Adam Serwer

The Weirdness Of The Charges Against Omar Khadr.

Glenn Greenwald tweeted earlier about the oddness of the charges against Canadian national and Gitmo detainee Omar Khadr , who is accused of throwing the grenade the killed U.S. Army Sergeant First Class Christopher Speer during a firefight in Afghanistan in 2002, when Khadr was 15. Aside from the obvious moral issues with trying someone for an alleged crime committed on a battlefield when they weren't old enough to drive, vote, drink alcohol, or consent to sex in the United States, there's the additional weirdness of trying the killing as a "war crime." Human-rights groups say no one has ever before been tried for a war crime merely for the act of killing the other side's soldiers in combat, but the government maintains that Khadr is an "unprivileged enemy belligerent," so the charge is appropriate. It's a really weird argument. By trying Khadr in a military commission, they're essentially making him a soldier, but they're saying the reason his alleged killing of Speer was a war...

NYT On The So-Called Ground Zero Mosque.

The New York Times has a new piece up on Faisal Rauf and Daisy Khan , the couple behind the proposed Islamic community center near Ground Zero that has brought rank Islamophobia into the Republican mainstream: Daisy Khan, who immigrated, also as a teenager, to Jericho, on Long Island, from Kashmir, married Imam Feisal in 1997. They founded a Sufi organization advocating melding Islamic observance with women’s rights and modernity. After 9/11 they raised their profile, renaming the group the American Society for Muslim Advancement and focusing on connecting Muslims and wider American society. They spoke out against religious violence; the imam advised the F.B.I.; his wife joined the board of the 9/11 memorial and museum. These are the people whom Bill Kristol and Liz Cheney smeared as "connected to terrorism" and having "dubious ties to radical Islamist organizations," whom National Review falsely portrayed as unwilling to give a "full throated denunciation of terrorism" and Newt...

Andrew Napolitano On The 14th Amendment.

Andrew Napolitano responding to legislative proposals to end birthright citizenship: No! That would not be a a way around it. There is no way to get around the 14th amendment. These people took an oath to uphold the Constitution whether they agree with it or not! All of it not part of it! The Supreme Court has said you cannot take privileges or benefits away from a child because of a crime committed by the parent. Therefore everybody born here is an American citizen, no matter what their parents’ status was at their birth. That said, it's worth distinguishing between cynical efforts to pass unconstitutional legislation ending birthright citizenship and cynical efforts to pass a new amendment to the Constitution ending birthright citizenship. The latter is the legit way to do it, although that doesn't mean it's a good idea or any more likely to happen.

Fallout.

Ann Friedman on identity politics . "A Welfare Check and a Voting Card." Don't get mad, it's the law . Radical cleric opposes religious freedom. Jason Leopold vs. Robert Gibbs and Obama 's unfulfilled promises on Twitter. Giving state land to the Cordoba Initiative sounds about as objectionable as the state preventing them from building where they want.

When We Said Religious Freedom, We Meant...

Josh Gerstein points out that there is a federal law passed in 2000, the Religious Land Use and Institutionalized Persons Act, that, as Don Byrd at the Baptist Joint Committee for Religious Liberty explains , "prohibits government from burdening religious activity through land use restrictions, unless there is a 'compelling state interest' to do so and that interest is achieved with the least restrictive means possible." That would seem to preclude any government intervention specifically aimed at keeping the proposed Islamic center near Ground Zero from being built. The bill was introduced by Republican Sen. Orrin Hatch and passed with bipartisan support and was passed by unanimous consent in both houses. One of the co-sponsors was Sen. Joseph Lieberman , who recently said of the proposed Park 51 project, "I don't know enough to say that it ought to be prohibited. ... But frankly I've heard enough about it and read enough about it that I wish somebody in New York would just put the...

Discrimination And Achievement.

Jamelle Bouie responds to a recent paper by Roland Fryer that finds "discrimination isn't as nearly as important to explaining racial inequality as it once was." That might seem obvious, but let Bouie elaborate: "Greatly reduced" is a bit of an understatement; if Fryer's analysis is correct, educational achievement and "pre-market skills" account for a huge portion of the racial gap between blacks, whites, and Hispanics. For example, after accounting for educational achievement, the pay gap between black and white workers drops from 39.4 percent to 10.9 percent for men, and drops from 13.1 percent lower to 12.7 percent higher for black women. The same goes for the racial gap in unemployment, incarceration, and physical health; once educational achievement is taken into account, the wide gaps either narrow or disappear completely. And while Fryer doesn't explicitly go into this, we can look to the legacy of institutionalized racism to find the roots of the achievement gap. In a...

"Factual Misstatements."

Eugene Volokh notes that the MTA has accepted this ad criticizing the proposed Islamic community center near Ground Zero: Volokh writes: Under current First Amendment doctrine, once the MTA opens up its space for a wide range of ads, it can’t then discriminate based on viewpoint among ads; and the quoted rationale given does indeed stem from the ad’s viewpoint, which the MTA perceives as unfair and inaccurate. (If the MTA had a policy barring verifiable factual misstatements, that would likely be constitutional. But it seems pretty clear that a reasonable observer would perceive the ad as expressing an opinion about the wrongness of the mosque plan, or an opinion about the likely wrongness of the motivations of some of the mosque supporters, or both.) In any event, there’s no First Amendment controversy now, given that the MTA has accepted the ad. Of course, there is a factual misstatement in the ad. The developers haven't even raised the money to build the thing yet. I called the...

Being HIV Positive Is Not A Crime.

Corrections wonk Sara Mayeux is stunned over the conservative blogosphere's embrace of South Carolina's draconian policy of segregating HIV-positive inmates from the general population, which not only violates medical privacy rights but practically treats being HIV-positive as a de-facto crime in and of itself. As I wrote yesterday, the policy of segregating HIV-positive prisoners isn't some vanguard policy innovation, it's a throwback to the days when Americans knew little about AIDS. Not only does the World Health Organization disapprove of this type of policy, but only two of the 48 state and federal prison jurisdictions that had such policies in 1985 still retain them. Nevertheless, this was the reaction over at the Daily Caller: That's some trenchant policy analysis. Nothing says "individual liberty" like forced medical testing, involuntary quarantine, and making your medical information public knowledge. Either 48 states in the union also "want you to get AIDS and die" or South...

Omar Khadr: A Lose-Lose Situation.

The trial of Gitmo detainee Omar Khadr , the first of the administration's revised military commissions, was always going to be a lose-lose situation if it ever actually took place. Khadr is accused of throwing the grenade that killed U.S. Army Sergeant First Class Christopher Speer during a firefight in Afghanistan in 2002, when he was 15 years old. Khadr's age, and the fact that his father was a known al-Qaeda financier, already raises questions about coercion and culpability, and human-rights groups have criticized the U.S. for putting on trial someone who was a minor at the time of the alleged offense, particularly one who was subject to abusive treatment during his time in U.S. custody. Killing an enemy soldier in combat has not been previously prosecuted as a war crime. The administration's national-security critics have already hinted at their intention to use a potential acquittal as a sign of the administration's weakness, and Khadr refused a plea deal, removing the...

Fallout.

It's an election year; let's dismantle the Constitution. Marcy Wheeler on Bagram and habeas. Eugene Volokh on Park 51. Republicans are rolling out the epithets on immigration to push birthright-citizenship repeal. Glenn Greenwald on the digital-surveillance state.

Marriage And Loving.

Andrew Sullivan on Ross Douthat 's column today: Ross' core argument is that "lifelong heterosexual monogamy at its best can offer something distinctive and remarkable — a microcosm of civilization, and an organic connection between human generations — that makes it worthy of distinctive recognition and support." I'm going to repeat what I have said before: I don't disagree with this at all. I remain in awe of the heterosexual life-long coupling that produces new human life. There is a miraculous, sacred, awe-inspiring aspect to it. I understand why this is a Sacrament, and have no interest in being included in such a Sacrament since it is premised on the very Thomist arguments Ross puts forward. I can't speak to the Catholic view of marriage, but I will say this: My parents met in the 1950s when they were teenagers in a small town in upstate New York. They married in their early 20s, and went on to raise two kids. In many ways they are the embodiment of Douthat's religiously inspired...

At Least There Were No Black Panthers Involved.

Via Rick Hasen , election problems in Tennessee last week: MEMPHIS, TN— A computer glitch caused problems for as many as 3,000 Shelby County voters when the polls opened election day. According to Election Commissioner, Bill Giannini electronic equipment used to check voters had the wrong information loaded into them. Instead of showing early voters for this election, poll workers were given early voting lists from the May primary. “We have not been able to determine with certainty why this issue occurred,” said Giannini, “We as a staff will look at why this occurred, so it won’t happen again.” Congressional Republicans will demand investigations to ensure that eligible voter lists are handled correctly, right? Around 3,000 people were disenfranchised here. I know that's not as important as the zero disenfranchised by the New Black Panther Party in 2008 but...

The "Responsible Argument" Against The Park 51 Project.

Greg Sargent on the "responsible" argument against the proposed Islamic community center near Ground Zero: The only way to see this as a provocative act is to buy into the notion that the building of a center devoted to Islamic heritage is, by accident or by design, tantamount to rubbing the victims' noses into what happened on 9/11 -- that it is inescapably a "victory mosque." To believe this is to legitimize -- wittingly or not -- the world view of the center's bigoted foes. In fact, it is not legitimate to see the building of a center devoted to the study of Islam near Ground Zero as an inherently provocative act. You can't endorse the idea that it's provocative to study the heritage of Islam in the vicinity of Ground Zero while simultaneously arguing that the bigots are wrong to conflate the 9/11 attacks with Islam as a whole. Period. It's not a coherent or sustainable argument. Despite the notion that the presence of Muslims near Ground Zero is uniquely offensive, we've seen a...

More "Extremism" From The Civil Rights Division.

Two states in the union, South Carolina and Alabama, segregate their HIV-positive inmates, a policy that is essentially a compound punishment on top of whatever sentence they've already received. They're forced to wear markers identifying their status, they're denied access to many of the same privileges and programs that inmates who aren't HIV positive have, including those that can contribute eligibility for early release. Being HIV positive means that they're forced to live under maximum-security conditions regardless of the severity of their crimes. A thief and a murderer are treated the same if the thief is HIV positive, where otherwise the thief might have been eligible for imprisonment in say, a medium-security facility. In addition to the individual rights violated by involuntary testing, an individual's status is also involuntarily disclosed to their friends and family members upon their placement in a segregated facility. These practices were all detailed in a joint ACLU-...

Islamophobia And Anti-Communism.

Steve Kornacki draws the same parallel that I've drawn in the past between Islamophobia and overzealous anti-communism, and also notes that despite George W. Bush 's conciliatory rhetoric on Islam, he nevertheless provided credibility to Islamophobes like Daniel Pipes who get outraged over Muslim-American women winning beauty contests. That Miller, who supports abortion and gay rights, found common ground with Robertson on Bush’s war on terror illustrates the political power of Islamophobia for the GOP. In many ways, it has become the glue that anti-Communism used to be: a demon that fundamentalist Christians and white ethnic voters from outside the Bible Belt (Reagan Democrats used to be the term for them) can both agree to curse. The one thing I would add is that the fact that conservatives approach Islam the way they approached communism does not mean that they are the same thing. Conservatives benefit from a facile comparison between the extremist ideology of al-Qaeda and...

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