CALIFORNIA YANKEE

Partial Birth Abortion Ban Challenged

Three suits were filed yesterday seeking to stop the partial birth abortion ban passed by Congress last month. This is an usual tactic considering the fact that the legislation hasn't even been signed. You can read about the suits here. A third suit has been filed in San Francisco.

I think this litigation is going to be interesting to follow. The legislation, the Partial-Birth Abortion Ban Act of 2003, defines partial birth abortion:

Sec. 1531. Partial-birth abortions prohibited
1.(b) As used in this section--
(1) the term `partial-birth abortion' means an abortion in which the person performing the abortion--
(A) deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and
(B) performs the overt act, other than completion of delivery, that kills the partially delivered living fetus.

In addition, Congress provided that this ban would not apply to a situation in which the mother would be put at risk.

This subsection does not apply to a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.

The opponents view this legislation as an attack on abortion. They don't understand that Congress voted two to one to ban a specific and exceedingly gruesome procedure.

Withdrawn

Rachele Boim, the freshman expelled from Rosewell High School because of a story she wrote in her private journal, has decided she needs a fresh start. Three days after returning to school, Rachele has withdrawn.

Rachele's dad told the Atlanta Journal-Constitution:

Emotionally, she could not cope. She was well received by students. And the faculty were fine. But she is the kid who wrote the story that was interpreted to threaten the life of a teacher, and that stigma was really difficult for her to deal with.

The incident, which included Rachel's being led out of class by an armed officer, has turned her life upside down and that a new school would be best for her.

This has had a profound adverse effect on her and the entire family. We just want her to be able to disappear. She wants to be able to disappear.

As I posted here, Rachel was expelled from Roswell High School after a teacher discovered a fictional story she had written in her personal journal. Rachel’s journal was confiscated by a teacher because Rachel passed it to another student during class. The teacher kept the journal instead of returning the it at the end of the class. The teacher read the journal then gave it to school administrators. Rachele was suspended, than expelled for “inappropriate writings.”

I am saddened by this turn of events. I had hoped that Rachele would be able to handle the notoriety that came with the unjustified overreaction of school officials to her therapeutic writings.

When schools rely upon zero tolerance policies to punish students there are lasting consequences. Students with otherwise outstanding school records are tainted forever with suspensions and expulsions in their records. They are stigmatized as dangerous and troublesome.

Schools should be required to use discretion, commonsense, and fairness in all dealings with students, especially when imposing a punishment.

Zero tolerance is causing too many undesirable and unacceptable consequences. It should be abolished or modified to require consideration of an alleged offender’s intent.

Flush Hour

A passenger on the 6:19 Metro-North train to Mount Vernon, got his arm stuck in the train's toilet when he tried to recover his cell phone he accidently dropped into the toilet.

Fire Fighters were required to use an acetylene torch to free the stuck passenger.

According to Newsday, all 600 passengers aboard the train had to be evacuated and put on other trains. Northbound trains had to be rerouted and other trains were delayed. Metro-North had to bring out extra trains and crews costing thousands of dollars.

WOW! 7.2%!

Thursday, the Commerce Department reported that the U.S. economy grew at an annual rate of 7.2% in the third quarter. This is an estimate of real gross domestic product, the output of goods and services produced by labor and property located in the United States.

7.2% is the fastest rate of growth since 1984.

I anticipate that the negative news media will take the edge off this extraordinary performance by focusing upon the lack of job creation. In a hopeful sign, the Labor Department reported that the number of Americans filing initial jobless claims fell fell to 386,000 in the week ended October 25.

First-time claims have been below the benchmark 400,000 level for four straight weeks. Many economists consider this benchmark to be a sign of recovery. I hope they are right!

Not So Secret

Imagine a legal system in which the public docket for the court in which a case originated is devoid of any mention of the case; the published court calendar for the appellate court was obliterated to omit the names of litigants; the appellate court's computer records were altered to remove from public view any information about the case; the appellate court closes its courtroom to the public and the press to hear arguments in the case; and the litigants are not allowed to talk about it.

Where can you find such a legal system? Right here. All those things happened in the secret case which is now before the U.S. Supreme Court, and which I posted about here.

More is known about this secret case. This article, published last March, reports these disturbing facts:

A published court calendar for the 11th U.S. Circuit Court of Appeals was obliterated to omit the names of litigants in a sealed civil case brought by an Algerian man the Miami Daily Business Review has learned was among 1,200 young Arab and Muslim men secretly detained in the post-Sept. 11 nationwide dragnet.

Asked about the alteration of published court records to remove Bellahouel's name, the appellate court's chief deputy clerk in Atlanta said office personnel acted after realizing an error had been made. The case is sealed, he said, and access is restricted.

"We made a mistake. It shouldn't have been put out in the first place," said Robert Phelps March 5 after the hearing. After being told Bellahouel's name was still accessible in the court's computer system, Phelps replied, "It is? We'll have to fix that, too." Within hours, Bellahouel's name had been removed.

A three-judge panel of the 11th Circuit closed its courtroom March 5 to the public and the press to hear arguments in the sealed case.

Court records that were briefly public said the case is styled Mohamed Kamel Bellahouel v. Monica S. Wetzel. Wetzel is a former warden at the Federal Correctional Institution in South Miami-Dade County.

The public docket for the Southern District of Florida, where the case apparently originated, is devoid of any mention of either Bellahouel or his case.

Bellahouel declined to be interviewed, saying, "I cannot talk about it. I am not allowed."

A colleague pointed me to this more recent article which provides much more information about Bellahouel.

After holding him in custody for five months, the U.S. Department of Justice apparently concluded he was not a danger and authorized his release in March 2002 from Krome Detention Center in southern Miami-Dade County on a $10,000 immigration bond. Bellahouel now is seeking to adjust his legal status and block the government's effort to deport him for overstaying his student visa.

Bellahouel, who lives north of Fort Lauderdale, Fla., in Deerfield Beach with his American wife, was a veterinarian in Algeria. He came to the United States in November 1996 to study biology at Florida Atlantic University in Boca Raton. He ran out of money and didn't re-enroll at FAU after the fall term of 1997.

In the summer of 2001 he was waiting tables at the Kef Room, a Middle Eastern restaurant near Boca Raton in Delray Beach where several al-Qaida hijackers dined in the weeks before the 2001 terrorist attacks. In an affidavit presented to the federal immigration court, an FBI terrorism investigation official said it was "likely" that Bellahouel served Sept. 11 hijack leaders Mohamed Atta and Marwan al Shehhi.

According to the affidavit, an employee at a nearby movie theater fingered Bellahouel as the man she saw go into the theater with hijacker Ahmed Alnami. Bellahouel has denied any connection to the hijackers.

Bellahouel was picked up on Oct. 15, 2001. Government charging documents stated that Bellahouel failed to comply with the conditions of the student visa he received when he entered the United States in November 1996.

A month later, an immigration court judge, relying on the FBI affidavit, denied Bellahouel bond. Before the FBI ultimately agreed to Bellahouel's release the following March, Bellahouel was transported to Alexandria, Va., to testify before a federal grand jury. The substance of Bellahouel's testimony, if any, is not known.

For five months beginning in October 2001, Bellahouel was held in federal detention without bond. While still in custody, Bellahouel asked the courts to release him and open his case to the public.

The release issue became moot in March of last year when Bellahouel bonded out pending the completion of his immigration case. U.S. immigration authorities still seek to deport him.

In yet another unusual move, the public copy of Bellahouel's petition to the Supreme Court for a writ of certiorari is heavily censored.

Even at the Supreme Court, however, the public file for Case No. 03M1 does not include the petitioner's name or the names of the lower courts that kept the case secret. The style lists Bellahouel's initials -- M.K.B. v. Warden et al.

Bellahouel's petition to the U.S. Supreme Court revealed that the 11th Circuit panel issued a "sealed and unpublished judgment" in his case on March 31 of this year.

"Although the secret court of appeals' decision ordered the district court to docket the case publicly [words deleted], it affirmed the district court's refusal to unseal any of the filings in the case, and every entry in the case remains sealed," the petition says. "The court of appeals itself refuses to disclose that it has decided the appeal. Indeed, the final order of the court of appeals is sealed, not publicly docketed."

The petition says that the district court and the 11th Circuit judges decided on their own to seal the case, because neither the government nor Bellahouel requested it.

This case raises many interesting issues concerning the rights of the public and the news media in the conflict between America's tradition of open courts and the need for security in times of national peril.

I think the Christian Science Monitor missed a lot of “public” information when it charged that this case there has no public record. There may not be an official public record, but the press has been able to share a lot of information about it.

Red Cross Won't Run

The Red Cross confirmed today that it is not pulling out of Iraq following Monday's attack on its Baghdad headquarters. You can access the press release here.

I was concerned that the ICRC would cut and run giving the terrorists a victory.

Secret Supreme Court Petition

To what extent should our justice system allow total secrecy?

The Christian Science Monitor reports that the U.S. Supreme Court is considering a petition in a secret case with no public record, MKB v. Warden (No. 03-6747).

There was no public record of the existence of this case, until the appeal was filed with the clerk of the U.S. Supreme Court. The Christian Science Monitor's article reveals what little is known about this case.

"The entire dockets for this case and appeal, every entry on them, are maintained privately, under seal, unavailable to the public," says a partially censored 27-page petition asking the high court to hear the case. "In the court of appeals, not just the filed documents and docket sheet are sealed from public view, but also hidden is the essential fact that a legal proceeding exists."

A docketing error led to a newspaper report identifying MKB by name in March. The report said MKB is an Algerian waiter in south Florida who was detained by immigration authorities and questioned by the FBI.

MKB's legal status remains unclear, but it appears unlikely from court documents that he is connected in any way to terrorism. He has been free since March 2002 on a $10,000 bond.

MKB v. Warden is the first indication that the Justice Department is extending its total secrecy policy to proceedings in federal courts dealing with habeas corpus - that is, an individual's right to force the government to justify his or her detention.

In her petition to the court, Miami federal public defender Kathleen Williams says the judges' actions authorizing the secrecy without any public notice, public hearings, or public findings amount to "an abuse of discretion" that requires corrective action by the justices.

The Color Of Money

According to the Associated Press, those colorful new $20 bills do not work well with automated payment machines.

Officials at the Bureau of Engraving and Printing are frustrated. They tried to avoid a repeat of the difficulties that occurred with the rollout of the 1998 redesign of the $20 bill.

During the last year, the bureau reached out to the vending machine industry, transit authorities, and the gambling industry to help them prepare for the colorful new bills. Unfortunately, nobody thought about the automated payment machines in self-service checkout counters before the new currency was in circulation.

This is merely an inconvenience rather than a serious problem. Signs are posted at some automated payment machines advising customers to exchange the colorful new bills for old green ones. The problem can be solved by software or hardware upgrades to the automatic payment machines.

Iraq Moved WMDs

The Washington Times' Bill Gertz reports Iraqi military officers destroyed or hid chemical, biological and nuclear weapons goods in the weeks before the war:

Retired Air Force Lt. Gen. James Clapper, head of the National Imagery and Mapping Agency, said vehicle traffic photographed by U.S. spy satellites indicated that material and documents related to the arms programs were shipped to Syria.

[. . .]

Convoys of vehicles, mostly commercial trucks, were spotted going into Syria from Iraq shortly before the start of the war March 19 and during the conflict, he said.

That College Poll

Polipundit has little regard the Harvard Institute of Politics’ poll I posted about here. In “That College Poll,” Polipundit explains why that poll doesn’t mean much:

Polipundit isn’t impressed by the results suggesting that liberals and conservatives seem almost evenly divided on campuses at 36-32 percent.

In the general population, the number of people self-identifying as conservative is consistently twice as much as the number self-identifying as liberal. College students are still far more liberal than the general population.

Polipundit is likewise unimpressed by the results suggesting that President Bush leads an unnamed Democrat 34-32 among college students.

When was the last time a poll of the general population showed such a large number of undecideds? Most of those undecideds will plump for Democrats or Green Party candidates simply because of peer pressure. There goes the Bush margin.

Risking another cold shower from Polipundit, I note that CNN reports a CNN/USA Today/Gallup Poll finds younger voters view some things differently than the over 30 crowd. According to the CNN poll:

Younger Americans don't follow politics as closely as older Americans;

More younger Americans than the older folks approve of the way President Bush is handling his job;

Fewer of the younger Americans surveyed said they had a favorable opinion of President Bush than did older Americans;

More younger Americans polled said they believe the economy is improving than did the elder group;

Significantly more younger Americans than the older group support same-sex marriages that are recognized with equal rights under the law.

Most troubling to me is the different views concerning “diversity.”

When asked whether racial and ethnic minorities should be encouraged to maintain their own culture or blend into the larger American society, fifty-four percent of younger Americans said they believe minorities should keep their own culture. Thirty-seven percent of older Americans said they back that idea.

Years of indoctrinating students in multiculturalism have resulted in draining the melting pot. When I went to school, I was taught that the melting pot was central to America’s ability to assimilate immigrants. To me, the melting pot means that this country can transform people of every color and background into “one America,” with a single national identity. Today younger Americans think the melting pot is a fondue restaurant.