Patterico's Pontifications


Jerry Brown: Proposition 209, Which Outlaws Affirmative Action, Is Unconstitutional

Filed under: Constitutional Law,General,Race — Patterico @ 10:01 pm

I often read conservatives claiming that Jerry Brown is a surprisingly solid choice as California’s Attorney General. I’m not so sure. He may be OK on some issues, but he has increasingly used his office to advance ridiculous legal postures that carry the whiff of expedience and political correctness. First there was his daft move to have Prop. 8 declared unconstitutional. Now Gov. Moonbeam is claiming that Proposition 209 — the proposition that outlaws affirmative action — is unconstitutional:

Brown’s brief, written by Solicitor General Manuel Medeiros, noted that the U.S. Supreme Court has set strict constitutional standards for judging race-conscious programs: They must be based on a history of discrimination against a group and must be designed to promote a legitimate goal, such as diversity in school enrollment, that cannot be met in other ways.

But Prop. 209 goes further and prohibits programs that the U.S. Constitution allows, without justification, Medeiros said.

So now these programs are constitutionally mandated??

“It closes a door to race- and gender-conscious programs that the 14th Amendment leaves open,” Medeiros said. The amendment requires states to provide equal protection under the law to all citizens.

“Ironically, by effectively disadvantaging racial minorities and women in the political process, without an evident compelling governmental reason for doing so, (Prop. 209) seems to accomplish the very evil it purported to eliminate … racial and gender discrimination,” Medeiros said.

So by refusing to use government to advantage particular racial or gender groups, Proposition 209 disadvantages those groups?

Brown’s office did not expressly ask the court to overturn Prop. 209. But if the justices followed the attorney general’s opinion, they would strike the measure down or narrow it to reflect federal standards, which would eliminate its independent effect.

Same difference.

Clearly, this is all done with Brown’s run for the Governor’s office in mind. Meaning he is twisting the law in liberal directions for political gain.

Now what could be wrong with that?

How about a “You can’t handle the truth!” Commission?

Filed under: General — Karl @ 9:34 am

[Posted by Karl]

Pres. Obama does not want a “truth commission” looking into the Bush Administration’s harsh interrogation of high-value enemy combatants.  People may think his flip-flop on having the Justice Dept. look into the matter is a cave to hysterical, Sullivan-esque self-soilers,  but that is only half-accurate.  The point of fobbing this issue off on Holder & Co. is precisely to try to remove everyone else from the equation, including the media.  This was a common tactic of the Clinton Administration: “Sorry, as you know, this matter is under investigation, so I am not at liberty to comment.”

Sen. Majority Ldr. Harry Reid (D-NV) concurred with Obama, leaving House Speaker Nancy Pelosi (D-CA) carrying the banner for a “truth commission.”  No doubt her constituents in San Francisco would favor it as well.  But privately, she — like most Democrats — probably recognize that it would not only distract them from their ginormous left-wing policy agenda, but also provoke a “scorched earth” resistance to that agenda from the GOP. 

Indeed, the smarter ones likely realize that criminal charges against the lawyers who drafted the interrogation memos is exceedingly unlikely.  The case for pursuing war crimes charges is only marginally better.  The waterboarding that went on here is not the “water cure” administered by US soldiers in the Philippines, or the Asano war crimes case, both of which involved pouring water directly into the mouths and noses of subjects, which is considerably more harsh and dangerous.   

The Democrats know as much as anyone that this issue already polls badly with likely voters.  Trying to pretend that the Bush Administration was like the Third Reich simply would not play with anyone less unhinged than the Andrew Sullivans of the world (who would likely end up disappointed with the outcome).  If Congressional Democrats pursue this, it will most likely be with the expectation that the GOP would rise to prevent any sort of bipartisan effort, allowing the Dems to retreat, while blaming the GOP.

Finally, despite the feistiness of former VPOTUS Dick Cheney, the GOP would gain little from a “truth commission.” Sure, it would be fun to expose the hypocrisy of the Congressional Democrats who knew and repeatedly approved the program.  But every day spent dwelling on the Bush Administration is a day not spent moving forward, which Republicans ought to want to do as much as Obama does.  The GOP is wildly unpopular; wallowing in these show trials, even if cathartic to those who would get the chance to defend themselves, would simply play into the DNC strategy of painting the Republicans as mired in the past.

In short, a “truth commission” ultimately serves almost no one’s political interest.  It is an idea pushed forward by the screeching rage of a vocal minority.  It will likely suffer the same fate as the AIG bonus taxes — once the story leaves the headlines, it will die in the shadows.

Update: As an aside, the above link to the Asano case is a purported debunking of a claim made by Paul Begala.  Today, Begala claims he was not referring to the Asano case, but to the Tokyo Trials, officially known as the International Military Tribunal for the Far East.  The problem with that is that those cases are just as distinguishable, unless one assumes that dumping buckets of water through a towel, filling up the mouth and nostrils with water, is the same as pouring water on KSMs head wrapped in cellophane for less than a minute at a time.

Update x2: Mark Hemingway responds to Begala, noting not only the difference between cellophane and a cloth towel as protection, but also that at the Tokyo Trials, only seven Japanese war criminals were executed, all of whom were convicted of either being complicit in or directly comitting atrocities and murder on a grand scale.


Waterboarding Worked, Part 2: The Timing of the Library Tower Plots

Filed under: General,Judiciary,Obama,Terrorism — Patterico @ 7:33 am

As I discussed earlier this week, recently released memos confirm that waterboarding KSM resulted in the disruption of a plot to fly airplanes into the Library Tower in downtown Los Angeles. In other words, pouring water on this mass murderer’s face may have saved thousands of lives.

You might as well look at the memo for yourself, to see that it’s for reals. Here it is, and here is one of the key passages at page 10:

(Click to enlarge)

The memo elsewhere makes clear that we’re talking about waterboarding specifically.

Don’t let anyone tell you that the events described in the memo are fictional because of the timing. I told you the other day that the naysayers will tell you that the timing doesn’t work out, because the plot (they claim) was completely disrupted in 2002, before KSM’s arrest in 2003. I said: “I often hear that the plot was foiled before KSM was captured, but there were evidently two such plots.”

I think it’s time to flesh that out in detail. Because sure enough, after the recent release of these memos, Slate’s Tim Noah and others resumed pushing the claim that the timing couldn’t have worked out. This Daily Kos story was featured prominently on HuffPo last night, and the meme is spreading.

But it’s not true.

There was a second wave coming even after KSM’s arrest. That second wave was broken up. As a Los Angeles Times article reported in October 2005:

Federal counter-terrorism officials on Friday disclosed for the first time that during his interrogations, Mohammed said he hadn’t completely abandoned the prospect of a second wave of attacks, but had turned the idea over to a trusted aide named Hambali, the chief of operations for an Al Qaeda affiliate group in South Asia, Jemaah Islamiyah.

Hambali, also known as Riduan Isamuddin, in turn is believed to have chosen several men to launch the attacks, including a pilot, and had set aside some money to pay for them, according to one senior counter-terrorism official.

Those men were soon captured, however, and the plot never progressed past the planning stages, according to several counter-terrorism officials.

Now, it’s true that the leftist L.A. Times, in its zeal to prove that the plot was insubstantial, managed to find some anonyleaker (no doubt someone with a personal axe to grind, as these anonyleakers usually are) who says: “To take that and make it into a disrupted plot is just ludicrous.” But I think it’s ludicrous to dismiss it just because it was only in the planning stages. As Philip Klein observes:

[I]f we’re able to disrupt such plots in the early stages, isn’t that a good thing? Isn’t that precisely what successful counterterrorism looks like? Isn’t that the kind of detective work that we failed to do on Sept. 11? In the early stages, if you had read that a group of terrorists was planning on sending men to hijack airplanes with box-cutters and fly them into buildings, destroying the Twin Towers and damaging the Pentagon, and killing 3,000 people, it probably would have sounded far fetched to most people.

The unnamed FBI dude who sneers at the disrupted plot might have done the same if we had disrupted the September 11 plot. Until this clown puts his name on the record, I’m not taking his dismissal too seriously.

Leftists have to confront the facts: there is a very real possibility that, if we hadn’t waterboarded KSM, Al Qaeda would have had a repeat of 9/11, but this time in Los Angeles.

Which would you prefer? Pour some water on a mass murderer’s face, or allow thousands to die?

I’m proud of the Bush Administration for saving us from that. I’m glad that they did what needed to be done, and didn’t shrink from it.

And I’m ashamed that we’ve now elected a president who has made our tactics transparent to the enemy, who has talked about prosecuting officials for authorizing tactics that saved lives, and who has made it clear that he isn’t willing to do what’s necessary to protect the American people.

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