c'mon lady, it's not like people were struck by lightning on the set or dropping dead in theaters during the film. Some people are unaccountably superstitious.
(4) Bill Dinkel, Man Dressed as the Devil Disrupts 'Passion' Movie, Hoosier Gazette, [date unknown].
"When asked what he hoped to accomplish by his actions, [19-year-old Tyler] Wendell said he likes doing things to get a reaction. He was also inspired by a biography he read about the Marquis de Sade.
De Sade was an 18th century writer who caused scandals with his libertine behavior in pre-revolutionary France. De Sade was once arrested for desecrating the Holy Eucharist to see if God really existed. Wendell said his stunt was along the same lines.
Wendell, an atheist, said, 'If God really existed, He would have struck me down for dressing as the devil.' He also wanted to prove 'that Christians aren't as forgiving as they portray.' . . ."
Apparently, Wendell attended the Rev. Fred Phelps's seminar on public discourse. Of course, if you can't convince folks by invoking the moral authority of De Sade, then they are simply beyond reason. Apparently, the Christians in attendence responded to Wendell's well thought out argument by pelting him with candy, and a septuagenarian poured her soda on him, which just goes to show that even devout Christians acknowledge that some portions of the Bible are not to be taken literally.
I think it's plausible that in terms of sheer pressure on the social order, the legalization of divorce is a much more serious event than the prospect of gay marriage. Civil divorce reconfigures property rights, redistributes assets and income, creates a multiplicity of new kin ties and makes one of the most important life choices much more open-ended for everyone. And on each of these dimensions, legalizing divorce directly and indirectly affects far more people than legalizing gay marriage. In short, those who campaigned then against legalizing divorce in Ireland had a much stronger case than those who campaign now against legalizing gay marriage in the United States. While the moral arguments are essentially the same in both cases, the potential consequences for the social order are clearly more far-reaching when it comes to divorce. If you think a society can sustain the stress that divorce puts on it, then you should think the same about gay marriage. If you don't, then you should forget about the problem of gay marriage and get to work rolling back the much more serious threat of legal divorce.
Now I like this argument much more than the aformentioned moral one, because it puts forward an empirical claim that we may rationally dissect. I also like it because the empircal claim at issue may be addressed with some expertise by lawyers. Nonetheless, I am not at all certain that Healy's premise is correct.
Marriage confers a large number of benefits under the law, for example. A recent article over at Reason also suggests that recognition of gay marriages might have more farreaching legal consequences than has been acknowledged. The number (and breadth) of legal claims advanced in the wake of Lawrence v. Texas certainly suggests that the recognition of one right leads to the assertion of a plethora of others. Indeed, we are probably only debating gay marriage now because Lawrence, as Justice Scalia indicated in dissent, was a watershed opinion.
One could readily concede all of the above and even consider it a good thing. That is, none of the foregoing points logically compels one to oppose the recognition of homosexual marriage. However, I think that it is somewhat dubious to advance a consequentialist defense of gay marriage that rests on the assertion that the consequences are few or relatively insignificant when compared with other social and legal changes (including the recognition of divorce). I think that this assertion has yet to be proved.
The judge's original order said a [genetic] test was needed because Carter "is 6-foot-4, weighs 275 pounds and purportedly has male genitals." According to case law, only chromosomes can determine sex, [family court judge Lisa] Millard wrote. "In short, once a man, always a man," she wrote.
Divorce law is just getting weirder and weirder. Whatever its merits or demerits might otherwise be, recognition of same-sex marriage would simplify disputes like this one.
Heather Specyalski, 33, was charged with second-degree manslaughter in the crash that killed businessman Neil Esposito. Prosecutors allege that she was driving Esposito's Mercedes-Benz convertible when it veered off the road and hit several trees.
The story does not reveal what facts led authorities to prosecute her, but it does cover her rather interesting defense strategy.
The government's refusal to reconsider the skewed results led the Electoral Monitoring Mission of the Organization of American States (OAS) to quit Haiti before the second-round balloting, labeling the elections "fundamentally flawed." The country's many small opposition parties also refused to continue to participate in what they perceived as an electoral charade. Fanmi Lavalas then cemented control of local and national government, ending up with seventy-two of eighty-three seats in the Chamber of Deputies, and two-thirds of some 7,500 local posts.
Further details concerning the fraud are available here.
In the end, Aristide faced no serious challengers in the voting, which the OAS and other international observers refused to monitor.
The present uprising stems at least in part from these prior sham elections. As CNN reported:
Discontent has grown in Haiti, home to 8 million people, since Aristide's party swept flawed legislative elections in 2000. Opposition politicians refuse to participate in new elections unless the president steps down, but Aristide insists he will stay until his term ends in February 2006.
Aristide alleges that he was deposed by the United States, and, as always, certain folks seem perfectly willing to credit a ruthless thug's word over that of folks like the Secretary of State. Of course, this isn't the first time that Aristide has cried "coup." In response to an attack on the National Palace in December of 2001, Human Rights Watch reports that:
The Haitian government immediately condemned the assault as a coup attempt, but a subsequent OAS [Organization of American States] inquiry found that there was no substance to this claim.
Human Rights Watch's World Report 2003 provides a summary of the Aristide government's response to this "coup" that provides some insight into the nature of his regime:
On the day of the palace assault, government supporters embarked upon a wave of political violence, unhindered by police. In Port-au-Prince, barricades of burning tires, erected by members of so-called òganizasyon popilè (popular organizations) aligned with the party of President Aristide, blocked the main roads. Mobs traversed the city freely, pillaging and setting fire to buildings associated with opposition parties and leaders. Such groups burned down the homes of opposition leaders Gérard Pierre-Charles and Victor Benoit, and looted and destroyed the headquarters of the Democratic Convergence, and of three political parties, KONAKOM, KID, and ALAH. Similar acts of violence, as well as a few killings, took place in several provincial cities, including Gonaives, Cap-Haitian, Petit-Goâve, and Jeremie. According to numerous witnesses, police made no effort to prevent the widespread destruction.
The OAS's three-month investigation concluded that the palace assault was carried out with the cooperation of at least some members of the Haitian National Police. It noted, in addition, that in the wake of the assault some assailants used official government vehicles in attacking opposition buildings, and that several government officials distributed arms. . . .
Some have claimed that the December 2001 attack on the National Palace was staged by the government to allow for the crackdown and political violence that ensued. The involvement of some members of the Haitian National Police, an organization created by Aristide to replace the Army, perhaps corroborates this claim.
Aristide's followers are alleged to have continued to engage in such behavior in the present crisis as well. It is difficult to actually know anything about Haiti's political situation for a certainty, however. Of course, this is apparently in no small part due to Aristide's supporters. As the HRW's World Report continues:
Freedom of the press came under serious threat in Haiti, as journalists were harassed, threatened, and attacked. On December 3, 2001, in the most serious incident, Radio Echo 2000 reporter Brignol Lindor was cut to pieces by a machete-wielding mob just outside of Petit-Goâve. The murder was believed to have been committed by Fanmi Lavalas supporters who were angered by Lindor's political reporting.
As of November 2002, ten suspected perpetrators had been indicted for the slaying, although it was not believed that any of them had actually been arrested for it. The mayor of Petit-Goâve, Bony Dume, was not among those indicted, despite the fact that he had urged government supporters to implement a "zero tolerance" policy against Lindor, a message widely understood as a call to murder.
There was even less concrete progress in the investigation into the April 2000 murder of prominent radio journalist Jean Dominique. Indeed, the investigation stalled for several months due to the government's inept handling of judges' assignments to the case. Judge Claudy Gassant, who had shown real initiative in pursuing the investigation during 2001, fled Haiti in January when his mandate for the case expired. After he left the country, a period of confusion ensued, and responsibility for the case was not clearly resolved until July.
Over the course of the year, at least thirty journalists were attacked or threatened, allegedly by pro-government partisans, and several journalists and their family members went into exile. Radio journalist Israel Jacky Cantave was kidnapped in July, held for a day and beaten; he fled the country in August. In May, Reporters without Borders, a Paris-based press freedom group, placed President Aristide on its blacklist of press predators.
The report goes on to describe a judiciary that sounds utterly corrupted by politics and generally lawless.
As Human Rights Watch noted back in 2001, it was certainly well within Aristide's power to reform Haiti as he saw fit. As a result of the aformentioned "elections":
Aristide enter[ed] the presidency with the support of a nearly one-party parliament. Fanmi Lavalas (Lavalas Family), Aristide's party, holds twenty-six of twenty-seven Senate seats and nearly all of the seats in the lower house. At the local level, the opposition has somewhat more of a foothold, although the overwhelming majority of local elected officials are members of Fanmi Lavalas. In short, President-elect Aristide enjoys ample political power to make good on the reforms he has promised.
There is no reason to trust the Haitian rebels, of course, who are also a bloodthirsty lot with connections to "Baby Doc" Duvalier. But this sympathy for Aristide is perverse. No doubt some would say that they hold no sympathy for Aristide but rather condemn the U.S. for its intervention a la diplomat Robert White:
"As a politician, he reverted to that same authoritarianism he had condemned for so long," said Robert E. White, a former United States diplomat and now president of the Center for International Policy in Washington. He knew Mr. Aristide well, having worked with him in Washington almost daily for two years during the president's exile from power, before his return to Haiti, backed by American military might, in 1994. "Aristide is an immensely talented man with no talent for compromise," Mr. White said. "I don't believe Aristide had a democratic bone in his body."
Nevertheless, he said, Mr. Aristide "was a constitutional president elected in a free and fair election.
The only problem with White's view of the legitimacy of Aristide's status, of course, is that it is not altogether clear that Aristide came to power most recently in a valid election. France and the European Union, for example, boycotted his inaugeration as an expression of their doubts about the election.
Comically, the New York Times article that discusses White's views goes on to "report" that Aristide "was elected twice, and handed power peaceably to his successor in 1996, unique achievements in a land long governed by dictators and despots." Of course, the peaceful transition of power in 1996 had more to do with a United States/United Nations military occupation than Aristide's purported democratic impulses. Indeed, Aristide may have never truly departed from office in anything other than a technical sense:
Aristide handpicked his successor, Rene Preval, but was considered the power behind the scenes until he won a second term in 2000, in presidential elections marred by a low turnout and an opposition boycott.
I say good riddance.
Update II: A review of Haiti: The Fall of the House of Aristide, which appeared in the New York Times Review of Books in March of 2003, provides a lot of interesting background information on the events that have led to the present crisis:
. . . Aristide's opponents turned out to be neither the entrenched economic elite nor the die-hard elements of the old Duvalieriste party, as almost everyone in 1994 might have anticipated, but but the social democratic–constitutionalist wing of the Lavalas movement, the left-wing–populist coalition that first brought Aristide to power, which was mobilized into opposition by the Aristide government's increasingly corrupt and authoritarian character. . . .
By 1999, it seemed to many Haitians that Aristide, who once personified Haitian aspirations for democracy, now represented Haitian democracy's biggest obstacle. The firebombing of radio stations by Aristide partisans, the murder of journalists like Jean Dominique and Brignol Lindor, and the government's unwillingness to bring the authors of these crimes to justice, all prompted Reporters sans Frontières, a Paris-based journalists' advocacy group, to include Aristide on its list of Predators of Press Freedom. A corrupt police force in the service of the ruling party has fueled mounting human rights violations—"threats, illegal and arbitrary arrests, arbitrary detentions, summary executions, disappearances and police brutality are everyday events," Pierre Esperance, director of the National Coalition for Haitian Rights, charged on October 16 of last year—reinforcing Haiti's traditional climate of impunity and lawlessness.
Human rights workers in particular have been targeted. In 1999, Esperance himself had his car forced off the road and was shot twice and left for dead. The independence of Haiti's judiciary, its state university, and other institutions has been steadily undermined. Gross electoral fraud by the ruling party has deprived the entire political apparatus of legitimacy. For most of this time attacks by government-sponsored and armed militants on opposition rallies made free assembly all but impossible. "Violence, in all its forms, has reemerged as the common currency of both public and private life," according to a report issued in December by the Washington-based Haiti Democracy Project. "Haiti is an armed camp" and faces a "looming sociopolitical implosion."
I have no doubt that many of those among Aristide's opposition are no better, but clearly he courted disaster. Additionally, the piece goes on to discuss the rise of drug trafficking in Haiti during Aristide's tenure. In addition, it also lends support to the notion that Aristide had never truly been out of power since his 1994 reinstallation:
In December 1995, at the expiration of his first term in office, three years of which he had spent running a government-in-exile from Georgetown, Aristide, prohibited by the Haitian constitution from succeeding himself, stepped down with noticeable reluctance in favor of his hand-picked successor, René Préval. Préval, a close associate, had been described in the press as Aristide's Marassa—in the Vodou pantheon one of twins between whom there exists an intuitive, symbiotic bond. Although Aristide was persuaded to surrender office, it was soon evident that he was not prepared to relinquish power. As Raoul Peck, director of the prize-winning film Lumumba and minister of culture under Préval, notes in his memoirs, despite the new administration, Aristide, although shielded from public accountability, remained the controlling voice.
The article goes on to note that internal power struggles predating the present insurrection managed to alienate Aristide from the bulk of his former allies. But most significant is this passage about the May 2000 elections:
. . . For most of the Lavalas years, I was a fairly regular visitor to Port-au-Prince, and the resurgence of political violence, particularly in the months leading up to the May 2000 balloting, was perhaps the most disturbing aspect of Haiti's changed political climate. As the campaign intensified, the police withdrew to the sidelines as gangs of "militants" from La Saline and Cité Soleil, voicing allegiance to Aristide, regularly broke up opposition rallies and firebombed the homes and offices of opposition politicians, human rights activists, and journalists. The former Port-au-Prince mayor Evans Paul, who had been beaten and tortured by the military in the early Nineties, warned that the Haitian people were "in the hands of politically manipulated thugs. Anarchy is overwhelming us."
The political use of paid thugs is a familiar-enough phenomenon in other parts of the Caribbean, and elsewhere. In Haiti, as the former FL activist Edzer Pierre notes, "There's a huge population of people who will do anything for money." In Haiti, the Chimères, as these groups came to be known, are "not a political force, they're a political tool," and under Aristide they were transformed into a semi-official arm of the government. The identity of those in charge of these operations was never a particular secret. Roland Camille, aka Ronald Cadavre, perhaps the most feared of Lavalas organization populaire chiefs, is a gangster from La Saline, where he has run a protection racket in the local market. In 2001, to the dismay of a group of senators who were involuntary witnesses, Cadavre, whose relations with Aristide put him beyond the reach of the police, took advantage of this peculiar immunity to shoot a rival to death on the steps of the Palais Legislatif. For most of this time, it was clear enough that these episodes could have been ended by a single (cellular) phone call from Aristide's private residence in Tabarre, and equally clear, given Aristide's conspicuous failure to denounce these acts, that such a call would not be forthcoming. The unwillingness of the government to curb violent acts by its partisans was sharply criticized by human rights groups like Amnesty International, Americas Watch, and the National Coalition for Haitian Rights, once Aristide's strongest supporters.
The bold font emphasis is mine. Note how this testimony from an eyewitness sharply contradicts the Left's contention that there were little or no election irregularities; the elections occurred in a climate of fear and violence. The article goes on to discuss the actual election fraud in some detail. The whole article is well worth reading.
Update III: President Clinton's special envoy to Haiti in 1993-94 had an editorial in the Baltimore Sun that predated Aristide's departure by approximately a week. He did not mince words about where the blame lays for this situation:
Aristide was given every opportunity to live up to proclaimed ideals of democracy and social justice. The United States not only intervened in 1994 with 20,000 troops to put him back in power; it championed a multibillion-dollar relief and development effort that was unprecedented in size and scope for a country the size of Haiti. The U.S. government and other international donors also invested heavily in institutional reforms that failed to take root because the Aristide government was more interested in consolidating its power than building an institutional base that would serve all Haitians.
The Clinton administration soon found that, once back in power, the exiled former priest who had lobbied so strenuously and successfully to get America to invade his homeland played politics as a zero-sum game. Aristide ignored advice to broaden the political base of his government, and gratuitously made enemies by intimidating political opponents. He undermined efforts to professionalize the police by politicizing the hiring and retention of policemen. He turned a deaf ear to the advice of the United States and other international donors to privatize graft-ridden state corporations.
* * *
Aristide's will to dominate extended to electoral machinery that proved fair and open enough to give him an electoral victory in 1991. Under Aristide later, the electoral commission designated by the Haitian constitution came under attack and its chairman was forced to flee the country. The elections after Aristide's restoration were farcical. International and nongovernmental election observers universally criticized them.
The emphasis, of course, is added. Clinton's special envoy goes on to note that the opposition is of mixed complexion:
Democratic institutions were smothered at the civil society level and Haitians from all walks of life—students, labor union members, religious leaders, the business community and opposition politicians—were forced into the streets. Many of these protesters were once avowed Aristide supporters who cheered Aristide on his return to the presidency in 1994.
Now, they have taken to the streets to demand his resignation. These peaceful protesters, concentrated in the capital, Port au Prince, should be seen as separate and distinct from the armed gangs that have sprung up around the country.
Aristide's apologists have difficulty explaining away the massive, peaceful public demonstrations in Port au Prince and have appealed to the international community for assistance in quelling the civil unrest.
They accuse those who have taken up arms outside the capital of being "coup plotters," knowing full well that many were former government enforcers who saw themselves targeted as scapegoats when the government turned on them.
Funnily enough, Clinton's special envoy more or less insinuates the necessity of international intervention and a Haitian future sans Aristide. If our involvement in Haiti is, as the Left avers, the result of a conspiracy, the conspiracy must be vast indeed to effectively include former Clinton officials.
Update IV: The political Left has also suggested that the Bush administration sought to undermine Aristide's regime from the very beginning (e.g., Jeffrey Sachs's allegations). At the outset, it should be noted that Jeffrey Sachs's credibility is a trifle suspect given that he casually casts aside any and all doubts about Haitian election fraud and doesn't even seem vaguely aware of the violence that has characterized Aristide's time in office. But what is even more damning is that Sachs has his history entirely wrong. The suspension of foreign aid—a consequence of the dubious elections—that he complains of were, in fact, initiated under the Clinton administration. As noted in May of 2002:
The Clinton administration and European Union cut off the Haitian government (while continuing programs through nongovernmental organizations) after Aristide had his representatives on the electoral commission throw out more than a million votes for non-Aristide senatorial candidates in the May 2000 elections (see OAS election report). When the electoral commissioner eventually refused to validate this procedure, he was threatened by both Aristide and then-President Préval and fled to the United States. The OAS electoral mission withdrew in protest. In December 2000 Aristide agreed with Clinton envoy Anthony Lake to speedy rectification of these elections, but to date nothing has been done.
In its first year and a half in office, the Bush administration has done no more than to maintain the Clinton sanctions. . . .
The chronology of events simply does not correspond to the coup-related conspiracy theories being bandied about—unless one thinks that the plot originated with the previous American president.
In this survey, we found that a mere 2% of Internet users in this survey reported writing a weblog or online diary. Earlier surveys and a follow up check in early 2004 indicate that between 2% and 7% of Internet users publish a 'blog. Within this tiny group, only about 10% report updating their blog daily. Most weblog writers update their blogs once a week or less often.
Even though only a small number of Internet users are writing blogs, a slightly larger number of Net users are visiting them. Eleven percent of Internet users report visiting blogs written by others. And of these blog readers, a third report posting to or commenting on the blog entries that they have read.
Blog readers most frequently visit the online diaries of friends (56% have done so), strangers (46% have visited the blogs of people they have never met) and family members (a quarter report visiting family blogs).
(AP link via Southern Appeal.)
PHOENIX—James Hamm is nearing a deadline but thinks time should be on his side as he tries to be admitted to practice law despite a decades-old conviction for first-degree murder.
Mr. Hamm spent seventeen years in prison for a drug-related homicide. He was released from prison seven years prior to passing the state's bar exam.
As the story goes on to note:
Whether he will be admitted is up to the Arizona Supreme Court in its role as overseer of the state's court system—lawyers are considered officers of the court. A court-appointed committee makes recommendations to the Supreme Court on applicants' character and fitness.
Most applicants are cleared without a hearing, but rules require one for applicants convicted of a violent crime. Hamm said he expects a "lengthy investigative process" by the committee.
If some attorneys had their way, the investigative process would be rather less lengthy:
While Hamm has supporters in the legal community, other attorneys recoiled at the prospect of a convicted murder being licensed to practice law. His admission to the ASU law college prompted some alumni to complain, and the college later backed off its intention to make him a part-time faculty member.
Is rehabilitation, if proven, sufficient reason to admit such bar candidates? Has Hamm duly paid his debt to society, or would refusal to credential him merely be an incident of felony conviction akin to being stripped of the right to vote?
One interesting way of considering this issue is to ponder that Hamm is ineligible to serve on an Arizona state or federal jury. Ariz. Stat. § 21-201(3); 28 U.S.C. § 1865(b)(5). Yet admission to the State Bar of Arizona would allow him to appear before state juries and argue cases and would likewise provide Hamm the ability to apply to practice before the federal courts and argue cases in front of federal juries. Does such a state of affairs make sense?
Writers often grumble about the criminal things editors do to their prose. The federal government has recently weighed in on the same issue—literally.
It has warned publishers they may face grave legal consequences for editing manuscripts from Iran and other disfavored nations, on the ground that such tinkering amounts to trading with the enemy.
The sorts of things that can get an editor in trouble apparently consist of such mundane things as reordering paragraphs, altering syntax, punctuation, or word choice, adding illustrations, and translating the work into English. Strangely, one can publish a work that originates from a designated regime as is, but must obtain a license in order to make the aforementioned changes or theoretically risk stiff penalties (viz. "fines of $500,000 and 10 years in jail").
These regulations are apparently promulgated and enforced by the Treasury Department, which confirmed the restrictions but declined to offer a rationale, and they allegedly run afoul of a law passed by Congress in the 1980s designed to avoid this very difficulty. I am hesitant to venture an opinion without first reviewing the laws and regulations for myself. In addition, it would be nice to hear a justification of the regulations from the Treasury Department. In the absence of one, these regulations are difficult to fathom.
(Link via Crooked Timber.)