The Human Race & Other Sports

Heeere's Johnny.

No matther whether th’ constitution follows th’ flag or not, th’ supreme coort follows th’ iliction returns.
— Finley Peter Dunne, The Supreme Court’s Decision

It seemed rude, but Sammy was just coming to the defense of a colleague. It happened during the State of the Union address when Sammy mouthed the words “Not true” in response to the President’s comments about a recently decided U.S. Supreme Court case. Johnny was still smarting, insofar as a Chief Justice of the United States ever smarts, from the fact that that decision demonstrated that when testifying before the Senate Judiciary Committee at his confirmation hearing, he had his fingers crossed.

One of the issues that concerned some of the senators during that hearing was whether Judge Roberts’s ideology would cause him to ignore the established principle of stare decisis that says courts should give great weight to judicial precedent and be slow to overturn established law. The reasons for the rule were best expressed by Judge Roberts himself when in response to questions from Senator Arlen Specter he said:

“I do think that it is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and evenhandedness. It is not enough—and the court has emphasized this on several occasions—it is not enough that you may think the prior decision was wrongly decided. That really doesn’t answer the question, it just poses the question.
And you do look at these other factors, like settled expectations, like the legitimacy of the court, like whether a particular precedent is workable or not, whether a precedent has been eroded by subsequent developments. All of those factors go into the determination of whether to revisit a precedent under the principles of stare decisis. . . . If a[n] overruling of a prior precedent is a jolt to the legal system, it is inconsistent with principles of stability. . . . [T]he principles of stare decisis recognize that there are situations when that’s a price that has to be paid.”

On January 21, 2010, in the case of Citizens United v Federal Election Commission, the Chief Justice was part of the 5 person majority that overruled decades of established law to find that the law limiting corporate expenditures in political campaigns is unconstitutional even though, as Justice Stevens observed in his dissent, the Court had adequate grounds to rule in favor of the plaintiffs without holding the statute unconstitutional. Mindful of his senate testimony, the Chief Justice wrote a 14-page mea culpa (in legal parlance called a concurring opinion) explaining why his vote to overrule earlier cases did not overrule his testimony before the U.S. Senate. What was notable about the Chief Justice’s concurring opinion was not so much what he wrote as to how it came to be written.

Citizens was first argued before the Supreme Court in March, 2009 and a decision was expected by late June. Instead, on June 29th the Court announced that it had set the case for reargument one month before its regular fall term was to begin and set a schedule for the filing of briefs. It said that it wanted the hear argument on the very issues that the parties had stipulated were not being presented to the Court. It asked the parties to advise it whether it should overrule either or both of two prior rulings on campaign finance law. Justice Stevens observes in his 94 page dissent that the parties had agreed that neither side was attacking the constitutionality of the Bipartisan Campaign Reform Act of 2002 insofar as it prevented corporations from making independent expenditures for speech that is an “electioneering communication” or that expressly advocates the election or defeat of a candidate. Commenting on the procedural issues, Justice Stevens said that although there was initially a “facial challenge to the constitutionality of Section 203 [of the Act]” . . . . [i]n its motion for summary judgment . . . Citizens United expressly abandoned its facial challenge. . . and the parties stipulated to the dismissal of that claim.” He observes that the Court typically does not anticipate a question of constitutional law in advance of the necessity of deciding it nor formulate a rule of constitutional law broader than is required by the precise fact to which it is to be applied.

Only time will tell whether Citizens will open the monetary floodgates to corporate involvement in political campaigns since corporations can now make independent expenditures in support of candidates or parties. What no one can debate is that by joining the members of the Court who said the case should be reframed and reargued so that the Court could overrule earlier decisions, the Chief Justice made a mockery of his statements to the Senate Judiciary Committee. Not that it matters. He now is where he wanted to be and no one can touch him.

Handshakes, Cricket and Sexual Intercourse

Difference of Religion breeds more quarrels than difference of politics.
— Wendell Phillips, 1860 Speech

In a competition with Pat Robertson for proving how stupid one can be, it’s hard to win, but Dubai, Iran and Pakistan gave it a good try. Pat’s entry into the “Can you believe how stupid I am” competition was his explanation that the Haitian earthquake resulted from a pact with the devil made by the Haitians to rid themselves of the French. The legal system in Dubai, a diplomatic reception in Spain and cricket in Pakistan were Mr. Robertson’s competitors.

Until the most recent event, Dubai had been in the news because of its near brush with financial death that preceded by just a few weeks the opening in Dubai of the tallest building in the world. Its entry in this contest had nothing to do with that. Its entry came courtesy of its legal system. Reports in assorted media described the plight of an unmarried British couple comprising a 23-year-old woman of Pakistani descent who, with her 43-year old male traveling companion, traveled to Dubai for New Year’s Eve. During the visit the woman was raped by a hotel employee in a public bathroom. The couple promptly reported the assault to the police who being detectives realized that this unmarried couple was sharing a hotel room. Ignoring the claim of rape, officials charged them both with having illegal sex and drinking alcohol in an unauthorized location. Given the seriousness of those offenses, their passports were taken and they may not return home until the investigation is completed. One report says that police are skeptical that a rape occurred. Dubai police apparently think life for tourists in Dubai is so dull that the couple made up the story in order to make their trip more interesting.

If the couple is ultimately convicted, they face up to six years in prison The director of the police station that arrested them explained to Gulf News that: “Our rules are clear in the U.A.E.; illegal drinking and sexual intercourse is considered an offense, so a case was filed against the couple as well.” (There are almost certainly circumstances in Dubai when sexual intercourse is not considered an offense. People planning on traveling there should not rely on the preceding sentence but should do their own investigation into the rules covering this activity.)

For our next example we travel to Spain. The question presented by events in that country is what happened at a diplomatic reception given by the king and queen for ambassadors and ministers. It involved a handshake or a non-handshake. One of the ministers in attendance was Stas Misezhnikov, Israel’s tourism minister. Another was Iran’s tourism minister, Hamid Baghaei. According to Mr. Misezhnikov’s assistant, the two ministers shook hands at the reception. Iran, which we have seen time and again, can get excited over the most peculiar things, was furious. Its tourism ministry issued a statement in which it said that the suggestion of a handshake was “an ugly and false rumor”. It went on to say that Iranian officials present at the reception “never encountered Israeli officials in any form,” thus putting to rest any thought that its minister might have had contact with some disembodied form of Israeli floating around the room in spectral fashion. To reaffirm the preposterousness of a handshake the statement said Iran considered “the permanent struggle against this international pariah its divine duty.” Although Iran may have hoped that statement would earn it the prize, it was competing with Pakistan. That kafuffle involved cricket rather than a handshake.

One of the big cricket events that takes place each year is the cricket tournament in India sponsored by the Indian Premier League. Prior to the tournament there is an auction in which players are selected to participate in the tournament. The winning teams in the tournament make a great deal of money. Pakistan’s players are acknowledged to be the champions of the kind of cricket that is played in the tournaments and in years gone by have been chosen to participate. Their acknowledged prowess notwithstanding, this year none of the Pakistanis was chosen by the 8 teams that the Indian Premier League comprises.

That failure was almost as offensive to Pakistan as the non-existent handshake to Iran. Pakistan’s interior minister, Rehman Malik says the failure to choose Pakistani players had nothing to do with their skill but, instead, was a diplomatic statement. He said: “The manner in which the players were insulted showed that India is not serious about the peace process with Pakistan.” He said that he was convinced that the Indian government had put pressure on owners of the teams not to bid on any Pakistani players. S.M. Krishna, India’s foreign minister responded saying: “Government has nothing to do with I.P.L. on selection of players and various exercises that are connected with it.”

As I said at the outset, Pat Robertson hasn’t cornered the market on nutty behavior. He has no reason to be ashamed of his effort, however.

A Tale of a Non-Diplomatic Diplomat

An ambassador is an honest man set to lie abroad for the commonwealth.
—Sir Henry Wotton, Reliquiae Wottoniamae [1651]

Diplomacy is not always as its name suggests. For this week’s lesson in its niceties (or lack thereof) we are indebted to Daniel Ayalon, Israel’s deputy foreign minister. He essentially taught us that there is more than one way to skin a cat or, put diplomatically, to let another country know of your displeasure with what the other country has done. This particular row pertained to affairs between Turkey and Israel and found its genesis in a Turkish television series known as “Valley of the Wolves”.

The program began in 2003 and is reportedly filled with nationalistic dialogue and scenarios displaying Turkish success in the various conflicts depicted on the series. The series contains graphic scenes of violence and, according to one description, glamorizes the life of the Mafiosi and, if taken at face value, could be seen as glamorizing lives of violence. In that respect it sounds a lot like what is seen every night on American TV. The Turks are more sensitive to such things than Americans and have often protested the show and demanded that it be removed from the airwaves. Murathan Mungan, a prominent Turkish author and poet is quoted saying of the series: “I believe the team behind the series is openly racist, defends acting outside the law, promotes the mafia and portrays violent role models . . . in a manner that would not have been seen in Hitler’s Germany or Mussolini’s Italy.” According to a description of the series in the New York Times, among other things the series shows Israeli agents and diplomats engaged in the business of trying to capture and convert Muslim children. It is considered particularly offensive because it is perceived as a way of feeding anti-Israel sentiment in Turkey.

The episode that gave rise to the lesson in diplomacy presented by Israel’s Deputy Foreign minister, Daniel Ayalon showed the series’ hero, Polat Alemdar, storming an Israeli diplomatic mission in order to rescue a Turkish boy who had been kidnapped by Israel’s Institute for Intelligence and Special Operations known as Mossad. Alemdar kills an Israeli agent and justifies his action saying it is no different from what Israel does vis a vis the Palestinians.

Upon learning of the depiction, Mr. Ayalon summoned Ahmet Oguz Celikkol, the Turkish Ambassador to Israel, in order to express Israel’s displeasure over the series. However, Mr. Ayalon was not content to issue a verbal rebuke. He also wanted to surprise Mr. Celikkol. He succeeded. Mr. Ayalon had, without telling Mr. Celikkol ahead of time, invited television reporters to attend the meeting. In the room in which the meeting took place were two chairs and a table. The table had the Israeli flag on it but no Turkish flag. The chairs were of different heights. Mr. Celikkol was seated on the lower chair so that he was forced to look up at Mr. Ayalon thus demonstrating, at least to Mr. Ayalon’s satisfaction, the superiority of Mr. Ayalon’s position. Mr. Ayalon wanted to make sure that no one missed the significance of the seating arrangement. According to the BBC, Mr. Ayalon “was caught on camera urging cameramen to note the ambassador’s low seating position. . . .” Speaking in Hebrew, which the Turkish Ambassador does not understand, Mr. Ayalon said: “The important thing is that people see that he’s low and we’re high and that there is no flag here.” He was also heard to point out in Hebrew, lest it be overlooked, “we are not smiling”. He refused to serve refreshments during the meeting or to shake the Ambassador’s hand. Pictures of the meeting showing Mr. Ayalon’s superior position were broadcast widely throughout Israel.

If anyone wondered how Mr. Ayalon attained the lofty position he holds, that episode provides the answer. Mr. Ayalon knows how to show the world who is who. Of course, his diplomatic triumph was not without its consequences. Such episodes rarely are. The good thing is one of its consequences was not the beginning of a war. Instead it was a continuation of the Ambassador summoning business.

The Israeli ambassador to Turkey, Gabby Levy, was summoned to a meeting in the Turkish foreign ministry’s under-secretary in Ankara. According to the BBC, the two men were seated in chairs of equal height and Turkey expressed its displeasure with demeaning treatment given its Ambassador. It is not reported whether refreshments were served. The Turks demanded an apology. At first Mr. Ayalon refused and simply said in the future he would be more diplomatic. In response to the refusal, Turkey’s president said that absent a formal apology, Turkey’s ambassador to Israel would be withdrawn. Responding to the uproar that was growing louder, Mr. Ayalon relented and issued a formal apology to Mr. Celikkol. It was not reported whether Mr. Ayalon had his fingers crossed when he penned the apology.

Who are the Recidivists?

Revenge is a kind of wild justice, which the more man’s nature runs to, the more ought law to weed it out.
— Francis Bacon, de Augmentis Scientiarum bk. II Fortitudo

This week’s surprise is not one you might have expected. It pertains to recidivism. If you listened to Senators and Congresspersons talk about the perils of releasing prisoners from Guantanamo because they will only return to attack us once again, you’d assume that recidivism among those released from Guantanamo would be close to 100%. That would not be surprising since many of the released GITMO prisoners had, among other things, been tortured and held there for years without charges being filed. One of the understandable side effects of such treatment could be a wish to exact revenge on one’s former captors. Indeed, the dangers of recidivism among this group was neatly captured by Representative Pete Hoekstra of Michigan who, upon learning during the Christmas holidays that the administration was sending two GITMO detainees overseas, (an announcement that was made two days after 12 other detainees had been sent to Afghanistan, Yemen and Somaliland) said: “We continue to send people back to countries that have weak central governments and ungoverned areas. It baffles the brain. In light of recent events, both the attempted bombing [Christmas Day] and the link to a former detainee from Gitmo who then became an al-Qaeda leader in Yemen. . . there should be a whole lot of red flags about transferring any more detainees out right now. Are they going to a country that produced any of these recidivists?”

His concern was echoed by Sen. Jeff Sessions of Alabama, the ranking Republican member of the Judiciary Committee who said: “We are deeply concerned about pending transfers [of detainees] on the heels of the Christmas Day bombing and news reports suggesting that even more released GITMO detainees have returned to militant activities than previously thought. All transfers should be put on hold until there has been a chance to analyze emerging numbers about the threat of recidivism, and to begin patching the cracks in the system laid bare by the Christmas Day bomb plot.”

Here is the surprise. According to the most recent Pentagon report, the recidivism rate among released GITMO detainees has gone up from 14% in the spring of 2009 to 20%. Four out of 5 of the former detainees have returned to a pacific way of life not involving hostility towards their former captors. Here is another surprise. It’s the recidivism rate among people released from U.S. prisons.

Every person incarcerated in a United States prison knows why he or she is there and, subject to early release for good behavior (and with the exception of certain sex offenders) knows exactly how long he or she can expect to stay there. Not one prisoner anywhere in the United States was subjected to torture in order to assist the government in establishing why the prisoner should be in prison rather than out on the streets. Every prisoner in the United States has a right to have a court consider every aspect of the proceedings that ended up with the prisoner’s incarceration. Notwithstanding the treatment accorded domestic criminals, they show little gratitude for the treatement they receive in the American criminal justice system.

According to the 2006 report of the Commission on Safety and Abuse, within 3 years of being released, 67% of the former prisoners will once again be arrested and 52% will be re-incarcerated. The rate of recidivism for our homegrown criminals is more than three times as high as it is for the foreign nationals at GITMO, not all of whom have even committed any crimes. The Report does not suggest, as some elected officials have with respect to GITMO detainees, that because they might be dangerous if released they should be incarcerated forever. (The four policemen in Lakeland, Washington who were murdered by the apparent recidivist Maurice Clemmons, would probably not have favored indefinite detention for violent offenders but would have wished that a convicted felon from Arkansas charged with child rape and assault in Washington, would not have been out walking the streets while awaiting trial.)

Reflecting on the United States statistics one is tempted to apply Mr. Hoekstra’s question about release of folk from GITMO to the release of folk from the U.S. prison system: “Are they going to a country that produced any of these recidivists?” The answer being in the affirmative one is tempted to ask Mr. Hoekstra whether he and others who favor indefinite detention for certain GITMO detainees would favor indefinite detention for domestic criminals, and, if not, why not, and if so, which ones would qualify for indefinite detention. That might also provide guidelines for deciding which GITMO detainees qualify for indefinite detention. With the development of such guidelines we could take comfort in the fact that something good has come out of Guantanamo.

Filibusters Could Be Fun

Although the Senate is much given to admiring in its members a superiority less obvious or quite invisible to outsiders, one senator seldom proclaims his own inferiority to another, and still more seldom likes to be told of it.
— Henry Brooks Adams, The Education of Henry Adams

You can’t really blame the senators. It’s much easier for them this way. On the other hand, it was more amusing for the citizens the old way. The senators should go back to the old way. I refer to the filibuster. They took the fun out of it several decades ago and it’s high time they put it back. The senators would have more time in the public eye and the public eye would have something at which to gaze.

According to the Congressional Quarterly (CQ), the filibuster’s first use by the U.S. Senate took place in 1841 when Democrats and Whigs were fighting over the appointment of official Senate printers and the establishment of a national bank. Later in the 19th Century the filibuster was involved in issues pertaining to slavery, the civil war and reconstruction. In 1917 it was used to block a bill authorizing the purchase of ships and another authorizing the arming of merchant ships, both sought by President Woodrow Wilson to prepare the nation for war. Following the 1917 filibuster, the Senate adopted a cloture rule to cut off endless filibustering that was invoked 25 times through 1962, but successfully ended a filibuster only four times.

In days gone by filibusters required talking. And more talking. So long as the filibusterers had the floor, the Senate could not engage in other business and the filibusterers were free to talk as long as they had the strength and observed the rules that permitted them to hold the floor. In the 1950s and ‘60s the threat of civil rights legislation being passed was sufficient to guarantee filibusters. Strom Thurmond filibustered a civil rights bill in 1957 speaking continuously for twenty-four hours and eighteen minutes. Three years later eighteen southern senators formed groups of two and kept the senate in session for 9 days until majority leader Lyndon Johnson abandoned the legislation in favor of a weaker version later passed. June 10, 1964, Senator Robert Byrd came to the end of a speech he had given that lasted 14 hours and 13 minutes opposing the 1964 Civil Rights Act. Shortly after he concluded, cloture was approved bringing to an end a debate that had taken 57 working days including six Saturdays. Then a sad thing happened. Majority Leader Mike Mansfield imposed a rule that might be called the Virtual Filibuster. Senators call it two tracking.

Under the two track rule more than one bill can be pending on the floor of the Senate as unfinished business. Thus, if a filibuster of a given bill is threatened, the senate pretends that the filibuster is taking place but continues working on other legislation. In effect (and it may be hard to believe that senators are capable of this) the senators are multi-tasking.

In 2004, former Congressman Jack Kemp wrote that in the 19th century there were only 23 filibusters whereas between 1970 and 2004 there were 191. The increase in number was attributable to the Virtual Filibuster whose abolition Mr. Kemp favored. Today every piece of legislation and many nominations are threatened by filibuster. It seems unfair to the minority that they are not given the opportunity to put their mouths where their hearts are.

The Senate should get rid of the Virtual Filibuster. It should insist that everything come to a grinding halt while those opposing legislation are permitted to demonstrate their oratorical skills. Some senators may oppose this new-old idea on the completely believable ground that they lack enough information about the legislation they oppose to discuss it intelligently for 10 minutes, much less several hours. Those fearing that should be comforted by the knowledge that under the rules of the Senate, their orations need not be germane to the legislation being opposed. They can, as Senator Huey Long once did while filibustering, discuss recipes for a variety of Southern foods. Requiring those filibustering to stand before cameras and orate gives them the opportunity for viewers of C-Span, Twitter and the like to let the whole world see how brilliant they are. And if, as would often be the case, the orator or the cause is not brilliant, the orator and his colleagues may, after sufficient public exposure, recognize that they are an embarrassment to the country and abandon the filibuster.

When President Wilson commented on the use of the filibuster to block the arming of the merchant ships in 1917 he said: “The Senate of the United States is the only legislative body in the world which cannot act when the majority is ready for action. A little group of willful men . . . have rendered the great government of the United States helpless and contemptible.” Mitch McConnell, minority leader of the senate, might want to contemplate those words. Some would say they describe him and his Republican cohorts.