Pfc. Bradley Manning was found guilty of more than 20 crimes, including several violations of the Espionage Act, but was significantly acquitted of the charge of aiding the enemy. The Washington Post reports:
The judge, Army Col. Denise Lind, found Manning guilty of most of the more than 20 crimes he was charged with, including several counts of violating the Espionage Act. She also acquitted him of one count of violating the Espionage Act that stemmed from his leak of a video that depicted a fatal U.S. military airstrike in Farah, Afghanistan. …
Had Manning been convicted of aiding the enemy, he would have faced a life sentence in prison without the possibility of parole. Civil libertarians feared that a conviction on that charge, which has not been used since the Civil War, would have sent a chilling message to would-be government whistle-blowers. …
Lind ruled in January that any sentence the Army private receives should be reduced by 112 days because of his mistreatment in confinement.
This past September, Chris Bray reviewed Chase Madar’s The Passion of Bradley Manning: The Story of the Suspect Behind the Largest Security Breach in U.S. History, which he describes thusly: “Writing from what often seems to be a leftist perspective, Madar nevertheless builds on a deeply conservative explanatory foundation in which political illnesses have cultural causes.”
The book “necessarily and appropriately looks beyond the figure of Manning himself to ask how we understand information, how we perceive our relationship to state authority, and how people who serve the armed power of the state see their own place in its project.”
Bray describes how, “Pulling at the masks that cover neoconservative and neoliberal foreign policy, Manning seems to have been engaged in a small-r republican project, looking for ways to give informed citizens the knowledge to restrain state power.”
Read the rest of the review here.
President Obama surprised the White House press corps today when he dropped into the daily briefing to deliver remarks in the wake of George Zimmerman’s acquittal in Trayvon Martin’s killing. Alongside the week-long calls by many on the left for the President to personally address the issue, there had been hand-wringing on the right that whatever he could say would only further inflame the already impassioned and polarizing topic. So with whatever breath they could gather after reportedly greeting the President’s entrance with “woah!”, the press waited anxiously to hear the message he would deliver.
And the President nailed it.
On the policy particulars involved, he appropriately demurred most specifics, while cautioning:
I know that Eric Holder is reviewing what happened down there, but I think it’s important for people to have some clear expectations here. Traditionally, these are issues of state and local government, the criminal code. And law enforcement is traditionally done at the state and local levels, not at the federal levels.
As to the trial process itself, the President again appropriately respected the local rule of law, saying “once the jury has spoken, that’s how our system works.” But, he continued, “I did want to just talk a little bit about context and how people have responded to it and how people are feeling.” And that is where he drew on his unique position as a black man and as the President of the United States to bring context and clarity to the debate, and an official voice to those left feeling voiceless and devalued by the verdict.
“You know, when Trayvon Martin was first shot I said that this could have been my son. Another way of saying that is Trayvon Martin could have been me 35 years ago,” he began, for “there are very few African American men in this country who haven’t had the experience of being followed when they were shopping in a department store,” and who haven’t heard “the locks clicking on the doors of cars” when they cross the street. Black men—no matter their status or dress—have to deal with a default perception of criminality, a perception that very clearly played a role in the death of Trayvon Martin.
The President addressed critics on the right by saying “this isn’t to say that the African American community is naïve about the fact that African American young men are disproportionately involved in the criminal justice system,” or “in understanding that, statistically, somebody like Trayvon Martin was statistically more likely to be shot by a peer than he was by someone else.” All of the above, however, “contributes to I think a sense that if a white male teen was involved in the same kind of scenario, that, from top to bottom, both the outcome and the aftermath might have been different.”
He addressed the “stand your ground” laws from an Alan Jacobs position, asking if the legal protection of lethal escalation “is…really going to be contributing to the kind of peace and security and order that we’d like to see?” Most damning for those laws’ standing was the simple question: “if Trayvon Martin was of age and armed, could he have stood his ground on that sidewalk?”
Most important, however, was his approach to how we should go forward. “I’m not naïve about the prospects of some grand, new federal program. I’m not sure that’s what we’re talking about here,” though he hopes to use his “convening power” to do “a better job helping young African American men feel that they’re a full part of this society and that they’ve got pathways and avenues to succeed.”
There has been talk about should we convene a conversation on race. I haven’t seen that be particularly productive when politicians try to organize conversations. They end up being stilted and politicized, and folks are locked into the positions they already have. On the other hand, in families and churches and workplaces, there’s the possibility that people are a little bit more honest, and at least you ask yourself your own questions about, am I wringing as much bias out of myself as I can? Am I judging people as much as I can, based on not the color of their skin, but the content of their character? That would, I think, be an appropriate exercise in the wake of this tragedy.
As I reflected last night, there have been and will continue to be discussions in barber shops and living rooms nationwide about Trayvon, Zimmerman, and race in America. Those are the conversations that matter more than any national television panel ever will. What President Obama did today was to give those discussions all the material they could need to start genuinely grappling with our social state, and our own relationship to our neighbor.
Let’s put down the computers, then, and pick up the conversation.
That the prosecution in the Zimmerman trial asked the judge to allow a verdict of “third-degree murder” — i.e., child abuse, since Trayvon Martin was 17 — testifies to the prosecution’s failure and panic.
For George Zimmerman’s defense has proven, beyond a reasonable doubt, that he shot Trayvon Martin not out of malice, rage or hate — but in a desperate act of self-defense.
Zimmerman was being beaten “ground-and-pound,” mixed martial arts style. His head was being banged on the cement. Screaming again and again for help, he pulled out his gun and fired.
Even the prosecution is now conceding Trayvon might have been on top, and is now scrambling for a compromise verdict on a lesser charge than second-degree murder, a charge that never should have been brought. Indeed, this trial should never have been held.
What we have witnessed in Sanford, Fla., is the prosecution of an innocent man for murder because the politically and socially powerful demanded it.
That Trayvon is dead is a tragedy, and an avoidable tragedy. But it was not murder. And it does not justify railroading a man who, whatever his mistakes that night — and George Zimmerman made them — committed no crime.
The case comes down to four questions. And the answers, supported by the evidence, testimony and common sense, point straight to an acquittal.
First, who was the aggressor?
All agree it would have been better if Zimmerman had never left his car or followed Trayvon that night.
Late yesterday, the Treasury Department announced that it will be delaying the employer mandate provision of the Affordable Care Act (Obamacare) by one year. Treasury’s ostensible reason is to simplify reporting requirements, but Josh Barro explains that is either lame or fake. In short, the Obama Administration is having difficulty implementing its signature legislative achievement, and so is pushing it back to try and ward off some of the consequences of a bungled law.
Last week, the Supreme Court overturned a federal law (DOMA), which having declared it unconstitutional, the Department of Justice had already refused to defend in court. The Court simultaneously denied standing to a California group seeking to defend ballot initiative Proposition 8, which had amended the California constitution to ban gay marriage. The California executive had refused to defend that popularly passed measure, and so the amendment was defeated by ultimate default after being struck down by a lower court.
What these have in common is an executive tradition with an ever increasing sense that it is not only the executor of the laws, but the legislator and judge as well.
In the latest issue of National Affairs, Tevi Troy detailed how Team Romney planned to implement their “pledge to repeal Obamacare.” Troy acknowledged that “even in the optimistic scenarios that had Romney winning the Presidency,” the GOP would lack full control of the Senate, and so “a straight-up, all-out repeal was unlikely.” As Jordan described previously, their strategy was: “eat away at enough of the the thing that collapse is inevitable and repeal seems like the better option to Senate Democrats.”
Because of the great “leeway” given to the HHS in making key decisions about Obamacare, Romney’s team of experts concluded that, “in the hands of an administration eager for repeal,” it would be possible “to effectively nullify the new system through a carefully choreographed series of executive actions.” Troy says “the regulatory rollback would have been so complete that we were confident Obamacare never could have gotten off the ground,” and a better designed system could be pushed to replace it.
Such an initiative would have come under great contumely, and provoked a great outcry from Democratic circles and the media, who would have rightly called it a breach of the principle that the executive should enforce Congress’s duly passed laws. Congress has abdicated so much legislative authority to the executive branch, however, that it has enabled any arbitrary implementation and enforcement of its laws that satisfy any executive’s political concerns.
In related news, the Dodd-Frank financial system reform still has significant regulations outstanding as pressure is brought on regulators to delay and water down another complex mess of well-intentioned legislation. And before the administration began its push for immigration reform, it ramped up enforcement of border laws so as to mollify conservative critics, but those same critics have no recourse if the administration should slack at enforcement after passage.
More, and more, it seems, laws are seen as a signals to the executive and bureaucracy of topics to take up and dispose of as they please, rather than specific instructions in need of execution. That should trouble all of us.
Is the Second Reconstruction over?
The first ended with the withdrawal of Union troops from the Southern states as part of a deal that gave Rutherford B. Hayes the presidency after the disputed election of 1876.
The second began with the Voting Rights Act of 1965, a century after Appomattox. Under the VRA, Southern states seeking to make even minor changes in voting laws had to come to Washington to plead their case before the Justice Department and such lions of the law as Eric Holder.
Southern states were required to get this pre-clearance for any alterations in voting laws because of systematic violations of the 14th and 15th amendment constitutional rights of black Americans to equal access to polling places and voting booths.
The South had discriminated by using poll taxes, gerrymandering, and literacy tests, among other tactics. Dixie was in the penalty box because it had earned a place there.
What the Supreme Court did Tuesday, in letting the South out of the box, is to declare that, as this is not 1965, you cannot use abuses that date to 1965, but have long since disappeared, to justify indefinite federal discrimination against the American South.
You cannot impose burdens on Southern states, five of which recorded higher voting percentages among their black populations in 2012 than among their white populations, based on practices of 50 years ago that were repudiated and abandoned in another era.
You cannot punish Southern leaders in 2013 for the sins of their grandfathers. As Chief Justice John Roberts noted, black turnout in 2012 was higher in Mississippi than in Massachusetts.
Does this mean the South is now free to discriminate again?
By no means. State action that discriminates against minority voters can still be brought before the Department of Justice.
Even the “pre-clearance” provision of the VRA remains. All the court has said is that if Congress wishes to impose a pre-clearance provision on a state or group of states, Congress must have more evidence to justify unequal treatment than what “Bull” Connor did in Birmingham back in 1965.
Congress could pass a bill today authorizing Justice Department intervention in any state where the registration of blacks, Hispanics or Asians fell below 60 percent of that electorate.
What Congress can no longer do is impose conditions on Southern states from which Northern states are exempt. Washington can no longer treat the states unequally — for that, too, is a violation of the Constitution.
The Roberts court just took a giant stride to restoring the Union.
Yet the hysterical reaction to the decision reveals a great deal.
What do critics say they are afraid of?
While conceding that immense progress has been made with the huge turnout of black voters in the South and the re-election of a black president, they say they fear that without the pre-clearance provision this would never have happened. And now that the provision no longer applies to the South, the evil old ways will return.
On several counts this is disheartening.
For what the critics of the court decision are saying is that, no matter the progress made over half a century, they do not trust the South to deal fairly and decently with its black citizens, without a club over its head. They do not believe the South has changed in its heart from the days of segregation.
As the Supreme Court has just released its rulings on same-sex marriage, consider these classic TAC essays on this polarizing subject:
Justin Raimondo — “The Libertarian Case Against Gay Marriage”
Jon Huntsman — “Marriage Equality Is a Conservative Cause”
Margaret Liu McConnell — “Less Perfect Unions”
Daniel McCarthy — “Why the Right Can’t Win the Gay-Marriage Fight”
Austin Bramwell — “Pleading the Fourteenth”
Andre Archie — “What Same-Sex Marriage Means”
Daniel McCarthy — ”Who Defines Marriage?”
Rod Dreher — “Sex After Christianity”
Daniel McCarthy — “Why Marriage Isn’t About Reproduction Anymore”
Samuel Goldman — “Gay Marriage Derangement Syndrome“
The Supreme Court’s rulings on the Defense of Marriage Act (struck down) and California’s Proposition 8 (the court disclaimed jurisdiction) were about the only rulings one could expect from a court of four liberals, four conservatives, and Anthony Kennedy. It would have overturned everything we think we know about Kennedy if the court had upheld DOMA. But an expansive ruling on Prop 8 effectively legalizing same-sex-marriage nationwide would have been remarkable from a court that earlier this week curtailed affirmative action in higher ed and the Voting Rights Act. The justices in the majority on Proposition 8 might seem surprising—Roberts and Scalia joined liberals Breyer, Ginsburg, and Kagan—but if one may attribute political motives to the bench (surely not?), I’d suggest Scalia and Roberts were trying to limit the precedent while Breyer, Ginsburg, and Kagan were going for what they could get.
DOMA had defined marriage, for the federal government’s purposes, as only the union of one man and one woman. The law seems to have been widely misunderstood: it did not tell states one way or another what they could or could not recognize as marriage. Now same-sex marriages recognized by state governments must also be recognized by the federal government—that’s the basic significance of the ruling, anyway. There will inevitably be legal strategies that try to use DOMA’s defeat to strengthen the case against state-level prohibitions on same-sex marriage, as well as other repercussions. It’s a win for marriage equality, but leaves the question primarily, for now, at the state level. There are libertarians and federalist conservatives who are happy to see DOMA go. Read More…
In her long, begrudgingly admiring profile of Sen. Rand Paul, the New Republic’s Julia Ioffe relays this anecdote from Paul’s visit to a historically black college in Louisville:
Though he would still not give them a definitive answer on his position on the Civil Rights Act, he did say that he believed federal intervention had been justified. “I’m not a firm believer in democracy,” he explained. “It gave us Jim Crow.”
Paul’s apparently tepid enthusiasm for democracy set Jonathan Chait on a rant about the insidious influence of Ayn Rand on the Kentucky senator’s political ideology: “horror at segregation isn’t really what drives Paul’s distrust of democracy. It’s the idea that democracy allows the majority to vote away the property of the minority.”
I think Chait’s uncharitable interpretation is unfair to Paul. It seems to me that the senator was defending “federal intervention” (Ioffe’s term, to be sure) on grounds amenable both to self-described constitutional conservatives as well as high-liberal “interpretivist” defenders of judicial review: when the fundamental rights of individuals are traduced by majorities, federal intervention is warranted. That is, the realization of democratic values sometimes requires antimajoritarian means.
For what it’s worth, I doubt it’s the shadow of Ayn Rand lurking over Paul here, but, rather, those of Hayek and von Mises and their disciples. It’s a talking point one encounters frequently: Jim Crow was an inefficient distortion of the marketplace (true, as far as it goes!). Or, Jim Crow was a “product of government.”
This sort of hand-waving—“Government did it; nothing to see here”—is an unfortunate tic. As the University of Pennsylvania’s Samuel Freeman, riffing on C. Vann Woodward’s classic midcentury text The Strange Career of Jim Crow, has written:
Jim Crow laws were not the primary cause of segregation in the South. In many places few laws, if any, explicitly restricted blacks from entry into desirable social positions, from purchasing property in white neighborhoods, from entering private schools and colleges, or from using hospitals, restaurants, hotels, and other private businesses frequented by whites. Still, these events rarely occurred due to tacit (often explicit) agreement among whites.
Racial injustice (hardly limited to the South) was not merely a body of statutes. Jim Crow laws did not emerge ex nihilo; they were a product of culture and custom. To approach this period of American history strictly in terms of property and “the marketplace” is to cut oneself off from the neck down. As I implied earlier, however, I don’t want to make too much of this: whether from intellectual mellowing or political calculation, Rand Paul seems to be coming to grips with the limits of libertarian thinking on civil rights. He is behaving less like an ideological android and more like a politician.
I say, good for him.
For those of you just joining us, there have been two big revelations about the NSA’s data-mining efforts since Wednesday, both reported by the Guardian.
The National Security Agency is currently collecting the telephone records of millions of US customers of Verizon, one of America’s largesttelecoms providers, under a top secret court order issued in April.
The order, a copy of which has been obtained by the Guardian, requires Verizon on an “ongoing, daily basis” to give the NSA information on all telephone calls in its systems, both within the US and between the US and other countries.
And the second:
The NSA access is part of a previously undisclosed program called PRISM, which allows officials to collect material including search history, the content of emails, file transfers and live chats, the document says.
A few things to keep in mind: Technically the latter only applies to foreign nationals living outside the U.S.—keeping tabs on which is the NSA’s job description—but it seems impossible to separate one from the other. There are good reasons to be skeptical of the tech companies’ denials that they cooperated. As for the collection of phone records, it’s probably safe to assume that this is going on with most major providers.
In a press conference today, during which he took one question from the press–”because I don’t want the whole day to just be a bleeding press conference”–the president tried to reassure Americans that the NSA is full of really good people who would never in a million years think about violating your Fourth Amendment rights, and that ”You can’t have 100% security and then 100% privacy.” From the AP report:
In his first comments since the programs were publicly revealed this week, Obama says safeguards are in place. He says nobody is listening to the content of phone calls. And he says the internet targeting is aimed at foreign nationals, not American citizens.
Obama says he increased some of the “safeguards” on the programs after taking office. And he believes they help his administration stop terrorist attacks.
From a political standpoint, these massive data collection efforts the administration’s stated commitment to ending the war on terror pretty hard to believe. They also contradict the president’s former views—he sponsored the SAFE Act, which would have banned them, and talked frequently about the “false choice” of liberty or security during campaigns.
On Monday, the Supreme Court announced a 5-to-4 decision upholding the prerogative of the state to compel DNA samples of anyone arrested for a “serious crime.” The Anthony Kennedy majority decision (joined by Justices Roberts, Thomas, Breyer, and Alito) saw DNA samples as simply another method of identification in line with fingerprinting, and the cheek swab to be minimally intrusive, in any case outweighed by the state’s interest in identifying the person they have taken into custody. Justice Scalia wrote the dissent joined by liberal justices Ginsburg, Kagan, and Sotomayor, arguing that this was in fact a substantial shift in allowing scientific evidence to be compelled without a warrant for the de facto sole purpose of solving crimes.
Noah Feldman of Harvard Law argues that ”The day that DNA cheek swabs officially became the new fingerprints deserves to be marked and remembered….because it represents a major step toward a ‘Gattaca‘ world.” “Gattaca,” for those unfamiliar, was a late ’90s science fiction film starring Ethan Hawke and Uma Thurman that depicted a near future where genome was destiny, and everything from potential jobs to prospective mates were determined by the robustness of your genetic code. To give their children the best shot at life, parents chose from a variety of their best embryos while alternately knocking out and splicing in desirable attributes. Genetics came to so dominate the culture that policework was reduced to vacuum cleaners, sifting through discarded skin and hair cells to find who didn’t belong, and faces no longer even registered as long as the DNA ID checked out.
For Feldman, the road to Gattaca is being paved because this Supreme Court decision “means that evidence of a crime can be collected without any particular suspicion, avoiding the pesky requirement of a warrant that the Founding Fathers thought would give us liberty and privacy.” I will certainly defer to Professor Feldman on analysis of the Court’s opinion, and I am quite sympathetic to Justice Scalia’s dissent when he says “I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.”
The risk of a “Gattaca world,” however, lies not so much in the constitutional questions as the scientific and procedural. What is so chilling in the movie “Gattaca” is the unquestioning faith that the entire society has in a deterministic understanding of genetics; the routinized provision of cheek swabs and finger pokes is but one of many derivative effects from this.