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Saudi Woman Beats Up Virtue Cop

[ 4 ] May 17, 2010 |

The Saudi Gazette reports:

Al-Mubarraz police are investigating a complaint that a Saudi woman in her twenties allegedly punched and beat up a staffer of the Commission for the Promotion of Virtue and Prevention of Vice (the Hai’a). The staffer had to be taken to a medical center because of the bruises to his face and body. Apparently the Hai’a staffer suspected the young woman of being in the company of an unrelated man in an amusement park because the couple appeared to be acting in an inappropriate manner.

When the Hai’a staffer approached the couple to confirm their identities and the relationship between them, the young man collapsed. It was then the young woman allegedly unleashed a fierce attack on the Hai’a staffer with her fists.

Plenty of “you go girl” accolades like this percolating outside Saudi Arabia. It’s actually kind of serious though: the woman could be penalized with jail time and flogging if she is charged for assaulting a government official, so the human rights movement had better prepare a campaign to protect her from the predictable backlash from the state. But as described in the Jersualem Post, this incident may also be symptomatic of a gradual yet significant shift in Saudi society away from its entrenched culture of gender apartheid.

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QOTD

[ 9 ] May 17, 2010 |

Edroso:

“[Racist nuts who think that the Miss America pagent was a DhimmoIslamoCommieNazi conspiracy] are just mad they’re not old enough to have protested Jackie Robinson signing with the Dodgers.” Nearly as amusing is La Althouse speculating that it was also an anti-federalist conspiracy. Don’t forget the saucer people!

Relatedly, Jonah Goldberg thinks that birthers have some very interesting ideas and he’d like to subscribe to their newsletter.

Giving Away the Show

[ 57 ] May 17, 2010 |

Shorter Daniel Pipes: the only explanation I can come up with for why some Muslim women win beauty pageants is that there’s some nefarious affirmative action conspiracy; after all, who could consider women of color or non-Christian women attractive? I am not a racist crackpot.

…I wish I could say that this was confined to one crank, but alas this isn’t the case. (Adam has more.)

Update (Paul): I particularly like this insight from Michelle Malkin:

“I believe that birth control is just like every other medication even though it’s a controlled substance,” Fakih said.

Imagine if those words had come out of the mouth of Carrie Prejean or Sarah Palin.

Between the NYTimes, MSNBC, Jon Stewart, and the late night talkers, we wouldn’t hear the end of it.

The left-wing media bias couldn’t be more obvious, could it? Right-wing beauty queen and vice-presidential candidate Sarah Palin is inexplicably held to a higher standard in regard to knowledge of public issues than fatwa-wielding Islamoterrorist* beauty queen Rima Fakih (I confess I had to look up whether birth control pills qualify as controlled substances.)

The best take on Pipes is from trex in comments at Political Animal:

On his blog yesterday, Pipes pointed out five other Muslim women who’ve won beauty contests in the U.S., Britain and France over the last five years. “They are all attractive, but this surprising frequency of Muslims winning beauty pageants makes me suspect an odd form of affirmative action,” he wrote.

The surprising frequency of media commentary by the racist, xenophobic conspiracy-theorist Daniel Pipes makes ME suspect an odd form of affirmative action, one funded by right-wing nutjobs.

h/t Glenn Greenwald

Civil Confinement And Federalism

[ 5 ] May 17, 2010 |

The Court’s holding today in U.S. v. Comstock presents a real dilemma. The federal “civil confinement” law at issue in the case — which permits the federal government to detain an sex offender after their sentence expires — raises some obvious civil liberties concerns. In a couple recent cases at the state level, the Court’s more liberal members have expressed concerns about the adequacy of the due process safeguards put in place for some of these programs, while Scalia and Thomas have voted for granting states very wide leeway to confine individuals they claim to be dangerous. The case today, however, did not deal with whether the federal law was consistent with the due process of law guaranteed by the Fifth Amendment, but whether the relevant statute was within the powers of the federal government. This presents a real potential dilemma for many of the Court’s justices (and for me.) So, reluctantly, I would agree with the majority that the law is within the federal government’s powers under the necessary and proper clause. But I also have a certain amount of respect for Thomas and Scalia, who (despite a general lack of sympathy for the legal claims of individuals detained under civil confinement laws) argued that the law exceeds the constitutional powers of the federal government.

There’s a dilemma for 7 of the 9 justices, anyway. For Alito and Roberts, figuring out that the policy is consistent with Republican policy goals pretty much ends the constitutional inquiry, so they voted to uphold the law. (Amusingly, a couple days ago David Nieporent claimed that Alito’s 20 year record of utterly orthodox Republican statism on the federal courts isn’t enough to conclude that Alito is an utterly orthodox Republican statist without any of the libertarian streak or competing legal values of Scalia and Thomas. Right — I’m sure any day now Alito will take off the mask and reveal himself as the next Richard Posner. In related news, Nieporent also thinks it’s outrageous to suggest that the Yankees will have a better record than the Orioles this year.)

Court Holds Life-Without-Parole For Juveniles Unconstitutional

[ 24 ] May 17, 2010 |

Deciding an appalling case in which a 17-year old was given life without parole for a violating parole, the Supreme Court held today that life-without-parole sentences for juvenile offenders violate the Eight Amendment to the Constitution. And while I had feared a “minimalist” opinion that would create a balancing test that state courts would always resolve in favor of the state, in the majority opinion (see Part III C) Justice Kennedy argues convincingly that a categorical rule is necessary in this case. Chief Justice Roberts — in what I’m guessing was an attempt, if not to get a minimalist majority opinion, at least to prevent 5 votes for a categorical rule — wrote a concurring opinion arguing that the sentence should be ruled unconstitutional based on a case-by-case balancing test, but didn’t find any takers.

Clarence Thomas’s dissent — joined entirely by Scalia and in its most important aspects by reasonable, moderate, thinking person’s conservative Sam Alito — does make one convincing point: Kennedy’s argument that there’s an “emerging consensus” against life-without-parole for juveniles is unconvincing. The Court’s majority opinion does indeed reflect an “independent judgment” that the Eighth Amendment bans such sentences. Where I disagree with Thomas is that there’s something wrong with this. Exercising independent judgment is what courts do when exercising judicial review. And, of course, when policy outcomes they cherish are at stake Thomas and Scalia are perfectly happy to exercise their “independent judgment” that decisions made by electorally accountable officials are unconstitutional even in the absence of an emerging consensus or a compelling argument that as originally understood the Constitution forbade those practices. And sentencing is one area where where the normative unattractiveness of originalism is particularly stark. Reminding me again while I’ll miss him, Stevens sums it up devastatingly in his brief concurrence:

Society changes. Knowledge accumulates. We learn, sometimes, from our mistakes. Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at a later time; unless we are to abandon the moral commitment embodied in the Eighth Amendment , proportionality review must never become effectively obsolete.

While Justice Thomas would apparently not rule out a death sentence for a $50 theft by a 7-year-old, the Court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so.

And you know who agrees with this in his more candid moments? Antonin Scalia, who has expressly said that he would not uphold a sentence for flogging even though it would seem to be permitted under an originalist understanding of the Eight Amendment was right. Not only is that Scalia right, but it’s impossible to explain why the framers wrote the Eighth Amendment the way they did if they meant only to proscribe a small, specific set of punishments that were illegal at the time the Bill of Rights was ratified. In this sense, the majority opinion is actually more consistent with the text and original meaning of the Constitution than the dissent.

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What’s at Stake in the NPT Debate?

[ 3 ] May 17, 2010 |

At Shadow Government, William Tobey covers the ongoing Nuclear Non-Proliferation Treaty Review conference and provides a useful overview of how the debate is being shaped by strategic framing of the treaty’s core rules:

A key question being debated at the Review Conference is: What is the central bargain of the Nonproliferation Treaty? A leading South African diplomat, Abdul Minty, argues that the core of the treaty is a pledge by states without nuclear weapons to forego them, in return for a promise by states with nuclear weapons to work for their elimination. By this logic, any threat of nuclear proliferation is the fault mainly of the United States and Russia, because they have not met their disarmament commitments.

During the 2005 Review Conference, the United States held the central bargain of the Treaty instead to be: “if non-nuclear weapons states renounce the pursuit of nuclear weapons, they may gain assistance in developing civilian nuclear power.” By this logic, states like Iran that violate their obligations should be denied international assistance. That would mean halting Russian construction of the Iranian nuclear reactor at Bushehr, and foregoing just-announced discussion of Russian assistance in building a Syrian nuclear power plant.

But Tobey argues that neither description of the Treaty’s trade-offs is fully accurate: Read more…

“Why Middlesex Matters”

[ 1 ] May 17, 2010 |

John Protevi pens an article for Inside Higher Ed in which he asks, and answers,

Why were so many American academics, many of them besieged by budget crises at their own universities, so upset at this decision made so far away? Why did Middlesex matter to those thousands who so quickly became involved, and why should it matter to all American academics, even those who are only just now hearing of it?

If you happen to be one of those just hearing about it, John’s link-rich article is the place to start.

The Wake of a North Korean Collapse

[ 5 ] May 16, 2010 |

Minxin Pei thinks that the Pyongyang regime is unlikely to survive a transition from Kim Jong Il to his son. While the prospects for a collapse of the North Korean state are debatable, it’s unquestionably true that the regional states ought to be thinking and talking (at least privately) about how to respond:

What is most worrying about a possible North Korean collapse is that the key players in the region are not talking to each other, even informally, about such an eventuality. It’s almost certain that these powers—China, the United States, Japan, South Korea and, possibly, Russia—have all drawn up their own contingency plans for Pyongyang’s quick collapse. However, they’ve done nothing to explore a collective response to what is without doubt a geopolitical game-changer.

As a result, many crucial questions remain unanswered. For instance, how should the United States and South Korea react if China sends combat troops into North Korea to conduct ‘humanitarian assistance’ missions? In all likelihood, Beijing will be tempted to do so if millions of refugees start fleeing into China. Which country will take the lead in securing nuclear materials? How will China respond to the crossing of the 38th parallel by South Korean and US forces? Who will take the lead in reaching out to Pyongyang’s post-Kim regime? What will be the collective security architecture after the Korean peninsula is reunified?

These critical issues are deemed too sensitive for US, Chinese, Japanese and South Korean government officials to discuss. As a result, few are thinking about these difficult issues, let alone exploring workable solutions that could help avoid a possible conflict between China and the United States over a collapsing North Korea and construct an enduring peace after the departure of the Kim dynasty.

There seems to be an implicit assumption in this discussion that the North Korean state will simply cease to exist following a leadership crisis. Collapse is certainly a possible outcome, but it’s also possible that the North Korean state could survive, at least for a while, under some sort of non-Kim military dictatorship. The attitudes of Seoul and Beijing would be particularly important in this respect; the health of a post-Kim North Korea would be greatly affected by China’s willingness to underwrite the regime, and by South Korea’s approach to manifesting claims on Korean national identity. In the German case, the Russians had no interest in continuing to prop up the Berlin regime, and West Germany was happy to advance the claim that it was the only legitimate German national regime. It’s also worth noting that nationalist sentiments could override such a pedestrian concern as the utter economic disaster that incorporating North Korea would wreak upon South Korea.

Via Unleashing Chiang.

Off to the silver mountain

[ 2 ] May 16, 2010 |

R.I.P. Ronnie James Dio, taken by stomach cancer rather than dragons or evil women, as many of us would have predicted. Alas, we’ll always have the memories of his unappreciated presidential run.

How About Some Coverage of the Outrage? For That Matter, How About A Little Outrage?

[ 33 ] May 16, 2010 |

New York Times reporter Scott Shane “informed us” Friday of the “legal debate” over whether the US government has a right to target assassinate summarily execute its own citizens:

The notion that the government can, in effect, execute one of its own citizens far from a combat zone, with no judicial process and based on secret intelligence, makes some legal authorities deeply uneasy.

Some? Uneasy? Interestingly, Shane doesn’t bother to interview the “authorities” on human rights law and constitutional law who would be most “deeply uneasy” about these acts – experts at Human Rights Watch, the ACLU, or (say) New York University School of Law’s Project on Extrajudicial Executions. Instead he interviews – wait for it! – CIA lawyers and counter-terrorism officials, concluding with their last, fear-mongering words on the topic. And when describing the evidence to counter their positions, he treats such sources as The US Constitution as simply documents on one side of a debate:

Most significantly, he is an American, born in New Mexico, arguably protected by the Fifth Amendment’s guarantee not to be “deprived of life, liberty, or property, without due process of law.”

Arguably? When precisely is any US citizen not protected by the Fifth’ Amendment?

For someone covering a “legal debate,” Shane also seems terribly confused about international humanitarian law:

In a traditional war, anyone allied with the enemy, regardless of citizenship, is a legitimate target; German-Americans who fought with the Nazis in World War II were given no special treatment.

Here Shane confuses armed fighters engaged in hostilities alongside enemy forces (indeed lawful targets in conventional war) with civilians “allied” with the enemy. Since al-Awlaki’s role in the jihadist movement is primarily propagandist and inspirational, the closest WW2 analogy to al-Awlaki would be a US citizen who spoke out in favor of Nazi Germany during World War II or attempted to incite his or her countrymen to support the Nazi cause. Such individuals might be captured and detained or even tried for conspiracy or treason, but they’re not “combatants” in the legal sense and wouldn’t be “lawful targets” under the laws of war unless they were directly participating in hostilities.

It’s not just this one poorly researched article that misses the mark in fleshing out the parameters of the “debate” over whether a government can legally execute its citizens outside of a judicial process. Reactions to US plans to kill Anwar al-Awlaki without trial have paid much too little attention to the civil liberties implications of the policy. For example, Newsweek’s coverage last month focused on whether this will be an effective strategy or do more harm than good in combatting terror; BBC’s framed “the debate” in terms of the effects on stability in Yemen, rather than civil liberties at home. And as Julian Ku has noted way back in February, even the lefty blogs and commentators have been mostly silent on the constitutionality of summarily executing American citizens. Judging by the absence of attention to this issue on KO this past weekend, this pattern doesn’t seem to be changing.

Less to Worry About?

[ 2 ] May 16, 2010 |

Drezner is a touch concerned about a potential EFCA (Economic Cooperation Framework Agreement) between Taiwan and China:

While China’s economic leverage over the United States is limited, this kind of agreement would ratchet up the asymmetric dependence of Taiwan on the Chinese economy. Maybe Taiwan has already crossed the point of no return with regard to interdependence with the mainland — but this agreement would surely guarantee crossing that threshhold.

What would China do with this leverage? I don’t know, I really don’t. If Beijing plays the long game, they would allow for the build-up of political interest groups in Taiwan with a powerful incentive to appease the People’s Republic in order to keep the economic relationship unruffled. The thing is, China has often been clumsy in its initial attempts to translate economic power into political influence, and I could easily see such a misstep occurring a few years from now.

Perhaps I’m being paranoid about this. The one thing I’m certain about, however, is that the most likely flashpoint for a great power confrontation between the United States and China is anything involving Taiwan. So I get veeeeeeerrrrrrry nervous about anything that upsets that particular apple cart.

Concern about the US getting dragged into a militarized dispute between China and Taiwan is well taken; I share Drezner’s belief that this is the most plausible flashpoint for great power conflict between the US and the PRC. Key to this concern is democratic solidarity. I’m queasy about the idea of simply allowing an authoritarian country to devour and digest a democratic state*. Defending Taiwan from Chinese attack would be considerably different than invading Iraq in order to create a democracy; Taiwan is already democratic, the PRC most certainly isn’t, and militarized re-unification would be really, really bad for the political freedom (not to mention the physical well being) of the Taiwanese people. I’m not, however, interested in any kind of strategic rationale for the defense of Taiwan, such as the idea that the acquisition of Taiwan would mean a loss of US power relative to Beijing, or a loss of leverage over China, or that Taiwan represents China’s gateway to the Pacific, or similar arguments.

Thus, any obligation to defend Taiwan is based strictly on Taiwan’s commitment to de facto independence. If the Taiwanese people and government determine that they can reach some sort of accommodation with Beijing that results in formal reintegration without military conquest, the US has no business standing in the way. An EFCA may shift the Taiwanese calculus regarding whether or not its sensible to reach an accommodation with the PRC, but is unlikely to undermine the ability or interest of the US to respond to a Taiwanese request for assistance against China. As such, I think it works in favor of stability, rather than instability, by helping to remove the key point of contention between the US and the PRC. In short, if Taiwan wants to pave the way to peaceful reintegration with an EFCA, they’re more than welcome. “Saving” Taiwan isn’t worth a war with China if the Taiwanese don’t want to be saved.

*But then why didn’t I support military intervention in favor of Georgia in 2008? This commitment to democratic solidarity is only operative under conditions including a) the democratic state not actually having started the war, and b) a reasonable chance of success. The Georgian situation was further complicated by the facts that the population of South Ossetia favored Russia, and that Russia sought neither long term occupation of Georgia proper nor regime change in Tblisi. In the Taiwan case, I wouldn’t favor wasting a single cruise missile in defense of Quemoy, and would be reluctant to support Taiwan in the wake of obvious Taiwanese provocation, such as a declaration of independence.

It’s Called “Summary Execution.”

[ 9 ] May 16, 2010 |

Clark Hoyt writes about “semantic minefields” journalists walk through in reporting “objectively” on “contested concepts”:

Stuart Gardiner of San Francisco was incensed last month after The Times reported that the administration had authorized the “targeted killing” of an American citizen, Anwar al-Awlaki, who it believed was plotting attacks on the United States. Gardiner said the paper had resorted to “a euphemism for assassination,” reducing the decision to kill a person without due process to a term implying “something almost sanitary about the act, bureaucratic and bloodless.”

Dean Baquet, the Washington bureau chief, said he did not regard “targeted killing” as a euphemism like those routinely used by governments “to obfuscate and conceal the true meaning.” You might wonder about those “proximity talks” sponsored by the United States in the Middle East, but there is no doubt what targeted killing means. I don’t think it is euphemistic, either, though it does, as Gardiner argues, sound bureaucratic. Under the circumstances, I could not think of a better term.

Well, I can think of a better term than either of these: “summary execution.” After all, Anwar al-Awlaki is a US citizen allegedly engaged in inciting crimes against his fellow citizens and his government. Like any other US citizen, he is entitled to due process and a trial before the government could even consider whether he deserves the death penalty. When governments kill individuals outside such a judicial process, the terms for this are “summary execution” or “extrajudicial execution.” This is contrary to international human rights standards; international law makes no exception for states to derogate from such rules due to public emergency or internal unrest. When the US government targets its own citizens outside a judicial process it is also a violation of the US Constitution.

I think civil liberties advocates and the press have ceded too much to the US government by accepting the term “targeted killings” to describe the type of summary justice the administration now asserts the right to carry out. But as Hoyt observes, “assassination” isn’t the right term either, if only because it is so imprecisely defined. Instead, let’s ask ourselves whether or not we can accept that our government has, in any context, the right to summarily execute its citizens outside of a judicial process.

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