Diary Of a Half Assed Revolutionary
Pot and Patriotism

Raich v. Ashcroft - The Supreme Court at its most entertaining

I know pot politics is the first flag of a brainless liberal, but ignoring that- the Supreme Court case on medical marijuana is hilarious and has more important implications than California legalization (arguably...depending on your priorities). The hilarity arises from the main constitutional line of argument, which falls under the commerce clause. The commerce clause says that Congress has the power to regulate interstate commerce. Interpretation of the strength of this power has fluctuated over the years. Progressive parties, in my gross generalization, favor the power because it's the main tool in regulating industry. Republicans (again grossly general) are for deregulation (guess I can't call them fascist for that, can I?) and tend to be against the strengthening of federalism which this clause has been used for in the past. Bush, being Bush, is big on deregulation.

Now to the pot.

Raich, I don't feel like looking up her first name, is as absurdly sick and sympathetic as any woman can be. She eats and smokes pot alllll day long, and all of it is from charity -- she doesn't buy pot. Her lawyers argue that since there is no exchange of money and no interstate transactions, her actions are not encompassed by the commerce clause, which is the clause Congress uses to support this federal drugs-bad law.

Ashcroft argues that it does because local drug supplies effect national ones. He cites the case Wickard v. Filburn. In this case, from the 40s, this farmer, Filburn, grew more wheat than he was allowed to under federal quotas. But he didn't sell it; he used it to feed his cows. He argued the pot argument ...against a progressive New Deal Court, and he lost. The Court declared that local supply does effect national supply. So there.

The twist is that Bush and family hate Wickard v. Filburn and so do their favorite supreme court justices. My law professor, who is admittedly apocalyptic, claims it'll be one of the main cases the administration will try to overthrow after they get another justice on. All (again gross generalblah) the conservative justices, the ones most disaproving of reefer madness, are proponents of state's rights and strict limits to federal regulations. And, all the bleeding liberal darlings, sympathetic to medical smoking, support Wickard levels of federal regulatory power.

My Cynical Theory: If I were Bush, I'd take a minor ideological fall for medical marijuana and while the potheads were celebrating, I'd take the deregulatin' hole the case made and rip it wide open.

Relevant links: everything is in http://blogs.salon.com/0002762/stories/2004/11/23/raichVAshcroftAGuideToTheS.html

The Iraqi Elections

I can't think of any sort of lead in so just read this
US to rest of world: "You're next...bitches"

Seymour Hersh of the New Yorker is reporting that the President Bush has

"signed a series of findings and executive orders authorizing secret commando groups and other Special Forces units to conduct covert operations against suspected terrorist targets in as many as ten nations in the Middle East and South Asia."

The Bush administration is also refusing to get involved in ongoing negotiations with Iran and EU members. The refusal seems to largely stem from the lack of claws in negotiations in that EU members are offer economic perks and aid packages in exchange for cooperation. The US seems to feel that a threat of military action is the only way to get Iran to comply.

The Pentagon denounced the article saying it was "so riddled with errors of fundamental fact that the credibility of his entire piece is destroyed." Which means its probably at least half true.

Hersh is of course famous for breaking the story of the May Lai massacre and is a highly respected and Pulitzer winning journalist and not one I would suspect is prone to "errors of fundamental fact."

Relevant links:

The New Yorker: Fact (Note: the address of this article will probably change when the next New Yorker comes out, if the link doesn't work for you just email me and I'll find it)

Bush Won't Rule Out Action Against Iran Over Nukes
Pentagon Faults Iran Raid Report
The perspective I'd been looking for.

I was signing in this morning to post something about a subject I can no longer recall because I came across this, a weblog done by a girl in Baghdad called "Baghdad Burning" in which she describes the situation on the ground in Baghdad, whenever she has electricity that is. I feel rather foolish for somehow not having come across this sooner given that it is the first google result for Baghdad, but regardless it provides a perspective of the occupation that I and iI'm sure many others had felt was missing from discussions regarding our occupation of Iraq.

Relevant links:
Riverbend Blog
Torture your "representatives" on the hill over Gonzales: Part 1 - The Bybee Memo

The Senate Judiciary Committee last week held a hearing (realplayer) regarding the confirmation of Counsel to the President and first class douchebag (that might not be part of his official title, I'll have to check on it) Alberto Gonzales. Gonzales has come under increasing scrutiny over his stance on the use of torture in the "war on terror". Much of the controversy stems from a memo he wrote to the President to advise him on US obligations in Afghanistan with respect to the Geneva Conventions. This memo was based on an opinion given by then Assistant Attorney General Jay S. Bybee in a memo written at the request of Gonzales regarding the "application of treaties and laws to al Qaeda and Taliban detainees."

In this and other posts I will discuss some aspects of the Bybee memo and the justifications it gives for allowing terrorists and Taliban members to fall into a sort of legal black hole where they are afforded no legal protections of any sort. I will discuss the memo Gonzales wrote to the President in another post.

I should first point out that many of these justifications are valid interpretations of the Geneva Conventions because they were not designed with these sorts of conflicts in mind as they would have been difficult to foresee at the time when they were written. However to even begin such an analysis is to presume that actions are going to be undertake which would be considered a "grave breach" of the Geneva Conventions. If one had no intention of violating the conventions then an analysis of their application would be moot, so the logical conclusion is that these memos were written specifically to justify actions which would be deemed as a grave breach if the Conventions applied. A grave breach is defined along these lines for the third Geneva Convention: "wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, compelling a prisoner of war to serve in the forces of the hostile Power, or wilfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention."

The Bybee memo takes a strict interpretation of the Geneva Conventions and states the fact that, as Gonzales points out in his memo to the President, a "war on terror" is indeed a "new kind of war", one which regrettably was not explicitly spelled out in the conventions (or the War Crimes Act which criminalizes "war crimes", as defined by the Geneva Conventions and various other treaties, under US law). The conventions unfortunately have strict terms for who is a POW and they are laid out in article IV of the third Geneva Convention:

(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.

(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions: (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war.

(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

(4) Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization, from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

(5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.

(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

And as the memo points out none of these definitions accurately describes a group such as al Qaeda or any terrorist organization. Such an organization does not ally itself with any one government and as such section 1 is not applicable. Such a group would also not meet the definition in any of the other subsections. In addition to this the US itself is not bound by any of the Geneva Conventions (which since I'm getting sick of typing will be "GC's" from now on) with regards to al Qaeda since as is stated in article 2 (referred to as common article 2 since it appears in all the GC's):

the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

Since al Queda is not a "High Contracting Party" the GC's do not apply.

The memo then moves on to discuss Common Article 3 which has more recently come to be interpreted to be a catch all of sorts for conflict not of "an international character" as the Bybee memo points out. However the point is made in the memo that the previous and more literal interpretation of common article 3 is that it applies in cases of civil war or similar armed domestic conflicts. The memo also points out that even if it could be interpreted that article 3 was applicable in the case of al Qaeda the article only lays out protections for

Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

and has no provisions in place for an equivalent to POW's. In addition the article states that "The application of the preceding provisions shall not affect the legal status of the Parties to the conflict." So even if the article did apply to the conflict it does not change the legal status of any al Qaeda members captured and they would still be without POW status.

This ends the portion of the memo which speaks about al Qaeda. The remaining 27 pages or so are devoted to discussing the President's authority to suspend parts of or whole treaties and what he feels are justifications for suspending parts or all of the GC's with regard to the Taliban. I'll only make one comment about the remainder of the memo in this post and that is that it has been my experience that the more one has to justify one's opinion the less correct it usually is.

Part two will discuss the remaining portion of the Bybee memo and also Gonzales' advice to the President about the implications of the memo and ways in which one might "torture" your "representatives" about Gonzales' appointment.
This just in from our "This is what I pay taxes for? Jesus Christ!" department

From Reuters:

The U.S. force that scoured Iraq for weapons of mass destruction -- cited by President Bush as justification for war -- has abandoned its long and fruitless hunt, U.S. officials said on Wednesday.

Wait a minute...we were still looking? I thought this bullshit would have been concluded months ago. I guess Bush was really really hoping that for once he wouldn't look like a total douchebag.

"I felt like we would find weapons of mass destruction ... like many -- many here in the United States, many around the world," Bush told ABC's Barbara Walters, according to excerpts from an interview airing on Friday.

"...many here in the United States..."? Where the hell do those people live? I'd really like to meet the people who were sitting at home night after night with their fingers crossed watching the news saying "I know we're going to find something, I just know it! Our President wouldn't have lied to us." I'd like to meet them just so I could punch them in the throat.

Sweet zombie Jesus I hope no one is that stupid.

Relevant links:
Reuters - U.S. Wraps Up Search for Banned Weapons in Iraq
Crossfire canceled

The New York Times is reporting (free registration required) that Crossfire is being canceled from the article:

"Mr. Klein specifically cited the criticism that the comedian Jon Stewart leveled at "Crossfire" when he was a guest on the program during the presidential campaign. Mr. Stewart said that ranting partisan political shows on cable were "hurting America."

Stewart's hilarious and on point attacks on the show and mainstream media in general have been mentioned here before and elsewhere. A video can be found here
I know there are ten million videos of Bush speaking dumb, but hey, there are more than ten million babies and EVERY LIFE IS PRECIOUS.

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