If the reaction by the special pleaders in the civil rights lobby and their various mouthpieces in the media is any indication, one would think that the Supreme Court ruling striking down some race-based preference plans for purposes of “integrating” schools thus making them more “diverse” will bring back the bad old days of little black children being barred from entering the pristine halls of white schools while men with white hoods hover in the background with ropes and burning crosses.

In fact, the more exaggerated the response to decisions like this, you can bet that there is precious little the left can do to argue based on the facts. Substituting hyperbole and issuing dire pronouncements about the imminent return of segregated schools and the evisceration of Brown v. Board of Education only obscures the unsettling nature of the decision itself; and that is that quotas suck.

Now I’m not a lawyer. But I have been blessed with my fair share of common sense which, when talking about the law, should more than suffice in forming an intelligent opinion regarding the efficacy of one legal issue or another – usually. The problem (and I’ve written about this before) is that the American people have become disconnected from the law in a way that the Founders could never have envisioned. Its complexity, its obscurity, its sheer, mind numbing, all-encompassing embrace of every facet of our lives breeds ignorance and contempt for not only the law but those who seek to interpret it or use it for one purpose or another.

So all the overwhelming majority of us have when it comes to trying to gauge the fairness or unfairness of the law is our common sensical notions of right and wrong as well as a dependence on those who do, in fact, have the expertise to interpret it. The problem, if you’ve read enough about this school quota system case, is that not everyone sees the decision the same way. There are different interpretations, different issues emphasized.

In the end, even after educating ourselves, all that we non-legal experts are left with is good old fashioned American ideas about fairness and justice. Come to think of it, that’s not such a bad way to interpret the law in the first place.

As mentioned above, the left is having an apoplectic fit:

The Supreme Court ruled 53 years ago in Brown v. Board of Education that segregated education is inherently unequal, and it ordered the nation’s schools to integrate. Yesterday, the court switched sides and told two cities that they cannot take modest steps to bring public school students of different races together. It was a sad day for the court and for the ideal of racial equality.

Since 1954, the Supreme Court has been the nation’s driving force for integration. Its orders required segregated buses and public buildings, parks and playgrounds to open up to all Americans. It wasn’t always easy: governors, senators and angry mobs talked of massive resistance. But the court never wavered, and in many of the most important cases it spoke unanimously.

Yesterday, the court’s radical new majority turned its back on that proud tradition in a 5-4 ruling, written by Chief Justice John Roberts. It has been some time since the court, which has grown more conservative by the year, did much to compel local governments to promote racial integration. But now it is moving in reverse, broadly ordering the public schools to become more segregated.

Is that true? Did the Supreme Court of the United States really throw out 50 years of desegregation law and order schools to “Resegregate” as the New York Times helpfully coins the word of the day?

Not so fast.

Race conscious policies using non racial means are favored and must be attempted first; race based assignment policies that target individual students (as opposed to structural reforms like school siting policies) are permitted if they make individualized determinations and use race as only one factor.

Oh my, here goes those evil conservatives again, wanting to treat people as individual human beings rather than as a member of a “group” or “class” or “protected group.” What’s a civil rights lawyer to do?

There’s much more at that Balkinization link and you should read the whole piece because Mr. Balkin and others (including Paul Mirgenoff at Powerline) are training their legal eyes on the concurring opinion of Justice Kennedy who Eugene Volohk points out, has been the swing vote in every single 5-4 decision this term.

As I understand it (and anyone out there is more than welcome to correct me if I’m wrong), while the majority opinion – written here by Chief Justice Roberts – forms one leg of the law, concurring opinions can be given weight by lower courts as well – assuming they are well written and clear enough in where they dissent from the majority opinion. In this case, Justice Kennedy concurrence becomes extremely important because he dissented from Robert’s opinion in a couple of key areas. Powerline has one:

Today’s Supreme Court decision in the race-based school assignment cases turns out to be a disappointment. Chief Justice Roberts wrote an excellent opinion explaining why the two plans are unconstitutional, and four other Justices agreed with the result. However, one of them, Justice Kennedy, would not sign on to a key part of the Roberts opinion—the part that says assigning students to schools by race cannot be justified as a means of achieving a racial balance in particular schools that reflects the school district’s racial demographics. This leaves the door open for school systems to develop different types of plans for assigning students by race for that purpose, and then to try and persuade sympathetic lower courts that the plan in question does not run afoul of what Kennedy said in his concurrence.

Beyond the inherent undesirability of this result, Kennedy’s opinion strikes me as a poor vehicle for it. Unless I’ve missed something, Kennedy does not provide much guidance about the kinds of plans for assigning students to public school using race as a factor he would uphold. Kennedy’s opinion will become the touchstone by which the constitutionality of racial discrimination in public school assignment will be judged. Having conferred this role upon himself, he should have been more clear about what he will and will not accept. His lack of clarity may leave school districts confused and lower courts unbound.

Sabotage by Kennedy? Or common sense? Here’s Jack Balkin again:

Nevertheless, Kennedy has no problem with race-conscious policies by school boards that don’t involve the specific assignment of individual students to schools based on their race. That means that race conscious policies that site new schools or move old ones based on expectations about likely racial makeup are permissible. Policies that assign students randomly by lottery or use factors like geographic distance from a school are also perfectly permissible, even if they are designed to achieve a more diverse balance of students by race and ethnicity. For example, a school district that used magnet schools with assignments based on nonracial factors to promote racial diversity would be permissible under his model.

This seems eminently fair and equitable to me. I have no problem with diversity in our schools as long as it is achieved with a minimum of fuss and a maximum of common sense. Steven’s concurrence would seem to fit that definition although Paul’s caution about the vagueness of his wording should be taken to heart. But at least the Roberts opinion puts a brake on purely race based decisions by school boards – something that is long overdue.

What has happened to the idea of judging someone “not by the color of their skin but the content of their character,” as Martin Luther King pleaded for in front of the Lincoln Memorial so many years ago? We have gotten so far afield of the idea that the law’s protections are ultimately extended to individuals, not groups that when a ruling like this comes down, a “protected class” as defined by the law howls bloody murder.

No, we are not a color blind society – far from it. Institutional racism is not a thing of the past nor is it likely to decline without at least some intervention of government and the courts. This, ultimately, was what Brown v. Board of Education was all about; a recognition that only the federal government was powerful enough to overcome 300 years of bigotry and racism.

But in the last few decades, this intervention by the courts had proved in some cases to be arbitrary, capricious, and just plain unfair. The American people – both black and white – sensed this on more than one occasion and protested – to no avail. Pushed by the special pleaders in the civil rights lobby as well as a liberal credo that demanded we pay homage to “white guilt” while working toward a more “diverse” and “multi-cultural” society, “civil rights” lost its meaning and became just one more issue that high paid lobbyists worked the Hill to grab whatever goodies and special benefits they could from Congress for their constituencies.

Any opposition to orthodoxy as dictated by the special pleaders – be it on issues like affirmative action, or employment law, or any other issue they deem it necessary to apply their narrow interpretation of “fairness” or “justice” – will bring immediate cries of “racist” in order to tar their opponents with the slimiest epithet in the American political lexicon. This makes discussion impossible – unless you are willing to accept the parameters they set for debate.

This Supreme Court decision will cure none of this, of course. But it injects a little much needed common sense into our debates over how best to make the words in our Declaration of Independence and Constitution live for everyone and not just those who by accident of birth enjoy certain advantages over their fellow citizens.

The release of nearly 700 pages of formerly classified documents detailing CIA lawbreaking from the 1950’s to the 1970’s will hardly surprise those who have been critics of the agency. Many of the “black bag” operations, the wiretaps, the surveillance, the unusual experiments on American citizens, have been hinted at or exposed through the years so there are no real bombshells – although I found the process of how these operations were compiled fascinating.

Evidently, former DCIA James Schlessinger ordered the review of CIA operations from the 1950’s on, regarding activities that “fell outside of the Agency’s charter” when he discovered two of the Watergate burglars had help from inside the agency to carry out some of their domestic spying on Democrats. What he discovered – the so-called “Family Jewels” – was placed in a file and the Justice Department was briefed by Schlessinger’s successor, William Colby.

Here is a summary of these illegal activities per a contemporary Justice Department memo obtained by The National Security Archive:

1. Confinement of a Russian defector that “might be regarded as a violation of the kidnapping laws.” (A reference to James Angleton’s holding of defector Yuri Nosenko).

2. Wiretapping of two syndicated columnists, Robert Allen and Paul Scott.

3. Physical surveillance of muckraker Jack Anderson and his associates, including current Fox News anchor Britt Hume.

4. Physical surveillance of then Washington Post reporter Michael Getler.

5. Break-in at the home of a former CIA employee.

6. Break-in at the office of a former defector.

7. Warrantless entry into the apartment of a former CIA employee.

8. Mail opening from 1953 to 1973 of letters to and from the Soviet Union.

9. Mail opening from 1969 to 1972 of letters to and from China.

10. Behavior modification experiments on “unwitting” U.S. citizens. (LSD and other drug trials)

11. Assassination plots against Castro, Lumumba, and Trujillo (on the latter, “no active part” but a “faint connection” to the killers).

12. Surveillance of dissident groups between 1967 and 1971.

13. Surveillance of a particular Latin American female and U.S. citizens in Detroit.

14. Surveillance of a CIA critic and former officer, Victor Marchetti.

15. Amassing of files on 9,900-plus Americans related to the antiwar movement.

16. Polygraph experiments with the San Mateo, California, sheriff.

17. Fake CIA identification documents that might violate state laws.

18. Testing of electronic equipment on US telephone circuits.

These files were slated to be released years ago – except George Tenet refused:

CIA director Gen. Michael Hayden announced today that the Agency is declassifying the full 693-page file amassed on CIA’s illegal activities by order of then-CIA director James Schlesinger in 1973—the so-called “family jewels.” Only a few dozen heavily-censored pages of this file have previously been declassified, although multiple Freedom of Information Act requests have been filed over the years for the documents. Gen. Hayden called today’s release “a glimpse of a very different time and a very different Agency.”

“This is the first voluntary CIA declassification of controversial material since George Tenet in 1998 reneged on the 1990s promises of greater openness at the Agency,” commented Thomas Blanton, the Archive’s director.

Hayden also announced the declassification of some 11,000 pages of the so-called CAESAR, POLO and ESAU papers—hard-target analyses of Soviet and Chinese leadership internal politics and Sino-Soviet relations from 1953-1973, a collection of intelligence on Warsaw Pact military programs, and hundreds of pages on the A-12 spy plane.

Those last documents will be a boon to Cold War historians. Down through the years, we’ve had leaks from those analyses but never the whole story of what the CIA knew, what they believed, and what they were telling policy makers. It should make for fascinating reading.

As for the rest, it is apparent that for 25 years or more, the CIA was an agency out of control, beyond the law, and shockingly insensitive to civil liberties.

What new?

I have rarely been surprised or horrified by what the CIA has done down through the years “in our name.” The world is a cold, brutal place and there are many times when the “ends/means argument” is not relevant. Nor is the criticism that there was “no moral difference” between what the Soviets were doing and what the CIA did valid. Of course there was a difference; they were the enemy and what the CIA did most of the time to protect the United States was its own moral justification – survival.

Clearly, this was not always the case. The Agency was a good friend in Latin America of American business interests like United Fruit Company and AT & T. Helping to overthrow governments not friendly to American corporations is a whole other story – one that needs telling. But by and large, CIA actions down through the years have been necessary. Whether we can decide if those actions were “moral” or not is a luxury granted those who can sit in judgement enjoying the benefits of freedoms protected and fought for by some of the most dedicated public servants in our nation’s history.

Domestic spying operations initiated by Nixon brought the Agency great shame, as well it should. Nixon’s paranoia about his enemies should not have led to the kinds of surveillance carried out against American citizens by the CIA. Someone, somewhere should have stood up to the President and told him that what he was suggesting was outside the Agency’s charter and illegal to boot. The fact that no one did – at least no one that we know of – should not surprise us given that list above.

If you enjoy playing “what if” with history, let’s go ahead and put Humphrey in Nixon’s shoes from 1969-72. Thousands of people in the streets calling for not only the defeat of the United States military on the field of battle but also calling for the overthrow of the US government. Clear evidence that a substantial source for funding this movement came from our bitter enemies. Certain involvement in the anti-war movement by the KGB and the GRU (Soviet Military intelligence).

What would Hubert have done? How much differently would he have reacted to this grave threat to our internal security? It certainly puts a little different light on things when you take Nixon’s name away and substitute the beloved Humphrey. Anyone who says that Humphrey would have done none of the things Nixon did or that everything he did would have been on the up and up is not being rational. Presidents do what they feel they have to do to protect the country. And Humphrey would have been no different. Not being a paranoid, I imagine a lot less of what Nixon did would have been going on. But I can imagine Humphrey feeling it necessary to open mail and perhaps utilize the CIA’s expertise in “black bag” operations.

A fascinating exercise but not really germane. For some, the revelations contained in the documents will validate a world view where the CIA was “off the reservation” and out of control. For others, the documents will be interesting historical curiosities and nothing else. But somewhere, there is the truth. And revealing that truth is always a good thing no matter where you stand.

Phew! What a relief.

All these years since 9/11, I was under the mistaken impression that we were engaged in a war with al-Qaeda and its many offshoots, imitators, wannabes, and pretenders. But we have all now been happily disabused of such a stupid notion.

First, it was the Democrats who declared there is no “War on Terror” by banishing the very term from official documents and correspondence. Fine with me. Out of sight, out of mind, I say. There’s plenty of room here in this whole in the sand I’ve dug to stick my head. More the merrier.

And now the Fourth Circuit Court of Appeals has made it official. Those legal residents of the United States who plan mass murder against innocent American civilians cannot be held by the military as “enemy combatants.” Instead, they are entitled to receive all the help to beat the rap the anti-American left can give them in the form of glory seeking attorneys, a ready made PR machine in the mass media who will make sure he is seen as just some dope who got duped by Osama, and legions of civil liberties absolutists who believe the Constitution of the United States is actually a suicide pact in disguise:

The federal appeals court in Richmond, Va., ruled yesterday that the president may not declare civilians in this country to be “enemy combatants” and have the military hold them indefinitely. The ruling was a stinging rejection of one of the Bush administration’s central assertions about the scope of executive authority to combat terrorism.

The ruling came in the case of Ali al-Marri, a citizen of Qatar now in military custody in Charleston, S.C., who is the only person on the American mainland known to be held as an enemy combatant. The court said the administration may charge Mr. Marri with a crime, deport him or hold him as a material witness in connection with a grand jury investigation.

“But military detention of al-Marri must cease,” Judge Diana Gribbon Motz wrote for the majority of a divided three-judge panel.

The court, the United States Court of Appeals for the Fourth Circuit, said a fundamental principle is at stake: military detention of someone who had lawfully entered the United States and established connections here, it said, violates the Constitution.

“To sanction such presidential authority to order the military to seize and indefinitely detain civilians,” Judge Motz wrote, “even if the president calls them ‘enemy combatants,’ would have disastrous consequences for the Constitution — and the country.”

Alright already. I’m an authoritarian-loving, goose stepping, anti-constitutional Bushbot. But that still won’t answer the question the court refused to deal with: Are we at war or not?

If we are not at war, impeach the President, I say. He has grossly overstepped his authority and should be hauled before the Senate and put on trial. Same goes for Cheney and the whole gang at DOJ who have concocted this “War on Terror” thing for purposes of wielding enormous power over the rest of us and putting liberals, homosexuals, atheists, and anti-war demonstrators in concentration camps, declaring them “enemy combatants,” and confiscating their copies of The Noam Chomsky Reader.

Or, if we are at war, we better get deadly serious about making sure that terrorists – whether they be legal residents or not – can’t use the Constitution as a shield to help them escape justice. The very nature of their crimes means that most of the evidence against them has come via highly sensitive intelligence and other “national technical means” like eavesdropping or other forms of communications intercepts. And don’t you know that al-Qaeda and their allies (not to mention our own left wingers) would just love to have those secrets revealed in open court? The military and the government, on the other hand, would probably take a much dimmer view of telling al-Qaeda exactly how we keep an eye on them.

It doesn’t matter now. The Fourt Circuit has ruled we are not at war and that we can all get back to the business of ignoring the threats against us. Until we get hit again, of course. Then we get to go through the same baloney we’ve been experiencing for the last 6 years.

In trying to answer that question, the Chicago Tribune has revealed the truth; that some hate crimes are more hateful than others.

The Trib becomes the first major league newspaper to do a front page, above the fold story on the brutal murders of Channon Christian and Christopher Newsom, the young Knoxville, Tennessee couple who were kidnapped, raped, and murdered by a group of young African Americans. Beyond that, the paper tackles the controversial question of whether or not that brutal crime was, in fact, a hate crime as well as addressing the double standard at play in the media and society when black on white crime occurs:

Yet as brutal as the crime was, Knoxville authorities have strongly denied that it was racially motivated. And they have sought to correct rumors, eagerly spread by white supremacist Web sites, that the couple had been sexually mutilated before they were killed and their bodies dismembered afterward.

“There is absolutely no proof of a hate crime,” said John Gill, special counsel to Knox County District Atty. Randy Nichols. “It was a terrible crime, a horrendous crime, but race was not a motive. We know from our investigation that the people charged in this case were friends with white people, socialized with white people, dated white people. So not only is there no evidence of any racial animus, there’s evidence to the contrary.”

Newsom’s parents do not accept that logic.

“If this wasn’t a hate crime, then I don’t know how you would define a hate crime,” said Mary Newsom, Christopher’s mother. “It may have started out as a carjacking, but what it developed into was blacks hating whites. To do the things they did, they would have to hate them to do that.”

The District Attorney’s remarks are quite revealing. Let’s reverse the races and see if his comments would hold up.

A group of white kids beats up and murders a black man. Their defense against invoking the federal hate crime statute? They have friends who are black. They socialize with black kids. They date black girls.

Now you tell me how far that defense will get them with the Jesse Jackson, Al Sharpton, and the rest of the mainstream press, not to mention that clueless district attorney. We’d be hearing how they only dated the young black women to use them for sex. Or they only “socialized” with black kids to get drugs. Or they were only pretending to be friends to black kids.

You and I both know the answer to that question without even thinking. The fact that these “extenuating circumstances” are evidently going to save the murderers of the young Knoxville couple from being charged with a hate crime only tends to highlight the discrepancy.

And that’s not all. When it comes to cross racial crimes that are not considered hate crimes, there is a huge difference in the numbers of white on black crimes as opposed to black on white crimes:

But on the other hand, when overall cross-racial violent crimes are tabulated—including incidents not formally classified as racially motivated hate crimes—Justice Department statistics show that blacks attack whites far more often than whites attack blacks.

In 2005, there were more than 645,000 victims of cross-racial violent crimes between blacks and whites in the U.S. In 90 percent of those crimes, black offenders attacked white victims.

“In the old days,” said Hutchinson, contemplating that statistic, “when you said ‘hate crimes,’ it was automatic—whites victimizing blacks. Today you have to pause for a minute and not make automatic assumptions.”

And yet, despite the fact that blacks are 9 times more likely to commit a violent crime against a white person than the other way around, who gets charged with more hate crimes?

On one hand, African-Americans bear the brunt of violent crime in the U.S.: In 2005, the most recent year for which statistics are available, blacks were more than twice as likely as whites to fall victim to serious violent crime, most often at the hands of other blacks.

Blacks are also the overwhelming majority of victims of attacks recorded by the FBI as hate crimes. In 2005, blacks were the victims in 68 percent of nearly 5,000 hate-crime incidents nationwide, while whites were the victims in 20 percent of the cases. Whites accounted for 60 percent of known hate-crime offenders, while blacks accounted for 20 percent.

So despite the fact that whites are 9 times more likely to be the victim of a violent crime, they are 3 times more likely to be charged with a hate crime? Something is wrong with this picture.

What’s wrong is that racism is still not recognized as a sin that afflicts African Americans. If it were only a question of recognizing that some African Americans hate whites simply because they are white, then there wouldn’t be an argument. But “racism” has become synonymous in the black community with “power” or “the power to oppress.” Since blacks don’t have the power to oppress whites, they are immune from charges of being racists.

It’s convenient, clever, and a crock. This sort of thinking has been enabled by left wing sociologists and other academics for the last 40 years:

Sociologists have defined racism as a system of group privilege. In Portraits of White Racism David Wellman (1993) has defined racism as “culturally sanctioned beliefs, which, regardless of intentions involved, defend the advantages whites have because of the subordinated position of racial minorities,” (Wellman 1993: x). Sociologists Noel Cazenave and Darlene Alvarez Maddern define racism as “...a highly organized system of ‘race’-based group privilege that operates at every level of society and is held together by a sophisticated ideology of color/’race’ supremacy. Racist systems include, but cannot be reduced to, racial bigotry,” (Cazenave and Maddern 1999: 42). These definitions are important advances because the dominant definition of racism presumes that racism is an irrational form of bigotry that is not connected to the organization of social structure.

Scholars such as anthropologist Audrey Smedley (2007) point out that the very idea of ‘race’ implies inequality and hierarchy. Biologically there are no scientific classifications that delineate human groups into ‘races’ (Graves 2004). Historians such as Theodore Allen (1994; 1997) have analyzed colonial records from Virginia and concluded that the idea of a “white race” was originally invented in the early 18th century to splice together various European ethnic groups who never before thought they had anything in common. Noel Ignatiev (1995) has written an historical analysis of how the Irish became members of the “white race” in the 19th century.

The Seattle Public Schools summarized this line of thinking by defining racism thusly:

Racism:

The systematic subordination of members of targeted racial groups who have relatively little social power in the United States (Blacks, Latino/as, Native Americans, and Asians), by the members of the agent racial group who have relatively more social power (Whites). The subordination is supported by the actions of individuals, cultural norms and values, and the institutional structures and practices of society.

Can this be so? If it is true, there is very little chance an African-American – or other minority for that matter – could ever be charged with a hate crime.

Using sociological constructs to redefine a word or concept for political or even legal advantage damages language and communication. What Goldstein points to as “intentionalism” – that is, the classical realist view of the meaning of text and language where the actual intent of the author or speaker is what matters most when analyzing meaning. Clearly there is a political and legal motive to redefine racism to exclude blacks and other minorities. The shocking statistics above make it an open question as to whether this kind of nonsense actually enables violence against whites by blacks, although that may be stretching the point too far.

The article also highlights the disturbing reluctance of African-American leaders to face up to the problem of black on white hate crimes:

But it’s not just conservative whites and extremists who have criticized the national silence over the Knoxville case.

“Black leaders are not eager to take this on because it’s one more thing that would cast a negative light on African-Americans,” said Earl Ofari Hutchinson, an author and nationally syndicated black columnist who has written frequently about the reluctance of black leaders to denounce crimes committed by blacks against whites. “There’s already an ancient stereotype that blacks are more violent and crime-prone, anyway.”

Rev. Ezra Maize, the president of the Knoxville chapter of the NAACP, has been one of the few black leaders to address the case.

“It doesn’t make me uncomfortable speaking out against this crime because it was African-Americans [allegedly] committing a crime against Caucasians,” Maize said. “It’s not a black-and-white issue. It’s a right-and-wrong issue. Those who committed this crime were unjust in doing so and they should pay the penalty.”

“Equal justice under the law” should be just that. And this has been the problem with hate crime legislation from the beginning. By establishing a double standard if not in law then certainly in the enforcement of the law with regard to the prosecution of hate crimes, equality before the law takes a body blow and breeds contempt for the law. Stuart Taylor:

The interracial Knoxville rape-murders would probably not qualify as hate crimes. The reason is that although the murderers were obviously full of hate, it cannot be proven that they hated their victims because of race. (Or so say police.)

Both the Duke lacrosse case and the (fictional) barroom scuffle [where one patron called another a “queer” for spilling a drink on him and then hitting him. Ed.], on the other hand, would probably be federally prosecutable under the bill that the House passed on May 3 by 237-180. This is because the angry words attributed to the accused could prove racist and homophobic motivations, respectively.

Do such distinctions make any sense? Not much, in my view.

Indeed, it may prove that prosecution of hate crimes has as much to do with politics as enforcing the law. And it raises the question is it necessary to have hate crimes statutes in the first place?

Most would agree that some crimes can be particularly heinious where the motivation is racial or ethnic hatred and that hate crime laws – if enforced fairly and equitably – serve both as a deterrent and an additional component of justice. It somehow seems fair that someone should get a longer sentence if his motivation to hurt someone is the result of something beyond the victim’s ability to control – his race, ethnicity, religion, or sexual orientation. But unless the laws can be drawn fairly, I see little point in carrying on the charade that mostly whites are capable of hating another race. That smacks of politics – perhaps an inevitable result of making law to cater to interest groups.