The will of the people to be unconstitutional

The California Marriage Protection Act, which provided that "only marriage between a man and a woman is valid or recognized in California," was voted into law by Californians in the November 2008 election. Earlier this month, Chief U.S. District Judge Vaughn Walker overturned the law more commonly known as Proposition 8.

This has supporters of the proposition in an uproar, claiming that Walker denied the people of California their free will. It's ironic that the California Marriage Protection Act itself denies an entire class of people their free will to marry. Of course, Proposition 8 supporters would argue that all it does is to explicitly define "marriage" in the state's constitution as it has been defined for millennia.

In fact, polygamy -- one of the more ancient practices -- was long considered a legitimate marriage, both in religions and in society. It was not uncommon for a marriage between an adult and a girl in her early teens to be recognized without controversy. Because the Confucian philosophy dictated that Chinese marriage brings together families of different surnames, it was not considered incestuous to marry one's maternal relative, and families would intermarry from one generation to another.

In modern marriage, neither religion nor moralities have any relevance, at least insofar as the state of California is concerned. Walker made this case in his ruling when he wrote the following clause:

Marriage in the United States has always been a civil matter. Civil authorities may permit religious leaders to solemnize marriages but not to determine who may enter or leave a civil marriage. Religious leaders may determine independently whether to recognize a civil marriage or divorce but that recognition or lack thereof has no effect on the relationship under state law.

He was also careful to recognize that overturning the law in no way impinges on anyone's religious freedoms:

Proposition 8 does not affect the First Amendment rights of those opposed to marriage for same-sex couples. Prior to Proposition 8, no religious group was required to recognize marriage for same-sex couples.

A marriage in a California church, temple, or synagogue is not legally recognized if the state has not licensed the couple to marry. A legal marriage licensed by the state is valid even if there has been no religious ceremony. From the perspective of the state of California -- which is the only jurisdiction of the California Marriage Protection Act -- marriage is simply a legal status of two consenting persons, with the associated rights and responsibilities prescribed by law.

Furthermore, within the scope of authority of Proposition 8, marriage is a state matter. California is obligated to execute state law only to the extent that it is constitutional under the United States Constitution. That constitution happens to have an equal-protection clause -- Amendment XIV -- that prohibits discrimination based on sexual orientation. Judge Walker wrote that "Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license." Proposition 8 reflected the will of the people of California ... to enact an unconstitutional law. For that reason, it should not stand.

Death Panel

What is this "Death Panel" we've all been hearing about lately? Don't take my word for it. Don't let other people tell you what it says. Read the actual text of America’s Affordable Health Choices Act of 2009 for yourself.

The Act is 1,018 pages long, so give the 1.7 MB Portable Document format (PDF) file a couple of minutes to download. Then go straight to SEC. 1233. ADVANCE CARE PLANNING CONSULTATION starting on page 424. This is the section that addresses the issue that somehow came to be known as the "Death Panel." It's about seven pages long but it's double-spaced with big letters and wide margins, so it won't take long to read.

When you're done, please post a comment and tell America the specific page number and lines of the Act which trouble you. It's simple; every page and line is numbered for easy citation. Be sure and explain how those lines legislate anything like what the Act's opponents say the "Death Panel" is. The first one to comment gets to show off how well informed they are, so hurry up.

The raw truth comes out

The Raw Story has recently been validating my posts from the early months of The Progressive Zone. Back in 2005, I posted about the fascist elements of the USA PATRIOT Act. Section 501 of the Act seems to be contrary to everything this country stands for. It prevents someone accused of terrorist activity from being informed of the evidence against him or her, no matter how flimsy it be. It's no surprise then that a federal appeals court has finally invalidated the section of the Act which permitted "national security letters" to create blanket gag orders.

Also in 2005, I tried to reconcile president Bush's claim that "we do not torture" with vice president Cheney's insistence that the CIA should be permitted to torture detainees. Why would it need this permit if we do not torture? Well, now we know why. The Raw Story also reported this month that Cheney admits authorizing detainee's torture. He had the gall to say on national television that he supports water-boarding, an act for which Japanese soldiers were tried and convicted of war crimes after World War II.

Although I'm pleased that the truth is coming to light and the judiciary is beginning to restore civil liberties, I still wonder why it's taken so long.

Drama and intrigue in the Executive branch

Let's face it -- it's difficult to think of anything more boring than a Senate hearing. Most Americans would rather watch paint dry. However, last week's testimony before the Senate Judiciary Committee by former deputy attorney general James B. Comey is an exception to the rule. Responding to a line of questioning by Senator Chuck Schumer, Comey gave some of the most scintillating testimony heard in a Senate hearing (with George Galloway speaking truth to power possibly being the only other recent example of equally intriguing testimony).

The testimony describes Bush's chief of staff Andrew Card and his then chief counsel Alberto Gonzales visiting then attorney general John Ashcroft in the hospital. Ashcroft was critically ill and had accordingly passed the reigns of his position on to Comey pending his recovery. While acting as attorney general, Comey refused to renew one of Bush's classified programs because he and Ashcroft had previously determined that they could not certify its legality. Bush then dispatched Card and Gonzales to Ashcroft's bedside to get him to overrule Comey's decision, even though Ashcroft was still critically ill and seemingly disoriented.

From there, the story gets even more disturbing. It culminates with Bush continuing his classified program in defiance of the DoJ not authorizing it. But rather than relating the story, the testimony speaks most compellingly for itself:

Sen. CHUCK SCHUMER (D-N.Y.): There have been media reports describing a dramatic visit by Alberto Gonzales and Chief of Staff Andrew Card to the hospital bed of John Ashcroft in March 2004, after you, as acting attorney general, decided not to authorize a classified program.

First, can you confirm that a night-time hospital visit took place?

FORMER DEPUTY ATTORNEY GENERAL JAMES B. COMEY: Yes, I can.

SCHUMER: OK. Can you remember the date and the day?

COMEY: Yes, sir, very well. It was Wednesday, March the 10th, 2004.

SCHUMER: And how do you remember that date so well?

COMEY: This was a very memorable period in my life; probably the most difficult time in my entire professional life. And that night was probably the most difficult night of my professional life. So it's not something I'd forget.

SCHUMER: Were you present when Alberto Gonzales visited Attorney General Ashcroft's bedside?

COMEY: Yes.

SCHUMER: And am I correct that the conduct of Mr. Gonzales and Mr. Card on that evening troubled you greatly?

COMEY: Yes.

SCHUMER: OK. Let me go back and take it from the top. You rushed to the hospital that evening. Why?

COMEY: I'm only hesitating because I need to explain why.

SCHUMER: Please. I'll give you all the time you need, sir.

COMEY: I've actually thought quite a bit over the last three years about how I would answer that question if it was ever asked, because I assumed that at some point I would have to testify about it.

The one thing I'm not going to do and be very, very careful about is, because this involved a classified program, I'm not going to get anywhere near classified information. I also am very leery of, and will not, reveal the content of advice I gave as a lawyer, the deliberations I engaged in. I think it's very important for the Department of Justice that someone who held my position not do that.

SCHUMER: In terms of privilege.

COMEY: Yes, sir.

SCHUMER: Understood.

COMEY: Subject to that, I -- and I'm uncomfortable talking about this...

SCHUMER: I understand.

COMEY: ... but I'll answer the question. I -- to understand what happened that night, I, kind of, got to back up about a week.

SCHUMER: Please.

COMEY: In the early part of 2004, the Department of Justice was engaged -- the Office of Legal Counsel, under my supervision -- in a reevaluation both factually and legally of a particular classified program. And it was a program that was renewed on a regular basis, and required signature by the attorney general certifying to its legality.

And the -- and I remember the precise date. The program had to be renewed by March the 11th, which was a Thursday, of 2004. And we were engaged in a very intensive reevaluation of the matter.

And a week before that March 11th deadline, I had a private meeting with the attorney general for an hour, just the two of us, and I laid out for him what we had learned and what our analysis was in this particular matter.

And at the end of that hour-long private session, he and I agreed on a course of action. And within hours he was stricken and taken very, very ill...

SCHUMER: (inaudible) You thought something was wrong with how it was being operated or administered or overseen.

COMEY: We had -- yes. We had concerns as to our ability to certify its legality, which was our obligation for the program to be renewed.

The attorney general was taken that very afternoon to George Washington Hospital, where he went into intensive care and remained there for over a week. And I became the acting attorney general.

And over the next week -- particularly the following week, on Tuesday -- we communicated to the relevant parties at the White House and elsewhere our decision that as acting attorney general I would not certify the program as to its legality and explained our reasoning in detail, which I will not go into here. Nor am I confirming it's any particular program. That was Tuesday that we communicated that.

The next day was Wednesday, March the 10th, the night of the hospital incident. And I was headed home at about eight o'clock that evening, my security detail was driving me. And I remember exactly where I was -- on Constitution Avenue -- and got a call from Attorney General Ashcroft's chief of staff telling me that he had gotten a call...

SCHUMER: What's his name?

COMEY: David Ayers. That he had gotten a call from Mrs. Ashcroft from the hospital. She had banned all visitors and all phone calls. So I hadn't seen him or talked to him because he was very ill. And Mrs. Ashcroft reported that a call had come through, and that as a result of that call Mr. Card and Mr. Gonzales were on their way to the hospital to see Mr. Ashcroft.

SCHUMER: Do you have any idea who that call was from?

COMEY: I have some recollection that the call was from the president himself, but I don't know that for sure. It came from the White House. And it came through and the call was taken in the hospital.

So I hung up the phone, immediately called my chief of staff, told him to get as many of my people as possible to the hospital immediately. I hung up, called Director Mueller and -- with whom I'd been discussing this particular matter and had been a great help to me over that week -- and told him what was happening. He said, "I'll meet you at the hospital right now."

Told my security detail that I needed to get to George Washington Hospital immediately. They turned on the emergency equipment and drove very quickly to the hospital. I got out of the car and ran up -- literally ran up the stairs with my security detail.

SCHUMER: What was your concern? You were in obviously a huge hurry.

COMEY: I was concerned that, given how ill I knew the attorney general was, that there might be an effort to ask him to overrule me when he was in no condition to do that.

SCHUMER: Right, OK.

COMEY: I was worried about him, frankly. And so I raced to the hospital room, entered. And Mrs. Ashcroft was standing by the hospital bed, Mr. Ashcroft was lying down in the bed, the room was darkened. And I immediately began speaking to him, trying to orient him as to time and place, and try to see if he could focus on what was happening, and it wasn't clear to me that he could. He seemed pretty bad off.

SCHUMER: At that point it was you, Mrs. Ashcroft and the attorney general and maybe medical personnel in the room. No other Justice Department or government officials.

COMEY: Just the three of us at that point. I tried to see if I could help him get oriented. As I said, it wasn't clear that I had succeeded.

I went out in the hallway. Spoke to Director Mueller by phone. He was on his way. I handed the phone to the head of the security detail and Director Mueller instructed the FBI agents present not to allow me to be removed from the room under any circumstances. And I went back in the room.

I was shortly joined by the head of the Office of Legal Counsel assistant attorney general, Jack Goldsmith, and a senior staffer of mine who had worked on this matter, an associate deputy attorney general. So the three of us Justice Department people went in the room. I sat down...

SCHUMER: Just give us the names of the two other people.

COMEY: Jack Goldsmith, who was the assistant attorney general, and Patrick Philbin, who was associate deputy attorney general.

I sat down in an armchair by the head of the attorney general's bed. The two other Justice Department people stood behind me. And Mrs. Ashcroft stood by the bed holding her husband's arm. And we waited.

And it was only a matter of minutes that the door opened and in walked Mr. Gonzales, carrying an envelope, and Mr. Card. They came over and stood by the bed. They greeted the attorney general very briefly. And then Mr. Gonzales began to discuss why they were there -- to seek his approval for a matter, and explained what the matter was -- which I will not do.

And Attorney General Ashcroft then stunned me. He lifted his head off the pillow and in very strong terms expressed his view of the matter, rich in both substance and fact, which stunned me -- drawn from the hour-long meeting we'd had a week earlier -- and in very strong terms expressed himself, and then laid his head back down on the pillow, seemed spent, and said to them, "But that doesn't matter, because I'm not the attorney general."

SCHUMER: But he expressed his reluctance or he would not sign the statement that they -- give the authorization that they had asked, is that right?

COMEY: Yes. And as he laid back down, he said, "But that doesn't matter, because I'm not the attorney general. There is the attorney general," and he pointed to me, and I was just to his left. The two men did not acknowledge me. They turned and walked from the room. And within just a few moments after that, Director Mueller arrived. I told him quickly what had happened. He had a brief -- a memorable brief exchange with the attorney general and then we went outside in the hallway.

SCHUMER: OK. Now, just a few more points on that meeting. First, am I correct that it was Mr. Gonzales who did just about all of the talking, Mr. Card said very little?

COMEY: Yes, sir.

SCHUMER: OK. And they made it clear that there was in this envelope an authorization that they hoped Mr. Ashcroft -- Attorney General Ashcroft would sign.

COMEY: In substance. I don't know exactly the words, but it was clear that's what the envelope was.

SCHUMER: And the attorney general was -- what was his condition? I mean, he had -- as I understand it, he had pancreatitis. He was very, very ill; in critical condition, in fact.

COMEY: He was very ill. I don't know how the doctors graded his condition. This was -- this would have been his sixth day in intensive care. And as I said, I was shocked when I walked in the room and very concerned as I tried to get him to focus.

SCHUMER: Right. OK. Let's continue. What happened after Mr. Gonzales and Card left? Did you have any contact with them in the next little while?

COMEY: While I was talking to Director Mueller, an agent came up to us and said that I had an urgent call in the command center, which was right next door. They had Attorney General Ashcroft in a hallway by himself and there was an empty room next door that was the command center. And he said it was Mr. Card wanting to speak to me.

I took the call. And Mr. Card was very upset and demanded that I come to the White House immediately. I responded that, after the conduct I had just witnessed, I would not meet with him without a witness present.

He replied, "What conduct? We were just there to wish him well."

And I said again, "After what I just witnessed, I will not meet with you without a witness. And I intend that witness to be the solicitor general of the United States."

SCHUMER: That would be Mr. Olson.

COMEY: Yes, sir. Ted Olson.

"Until I can connect with Mr. Olson, I'm not going to meet with you."

He asked whether I was refusing to come to the White House. I said, "No, sir, I'm not. I'll be there. I need to go back to the Department of Justice first."

And then I reached out through the command center for Mr. Olson, who was at a dinner party. And Mr. Olson and the other leadership of the Department of Justice immediately went to the department, where we sat down together in a conference room and talked about what we were going to do.

And about eleven o'clock that night -- this evening had started at about eight o'clock, when I was on my way home. At eleven o'clock that night, Mr. Olson and I went to the White House together.

SCHUMER: Just before you get there, you told Mr. Card that you were very troubled by the conduct from the White House room (ph), and that's why you wanted Mr. Olson to accompany you.

Without giving any of the details -- which we totally respect in terms of substance -- just tell me why. What did you tell him that so upset you? Or if you didn't tell him just tell us.

COMEY: I was very upset. I was angry. I thought I just witnessed an effort to take advantage of a very sick man, who did not have the powers of the attorney general because they had been transferred to me. I thought he had conducted himself, and I said to the attorney general, in a way that demonstrated a strength I had never seen before. But still I thought it was improper. And it was for that reason that I thought there ought to be somebody with me if I'm going to meet with Mr. Card.

SCHUMER: Can you tell us a little bit about the discussion at the Justice Department when all of you convened? I guess it was that night.

COMEY: I don't think it's appropriate for me to go into the substance of it. We discussed what to do. I recall the associate attorney general being there, the solicitor general, the assistant attorney general in charge of the Office of Legal Counsel, senior staff from the attorney general, senior staff of mine. And we just -- I don't want to reveal the substances of those...

SCHUMER: I don't want you to reveal the substance. They all thought what you did -- what you were doing was the right thing, I presume.

COMEY: I presume. I didn't ask people. But I felt like we were a team, we all understood what was going on, and we were trying to do what was best for the country and the Department of Justice. But it was a very hard night.

SCHUMER: OK. And then did you meet with Mr. Card?

COMEY: I did. I went with Mr. Olson driving -- my security detail drove us to the White House. We went into the West Wing. Mr. Card would not allow Mr. Olson to enter his office. He asked Mr. Olson to please sit outside in his sitting area. I relented and went in to meet with Mr. Card alone. We met, had a discussion, which was much more -- much calmer than the discussion on the telephone.

After -- I don't remember how long, ten or fifteen minutes -- Mr. Gonzales arrived and brought Mr. Olson into the room. And the four of us had a discussion.

SCHUMER: OK. And was Mr. -- were you and Mr. Card still in a state of anger at one another at that meeting, or is it a little calmer, and why?

COMEY: Not that we showed.

SCHUMER: Right.

COMEY: It was much more civil than our phone conversation, much calmer.

SCHUMER: Why? Why do you think?

COMEY: I don't know. I mean, I had calmed down a little bit. I'd had a chance to talk to the people I respected. Ted Olson I respect enormously.

SCHUMER: Right. OK. Was there any discussion of resignations with Mr. Card?

COMEY: Mr. Card was concerned that he had heard reports that there were to be a large number of resignations at the Department of Justice.

SCHUMER: OK. OK. And the conversations, the issue, whatever it was, was not resolved.

COMEY: Correct. We communicated about it. I communicated again the Department of Justice's view on the matter. And that was it.

SCHUMER: Right. And you stated that the next day, Thursday, was the deadline for reauthorization of the program, is that right?

COMEY: Yes, sir.

SCHUMER: OK. Can you tell us what happened the next day?

COMEY: The program was reauthorized without us and without a signature from the Department of Justice attesting as to its legality. And I prepared a letter of resignation, intending to resign the next day, Friday, March the 12th.

SCHUMER: OK. And that was the day, as I understand it, of the Madrid train bombings.

COMEY: Thursday, March 11th, was the morning of the Madrid train bombings.

SCHUMER: And so, obviously, people were very concerned with all of that.

COMEY: Yes. It was a very busy day in the counterterrorism aspect.

SCHUMER: Yet, even in light of that, you still felt so strongly that you drafted a letter of resignation.

COMEY: Yes.

SCHUMER: OK. And why did you decide to resign?

COMEY: I just believed...

SCHUMER: Or to offer your resignation, is a better way to put it?

COMEY: I believed that I couldn't -- I couldn't stay, if the administration was going to engage in conduct that the Department of Justice had said had no legal basis. I just simply couldn't stay.

SCHUMER: Right. OK. Now, let me just ask you this. And this obviously is all troubling. As I understand it, you believed that others were also prepared to resign, not just you, is that correct?

COMEY: Yes.

SCHUMER: OK. Was one of those Director Mueller?

COMEY: I believe so. You'd have to ask him, but I believe so.

SCHUMER: You had conversations with him about it.

COMEY: Yes.

SCHUMER: OK. How about the associate attorney general, Robert McCallum?

COMEY: I don't know. We didn't discuss it.

SCHUMER: How about your chief of staff?

COMEY: Yes. He was certainly going to go when I went.

SCHUMER: Right. How about Mr. Ashcroft's chief of staff?

COMEY: My understanding was that he would go as well.

SCHUMER: And how...

COMEY: I should say...

SCHUMER: Please.

COMEY: ... to make sure I'm accurate, I...

SCHUMER: This is your surmise, not...

COMEY: Yes. I ended up agreeing -- Mr. Ashcroft's chief of staff asked me something that meant a great deal to him, and that is that I not resign until Mr. Ashcroft was well enough to resign with me. He was very concerned that Mr. Ashcroft was not well enough to understand fully what was going on. And he begged me to wait until -- this was Thursday that I was making this decision -- to wait til Monday to give him the weekend to get oriented enough so that I wouldn't leave him behind, was his concern.

SCHUMER: And it was his view that Mr. Ashcroft was likely to resign as well?

COMEY: Yes.

SCHUMER: So what did you do when you heard that?

COMEY: I agreed to wait. I said that what I would do is -- that Friday would be last day. And Monday morning I would resign.

SCHUMER: OK. Anything else of significance relevant to this line of questioning occur on Thursday the 11th, that you can recall?

COMEY: No, not that I recall.

SCHUMER: Thank you. Now, let's go to the next day, which was March 12. Can you tell us what happened then?

COMEY: I went to the Oval Office -- as I did every morning as acting attorney general -- with Director Mueller to brief the president and the vice president on what was going on on Justice Department's counterterrorism work.

We had the briefing. And as I was leaving, the president asked to speak to me, took me in his study and we had a one-on-one meeting for about fifteen minutes -- again, which I will not go into the substance of. It was a very full exchange. And at the end of that meeting, at my urging, he met with Director Mueller, who was waiting for me downstairs.

He met with Director Mueller again privately, just the two of them. And then after those two sessions, we had his direction to do the right thing, to do what we...

SCHUMER: Had the president's direction to do the right thing?

COMEY: Right. We had the president's direction to do what we believed, what the Justice Department believed was necessary to put this matter on a footing where we could certify to its legality. And so we then set out to do that. And we did that.

SCHUMER: OK. So let me just (inaudible) -- this is an amazing story, has an amazing pattern of fact that you recall.

Sen. ARLEN SPECTER (R-Pa): Mr. Chairman, could you give us some idea when your first round will conclude?

SCHUMER: As soon as I ask a few questions here. Fairly soon.

(OFF-MIKE)

SCHUMER: Yes. And, Senator Specter, you will get the same amount of time.

SCHUMER: I thought with Mr. Comey's telling what happened...

(CROSSTALK)

SPECTER: Just may the record show that you're now 16 minutes and 35 seconds over the five minutes and...

SCHUMER: I think the record will show it.

SPECTER: Well, it does now.

(LAUGHTER)

SCHUMER: OK, thank you. And I think most people would think that those 16:35 minutes were worth hearing.

SPECTER: Well, Mr. Chairman, we do have such a thing as a second round, and there are a lot of senators waiting...

SCHUMER: Yes, OK. Let me ask you these few questions...

SPECTER: ... including a Republican.

SCHUMER: I'm glad you're here, Senator Specter. I know you're concerned with the issue.

SPECTER: Lonely, but here.

(LAUGHTER)

SCHUMER: Let me ask you this: So in sum, it was your belief that Mr. Gonzales and Mr. Card were trying to take advantage of an ill and maybe disoriented man to try and get him to do something that many, at least in the Justice Department, thought was against the law? Was that a correct summation?

COMEY: I was concerned that this was an effort to do an end-run around the acting attorney general and to get a very sick man to approve something that the Department of Justice had already concluded -- the department as a whole -- was unable to be certified as to its legality. And that was my concern.

SCHUMER: OK. And you also believe -- and you had later conversations with Attorney General Ashcroft when he recuperated, and he backed your view?

COMEY: Yes, sir.

SCHUMER: Did you ever ask him explicitly if he would have resigned had it come to that?

COMEY: No.

SCHUMER: OK. But he backed your view over that what was being done, or what was attempting to being done, going around what you had recommended, was wrong, against the law?

COMEY: Yes. And I already knew his view from the hour we had spent together going over it in great detail a week before the hospital incident.

SCHUMER: Yes. And the FBI director, Mueller, backed your view over that of Mr. Gonzales as well -- is that right? -- in terms of whether the program could continue to be implemented the way Counsel Gonzales wanted it to be.

COMEY: The only reason I hesitate is it was never Director Mueller's job or position to be drawing a legal conclusion about the program; that he was very supportive to me personally. He's one of the finest people I've ever met and was a great help to me when I felt a tremendous amount of pressure and felt a bit alone at the Department of Justice. But it was not his role to opine on the legality.

SCHUMER: How about Jack Goldsmith, the head of the Office of Legal Counsel? Did he opine on the legality?

COMEY: Yes. He had done a substantial amount of work on that issue. And it was largely OLC, the Office of Legal Counsel's work, that I was relying upon in drawing my -- in making my decision.

SCHUMER: OK. Just two other questions. Have you ever had the opportunity to recall these events on the record in any other forum?

COMEY: No.

SCHUMER: OK. And...

COMEY: I should...

SCHUMER: Go ahead.

COMEY: I was interviewed by the FBI and discussed these events in connection with a leak investigation the FBI was conducting.

SCHUMER: And you gave them these details then.

COMEY: Yes.

SCHUMER: Thank you.

COMEY: But not -- by forum I've never testified about it.

SCHUMER: And after you stood your ground in March of 2004, did you suffer any recriminations or other problems at the department?

COMEY: I didn't. Not that I'm aware of.

SCHUMER: OK.

The militant arm of the GOP

In 2004, the GOP held their national convention in New York City. The actions of the New York police department that week turned out to be another indication that fascism lives in the USA. The NYPD detained 1,760 political protesters, crowding them into a filthy pier. The detainees were exposed to the frigid New York nights common in the autumn, some without needed medical care, and many without ever being charged with a crime. The conditions were so bad, a judge finally ordered the release of those held over 24 hours, although the police department refused to obey the order.

It seemed as if the NYPD were nothing more than a militant band of the Republican party. How did the NYPD manage to detain such a large number of peaceful, law abiding citizens over the few days of the Republican national convention? Police records and interviews are beginning to show that for at least a year before the convention, teams of undercover NYPD officers traveled globally to conduct covert observations of people who planned to protest at the convention.

The partisan aspect of this activity is that the US District Court has ruled that the NYPD must have "some indication of unlawful activity on the part of the individual or organization to be investigated" before monitoring political activity. However, the NYPD violated this law in its covert surveillance program. Most of the NYPD's reports about their surveillance were regarding people who were not displaying any intent to break the law.

Subjects of the covert surveillance included the likes of antiwar organizations, street theater troupes, environmentalists, church groups, and people opposed to the death penalty, globalization and other government policies. Even three New York City elected officials were cited in the reports.

One of the reports was on a design student named Joshua Kinberg. There were four pages from the intelligence reports on his master's thesis project, a "wireless bicycle" equipped with cellphone, laptop, and spray tubes that could squirt messages received over the Internet onto the sidewalk or street. If it were to spray paint, it would have been an 'unlawful activity.' However, the report noted that the messages were printed in water-soluble chalk to avoid a criminal mischief charge.

NYPD records on Bands Against Bush reported that the group was planning a concert in New York during which, between musical sets, there would be political speeches and videos. The records said, "activists are showing a well-organized network made up of anti-Bush sentiment; the mixing of music and political rhetoric indicates sophisticated organizing skills with a specific agenda." If this is the NYPD's idea of 'unlawful activity,' the department is clearly partisan.

It appears that the mission of the NYPD is not only to protect and serve the people of New York City. It is also to conduct unlawful covert surveillance of Americans whose politics are in opposition to the Republican party.

One step forward, ten steps back

Slate published The Bill of Wrongs this past weekend. The author, Dahlia Lithwick, bills it as "the ten most outrageous civil liberties violations of 2006." It seems unbelievable that some of the items on the list could actually occur in the USA but they really did, and the details about them that Lithwick provides are accurate. Written in reverse order in the article, the list includes:

1. Hubris
2. The Military Commissions Act of 2006
3. Abuse of Jose Padilla
4. Extraordinary Rendition
5. Government Snooping
6. The State-Secrets Doctrine
7. Slagging the Courts
8. Slagging the Media
9. Guantanamo Bay
10. Attempt to Get Death Penalty for Zacarias Moussaoui

One major loss of civil liberty did not make the list. The USA PATRIOT Act was renewed this year. Perhaps Lithwick did not include it because the Act has been in effect for a few years now. Nonetheless, some of the sections of the Act that constituted the greatest intrusions into our privacy were scheduled to expire at the end of 2006, but congress canceled those expirations. The right to privacy is now lost forever to the American people.

It was a pleasant relief to finally see another civil liberty that has been violated in recent years also not make the list this time. It was beginning to look like Americans were losing their liberty to freely elect their president. After the fiasco of an election in 2000 and the highly questionable activities in many polling locations in the 2004 election, the manufacturers of electronic voting machines and voting officials began deciding the results of our elections. The rule of thumb is that once you lose a civil liberty, you will never get it back. However, the 2006 election showed us that is not always the case, when the American people were again free to decide an election -- and did so in no uncertain terms.

The laming of the duck

One of the risks of exercising too hard is that it can actually make the person exercising lame. President Bush is now finding that he has exercised his executive powers too hard. Recent judicial activity is making Bush's executive powers more and more lame.

US District Judge Anna Diggs Taylor has validated that the NSA surveillance program (which includes secretly eavesdropping over US citizens on American soil) authorized by Bush is a shameful act. In ruling that the program violates US citizens' privacy and free-speech rights and illegally skirts review by the special Foreign Intelligence Surveillance Act court, she wrote, "There are no hereditary kings in America, and no powers not created by the Constitution."

Even Representative Jane Harman (self-proclaimed Democrat and ranking member of the House Intelligence Committee), long a supporter of the Iraq war, the USA PATRIOT Act, and the NSA spy program, is having a change of heart. Blasting the administration for refusing to provide legal opinions and authorizations for its wiretap program, interrogations policy, and detentions of accused terrorists, Harman said Friday that, "The administration has too often operated under vague legal guidelines, pursuant to secret legal opinions generated by few and vetted by almost none."

Speaking of detentions of accused terrorists, a lawsuit filed by two Brooklyn detainees hopes to hold federal law enforcement authorities responsible for their open-ended, "hold-until-cleared" policy for detainees is moving forward in the federal courts in New York. Top administration officials were denied their request to have the case dismissed. In another case, the federal government agreed last week to pay $2-million to settle a lawsuit filed by an Oregon attorney who was arrested and jailed for two weeks in 2004 after the FBI erroneously linked him to a terrorist attack in Spain.

Also last week, a Los Angeles federal judge has ruled that key portions of a presidential order blocking financial assistance to terrorist groups are unconstitutional. The judge ruled that two provisions of an executive order signed just days after the 9/11 attack are too vague because they allow the president to unilaterally designate organizations as terrorist groups and broadly prohibit association with such groups.

Fortunately for Americans' liberties, the judiciary is beginning to lame Bush's excessive executive powers. Let's hope for the sake of the principles upon which this country was founded that this trend continues.

Thinly-veiled ethnocentrism or pragmatism?

Last week, Ginnnah Muhammad wore a niqab -- a scarf and veil that cover her head and face, leaving only the eyes visible -- during a court hearing near Detroit. District judge Paul Paruk dismissed the small claims court case filed by the Islamic woman after she refused to remove her veil when she testified. Is the judge being ethnocentric or is he just being pragmatic?

This case is reminiscent of the Sultaana Freeman case from 2003. Freeman lost her Florida driver license after she refused to remove her veil, or hijab, for a photo. She sued the state for violating a Florida statute that says the government "shall not substantially burden a person's exercise of religion," a law drawn from the Establishment Clause. Are the respective governments denying these woment their right to free expression of religion?

The Department of Motor Vehicles is not preventing Freeman from exercising her religious beliefs. She is free to wear her hijab all she likes both at home and in public. She's also free to choose not to have a driver license (as a Muslim woman, most fundamentalists would say the Koran prohibits her from driving anyway). The DMV is simply insisting that the ID issued by the state be able to IDentify the holder. The state even offered to make an accommodation whereby, according to the assistant attorney general:

"The practice has been to ask the men to leave the room. They lift the veil, we take the picture, they get the license, and they put it in their pocketbook and nobody sees it again. We don't care. We just have to have the picture."

The same principle applies to Muhammad. She is free to wear her niqab any time she wants to in private and just about anytime in public. Of course, she was even free to wear her niqab in court. Like Freeman, Muhammad is also free to choose not to bring her law suit. Paruk simply refused to accept her testimony if she refused to show him her face while she gave it.

At first blush, this might seem arbitrary of the judge. However, Paruk's job includes judging the truthfulness of testimony brought before his bench and, in order to do so, "you need to identify the witness and you need to look at the witness and watch how they testify." A law may abridge a fundamental right such as freedom of speech when it is in furtherance of the safety or welfare of the public. It is in the public's welfare for a judge to be able to judge the truthfulness of testimony and it's in the interest of the safety of the public for an officer of the law to be able to positively identify a resident by his or her ID.

Does the law agree? In Freeman's case, circuit judge Janet C. Thorpe upheld Paruk's decision. Thorpe found that Freeman did not prove that "the photo requirement itself substantially burdens her right to free exercise of religion." Thorpe went on to explain:

"Although the court acknowledges that plaintiff herself most likely poses no threat to national security, there likely are people who would be willing to use a ruling permitting the wearing of full-face cloaks in driver's license photos by pretending to ascribe to religious beliefs in order to carry out activities that would threaten lives."

The Establishment Clause does not apply in the Muhammad case either, in this Progressive's opinion. Neither of these cases are about freedom of religion, nor are they about discriminating against the practice of a foreign ethnicity. They are about the government being pragmatic in the protection of the safety and welfare of the public.

Not just his John Hancock

It's not a surprise that president Bush lasted almost six years into his presidency before he vetoed a bill. He has no need to veto a bill, even if he disagrees with it. Instead, he simply writes a statement with his signature on the bills that he doesn't like that says, in effect, he'll ignore the law when he decides he wants to. He cites executive authority as his grounds for being above the law.

For example, H.R. 2863 had McCain's amendment which prohibited American troops from committing torture. When Bush signed this Department of Defense, Emergency Supplemental Appropriations bill, he added statements like:

The Supreme Court of the United States has stated that the President's authority to classify and control access to information bearing on the national security flows from the Constitution and does not depend upon a legislative grant of authority ... The executive branch shall construe Title X not to create a private right of action ... Because the President's constitutional authority to supervise the unitary executive branch and take care that the laws be faithfully executed cannot be made by law subject to a requirement to consult with congressional committees or to involve them in executive decision-making, the executive branch shall construe the provision to require only notification.

These and other clauses in his signing statement are just fancy words that say Bush considers himself above the law and will ignore it when he sees fit. Bush did not explain why he wanted to be exempt from the prohibition against torture since he says in no uncertain terms that, "We do not torture." Regardless, this is not an isolated incident. Bush used similar statements when he recently signed H.R. 4939. In fact, he has challenged more than 750 laws in more than 100 signing statements.

America is tiring of this. Last month, an American Bar Association task force recommended that Congress pass legislation providing for some sort of judicial review of the signing statements. Senator Arlan Specter has responded. He said on the floor of the Senate, "We will submit legislation to the United States Senate which will ... authorize the Congress to undertake judicial review of those signing statements with the view to having the president's acts declared unconstitutional."

It's about time. Congress has abdicated their authority to this president for too long. If congress doesn't wrest the legislative branch's supposedly equal power back from the executive branch soon, they'll lose so much power that they'll never be able to.

Terror detainees protected by the Bush administration

President Bush said in no uncertain terms of the detainees in American custody that, "We do not torture." Considering the unambiguously humane manner in which they must be treated, it's unclear why the attorney general, Alberto Gonzalez, feels it necessary to ask Republican congressmen to write new law. He's asking them to write legislation that would grant U.S. personnel involved in the terrorism fight new protections against prosecution for past violations of the War Crimes Act of 1996. Why would they need protection from prosecution if they do not torture?

Perhaps it's not torture the administration is concerned about. The War Crimes Act of 1996 actually permits capital punishment if US-held detainees die in custody. That could be particularly bad for some members of the Third Brigade Combat Team of the 101st Airborne Division. A sergeant from the brigade said he had witnessed a deliberate plot by his fellow soldiers to kill three handcuffed Iraqis and a cover-up in which one soldier cut another to bolster their story. The squad leader threatened to kill anyone who talked. The three detainees were shot and killed by the soldiers. Apparently, Gonzalez thinks troops committing brutal acts such as these will need protection from prosecution when they have their day in court.

Meanwhile, the White House is also busy making their recommendations on how to conduct detainees' days in court when they are prosecuted for terror. Under these recommendations, hearsay evidence would be allowed unless it was deemed to be unreliable. Defendants also would be barred from their own trials if it were necessary to protect national security. Since it would not be permissible to implement these recommendations under the more defendant-friendly courts martial system, the administration is recommending that enemy combatants be tried under the more stringent military tribunal system. The Bush administration clearly feels that people suspected of terror do not warrant the same legal rights as those suspected of murder.

Apparently, Bush is so confident that detainees captured by those under his command are treated with the greatest fairness and care that there's no need for them to have the basic human rights that the US Constitution provides people being tried in a court of law. He's somehow convinced that the detainees are terrorists even though they have not been tried in a court of law or permitted to present any evidence that might show that they did not commit the crimes of which they're accused (if any charges have been levied at all).

Gimme a break!

As a hard-working, middle-class, single renter with no children, I have not qualified for the bulk of the tax breaks that Bush has carved out for the rich these past few years. My tax burden is pretty much the same now as it was when Clinton was in office -- actually, it's probably higher because my income has gone up a bit since then. Those of you who have enjoyed the good fortune of tax cuts courtesy of president Bush, don't make the mistake of thinking that they have in any way been distributed evenly among American taxpayers.

Now the Democrats are proposing some tax breaks. Again: I'm spurned! Senator Wyden and representative Blumenauer, both Democrats from Oregon, are introducing bills in their respective houses of congress which would give commuters who ride bikes to work between $40 and $100 per month in tax breaks.

I'll be the first to say that it's a good idea to ride a bike to work -- especially in these days of skyrocketing gas prices. In fact, I used to ride my bike 150 to 200 miles a week just to stay fit. That's less than the miles I commute every week for work. I love riding a bike!

However, now that I'm quadriplegic, it's simply not feasible for me to ride a bike to work. Even if it were possible to fix a wheelchair lift to a tandem bicycle, I'm certain the federal government would not provide me with someone to pedal it for me. Of course, that last statement was silly but there's a serious point behind it. The federal government must, by law, make all programs and services they provide equally accessible to citizens with disabilities. That includes tax breaks.

So here we are in times of record deficits and out-of-control government spending with the government trying to give Americans yet another tax break. Unfortunately, I would not get to participate in this one either. As long as the government is handing them out, I wish at least once they'd give me a tax break!

The scope of Bush's espionage program

In 2004 during a discusion on the USA PATRIOT Act, president George W. Bush told America:

"Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so."

After making that assurance, it must have been incredibly difficult for Bush to have to belie his word and approve the NSA to spy on American citizens. The mitigating factor was that the espionage was also being conducted over foreign terrorists. Therefore, even though he promised to get a court order before doing so, he decided that national security trumped his reputation for honesty. Any American chatting with al Qaeda operatives overseas deserves to be spied on anyway.

That said, Bush would never approve of spying on a phone call or email without a warrant when both parties in the communication are Americans, would he? Who better to ask than Bush's attorney general, Alberto Gonzalez. It turns out that Gonzalez was asked about that very issue during a hearing before the House Judiciary Committee Friday. His response: "I'm not going to rule it out" that Bush could order warrantless wiretaps on telephone calls occurring solely within the US. Apparently, Gonzalez must have missed Bush's statement referred to above and was simply misinformed.

The best way to get to the bottom of this is to consider the wires that could be tapped. Let's look at the public statement made by former AT&T technician, Mark Klein, last week. He states that at the beginning of 2003, the NSA tapped in to AT&T's Internet backbone. From five different American cities, the NSA began "conducting what amounts to vacuum-cleaner surveillance of all the data crossing the internet -- whether that be peoples' e-mail, web surfing or any other data." Based on his technological knowledge of the AT&T network, Klein does not believe that the NSA's spying program is limited to foreign communications.

How can we reconcile this new information with the statement Bush made in 2004? I'm afraid no amount of double-talk, diversion, and spin could possibly explain that away.

Talking out of both sides of the mouth

Everyone surprised by "Scooter" Libby's testimony to the Grand Jury please stand up. Now that everyone is seated, let's discuss the implications of that testimony. Libby claims that "the President specifically had authorized" him to disclose information in the (previously classified) National Intelligence Estimate (NIE) to Judith Miller.

When the president authorizes disclosure of information, it is no longer classified. Does that exonerate the president of criminal activity? Perhaps it does on this one matter. However, it does not exonerate the president of extreme hypocrisy. Don't forget Bush's statement in September 2003: "if there is a leak out of my administration, I want to know who it is. And if the person has violated law, the person will be taken care of."

With this clear stance against leaks from the White House, Bush should be declaring mea culpa and apologizing to the American people. Of course, after five years with this administration, America knows better. Instead, Bush trotted out his official liar, Scott McClellan, to hold a press briefing.

True to form, he diverted blame to those making "irresponsible and unfounded accusations ... against the administration, suggesting that we had manipulated or misused that intelligence." McClellan stated that declassifying the NIE "was very much in the public interest." That's right, he's claiming that disclosing sensitive intelligence to the press is the right way to combat public debate about the administration's shaping of intelligence to justify invading Iraq.

Under Bush logic, exposing a sensitive NIE to the press is the right way to respond to certain facets of the public discovering his perpetration of fraud against the American people. Yet, when someone in his administration leaks the existence of NSA espionage of American's phone lines and email that he approved, Bush claims that national security was put at risk, as if al Qaeda operatives would never have otherwise suspected that intelligence agents might be eavesdropping on their communications.

The Establishment Clause

The Supreme Court got one decision right last month. They got the other one wrong (at least in my opinion). Of course the court in Texas should be able to exhibit the Ten Commandments. But the court in Kentucky should also be able to display them. However, the Court came to both conclusions for the wrong reasons.

Call me a strict constitutionalist, but I believe that it does not matter what Jefferson wrote in his letter to the Danbury Baptists regarding the wall of separation between church and state. All that matters is what it says in the Constitution: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

To me, the operative words are "shall make no law." Therefore, when Justice Moore displayed the Ten Commandments in his courthouse (in the more [in]famous case that occurred in Alabama), I had no problem with it. After all, no law was made by Congress related to the display. In my totally moot opinion, I thought it was a bad decision when Judge Thompson ordered the display removed and also when the 11th U.S. Circuit Court of Appeals upheld the decision (although I thought it was right for them to remove Moore from the bench, not because of anything having to do with religion, but simply because he defied court orders).

Who would ever have imagined that Justice Clarence Thomas would agree with me today? In his view, when the Establishment Clause of the First Amendment says, "Congress shall make no law respecting an establishment of religion," it means exactly that and nothing more than that. Congress "shall make no law," but the states may do so, if they choose to. "This case would be easy," Thomas said, if the court would simply "return to the original meaning of the [Establishment] Clause."

On the other hand, I oppose the words "under God" being part of the Pledge of Allegiance (and I don't utter them when I make the Pledge). I agree with the Federal appeals court that ruled that reciting the Pledge of Allegiance in public schools is unconstitutional. The words "under God" were not part of the Pledge for most of its history. It wasn't until 1954, when Congress made a law adding the words to the Pledge (and again in 2002 when Congress made another law ratifying it) that they became part of the pledge. The key here, in my moot opinion, is that Congress had to make a law for the religious establishment to come into effect.

The reason I repeat "my moot opinion" is because it's irrelevant what I think or what Jefferson and the other Founding Fathers thought. They intended the Constitution to be a living document capable of governing a dynamic society over the centuries. The Constitution gives the Supreme Court the power to make final decisions of constitutionality according to the context of the times in which it makes its decisions. That's why I'm so disappointed with the Supreme Court in effect "punting" when the decision came to them. I can't see how, if they chose to hear the case, a majority could have decided any way other than to find the words unconstitutional.

The same principles apply to today's decision. The court in Texas should be able to exhibit the Ten Commandments simply because Congress had no role in establishing the exhibit. Its historical nature is irrelevant -- at least in my opinion, but not the Court's. Likewise, the court in Kentucky should also be able to display them because there is no legislation formalizing the Ten Commandments as part of that court's law. However, the court disagrees with me on this matter, too.

That being said, I guess all of this writing was just a big waste of time. After all, as I said, my opinion is moot. Our Constitution gives the Supreme Court the authority to interpret it, not me. Therefore, I'll defer to the Court's decision, whether I like it or not.