Patterico's Pontifications

11/17/2010

Would the Supreme Court Uphold the Proposed Ban on Caffeinated Alcoholic Beverages?

Filed under: General — Aaron Worthing @ 9:07 pm

[Guest post by Aaron Worthing; send your tips here.]

A few bloggers have picked up on the latest example of what I call “Democratic Totalitarianism”—that is totalitarian proposals by elected officials.  This time it is the proposal to ban certain drinks that mix alcohol and caffeine.  Libertarian leaning Allahpundit and of course Reason Hit and Run spoke out against this proposed legislation.  I am frankly surprised that Vodkapundit had nothing to say!

But so far none of them have noticed that there might be a serious problem if the issue reaches the Supreme Court.  Now let me emphasize that I didn’t say there is a serious constitutional problem.  If we were following the constitution Wickard v. Filburn would have come out the other way and about 50% of economic regulation would no longer be a matter of Federal concern (absent a constitutional amendment).  But Wickard didn’t come out the right way, and ever since the Supreme Court has rarely found any limits to Congress’ power under the Commerce clause.

But probably the average libertarian doesn’t even realize there is a special issue.  Ho-hum, they might reasonably think, it’s no different than banning pot in Gonzales v. Raich (declaring that the federal ban on pot overruled state law legalizing it for “medical” use).  That’s perfectly reasonable, but wrong.

Ask yourself a simple question.  Could Congress ban alcohol alone?  Well you might remember that the 18th amendment banned alcohol and empowered congress to enforce it, and that the 21st Amendment repealed the 18th.  Now, if we were going to use the most natural reading of the constitution, we might presume that by repealing the 18th amendment, the 21st amendment did little more than restore the status quo ante—before the 18th amendment was ratified.

But in fact the modern Supreme Court has read the 21st amendment more broadly than that, making it so that the states are uniquely empowered on the subject of alcohol regulation, while the federal government is uniquely prohibited from interfering with the manufacture, sale and distribution of that substance.  For instance, California Retail Liquor Dealers Association v. Midcal Aluminum, Inc. (1980), the Supreme Court pontificated on the line between federal and state power on this issue:

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Former Gitmo Detainee Charged in Tanzania Embassy Bombing Is Acquitted of Most Charges in Federal Court

Filed under: General — Patterico @ 7:53 pm

Allahpundit has the basic skinny here. Basically, the guy was convicted of “conspiracy to destroy government buildings and property” but acquitted of over 200 counts of murder and conspiracy to commit murder.

Why? It’s not because the evidence wasn’t there. It’s because the admissible evidence wasn’t there — as determined by a civilian court applying civilian court rules:

This was the guy whom Obama and Holder lined up as their test case to prove that, yes indeed, we can convict Gitmo jihadis using good old-fashioned civilian court procedures. All was well until last month, when the district court judge barred the feds’ blockbuster witness from testifying, even though he was prepared to tell the jury that he sold Ghailani the explosives used to destroy the U.S. embassy in Tanzania in 1998. The feds had only learned of the witness’s identity during enhanced interrogation of Ghailani, and since the interrogation was deemed illegal, evidence derived from it was inadmissible. Without that testimony, the case collapsed. And now, a month later, we have a full-blown fiasco on our hands.

I went to find the judge’s decision online, to see just what was done to Ghailani, and the reasoning of the decision. I just finished reading it — or, at least, the parts I was allowed to read. Most of the decision is hidden behind huge swaths of redactions. (I tried to upload the judge’s decision for your benefit, but the file is far too large.)

You can’t see what was done to Ghailani. If the opinion discusses that question at all, it hides the answers behind redactions. There are hints in the unredacted portions that any problematic interrogation techniques did not amount to physical torture, but rather consisted of psychological techniques. For example, one quote describing the program says it was “designed to psychologically ‘dislocate’ the detainee, maximize his feeling of vulnerability and helplessness, and reduce or eliminate his will to resist [government] efforts to obtain critical intelligence.”

But if we don’t know precisely what was done to Ghailani, we do know why — because the court tells us. You see, the CIA’s motive in interrogating Ghailani was not to get evidence to prosecute him. The court fully acknowledges this, and admits that the interrogation techniques were employed for critical reasons of national security.

The Government had argued that “questioning of the defendant by CIA officers . . . was not designed to elicit evidence that would be used in a subsequent trial but rather to obtain intelligence in connection with threats to national security.” And the Court agreed:

This was the case with respect to the RDI [Rendition, Detention, and Interrogation] Program in general, and nothing in the record contradicts the government’s assertion that national security motivated the CIA interrogations that elicited Ghailani’s statements about Abebe [the witness whose testimony was suppressed]. . . . The CIA had reason to believe that Ghailani was involved in bombing two African embassies. The identities and methods of others involved in those bombings, including the source of the explosives, were of critical importance to national security because the individuals and methods used might be applied against other targets in the future.

That sounds like that should end the issue, right?

Nope. The problem is that the CIA’s motive is just one factor in a multi-factor balancing test that was designed to address the behavior of police officers in their dealings with criminal suspects.

The judge probably issued a correct ruling, by the way, under the law he had to apply. The part that leaves me howling in outrage is not so much that he suppressed the evidence. It’s that Obama should have known he would — and that there was a perfectly legal alternative to federal court for this terrorist.

And that is the true outrage of what happened today. The Supreme Court of the United States has ruled that the military commissions established under Bush were constitutional. Those commissions were the obvious venue for trying Ghailani. But that wasn’t good enough for Barack Obama. He had to try this guy in a civilian court designed to handle completely different situations.

Oh, by the way — did you hear Obama’s reaction to today’s verdicts?

He’s pleased.

UPDATE: Some commenters claim that this testimony would have been barred in a military commission as well. I disagree, and explain why here.

Fascist Quote of the Day

Filed under: General — Aaron Worthing @ 6:30 pm

[Guest post by Aaron Worthing; send your tips here.]

From Sen. Jay Rockefeller (D-ictatorial):

There’s a little bug inside of me which wants to get the FCC to say to FOX and to MSNBC: “Out. Off. End. Goodbye.” It would be a big favor to political discourse; to our ability to do our work here in Congress; and to the American people, to be able to talk with each other and have some faith in their government and more importantly, in their future.

Well, thank God the FCC can’t control pure cable channels the way it can control broadcast.  So even if they wanted to, they couldn’t comply.

[Posted and authored by Aaron Worthing.]

Heckuvajob There, Gloria

Filed under: General — Aaron Worthing @ 2:42 pm

[Guest post by Aaron Worthing; send your tips here.]

Frequent commenter AD-RtR/OS! clued me into this story where Gloria Allred managed to get a settlement from Meg Whitman over that whole “nannygate” affair.  So Gloria Allred risked her client being imprisoned, deported and sued for defamation, and all to get the princely sum of $5,500.  I think if you take out Allred’s usual rates, she just might break even.

Of course we all know what they were really after (deep-sixing Whitman’s political career) and this is the same reason why it is not self-evident that she did a disservice to her client.  As I wrote on October 6:

There ha[ve] been a lot of questions about the representation [by] Gloria Allred of Nicky Diaz Santillan, the former maid of Meg Whitman.  I agree the whole thing looks bad.  I mean this woman is a mother of two children who is risking prison (for falsifying documents) and deportation (for being an illegal alien) by putting a giant target on her head.  Certainly from a financial perspective this makes just about no sense.  But I have argued with others that you can’t really file ethics charges against Allred because she has a ready defense.  She can say that the maid was so mad at Whitman and so wanted to ruin her political career she didn’t care about those potential negative consequences she would personally suffer.  Its dubious but just plausible enough that I don’t think the disciplinary board would even be interested in investigating her.

I stand by my prediction that she probably won’t even be investigated, but at the same time I wish the California Bar did this at the very least: take Santillan aside and away from Allred, and verify that this really was what she wanted.

And it’s worth noting that Santillan’s own public proclamation that she was not being manipulated was less than credible:

Nicky Diaz Santillan, a Mexican who Whitman says used a fraudulently obtained Social Security card and California driver’s license, dismissed claims by the GOP nominee that she was part of a Democratic smear intended to damage Whitman’s standing with voters, particularly Latinos.

“I make my own decisions and I am not anyone’s puppet,” Diaz Santillan said in a prepared statement she read at the Los Angeles office of her attorney, Gloria Allred. “Nobody made me do it.”

As I said at the time:

I don’t know if the AP writer was intentionally snarking or what.  I mean the AP article goes on to mention a few other harsh facts.  But yeah, that doesn’t exactly help the case to read a prepared statement that you are not being controlled by anyone.

If this woman ends up deported I wonder what she would think of Allred’s representation.

[Posted and authored by Aaron Worthing.]

Organization Seeks to Recruit Better Tea Party Candidates

Filed under: General — Patterico @ 1:28 pm

Hot Air Headlines (originally from Politico, but no links for bullies):

The tea party movement was hampered “by candidates who in the last election were not perceived as credible,” said Ned Ryun, who runs the groups along with his twin brother Drew.

So they are investing a “seven-figure” sum – which the Ryuns declined to enumerate precisely – in a program called the New Leader Project, which will work with local tea party groups around the country to recruit and train candidates and campaign managers for local and state offices, who could eventually run for Congress.

“New leaders must be found starting right now who have the ability to effectively communicate the ideas of free enterprise and limited government and fiscal responsibility, while at the same time running sound campaigns,” said Ned Ryun, who worked in the White House during the second Bush administration.

Obviously a RINO!

In all seriousness, I think this is a good idea and suspect most tea partiers agree.  There is a popular conception that anyone who opposed certain tea party candidates is therefore uninterested in tea party values, and must have supported candidates like Crist, Scozzafava, or Murkowski.  R.S. McCain recently made that suggestion about me, even though I supported none of those candidates.

Some of us just want better candidates.  I am happy to see I’m not the only one.

They Hired Pelosi

Filed under: General — Aaron Worthing @ 12:49 pm

[Guest post by Aaron Worthing; send your tips here.]

Oh, no, it looks like the reverse psychology ninjitsu didn’t work.  Pelosi has been elected House Minority Leader:

Democrats in the House of Representatives voted 150-43 Wednesday to keep House Speaker Nancy Pelosi as their leader in the new Congress, a number of lawmakers said as they emerged from the caucus meeting.

By the way, a lot of people have been comparing the Democratic reaction to the election in terms of the stages of grieving.  This would be referred to as denial.

Or to find a deeper point in all of this, how many of those votes were based on a fear of being accused of sexism?

And in other news, I just got a breaking news email stating that Murky plans to declare victory in Alaska tonight.  Not the outcome I would have hoped for, but what can you do?

[Posted and authored by Aaron Worthing.]

Calling Bull on “Fair Game”

Filed under: General — Aaron Worthing @ 12:12 pm

[Guest post by Aaron Worthing; send your tips here.]

Ugh, what to do, what to do?  On one hand, I hate to give publicity to bald faced propaganda like the new Plame-Wilson movie Fair Game.  On the other hand, this paragraph from John Nolte’s Review of the movie makes it clear that this film is risible in its falsehoods:

Liman introduces Plame as a Jack Ryanette, a CIA field agent undercover in the big bad Middle East muscling bad guys, recruiting spies, and at the center of much of the activity involving the pre-Iraq War intelligence gathering  with respect to Saddam Hussein’s weapons programs.

This makes it all the more dramatic when she is outted:

According to the film, what follows is that the White house — specifically Vice President Cheney’s Chief of Staff Scooter Libby (who has the only memorable scene in the film) and Karl Rove — set out to destroy Wilson’s credibility by leaking to columnist Robert Novak that his CIA Operative wife got him the Niger gig, which effectively blows Plame’s cover to everyone from her closest friends to the many field operatives she handles throughout the world. The human toll is both on her marriage and in putting those she’s worked with in Iraq in mortal danger.

Only there are two problems.  First the actual leaker was Richard Armitage, and to my knowledge no one has ever even accused Armitage of doing this for some sort of revenge.  But on top of that, their depiction of her being a sort of a female James Bond is false:

A former CIA covert agent who supervised Mrs. Plame early in her career yesterday took issue with her identification as an “undercover agent,” saying that she worked for more than five years at the agency’s headquarters in Langley[.]

This was significant, because it raised doubts about whether the Intelligence Identities Protection Act was even violated in the first place.  As James Taranto pointed out (and it was later verified by USA Today) the statute required that the outted agent had to have been assigned to serve overseas in the last five years—and Wilson’s book failed to even allege that:

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Celebrity Justice? Penn Jillette Called the Cops on the TSA for Inappropriate Touching

Filed under: General — Aaron Worthing @ 6:47 am

[Guest post by Aaron Worthing; send your tips here.]

Via The Blaze we get this 2002 account of how famous comedian/magician Penn Jilette did call the cops when the TSA touched near his junk.  Things go very differently than they did for Mr. Tyner:

The supervisor says to the cop, ‘He’s free to go. We have no problem, you don’t have to be here.” Which shows me that the Feds are afraid of local. This is really cool. She says, “We have no trouble and he doesn’t want to miss his flight.”

I [Penn] say, “I can take an early morning flight or a private jet. ” The cop says, “If I have a citizen who is saying he was assaulted, you can’t just send me away.”

I tell the cop the story, in a very funny way. The cop, the voice of sanity says, “What’s wrong with you people? You can’t just grab a guy’s crank without his permission.” I tell him that my genitals weren’t grabbed and the cop says, “I don’t care, you can’t do that to people. That’s assault and battery in my book.”

He goes through the process of complaining, and after a couple of days, he gets hold of a woman in PR at the TSA:

It took some phone tag, but I finally got the [PR] woman on the phone. I was very cool and sweet. I explained the problem. “Do you allow your crotch to be grabbed without being asked?” I didn’t exaggerate, I said that there was nothing sexual, I wasn’t hurt, and it wasn’t my genitals. I just said it was wrong. She said “Well, your feedback is really important because most people are afraid of us.” She said, “I’d love to meet you so we could clear this up, and everyone wants to meet a celebrity.” She said she had watched the videotape and there was no sound, but she saw him reach around. She said she couldn’t tell me what was being done to him but . . . and I stopped her and said, she shouldn’t do anything wrong.

I said that I had talked to two lawyers and they said it was really a weird case because no one knows if he can be charged with assault and battery while working in that job. But I told her, that some of my lawyer friends really wanted to find out. She said, “Well, we’re very new to this job . . .” and I said, “Yeah, so we need these test cases to find out where you stand.”

She said, “Well, you know a LOT about this.” I said, “Well, it’s not really the right word, but freedom is kind of a hobby with me, and I have disposable income that I’ll spend to find out how to get people more of it.”

She said, “Well, the airport is very important to all of our incomes and we don’t want bad press. It’ll hurt everyone, but you have to do what you think is right. But, if you give me your itinerary every time you fly, I’ll be at the airport with you and we can make sure it’s very pleasant for you.”

I have no idea what this means, does it mean that they have a special area where all the friskers are topless showgirls, “We have nothing to hide, do you?” I have no idea. She pushes me for the next time I’m flying. I tell her I’m flying to Chicago around 2 on Sunday, if she wants to get that security guy there to sneer at me. She says, she’ll be there, and it’ll be very easy for me. I have no idea what this means.

You know, I think a few dirty movies have used this as a setup.  All you would have to do is add a pizza boy.  But joking aside, he asks the key question:

So, that was it. I’m flying on Sunday, I have no idea what will happen. How crazy is this? Do I really have some sort of mysterious VIP status to shut me up?

One is left suspecting that he got special treatment because he was a celebrity.  So if a celebrity complains they want to keep him happy; but if a regular shlub complains, it’s investigation time?

And of course you might wonder why they picked Jillette out of line.  Well, exclusive to Patterico, we have this video of how it happened.  (Not really, but it’s a funny and appropriate clip anyways.)

Meanwhile, the issue has gotten the inevitable, but still hilarious Taiwanese animation treatment.  Subtitles are provided, but you really don’t need them.

Actually though the video brings up one point I have been hearing tossed around recently.  I always get irritated when people say that “the terrorists have won” over this kind of stuff.  This is nothing more than projecting onto the terrorists your own causes.  Bin Laden didn’t set 9-11 into motion in order to cause our security to increase.  He did it because he is trying to spread his islamofascism everywhere.  That is not to say there is nothing to criticize in relation to airport screening procedures.  I am of two minds about the issue myself.  But let’s cut that bull about pretending that Osama’s goal was to cause this, okay?

Oh, and maybe this is not the best time to get that atom bomb tattoo you have been considering.  Just sayin’.

Update: Another random but appropriate movie clip, here.

[Posted and authored by Aaron Worthing.]

Stormtrooper Aim Explained… By Science!

Filed under: General — Aaron Worthing @ 5:41 am

[Guest post by Aaron Worthing; send your tips here.]

This is clearly a case of a person working too hard to explain away an unrealistic element of the Star Wars movies.  And I am always dubious about treating psychiatry as science.  But that being said, I have to admit as logic, this explanation actually makes a lot of sense.

[Posted and authored by Aaron Worthing.]


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