Tid-Bits

Lots of interesting stuff in the papers today.

Newt's Legacy: Ever Bigger Government: "The Revolution That Wasn't"in the NYT Week In Review chronicles how Newt Gingrich's famous "Class of 1994" has learned to love big government. Newt himself is quoted as saying that "Republicans have lost their way." Many have noted this odd reversal, as well as the increasing identification of today's Republican's with yesterdays' Democrats (and vice versa), but there is a special irony seeing the New York Times sympathetically quote with Newt Gingrich on the role of government.

China and Korea -- and Engagement as a Strategy For Regime Change: A propos of my question "Where's China?," maybe she's moving in the right direction: "Chinese News Media Critical of North Korea. Let's hope that this is more than just venting by the Chinese government and actually presages active efforts to end the North Korean nuclear threat. Also, hearkening back (again) to Robert Wright's essay "The Market Shall Set You Free" (discussed here) there is this from the same article:

But the Chinese news media have stopped short of suggesting a popular idea among some of North Korea's harshest critics in the Bush administration: trying to change North Korea's government by sending in radios, or other steps to help the country's residents realize how poor and isolated they are.

That idea drew support in Japan on Saturday from Robyn Lim, a Nanzan University professor influential in defense policy circles, who wrote in an essay: "The crisis will be resolved either by war or by regime change. Let's try for regime change."

I have been unable to find either Robyn Lin's essay or sourcing for the statement that some in the Bush administration are thinking about "sending in radios, or other steps to help the country's residents realize how poor and isolated they are." But I like the idea that "regime change" is an alternative to "war" and that even some of the Bushies may be thinking of engagement is a method for achieving regime change. (Might I also renew my colleague's suggestion of bombarding them with LL Bean catalogues and pre-paid Visa cards as a supplement to radios?). As I argued here, engagement is probably the only course available to the United States that holds much promise.

Detention, Torture and the Reach of the Bill of Rights: Then there is this report on claims by the recently released detainee, Momdaouh Habib, that he was tortured (beatings, electric shock, cigarette burns, psycho-sexual humiliation, etc.) during the 40 months he was held by US forces. As a human being and an American I can only hope that these claims are untrue. But as a lawyer, what I am most interested in is the right of such people (non US citizens) to bring claims like this before the US courts during their detention. As discussed previously here, here and here, both the Supreme Court and the lower courts have been nibbling around the edges of this issues for some time.

The state of the law right now is that non-citizens held at Guantanamo do have a right to seek a writ of habeas corpus, but there is a split among the lower courts as to whether they have any constitutional rights that can be vindicated via that writ. Further, the only constitutional right currently identified as being potentially applicable is the right to challenge the factual basis for the government's classification of the detainee as an enemy combatant. Finally, even this right has so far come up solely in the context of detainees held at Guantanamo, where the US exercises plenary jurisdiction. Thus, it is unclear whether non-citizens can object to their torture even in Guantanamo, and non-citizen detainees held in US custody outside of US jurisdiction may have no rights at all. In short, for people like Habib, who is an Australian citizen detained and allegedly tortured by US forces in Pakistan, Egypt and Afghanistan long before arriving at Guantanamo, the current state of the law provides no obvious avenue for challenging either his detention or his torture. This is simply wrong.

I am not now going to attempt a detailed legal analysis of any of this. Rather, I want to make a normative statement: the Constitution -- and particularly the Bill of Rights -- imposes certain restrictions on the federal government. The Fifth Amendment provides that "No person shall be deprived of . . . liberty . . . without due process of law", and the Eighth Amendment provides that "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted". Neither of these restrictions is expressly limited to particular geographic locations, nor does either distinguish between citizens and non-citizens. Rather, based on the literal language, each operates as a limitation on the activities in which the government can engage anywhere and with respect to any person.

It may be years, even decades, before the incrementalist approach used by courts brings the law into alignment with these principles. But in an era where the US government is projecting its power over more and more foreign nationals in more and more geographical areas over which it has no formal jurisdiction, it is essential that the courts eventually do get there. And, the sooner the better.

Duty to Die? Finally, there is this, from the AP, a truncated version of which I found in my own hometown paper, the Toledo Blade: "Inventor Kurzweil Aiming to Live Forever." The article reports on a new book by Ray Kurzweil, whom the article indicates is no crackpot, entitled "Fantastic Voyage: Live Long Enough to Live Forever." In the book, Kurzweil apparently argues that science is within 20 years of achieving breakthroughs that will allow us to live forever:

Kurzweil writes of millions of blood cell-sized robots, which he calls "nanobots," that will keep us forever young by swarming through the body, repairing bones, muscles, arteries and brain cells. Improvements to our genetic coding will be downloaded via the Internet. We won't even need a heart.

As noted in the article,"Critics say Kurzweil's predictions of immortality are wild fantasies based on unjustifiable leaps from current technology." But, it seems that the biggest dispute is over timing, not the end result. And, even if the goal of immortality proves illusive, I don;t think anyone argues that there is a real, near term potential for dramatically increasing life expectancy. This very thought is one of the issues informing and bedeviling the debate over social security reform.

But whatever the prospects, this raises a thought that I have been mulling over for a couple of years. Don't we, as individuals, have a duty to die at some point? I am not suggesting that this is a duty to be enforced by the state or third parties. Rather, it is more like a duty we all recognize to leave the table at a crowded restaurant once you have finished eating. It stems, in the end, from simple good manners and consideration for others. Perhaps, someday, if colonization of the universe becomes practicable, we can think about living forever. But until then, the "table" we share with the rest of humanity is finite, and at some point it seems like we ought to be willing to say "I have had enough" and make room at the table for someone else.

Thoughts anyone?