Wednesday, December 30, 2009

There Is Much To Be Said For The Law; How About Enforcing It?

There Is Much To Be Said For The Law; How About Enforcing It?


Tuesday, December 29, 2009

Military Commission Trials: Sources of Rights

The Fifth Amendment to the Constitution provides that “no person shall be ... deprived of life, liberty, or property, without due process of law.” Due process includes the opportunity to be heard whenever the government places any of these fundamental liberties at stake. The Constitution contains other explicit rights applicable to various stages of a criminal prosecution. Criminal proceedings provide both the opportunity to contest guilt and to challenge the government’s conduct that may have violated the rights of the accused. The system of procedural rules used to conduct a criminal hearing, therefore, serves as a safeguard against violations of constitutional rights that take place outside the courtroom, for example, during arrests and interrogations.


The Bill of Rights applies to all citizens of the United States and all aliens within the United States.10 However, the methods of application of constitutional rights, in particular the remedies available to those whose rights might have been violated, may differ depending on the severity of the punitive measure the government seeks to take and the entity deciding the case. The jurisdiction of various entities to try a person accused of a crime could have profound effect on the procedural rights of the accused. The type of judicial review available also varies and may be crucial to the outcome.

International law also contains some basic guarantees of human rights, including rights of criminal defendants and prisoners. Treaties to which the United States is a party are expressly made a part of the law of the land by the Supremacy Clause of the Constitution11 and may be codified through implementing legislation,12 or in some instances, may be directly enforceable by the judiciary.13 International law is incorporated into U.S. law,14 but does not take precedence over statute. The law of war, a subset of international law, applies to cases arising from armed conflicts (i.e., war crimes).15 It remains unclear how the law of war applies to the current hostilities involving non-state terrorists, and the nature of the rights due to accused terrorist/war criminals may depend in part on their status under the Geneva Conventions. The Supreme Court has ruled that Al Qaeda fighters are entitled at least to the baseline protections applicable under Common Article 3 of the Geneva Conventions,16 which includes protection from the “passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”17


10 Zadyvydas v. Davis, 533 U.S. 678, 693 (2001). ("the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary or permanent”); Wong Wing v.United States, 163 U.S. 228, 238 (1896) ("all persons within the territory of the United States are entitled to the protection guarantied by [the Fifth and Sixth Amendments], and … aliens shall not be held to answer for a capital or other infamous crime, unless on a presentment or indictment of a grand jury, nor be deprived of life, liberty, or property without due process of law”).

11 U.S. CONST. Art. VI (“[A]ll Treaties ... shall be the Supreme Law of the Land; ...”).

12 See, e.g. 18 U.S.C. § 2441 (War Crimes Act).

13 Treaty provisions that are self-executing are binding on the courts in the absence of implementing legislation. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS § 113 (1987). Most human rights treaties, however, are not likely to be held self-executing.

14 Id. § 111.

15 For a brief explanation of the sources of the law of war, see generally CRS Report RL31191, Terrorism and the Law of War: Trying Terrorists as War Criminals before Military Commissions, by Jennifer K. Elsea.

16 Hamdan v. Rumsfeld, 548 U.S. 557, 630 (2006).

17 The Geneva Convention Relative to the Treatment of Prisoners of War, August 12, 1949, art. 3 § 1(d), 6 U.S.T.3317). The identical provision is included in each of the four Geneva Conventions and applies to any “conflict not of an international character.” The majority declined to accept the President’s interpretation of Common Article 3 as inapplicable to the conflict with Al Qaeda and interpreted the phrase “in contradistinction to a conflict between

nations,” which the Geneva Conventions designate a “conflict of international character.”

Posted by - at 1:09 PM

Labels: law

Everybody Hates Alex
Boston Globe
A few months ago I wrote a column about Dick Cheney, whom I do not revile. I did call him a political trickster, and that was too much for reader Marcel ...

 With Yemen As Base For Al Qaeda, Afghanistan Deteriorates
AMERICAblog (blog)

by Joe Sudbay (DC) on 12/29/2009 08:25:00 AM I know this is on Obama's plate now, but for eight years, Bush and Cheney ignored the war in Afghanistan to ... See all stories on this topic

Who's To Blame For Ex-Gitmo Prisoners Behind Terror Plot?

By Heather Horn on December 29, 2009 10:12am

Two Al Qaeda leaders thought to be behind the Flight 253 terror plot were former Guantanamo prison, sending off a round of finger-pointing. The detainees in question were released in November 2007 to enter "an 'art therapy rehabilitation program,'" as ABC News reports. While the detainees were released under Bush, liberals have often advocated for the release of detainees as well.

The Richmonder: Republicans Weak On Terrorism! Bush And Cheney ...
By JC Wilmore
Let's get this perfectly straight and clear in our minds: Dick Cheney, self-appointed know-it-all on all things national security, signed off on the release of two Saudi Arabians in 2007 who later went on to plan and take part in ...
The Richmonder -

  • Good One, Republicans  At left-leaning Americablog, John Aravosis suggests "Mr. Cheney will have some explaining to do." He sneers at "Republicans [who] have a problem with President Obama wanting to try suspected terrorists in US courts. Maybe if we promise the maximum sentence will be 'art therapy,' the Republicans will come on board."
  • Will Cheney Finally Go Away Now?  BarbinMD of the liberal Daily Kos wonders if Dick Cheney "will ... again be booked on Fox News to peddle more criticism of President Obama, or [if] ... this little 'oops' moment [will] mean that Dick is slithering back to his undisclosed location."
  • Don't Let This Mess Up Prisoner Release Plans  "It's inevitable," begins Jeralyn at TalkLeft, "some of the released Guantanamo detainees may become militant or revert to militantism, particularly when some were tortured and all were subjected to overly harsh interrogation methods and conditions of confinement. It's a fallacy to say most of them will. Refusing to release remaining detainees with no demonstrated ties to terrorism would be a mistake."
  • Only More of the Same Coming  "Thanks to Obama's progressive view," writes conservative blogger Dan Riehl, "we're looking to send up to 80 Gitmo detainees back to Yemen? Will we provide them with coloring books, or perhaps decoupage supplies?"
  • Thank You, Liberals  William Teach of right-wing blog Stop the ACLU openly blames liberals for the event: "If the Left weren't such raving wackjobs," he writes, apparently failing to focus on the November, 2007 date of the terrorists' release,  "... these folks would still be sitting at Club Gitmo."
  • Less Partisan Takes  Hot Air's Allahpundit doesn't let either the previous nor the current administration off the hook: "at least The One has learned from Bush's terrible folly here, right? Wrong." He wonders what Plan B should be for remaining detainees. Charles Johnson of Little Green Footballs has an idea: try them in civilian court. Saying that, until now, he's been undecided on the notion, Johnson declares, "I have a lot more faith in the American criminal justice system than I do in Saudi Arabia’s 'art therapy' program."

Yoo Never Met Bush but Would Recommend He Torture People All Over Again
The Washington Independent
former Deputy Assistant Attorney General John Yoo tells Deborah Solomon that he never met President George W. Bush or Vice President Dick Cheney, ...See all stories on this topic

Welcome to Orwell’s World 2010 By John Pilger

Posted on December 30, 2009 | By John Pilger
December 30, 2009 – “Information Clearing House

In Nineteen Eighty-Four, George Orwell described a superstate called Oceania, whose language of war inverted lies that “passed into history and became truth. ‘Who controls the past’, ran the Party slogan, ‘controls the future: who controls the present controls the past’.”

Barack Obama is the leader of a contemporary Oceania. In two speeches at the close of the decade, the Nobel Peace Prize winner affirmed that peace was no longer peace, but rather a permanent war that “extends well beyond Afghanistan and Pakistan” to “disorderly regions and diffuse enemies”. He called this “global security” and invited our gratitude. To the people of Afghanistan, which America has invaded and occupied, he said wittily: “We have no interest in occupying your country.”

In Oceania, truth and lies are indivisible. According to Obama, the American attack on Afghanistan in 2001 was authorised by the United Nations Security Council. There was no UN authority. He said the “the world” supported the invasion in the wake of 9/11 when, in truth, all but three of 37 countries surveyed by Gallup expressed overwhelming opposition. He said that America invaded Afghanistan “only after the Taliban refused to turn over [Osama] bin Laden”. In 2001, the Taliban tried three times to hand over bin Laden for trial, reported Pakistan’s military regime, and were ignored. Even Obama’s mystification of 9/11 as justification for his war is false. More than two months before the Twin Towers were attacked, the Pakistani foreign minister, Niaz Naik, was told by the Bush administration that an American military assault would take place by mid-October. The Taliban regime in Kabul, which the Clinton administration had secretly supported, was no longer regarded as “stable” enough to ensure America’s control over oil and gas pipelines to the Caspian Sea. It had to go.

Obama’s most audacious lie is that Afghanistan today is a “safe haven” for al-Qaeda’s attacks on the West. His own national security adviser, General James Jones, said in October that there were “fewer than 100” al-Qaeda in Afghanistan. According to US intelligence, 90 per cent of the Taliban are hardly Taliban at all, but “a tribal localised insurgency [who] see themselves as opposing the US because it is an occupying power”. The war is a fraud. Only the terminally gormless remain true to the Obama brand of “world peace”.

Beneath the surface, however, there is serious purpose. Under the disturbing General Stanley McCrystal, who gained distinction for his assassination squads in Iraq, the occupation of one of the most impoverished countries is a model for those “disorderly regions” of the world still beyond Oceania’s reach. This is a known as COIN, or counter-insurgency network, which draws together the military, aid organizations, psychologists, anthropologists, the media and public relations hirelings. Covered in jargon about winning hearts and minds, its aim is to pit one ethnic group against another and incite civil war: Tajiks and Uzbecks against Pashtuns.

The Americans did this in Iraq and destroyed a multi-ethnic society. They bribed and built walls between communities who had once inter-married, ethnically cleansing the Sunni and driving millions out of the country. The embedded media reported this as “peace”, and American academics bought by Washington and “security experts” briefed by the Pentagon appeared on the BBC to spread the good news. As in Nineteen Eighty-Four, the opposite was true.

Something similar is planned for Afghanistan. People are to be forced into “target areas” controlled by warlords bankrolled by the Americans and the opium trade. That these warlords are infamous for their barbarism is irrelevant. “We can live with that,” a Clinton-era diplomat said of the persecution of women in a “stable” Taliban-run Afghanistan. Favored western relief agencies, engineers and agricultural specialists will attend to the “humanitarian crisis” and so “secure” the subjugated tribal lands.

That is the theory. It worked after a fashion in Yugoslavia where the ethnic-sectarian partition wiped out a once peaceful society, but it failed in Vietnam where the CIA’s “strategic hamlet program” was designed to corral and divide the southern population and so defeat the Viet Cong — the Americans’ catch-all term for the resistance, similar to “Taliban”.

Behind much of this are the Israelis, who have long advised the Americans in both the Iraq and Afghanistan adventures. Ethnic-cleansing, wall-building, checkpoints, collective punishment and constant surveillance – these are claimed as Israeli innovations that have succeeded in stealing most of Palestine from its native people. And yet for all their suffering, the Palestinians have not been divided irrevocably and they endure as a nation against all odds.

The most telling forerunners of the Obama Plan, which the Nobel Peace Prize winner and his strange general and his PR men prefer we forget, are those that failed in Afghanistan itself. The British in the 19th century and the Soviets in the 20th century attempted to conquer that wild country by ethnic cleansing and were seen off, though after terrible bloodshed. Imperial cemeteries are their memorials. People power, sometimes baffling, often heroic, remains the seed beneath the snow, and invaders fear it.

“It was curious,” wrote Orwell in Nineteen Eighty-Four, “to think that the sky was the same for everybody, in Eurasia or Eastasia as well as here. And the people under the sky were also very much the same, everywhere, all over the world … people ignorant of one another’s existence, held apart by walls of hatred and lies, and yet almost exactly the same people who … were storing up in their hearts and bellies and muscles the power that would one day overturn the world.”             

Howard Zinn: On The Stupidity Of War (2007)

The Chilcot ‘Inquiry’: A Theatre Of The Absurd By William Bowles

Richard Engel: New Pentagon Report + Afghan Soldier Opens Fire, Kills Us Trooper

Afghanistan On Dandelion Salad

Meet The New Boss The Same As The Old Boss

Thoughts Of What We Have Been, Are And Perhaps Yet Can Become…


Monday, December 28, 2009

Right Wing Watch 2009 : Kyle’s Blog.

Right Wing Watch 2009 : Kyle’s Blog.


Stimulus Bill

2009: The Religious Right In a Nutshell

Submitted by Kyle on December 28, 2009 - 3:08pm

Earlier this year, I wrote a series of posts based upon a widespread right-wing lie alleging that the economic stimulus legislation signed into law by President Obama contained an "anti-Christian" provision that would "usher in a new era of religious censorship" and target Christians for discrimination.  We eventually produced our very first Right Wing Watch In Focus examining the Right's use of this lie in order to generate opposition to President Obama and his agenda.

In short, for weeks, the Right relentlessly claimed that the provision was unconstitutional and discriminatory until finally Sen. Jim DeMint took it up on the Senate floor and forced a vote on an amendment stripping the provision from the legislation - a vote which he lost. And then the Right used that vote to try and generate more outrage while pleading for donations. 

The group that got this whole thing started was the American Center for Law and Justice, which proclaimed at the time that "unless this provision is removed from the final stimulus package, we'll be in federal court challenging this discriminatory measure."

Well, the provision was not removed and the legislation passed and was signed more than ten months ago ... and yet the ACLJ never filed suit, nor has any other Religious Right group so much as mentioned it since its passage.

In essence, this entire charade perfectly encapsulates the method of operation for the Religious Right in 2009 and presumably for years to come:  generate a phony controversy, raise money off that phony controversy, scream and yell about the fact that nobody is taking this phony controversy seriously, make bold threats and declarations regarding this phony controversy, and then move on to generating new phony controversies and starting the entire process all over again.

Stimulus Bill Am I The Only One Who Remembers the "Anti-Christian" Stimulus Provision?

Submitted by Kyle on March 4, 2009 - 4:13pm

I am somewhat reluctant to bring this up again, mainly because it no longer seems to be newsworthy … but since that sort of proves the point I am trying to make, I feel compelled to revisit the “controversy” over the “anti-religious” provision that was included in the economic stimulus bill.

As we chronicled in depth a few weeks ago, the Religious Right was beside itself over a provision that they claimed would prohibit religious groups from using any university facility that is renovated or repaired with stimulus funding, which is blatantly untrue.  

After Sen. Jim DeMint failed to get the provision stripped from the bill, the Right screamed and yelled about this “discriminatory” and “anti-Christian” provision and threatened to “challenge this provision in federal court by filing suit.”

Yet the provision ended up in the final bill that was signed into law by President Obama in February and, since then, nobody on the Right has said anything about it.   

If it really is an unconstitutional provision that would punish “schools that allow spiritual activities in their facilities” and “confiscate the funds of both Christians and non-Christians and use them to force compliance with their anti-Christ agenda,” as they claimed, then why aren’t they challenging it in court?  More importantly, why have they all stopped talking about it?

Probably because they know that everything they were saying about this provision was simply untrue:

Tobin Grant, an associate professor of political science at Southern Illinois University, cites a 1971 Supreme Court decision in a recent article on Christianity Today. That ruling, Tilton v. Richardson, says that grants under the Higher Education Facilities Act of 1963 for non-religious school facilities do not violate the Establishment Clause of the First Amendment, which states that "Congress shall make no law respecting an establishment of religion."

According to Dr. Richard Yanikoski, president and CEO of the Association of Catholic Colleges and Universities, the provision limiting government funds to non-sectarian facilities is "nothing new and already the current practice when the federal government provides funding."

The funds can be used "for an education building or a science building but it cannot include explicit religious purposes," adds Dr. Yanikoski. "This is the government's interpretation of the separation of church and state.... certainly it is the case that in Catholic campuses, there are buildings of a religious nature... we would not expect the government to be funding that. Schools [looking to repair those buildings] will have to find funding from some place other than the government."

Grant similarly says in his article that the restriction is nothing unusual and has been part of federal policy in education funding for four decades.

"Nearly all buildings at religious colleges and universities would qualify for funding. The only facilities that would not qualify are chapels, church buildings, and others that are most often used for explicitly religious purposes. The key is to define the primary purpose of a facility. If its purpose is religious teaching or worship, then the building is ineligible. If the facility is used for classes, housing, or study, however, then it can be renovated using funds from the stimulus bill," he adds.

Of course, this is exactly what we were pointing out at the time that the Right was screeching about this provision, but it didn’t stop them from using it to rally their troops and gin up opposition to the legislation.

The ACLJ was the leading force behind this effort and declared that “unless this provision is removed from the final stimulus package, we'll be in federal court challenging this discriminatory measure.” 

Well, it has now been two weeks since Obama signed it into law and the ACLJ has not only not filed suit but has been utterly silent.  In fact, if you were relying on them to know what happened with the provision, you’d be under the mistaken impression that it was actually cut from the final version of the bill.

Apparently, the ACLJ thinks that it can set off this sort of phony controversy over a supposedly unconstitutional and discriminatory provision and whip its Religious Right allies into a frenzy of accusations and victimization to such an extent that it ends up on the floor of the US Senate, and then fall silent once everyone has figured out that they were lying all along.

And, actually, there is good reason for them to think that they can do just that - primarily because ginning up bogus controversies has been the Religious Right’s standard operating procedure for the last twenty-plus years.

The Provision Is Back, Yet The Right Says Nothing

Submitted by Kyle on February 17, 2009 - 11:32am

For the last few weeks, the Religious Right has been going on and on about a supposedly “anti-religious” provision first “discovered” by the American Center for Law and Justice.

Bogusly claiming that the provision would prohibit religious groups from using any university facility that is renovated or repaired with stimulus funding, the Right has been warning that it would lead to religious students being barred from campus and threatening to sue to get it declared unconstitutional through a restraining order.

But then last week, it was reported that the entire section regarding funding for institutions of higher education had been stripped from the bill in order to shrink its cost and the Right seemed content to proclaim victory and move on.

Well, the final version emerged from conference and was passed by both the House and Senate last week and is now awaiting President Obama’s signature today, and guess what?  Higher education funding was re-inserted and, along with it, so was this provision, though in slightly altered form:


(a) In General.--A public institution of higher education that receives funds under this title shall use the funds for education and general expenditures, and in such a way as to mitigate the need to raise tuition and fees for in-State    students, or for modernization, renovation, or repair of institution of higher education facilities that are primarily used for instruction, research, or student housing, including modernization, renovation, and repairs that are consistent with a recognized green building rating system.

(b) Prohibition.--An institution of higher education may not use funds received under this title to increase its endowment.

(c) Additional Prohibition.--No funds awarded under this title may be used for--
           (1) the maintenance of systems, equipment, or facilities;

           (2) modernization, renovation, or repair of stadiums or other facilities primarily used for athletic contests or exhibitions or other events for which admission is charged to the general public; or

           (3) modernization, renovation, or repair of facilities—

                     (A) used for sectarian instruction or religious worship; or

                     (B) in which a substantial portion of the functions of the facilities are      subsumed in a religious mission.

For all the Right’s screaming and yelling about this when the Senate refused to strip the provision from the bill, they have been oddly silent about the fact that it was re-inserted into the legislation during conference negotiations and is now about to become law.  As of this point, the ACLJ, Liberty Counsel, Traditional Values Coalition, and every other right-wing group that had been complaining about this for the last two weeks have said nothing.. 

Where is the outrage?  Where are the cries of “discrimination”?  Where are the promises of lawsuits?

If, when all is said and done, the Religious Right fails to file suit, that would be pretty shocking considering that they’ve spent the last two weeks railing against this provision as an unconstitutional attack on “religious activity at universities and colleges.”  If the Right, especially the ACLJ, does decide not to sue, that is pretty much all the evidence anyone could need that this was a phony “controversy” from the start, spread by people who fully knew that everything they were saying was simply untrue and ginned up only to try and throw a wrench into the legislative process in order to derail President Obama’s agenda.

The Provision Is Dead, The Zombie Lie Lumbers On

Submitted by Kyle on February 12, 2009 - 10:40am

Yesterday we reported that the "controversial" provision in the stimulus bill that we have been writing about for more than a week had been dropped because the section covering spending for higher education had been cut in order to shrink the cost of the legislation.

But, just because it is no longer part of the legislation, that apparently doesn't mean that the Religious Right is done complaining about it.

For instance, the Family Research Council continues to hammer away:

Today there is new evidence that liberals will use Obama's bill to usher in a new era of religious censorship, welfare, and universal health care. Despite Sen. Jim DeMint's (R-S.C.) best efforts, the religious discrimination component still exists in the bill, which punishes schools that allow spiritual activities in their facilities.

Rick Scarborough has also gotten in on the fun:

To put it simply, Christianity is being targeted for discrimination ... it is clear that the intended effect of this portion of the bill is two-fold. First, it discriminates against and minimizes the practice of religion. Second, it attempts to keep religious institutions from being the beneficiaries of federal dollars ... The radical secularists in America are using the power of the Federal government to confiscate the funds of both Christians and non-Christians and use them to force compliance with their anti-Christ agenda.

As has Lou Engle (via email):

There are countless Christian groups that sponsor events and activities on secular campuses all around the country. This small provision, buried so no one could find it, would pressure school administrators to ban these groups, effectively destroying their ability to conduct outreach and evangelization to students who hunger for it.

These very subtle moves by anti-family forces in Congress indicate their long-term strategy to drive religious groups off campus and out of the mainstream.

We should point out that, during the conference on the bill yesterday, there was some wrangling over the fact that spending for school modernization had been cut and that some sort of compromise was reached that puts at least some of that spending back in, so it might very well be that when the final version of the bill comes out, this provision will have been re-inserted.

Not that it matters really, because apparently the Right is going to continue to complain about this provision whether it is actually in the legislation or not


Is This Sorry Saga Finally Over?

Submitted by Kyle on February 11, 2009 - 12:22pm

The American Center for Law and Justice, which was entirely responsible for starting the “controversy” over a supposedly “anti-religious” provision in the stimulus bill, reports that the provision, along with many others, was cut from the legislation that passed the Senate earlier this week as part of the effort to shrink the bill’s size and price tag:

As you may know, the Senate voted and approved an economic stimulus package yesterday by a vote of 61-to-37. The version that was approved underwent dramatic budget-cutting representing billions of dollars cut from a wide variety of programs that were eliminated from the final version that was approved by the Senate. Among those programs cut, billions of dollars for colleges and universities, including the discriminatory provision that we opposed.

It’s unfortunate that the Senate lacked the courage to remove this provision because of its discriminatory nature. At the same time, though, we’re pleased it was eliminated - even if for budget-cutting reasons - from the final package that was approved.

Now, budget conferees are working to reconcile that Senate-approved version with the measure already passed by the House. What comes out of this process will be the final version that ultimately will be signed into law by President Obama. It’s our hope that this discriminatory provision will never see the light of day in this final version. We will keep you posted on developments.

Indeed, it looks like the ACLJ is correct. If you look at the version of the bill [PDF] passed by the Senate, this is what you see:


It’s disappointing to see the provision go, for a variety of reasons ... but mostly because it would have been fun to watch ACLJ’s lawsuit get laughed out of court.

Does Anyone Understand the Meaning of "Used"?

Submitted by Kyle on February 11, 2009 - 10:13am

Anyone who have been reading this blog over the last week knows, I have spent a great deal of time trying to knock down the misinformation swirling around regarding a provision in the stimulus bill that would prohibit funds for being used to upgrade or repair university facilities when said facilities function is primarily religious.

But, despite my efforts, this fraud keeps cropping up on right-wing website, with the Christian Coalition now spreading it and the Family Research Council continuing to peddle it:

First, we know that the current stimulus legislation in Congress is a disaster for the free market economy. But, did you know that there are limitations in the legislation against religious liberty? David French of Phi Beta Cons on National Review Online finds some disturbing facts restricting religious liberty within the stimulus legislation.

The Higher Education, Modernization and Renovation component of the bill requires that the money allocated in the stimulus would not be spent on religious instruction, worship, or any department of divinity, or any building that would be devoted for religious purposes on college campuses.

So, this leaves the question: where will religious groups meet on campus? I guess this means it will be back to dorm rooms or nearby churches. However, this ban would not apply to groups, like Amnesty International, College Feminists, Greenpeace, etc., who can meet in any room on campus. Seems odd, doesn't it? I guess it is 24/7 liberal indoctrination...thanks to the Obama's stimulus plan.

FRC doesn't provide a link to French's post ... but if they did send their readers there, they'd find out that French, who happens to be Senior Legal Counsel at the Alliance Defense Fund, links to our first post about this whole issue and says that we are right:

One clause indeed prohibits funding for buildings only when a "substantial portion of the functions of the facilities are subsumed in a religious mission." (emphasis added). The meaning here is obvious, and it clearly applies to buildings like chapels, or perhaps divinity schools, or many facilities at religious universities. It has no real application to secular, public universities that open up classroom buildings to student groups.

Another clause, however, prohibits funding for buildings that are "used" for "sectarian instruction" or "religious worship." It does not say "primarily used." It simply says "used." For People for the American Way's reading to be correct, one has to assume that the drafters intended "used" to be read as "primarily used."

I have to give French credit, as his post on this issue is the only one that I have seen that actually seeks to understand the provision instead of simply proclaiming it anti-Christian.  And he raises an interesting point regarding the meaning of the word "used" in the section that proclaims that "no funds awarded under this section may be used for ... modernization, renovation, or repair of facilities used for sectarian instruction, religious worship, or a school or department of divinity."

French is correct to note that the provision does not say "primarily used" ... but neither does it say "occasionally used" and yet, for some reason, that is how the Right is interpreting it.  Despite the fact that, as Sen. Dick Durbin pointed out last week, this sort of language "has been in the law for 40 years [and] is the result of three Supreme Court decisions," the Right's interpretation of this standard, boilerplate language is that it means that any building on campus that is ever occasionally "used" for religious worship (i.e., a student group meets in their dorm for a Bible study) would be prohibited from using stimulus funds, as opposed to the more straightforward and logical interpretation that "used" refers to a building's primary function (i. e., a church is occasionally "used" for potluck dinners and Bingo nights, but its primary function is religious worship).

The language of this provision is clearly concerned with facilities in which a "substantial portion of the functions ... are subsumed in a religious mission" and it is within that context that the word "used" must be understood.  

Only an intentionally obtuse reading of this provision could lead one to conclude that the word "used" in this context was intended to mean "occasionally used" rather than "primarily used." Yet that is exactly what the Right is claiming ... and I, in turn, have had to spend hours of my life rebutting false claims that hinge entirely on their nonsensical understanding of the meaning of the word "used."

I feel so used.

Et Tu, Hucakbee?

Submitted by Kyle on February 9, 2009 - 4:08pm

We can add Concerned Women for America and Faith 2 Action to our list of right-wing groups seeking to make hay out of the entirely non-controversial provision in the stimulus legislation, as both have had representatives of the Liberty Counsel on their radio programs in recent days to proclaim that the provision will “promote religious discrimination.”

And joining them is Mike Huckabee, who is using the “controversy” to raise money for his Vertical Politics Institute:

The dust is settling on the "bipartisan" stimulus bill and one thing is clear: it is anti-religious … Why would Democrats add this provision about religion into a spending bill that they say is "urgently needed" to help our economy?

The answer is troubling and predictable. For all of the talk about bipartisanship, this Congress is blatantly liberal. Emily's List, radical environmental groups, etc. all have a seat at the decision making table in Washington these days. Nancy Pelosi and Harry Reid are in charge and they are working with an equally "progressive" President Obama (remember his voting record is more liberal than Ted Kennedy!).

Republicans and conservatives must rally against their agenda and propose new ideas ourselves.

This is the opening round of the Democrats' campaign for BIG government. We cannot afford to sit round one out, because if we do, they will only become more emboldened and their grab for power more audacious and damaging to our country and our freedoms.

Please make an immediate contribution of $10 or more today.

And then forward this email to 10 friends. Too much is at stake for Republicans to sit this one out on the sidelines. Your contribution will be invested into our ongoing efforts to educate voters about our ideas.

Interestingly, Huckabee didn’t have much to say about this last week, when the whole farce was rolling along, but now that it is over, he’s using it to raise donations.  

Of course, hopping into the right-wing culture war in order to raise money whenever it suits his needs seems to be standard operating procedure for him.


Sometimes You Just Have to Scratch Your Head and Wonder

Submitted by Kyle on February 9, 2009 - 10:05am

I honestly had no intention of continuing to cover the ludicrous “controversy” regarding the supposedly “anti-Christian” provision in the stimulus legislation, but it keeps popping up on right-wing websites and so I feel obligated to keep futilely trying to knock it down. 

For instance, here is Jonathan Falwell writing on WorldNetDaily, who cites this provision as proof that “public religious expression is increasingly in the crosshairs of our government”:

On Thursday, I spoke with Mathew Staver, founder of Liberty Counsel and dean of the Liberty University School of Law about this issue. During our conversation, he stated in part that the so-called stimulus bill may lead to the banning of religious activity from public facilities, with public schools possibly being forced to expel after-hours Bible clubs and weekend religious services in order to access these government funds. This would have a chilling effect on religious ministries and church-planting organizations of all stripes, including new church plants being sent out from Thomas Road Baptist Church and Liberty University.

Sometimes you just have to scratch your head and wonder if our lawmakers have even a basic understanding of our nation's rich history of religious freedom.

First of all, stop listening to Mat Staver because he’s wrong.  And secondly, sometimes you just have to scratch your head and wonder if anybody on the Right has even a basic understanding of how to read legislation because, if they did, they’d know that everything they are saying is outright false.

The Family Research Council also made another mention of this provision in its most recent “Washington Update”:

Although Republicans have tried to strip some excess from the stimulus, Democrats had a small victory of their own yesterday, defeating Sen. Jim DeMint's (R-S.C.) amendment to ban religious discrimination from the bill by a 43-54 vote. Only Sen. Olympia Snowe (R-Maine) deserted the GOP to side with her liberal pals in opposing the provision.

Actually, two Republicans senators voted against it: Olympia Snowe and Susan Collins. Sometimes you just have to scratch your head and wonder if anybody on the Right has even a basic understanding of how to read a roll call vote.

Then finally, there’s Jay Sekulow, who got this whole thing started in the first place, declaring that he and the ACLJ intend to file suit immediately after President Obama signs it and proclaiming that they intend to spend years fighting it, if necessary:

"Well, not only is it disappointing, it's almost a throwback to litigation that we conducted in the 1980s that we won unanimously at the Supreme Court," he says. "And I feel like this particular legislation pokes the finger in the eye of people who take religious faith seriously.
Jay Sekulow (Amer. Ctr. for Law & Policy)"It's discriminatory in its application, unconstitutional as it's written, [and] unfortunately it's going to take four or five years for it to be litigated all the way through," Sekulow adds.
With passage of the bill with the restrictions in place, how might colleges and universities be affected? "We're going to look at filing an application for a stay of this provision, trying to get it declared unconstitutional through a restraining order," he shares.
Sekulow plans to file suit the day after President Obama signs the bill.

Does the ACLJ really intend to file suit and spend years in court based on nothing more than its own intentional misreading of this provision? Sometimes I just have to scratch my head and wonder if this is all a plot to drive me completely insane.

DeMint Continues Spreading the Big Lie

Submitted by Kyle on February 6, 2009 - 3:18pm

It looks as if Sen. Jim DeMint is not happy that his ridiculous amendment to the stimulus legislation was voted down and has issued a press release in which he continues to intentionally misrepresent the provision in order to paint Christians as the victims of some nefarious conspiracy to silence them:

“This is a direct attack on students of faith, and I’m outraged Democrats are using an economic stimulus bill to promote discrimination,” said Senator DeMint. “Democrats should be ashamed of themselves for siding with the ACLU over millions of students of faith. These students simply want equal access to public facilities, which is their constitutional right. This hostility toward religion must end. Those who voted to for this discrimination are standing in the schoolhouse door to deny people of faith from entering any campus building renovated by this bill.

“This is now an ACLU stimulus designed to trigger lawsuits designed to intimidate religious organizations across the nation. This language is so vague, it’s not clear if students can even pray in a dorm room renovated with this funding since that is a form of ‘religious worship.’ If this provision remains in the bill, it will have a chilling effect on students of faith in America.

The language is not "vague" - it is very clear and DeMint's continuing refusal to acknowledge is downright mendacious.  And the only lawsuits this is going to trigger are the ones right-wing groups are threatening to file.

We have written a great deal about this "controversy" in the last few days and so we have now put together a short report called "The ‘Big Lie’ Strategy: Religious Right Stokes False Fears of Religious Persecution" that chronicles this entire saga, exposing just how it got started, how it spread, and how it made its way into the Senate while explaining that this entire charade is just standard operating procedure for Religious Right leaders who seek to raise money and generate political action by playing on the fear that Christian faith and freedom are being threatened.

Right Cries "Discrimination," Threatens Legal Action Over Stimulus Legislation

Submitted by Kyle on February 6, 2009 - 10:23am

As we reported last night, Sen. DeMint's effort to get a supposedly "anti-Christian" provision stripped from the stimulus legislation failed by the frightening close margin of 54-43.

As is to be expected, the right-wing groups had been peddling this lie all week are not happy, as David Brody reports:

The Traditional Values Coalition just issued this statement:

“Democrats showed their anti-Christian bias by rejecting South Carolina Senator Jim DeMint’s amendment that would have protected religious freedom in colleges and universities receiving federal funds,” said Traditional Values Coalition Executive Director, Andrea Lafferty today. “DeMint’s amendment simply struck the anti-Christian discrimination section from the bill.


“This is just the beginning of aggressive anti-Christian bigotry that we will see over the next four years,” said Lafferty. “We suffered a significant defeat to our First Amendment’s guarantee of religious freedom and free speech today.”

The ACLJ, which was responsible for unleashing this absurd fabrication in the first place, is standing by its erroneous position and threatening to sue if this provision gets signed into law:

This is a very disappointing development. What’s most troubling is the fact that a majority of the Senate supports a discriminatory provision that prohibits religious activity from taking place in college and university facilities nationwide that take federal stimulus funds. If this language remains in the stimulus package that’s ultimately approved by Congress, we will challenge this provision in federal court by filing suit. This provision has nothing to do with economic stimulus and everything to do with religious discrimination.


The fact is that unless this provision is removed from the final stimulus package, we'll be in federal court challenging this discriminatory measure.

We wish you the best of luck with that, ACLJ.

Which brings me to my final point.  I'm not in the habit of writing posts that revolve around comments left on blogs - especially comments left on Red State - but today I am making an exception.  Earlier this week, Erick Erickson wrote a post that made many of the false claims we have been systematically rebutting throughout the week.  A commentator there, going by the name PD, weighed in to point out that the language in this legislation is standard boilerplate legislative language.  Another commentator responded that, if the language was so common, why didn't PD provide other examples, to which PD responded with this:

Funds appropriated under a certain higher education grant program “may not be used…for a school or department of divinity or any religious worship or sectarian activity”—e000-.html

Funds appropriated under another program “may not be used…for a school or department of divinity or any religious worship or sectarian activity”—e000-.html

Limitation contained in program to help historically black institutions: “No grant may be made under this chapter for any educational program, activity, or service related to sectarian instruction or religious worship, or provided by a school or department of divinity.”—-000-.html

Grants for work-study programs may “not involve the construction, operation, or maintenance of so much of any facility as is used or is to be used for sectarian instruction or as a place for religious worship”—-000-.html

Money used under a specific community development program subject to limitation that “no participant will be employed on projects involving political parties, or the construction, operation, or maintenance of so much of any facility as is used or to be used for sectarian instruction or as a place for religious worship”—-000-.html

Aid under program providing grants for volunteer service projects may not be used for ” projects involving the construction, operation, or maintenance of so much of any facility used or to be used for sectarian instruction or as a place for religious worship.”—-000-.html

Energy resource graduate fellowships “shall be awarded under this subchapter for study at a school or department of divinity.”—-000-.html

Religious organizations participating in the “Community Schools Youth Services and Supervision Grant Program Act of 1994″ “shall not provide any sectarian instruction or sectarian worship in connection with an activity funded under this subchapter.”—-000-.html

Funds used under grant program for tribally controlled schools “shall not be used in connection with religious worship or sectarian instruction.”—-000-.html

Another construction program: “Participants shall not be employed under this chapter to carry out the construction, operation, or maintenance of any part of any facility that is used or to be used for sectarian instruction or as a place for religious worship (except with respect to the maintenance of a facility that is not primarily or inherently devoted to sectarian instruction or religious worship, in a case in which the organization operating the facility is part of a program or activity providing services to participants).”—-000-.html

Etc., etc., etc., etc.

Well done, PD.  And do you supposed the ACLJ intends to file suit against all of these laws as well? 


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