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Democrats on the Brink: Alexander Cockburn and Jeffrey St. Clair; Innocent Lads, Depraved Killers and Predatory Priests by JoAnn Wypijewski; Torture Air, Inc.: the Road to Rendition: by Jeffrey St. Clair. Remember these stories are available exclusively in the print edition of CounterPunch. CounterPunch Online is read by millions of viewers each month! But remember, we are funded solely by the subscribers to the print edition of CounterPunch. Please support this website by buying a subscription to our newsletter, which contains fresh material you won't find anywhere else, or by making a donation for the online edition. Remember contributions are tax-deductible. Click here to make a donation. If you find our site useful please: Subscribe Now! or write CounterPunch, PO BOX 228, Petrolia, CA 95558 |
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Other Lands Have Dreams: From Baghdad to Pekin Prison by KATHY KELLY  Today's Stories March 24, 2005 Andrew Wimmer
and Mark Chmiel
Patrick Bond Mike Whitney Becky White Michael Donnelly Niranjan Ramakrishnan Ashley Smith David Swanson Derrick O'Keefe Paul A. Moore Dalton Walker Patrick Cockburn
March 22, 2005 William Blum Jim Vallette Greg Moses John Farley Ron Jacobs M. Junaid Alam Rep. Cynthia
McKinney Dave Lindorff James Petras
March 21, 2005 John Walsh Werther Mike Stark David Swanson James T. Phillips Mike Ferner Robert Jensen Paul Craig
Roberts Stew Albert Website of
the Day
March 19, 2005 Alexander Cockburn Tom Reeves Saul Landau Alan Maass Ron Jacobs David Green John Blair Steve Greenfield Ben Tripp Mike Roselle Joshua Frank Mark Weisbrot Dave Lindorff Sarah Schaffer Warren Hastings Poets' Basement
March 18, 2005 Dave Zirin Richard Thieme John Walsh David Swanson Ben Terrall David Boyle Dorreen Yellow Bird Mokhiber /
Weissman Greg Moses Website of
the Day
March 17, 2005 Christopher
Brauchli Bill Quigley Brian Cloughley Gary Bass / Adam Hughes Dave Lindorff Jude Wanniski Alexander Billet John Ross Website of the Day
March 16, 2005 Ralph Nader William Cook Kevin Zeese Jackie Corr Alan Maass David R. Kolker Cindy Ellen
Hill Paul Craig
Roberts
March 15, 2005 Gary Leupp Dave Lindorff Greg Moses Hadas Their
/ Katrina Yeaw Alison Weir Matt Koehler Evelyn Pringle Harry Browne
March 14, 2005 Ralph Nader David Miller Stan Cox Mike Roselle David Swanson Simona Sharoni Dave Lindorff Dorreen Yellow Bird Tom Barry Website of the Day
March 12 / 13, 2005 David H. Price Noam Chomsky Laura Carlsen Stan Goff Valentina Nicoli Michael Leonardi Saul Landau
/ Sarah Anderson Joe Bageant Manuel García,
Jr. Greg Moses James J. Brittain Ben Tripp Joshua Frank Fred Gardner Walter Brasch Ramzy Baroud Christopher
Brauchli Michael Donnelly Ron Jacobs Richard Oxman Poets' Basement
March 11, 2005 Jerry Fresia Ron Jacobs Dave Lindorff William James
Martin Muqtedar Khan Kathryn Ledebur Mike Whitney Dave Zirin Website of the Day
March 10, 2005 Paul Craig
Roberts John Marc Leas, Colleen McLaughlin
and Ashley Smith Larry Birns Michael Donnelly Luis Gomez Jackie Corr Uri Avnery Website of the Day
March 9, 2005 Jeffrey St.
Clair Ward Churchill Robert Fisk Bernice Powell Jackson Mickey Z. Dave Zirin Michael Donnelly James Reiss Vijay Prashad
March 8, 2005 Paul Craig
Roberts Robert Fisk Kurt Nimmo Suzan Mazur Evelyn Pringle Giuliana Sgrena Elaine Cassel
March 7, 2005 Dave Zirin Brian Cloughley John Chuckman Mike Whitney Mark Weisbrot Fred Gardner Richard Neville Uri Avnery
March 5 / 6, 2005 Alexander Cockburn Gary Leupp Ron Jacobs Tom Reeves Jenna Orkin Tom Barry Joshua Frank Moshe Adler Jane Stillwater Omar Barghouti / Jacqueline
Sfeir Christopher
Brauchli John Pilger Raúl
Zibechi David Krieger Three Takes on Nepal Surendra R. Devkota Bhishma Karki Joseph Pietri Ben Tripp Poets' Basement Website of
the Weekend
March 4, 2005 Frederick Hudson
March 3, 2005 Pat Williams Brian Cloughley Dave Lindorff Amira Hass Greg Moses Lynne Landes Nelson P. Valdés John Ross
March 2, 2005 Saul Landau
/ Farrah Hassen Mike Roselle M. Junaid Alam Suzan Mazur Jackson Thoreau Michael Donnelly Jeffrey St.
Clair Website of the Day
March 1, 2005 Scott Richard
Lyons David Lindorff Patrick Cockburn
/ David Enders Ron Jacobs Tanya Garcia Joseph Pietri Kona Lowell Paul Craig
Roberts Website of
the Day
February 28, 2005 Gary Leupp Bill Quigley Paul de Rooij David Swanson Mario Lamo
Jimenez Emma Perez Diana Johnstone Website of the Day
February 26 / 27, 2005 Alexander Cockburn Noam Chomsky Rev. William E. Alberts Fred Gardner Gary Leupp Saul Landau Robin Philpot Yitkhak Laor Ben Tripp Justin Taylor Jack Random Rafael Renteria Jim B. Seth DeLong John Chuckman Alison Weir Richard Oxman Dr. Susan Block Poets' Basement
February 25, 2005 Roger Burbach Behzad Yaghmaian Kurt Nimmo Joshua Frank John Farley Lawrence Reichard Pratyush Chandra David Smith-Ferri Website of
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February 24, 2005 Omar Waraich Brian Cloughley Tom Wright Sharon Smith Dave Lindorff Fred Feldman James Reiss
Diane Christian Website of
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February 23, 2005 Werther W. John Green James Petras Conn Hallinan Joe Pietri Louis Proyect Alexander Cockburn Website of
the Day
February 22, 2005 Naseer Aruri Richard Manning William A.
Cook Paul Craig Roberts Ken Krayeske Dave Zirin Kirkpatrick
Sale
February 21, 2005 Hunter S. Thompson John Ross Ward Churchill Dr. Teresa
Whitehurst David Swanson Dave Lindorff Stew Albert Michael Neumann
February 19 / 20, 2005 Alexander Cockburn Kathleen Christison Ted Honderich Gary Leupp Don Santina Jennifer Roesch Scott Richard
Lyons Chris Clarke George Beres Harry Browne Manuel Garc'a,
Jr. Mark Scaramella Michael Donnelly John Pilger Norman Madarasz Surendra Devkota Deborah Rich Fred Gardner CounterPunch
News Service Richard Oxman Poets' Basement
February 18, 2005 Ben Moxham Dave Lindorff Larry Birns Gregory Elich Samuel Logan / John Meyers Nicole Colson Suzan Mazur Mickey Z.
February 17, 2005 Joshua Frank Paul Craig
Roberts Robert Fisk Christopher
Brauchli Dr. Teresa
Whitehurst Alison Weir Ahrar Ahmad Saul Landau Website of the Day
February 16, 2005 Robert Fisk Kevin Zeese Gary Leupp Ron Jacobs Jessica Leight Greg Moses Mark Engler Jack McCarthy Bill Christison Website of the Day
February 15, 2005 CounterPunch
News Service Robert Fisk Uri Avnery Stan Cox Mickey Z. Dave Zirin Nadia Martinez Lila Rajiva Paul Craig
Roberts
February 14, 2005 Robert Jensen Brian Cloughley Patrick Cockburn Gary Leupp Michael Donnelly Dave Lindorff Elaine Cassel
February 12 / 13, 2005 Alexander Cockburn Saul Landau Paul Craig
Roberts Patrick Cockburn John Feffer Mickey Z. Kurt Nimmo Fred Gardner Dave Zirin John Chuckman Ben Tripp Carol Norris Robert Fisk Frank / Chowkwanyun Mike Whitney Deborah Frisch Niranjan Ramakrishnan Christine TenBarge Ron Jacobs Dr. Susan Block Poets' Basement Website of the Weekend
February 11, 20055 Manuel Garcia,
Jr Kurt Nimmo Dave Lindorff Larry Birns Bill Quigley Tom Barry Jennifer Van
Bergen
February 10, 2005 Dave Lindorff Christopher Brauchli Patrick Cockburn Nicole Colson Suzan Mazur Michael Donnelly Mike Stark Greg Moses Website of
the Day
February 9, 2005 Jeffrey St.
Clair Mickey Z. John Ross Tom Barry Conn Hallinan Patrick Cockburn Steen Sohn Tim Wise Website of
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February 8, 2005 Patrick Cockburn Brian Cloughley Steve Breyman Harry Browne Doug Giebel Nate Collins Dave Lindorff David Smith-Ferri
February 7, 2005 Paul Craig
Roberts Carolyn Baker Joshua Frank Mickey Z. Patrick Cockburn Mike Whitney Stacie Jonas Dave Zirin Tariq Ali
February 5 / 6, 2005 Alexander Cockburn Kurt Nimmo Joshua Frank P. Sainath Patrick Cockburn Laura Carlsen Dave Lindorff Pamela Olson Behzad Yaghmaian Saul Landau / Farrah Hassen Roger Burbach Robert Fisk David Swanson Justin E.H. Smith Cacie Hart Ron Jacobs Mickey Z. Ben Tripp Ben Sonnenberg Poets' Basement Website of
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February 4, 2005 Brian Cloughley Bill Christison Elaine Cassel Jacob Levich Kanak Mani Dixit Ron Jacobs
February 3, 2005 Ward Churchill Sharon Smith Mickey Z. Mike Whitney Jenna Orkin Saul Landau Yitzhak Laor Dave Lindorff
February 2, 2005 David Domke
/ Kevin Coe Noam Chomsky M. Shahid Alam Richard Oxman Joshua Frank Dave Lindorff Nina Hartley Website of the Day
February 1, 2005 Joshua L. Dratel Patrick Cockburn Robert Fisk Uri Avnery Col. Dan Smith Alison Weir Alan Farago Ray Hanania Paul Craig
Roberts Website of the Day
December 22, 2004 James Petras Omar Barghouti Patrick Cockburn / Jeremy Redmond Harry Browne Richard Oxman Kathleen Christison Website of the Day
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March 24, 2005 The Legal Implications of the Schiavo CaseWhen Fools Rush InBy ELAINE CASSEL The case of Theresa Marie Schiavo has again made headlines this week. As readers are probably well aware, Schiavo is in a persistent vegetative state (PVS) as the result of a 1990 heart attack. PVS, also known as "cortical death," is the irreversible loss of the part of the brain controlling judgment and reason. Physical functions and reflexes are intact in varying degrees, but any meaningful life is gone. The controversy is over whether Schiavo's feeding tube should be removed, an act that will lead to her death. (A feeding tube is a form of artificial life support employed when a brain-damaged patient, like Terri, is unable to swallow and ingest food and water.) The important question is what
Schiavo herself would have wanted. Her husband, Michael, says
she would have wanted to have her feeding tube removed, so that
she can die. Schiavo's parents, Robert and Mary Schindler, however,
say that Terri would have wanted to continue to live. Accordingly,
For twelve long years, state and federal courts have entertained petitions and cross-petitions relating to the Schiavo case. Thrice, the Supreme Court has declined to hear the case. This case belongs in court -- for it is a court's province to determine objectively, without bias, based on the evidence, what Schiavo's preference would have been. Unfortunately, however, Congress has inappropriately intervened in ongoing court proceedings. In so doing, I will argue, it has threatened the separation of powers, and inappropriately imposed its own -- and its constituents' -- religious beliefs into a secular matter.
The Recent History of the Schiavo Case A complete timeline of the Schiavo case is maintained by the University of Miami. For purposes of this column, I will simply provide the recent facts relating to the current controversy: On March 18, 2005, Terri Schiavo's feeding tube was removed, in compliance with a court order by Pinellas County, Florida Circuit Judge George Greer handed down on February 25, 2005. (This was not the first time it had been removed -- it was actually the third time.) The federal courts, including the U.S. Court of Appeals for the Eleventh Circuit in Atlanta and the U.S. Supreme Court (on March 17, 2005), followed the U.S. District Court and refused to intervene. So on March 18, the same day the feeding tube was ordered to be removed, Terri's parents petitioned the U.S. District Court for the Middle District of Florida (Tampa Division) -- which I will refer to as "the Florida federal court" -- to order that the feeding tube be re-inserted. The petition claimed that Terri's right to life is being violated on several grounds, among them her religion and disability. It likened Judge Greer's order to a death sentence, and argued that like a death row inmate, Terri should have federal court recourse. (The petition was in the nature of a habeas corpus petition, which is utilized by death row inmates when execution is imminent and all state and federal appeals have been exhausted.) On March 16 and 17, as it became apparent that the Schindlers' efforts were not going to be rewarded by the federal courts, the U.S. Senate and House each began crafting different pieces of legislation designed to thwart the order of the state and federal courts. Initially, the legislation was broadly conceived, and written to cover all incapacitated persons who did not have "living wills" and "advance medical directives" (instruments directing a medical surrogate to make health-care decisions when one is unable to do so and also stating what type of artificial life-sustaining measures one would or would not want to have employed). But when the broader legislation got bogged down in details and arguments over the impact it would have on state laws governing living wills and medical directives, in effect ordering a federal remedy that could supplant state procedures, both houses began crafting legislation specifically for Terri Schiavo and no one else.
The "Palm Sunday Compromise" On March 21, Congress passed U.S Senate Compromise Bill 686, "For the relief of the parents of Theresa Marie Schiavo." In the early morning hours of March 22, President Bush signed the bill into law. Procedurally, the law specifically designates the Florida federal court at which Schiavo's parents filed their petition as having jurisdiction over the matter. (Previously, the court held it lacked jurisdiction.) In addition, the law orders the Florida federal court not to be bound by any prior state court actions concerning Terri. In particular, the law granted this particular federal court jurisdiction to review "alleged violations" of Terri Schiavo's rights "under the Constitution or laws of the United States." It also authorizes the Florida federal court to "issue such declaratory and injunctive relief as may be necessary to protect the rights of Theresa Marie Schiavo under the Constitution and laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life." However, it also says that "[n]othing in this Act shall be construed to create substantive rights not otherwise secured by the Constitution and laws of the United States or of the several States."
The Florida District Court Proceeding On March 22, the Schindlers' petition -- the one that had been dismissed by the federal courts days earlier -- was refiled on the docket pursuant to the special law. With it was filed a petition for injunction and a demand that Terri be transported from the hospice where she is being cared for to a hospital for re-insertion of the feeding tube. The law authorized the federal court to hear claims respecting violations of Terri's constitutional rights, but was silent as to what those rights were. The parents' petition, however, specifically alleged that Terri's constitutional rights had been violated in several respects. They argued that (1) Terri had not been granted a fair "trial," inasmuch as it was alleged that her husband and guardian, Michael, did not have her best interests at heart and also that Judge Greer acted against Terri's interest and contrary to law in making rulings about her health care; (2) the unfair trials effectively denied her life without due process of law; (3) Terri had been denied equal protection of the laws because of the way the Florida state court had allowed the medical decision to be made for her; and (4) her right to exercise her religion had been violated because of the pronouncement of Pope John Paul II that the removal of her feeding tube would be a "sin" and effectively "damn" Terri's soul. On March 22, the Florida federal court uled that the feeding tube should not be replaced. In a 13-page opinion, Judge James Whittemore denied the petition for injunction, finding that there was no reasonable likelihood that Terri's parents would succeed on the merits of their claims--the four constitutional grounds described above. In so holding, Judge Whittemore was applying longstanding principles as to the burden plaintiffs have when seeking injunctive relief prior to a ruling on the merits of the claims: They must show likelihood of success on the merits. Instead, Judge Whittemore found virtually no support for the Schindlers' claims, so his refusal to grant the injunction was not even a close call. In their appeal to the Eleventh Circuit, Terri's parents lambasted Judge Whittemore, saying he ignored the mandate of the law -- which, they argued, required the court to order the feeding tube reinserted and then conduct a full hearing on their claims.
Congress's law may seem complex, but its direct effect -- at least -- is simple: Rather than respecting prior state court orders and rulings, Congress decided to give Schiavo's parents another chance, in federal court, on a blank slate. In doing so, it chose to nullify prior state court rulings because -- for religious reasons -- it did not agree with them. Yet the federal court, it turned out, did not choose to contravene the prior state court order. In fact, Judge Whittemore began his opinion stating that S. 686 may be found unconstitutional, but for the purposes of the petition for preliminary injunction he would assume its constitutionality. Nevertheless, he opined, "Even under these difficult and time strained circumstances, and notwithstanding Congress' express interest in the welfare of Theresa Schiavo, this court is constrained to apply the law to the issues before it." By a 2-1 decision handed down in the early morning hours of March 23, the appeals court agreed with Judge Whittemore. Said the majority decision, "We all have our own family, our own loved ones, and our own children. However, we are called upon to make a collective, objective decision concerning a question of law." Applying the age-old standard for reviewing a lower court's denial of injunctive relief, the majority found that Judge Whittemore had not abused his discretion. They referred to his "careful" order, which they attached to their decision. Their opinion confronts head on the Schindlers' insistence in their appeal that the law required the court to order that the feeding tube be reinserted. The decision quotes from an exchange between Senators Levin and Frist about whether or not the Congress was ordering the federal courts to so do. Frist assured Levin that this was not the case, although he assumed, wrongly, that the courts would so order. Later in the day on March 23, the Schindlers' petition for the entire panel of Eleventh Circuit judges to rehear the case was denied. As of this writing, the Schindlers are planning to appeal to the Supreme Court, which has twice refused to hear the case, most recently on March 17. What might be the long-term impact of what some have called the "Palm Sunday Compromise?" It is a fundamental principle that Congress cannot simply overrule court decisions it does not like -- except in the very limited case in which it can amend federal statutes in a case that turns on statutory interpretation. But here, Congress tried to rewrite--or rather, invalidate--prior judicial rulings that were the law of Terri's case, violating the bedrock principle of the separation of powers among three co-equal branches of government. Ironically, in so doing, Republicans in Congress also betrayed two of their own fundamental beliefs: The belief in federalism or "states' rights" (remember, it was a state court that issued the order Congress nullified), and the belief in the sanctity of marriage (state statutes had made Michael, as Terri's husband, her presumptive legal guardian). But did the law try to do more than to give the Schindlers an opportunity to go to court to try keep their daughter alive under existing law? Did it also purport to interpret the constitution to set forth a new right to life that applied in this case? Some legal commentators have said so. But prior precedent indicates that the U.S. Supreme Court recognizes no such right. In The Matter of Nancy Cruzan -- another PVS patient kept alive by feeding and hydration tubes -- Chief Justice Rehnquist wrote for the majority that a patient has the right to refuse unwanted medical treatment if that would have been her wish. And because this is a matter of constitutional -- not statutory -- interpretation, it is a matter on which the Court -- not Congress -- has the last word. (In Cruzan, the Court also ruled that the State of Missouri did not have to accept Cruzan's parents as surrogate decision makers for their daughter. Florida law, however, repeatedly has recognized Michael Schiavo as the appropriate surrogate decision maker for his wife.)
Why This Is a Secular -- Not a Religious -- Issue The separation of powers issue is an important one in this case, but an equally pressing issue is raised by Congress's decision to act with primarily -- if not exclusively -- religious justification. As Michael Dorf has explained, such decisions are constitutionally suspect. House Judiciary Committee Chairman James Sensenbrenner (R-Wisconsin) began and ended his speech during House debates Sunday with references to Holy Week. "As millions of Americans observe the beginning of Holy Week this Palm Sunday," he noted, "\we are reminded that every life has purpose, and none is without meaning." Politicians referred to the Pope's pronouncement against the state court order and even referred to the "passion of Terri," equating her state with the suffering of Jesus on the cross. More than this, they noted the passing of Palm Sunday as their efforts became law- as if a kind of resurrection might be in the offing for Terri. The Congress was dead wrong to bring religion to bear on this issue of secular law. For twelve years, and still today, Florida's state and federal courts have been painstakingly applying that law to Terri's case, as Republicans usually want them to do. In this instance, however, it was the "activist" Congress that overstepped its authority. But the federal district, appeals courts and, finally, the Supreme Court have said "thanks, but no thanks," to Congress' order that it assert its will over that of state courts. To quote once again from the Eleventh Circuit opinion, "In the end, and no matter how much we wish Mrs. Schiavo had never suffered such a horrible accident, we are a nation of laws, and if we are to continue to be so, the pre-existing and well-established federal law . . . must be applied to her case." For now, separation of powers and federalism are safe. Elaine Cassel practices law in Virginia and the
District of Columbia, teaches law and psychology, and follows
the Bush regime's dismantling of the Constitution at Civil
Liberties Watch. Her new book The
War on Civil Liberties: How Bush and Ashcroft Have Dismantled
the Bill of Rights, is published by Lawrence Hill. She can
be reached at: ecassel1@cox.net
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