Sunday, May 31, 2009

Why the San Francisco Daily is More Conservative than San Francisco

Perhaps because of comments like these most popular comments on a story titled "GOP divided over how tough to be on Sotomayor":



This is the San Francisco Chronicle's new bread and butter. Presumably one of them lives in the Richmond, though it isn't clear that most of the right wing commenters actually live in the city. Even if they do, it is pretty obvious they are not representative of most people in San Francisco - a city where some major elections have come down to a Democrat versus a Green Pary candidate.

Tuesday, May 26, 2009

Cal Supreme Court: Separate But Equal Just Fine

The California Supreme Court declared today that separate but equal is acceptable for gays in California when it comes to marriage - indeed it is now enshrined, oddly enough, as an exception to our Equal Protection clause until voters decide to un-enshrine it through a popular vote. Voting was central to the whole case as the court tackled the question of whether a majority of Californians can amend the state constitution at the ballot box to deprive a suspect class of a fundamental right. The majority decided that 50% plus 1 person voting on election day could indeed take such a right away.

In California the initiative process allows a majority of voters to amend the constitution. Until Proposition 8, however, the people have never voted to take a fundamental right away from a suspect class. But for the U.S. Constitution, allowing such a thing would mean Californians could take fundamental rights away from Catholics, or African Americans, or women, simply through this initiative process and a majority vote. In most cases, the U.S. Constitution could be used to strike down any such act, but not in this case when the vote involves a right protected by the California constitution but not the federal constitution. Such rights, regardless of how fundamental and regardless of suspect classification, can simply be voted away by a majority. One wonders if a majority could even vote away the fundamental nature of certain rights or vote away the suspect class designation of any group, regardless of previous supreme court interpretations.

It looks like anything goes as long as it is not considered a revision to the constitution as opposed to an amendment, in which case more than a mere initiative and majority vote would be necessary. This distinction framed the court's opinion today: Proposition 8 was an amendment not a revision, and thus it is now part of the constitution that the court must interpret and enforce. But the court, giving its majority opinion through Chief Justice Ronald George, cobbles together precedent to define "revision" in a confusing and counter intuitive way.

In a nutshell, the test applied by the majority was that a revision to the constitution (as opposed to an amendment) involved "far reaching changes in the nature of our basic governmental plan." Here it is stated another way: revision is accomplished when an act "necessarily or inevitably will alter the basic governmental framework set forth in our Constitution." One example given by the majority was part of an amendment that was struck down because it included a section that required that the state constitution not provide criminal defendants with greater rights than the federal constitution. The court said this was a revision not an amendment because it vested "all judicial interpretive power, as to fundamental criminal defense rights, in the United States Supreme Court" as opposed to California courts.

I still don't really know what this means, but it may not matter because it isn't clear that precedent really constrains the court to this narrow and bizarre definition. The dissent says the following before going into its own interpretation:
The cases cited by the majority do indeed hold that a change to the Constitution that alters the structure or framework of government is a revision, but these cases do not, as the majority erroneously concludes, also stand for the inverse of this proposition: that a change to the Constitution that does not alter the structure or framework of the Constitution cannot constitute a revision and, thus, necessarily must be an amendment. The reason is simple. None of the cases cited by the majority considered this issue, because it was not raised.
Even the majority seemed to acknowledge that this interpretation of precedent may not be such a bright line, going out of its way to write that gays still have all the underlying rights and privileges of marriage, just not the designation of "marriage" and:
there is no need for us to consider whether a measure that actually deprives a minority group of the entire protection of a fundamental constitutional right or, even more sweepingly, leaves such a group vulnerable to public or private discrimination in all areas without legal recourse ... would constitute a constitutional revision under the provisions of the California Constitution.
Whether or not the court wants to leave such legal writing for future justices with a different more sweeping set of facts, this court actually has made the decision today by clearly limiting its definition of "constitutional revision."

The court had plenty of leeway to make a different argument. Namely, when the change is to the equal protection clause as it applies to a particular class, even a minor deprivation renders the positive right of equal protection little more than a privilege afforded only to those groups and for those rights a majority of Californians are willing to accept. Thus voting to limit such rights is a revision to the constitution not a mere amendment, and more process is required.

But what about expanding, rather than limiting, equal protection rights through a majority vote? The court addresses this:
... under petitioners’ approach, the people would have the ability — through the initiative process — to extend a constitutional right to a disfavored group that had not previously enjoyed that right, but the people would lack the power to undo or repeal that very same extension of rights through their exercise of the identical initiative process.
Heaven forbid! The court goes on ...
Again, neither the history of the provisions governing the making of changes to the California Constitution, nor the many past cases interpreting and applying those provisions, support petitioners’ assertion that the amendment/revision distinction properly should be understood as establishing such a “one-way street” or as mandating such a seemingly anomalous result.
"One way streets" in the law aren't that unusual - indeed the Chief Justice seemed to be following a "one way street" of legal precedent in the midst of a busy downtown clusterf*** with avenues heading in all directions. Equal protection implies protection, not a lack thereof, and it makes sense that narrowing who it applies to and/or under what circumstances it applies would require more judicial oversight. On the other hand, expanding those rights - giving them to more people or under more circumstances - doesn't raise a lot of cautionary red flags within the doctrine of equal protection and its history of protecting the rights of disfavored minorities.

In many ways, when we have expanded equal protection and provided new rights for people, whether at the federal or state level, we are really just finally acknowledging, as a people or as a state, rights that have existed (or should have existed) all along. We never should have denied the right to vote from black people or women. These are inalienable rights, and it just took some time for our government to formally recognize them. Would anyone argue that blacks have the right to vote now, but they should not have had the right to vote in 1860? Discovering those rights collectively usually is a one way street - once "discovered" only the truly ignorant would argue for going back.

We will move on to the next vote on same sex marriage; and equality for gays will be stronger when supported through the ballot box. Practically, that will make our movement stronger; and I favor a ground up approach to human rights over an elitist approach to human rights any day.

The main problem with the California initiative process isn't the voting, it's the money. People or organizations with lots of money can manipulate the voting process; if anyone denies this ask them why people raise money at all if it doesn't play a role (in my opinion a major role) in these initiative elections. It's also true that pure democracy, even without the influence of wealthy, powerful entities, still may require caution when rights for minorities are the issue; but I firmly believe the threat would be far less without that influence of power and wealth.

Regardless, I feel the democratic (litte "d") forces are moving forward and equality for gays is coming whether the California Supreme Court or the Mormons support it or not. That doesn't mean we should all just sit by and wait for it to happen (the other side will take advantage of such inaction); but we must grasp the momentum and make sure it moves us toward freedom.

Vote. March. Agitate. Tell your friends and family to do the same. The Separate but NOT Equal ruling by the Supreme Court of California was an awful opinion by the court that must be overturned. If the people of California have to do it, let's get to work!

Thursday, May 14, 2009

State Bar Should Discipline Torture Lawyer Haynes

My colleague, Sharon Adams, and I published the piece below in the San Francisco Chronicle today. The original can be found here. There is also a counter piece written by William T. Coleman Jr., an attorney with O'Melveny & Myers who served as the secretary of transportation in Gerald Ford's administration. It can be found here.

State Bar should discipline William J. Haynes

Carlos Villarreal,Sharon Adams

As legal professionals, we are aware of the high standards that all lawyers are expected to meet to remain members of the bar in good standing; and as legal professionals who believe strongly in human rights, we are particularly concerned with the role of the lawyers at the Department of Defense and the Justice Department in shaping and covering for the torture policies of the Bush administration.

For these reasons our organization, the Bay Area Chapter of the National Lawyers Guild, filed a complaint with the State Bar of California in March against former Department of Defense General Counsel William J. Haynes. Haynes is now registered-in-house counsel for the Chevron Corp. in San Ramon. Unfortunately, for the time being, the State Bar has declined to take action, preferring to forward our complaint to other bar associations where Haynes is registered. We plan to request an official review.

Haynes, unlike John C. Yoo, Jay Bybee and the other high-level lawyers involved in approving torture, is registered with the California bar. The facts implicating Haynes are damning and irrefutably stated in detail by a Senate Armed Services Committee report released last month.

Haynes' office at the Department of Defense sought out illegal interrogation techniques and resistance strategies in December 2001 from military experts. In October 2002, military personnel at Guantanamo Bay Detention Center requested approval from their chain of command to use techniques already practiced at the prison camp. In response, Haynes authored a cursory memo for Defense Secretary Donald Rumsfeld recommending approval of a variety of techniques, including using dogs and forced shaving of detainees.

Haynes never acknowledged that some of those techniques might violate international and domestic law - including the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Haynes also failed to mention strong concerns raised by all branches of the military.

During the time the Haynes memo was in effect, Mohamed al Kahtani was tortured, tainting the evidence against him and forcing a dismissal of all charges pending against him. Among other things, al Kahtani was forced to perform dog tricks, forced to urinate on himself, forced to stand naked, and forcibly shaved. In under two months, Rumsfeld rescinded the Haynes memo and convened a working group to analyze the legality of the harsh interrogation techniques.

Haynes directed the working group to consider as "authoritative" a memo from Justice Department lawyer Yoo. As the Senate report concluded: Haynes' action "blocked the Working Group from conducting a fair and complete legal analysis and resulted in a report that ... contained 'profound mistakes in its legal analysis.' "

These facts are in official reports and on the congressional record, so it is disappointing that the State Bar has decided to wait for other agencies and associations to take action first.

It is an important function of the State Bar to ensure that attorneys meet particular standards of education and ethics. Thousands of attorneys across the country face consequences up to disbarment for actions that do not come close to causing the degree of harm caused by Haynes. He and the other torture lawyers wielded great power with little regard for ethical and legal standards. Their actions led directly to the barbarity of torture and have so far helped shield the various actors from facing consequences for their actions.

Haynes now works for a major oil corporation that has benefited from American foreign policy, and has been accused of its own human rights violations around the world. He could easily transition into a future administration in Washington. The fact that his legal work could still do damage is obvious.

Now that the State Bar of California's chief trial counsel has punted the matter, it is up to the Audit and Review Unit to ensure the State Bar fulfills its role to protect the public from lawyers like Haynes. As Californians we must demand that it conduct a proper investigation of our complaint, revoke Haynes' status as registered-in-house-counsel and apply other appropriate discipline.

Carlos Villarreal is the executive director of the National Lawyers Guild San Francisco Bay Area Chapter. Sharon Adams is an attorney in Berkeley and a member of the chapter's executive board.

Saturday, May 09, 2009

Pointless Capitalism: The Credit Reporting Industry

Yesterday I spent 20 minutes canceling my triple advantage freecreditreport.com membership. You can sign up pretty easily online (sometimes without knowing if you don't read the fine print), but to cancel you have to call, wait on hold, respond to various arguments about why you should not cancel, reject a final offer of a 50% discount for one year, and then wait for the cancellation to go through. Plus, be sure to look for the email confirmation.

Just a relatively small example of how much of our resources and human potential we use on matters that are absolutely pointless. Capitalism's superstructure is really a huge waste of time and brainpower, and sometimes creativity (though not necessarily in the realm of the credit monitoring industry).

As consumers in a capitalist world we now have these agencies that assign us credit scores and produce credit reports. That surely takes a certain amount of time and energy on its own. Then we have other businesses that take those reports and send people emails and alerts about them. Those businesses need advertisers - the freecreditreport.com commercials with the dudes singing about their crappy cars and crappy jobs are pretty ubiquitous. They need insurance and banking, and probably have frequent meetings with representatives from both industries. And of course they need telemarketers to convince people not to cancel, among other things. Meanwhile, I, and millions of others no doubt, waste millions of productive hours (collectively) waiting on the phone just to halt a monthly fee.

Yet the credit monitoring industry doesn't really do anything meaningful. It doesn't produce art or expand our understanding as human beings. It doesn't produce any material goods that directly sustain us or meet our immediate human needs. Why can't we just see our credit reports whenever we want without paying anyone anything? They're obviously just sitting somewhere in cyberspace waiting for us to pay someone to unlock them for our viewing pleasure. We can get a free credit report once a year at annualcreditreport.com apparently, but we can't check on whether it is being updated on a daily basis; and as sad as it is, that can be helpful for navigating the world as it presently stands if we someday hope to retire with a roof over our heads and to live into old age with a minimum of suffering.

The money that comes from our labor is sucked into this industry and shuffled around a bit, making a few people rich and providing a lot of other people with salaries that are no doubt sucked into other pointless industries. The people in this industry could be spending their time feeding the hungry, producing art, cleaning streets, building parks, caring for foster children, or giving me a massage - which I need a lot more than an email telling me that my credit report has changed (only to find out that one of the credit reporting companies finally figured out that my address changed a few months ago - there goes another 10 minutes of my time).

By the way what is your credit score? I mean, tell me about yourself.