Tuesday, April 21, 2009

Second Amendment extended - Ninth Circuit ruling

Second Amendment extended. By Lyle Denniston
SCOTUS blog, Monday, April 20th, 2009 3:21 pm

The Constitution’s protection of an individual right to have guns for personal use restricts the powers of state and local government as much as it does those of the federal government, the Ninth Circuit Court ruled Monday. The opinion by the three-judge panel can be found here. This is the first ruling by a federal appeals court to extend the Second Amendment to the state and local level. Several cases on the same issue are now awaiting a ruling by the Seventh Circuit Court.

Ruling on an issue that is certain to reach the Supreme Court, the Circuit Court concluded “that the right to keep and bear arms” as a personal right has become a part of the Constitution as it applies to the states through the Fourteenth Amendment’s due process clause.

That right, it said, “is ‘deeply rooted in this Nation’s history and tradition.’ Colonial revolutionaries, the Founders, and a host of commentators and lawmakers living during the first one hundred years of the Republic all insisted on the fundamental nature of the right. It has long been regarded as the ‘true palladium of liberty.’

“Colonists relied on it to assert and to win their independence, and the victorious Union sought to prevent a recalcitrant South from abridging it less than a century later. The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty that we have inherited. We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments.”

But, following the lead of the Supreme Court’s decision last June in District of Columbia v. Heller, finding a personal right in the Second Amendment for the first time, the Circuit Court concluded that the right as interpreted by the Justices is limited to “armed self-defense” in the home.

Thus, the Circuit Court refused to strike down an Alameda County ordinance that makes it a crime to bring onto county property a gun or ammunition, or to possess them on that property. A county supervisor who sponsored the ordinance cited “a rash of gun violence” in an apparent reference to the school shootings in the late 1990s, including the one at Columbine High School in Littleton, Colo.

The Alameda ordinance, the Circuit Court said, does not involve the kind of armed self-defense that the Supreme Court had in mind in Heller. “It regulates gun possession in public places that are County property,” it concluded.

The ordinance had been challenged by Russell and Sallie Nordye, who operate a business that promotes gun shows in California. They contended that the Alameda County ordinance burdens their Second Amendment right because it makes it more difficult to buy guns.

Before the gun ordinance was adopted, gun shows had been staged at the Alameda County fairgrounds, drawing up to 4,000 people. The Nordykes said that some county officials wanted to drive gunshows out of the county, and that is what led to the ordinance’s enactment.

The Circuit Court, however, said the ordinance “does not meaningfully impede the ability of individuals to defend themselves in their homes with usable firearms, the core of the right as Heller analyzed it. The ordinance falls on the lawful side of the division, familiar from other areas of substantive due process doctrine, between unconstitutional interference with individual rights and permissible government nonfacilitation of their exercise.”

Finally, it said, banning guns from municipal property “fits within the exception from the Second Amendment for ’sensitive places’ that Heller recognized,” the Circuit Court said.

The Court also rejected a First Amendment challenge to the ordinance, based on the Nordykes’ claim that the local law was designed to silence those who promote gun rights. “The language of the ordinance,” the Court said, “suggests that gun violence, not gun culture, motivated its passage.”

It also rejected a claim of discriminatory application of the law, because of some exceptions the county wrote into its ordinance.

The ruling was written by Circuit Judge Diarmuid F. O’Scannlain and joined by Circuit Judge Arthur L. Alarcon. Circuit Judge Ronald M. Gould joined the opinion, but also wrote separately to discuss the doctrine of incorporating rights selectively to apply to state and local government.

Obama's Gitmo

Obama's Gitmo. By William McGurn
WSJ, Apr 21, 2009

Helen Thomas: Why is the president blocking habeas corpus from prisoners at Bagram? I thought he taught constitutional law. And these prisoners have been there . . .
Robert Gibbs: You're incorrect that he taught on constitutional law.

You know we live in interesting times when Helen Thomas is going after Barack Obama. Miss Thomas was asking the White House press secretary last week why detainees at Bagram Air Base in Afghanistan should not have the same right to challenge their detention in federal court that last year's Supreme Court ruling in Boumediene v. Bush gave to Guantanamo's detainees. All Mr. Gibbs could do was interrupt and correct the doyenne of the White House press corps about Mr. Obama's class as a law professor.

The precipitate cause of Miss Thomas's question was a ruling earlier this month by federal district Judge John Bates. Judge Bates says that last year's Supreme Court ruling on Gitmo does apply to Bagram. The administration has appealed, saying that giving detainees such rights could lead to protracted litigation, disclosure of intelligence secrets and harm to American security. The wonderful irony is that, at least on the logic, everyone is right.

Start with Judge Bates. The judge is surely correct when he says the detainees brought in to Bagram from outside the country are "virtually identical" to those held at Guantanamo. He's also correct in asserting that the Supreme Court ruled the way it did out of concern "that the Executive could move detainees physically beyond the reach of the Constitution and detain an individual" at Bagram.

But President Obama's appeal is also right. Though most headlines from the past few days have focused on the release of Justice Department memos on CIA interrogation, the president's embrace of the Bush position on Bagram is far more striking. Mr. Gibbs became tongue-tied while trying to explain that stand. But the Justice Department brief is absolutely correct in asserting that "there are many legitimate reasons, having nothing to do with the intent to evade judicial review, why the military might detain an individual in Bagram."

Finally, critics like Miss Thomas also have it right. In a long and thorough post called "Obama and habeas corpus -- then and now," Glenn Greenwald, a former constitutional law litigator who blogs at Salon.com, exposes the gaping contradiction between past Obama rhetoric on the inviolability of the right to habeas corpus and the new Obama reality. He also quotes Mr. Obama's reaction to Boumediene as a "rejection of the Bush administration's attempt to create a legal black hole at Guantanamo."

Manifestly, Mr. Greenwald believes that "black hole" is simply moving to Bagram. "I wish I could be writing paeans celebrating the restoration of the Constitution and the rule of law," he writes. "But these actions -- these contradictions between what he said and what he is doing, the embrace of the very powers that caused so much anger towards Bush/Cheney -- are so blatant, so transparent, so extreme, that the only way to avoid noticing them is to purposely shut your eyes as tightly as possible and resolve that you don't want to see it, or that you're so convinced of his intrinsic Goodness that you'll just believe that even when it seems like he's doing bad things, he must really be doing them for the Good."

How can all these people be right? The answer is that each is responding to a different contradiction raised by the president's Guantanamo policy. In an impassioned 2006 speech on the Senate floor on the right to habeas corpus, Mr. Obama declared, "I do not want to hear that this is a new world and we face a new kind of enemy." During the campaign, his language implied that all we needed to settle the detainee issue once and for all was to shut down Gitmo.

As president, he is finding out that this very much is a new world, that we do face a new enemy, and that the problems posed by Guantanamo have less to do with the place than the people we detain there.

Put simply, the U.S. needs the ability to detain people we know to be dangerous without the evidence that might stand up in a federal criminal court. Because we can't say when this war will end, moreover, we also need to be able to detain them indefinitely. This is what makes the war on terror different, and why our policies will never fit neatly into a legal approach that is either purely criminal or purely military.

The good news is that Mr. Obama is smart enough to know that the relative obscurity of Bagram, not to mention the approval he has received on Guantanamo, enables him to do the right thing here without, as Mr. Greenwald notes, worrying too much that he will be called to account for a substantive about-face.

The bad news is that we seem to have reached the point where our best hope for sensible war policy now depends largely on presidential cynicism.

On Earth Day, environmentalists must not link arms with anti-immigrant forces

On Earth Day, environmentalists must not link arms with anti-immigrant forces. By Eric K. Ward
The Progressive, April 21, 2009

On Earth Day, the environmental movement in the United States must reject bigotry. It should not join hands with anti-immigrant groups.

These groups are trying to infiltrate the environmental movement and coopt its message.

Under innocuous sounding names such as the America’s Leadership Team for Long Range Population-Immigration-Resource Planning, anti-immigrant organizations, many with ties to political extremists, are running full-page ads in progressive magazines such as The Nation, Mother Jones and Harper’s and in newspapers such as the New York Times.

The goal of these anti-immigrant groups is to lure the environmental community into an America First-style immigration policy.

That won’t solve anything, and it denies the increasing economic and environmental interconnectivity of the planet.

Many recent immigrants have come to the United States because the free-market policies that Washington forced on Latin America have backfired. Subsistence farmers couldn’t compete against U.S. agribusiness, and millions had to abandon the countryside. U.S. manufacturers opened up shop and then just as quickly closed up shop, leaving millions more without jobs.

It’s unfair to blame immigrants who came to the United States because they couldn’t eke out a living at home due to Washington’s policies.

What’s more, climate change is going to cause more people to emigrate from southern countries and from low-lying coastal areas, which will become all but uninhabitable.

These immigrants aren’t the cause of the environmental crisis. They are merely an effect of it, and they should not be blamed.

On Earth Day of all days, the environmental movement can’t let anti-immigrant groups divert us into a narrow ideological cause that reflects neither realism nor inclusiveness.

And environmental organizations cannot afford to remain silent in the face of a few anti-immigrant leaders who attempt to speak on their behalf.

Instead, as environmentalists, on Earth Day and every day, we should uphold a vision of sustainability characterized by cooperation, opportunity and equity.

Will Global Warming Make Future Generations Worse Off?

Will Global Warming Make Future Generations Worse Off? (No, according to realistic analysis). By Indur Goklany
Master Resource, April 20, 2009

Some people argue that we are morally obliged to reduce greenhouse gases aggressively because otherwise the world’s current development path would be unsustainable, and our descendants will be worse off than we are.

But will a warmer world be unsustainable, and leave our descendants worse off?

I have examined these claims out to the year 2200, using the IPCC’s own assumptions regarding future economic development and results generated by the Stern Review on the economics of climate change. Note that both the IPCC and Stern are viewed quite favorably by proponents of drastic GHG reductions (see, e.g., here).

The first figure (see [here]) shows for both developing and industrialized countries, the GDP per capita — an approximate measure of welfare per capita — used in the IPCC’s emissions scenarios in the absence of any climate change in 1990 (the base year used to develop the IPCC’s emission scenarios) and 2100.

For 2100, the figure shows the GDP per capita assumed in each of four representative IPCC scenarios used in the Stern Review. These scenarios are arranged with the warmest (A1FI) scenario on the left and the coolest (B1) on the right. Below each set of bars, the figure indicates the IPCC’s designation for that scenario (A1FI, A2, B1 and B2) and the corresponding projected increase in average global temperature from 1990 to 2085 (which ranges from 2.1–4.0°C).
This figure shows that, per the IPCC, in the absence of climate change, GDP per capita would grow between 11- and 67-fold for developing countries, and between 3- and 8-fold for industrialized countries. [Some people have complained that these GDPs per capita are implausibly high. If that’s the case then the IPCC’s estimates of climate change are also implausibly high, since these GDPs per capita are used to drive the IPCC’s emissions and climate change scenarios.]

Although the IPCC did not provide any estimates for 2200, the Stern Review assumed an annual growth rate of 1.3 percent after 2100 (Stern Review, Box 6.3). In my calculations below I will assume a more modest growth rate. Specifically, I assume that GDP per capita would double between 2100 and 2200, which is equivalent to an annual increase of 0.7 percent. This is also conservative in light of historical experience: GDP per capita quintupled between 1900 and 2000 (per Maddison 2003).

But climate change might reduce future welfare per capita. Stern famously estimated that unmitigated climate change would reduce welfare by an amount equivalent to a reduction in consumption per capita of 5-20 percent “now and forever” if one accounts for market impacts, non-market (that is, health and environmental) impacts, and the risk of catastrophe. He also raised the spectre that under the warmest (A1FI) scenario, the 95th percentile of the welfare losses due to climate change could rise from 7.5 percent in 2100 to 35.2 percent in 2200.

For the sake of argument and extreme caution, I will assume that the loss in welfare due to uncontrolled climate change under the warmest scenario (A1FI) will indeed equal Stern’s 95th percentile estimate of 35.2 percent. I make this assumption despite the fact that one can’t be too skeptical of centuries-long projections based not only on uncertain climate models but equally uncertain socioeconomic and technological trends. To quote from a paper commissioned by the Stern Review: “changes in socioeconomic systems cannot be projected semi-realistically for more than 5–10 years at a time.” [Emphasis added.] Second, the Review itself emphasizes “strongly” that the numbers should not “be taken too literally.” No less important, many notable economists have even disputed the Stern Review’s more modest 5-20% estimate for losses as overblown (e.g., Yale’s William Nordhaus and Hamburg’s Richard Tol). [The IPCC itself uses 5 percent as the upper limit.]

[For details on the methodology used to estimate welfare losses for the other scenarios check out my paper, Discounting the Future, in the latest issue of Regulation magazine. ]

The figure [here] shows the net welfare per capita in 2100 and 2200 after adjusting GDP per capita in the absence of climate change downward to account for welfare losses due to uncontrolled climate change per the Stern Review’s 95th percentile estimate. To put the numbers in this figure into context, in 2006, GDP per capita for industrialized countries was $19,300; the United States, $30,100; and developing countries, $1,500.

Note that net welfare per capita in 2200 is underestimated for each scenario because the GDPs per capita in the absence of climate change were underestimated while welfare losses due to climate change were overestimated.

This figure shows that notwithstanding gross inflation of the adverse impacts of uncontrolled climate change:

· Under each scenario, for both developing and industrialized countries, net welfare increases from 1990 to 2100, and from 2100 to 2200. Thus Nobelist Robert Solow’s (1993) criterion for sustainable development — namely, that current generations should “endow [future generations] with whatever it takes to achieve a standard of living at least as good as our own” — should be easily met. In other words, if the world’s current developmental path is unsustainable, it won’t be because of climate change.

· Well-being in both 2100 and 2200 should, in the aggregate, be highest for the richest-but-warmest (A1FI) scenario and lowest for the poorest (A2) scenario, again regardless of climate change. That is the richest-but-warmest world is to be preferred over poorer-but-cooler worlds. Thus, if humanity could choose between the four IPCC scenarios, for the next several decades it should choose to realize the richest-but-warmest (A1FI) world. In other words, in order to improve net welfare, governments should be striving to push their countries on the path of higher wealth rather than lower carbon. So why are the world’s governments trying to negotiate a deal in Copenhagen later this year that would make their populations poorer and reduce their welfare?

· Net welfare per capita in both developing and industrialized countries should be much higher in 2100 than in 1990, and higher still in 2200, notwithstanding any climate change or which scenario one picks. That is, regardless of the circumstance, future generations, particularly in today’s developing countries, will be better off than current generations. Thus the premise underlying the argument that we are morally obliged to control emissions now to ensure that future generations won’t be worse off isn’t supported by the Stern Review’s own analysis.


In fact, the above raises the question whether it is moral to require today’s poorer generations to spend their scarce resource on anthropogenic GHG-induced global warming — a problem that may or may not be faced by future, far wealthier, and technologically better endowed generations — instead of the more urgent, real problems that plague current generations and will continue to plague future generations as well.

Conservative views: The Uighurs and the 'Torture' Memos

The Uighurs and the 'Torture' Memos, by Jed Babbin
Human Events, Apr 20, 2009

White House lawyers are refusing to accept the findings of an inter-agency committee that the Uighur Chinese Muslims held at Guantanamo Bay are too dangerous to release inside the U.S., according to Pentagon sources familiar with the action.

This action -- coupled with the release of previously top secret legal opinions on harsh interrogation methods -- demonstrates the Obama administration’s willingness to ignore reality.

President Obama’s decision to close the terrorist detention facility (known as “Gitmo” to the military) was made despite Bush administration determinations that there were no realistic alternatives to it.

Gitmo holds three classes of terrorist detainees: first, those that are held for prosecution of terrorist acts such as Khalid Sheik Muhammed; second, those who cannot be prosecuted and will be released or transferred to another country for trial or incarceration; and third, those who cannot be prosecuted (because the information against them is intelligence information inadmissible in court) but who pose such a danger that they cannot be released.

The last category encompasses a large number of the Gitmo detainees. The Supreme Court has held -- in the Hamdan decision -- that “administrative detention” is permissible in time of war.

After Obama’s promise to close Gitmo, the White House ordered an inter-agency review of the status of all the detainees, apparently believing that many of those held would be quickly determined releasable. The committee -- comprised of all the national security agencies -- was tasked to start with what the Obama administration believed to be the easiest case: that of the seventeen Uighurs, Chinese Muslims who were captured at an al-Queda training camp.

The Uighurs sued for release under the Supreme Court’s Boumediene decision, which gave Gitmo prisoners the Constitutional right to habeas corpus. Last October, a federal court ordered their release into the United States, but an appeals court overturned the decision, saying the right to make that determination rested entirely with the president. Since then, Attorney General Eric Holder has said that some of the Gitmo inmates may be released into the United States.

That, apparently, is what the White House plans for the Uighurs and others.

Reviewing the Uighurs detention, the inter-agency panel found that they weren’t the ignorant, innocent goatherds the White House believed them to be. The committee determined they were too dangerous to release because they were members of the ETIM terrorist group, the “East Turkistan Islamic Movement,” and because their presence at the al-Queda training camp was no accident. There is now no ETIM terrorist cell in the United States: there will be one if these Uighurs are released into the United States.

According to Defense Department sources, the White House legal office has told the inter-agency review group to re-do their findings to come up with the opposite answer.

The White House already came up with the opposite answer in declassifying and releasing the so-called “torture memos,” the previously top-secret legal opinions which found, under the law as it was written at the time, that interrogation techniques which ranged from the mildest to the toughest -- from open-fingered face slapping to waterboarding -- were permitted under the law.

The legal opinions were correct. Under the law in 2002, threats and mild physical abuse -- which were not likely to cause lasting psychological harm -- were legal. Waterboarding, the harshest technique which triggers the autonomic reaction of the sense of drowning, was deemed legal because of extensive experience in training pilots and special operations troops who didn’t experience lasting harm.

But now, having released the details of the techniques, the Obama administration -- through Director of National Intelligence Dennis Blair -- has said that none of these techniques will be used again. Coupled with the publication of the Army’s guide to interrogation of prisoners, al-Queda and all other terrorists now know what to expect if captured by Americans. And, as they have in the past, they can use this knowledge to train to resist the techniques we can use.

White House chief of staff Rahm Emanuel excused the release of the memos because, he said Sunday, that information about the techniques revealed was already public and that they have been banned. Which begs the question of how successful interrogations can ever again be performed.

The Obama administration’s action has given terrorists what may be a decisive advantage. If a detainee knows what to expect, his confidence cannot be shaken. He cannot be forced out of his comfort zone into doubt. And he can withhold information that may be critical to saving American lives.

President Obama and Attorney General Holder have embarked on a course that denies our intelligence agencies and military forces the ability to gather intelligence needed to interdict and prevent future terrorist attacks. Releasing the Uighurs into the United States as free men creates a specific terrorist threat within our borders.

The administration is now under pressure to constrain the NSA’s terrorist surveillance program -- what the media and liberal pressure groups insist on calling “warrentless wiretapping” -- because it allegedly gathered more information from more sources than it was supposed to do in the last few months.

The heated debate over the Foreign Intelligence Surveillance Act -- the law under which that program functions -- resulted in a new law that provides specific and effective protections of American civil liberties that are Constitutionally sufficient. If President Obama continues his current course, he will go farther in limiting how this program functions.

In his dissent in the Boumediene case, Justice Scalia said that it gave the power to detain enemy combatants to the branch of government that had the least expertise in national security, the courts. He added that the decision would probably cost American lives.Scalia was correct on the latter point, but the advent of the Obama administration makes the former at least questionable. How many more advantages is President Obama willing to grant our enemies?

Mr. Babbin is the editor of Human Events and HumanEvents.com. He served as a deputy undersecretary of defense in President George H.W. Bush's administration. He is the author of "In the Words of our Enemies"(Regnery,2007) and (with Edward Timperlake) of "Showdown: Why China Wants War with the United States" (Regnery, 2006) and "Inside the Asylum: Why the UN and Old Europe are Worse than You Think" (Regnery, 2004). E-mail him at jbabbin@eaglepub.com.

Monday, April 20, 2009

Newsweek on Harold Koh

Newsweek on Harold Koh, by Ed Whelan
Bench Memos/NRO, Monday, April 20, 2009

In the new issue of Newsweek, Stuart Taylor Jr. and Evan Thomas have an article on Harold Koh’s nomination to be State Department legal adviser. As regular readers of Bench Memos know, Taylor is one of my favorite journalists—regularly intelligent, insightful, and fair, whether or not I agree with him in every respect. And there’s much to commend in this article, including its acknowledgment that I raise “legitimate questions” about Koh, its exposition of many of Koh’s views, and its conclusion that “conservatives have a point that Koh and the other ‘transnationalists’ are using their legal theories to advance a political agenda.” That said, I have a correction and a broader comment.

First, the correction: Taylor and Thomas assert that in his 2002 Senate testimony on CEDAW, “Koh stressed that [the CEDAW committee] reports are not binding law.” In fact, Koh did not even acknowledge the existence of the reports that undercut his testimony, much less try to explain what weight, if any, their interpretations bore. That’s why law professor Julian Ku, in marked understatement, said that Koh was “plainly in advocacy mode, not scholarship mode,” and called Koh’s testimony “not his best moment” and “sloppy.” And that inexplicable omission is part of what underlies my assessment, explained more fully here, that Koh deliberately chose not to be forthright with the Senate Foreign Relations Committee.

That correction feeds into a broader comment: I believe that Taylor and Thomas significantly understate how radical and threatening Koh’s views are. They write, for example, that if “taken to their logical extreme,” Koh’s views “could erode American democracy and sovereignty.” But one doesn’t have to make logical extrapolations from what Koh has written to discern that threat; it’s plain from his very words (as I spell out in my series of blog posts—available in outline form at the bottom of this post). The only question is whether he could and would implement his views as State Department legal adviser—and (as I explain in that same post), he would have ample opportunities to do so.

Taylor and Thomas conclude that the Senate should confirm Koh because he is not “off the wall.” I generally agree with Taylor and Thomas that a president is entitled to substantial deference in his executive-branch picks, but I think that a thorough examination of Koh’s views shows that they are far more extreme than anything that President Obama advertised when he ran for office. I started my series of posts not particularly interested in the specific question whether Koh should be confirmed (in part because, absent a great awakening, it’s a virtual certainty that he will be) and far more interested simply in exposing how radical his views are. But the more I explored, the more extreme Koh turned out to be.

In addition, while I’m sure that Koh has lots of admirable qualities, I believe that there are serious questions about his character. Several folks who have had dealings with Koh—including folks who are not conservatives or Republicans—have privately attested to me that they have witnessed in him the same sort of bullying and intellectual dishonesty that his CEDAW testimony reflects—testimony, not incidentally, before the same Senate committee that will conduct his confirmation hearing.

More by this author on Mr Koh here

Libertarian Comments on Gun Control in Mexico

Cato Scholar Comments on Gun Control in Mexico. By David Rittgers
Cato, Friday, April 17, 2009

An unfortunate aspect of President Obama's trip to Mexico is the false—but virtually unopposed—assertion that the vast majority of weapons being used in the Mexican drug war come south from the U.S.

Yes, there is a major problem with drug-related gun violence along the border. No, U.S. gun laws are not the main culprit—and to lay all the rhetorical blame on them is to ignore serious weaknesses in numerous other policy areas.

The claim that that 90 percent of the guns involved in Mexico's drug war come from the United States has already been debunked. The reality is that out of 29,000 firearms picked up in Mexico, 5,114 of the 6,000 guns successfully traced came from the United States. While that is 90 percent of traced guns, it means that only 17 percent of recovered guns come from the U.S. civilian market.

Where did the rest come from? A number of places. To begin with, over 150,000 Mexican soldiers have deserted in the last six years for the better pay and benefits of cartel life, some taking their issued M-16 rifles with them.

What the Obama administration should look at is the Direct Commercial Sales, the legal export of military-grade weapons monitored by the State Department. The FY 2007 report shows a record number of investigations and a record number of fraudulent sales. Unsurprisingly, the majority of "unfavorable" findings in the Americas are in small arms and ammunition. Cutting down the number of military weapons sold through front companies to the cartels will do more to combat the violence than restricting the Second Amendment rights of all Americans.

And, of course, sadly absent from this debate is the issue of enriching and empowering violent black marketeers through the U.S.'s empirically failed prohibition on drugs.

Zuma: South Africa's likely next president is no Mandela-like godhead

Judging Zuma. By Mark Gevisser
South Africa's likely next president is no Mandela-like godhead.
WSJ, Apr 20. 2009

Campaigning in his kwaZulu-Natal heartland this past week, Jacob Zuma took aim at one of his sharpest critics, the Nobel laureate Archbishop Desmond Tutu. The cleric had "strayed" from his pastoral responsibilities by criticizing him, said Mr. Zuma, who has been fighting charges of fraud and racketeering for much of the past decade: "As far as I know, the role of priests is to pray for the souls of sinners, not condemn them."

The comment, coming from the man destined to be South Africa's next president, marks a watershed in the country's politics. For it is an admission by Mr. Zuma himself that South Africa's leaders are no longer the liberating godheads in the mold of Nelson Mandela. No: They are flawed and even errant human beings, "sinners" making do in an imperfect and often hostile world.

Mr. Zuma, the ruling African National Congress's candidate for president in Wednesday's general elections, was responding to comments by Mr. Tutu that he was unsuitable for the presidency. Like many other South Africans, Mr. Tutu believes the ANC leader is irrevocably compromised by the charges against him, even though they were dropped earlier this month amid findings that the chief investigator had abused the prosecutorial process.

Mr. Zuma insists that he was the victim of a political conspiracy masterminded by his predecessor and rival, former South African president Thabo Mbeki. But at the very least, Mr. Zuma was shown to have lived for a decade off the largesse of a benefactor who actually served time in jail for having solicited a bribe on his behalf.

The National Prosecuting Authority (NPA) insists that despite the "collusion" of the chief investigator with Mr. Zuma's political enemies, the "substantive merits" of the case remain. It would have been far preferable for the matter to have been tested in court rather than prejudged by the NPA, which now stands accused of having been manipulated politically by Mr. Zuma, just as it once was by Mr. Mbeki. What makes this accusation even stronger is that the evidence of prosecutorial abuse -- a series of covert recordings -- was submitted to the authorities by Mr. Zuma himself, who could have only acquired them from the intelligence services.

Many also believe that even though Mr. Zuma was acquitted of rape charges in 2006, he showed appalling judgment by admitting to having had unprotected sex with an HIV-positive woman who regarded him as a "father"; by claiming that he inoculated himself against infection with a postcoital shower; and by allowing a mob of misogynist supporters to wreak havoc outside the court.

With all of the above, not to mention the fact that his finances and personal life are in perpetual shambles (he is a polygamist with several wives and around 20 children) and that he has no formal education, Mr. Zuma would seem ill-suited to the presidency of Africa's most sophisticated state and its flagship democracy.

And yet the ANC leader is likely to win Wednesday's elections with a significant majority (probably more than 60%), and has become a figure of cult popularity, particularly among the poor.

His popularity rests on several foundations. First, the century-old ANC remains "home" to most black South Africans; moving away from it would be tantamount to abandoning one's family. Second, Mr. Zuma's flawed humanity appeals greatly to ordinary people. A man of humble rural origin, he has struggled through life, and many of his supporters identify with his appetites and indiscretions. He styles himself as the purveyor of common home truths rather than the high-minded intellectualisms of his aloof predecessor. Such homeboy populism offers the impression that he is accessible and responsive, in sharp contrast to Mr. Mbeki.

Despite a significant increase in service delivery in the 15 years since the ANC came to power, most South Africans remain desperately poor and feel excluded from the banquet of victory at which a small but ostentatious new black elite now sups. Mr. Zuma himself is perceived to have been ejected from this elite by Mr. Mbeki and his cronies, because he was not sophisticated, educated or slick enough. He is the first ANC leader who does not hail from the small black professional elite. Ordinary people identify with his seeming alienation from this elite and sense, in his extraordinary ascendancy, the possibilities for their own redemption. They relate most of all to his victimhood, and they admire his ability to overcome it.

Mr. Zuma has certainly proven himself a remarkably resilient politician, even if he has earned the reputation of being all things to all people, telling shopfloor audiences one thing and their bosses another, with little indication of a coherent vision. His candidacy was dependent on the active sponsorship of the left, particularly South Africa's powerful labor movement. It remains to be seen whether he will be able to steer the middle ground between his supporters' socialist agendas and the imperatives of the market.

But there are indications that while he will not tamper much with the economic orthodoxies established by his predecessor, he might provoke a return to conservative patriarchy at odds with the liberal democratic values of the Mandela-era ANC. He has often articulated a social conservatism about matters such as teen pregnancy and homosexuality and urged faith communities to challenge those interpretations of the constitution -- such as the right to abortion -- with which they are uncomfortable.

In crime-ridden South Africa he talks tough, but in a way that suggests the easy solutions of vigilantism: He once suggested that murder and rape suspects should forfeit their rights. Recently, he indicated that he would overlook the highly regarded deputy chief justice, Dikgang Moseneke, for a promotion, because Mr. Moseneke once made a statement that he owed his allegiance to the people rather than to the ANC.

Even if he is the victim of a conspiracy, there are troubling signs in the way Mr. Zuma has handled his legal travails and appears to have manipulated the organs of state to have the charges against him dropped. Under Mr. Mbeki and now Mr. Zuma, the ANC has confused party and state to such an extent that South Africa has become a de facto one-party state. The ruling party has become seduced by its own liberation mythologies and has developed an unduly proprietary sense of ownership over South Africa's destiny (Mr. Zuma likes to talk about how it will rule until the messiah's coming). Flowing out of this is a system of patronage and kickback politics that undermines the very "developmental state" it promises to establish. For this reason, many lifelong ANC supporters, myself included, will be voting for the opposition for the first time when we go to the polls on Wednesday.

Mr. Gevisser is Writer in Residence at the University of Pretoria and the author of "A Legacy of Liberation: Thabo Mbeki and the Future of the South African Dream," just out from Palgrave Macmillan.

Americas Summit: Missed Opportunity

Americas Summit: Missed Opportunity. By Mary Anastasia O'Grady
WSJ, Apr 20, 2009

If President Barack Obama's goal at the fifth Summit of the Americas in Trinidad and Tobago this weekend was to be better liked by the region's dictators and left-wing populists than his predecessor George W. Bush, the White House can chalk up a win.

If, on the other hand, the commander in chief sought to advance American ideals, things didn't go well. As the mainstream press reported, Mr. Obama seemed well received. But the freest country in the region took a beating from Venezuela's Hugo Chávez, Bolivia's Evo Morales, and Nicaragua's Danny Ortega.

Ever since Bill Clinton organized the first Summit of the Americas in 1994 in Miami, this regional gathering has been in decline. It seemed to hit its nadir in 2005 in Mar del Plata, Argentina, when President Nestór Kirchner allowed Mr. Chávez and his revolutionary allies from around the region to hold a massive, American-flag burning hate-fest in a nearby stadium with the goal of humiliating Mr. Bush. This year things got even worse with the region's bullies hogging the limelight and Mr. Obama passing up a priceless opportunity to defend freedom.

Mr. Obama had to know that the meeting is used by the region's politicians to rally the base back home by showing that they can put Uncle Sam in his place. Realizing this, the American president might have arrived at the Port of Spain prepared to return their volley. They have, after all, tolerated and even encouraged for decades one of the most repressive regimes of the 20th century. In recent years, that repression has spread from Cuba to Venezuela, and today millions of Latin Americans live under tyranny. As the leader of the free world, Mr. Obama had the duty to speak out for these voiceless souls. In this he failed.

The subject of Cuba was a softball that the American president could have hit out of the park. He knew well in advance that his counterparts would pressure him to end the U.S. embargo. He even prepared for that fact a few days ahead of the summit by unconditionally lifting U.S. restrictions on travel and remittances to the island, and offering to allow U.S. telecom companies to bring technology to the backward island.The Americas in the News

Think that helped cast the U.S. in a better light in the region? Fat chance. Raúl Castro responded on Friday from Venezuela with a long diatribe against the Yankee oppressor and a cool offer to negotiate on "equal" terms. In case you don't speak Cuban, I'll translate: The Castro brothers want credit from U.S. banks because they have defaulted on the rest of the world, and no one will lend to them anymore. They also want foreign aid from the World Bank.

Anyone who thinks that Raúl is ruminating over free elections is dreaming. Nevertheless, the Cuba suggestion to put "everything" on the table became the "news" of the summit. And while it is true that Mr. Obama mentioned political prisoners in his list of items that U.S. wants to negotiate, he could have done much more. Indeed, he could have called Raúl's bluff by putting the spotlight on the prisoners of conscience, by naming names. He could have talked about men like Afro-Cuban pacifist Oscar Elias Biscet, who has written eloquently about his admiration for Martin Luther King Jr., and today sits in jail for the crime of dissent.

The first black U.S. president could have named hundreds of others being held in inhumane conditions by the white dictator. He could have also asked Brazil's President Lula da Silva, Chile's President Michelle Bachelet and Mexico's Felipe Calderón where they stand on human rights for all Cubans. Imagine if Mr. Obama asked for a show of hands to find out who believes Cubans are less deserving of freedom than, say, the black majority in South Africa under apartheid or Chileans during the Pinochet dictatorship. Then again, that would be no way to win a popularity contest or to ingratiate yourself with American supporters who are lining up to do business in Cuba.

Instead the U.S. president simply floated down the summit river passively bouncing off whatever obstacles he encountered. The Chávez "gift" of the 1971 leftist revolutionary handbook "Open Veins of Latin America" followed by a suggestion of renewing ambassadorial relations was an insult to the American people. Granted, giving the Venezuelan attention would have been counterproductive. But Mr. Obama ought to have complained loudly about that country's aggression. It has supported Colombian terrorists, drug trafficking and Iran's nuclear ambitions. As former CIA director Michael Hayden told Fox News Sunday, "the behavior of President Chávez over the past years has been downright horrendous -- both internationally and with regard to what he's done internally inside Venezuela."

Too bad Mr. Obama didn't have a copy of the late 1990s bestseller "The Perfect Latin American Idiot" as a gift for Mr. Chávez. Another way Mr. Obama could have neutralized the left would have been to announce a White House push for ratification of the U.S.-Colombia Free Trade Agreement. That didn't happen either. He only promised to talk some more, a strategy that will offend no one and accomplish nothing. It is a strategy that sums up, to date, Mr. Obama's foreign policy for the region.

WSJ Editorial Page on the immigration bottom line: We need more legal avenues

Obama and the 'Amnesty' Trap. By Jason L Riley
The immigration bottom line: We need more legal avenues.
WSJ, Apr 20, 2009

When President Barack Obama turns his attention to immigration reform later this year, he will be pressured by advocacy groups and fellow Democrats to focus on a legalization program for the 12 million or so undocumented immigrants already living in the U.S. Obviously, the plight of this illegal population must be part of any policy discussion. But if Mr. Obama wants to be more successful than the previous administration when it tried to reform immigration, he should avoid getting bogged down in a debate over "amnesty."

Critics of comprehensive immigration reform, which ideally combines legalization with more visas and more enforcement measures, say that the last amnesty enacted -- the Immigration Reform and Control Act (IRCA) of 1986 -- didn't solve the illegal alien problem. This is true but misleading. After all, border enforcement enhancements over the past two decades haven't stanched the illegal flow, either, but that hasn't stopped immigration restrictionists from calling for still more security measures.

The reality is that the 1986 amnesty was never going to solve the problem, because it didn't address the root cause. Illegal immigration to the U.S. is primarily a function of too many foreigners chasing too few visas. Some 400,000 people enter the country illegally each year -- a direct consequence of the fact that our current policy is to make available only 5,000 visas annually for low-skilled workers. If policy makers want to reduce the number of illegal entries, the most sensible and humane course is to provide more legal ways for people to come.

This could be done by creating viable guest-worker programs or increasing green-card quotas or both. The means matter less than the end, which should be to give U.S. businesses legal access to foreign workers going forward. The 1986 amnesty legislation didn't do that, which is why it didn't solve the problem.

The three million illegal aliens who were brought into legal status under IRCA had already been absorbed by the U.S. labor market. The fundamental problem with the bill was that its architects ignored the future labor needs of U.S. employers. After the amnesty took effect, our economy continued to grow and attract more foreign workers. But since the legal channels available were not sufficiently expanded, migrants once again began coming illegally, which is how today's undocumented population grew to its current size. Another amnesty, by itself, will do no more to "solve" the problem in the long run than the first one did.

It's unfortunate that the "no amnesty" crowd has been able to suck up so much oxygen in this debate. Immigration hysterics on talk radio and cable news have used the term effectively to end conversations. And restrictionists in Congress have used it as a political slogan to block reform. But from a public-policy perspective, the fate of the 12 million illegals already here is largely a side issue, a problem that will solve itself over time if we get the other reforms right.

As in 1986, our economy and society have already absorbed most of these illegal workers. Many have married Americans, started families, bought homes, laid down roots. If their presence here is a problem, it is a self-correcting one. In time, they will grow old and pass on with the rest of us. The Obama administration would do better to focus less on whether to grant amnesty or to deport them and more on how to stop feeding their numbers going forward.

Unfortunately, the president will be pressed to do the opposite. The nation's two largest labor groups, the AFL-CIO and Change to Win, have already announced that they will oppose any new guest-worker initiatives and any significant expansion of temporary work programs already in place. Democrats and advocacy groups, who tend to see immigration as a humanitarian issue more than an economic one, will likely side with labor. But history suggests that such programs are effective in reducing illegal entries. Past experience shows that economic migrants have no desire to be here illegally. They will use the front door if it's available to them, which reduces pressure on the border and frees up homeland security resources to target drug dealers, gang members, potential terrorists, and other real threats.

Nearly seven decades ago, the U.S. faced labor shortages in agriculture stemming from World War II, and growers turned to the Roosevelt administration for help. The result was the Bracero program, which allowed hundreds of thousands of Mexican farm workers to enter the country legally as seasonal laborers. In place from 1942 to 1964, the program was jointly operated by the departments of Justice, State and Labor. As the program was expanded after World War II to meet the labor needs of a growing U.S. economy, illegal border crossings fell by 95%. A 1980 Congressional Research Service report concluded that, "without question," the program was "instrumental in ending the illegal alien problem of the mid-1940s and 1950s." Apparently, the law of supply and demand doesn't stop at the Rio Grande.

Beginning in 1960, the program was phased out after it faced opposition from labor unions. And since nothing comparable emerged to replace it, illegal entries began to rise again. The point isn't that we need to resurrect the Bracero program, or that guest-worker programs alone will stop illegal immigration from Mexico. But a Bracero-like program with the proper worker protections ought to be the template. And expanding legal immigration ought to be where the Obama administration channels its energies.

Granted, this will be a hard sell at a time when growing numbers of Americans are out of work. Even in good times, zero-sum thinking -- the notion that what is gained by some must be lost by others -- dominates discussions about immigrants and jobs. But the schooling and skills that the typical Mexican immigrant brings to the U.S. labor market differ markedly from the typical American's, which is why the two don't tend to compete with each other for employment. Labor economists like Richard Vedder have documented that, historically, higher levels of immigration to the U.S. are associated with lower levels of unemployment. Immigrants are catalysts for economic growth, not job-stealers.

There are plenty of ways and plenty of time to deal with the country's undocumented millions in a fair and humane manner. But we'd do better to focus first on not adding to their numbers. If the fate of this group instead drives the policy discussion, we're more likely to end up with the status quo or faux reforms like amnesty that dodge the real problem. By all means, Mr. Obama, lead the fight for immigration reform. But don't lead with your chin.

Mr. Riley, a member of The Wall Street Journal's editorial board, is the author of "Let Them In: The Case for Open Borders" (Gotham), which has just been released in paperback.

WSJ Editorial Page: Susan Rice is confused about international law and North Korea

Spinning a U.N. Failure. WSJ Editorial
Susan Rice is confused about international law and North Korea.
WSJ, Apr 20, 2009

It's strange enough that the Obama Administration is hyping last week's toothless statement by the United Nations Security Council condemning North Korea's recent rocket launch. Even more amazing, it says the U.N. move is "legally binding" on member states.

Those were the words used by Susan Rice, U.S. ambassador to the U.N., and repeated by a State Department spokesman. Ms. Rice is badly misinformed. As she ought to know, a "presidential statement" issued by the Security Council is legally binding on no one.

A presidential statement is agreed to by all 15 members of the Security Council and issued by the rotating president. Invented in 1994, such statements aren't even mentioned in the Security Council's procedural rules and impose zero obligations on members. They are a last resort when the Security Council can't summon the will or agreement to pass a resolution.

That's what happened after North Korea's April 5 missile launch, when neither China nor Russia would agree to the U.S. wish for a resolution. Legal experts -- including the Permanent Five's attorneys in a 2005 memo -- agree that the only U.N. pronouncement that is legally binding is a Security Council resolution issued under Chapter VII of the U.N. Charter, which sets out the Council's powers to maintain peace. Such resolutions can be enforced with sanctions or military action. Resolution 1718, passed in 2006 after North Korea's nuclear and missile tests, falls in this category.

The distinction between "Chapter VII resolutions" and other U.N. utterances is important -- as the example of Israel illustrates. Since the Jewish state has never been subject to a Chapter VII resolution, no Israeli "violation" of a U.N. pronouncement can give rise to sanctions. Even the famous Resolution 242, issued at the end of the 1967 Yom Kippur War, was not issued under Chapter VII. If the Obama Administration considers even U.N. presidential statements "legally binding," it's an invitation to the U.N. to ramp up its attacks on Israel.

Last week's statement on North Korea is binding only in the sense that it calls on member states "to comply fully" with their obligations under Resolution 1718, which bans sales of weapons, weapons parts and luxury goods to North Korea. Resolution 1718 is legally binding, but it has never been enforced. This speaks volumes about the sincerity of promises made at the U.N., and about the failure of the Obama Administration to win Security Council support for a serious response to North Korea's missile launch.

WSJ Editorial Page: Prostate Cancer and FDA Politics - Dendreon's Provenge

Prostate Cancer and FDA Politics. WSJ Editorial
Their first priority should be to save patients.
WSJ, Apr 20, 2009

Last week brought hopeful news for prostate cancer patients, with the biotech company Dendreon announcing that its cancer treatment Provenge improved survival and prolonged life in an important study. That may finally be enough for Provenge to win Food and Drug Administration approval, but the tragedy is that it wasn't approved years ago.

Provenge is an advanced cancer "vaccine," which stimulates the body's immune system to attack tumor cells and thereby fight off cancer on its own, instead of using chemotherapy or surgery. In an earlier placebo-controlled Phase III trial (the most rigorous kind), men with late-stage cancer who received Provenge lived a median of 25.9 months, compared with 21.4 months otherwise. After three years, 34% were alive, compared to only 11% for the control group. In March 2007, an FDA advisory panel voted 13 to 4 that there was "substantial evidence" the drug worked, and 17-0 that it was safe.

But later that year, the FDA delayed approval, ruling that the trial did not meet its criteria for statistical significance and that the patient sample was too small. So Dendreon agreed to complete another double-blind trial to FDA specifications, and Dendreon officials say the results have now met those benchmarks. The detailed results will be presented later this month.

The larger question is why Provenge wasn't made available sooner to the 30,000 American men who die each year from prostate cancer. The FDA regularly -- and pointlessly -- slow-walks potentially revolutionary therapies, relying on overly simplistic and unscientific statistical models that don't take into account the fact that some drugs may work better in certain subgroups than in others. Its regulatory blockade is especially cruel to terminally ill patients for whom drugs like Provenge may mean extra months or years of life.

These corroborating data should lead to a shift in the way the FDA evaluates innovative oncology medicines. But they almost surely won't, since the demands of bureaucratic politics to play it safe nearly always trump the needs of patients.

The Red Cross was completely wrong about 'walling' - The Memos Prove We Didn't Torture

The Memos Prove We Didn't Torture. By David B Rivkin Jr and Lee A Casey
The Red Cross was completely wrong about 'walling.'
WSJ, Apr 20, 2009

The four memos on CIA interrogation released by the White House last week reveal a cautious and conservative Justice Department advising a CIA that cared deeply about staying within the law. Far from "green lighting" torture -- or cruel, inhuman or degrading treatment of detainees -- the memos detail the actual techniques used and the many measures taken to ensure that interrogations did not cause severe pain or degradation.

Interrogations were to be "continuously monitored" and "the interrogation team will stop the use of particular techniques or the interrogation altogether if the detainee's medical or psychological conditions indicates that the detainee might suffer significant physical or mental harm."

An Aug. 1, 2002, memo describes the practice of "walling" -- recently revealed in a report by the International Committee of the Red Cross, which suggested that detainees wore a "collar" used to "forcefully bang the head and body against the wall" before and during interrogation. In fact, detainees were placed with their backs to a "flexible false wall," designed to avoid inflicting painful injury. Their shoulder blades -- not head -- were the point of contact, and the "collar" was used not to give additional force to a blow, but further to protect the neck.

The memo says the point was to inflict psychological uncertainty, not physical pain: "the idea is to create a sound that will make the impact seem far worse than it is and that will be far worse than any injury that might result from the action."

Shackling and confinement in a small space (generally used to create discomfort and muscle fatigue) were also part of the CIA program, but they were subject to stringent time and manner limitations. Abu Zubaydah (a top bin Laden lieutenant) had a fear of insects. He was, therefore, to be put in a "cramped confinement box" and told a stinging insect would be put in the box with him. In fact, the CIA proposed to use a harmless caterpillar. Confinement was limited to two hours.

The memos are also revealing about the practice of "waterboarding," about which there has been so much speculative rage from the program's opponents. The practice, used on only three individuals, involved covering the nose and mouth with a cloth and pouring water over the cloth to create a drowning sensation.

This technique could be used for up to 40 seconds -- although the CIA orally informed Justice Department lawyers that it would likely not be used for more than 20 seconds at a time. Unlike the exaggerated claims of so many Bush critics, the memos make clear that water was not actually expected to enter the detainee's lungs, and that measures were put in place to prevent complications if this did happen and to ensure that the individual did not develop respiratory distress.

All of these interrogation methods have been adapted from the U.S. military's own Survival Evasion Resistance Escape (or SERE) training program, and have been used for years on thousands of American service members with the full knowledge of Congress. This has created a large body of information about the effect of these techniques, on which the CIA was able to draw in assessing the likely impact on the detainees and ensuring that no severe pain or long term psychological impact would result.

The actual intelligence benefits of the CIA program are also detailed in these memos. The CIA believed, evidently with good reason, that the enhanced interrogation program had indeed produced actionable intelligence about al Qaeda's plans. First among the resulting successes was the prevention of a "second wave" of al Qaeda attacks, to be carried out by an "east Asian" affiliate, which would have involved the crashing of another airplane into a building in Los Angeles.

The interrogation techniques described in these memos are indisputably harsh, but they fall well short of "torture." They were developed and deployed at a time of supreme peril, as a means of preventing future attacks on innocent civilians both in the U.S. and abroad.

The dedicated public servants at the CIA and Justice Department -- who even the Obama administration has concluded should not be prosecuted -- clearly cared intensely about staying within the law as well as protecting the American homeland. These memos suggest that they achieved both goals in a manner fully consistent with American values.

Messrs. Rivkin and Casey, who served in the Justice Department under George H.W. Bush, were U.S. delegates to the U.N. Subcommission on the Promotion and Protection of Human Rights.

Executive nominees shouldn't be filibustered - Presidential Picks Deserve a Vote

Presidential Picks Deserve a Vote. By Walter Dellinger
Executive nominees shouldn't be filibustered.
WSJ, Apr 20, 2009

On the eve of George W. Bush's inauguration in 2001, I cautioned fellow Democrats against "delaying or denying confirmation of nominees to cabinet and subcabinet posts." I argued on these pages that blocking executive nominees would weaken the presidency and be counterproductive for the opposition: "If a president cannot promptly place his chosen people in key offices, he can hardly be held fully responsible for the missteps of the administration."

In the past few years, many Republican senators have agreed, saying that it is unacceptable to filibuster a nominee submitted to the Senate for its "advice and consent." Some Republicans have gone further than I would, asserting that filibusters of presidential nominations are unconstitutional.

I was therefore taken aback by recent speculation that Republicans might filibuster two of President Barack Obama's key nominees: Dawn Johnsen, to head the Justice Department's Office of Legal Counsel; and Harold Koh, to be legal adviser to the State Department.

In the past, Republican senators have publicly asserted that it is either "unacceptable" or "unconstitutional" to filibuster an up-or-down vote of a nominee submitted by the president for Senate "advice and consent." I cannot believe they would now abandon that principle.

Just last year, Sen. John Cornyn (Texas) made this point clearly: "Far too many judicial and executive nominees have been delayed. . . . Senators have a right to vote for or against any nominee -- but blocking votes on nominations is unacceptable." Other senatorial statements also are starkly unequivocal. Lamar Alexander (Tennessee) said, "I pledged, then and there, I would never filibuster any president's judicial nominee, period. I might vote against them, but I will always see they came to a vote."

Although the Senate is free to filibuster legislation, a number of senators argued that the Constitution requires it to vote on nominations. Thus Orrin Hatch (Utah) said, "The advice and consent clause is clearly an up-or-down vote -- a majority vote -- on the floor of the Senate." Bob Bennett (Utah) added, "In my view, the Founding Fathers clearly intended the Senate to consent to the president's choices on a majority vote." Kay Bailey Hutchinson of Texas said that "advice and consent as it is called in the Constitution . . . has always meant a majority vote."

For a time it appeared that Republicans might enact a "nuclear option" -- sustaining on a majority vote a ruling that filibusters of presidential nominations are unconstitutional. (The "gang of 14" compromise in 2005, confirming some judges and not others, ended that threat.)

Many Democrats have in the past defended filibustering executive-branch nominees. Democrats filibustered Mr. Bush's nomination of John Bolton to the United Nations post, and blocked his nominations of Eugene Scalia and Otto Reich by delaying votes. Some judicial candidates, like Miguel Estrada, were also subject to actual or threatened filibusters. Judicial candidates, however, present different considerations. Unlike judges, executive-branch nominees work for the president, and he should have greater discretion in deciding who serves in his administration.

I have disagreed with filibusters of executive-branch nominees whether done by Democrats or Republicans. But Democrats have at least been consistent in maintaining, under presidents of both parties, that filibusters were permissible. Those who would now filibuster the nominations of Mr. Koh and Ms. Johnsen would engage in activity that they recently condemned in stark terms.

The list of senators who have virtually ruled out advice-and-consent filibusters also includes Mitch McConnell (Kentucky), Kit Bond (Missouri), Sam Brownback and Pat Roberts (Kansas), Tom Coburn and James Inhofe (Oklahoma), Mike Crapo (Idaho), Lindsey Graham (South Carolina), Chuck Grassley (Iowa), Judd Gregg (New Hampshire), Jon Kyl (Arizona), Jeff Sessions (Alabama), Arlen Specter (Pennsylvania) and George Voinovich (Ohio).

Whether Republicans or Democrats are in office, the loyal opposition should not frustrate a president's ability to execute the powers of his office by denying an up-or-down vote to executive-branch nominees.

Mr. Dellinger was head of the Office of Legal Counsel from 1993 to 1996.

What happens when the president can no longer blame Bush for international strife?

A World Of Trouble For Obama. By Jackson Diehl
WaPo, Monday, April 20, 2009

New American presidents typically begin by behaving as if most of the world's problems are the fault of their predecessors -- and Barack Obama has been no exception. In his first three months he has quickly taken steps to correct the errors in George W. Bush's foreign policy, as seen by Democrats. He has collected easy dividends from his base, U.S. allies in Europe and a global following for not being "unilateralist" or war-mongering or scornful of dialogue with enemies.

Now comes the interesting part: when it starts to become evident that Bush did not create rogue states, terrorist movements, Middle Eastern blood feuds or Russian belligerence -- and that shake-ups in U.S. diplomacy, however enlightened, might not have much impact on them.

The first wake-up call has come from North Korea -- a state that, according to established Democratic wisdom, would have given up its nuclear weapons years ago if it had not been labeled "evil" by Bush, denied bilateral talks with Washington and punished with sanctions. Stephen Bosworth, the administration's new special envoy, duly tried to head off Pyongyang's latest illegal missile test by promising bilateral negotiations and offering "incentives" for good behavior.

North Korea fired the missile anyway. After a week of U.N. Security Council negotiations by the new, multilateralist U.S. administration produced the same weak statement that the Bush administration would have gotten, the Stalinist regime expelled U.N. inspectors and announced that it was returning to plutonium production.

When the inspectors were ousted in 2002, Democrats blamed Bush. Now Republicans blame Obama -- but North Korea's strategy hasn't changed in 15 years. It provokes a crisis, then demands bribes from the United States and South Korea in exchange for restoring the status quo. The Obama team now faces the same dilemma that bedeviled the past two administrations: It must judge whether to respond to the bad behavior by paying the bribe or by trying to squeeze the regime.

A second cold shower rained down last week on George Mitchell, Obama's special envoy to the Middle East. For eight years Democrats insisted that the absence of progress toward peace between Israel and its neighbors was due to the Bush administration's failure at "engagement." Mitchell embodies the correction. But during last week's tour of the region he encountered a divided Palestinian movement seemingly incapable of agreeing on a stance toward Israel and a new Israeli government that doesn't accept the goal of Palestinian statehood. Neither appeared at all impressed by the new American intervention -- or willing to offer even token concessions.

Those aren't the only signs that the new medicine isn't taking. Europeans commonly blamed Bush for Russia's aggressiveness -- they said he ignored Moscow's interests and pressed too hard for European missile defense and NATO membership for Georgia and Ukraine. So Hillary Clinton made a show of pushing a "reset" button, and Obama offered the Kremlin a new arms control agreement while putting missile defense and NATO expansion on a back burner. Yet in recent weeks Russia has deployed thousands of additional troops as well as tanks and warplanes to the two breakaway Georgian republics it has recognized, in blatant violation of the cease-fire agreement that ended last year's war. The threat of another Russian attack on Georgia seems to be going up rather than down.

Obama sent a conciliatory public message to Iranians, and the United States joined in a multilateral proposal for new negotiations on its nuclear program. The regime responded by announcing another expansion of its uranium enrichment facility and placing an American journalist on trial for espionage. Obama told Iraqis that he would, as long promised, use troop withdrawals to pressure the government to take over responsibility for the country. Since he made that announcement, violence in Iraq has steadily increased.

Obama is not the first president to discover that facile changes in U.S. policy don't crack long-standing problems. Some of his new strategies may produce results with time. Yet the real test of an administration is what it does once it realizes that the quick fixes aren't working -- that, say, North Korea and Iran have no intention of giving up their nuclear programs, with or without dialogue, while Russia remains determined to restore its dominion over Georgia. In other words, what happens when it's no longer George W. Bush's fault? That's what the next 100 days will tell us.

Sunday, April 19, 2009

Members of Congress value school choice -- for themselves

Only for the Privileged Few? WaPo Editorial
Members of Congress value school choice -- for themselves.
Monday, April 20, 2009

A NEW SURVEY shows that 38 percent of members of Congress have sent their children to private school. About 20 percent themselves attended private school, nearly twice the rate of the general public. Nothing wrong with those numbers; no one should be faulted for personal decisions made in the best interests of loved ones. Wouldn't it be nice, though, if Congress extended similar consideration to low-income D.C. parents desperate to keep their sons and daughters in good schools?

The latest Heritage Foundation study of lawmakers' educational choices comes amid escalating efforts to kill the federally funded D.C. Opportunity Scholarship Program that helps 1,700 disadvantaged children attend private schools. Congress cut funding beyond the 2009-10 school year unless the program, which provides vouchers of up to $7,500, gets new federal and local approvals. Education Secretary Arne Duncan cited that uncertainty as the reason for his recent decision to rescind scholarship offers to 200 new students. Senate hearings on the program's future are set for this spring, and opponents -- chiefly school union officials -- are pulling out all the stops as they lobby their Democratic allies.

The gap between what Congress practices and what it preaches was best illustrated by the Heritage Foundation's analysis of a recent vote to preserve the program. The measure was defeated by the Senate 58 to 39; it would have passed if senators who exercised school choice for their own children had voted in favor. Alas, the survey doesn't name names, save for singling out Sen. Richard J. Durbin (D-Ill.), architect of the language that threatens the program, for sending his children to private school and attending private school himself.

No doubt there are those who would argue that personal choices should not dictate decisions of policymakers. Fair enough, but where is the objective examination of this program, a rational discussion of the pros and cons? Where is the humanity of not wanting to hurt children who won't be able to continue in their current schools if the scholarship program is eliminated? No one has been able to offer any evidence of the drawbacks of this small, local program, while evidence of its benefits has been mounting. It has been disappointing that many of those one would expect to speak up for the educational rights of poor, minority children -- and Mayor Adrian M. Fenty (D) tops the list -- have been almost mute or, as has been the case with D.C. Del. Eleanor Holmes Norton (D), downright hostile. Meanwhile, former mayor Anthony A. Williams and former D.C. Council member Kevin P. Chavous continue to champion school choice as the civil rights issue it is.

Mr. Duncan, in a recent interview, spoke eloquently of his family's choice of Arlington as a place to live because of what he called the "determining factor" of schools. He told Science magazine: "My family has given up so much so that I could have the opportunity to serve; I didn't want to try to save the country's children and our educational system and jeopardize my own children's education." We don't think it's too much to expect our leaders to treat their constituents with the same fairness and regard they demand for their own families.

In Falls Church, a transit boondoggle - overall cost to taxpayers is an eye-popping $8 per ride

A Bus to Nowhere. WaPo Editorial
In Falls Church, a transit boondoggle
WaPo, Monday, April 20, 2009

EASING TRAFFIC gridlock in the Washington area isn't an either-or proposition. More mass transit is desperately needed, but buses and trains alone won't clear clogged roads. Transit projects such as the Purple Line, a light-rail line in Montgomery and Prince George's counties, are necessary, but so are road improvements, such as the widening of Interstate 66.
Yet sometimes transit advocates allow their zeal to obscure what is practical. Such is the case in Falls Church, where some officials continue to defend a bus system that is, by any measure, indefensible.

Falls Church is already transit rich. The 2.2-square-mile city has only 11,200 residents, yet is served by two Metrorail stations and Metrobus. There are few spots in the city that are more than a 20-minute walk from a Metro station. Yet, in the mid-1990s, city officials envisioned a fleet of technologically advanced, environmentally friendly buses that would feed into the Metro system. Officials were able to secure enough grants to launch a pilot program. When electric buses proved to be expensive and unworkable, the city acquired four clean diesel buses at a cost of about $250,000 each. In early 2003, the George bus system, named for the country's first president, started operating.

The buses, operated by Metro, are state of the art, but interest has been tepid. George has averaged only 70,000 trips annually, half of what was expected. That amounts to a measly 10 riders per hour of service, according to the Northern Virginia Transportation Alliance. Most of the outside grants have dried up, and George now costs $600,000 a year to operate, half of which is subsidized by the state. The 50-cent fare, which generates $18,000 a year, barely makes a dent. The overall cost to taxpayers is an eye-popping $8 per ride, compared to $1.20 per ride in Fairfax City and $2.08 per ride in Arlington. It would be cheaper, as the alliance has noted, for taxpayers to pay for a cab.

With a painful fiscal 2010 budget shortfall forcing Falls Church to freeze pay and reduce services, George is a luxury the city can't afford. There has to be a better way to spend $600,000.

Beware green jobs, the new sub-prime

Beware green jobs, the new sub-prime. By Dominic Lawson
Sunday Times, April 19, 2009

When everybody seems to have the same big idea, you just know it can only mean trouble. Remember sub-prime mort-gages? Now universally excoriated as the spawn of the devil, the proximate cause of the credit crunch and all that followed, a few years back “sub-prime” was everyone’s darling. Financiers loved it because it generated sumptuously high-yielding debt instruments; governments, because it promised to make even the poor into proud property owners.

Now business lobbyists and governments on both sides of the Atlantic have got a new big idea. They call it “green jobs”. Leading the pack is, as you might expect, Barack Obama. The president recently defended a vast package of subsidies for renewable energy on the grounds that it would “create millions of additional jobs and entire new industries”.

In Britain, the business secretary, Lord Mandelson, promises billions in state aid for the same purpose. To add verisimilitude, last week he gave a royal wave from the inside of a prototype electric Mini. Mandelson’s chauffeur was a representative of the lower house: the transport secretary, Geoff Hoon.

The occasion for this photo opportunity was the government’s proposal to offer a £5,000 subsidy to anyone buying an electric car of a type not yet available: exact details to be given in Alistair Darling’s forthcoming budget. The idea is to create a “world-beating” British-based electric-car-manufacturing industry, while also attempting to meet Gordon Brown’s promise to have the nation converted to electric or hybrid cars by 2020.

That remarkable prime ministerial pledge predated the recession; its motive was to demonstrate that Britain was “leading the world in the battle against climate change”. We aren’t, as a matter of fact; but under new Labour we have certainly led the world at claiming to do so. Mandelson expressed this almost satirically last week when he declared that “Britain has taken a world lead in setting ambitious targets for carbon reduction”.

As ever, new Labour confuses announcements and newspaper headlines with real action. Whenever it becomes obvious even to ministers that Britain will not meet its current carbon reduction target, they replace it with a yet tougher target, only with an extended deadline.

It does not yet seem to have occurred to new Labour that this is making it look ridiculous, especially to the environmentalists whose support it is presumably trying to solicit. Or perhaps it has, but it would rather that than lose our “world leadership” in target-setting.

There is something almost comical in the government’s belief that the electric car, dependent as it is on the national grid, is a sort of magic recipe for reducing carbon emissions. Some months ago President Sarkozy of France had an identical idea and commissioned a report on the prospects for turning Renault and Citroën into producers of mass-market electric vehicles. The report concluded that “the traditional combustion engine still offers the most realistic prospect of developing cleaner vehicles simply by improving the performance and efficiency of traditional engines and limiting the top speed to 105mph. The overall cost of an electric car remains unfeasible at about double that of a conventional vehicle. Battery technology is still unsatisfactory, severely limiting performance”.

Note that this crushing verdict came in a country where electricity is for the most part generated by nuclear power, which produces . In this country, more than three-quarters of the grid’s power comes from theno CO2 fossil fuels of gas and coal.

Presumably it is the latter that accounts for the fact that when the London borough of Camden commissioned a study to see whether it should introduce electric vehicles for some of its services, it found that “EVs relying on the average UK mix of energy to charge them were responsible for significantly more particles of soot that lodge deeply in the lungs . . . than the average petrol-powered car”.

If all our electricity were to be generated by wind power, without any fossil-fuel back-up, this criticism would not apply. Then the cars could take days, rather than hours, to recharge (depending on the weather) and would be so expensive to run that driving would become the exclusive preserve of the rich.

A further absurdity is that electric cars are suitable only for short rides within urban areas – precisely where we are being encouraged to abandon cars and use public transport. Ken Livingstone exempted electric cars from his congestion charge as if, in addition to their suppositious environmental benefits, they also had the magical property of being incapable of contributing to congestion. As the Ecologist magazine has reported: “The focus on electric vehicles and the political love they get is totally misguided . . . to have that as the spearhead of government transport carbon-reduction policy is insane.”

The magazine is controlled by Zac Goldsmith, the prospective Conservative candidate for Richmond Park and team Cameron’s environmental guru. Last week his colleague George Osborne took a different tack, observing that the absence of plans for a national network of charging points meant that “the Labour plan is like giving people a grant to buy an internal combustion engine, without bothering to set up any petrol stations”. Osborne had his own suggested grant to create “green jobs”: “We will give every household a new entitlement to £6,500 of energy-saving technologies.”

I’m not sure how the Tories came up with the figure of £6,500. It is pointedly bigger than Labour’s proposed £5,000 electric car subsidy; but all these figures are preposterous. If you multiply £6,500 by the number of households in the land, you get to £160 billion, bigger on its own than the national debt that Osborne has repeatedly told us is unaffordable.

Electoral bribes apart, there is a more serious misconception behind the idea that ploughing subsidies into the “green economy” is a sure-fire way of boosting domestic employment. At best it will move people from one economic activity to another. Labour’s plans would subsidise car production workers to move from making conventional models to electric vehicles, which hardly anyone wants to buy. Osborne’s proposals would subsidise the double-glazing and home insulation industry and suck in many workers gainfully employed (without subsidy) elsewhere.

The key to a successful, wealth-generating economy is productivity. Saving energy is what businesses have done already, because it lowers their production costs. The problem with any form of subsidy is that it makes the consumer (through hidden taxes) pay to keep inherently uneconomic businesses “profitable”. Meanwhile, diversified energy companies such as Shell, with plenty of speculatively acquired wind-farm acreage, are salivating at the plans by Obama to introduce cap-and-trade carbon emissions targets for American industry.

Obama’s energy secretary, Steven Chu, had some soothing words for US manufacturing companies that complained that the new policy will make them even less competitive with Chinese exporters, since the people’s republic has indicated that it has no intention of inflicting a similar increase in energy costs on its own producers. He suggested that America might have to introduce some sort of “car-bon-intensive” tariff on Chinese goods. One of China’s envoys, Li Gao, immediately retorted that such a carbon tariff would be a “disaster”, since it could lead to global trade war.

Actually, Mr Li is right: and this is how an achingly fashionable and well-intentioned plan to create “millions of new green jobs” could instead end up making the global economy even sicker than it is already.

Alien Tort Statute - A New Ruling Imperils Firms And U.S. Diplomacy

Rights Case Gone Wrong. By Curtis A. Bradley and Jack L. Goldsmith
A Ruling Imperils Firms And U.S. Diplomacy.
WaPo, Sunday, April 19, 2009

As American taxpayers shell out hundreds of billions of dollars to bail out U.S. companies, a federal court in New York recently paved the way for significantly increasing some of these firms' financial burdens. Relying on the Alien Tort Statute of 1789, the court ruled this month that certain companies that did business with apartheid South Africa -- including distressed firms such as General Motors and Ford -- can be held liable for South Africa's human rights violations during that period.

The Alien Tort Statute was designed to allow diplomatically sensitive tort cases to be brought in federal court in the hopes of avoiding the friction with foreign governments that could arise if state courts failed to provide a fair hearing. The statute hid in obscurity for almost 200 years before a federal appellate court in New York invoked it in 1980 to allow victims of human rights abuses committed abroad to sue foreign officials in U.S. courts. This holding turned the statute on its head by creating, rather than reducing, friction with other countries. It also spawned a cottage industry of human rights litigation.

At first, these cases were largely symbolic. The foreign plaintiffs had little chance of recovering damages from foreign officials; in effect, victims of human rights abuses used U.S. federal courts to criticize foreign governments. But the character of this litigation changed dramatically during the past decade. Plaintiffs started suing corporations on the theory that the firms "aided and abetted" foreign regimes and should be liable for those regimes' actions. These cases are not merely symbolic -- the U.S. corporations have deep pockets and U.S. bank accounts -- and present enormous opportunities for judicial meddling in foreign relations.

The South African case, brought by class-action attorneys many years after apartheid ended, is a dramatic example. The South African government opposed the litigation on the grounds that it would interfere with the policy embodied by its Truth and Reconciliation Commission, which "deliberately avoided a 'victor's justice' approach to the crimes of apartheid." The Bush administration's State Department opposed the lawsuit, arguing that it "risks potentially serious adverse consequences for significant interests of the United States" by threatening international economic relations as well as political relations with South Africa and other countries whose firms are defendants.

This should have been enough for dismissal. Five years ago, the Supreme Court said in reference to the South Africa litigation that "there is a strong argument that the federal courts should give serious weight to the Executive Branch's view of the case's impact on foreign policy." Yet the New York court, unpersuaded, concluded that allowing the lawsuit to proceed "would not contradict American foreign policy in a manner that would 'seriously interfere with important governmental interests.' " Thus it supplanted its foreign policy views for those of the federal government and refused to respect South Africa's efforts to move its society forward.

More significant, the court ruled that firms were liable for a foreign government's human rights violations, even if they did not engage in the abuses or intend to facilitate them, as long as companies were aware that their business activities would substantially assist the government's illegal practices. This put GM and Ford on the hook for supplying trucks that the South African government used to attack anti-apartheid activists, and IBM for providing computers and software that the government used to register and segregate individuals.

The underlying acts associated with apartheid are abhorrent. But it is crass retroactivity to say that these firms are legally responsible for actions of the South African government. Under the New York court's standard, a great deal of global investment in the developing world would now be subject to U.S. judicial scrutiny.

So what can be done about this sort of litigation, which threatens to transfer billions from U.S. firms doing business abroad to plaintiffs' lawyers and their foreign clients? Lower courts won't resolve an issue they created. The Supreme Court's single ruling on the statute in modern times provides little guidance. The high court declined to review an earlier iteration of the South African case because four justices who owned stock in defendant companies recused themselves, precluding a quorum.

The executive branch is unlikely to press for reversal. President Obama recently nominated Yale Law School Dean Harold Koh to be legal adviser to the State Department, the government office that presents the U.S. view of these cases to federal courts. Koh is an intellectual architect and champion of the post-1980 human rights litigation explosion. He joined a brief in the South Africa litigation arguing for broad aiding-and-abetting liability.

That leaves Congress, which has never hinted that corporations should be liable in these cases. Lawmakers have also given foreign governments, including South Africa's, statutory immunity from cases such as the apartheid litigation. Courts circumvent this immunity when they hold liable secondary actors not directly responsible for the abuses. Much worse, these lawsuits threaten to deepen the economic distress of U.S. and foreign firms by imposing an enormous tax on investment in developing countries at a time the world desperately needs such investment. Judicially made corporate human rights litigation is a luxury we can no longer afford.

Curtis A. Bradley is a professor at Duke Law School. Jack L. Goldsmith, a professor at Harvard Law School, has participated in Alien Tort Statute cases in support of defendants.

WaPo on Iraq: How the Obama administration can respond to incipient signs of trouble

Iraq's Wobbles. WaPo Editorial
How the Obama administration can respond to incipient signs of trouble.
WaPo, Sunday, April 19, 2009

IT'S BEEN only seven weeks since President Obama outlined a strategy for Iraq aimed at withdrawing most U.S. troops by the end of next summer. But already there is cause for concern. During the past month security around the country has been slipping: At least 37 people have been killed in four major attacks on security forces in the past week alone, and there have been multiple car bombings in Baghdad and other cities. Those strikes have been claimed by al-Qaeda, which appears to be attempting a comeback. But there have also been new bursts of sectarian violence among Sunni and Shiite extremists.

Following successful local elections in January, Iraqi politicians are mired in backroom squabbling over the formation of provincial governments. The Shiite-led national government has made disturbing moves against some of the Sunni leaders who led the fight against al-Qaeda. Hamstrung by the fall in oil prices, the government is having trouble meeting commitments to pay former insurgents or expand the security forces. Normally the U.S. ambassador would be deeply involved in trying to smooth over such problems, but there has been no ambassador in Baghdad since February.

It's not time to panic: U.S. commanders point out that overall, violence in Iraq is at its lowest level since the first year of the war. Iraqi Prime Minister Nouri al-Maliki, bolstered by the election outcome, remains strong and confident. But the administration needs to be alert to what is happening in Iraq -- and ready to adjust political and military plans to prevent what could easily become a downward spiral.

One early decision point involves the withdrawal timetable, which calls for U.S. troops to leave all Iraqi cities by the end of June. That pullout is looking risky in a couple of places, including the northern city of Mosul, which has never been entirely cleansed of anti-government insurgents. The U.S. commander in the area told a Pentagon briefing last week that American troops could remain in the city if the Iraqi government requests it following an ongoing review; such flexibility should be extended to other areas, if necessary.

U.S. diplomats and commanders also need to make sure that Sunni leaders -- already under renewed attack by al-Qaeda -- are treated fairly by the government. It's hard to tell from Washington whether recent arrests of some tribal leaders were justified or prudent; that's one reason why the administration's chosen ambassador, Christopher Hill, needs to get to Baghdad as soon as possible. He should be confirmed when Congress returns this week.

Mr. Hill's main focus, once he arrives, ought to be helping to ensure that Iraq's national elections, expected next January, go smoothly. Judging from January's results, elections may be the best way to defuse sectarian tensions and resolve disputes among feuding factions. Al-Qaeda and other extremists will try to disrupt the democratic process, while Iran will seek to manipulate it. Though the new administration has minimized the promotion of democracy as a goal, both in Iraq and elsewhere, it offers perhaps the best means of enabling the troop withdrawal that Mr. Obama has promised for next year.

Saturday, April 18, 2009

US State Dept on Durban Review Conference

Durban Review Conference. By Robert Wood, Acting Department Spokesman, Office of the Spokesman
US State Dept, Bureau of Public Affairs
Washington, DC, April 18, 2009

The United States is profoundly committed to ending racism and racial discrimination. This abiding commitment to the fight against racism and all forms of discrimination arises from the most painful pages of our history, and the most cherished values of our nation. We believe that people of every color and creed are born free and equal in dignity and rights and that equality and nondiscrimination are fundamental principles of international law.

The United States will work with all people and nations to build greater resolve and enduring political will to halt racism and discrimination wherever it occurs.

The United States is deeply grateful to the many country delegations, including Russia as chair, and senior United Nations officials who have worked steadfastly to improve the review conference outcome document and to re-focus the Durban Review Conference squarely on racism and discrimination. We applaud the progress that has been made. The current document is significantly improved compared with prior versions, which is an accomplishment for all who aim to build a world free of every form of discrimination.

However, the text still contains language that reaffirms in toto the Durban Declaration and Programme of Action (DDPA) from 2001, which the United States has long said it is unable to support. Its inclusion in the review conference document has the same effect as inserting that original text into the current document and re-adopting it. The DDPA singles out one particular conflict and prejudges key issues that can only be resolved in negotiations between the Israelis and Palestinians. The United States also has serious concerns with relatively new additions to the text regarding “incitement,” that run counter to the U.S. commitment to unfettered free speech.

Unfortunately, it now seems certain these remaining concerns will not be addressed in the document to be adopted by the conference next week. Therefore, with regret, the United States will not join the review conference. The United States remains fully committed to upholding the human rights of all individuals and to fighting racial discrimination of every form in every context. We will continue to work assiduously in all United Nations fora and with all nations to combat bigotry and end discrimination.