Segregation May Not Be Remedied

Essentially overturning the holding of Brown v. Board of Education, the Roberts Supreme Court held today in Parents Involved in Community Schools v. Seattle School District No. 1, that racial considerations may not be used to remedy racial segregation in primary and secondary schools. This seems like a huge mistake to me; there is a big difference between using race to segregate students from each other, and using race to try to integrate them. Attempts to ignore that distinction seem like so much disingenuous sophistry. One separates the races, another joins them.

More initial reaction on this decision here from Adam B at the Daily Kos. As he notes, Ninth Circuit Judge Alex Kozinski, a Reagan appointee, explained well why the Supreme Court got this so wrong:

When the government seeks to use racial classifications to oppress blacks or other minorities, no conceivable justification will be sufficiently compelling.... When government seeks to segregate the races [], the courts will look with great skepticism at the justifications offered in support of such programs, and will reject them when they reflect assumptions about the conduct of individuals based on their race or skin color.... Programs seeking to help minorities by giving them preferences in contracting, see, e.g., Adarand, and education, see, e.g., Bakke, benign though they may be in their motivations, pit the races against each other, and cast doubts on the ability of minorities to compete with the majority on an equal footing.

The Seattle plan suffers none of these defects. It certainly is not meant to oppress minorities, nor does it have that effect. No race is turned away from government service or services. The plan does not segregate the races; to the contrary, it seeks to promote integration. There is no attempt to give members of particular races political power based on skin color. There is no competition between the races, and no race is given a preference over another. That a student is denied the school of his choice may be disappointing, but it carries no racial stigma and says nothing at all about that individual’s aptitude or ability. ...

It is difficult to deny the importance of teaching children, during their formative years, how to deal respectfully and collegially with peers of different races. Whether one would call this a compelling interest or merely a highly rational one strikes me as little more than semantics. The reality is that attitudes and patterns of interaction are developed early in life and, in a multicultural and diverse society such as ours, there is great value in developing the ability to interact successfully with individuals who are very different from oneself. It is important for the individual student, to be sure, but it is also vitally important for us as a society. ... The school environment forces students both to compete and cooperate in the classroom, as well as during extracurricular activities ranging from football to forensics. Schoolmates often become friends, rivals and romantic partners; learning to deal with individuals of different races in these various capacities cannot help but foster the live-and-let-live spirit that is the essence of the American experience. I believe this is a rational objective for an educational system—every bit as rational as teaching the three Rs, advanced chemistry or driver’s education. Schools, after all, don’t simply prepare students for further education, though they certainly can and should do that; good schools prepare students for life, by instilling skills and attitudes that will serve them long after their first year of college.

Update:

Lyle Denniston at the SCOTUS blog has more here, and Christy Hardin Smith has commentary at FireDogLake here.

Second Update:

Jack Balkin points out that the actual holding of the case is more limited than my post above suggests, because Justice Kennedy's concurrence did not agree with some of the more difficult portions of Chief Justice Roberts' lead opinion. Take a look at his analysis. Armando has additional thoughts at TalkLeft. Eric Muller opines that Justice Kennedy essentially got the case right at Is That Legal?.

Scott Lemieux notes that "Given the modesty of the Seattle program -- which used race only as a tiebreaker, making the potential injustices of the classification particularly dubious -- it is clear that no affirmative action program is going to survive an encounter with the Roberts Court in its current configuration." He goes on to emphasize the Breyer dissent, including this graf:

Today, almost 50 years later, attitudes toward race in this Nation have changed dramatically. Many parents, white and black alike, want their children to attend schools with children of different races. Indeed, the very school districts that once spurned integration now strive for it. The long history of their efforts reveals the complexities and difficulties they have faced. And in light of those challenges, they have asked us not to take from their hands the instruments they have used to rid their schools of racial segregation, instruments that they believe are needed to overcome the problems of cities divided by race and poverty. The plurality would decline their modest request.

The plurality is wrong to do so. The last half-century has witnessed great strides toward racial equality, but we have not yet realized the promise of Brown. To invalidate the plans under review is to threaten the promise of Brown. The plurality's position, I fear, would break that promise. This is a decision that the Court and the Nation will come to regret.

Finally, do not miss the Stevens dissent, also noted by Lemieux:

There is a cruel irony in The Chief Justice’s reliance on our decision in Brown v. Board of Education, The first sentence in the concluding paragraph of his opinion states: “Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.” This sentence reminds me of Anatole France’s observation: “[T]he majestic equality of the la[w], forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread." The Chief Justice fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools. In this and other ways, The Chief Justice rewrites the history of one of this Court’s most important decisions.

New Column: Reactions to al-Marri Decision

My latest column for the Legal Intelligencer, written with my co-worker Jeremy, touches on the Fourth Circuit's recent decision granting habeas relief to Ali Saleh Kahlah al-Marri, a man who was long subjected to indefinite military detention without any due process, despite his lawful residence in the United States. It can be read here. Here is the intro:

"For over two centuries of growth and struggle, peace and war, the Constitution has secured our freedom through the guarantee that, in the United States, no one will be deprived of liberty without due process of law." So begins the Fourth Circuit's June 11 decision, al-Marri v. Wright, the most recent legal setback for the Bush administration's anti-terrorism program.

In a 2-1 ruling, the court ruled that the government did not have the authority to detain indefinitely without process Ali Saleh Kahlah al-Marri, a Qatari national who had come to the United States on a student visa and who was living in Peoria, Ill.

Al-Marri lawfully entered the United States the day before the Sept. 11 attacks. Three months later, FBI agents arrested him as a material witness in the government's investigation of the attacks. Subsequently, he was charged with various criminal counts, including making false statements to the FBI.

Al-Marri's criminal trial was scheduled for July 20, 2003. Prior to his trial, the president ordered that the indictment against al-Marri be dismissed and that he be transferred to military custody. The president determined that al-Marri was an "enemy combatant" and that his detention was necessary to prevent him from aiding al-Qaeda.

In accordance with the order, al-Marri was transferred to a naval brig in South Carolina. He was detained by the military for nearly four years - without criminal charge or process. As the 4th Circuit explained: "He has been so held although the government has never alleged that he is a member of any nation's military, has fought alongside any nation's armed forces, or has borne arms against the United States anywhere in the world. And he has been so held, without acknowledgment of the protection afforded by the Constitution, solely because the executive believes that his military detention is proper."

For the first 16 months of al-Marri's military confinement, the government did not permit him any communication with the outside world, including his attorneys, his wife, or his children. He alleges that he was denied basic necessities, interrogated through measures creating extreme sensory deprivation, and threatened with violence.

Al-Marri petitioned for a writ of habeas corpus to secure his release from military imprisonment. In the petition, al-Marri claimed that the Fifth Amendment guarantees that no person living in this country can be deprived of liberty without due process of law. He maintained that even if he did commit the acts the government alleged, he is not a combatant but a civilian protected by the Constitution, and thus not subject to military detention.

The column goes on to highlite some of the recent blog commentary on the decision, including that of Glenn Greenwald, Andrew McCarthy, Anonymous Liberal, Orin Kerr, Ken Ashford, Marty Lederman, and SCOTUSblog.

We do not torture (depending on who defines "torture")

Bush lied to American high school students about whether we are engaged in torturing detainees. Fifty high school honors students presented him with a petition:

"We do not want America to represent torture. We urge you to do all in your power to stop violations of the human rights of detainees, to cease illegal renditions, and to apply the Geneva Convention to all detainees, including those designated enemy combatants."

Of course, he pretended that their fears have no foundation. (via Andrew Sullivan).

Bush refuses to level with the American people about what he is doing on their behalf, insisting instead on tortured definitions of "torture" and "abuse," intentionally vague pronouncements of our principles, and straight-out dishonesty. We have become a laughingstock and continue to lose the respect of the international community, preaching human rights to our enemies while disappearing others to secret prisons or handing them over to countries we know will torture them. We say "no torture" but we mean "nothing equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." We claim that the abuses at Abu Ghraib were a mistake, but we fire anybody who takes investigation of its genesis seriously. We deride international law while claiming its support whenever it is to our advantage. We hope that President Bush's embrace of torture (and shallow euphemisms for torture like "enhanced interrogation techniques") is an aberration, but Republican candidates for President all jockey to see who is most pro-torture. Only the chosen scapegoats in the lowest ranks of the military receive any punishment.

Meanwhile, Glenn Greenwald takes issue with a New York Times Op-Ed by U.S. Air Force Col. Morris D. Davis, the chief prosecutor in the Defense Department's Office of Military Commissions, which relies in large part on the coerced statement extracted as a condition for releasing former Australian Guanatamo Bay detainee David Hicks, which stated that he had not been abused. Greenwald takes you step-by-step through just how dishonest this argument is, and summarizes it thusly:

So, to recap: we imprison someone for life with no charges, muffle their claims that they were tortured in captivity, agree to let them go after five years provided they sign a statement "stipulating" they were treated properly and vow to remain silent about the mistreatment to which they were subjected, and then send military official parading in public, waving the signed "stipulation" around in the air as proof of the sterling, professional and humane conditions at Guantanamo.

Greenwald, author of one of my favorite recent books, How Would a Patriot Act, has authored a new book, "A Tragic Legacy: How a Good vs. Evil Mentality Destroyed the Bush Presidency," which was released today. An excerpt can be read here.

Finally, Part 3 of the Washington Post's four-part series on Vice President Dick Cheney can be read here. Part 1. Part 2.

On Bomb Throwers and Dismantlers

Jack Balkin looks at the Supreme Court's decisions announced today, and distinguishes the judicial activism of Scalia and Thomas with that of Alito and Roberts. (And Justice Kennedy just does whatever he wants.)

Bad apples, rotten to the core, with no accountability

The Bush Administration's "bad apples" defense has seen better days. Last week's story by Seymour Hersh revealed yet further proof that the Administration has been lying from the beginning about its torture and abuse of detainees.

Now, the usually inscrutable Vice President Cheney is the subject of a comprehensive four-part front-page Washington Post series by Barton Gellman and Jo Becker on his role in the Bush Administration and his authorship of some of its most unforgivable abuses. Parts 1 and 2 are now online, and provide a devastating contemporary history of the past six years of Mr. Cheney's abuses of office, crimes against both domestic and international law, and enormous influence with and power over President Bush's decisionmaking, particularly concerning the lawless and unconstitutional regime of interrogation and torture instituted at Guantanamo Bay and deliberately transferred to Abu Ghraib and elsewhere.

Bush and Cheney even kept their decisions on detainees secret from members of their own team, including former Secretary of State Colin Powell, then-National Security Advisor Condoleeza Rice, and former Attorney General John Ashcroft. The line as to which war crimes were now permissible appears to have been completely arbitrary:

According to a source with direct knowledge, that opinion approved as lawful a long list of specific interrogation techniques proposed by the CIA -- including waterboarding, a form of near-drowning that the U.S. government classified as a war crime in 1947. The opinion drew the line against one request: threatening to bury a prisoner alive.

When the project's depravity finally reached the light of day, these evil men chose to scapegoat the low-ranking soldiers in the photographs as "bad apples," covering up their own responsibility for the crimes with hollow words of contrition, all the while keeping the system in place to continue the torture and abuse.

George W. Bush on the Abu Ghraib scandal, 5/5/2004:

"There will be investigations, people will be brought to justice."

"We want to know the truth."

"The actions of these few people do not reflect the hearts of the American people."

"[T]he people in Iraq must understand that I view those practices as abhorrent."

"They must also understand that what took place in that prison does not represent America that I know."

President Bush on 5/10/2004:

"[B]ecause America is committed to the equality and dignity of all people, there will be a full accounting for the cruel and disgraceful abuse of Iraqi detainees. The conduct that has come to light is an insult to the Iraqi people, and an affront to the most basic standards of morality and decency. One basic difference between democracies and dictatorships is that free countries confront such abuses openly and directly."

"Some soldiers have already been charged, and those involved will answer for their
conduct in an orderly and transparent process. We will honor rule of law. All prison operations in Iraq will be thoroughly reviewed to make certain that such offenses are not repeated."

"Those responsible for these abuses have caused harm that goes well beyond the walls of a prison. It has given some an excuse to question our cause and to cast doubt on our motives. Yet, who can doubt that Iraq is better for being free from one of the most bloodiest tyrants the world has ever known?"

"I know how painful it is to see a small number dishonor the honorable cause in which so many are sacrificing."

"Anyone, any American who sees the photographs that we have seen has to feel apologetic to the Iraqi people who were abused, and recognize that that is something that is unacceptable and certainly un-American." Donald Rumsfeld, 5/5/2004

"As you know, full investigations into the abuses at Abu Ghraib are ongoing, and those engaged in this conduct will be held accountable." - White House Briefing by Alberto Gonzalez, 6/22/2004

Brig. General Mark Kimmitt: “Frankly, I think all of us are disappointed by the actions of the few,” says Kimmitt. “Every day, we love our soldiers, but frankly, some days we're not always proud of our soldiers."


Bush and Cheney may never have had pictures taken while holding a prisoner's leash, or giving their thumbs up to a pile of naked prisoners, or participating in mock executions such as waterboarding, but they cannot deny their responsibility. Be sure to read the whole Washington Post series.
Part 1. Part 2. Here is a brief excerpt:

No longer was the vice president focused on procedural rights, such as access to lawyers and courts. The subject now was more elemental: How much suffering could U.S. personnel inflict on an enemy to make him talk? Cheney's lawyer feared that future prosecutors, with motives "difficult to predict," might bring criminal charges against interrogators or Bush administration officials.

Geneva rules forbade not only torture but also, in equally categorical terms, the use of "violence," "cruel treatment" or "humiliating and degrading treatment" against a detainee "at any time and in any place whatsoever." The War Crimes Act of 1996 made any grave breach of those restrictions a U.S. felony. The best defense against such a charge, Addington wrote, would combine a broad presidential directive for humane treatment, in general, with an assertion of unrestricted authority to make exceptions.

The vice president's counsel proposed that President Bush issue a carefully ambiguous directive. Detainees would be treated "humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of" the Geneva Conventions. When Bush issued his public decision two weeks later, on Feb. 7, 2002, he adopted Addington's formula -- with all its room for maneuver -- verbatim.

In a radio interview last fall, Cheney said, "We don't torture." What he did not acknowledge, according to Alberto J. Mora, who served then as the Bush-appointed Navy general counsel, was that the new legal framework was designed specifically to avoid a ban on cruelty.

Law , honor, the Vice President, and our defective Constitution

Go read Sandy Levinson, discussing the Vice President's outrageous claim to be subject to oversight from neither Congress nor the President (as he is both President of the Senate and a member of the Executive branch), and the dangerous idea that an official must be caught actually breaking the law to warrant social opprobrium and serious political consequences.

Ashcroft contradicts Gonzalez

Contra A.G. Gonzalez's sworn testimony from 2006, John Ashcroft has confirmed that there was serious disagreement over the President's secret, illegal surveillance programs. Of course, this became evident in James Comey's recent testimony concerning his Godfather-ish visit to Ashcroft's hospital room.

Are you being served?

So will they take "no" for an answer?

The Senate Judiciary Committee just voted 13 to 3 to issue subpoenas for key NSA spying documents, relating to the President's illegal warrantless surveillance program. Notably, Republican senators Specter, Hatch and Grassley voted with the Democrats to authorize the subpoenas, which seems odd, given that they largely ignored or minimized the issue throughout Specter's chairmanship of the committee.

Digby revealed!

The indominitable Digby, proprietress of Hullabaloo, a long-time pseudonymous blogger, and my favorite blogger around (a much easier call since the untimely shuttering of Billmon's Whiskey Bar and Fafblog), emerged from her Santa Monica bunker and stepped forward to accept an award at the Take Back America conference. Here's her speech, and here's a short interview with her.

Torture investigator: "I thought I was in the Mafia"

So says Army Major General Antonio Taguba, the official charged with investigating the Abu Ghraib abuses, in a chilling New Yorker interview with Seymour Hersh. General Taguba reveals that he was threatened and forced to retire early because his investigation was not a proper whitewash job, with problematic findings such as "Numerous incidents of sadistic, blatant, and wanton criminal abuses were inflicted on several detainees . . . systemic and illegal abuse," and testimony that often contradicted the self-serving statements of Rumsfeld and other top military officers.

Taguba retired in January, 2007, after thirty-four years of active service, and finally agreed to talk to me about his investigation of Abu Ghraib and what he believed were the serious misrepresentations by officials that followed. “From what I knew, troops just don’t take it upon themselves to initiate what they did without any form of knowledge of the higher-ups,” Taguba told me. His orders were clear, however: he was to investigate only the military police at Abu Ghraib, and not those above them in the chain of command. “These M.P. troops were not that creative,” he said. “Somebody was giving them guidance, but I was legally prevented from further investigation into higher authority. I was limited to a box.”

. . .

“They always shoot the messenger,” Taguba told me. “To be accused of being overzealous and disloyal—that cuts deep into me. I was being ostracized for doing what I was asked to do.”

Taguba went on, “There was no doubt in my mind that this stuff”—the explicit images—“was gravitating upward. It was standard operating procedure to assume that this had to go higher. The President had to be aware of this.” He said that Rumsfeld, his senior aides, and the high-ranking generals and admirals who stood with him as he misrepresented what he knew about Abu Ghraib had failed the nation.

“From the moment a soldier enlists, we inculcate loyalty, duty, honor, integrity, and selfless service,” Taguba said. “And yet when we get to the senior-officer level we forget those values. I know that my peers in the Army will be mad at me for speaking out, but the fact is that we violated the laws of land warfare in Abu Ghraib. We violated the tenets of the Geneva Convention. We violated our own principles and we violated the core of our military values. The stress of combat is not an excuse, and I believe, even today, that those civilian and military leaders responsible should be held accountable.”

Cases Dismissed by Military Tribunals

Hamdan, the man in Guantanamo who took his case challenging his detention all the way to the Supreme Court, and another man, Khadr, had their charges dismissed based on lack of jurisdiction.

Basically, the law establishing the tribunals required a finding that the detainees were alien "unlawful enemy combatants," but these individuals had only been determined to be "enemy combatants," who can be either lawful or unlawful. Lots of technicalities that I do not really understand are at play here, so take a look at the more-educated discussions going on at Balkinization, National Security Advisors, and from Prof. Arend at Georgetown (go Hoyas!).

Libby Sentenced, Architects of Bogus Iraq War Rationales Still Free

I. Lewis "Scooter" Libby was sentenced yesterday to 30 months in prison, with a $250,000 fine. Comments from Judge Walton appear to indicate that the sentence will likely not be stayed pending his appeal.

For a quick, illustrated recap of the entire Bush/Cheney/Libby/Plame/Wilson/Iraq/yellowcake/Niger forgeries story, see this post from Prof. Juan Cole from earlier this year.

Steve Gilliard

I was away from blogging the last few days, so I missed this unfortunate announcement: Steve Gilliard, founder of the News Blog and the first guest-poster at the Daily Kos, died last weekend. He was 42.

Steve was one of the strongest voices in the left-blogosphere, and extremely influential on my own views, though I never met the man or corresponded at length. I read his page almost every day, from his early days at Kos, and often found myself consciously and unconsciously parroting arguments I first read on his site.

His analyses of the greater implications of an Iraq war--written before the invasion and continuing until his untimely death--were prescient and far more accurate than almost anything found in the mainstream media. He was influential throughout the online Left, and respected by many on the Right. "He was one of the first bloggers to put forth the idea that civility in maintenance of the status quo was a sucker's game, and he was never shy about letting others know when they had been suckered." He was a "fighting liberal."

His New York Times obituary can be read here, Kos's can be seen here, and collections of remembrances throughout the blog world can be found here and here.

Steve will be missed.