Alberto Gonzales testifies before the Senate Judiciary Committee, 6 January 2005:

While I look forward to answering your specific questions concerning my actions and my views, I think it is important to stress at the outset that I am and will remain deeply committed to ensuring that the United States government complies with all of its legal obligations as it fights the war on terror, whether those obligations arise from domestic or international law.

These obligations include, of course, honoring Geneva Conventions whenever they apply. Honoring our Geneva obligations provide critical protection for our fighting men and women and advances norms for the community of nations to follow in times of conflict. Contrary to reports, I consider the Geneva Conventions neither obsolete nor quaint.

Alberto Gonzales reports to George W. Bush on the legal obligations imposed by the Geneva Conventions, 25 January 2002:

The consequences of a decision to adhere to what I understood to be your earlier determination that the GPW does not apply to the Taliban include the following:

Positives

• Preserves flexibility
  • As you have said, the war against terrorism is a new kind of war. It is not the traditional clash between nations adhering to the laws of war that formed the backdrop for GPW. The nature of the new war places a high premium on other factors, such as the ability to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against American civilians, and the need to try terrorists for war crimes such as wantonly killing civilians. In my judgment, this new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions requiring that captured enemy be afforded such things as commissary privileges, scrip (i.e., advances of monthly pay), athletic uniforms, and scientific instruments. …
• Substantially reduces the threat of domestic criminal prosecution under the the War Crimes Act (18 U.S.C. 2441).
  • That statute, enacted in 1996 prohibits the commission of a war crime by or against a U.S. person, including U.S. officials. War crime for these purposes is defined to include any grave breach of GPW or any violation of common Article 3 thereof (such as outrages against personal dignity). Some of these provisions apply (if the GPW applies) regardless of whether the individual being detained qualifies as a POW. Punishments for violations of Section 2441 include the death penalty. A determination that the GPW is not applicable to the Taliban would mean that Section 2441 would not apply to actins taken with respect to the Taliban.
  • Adhering to your determination that GPW does not apply would guard effectively against misconstruction or misapplication of Section 2441 for several reasons.
    • First, some of the language of GPW is undefined (it prohibits, for example, outrages upon personal dignity and inhuman treatment), and it is difficult to predict with confidence what actions might be deemed to constitute violations of the relevant provisions of GPW.
    • Second, it is difficult to predict the needs and circumstances that could arise in the course of the war on terrorism.
    • Third, it is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on Section 2441. Your determination would create a reasonable basis in law that Section 2441 does not apply, which would provide a solid defense to any future prosecution.

…

On balance, I believe that the arguments for reconsideration and reversal are unpersuasive.

Jed Babbin in National Review Online 25 February 2004:

If wars are too important to be trusted to the generals, they are far too important to be trusted to a bunch of lawyers.

George W. Bush, Collinsville, Illinois, 5 January 2005:

I think we’re sent to Washington to solve problems, not to pass them on to future Congresses. I believe we are called to do the hard work to make our communities and quality of life a better place. And it’s hard work for some in Congress to stand up to the trial lawyers. I understand that. But all we’re asking for is fairness.

I’ve been putting most things on the back burner for the past few days while I get together graduate school applications and polish off a few other tasks that have been on the to-do list for a bit too long. In the meantime, for your reading pleasure…

• Now that you’ve already liberated your Office software (thanks, OpenOffice.org!) and your web browser (thanks, Mozilla Firefox!), you can also reclaim your inbox with the public release of Mozilla Thunderbird, a top-notch open source, standalone e-mail client. It features (inter alia) adaptive spam filters, nice RSS / Atom newsfeed support, and extra-useful Saved Search folders. Migrating from AOL? Outlook? Outlook Express? Eudora? No problem! That’s the thing about open source software: they keep making software that works. Score another one for the free world.

• Patent protectionists show once again how they make our lives better and reward innovation. Another threat to technological civilization will no doubt soon be averted by further intellectual enclosure. (Thanks, Copyfight.)

• Fred Vincy has a thorough take-down of editorial hand-wringing over boys’ supposedly declining educational prospects. In fact, the whole thing is a huge sham (for some tangentially related points, see GT 2002-02-06: The Weird, Wild World of Anti-feminism), and as Fred points out, several steps of the argument apparently require you to presume that the money men make is more important than the money women make. It also includes, among other chicanery, this marvelous explanation of the problem: The small group of experts who research the problem only now is beginning to trace its outlines. It isn’t so much that schools have changed in ways that hurt boys. It’s that society has changed in ways that help girls. Helping girls? O tempora! O mores! (Perhaps someone at USA Today does need help with their verbal skills, after all…)

• George Bush really did tell Tony Blair The problem with the French is that they don’t have a word for entrepreneur. You can test your knowledge of our Prince President’s gnomic wisdom at the BBC.

• Now that Fallujah had to be destroyed in order to save it, military commissars now have a free hand to build their model city in the heart of the Sunni Triangle. Bright ideas for liberated Fallujah include apartheid-style passbooks for all Fallujans and possibly industrial conscription in which all work for Fallujan men is organized under military-style batallions and directed by Army commanders. (For those keeping score, that’s one of Leon Trotsky’s theses about the possible uses of the Red Army after the Civil War drew to a close. It managed to horrify even his fellow Bolsheviks–no small feat, that. Freedom is, indeed, on the march.)

So it goes in this possible world. There should be some more in the way of non-lazy posting coming soon.

During the late unpleasantness, in spite of a sharply divided electorate and sharply worded debate, there was one point of agreement that you could always count on. To illustrate, here’s George Bush, trying to lay the smack down on Kerry:

When our country is in danger, it is not the job of the president to take an international poll; it’s to defend our country.

And here’s John Kerry doing his best to sidestep the smack down by insisting that he agrees with Bush on the principle:

What I said in the sentence preceding that was, I will never cede America’s security to any institution or any other country. No one gets a veto over our security. No one.

Of course, Bush and Kerry disagree over something here: they disagree over what Kerry’s position is. But of course that disagreement reveals a fundamental agreement between the two: both of them accept the underlying premise that it would be absolutely damning for a Presidential candidate to tie decision-making about when and where the American military is deployed to another country or an international body. In fact, this is a point of political dogma repeated endlessly by almost everyone who has anything at all to say about the matter. Here’s William Saletan in Slate:

It’s clear from Kerry’s first sentence that the “global test” doesn’t prevent unilateral action to protect ourselves. But notice what else Kerry says. The test includes convincing “your countrymen” that your reasons are clear and sound.

And here’s Dick Cheney, direct as ever:

We heard Senator Kerry say the other night that there ought to be some kind of global test before U.S. troops are deployed preemptively to protect the United States. That’s part of a track record that goes back to the 1970s when he ran for Congress the first time and said troops should not be deployed without U.N. approval.

Now, I think that the Right is obviously wrong on the exegetical question of what Kerry actually said and believes, but I won’t belabor the point here (if you want it belabored, I suggest Roderick’s discussion at Austro-Athenian Empire). Let’s take it for granted that neither Bush nor Kerry would give another country a veto over American security policy, and move on to the critical question: do they have legitimate grounds for refusing to do so?

You’d take it from the way the debate has gone that it’s self-evident that they do: everyone in the droning classes seems to take it for granted that no sane governor could reasonably think that you ought to give other countries a veto over American security policy. Yet both Bush and Kerry were running for President–an office whose legal authority is supposed to derive from the Constitution of the United States. And the Constitution (which you swear to uphold when you become President) says, inter alia, that

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. (Article VI, emphasis added)

One of those treaties made under the authority of the United States is the Charter of the United Nations, which was ratified by the United States government in 1945. If you accept the Constitution as legally binding, then you have to accept the provisions of the United Nations charter as legally binding; and among those provisions are:

Article 2

…

§ 2. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter.

§ 3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.

§ 4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

…

Article 33

§ 1. The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.

§ 2. The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means.

…

Article 39

The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

Article 40

In order to prevent an aggravation of the situation, the Security Council may, before making the recommendations or deciding upon the measures provided for in Article 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable. … The Security Council shall duly take account of failure to comply with such provisional measures.

Both Bush and Kerry claim to recognize the legal authority of the Constitution and the treaties made under it, including the U.N. Charter. But the plain text of the U.N. Charter gives other countries a veto over U.S. military policy, through the apparatus of the United Nations. Except in cases of actual invasion (which are exempted Article 51), the United States government cannot go to war without U.N. approval without violating the U.N Charter, and thus also the Constitution.

Now, as an anarchist, I don’t have a dog in this fight. I couldn’t care less about the United Nations: I’d argue that trusting a body constituted by the world’s heads of state and their representatives to protect international peace and human rights is about as wise as trusting a League of Foxes to guard the hen-house (and for precisely the same reasons). For that matter, I don’t recognize the legal authority of the Constitution and I don’t think that the pretenders to government office have any legitimate authority to ensnare the rest of us in legally binding treaties. But I do care about bad arguments. If there’s anyone who doesn’t agree with my peculiar views on the nature of legal authority, it’s John F. Kerry and George W. Bush; they claim to recognize the Constitution as legitimate and either one would swear to uphold it after being elected. If they really believe what they claim to believe about the law, then a decent sense of intellectual shame would demand that they either:

1. … accept other countries’ veto power over the United States’ decisions to go to war,

2. … move to formally withdraw the United States from the United Nations, or

3. … stop claiming that the Constitution is the basis for their legal authority

Something’s got to give; you can’t hold all the positions that John Kerry and George Bush loudly insisted that they hold without getting yourself stuck in a rank inconsistency. It may be too much to expect intellectual decency from politicians and political discourse. But if political discourse has lost its sense of shame, then the sooner it learns it again, the better. And someone has got to start the teaching, by example.

As the French might say, écrassez l’inf?@c3;a2;me.

Let’s take an informal review of some case studies in the political economy of medicine and public health.

Aspirin

Risks: Aspirin caused about 500 cases of Reye’s Syndrome in 1980, resulting in over 100 children’s deaths within one year.

Uses: Women and men use it to relieve headaches and minor pain.

Response: In the 1980s, physicians launched a public education campaign to inform parents that they should never give aspirin to children. Competing drugs such as ibuprofen and acetaminophen were recommended for children’s use and over-the-counter pain-killers made specifically for children were brought onto the market. Because of widespread, responsible adult use, aspirin is still sold over the counter today.

Viagra

Risks: in the first year after its introduction, Viagra caused heart attacks, strokes, and coronary artery disease, and severe hypertension, resulting in 564 deaths worldwide within one year.

Uses: Men use it to help them get it up.

Response: A collective shrug of the shoulders. Because of widespread, responsible adult use, Viagra is still prescribed without restriction by ordinary physicians, with a standard side effects warning.

Pregnancy and childbirth

Risks: a rewarding and widespread but dangerous process with health risks involving hemorrhage, sepsis, pregnancy-induced hypertension including preeclampsia and eclampsia, obstructed labor caused by cephalopelvic disproportion, iron-deficiency anemia, and gestational diabetes, among others, resulting in an estimated 500,000 women’s deaths, and 416 deaths in the U.S. alone, in 2001.

Uses: After men get it up and make a minor contribution, women use it to make babies.

Response: It’s the will of Jesus.

Mifepristone (also known as RU-486)

Risks: Use of Mifepristone has resulted in somewhere between 1 and 3 deaths in the four years since approval.

Use: Women use it for early term abortions, as an alternative to invasive surgical procedures, when they aren’t interested in making babies.

Response: In spite of widespread, responsible adult use, distribution of Mifepristone is already heavily restricted; it is not available by prescription and stringent requirements are set on doctors who wish to make it available to their patients. The FDA imposed its most stringent level of safety labeling on it in light of the possibly related deaths; prominent Republican legislators are using the moment to push for special legislation to ban it.

Conclusion

Clearly the political agencies responsible for controlling what drugs you can or cannot take are motivated by the purest concern for your own safety, and not by political pressure. This has nothing to do with abortion politics and it has nothing to do with sexuality or gender. Move along citizen, there’s nothing to see here.

(Link thanks to Pandagon 2004/11/14. I appreciate the commentary, Jesse, but I could have done without the joke about sexual assault.)

John Ashcroft has never been one to shy away from pushing the envelope; for the latest example, consider his parting words for the judicial branch.

Ashcroft:

Without referring to specific adverse rulings on the treatment of detainees or enemy combatants, Ashcroft blasted activist judges for encroaching on the powers that he insists belong solely to the president in wartime.

The danger I see here is that intrusive judicial oversight and second-guessing of presidential determinations in these critical areas can put at risk the very security of our nation in a time of war, Ashcroft said.

… he spent most of his 30-minute speech defending the administration policies against federal judges critical of the government’s terrorism policies.

Ideologically driven courts have disregarded and dismissed the president’s evaluations of foreign policy concerns, in favor of theories generated by academic elites, foreign bodies and judicial imagination, Ashcroft said.

Slimy judicial activist elites:

Article I

Section 9. … The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.

…

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; … nor be deprived of life, liberty, or property, without due process of law; …

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Charges of judicial activism have a long history on the Right. It used to be that judges were denounced as judicial activists for upholding limits to government power that go beyond what is, strictly speaking, spelled out in the Constitution. Ashcroft has an even better idea: now you can denounce judges as judicial activists for refusing to go beyond what is, strictly speaking, spelled out in the Constitution in order to find exceptions to limits on the power of the Executive.

(You may note that there are accomodations for wartime exigencies in Article I §9 and Amendment V; true, but none of those exceptions apply to the current set of cases, and none limit the protection of Amendments IV, VI, or most of the clauses of Amendment V, either. Nowhere are the phrases the president’s evaluation of foreign policy concerns or except when the security of our nation in a time at war is at risk to be found.)

Here’s how the strict constructionists in the audience greeted this exciting new discovery:

As Ashcroft arrived Friday, he received a long and roaring standing ovation from a hotel ballroom filled largely with leading conservative lawyers. In his speech to the Federalist Society’s national convention, Ashcroft made no direct mention of his decision to step down as the nation’s top law enforcement official.

Ashcroft’s stepped down, but no doubt the Right will continue in its campaign against the creeping menace of judicial activism, marching forward as they always have: that is, by denouncing defenders of individual rights and proudly championing the absolute power of the Monarch as ordained by Almighty God.

O it’s time to let mighty the Eagle soar…

Further reading:

• GT 2004/06/24: Pro-Choice on Everything, Part I
• GT 2004/05/30: Why We Marched
• GT 2003/12/20: Belated birthday presents for the Bill of Rights
• GT 2002/08/10: Judge Doumar has made his ruling; now let him enforce it
• GT 2002/06/11: An Important Update from the War Information Council