May 2014 archive

Michael Powell is the son of Gen. Colin Powell. The elder Powell knows a thing or two about war. He famously presented the case for invading Iraq to the United Nations, on Feb. 5, 2003, based on faulty evidence of weapons of mass destruction. He calls that speech a painful “blot” on his record. So it is especially surprising when his son threatens “World War III” on the Obama administration.

Michael Powell is the president of the NCTA, the National Cable and Telecommunications Association, which is the cable industry’s largest lobbying group. He is also the former chairperson of the FCC, the Federal Communications Commission. His target: net neutrality. The battleground is in Washington, D.C., inside the FCC’s nondescript headquarters. The largest Internet service providers-companies like Comcast, Time Warner Cable, AT&T and Verizon-are joining forces to kill net neutrality. Millions of citizens, along with thousands of organizations, companies, artists and investors, are trying to save it.

Eugene Robinson: Clinton Gets the GOP Treatment

Republican panic at the prospect of facing Hillary Clinton in the 2016 presidential race has suddenly reached Godzilla-nearing-Tokyo proportions.

The election is more than two years away, and Clinton hasn’t even decided whether to run. But none of this seems to matter to the GOP strategists and spinmeisters who are launching the whole arsenal at her-smears, innuendo, false charges. Already, they’ve moved beyond distorting her record to simply making stuff up.

As these damp squibs clatter harmlessly to the ground, it’s useful to remember that Clinton has seen it all before. And I mean all. Anyone who thinks she’ll be rattled or intimidated hasn’t been paying attention the past few decades. [..]

If Clinton should get the nomination, her Republican opponent-no matter who it is-would be no pushover. But the possibility of electing the first woman as president would likely stoke the enthusiasm of Democratic voters to the point where the party’s structural advantages-overwhelming support among minorities and women-came into play. Clinton might win big.

Hence all the premature mudslinging, which reeks of desperation. Republicans hear the sound in the distance. They feel it in their bones. Stomp. Stomp. Stomp.  

Jane E. Kirtley: Why the US constitution gives you the right to know lethal injection’s secrets

The death penalty has always been subject to public oversight, and for good reason. It’s called the First Amendment

In the panic and fear that followed the 9/11 attacks, the US government went into ultra-secret mode. In the name of protecting national security, prosecutors asked judges to close criminal proceedings involving terrorism, even though they had always been presumed to be open to the public – and the press – under the First Amendment. Many judges complied.

But in 2002, Judge Damon J Keith of the US Court of Appeals in Detroit ruled that secret deportation proceedings in so-called “special interest” cases involving alleged terrorists could not be conducted in secret. The Bush administration argued that open hearings would reveal sensitive intelligence information and compromise national security. The government further contended that these administrative proceedings are not technically part of the judicial system – and so should not be subject to the First Amendment right of access. [..]

Although the high court has not yet ruled explicitly that these rights extend to executions, history and experience support the argument. The death penalty – the ultimate expression of the state’s power over human life and death – has always been subject to public oversight, and for good reason. The government executes prisoners in the name of the public. To have confidence in that process, the public must have as much information as possible about it. We should know how officials treat those who are paying the ultimate penalty. We cannot call ourselves a democracy if we cede this kind of activity to a secretive government in blind faith and without question.

Sadhbh Walshe: Want to curb binge drinking? End the focus on laws and look at culture

The sooner we all start drinking like Italians, the better: despite liberal regulations, the way they drink in moderation reduces serious risk

The summer before I went to university in Dublin, I was in a state of high anxiety – not about the prospect of leaving home or the coming course work so much as my ability to drink alcohol in any quantity. To my young mind, being able to drink a lot was as important a part of college life as being able to write a good paper. So I put in a lot of effort – to drinking – until I was able to knock back pints with the best of my new classmates.

This kind of blind obligation to binge drink is exactly the kind of potentially dangerous boozing that’s led to a surge of new warnings from health experts. According to a report released this week by the World Health Organization (WHO), fully 16% of drinkers worldwide engage in heavy episodic (or binge) drinking – the most harmful form.

WHO is urging governments to take aggressive steps to address the problem by raising taxes on alcohol sales, raising minimum drinking ages, regulating sales and so on. But if regulations alone were enough to reduce binge drinking, then countries with stricter rules would have better drinking habits. Except that isn’t always the case.

Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), was a landmark decision of the United States Supreme Court that declared state laws establishing separate public schools for black and white students unconstitutional. The decision overturned the Plessy v. Ferguson decision of 1896 which allowed state-sponsored segregation. Handed down on May 17, 1954, the Warren Court’s unanimous (9-0) decision stated that “separate educational facilities are inherently unequal.” As a result, de jure racial segregation was ruled a violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. This ruling paved the way for integration and the civil rights movement.

Supreme Court Review

The case of Brown v. Board of Education as heard before the Supreme Court combined five cases: Brown itself, Briggs v. Elliott (filed in South Carolina), Davis v. County School Board of Prince Edward County (filed in Virginia), Gebhart v. Belton (filed in Delaware), and Bolling v. Sharpe (filed in Washington D.C.).

All were NAACP-sponsored cases. The Davis case, the only case of the five originating from a student protest, began when sixteen-year-old Barbara Rose Johns organized and led a 450-student walkout of Moton High School.

The Kansas case was unique among the group in that there was no contention of gross inferiority of the segregated schools’ physical plant, curriculum, or staff. The district court found substantial equality as to all such factors. The Delaware case was unique in that the District Court judge in Gebhart ordered that the black students be admitted to the white high school due to the substantial harm of segregation and the differences that made the schools separate but not equal. The NAACP’s chief counsel, Thurgood Marshall, who was later appointed to the U.S. Supreme Court in 1967, argued the case before the Supreme Court for the plaintiffs. Assistant attorney general Paul Wilson, later distinguished emeritus professor of law at the University of Kansas, conducted the state’s ambivalent defense in his first appellate trial.

Unanimous Opinion and Key Holding

In spring 1953 the Court heard the case but was unable to decide the issue and asked to rehear the case in fall 1953, with special attention to whether the Fourteenth Amendment’s Equal Protection Clause prohibited the operation of separate public schools for whites and blacks.

The case was being reargued at the behest of Associate Justice Felix Frankfurter, who used re-argument as a stalling tactic, to allow the Court to gather a unanimous consensus around a Brown opinion that would outlaw segregation. Chief Justice Vinson had been a key stumbling block. The justices in support of desegregation spent much effort convincing those who initially dissented to join a unanimous opinion. Even though the legal effect would be same for a majority versus unanimous decision, it was felt that it was vital to not have a dissent which could be relied upon by opponents of desegregation as a legitimizing counterargument.

Conference notes and draft decisions illustrate the division of opinions before the decision was issued. Justices Douglas, Black, Burton, and Minton were predisposed to overturn Plessy. Fred M. Vinson noted that Congress had not issued desegregation legislation; Stanley F. Reed discussed incomplete cultural assimilation and states’ rights and was inclined to the view that segregation worked to the benefit of the African-American community; Tom C. Clark wrote that “we had led the states on to think segregation is OK and we should let them work it out.” Felix Frankfurter and Robert H. Jackson disapproved of segregation, but were also opposed to judicial activism and expressed concerns about the proposed decision’s enforceability. After Vinson died in September 1953, President Dwight D. Eisenhower appointed Earl Warren as Chief Justice. Warren had supported the integration of Mexican-American students in California school systems following Mendez v. Westminster.

While all but one justice personally rejected segregation, the self-restraint faction questioned whether the Constitution gave the Court the power to order its end. The activist faction believed the Fourteenth Amendment did give the necessary authority and were pushing to go ahead. Warren, who held only a recess appointment, held his tongue until the Senate, dominated by southerners, confirmed his appointment.

Warren convened a meeting of the justices, and presented to them the simple argument that the only reason to sustain segregation was an honest belief in the inferiority of Negroes. Warren further submitted that the Court must overrule Plessy to maintain its legitimacy as an institution of liberty, and it must do so unanimously to avoid massive Southern resistance. He began to build a unanimous opinion.

Although most justices were immediately convinced, Warren spent some time after this famous speech convincing everyone to sign onto the opinion. Justices Robert Jackson and Stanley Reed finally decided to drop their dissent to what was by then an opinion backed by all the others. The final decision was unanimous. Warren drafted the basic opinion and kept circulating and revising it until he had an opinion endorsed by all the members of the Court.

Holding

The key holding of the Court was that, even if segregated black and white schools were of equal quality in facilities and teachers, segregation by itself was harmful to black students and unconstitutional. They found that a significant psychological and social disadvantage was given to black children from the nature of segregation itself, drawing on research conducted by Kenneth Clark assisted by June Shagaloff. This aspect was vital because the question was not whether the schools were “equal”, which under Plessy they nominally should have been, but whether the doctrine of separate was constitutional. The justices answered with a strong “no”:

   Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other “tangible” factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does… Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law, for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system… We conclude that, in the field of public education, the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.

For months Drug Enforcement Administration (DEA) Administrator Michele Leonhart has openly rebuked the drug policy reform policies of Attorney General Eric Holder and President Obama with one embarrassing statement after another. Now she is picking a fight with Minority Leader Mitch McConnell (R-Y) and other members of Congress over hemp. Meanwhile the Department of Justice’s Office of the Inspector General has launched an investigation into multiple scandals plaguing the agency. It is clear that Leonhart lacks the ability to lead and should resign. Activists are using the Twitter hashtag #FireLeonhart.

The DEA created a political firestorm this week when it seized seeds bound for a Kentucky hemp research program that was approved by Congress. Even Minority Leader Mitch McConnell (R-KY) has weighed in, telling Politico last night, “It is an outrage that DEA is using finite taxpayer dollars to impound legal industrial hemp seeds.” The Kentucky Agriculture Department is suing the agency. The seizure is the latest misstep by the agency, which is being investigated by the Department of Justice for numerous scandals.

Micheal Winship: The Fight Goes On: FCC Votes to Consider Rules That Could End Net Neutrality

The vote was taken at the Federal Communications Commission Thursday morning, as drums pounded and hundreds of demonstrators supporting Net neutrality chanted outside FCC headquarters.

In a packed meeting room — from which a handful of vocal protesters was ejected — the majority of commissioners approved a so-called Notice of Proposed Rulemaking, the latest step in a process that will determine the fate of a free and open Internet. Along with FCC Chairman Tom Wheeler, Democratic commissioners Mignon Clyburn and Jessica Rosenworcel voted in favor, despite reservations. “I would have done this differently,” Rosenworcel told the meeting. “We move too fast to be fair.”

So the tally was 3-2 along party lines, Democrats vs. Republicans, setting the stage for what will be, as Michael Weinberg, vice president of the media law public interest group Public Knowledge calls it, “the summer of Net neutrality.”

Enacting the notice now triggers an extended four-month public comment period so that the FCC can continue to hear, it said, “from Americans across the country.”

Ben Hallman: Congress Takes From The Poor, Gives To The Corporate Rich

The most dysfunctional Congress in U.S. history has finally found something that can attract bipartisan support: an expensive package of tax breaks that mostly benefit corporate interests.

By a vote of 96-3, the Senate this week advanced an $85 billion bundle of breaks known as “extenders,” so named because they supposedly expire every two years. In reality, these breaks have become an all-but-permanent part of the tax code, costing the Treasury billions of dollars a year in lost revenue. Though the House has introduced rival legislation, some version of the Senate bill is likely to win final passage.

The tax breaks advanced without any corresponding spending cuts elsewhere in the budget, despite previous demands by Republicans that any new legislation must not increase the federal deficit. They passed even as Republicans, often preaching fiscal responsibility, have forced cuts to food stamps and refused to extend long-term unemployment benefits, measures that would cost much less than the buffet table of giveaways contemplated under the bill.

Tom Engelhardt: The Pentagon Brings the Yemeni Model to Africa

Amid the horrific headlines about the fanatical Islamist sect Boko Haram that should make Nigerians cringe, here’s a line from a recent Guardian article that should make Americans do the same, as the U.S. military continues its “pivot” to Africa: “[U.S.] defense officials are looking to Washington’s alliance with Yemen, with its close intelligence cooperation and CIA drone strikes, as an example for dealing with Boko Haram.” [..]

One of the poorer, less resource rich countries on the planet, Yemen is at least a global backwater. Nigeria is another matter. With the largest economy in Africa, much oil, and much wealth sloshing around, it has a corrupt leadership, a brutal (pdf) and incompetent military, and an Islamist insurgency in its poverty-stricken north that, for simple bestiality, makes AQAP look like a paragon of virtue. The U.S. has aided and trained Nigerian “counterterrorism” forces for years with little to show. Add in the Yemeni model with drones overhead and who knows how the situation may spin further out of control.