The Class Action Fairness Act of 2005 and its removal provisions

Overview

As I noted in A second, more detailed look at the new class action law, the Class Action Fairness Act of 2005 technically changes only one aspect of federal subject matter jurisdiction--diversity jurisdiction. I began my analysis of the Act by talking about the possible chilling effect of the combination of the Act's removal provisions and its automatic conversion of some non-class actions to class actions. This post will examine the removal issues in detail.

Removal reprise

Once again, here is a brief description of removal...

28 U.S.C. § 1441(a) allows for cases originally filed in state court to be transferred to federal court through a process known as "removal."

Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending...

What this means is that if a case 1) is originally filed in state court, and 2) contains a federal question or has complete diversity of citizenship (or any other basis for federal jurisdiction), a defendant can have the case "removed" (that is, transferred) to federal court.

Once a defendant starts the procedure for removal (see 28 U.S.C. § 1446 for the procedure), there is almost nothing a plaintiff can do to keep the case from going to federal court. Once the case is in federal court, the plaintiff can seek to have the cse sent back to state court through a motion for remand (see 28 U.S.C. § 1447).

The removal provisions of the Class Action Fairness Act of 2005

• The general provision
  

The Act adds 28 U.S.C. § 1453, and the general removal provision is subsection (b):

A class action may be removed to a district court of the United States in accordance with section 1446 (except that the 1-year limitation under section 1446(b) shall not apply), without regard to whether any defendant is a citizen of the State in which the action is brought, except that such action may be removed by any defendant without the consent of all defendants.

(emphasis added). The italicized portion is what is important. Any defendant in a class action can remove the case to federal court. No other rules concerning removal matter.

• Appeal of remand orders

As stated in A second, detailed look at the new class action law, if a case is removed to federal court, the plaintiff can try to get the federal judge to send the case back to state court via a motion for remand (the procedure for which is addressed by 28 U.S.C. § 1447). Subsection (c) of § 1453 represents a major change in the law regarding remand of class actions.

Subsection (c) has four parts. The first part reads as follows:

(1) IN GENERAL- Section 1447 shall apply to any removal of a case under this section, except that notwithstanding section 1447(d), a court of appeals may accept an appeal from an order of a district court granting or denying a motion to remand a class action to the State court from which it was removed if application is made to the court of appeals not less than 7 days after entry of the order.

(emphasis added). Under § 1447(d), an order remanding a removed case back to state court is NOT appealable (unless it involves civil rights claims, which the vast majority of class actions will not). That means that until now once a federal sent a case back to state court, that was the end of the story. The federal district court would no longer have to deal with the case, and the federal Circuit Courts of Appeal would never have to deal with the case. Thus, the motion for remand was a way in which federal district courts could control their dockets. By remanding removed cases, federal judges could cut down on the amount of litigation in their courts. Moreover, by making orders of remand not subject to review by the appellate courts, § 1447(d) made sure that the federal appellate courts would not be burdened by additional appeals.

That has now changed for class actions. To some degree federal district courts will now be required to hear cases which they were not required to hear before, and now the federal courts of appeal will also be required to hear cases that up until now they did have to address. All this means--once again--that the Class Action Fairness Act of 2005 will increase litigation in the federal courts.

Some might say that I am incorrect because the new provision clearly says that a court of appeals may, rather than must, accept an appeal concerning the grant or denial of a remand order. That is what we call in the lawyer business a distinction without a difference. The only way the court of appeals can decline to hear such an appeal is to make a ruling to that effect, and that can happen only if an appeal is filed. That means that the court of appeals will have to consider the case.

The second part of subsection (c) establishes the following timetable:

(2) TIME PERIOD FOR JUDGMENT- If the court of appeals accepts an appeal under paragraph (1), the court shall complete all action on such appeal, including rendering judgment, not later than 60 days after the date on which such appeal was filed, unless an extension is granted under paragraph (3).

So under this provision, if the court of appeals accepts the appeal, it MUST act on it with 60 days. Thus, this provision puts further demand and restraint on how the court of appeals handles its case load. This will have the effect of slowing down the process on other appeals, for the court of appeals will necessarily have to put some matters aside in order to deal with the appeal of a remand order.

The third part of § 1453(c) provides a way by which the 60-day deadline can be extended:

(3) EXTENSION OF TIME PERIOD- The court of appeals may grant an extension of the 60-day period described in paragraph (2) if--
(A) all parties to the proceeding agree to such extension, for any period of time; or
(B) such extension is for good cause shown and in the interests of justice, for a period not to exceed 10 days.

Ten whole days--what a relief! Also, this provision raises the possibility that the court of appeals will have to spend additional time considering and ruling on a motion.

The fourth part of § 1453(c) is very interesting.

(4) DENIAL OF APPEAL- If a final judgment on the appeal under paragraph (1) is not issued before the end of the period described in paragraph (2), including any extension under paragraph (3), the appeal shall be denied.

What this means is that if the court of appeals accepts an appeal from the grant or denial of remand and does absolutely nothing, the appeal is denied. What, then, is the point of filing the appeal? Aside from that, what happens if a motion for extension is filed on day 59 or 60 and the court of appeals does not rule on it? Will the period be extended until such ruling? What if the ruling comes after the supposed 10-day maximum extension would have otherwise terminated? The Act does not address these questions--and believe me, they will come up.

All in all, the appeal provisions of § 1453(c) are going to do nothing but increase litigation in the federal courts in the foreseeable future, and that will negatively impact federal courts' ability to deal with their dockets and get their business done. Furthermore, § 1453(c) leaves many procedural questions unanswered, and until those questions are resolved, business in both the district courts and the courts of appeal are going is going to get bogged down.

And one more thing...The appeal contemplated by § 1453(c) is what is known as an interlocutory appeal. For purposes of this discussion, that means that any action taken by the court of appeals will not result in dismissal of the case. The case will continue. During the appeal, the rest of the case will simply be put on hold (this is an assumption on my part, for the Act does not say anything one way or the other), which adds further delay to the case. One reason this is significant is that while § 1453(c)(3) establishes a 60-day deadline, that time period starts when the appeal is accepted, not from the day the order for remand is granted or denied. This means that as of now, there is no prescribed time in which the court of appeals has to decide whether to accept the appeal.

Conclusion

With the addition of § 1453 to the law, the Class Action Fairness Act of 2005 is not any time soon going to solve many problems that people bent on "law suit reform" claim exist today. It adds to the burden of the federal courts in ways that did not previously exist. At best, the Act is taking some problems that exist in state courts and placing them in the federal courts.

A second, more detailed look at the new class action law

My previous post on the Class Action Fairness Act of 2005 was an initial discussion of the jurisdictional elements of the new law. This post will continue that discussion. If you want to download the entire Act, go to the previous post and follow the instructions therein.

Some basic concepts

For all the non-lawyers and non-Political Science majors, a discussion of some basic concepts is in order. This post discusses jurisdiction. There are many different types of jurisdiction, many of which will not be discussed here. From the legal dictionary at FindLaw.com, here is the general definition of "jurisdiction:" "the power, right, or authority to interpret, apply, and declare the law (as by rendering a decision)." All the types of jurisdiction discussed below share this basic definition.

• Subject matter jurisdiction
  

For purposes of this discussion, the basic type of jurisdiction is "subject matter jurisdiction, the following definition for which can be found at the link above: "the jurisdiction of a court over the subject, type, or cause of action of a case that allows the court to issue a binding judgment." In other words, a court can hear and rule on only those cases which are within its subject matter jurisdiction. The FindLaw.com dictionary goes on to note that "Subject matter jurisdiction is generally established by statute." While this statement suffices for the purposes of this discussion, I would also add that constitutional provisions can also define subject matter jurisdiction.

Stated differently, the types of cases that a court can hear and rule upon are defined by its subject matter jurisdiction, which in turn is defined by statutes.

FindLaw.com also points out that "Diversity jurisdiction, federal question jurisdiction, and jurisdiction over admiralty and bankruptcy cases are examples of the federal courts' subject matter jurisdiction." For reasons that will be explained, the new law effects changes in the law on diversity jurisdiction.

• Federal question jurisdiction

Title 28, Part IV, Chapter 85 of the United States Code (the federal statutes) defines the jurisdiction of the federal District Courts. 28 U.S.C. § 1331 is entitled "Federal question" and says "The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." FindLaw.com provides some explanation of this statute:

The federal courts have usually interpreted the statutory phrase "arising under'' rather strictly. U.S. Supreme Court decisions have held that the plaintiff's pleading must establish that the cause of action raises an issue of federal law (as by depending on construction or application of a federal law).

In the Supreme Court case of Gully v. First Nat'l. Bank, 299 U.S. 109 (1936), Justice Benjamin Cardozo said that federal question jurisdiction "requires that a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff's cause of action...The right or immunity must be such that it will be supported if the Constitution or laws of the United States are given one construction or effect, and defeated if they receive another."

• Exclusive jurisdiction
  

Jurisdiction is exclusive if it is "granted only to a particular court to the exclusion of others." (from FindLaw.com). In other words, if a statute says a given court has jurisdiction over a certain type of case, no other court can hear such a case. A good example is bankruptcy. Pursuant to 28 U.S.C. § 1334(a) and (b), only federal courts have jurisdiction over bankruptcy cases, meaning that state courts cannot hear bankruptcy cases.

• Diversity jurisdiction

28 U.S.C. § 1332(a) defines the basics of federal diversity jurisdiction:

The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between—
(1) citizens of different States;
(2) citizens of a State and citizens or subjects of a foreign state;
(3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and
(4) a foreign state, defined in section 1603 (a) of this title, as plaintiff and citizens of a State or of different States.

And now for some translation...In basic terms, the "amount in cotroversy" is the amount of damages being sought. For instance, if a plaintiff is seeking to recover $100,000, the amount in controversy is $100,000. Subsections (1)-(4) define what is known as diversity of citizenship, but the vast majority of diversity cases involve subsection involve subsection (1). What this provision means is that in order for diversity jurisdiction to exist, no plaintiff can be a citizen of the same state as any defendant (known as complete diversity of parties). For instance, if a plaintiff is from Texas, and the defendant is from Oklahoma, there is diversity of citizenship. However, if two plaintiffs from Texas are suing two defendants, one of which is also from Texas, there is no diversity of citizenship. This rule applies regardless of the number of parties to a suit. If there are 100 plaintiffs and 100 defendants, in order for there to be diversity jurisdiction, not one plaintiff can live in the same state as even one defendant--at least up until now. As we will see, the Class Action Fairness Act of 2005 changes that somewhat.

And there is one more basic concept to discuss...

• Removal

28 U.S.C. § 1441(a) allows for cases originally filed in state court to be transferred to federal court through a process known as "removal."

Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending...

What this means is that if a case 1) is originally filed in state court, and 2) contains a federal question or has complete diversity of citizenship (or any other basis for federal jurisdiction), a defendant can have the case "removed" (that is, transferred) to federal court.

Once a defendant starts the procedure for removal (see 28 U.S.C. § 1446 for the procedure), there is almost nothing a plaintiff can do to keep the case from going to federal court. Once the case is in federal court, the plaintiff can seek to have the cse sent back to state court through a motion for remand (see 28 U.S.C. § 1447).

The basic changes to federal subject matter jurisdiction pursuant to the Class Action Fairness Act of 2005

Before I read the actual legislation, I was getting my information through media reports. What I heard and read was that the Act would give federal courts exclusive jurisdiction of all class actions except for those where the class members were all in one state. That turned out to be inaccurate, as will be shown. Also, the Act does not make jurisdiction in federal court an absolute, mandatory matter, for there are provisions by which a federal judge can decline jurisdiction over a given class action. There are also provisions which say when a federal must decline jurisdiction.

So, on the one hand, the Class Action Fairness Act of 2005 does not on the surface appear to change jurisdiction over class actions to a great degree. On the other hand, there are the matters mentioned in my previous post.

As I mentioned above, as far as subject matter jurisdiction goes, the Act only expressly changes diversity jurisdiction. Former subsection (d) of 28 U.S.C. § 1441 is now subsection (e), and the Act created a new subsection (d). The basic changes appear in what is now subsection (d)(2):

The district courts shall have original jurisdiction of any civil action in which the matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs, and is a class action in which--

(A) any member of a class of plaintiffs is a citizen of a State different from any defendant;

(B) any member of a class of plaintiffs is a foreign state or a citizen or subject of a foreign state and any defendant is a citizen of a State; or

(C) any member of a class of plaintiffs is a citizen of a State and any defendant is a foreign state or a citizen or subject of a foreign state.

Notice that this provision raises the amount in controversy from $75,000 to $5 million. Thus, a multi-state class action does not automatically come withing federal jurisdiction. It has to meet a minimum amout in controversy of $5 million.

Also, notice that for class actions, the requirement of complete diversity does not apply. Under the new law, as long as long as only one member of the plaintiff class is from a different state from only one of the defendants, there is diversity.

This does present a significant change in the law which goes beyond diversity jurisdiction. Before now, any class action in federal court had to have some statutory basis for federal subject matter jurisdiction other than the fact that it was a class action. New § 1332(d)(2) essentially removes that requirement for many class actions.

If the new contained nothing more than new subsection (d)(2), the Class Action Fairness Act of 2005 would be anything but fair. However, there are also some limiting factors in the Act.

Limiting factors

As I said, the impressions left by most of the media coverage were inaccurate. If indeed the Act had given exclusive jurisdiction over most class actions, th Act would have been an abject disaster in my opinion. Such a law would forced federal courts to take on a huge amount of cases and additional work, and the concerns I expressed in my previous post would have manifested to the maximum. However, there are some provisions which--in some ways--will limit the effects of the new law.

• Subsection (d)(3)

This provision allows federal judges to decline to assert jurisdiction over some class actions under a three-part test. The first part is satisfied when the case is first filed is state court. The second part is satisfied when the suit is "a class action in which greater than one-third but less than two-thirds of the members of all proposed plaintiff classes in the aggregate and the primary defendants are citizens of the State in which the action was originally filed based." For the third part, the federal judge must determine whether "in the interests of justice and looking at the totality of the circumstances," the case should remain in state court. The factors the judge must consider are as follows:

(A) whether the claims asserted involve matters of national or interstate interest;

(B) whether the claims asserted will be governed by laws of the State in which the action was originally filed or by the laws of other States;

(C) whether the class action has been pleaded in a manner that seeks to avoid Federal jurisdiction;

(D) whether the action was brought in a forum with a distinct nexus with the class members, the alleged harm, or the defendants;

(E) whether the number of citizens of the State in which the action was originally filed in all proposed plaintiff classes in the aggregate is substantially larger than the number of citizens from any other State, and the citizenship of the other members of the proposed class is dispersed among a substantial number of States; and

(F) whether, during the 3-year period preceding the filing of that class action, 1 or more other class actions asserting the same or similar claims on behalf of the same or other persons have been filed.

Thus, there is a way that federal judges can keep some class action suits out of federal court. Given the concerns over logistics that I discussed in my previous post, I think there is a good chance federal judges will take advantage of this, and that would in turn reduce my concerns about this new law. However, that depends in large part on how the Circuit Courts of Appeal will treat such actions, and that will be covered later in a separate post.

Also, notice that while the factors the judge must consider might seem on the surface to be clear and straightforward, they nonetheless contain ambiguity. Such ambiguity and its potential impact are discussed in connection with Subsection (d)(4).

• Subsection (d)(4)

While (d)(3) is somewhat discretionary, (d)(4) sets out cases over which a federal judge shall decline jurisdiction:

A district court shall decline to exercise jurisdiction under paragraph (2)--

(A)(i) over a class action in which--

(I) greater than two-thirds of the members of all proposed plaintiff classes in the aggregate are citizens of the State in which the action was originally filed;

(II) at least 1 defendant is a defendant--

(aa) from whom significant relief is sought by members of the plaintiff class;
(bb) whose alleged conduct forms a significant basis for the claims asserted by the proposed plaintiff class; and
(cc) who is a citizen of the State in which the action was originally filed; and

(III) principal injuries resulting from the alleged conduct or any related conduct of each defendant were incurred in the State in which the action was originally filed; and

(ii) during the 3-year period preceding the filing of that class action, no other class action has been filed asserting the same or similar factual allegations against any of the defendants on behalf of the same or other persons; or

(B) two-thirds or more of the members of all proposed plaintiff classes in the aggregate, and the primary defendants, are citizens of the State in which the action was originally filed.

(emphasis added). Subsection (d)(4) seems pretty straightforward. It seems like it is a way to keep class actions out of federal courts. However, the italicized sentence indicates something else to me. "Same or similar factual allegations" is vague and can be interpreted to mean many different things. Also "on behalf of the same or other persons" is also vague. If the sentence said on "same factual allegations" and "same persons," there would be no such ambiguity.

Let me explain why the ambiguity is a potential problem. The sentence seems to establish a rule, but the vague language has the potential of creating an exception that could swallow the rule. This would happen over time. Things like this start small and slow, and the process involves many seemingly unrelated steps. See, the vague language could be interpreted to mean one thing one time and something else another time. This is precisely what the Texas Supreme Court has been doing for over 10 years. Decisions are written with broad, vague language, and then the Supremes (and other Texas courts) use that language to justify whatever result they want to reach rather than determining the case by what the law says. To put it in terms that all you wingers can understand, vague language like this enables judges to be "activist judges" rather than judges that apply the law. The chances of this happening in the federal courts is not as great as in state courts. Indeed, right now, I feel that the chances of such conduct in the federal courts is small. However, with Bush having almost four more years to appoint federal judges, the chances could increase. After all, Bush was Governor of Texas when the process really got cranked up in Texas.

Now go back and review the factors the judge must consider under Subsection (d)(3) and see what you think.

Also, how the Circuit Courts of Appeal treat these matters will have a big impact, and, once again, that will be discussed later.

• Subsection (d)(5)

Under this provision, a federal court will not have jurisdiction over a class action if

(A) the primary defendants are States, State officials, or other governmental entities against whom the district court may be foreclosed from ordering relief; or

(B) the number of members of all proposed plaintiff classes in the aggregate is less than 100.

So, if the primary defendants are States or state officials, there will be no jurisdiction. Also, if the total number of plaintiff class members is less than 100, there will be no federal jurisdiction.

As a practical matter, these provisions are not particularly significant. Any suits against States or state officials will be subject to sovereign or official immunity, which means that those parties cannot be sued unless 1) the State gives permission to be sued; 2) there is a statute which specifically allows such a suit; or 3) the state official violates very specific provisions either established by a consitution, statute, or judicial precedent. In Texas, the Texas Supreme Court has seen to it that it is almost impossible to bring any such suit. Also, many States have statutes placing strict limits on how much money can be recovered in such suits, meaning that such suits might not be able to reach the $5 million requirement.

As for the class size being less than 100, most class actions have plaintiff classes far in excess of 100. Indeed, for a group of less than 100, class certification is not generally sought.

• Subsection (d)(9)

Under this provision, there will be no federal jurisdiction for class actions in which the claims solely involve 1) enumerated provisions under the federal securities acts, or 2) "relates to the internal affairs or governance of a corporation or other form of business enterprise and that arises under or by virtue of the laws of the State in which such corporation or business enterprise is incorporated or organized."

• Summary

There are some express limitations to this new form of subject matter jurisdiction, and that is good. The federal courts will have some flexibility and might be able to keep their dockets from being overburdened by class action lawsuits. However, some of those limitations are vague, and others really have no practical effect. The best case scenario is that the federal courts will apply these limitations uniformly and fairly. But even in the best case scenario, federal courts will be required to hear cases that before now they did not, and they will have to devote time and resources to determining whether any of the above limitations exist. Thus, the federal courts will face increased burdens as discussed in my previous post. In other words, the Class Action Fairness Act of 2005 is going to increase--not decrease--litigation in the federal courts for the next few years.

Moreover, the limitations described above will themselves be limited by the Act's new provisions regarding removal and a provision that will automatically convert some cases that were not filed as class actions into class actions which can then be removed to federal court. That will be discussed in a subsequent post.

Ain't law just a barrel of laughs?

An update on the Iraqi Prime Minister

There is good news on the Iraqi political scene. According to the AP, AFP, Reuters, and the Washington Post, the United Iraqi Alliance has chosen Interim Vice President Ibrahim al-Jaafari as its candidate for Prime Minister. The other person seeking the nomination, Ahmed Chalabi, withdrew.

This means that Ahmed Chalabi will not be Prime Minister, and that is very good news indeed. As noted in the AP article, "Chalabi, who stepped down Tuesday, is a former exile leader who heavily promoted the idea that Saddam Hussein had weapons of mass destruction. He later fell out with some key members of the Bush administration over allegations that he passed secrets to Iran." Chalabi not only "heavily promoted" WMD, he supplied--through his Iraqi National Congress--much of the evidence the Bush administration relied upon in claiming that Iraq had WMD and ties to Al Qaeda. Chalabi basically admitted later that much of his "evidence" was fabricated. When confronted with this charge, Chalabi replied,

We are heroes in error. As far as we're concerned we've been entirely successful. That tyrant Saddam is gone and the Americans are in Baghdad. What was said before is not important.

Chalabi was the chosen one of the Defense Department, and the Bush administration has since turned its back on him. If he had become Prime Minister, that could have been a dicey situation for the U.S.

Jaafari is the leader of the Dawa Party, one of the leading Islamist parties. That means the party is more religious than secular in nature. As reported by Reuters, "He joined Dawa -- Iraq's oldest Islamic movement -- in 1966, but fled to Iran in 1980 after a crackdown on the party in which thousands of his comrades were killed." The AP article expressed one of the concerns about Jaafari: "Al-Jaafari, the president of the Islamic Dawa Party, is Western-oriented but is considered by many to be a cleric in a business suit." AFP said "His ties with Iran and presumed support for a more Islamic state have sparked concern[.]" The Washington Post noted that the Dawa party "has long advocated a religious government." As I noted in the opening paragraph of Some post-Iraq election analysis, all this sounds precisely like what the Bush administration does not want to see.

Still, there are reasons to temper such concern, at least for now. The Washington Post article also said this:

But in a recent interview with The Washington Post, he said Dawa had tempered that desire to accommodate secular and non-Muslim Iraqis. Jafari said Dawa did not "aim to establish an Islamic state to apply the Islamic sharia," or law. Instead, it would establish a government "respecting human rights and applying justice and respecting the rights of women."

Jafari also said that his new government would include all ethnic parties, including Sunnis who boycotted the election.

More analysis to follow...

A personal confession

...I have a crush on Bonnie Hunt. She is on Letterman right now, and life is good.

Tall, blonde, gorgeous, intelligent, and funny...She is one exceptionally sexy lady. ;-)

An initial look at the new class action law

Over the previous two days I worked on a detailed post regarding the new class action law that Bush signed on February 18. I began by reading only news reports and responding to what I found therein. Then my lawyer training kicked in, and I realized I should read the text of the actual law. As usual, reading federal legislation gave me a severe case of tired head, so my initial reaction might not be accurate. Get your own case of tired head by downloading and reading the Class Action Fairness Act of 2005. When you get to the linked page, click on "Text of Legislation," and then on the next page click on the #3 option. From there you can download the Act in either html or pdf. For some odd reason, that site otherwise assigns temporary addresses for which hyperlinks do not work, so that is the reason for the roundabout instructions rather than a direct link.

Anyhoo, as I was reading the legislation, there was very little that caused me alarm, and that made me wonder why Republicans have been claiming that this legislation will limit class actions. Then I got to some provisions toward the end that really caught my attention. It seems to me that the Act now establishes means by which defendants can remove cases filed in state court that were not filed as class actions. Allow me to explain this. Plaintiffs are the ones who seek to file cases as class actions. While defendants can also be a class, as a practical matter this is not typical. Under the new law, if certain cases are filed in a state court, and the plaintiffs do not want it to be a class action, the case might nonetheless come under the definition of "class action" in the new law, and then that case can be removed (in effect transferred) to federal court. There are already laws in effect setting out the circumstances under which a defendant can remove a case to federal court. However, the new class action law creates a new circumstance that will allow a defendant to do so even if none of the existing circumstances exist. So, a group of plaintiffs could file a case in state court that would not be subject to removal to federal court under previous law and now have it put in federal court.

Why is this significant? The answer has much to do with logistics. Federal judges do not like civil cases (and class actions are civil cases). The law requires that all criminal cases MUST be heard within a given time, meaning that 1) federal judges have no flexibility in handling their dockets in regard to criminal cases, and 2) civil cases clog up the system. Creating any kind of new jurisdiction (which the Class Action Fairness Act of 2005 does) will simply place another burden on the federal courts.

And I think I have a good idea of how federal district judges are going to handle this new burden. My experience (in the Northern, Eastern, and Southern Districts of Texas) is that for civil suits (and class actions are civil suits), the entire system, by design, has as its primary objective getting cases dismissed. There are the Federal Rules of Civil Procedure to which all Federal Courts and litigants must comply. In addition, each District has its own local procedural rules, and then individual judges often have their own rules. In the Northern District of Texas, there are even some UNWRITTEN rules which if violated will result in dismissal. The system is a series of traps for plaintiffs. This has nothing to do with politics, views on tort reform, bias, etc. It has to do with docket management and courts trying to be able to do the things they HAVE to do. Thus, in general, my guess is that federal courts are going to try to get rid of as many class actions suits as possible.

This is what will have a chilling effect on class actions and large lawsuits that will automatically be termed class actions even when they are not filed as such.

I will update this analysis--especially if after further study I find my interpretation to be incorrect.

A link to a sports blog

My "links" sidebar now contains a link to an outstanding sports blog. Bob's Blog is hosted by Bob Sturm (a/k/a TheBobSturmShow and The Sturminator), who is the co-host of the early afternoon show on KTCK (The Ticket), a sports radio station in Dallas. Bob is a major sports geek, and he has plenty of hot sports opinions (known as "HSOs" in Ticket jargon). If you are seriously into sports, you should check out Bob's Blog.

The NHL's lost season

Yesterday it became official--the National Hockey League cancelled the season. I think much of the blame should go to the league and the owners. Under Gary Bettman's leadership, the league expanded too quickly and, in some cases, unwisely. Part of the problem was establishing new franchises in places without established markets or potential. Nashville, Atlanta, and Miami come to mind. After all, Atlanta previously had an NHL team that did not make it there, and Nashville had only recently gotten one other pro team (the NFL's Titans). Some might feel that I am being a bit hypocritical since I am a big Dallas Stars fan. Well, Dallas got an existing franchise, the Minnesota North Stars. Dallas is also a big time pro sports town. Dallas also had and has a high number of transplants (people from other parts of the country) who were and are hockey fans. The first Stars game I went to was against the Chicago Blackhawks. The arena was sold out, and at least a third of the people there were wearing Blackhawks sweaters. Dallas has become a hockey town.

As for the owners, Tom Hicks, the owner of the Stars, in an interview on KTCK (The Ticket) in Dallas, copped to the fact that the owners have chosen to pay extremely high salaries and thus have driven the market higher and higher. The example he cited was Bill Guerin. Let me say up front I have been a big Bill Guerin fan for a long time. He is a great player. To me, he embodies everything good about hockey, and I am damn glad he is with the Stars. Still, Hicks threw a huge bag of guaranteed money at him when he did not have to. Hicks--without negotiating at all--offered Guerin a contract that was so greatly beyond anything else he had been offered that Guerin would have been crazy to say "no." There was a chance Guerin would have signed with the Stars for less money. After all, the Stars had recently won the Cup and still had plenty of really good players, yet Hicks immediately offered a huge bag of money. And remember that Tom Hicks (as owner of the Texas Rangers) is the same guy that gave Alex Rodriguez the $250 million contract.

So there was a combination of putting teams in cities where the potential for success was not good and some owners blatantly outspending others which kept some teams from getting top shelf players, which in turn kept them from winning, which then affected their revenue, which resulted in some teams being a big financial burden on the league as a whole. So while the players are not blameless in this, and while the league does have legitimate financial problems that must be addressed, the league and the owners deserve almost all the blame for creating those problems in the first place.

Overall, I am very sad there there will be no Stanley Cup awarded this year. However, I am not without hockey. Here in Wichita Falls, Texas, we have a Junior A hockey team, the Wichita Falls Wildcats. The team is making a run for the playoffs in the North American Hockey League, and I am getting to see some quality live hockey action (including teams from Frisco, Texas; Springfield, Illinois; Springfield, Missouri; Sante Fe, N.M.; Fairbanks, Alaska; Texarkana, Texas; and Belton, Texas). If anyone out there needs a hockey fix, check out the Junior leagues and the professional minor leagues. And if you are in a city that has any of those teams, go out and support them.

NASCAR and liquor ads

Last night I saw a feature on ESPN's Sports Center about the big controversy over NASCAR now allowing hard liquor advertising. Many people are very upset because this "sends the wrong message" and it goes against NASCAR's family image. I can address this quickly. NASCAR has allowed sponsorships by beer companies since 1972. Tobacco companies are also longtime sponsors of NASCAR. Beer can cause just as much damage as hard liquor, and tobacco use causes cancer. Why haven't all these people upset about hard liquor sponsorship been complaining just as much about beer and tobacco? Yeah, beer, cigarettes, and chewing tobacco just scream "family values." Here's my message to all you people that are against hard liquor being part of NASCAR: unless you are going to complain about beer and tobacco as well, get off your hypocritical high horse.

And for the record, I think NASCAR can do whatever it wants in terms of advertising and sponsorships.

The inspiration for the Burning Bush doctrine shows one of its shortcomings

Who is the inspiration?

On the February 14 broadcast of PRI's "The World" I heard an interview with Natan Sharansky. "Who is he?" you might ask. Well, he is the source and inspiration for the Burning Bush doctrine. Sharansky was a prominent Soviet dissident who spent eight years in a Siberian prison. When he was released, he immigrated to Israel, and he is now a member of the Israeli government.

He has also written a book, The Case for Democracy, and the book's biggest fan is George W. Bush. As Reuters reported, Bush's Inaugural Address (in which the Burning Bush doctrine was proclaimed) contained "phrases which could have been taken from the pages of (the) book." And before that--about a week after the November election--Bush had Sharansky come to White House for a meeting. Reuters quoted Bush as telling CNN that "This is a book that ... summarizes how I feel. I would urge people to read it." Bill Kristol wrote that in a January 11, 2005, interview with the Washington Times, Bush said "If you want a glimpse of how I think about foreign policy read Natan Sharansky's book, The Case for Democracy. . . . For government, particularly--for opinion makers, I would put it on your recommended reading list. It's short and it's good." Elisabeth Bumiller of the New York Times wrote

Sharansky's book, a White House must-read that Bush has been recommending for months to friends, his staff and a parade of recent interviewers, was a leitmotif in Bush's Inaugural Address on Jan. 20 about ending tyranny.

"That thinking, that's part of my presidential DNA," Bush said. "I mean, it's what I think; it's a part of all policy."

In short, he concluded, "It is part of my philosophy."

Criticism of the Burning Bush doctrine revisited (briefly)

In America's new calling, I labeled one of the major shortcomings of the Inaugural Address as the "What do we do about current relationships?" problem. I summed up the problem as follows:

The war on terror does present major problems for Bush's "calling." He said in the Inaugural Address that "My most solemn duty is to protect this nation and its people against further attacks and emerging threats. " So if that is his greatest duty, and if that duty is being fulfilled in part because of help from countries such as Pakistan, Egypt, Saudi Arabia, and Uzbekistan, is Bush going to risk losing that help by trying to establish "democratic movements and institutions" in those countries? If so, is he not meeting his greatest duty?

This problem was addressed in the February 14 Sharansky interview through a discussion about Pakistan.

Sharansky's comments about Pakistan

The interviewer specifically asked Sharansky about the application of Bush's new policy in regard to Pakistan given that the U.S. is relying greatly on Pakistan in the war on terror. Here is part of what Sharansky said:

It is one thing to set up the principle, another thing to start implementing it, and we all have to see that this principle be implemented not only in relations with enemies, but also in relations with friends like Saudi Arabia, Egypt, Pakistan, and other places.

*******

The other thing is how and when you apply (the principle) to one or another country. (You) couldn’t expect from the free world to say to Stalin in 1943 that because you are democratic we will not be your allies in struggling against Hitler. But the problem is that the free world did not say it to Stalin also in 1953. I don’t think that at this very moment, when the army of the United States is currently uniting with the army of Pakistan against al Qaeda, that at this very moment you have to say to Pakistan “We stop our relations with you.” But if you are planning at this moment your relations with Pakistan for the next five or ten years, definitely the question of human rights must be part of your relations with Pakistan.

(emphasis added). Thus, it seems that Sharansky is saying that there is no real need to make demands on Pakistan at the moment. Still, he indicates that relations with Pakistan in the long term will require such demands. The question, then, is when those demands must be made--a few months from now, or years from now, etc.? That question was addressed in the rest of the interview:

Q: And there are some who say at this point the Bush administration is giving a pass to Pakistan in terms of its human rights simply because it wants to keep (Pakistan) as a close ally in the war on terror.

A: If America is going to appease a regime like Pakistan for many years ahead, definitely it would be dangerous for the security of the United States of America, but I do hope that in view of the new principles that are established by President Bush, the relations with all fear societies will be reviewed.

Q: Do you see him, though, consistently implementing those principles?

A: Look, we are only in the beginning of this new policy. I do hope he will consistently implement these principles. Again, the principle has to be established immediately. The practical policy–how big should be the steps, how immediate should be the demands–the policy can differ from country to country, but the principle must be the same. Human rights must become part of the equation in international relations.

Q: Okay. So fast forward to Pakistan. After September 11, then, what would be the correct posture...?

A: Well, of course, there are immediate plans for cooperation which you have to follow, but Pakistan has interests for today, it has interests five years from now, ten years from now, and all the strategic plans of operation we should build should include this element of human rights, and if Pakistan is not ready, then there should be no strategic cooperation.

Q: No strategic cooperation at all? That’s pretty black and white.

A: Well, okay. As I said, to establish the principle is very important. How quickly and when you apply one or another step, how broad will be your linkage, that’s another thing, but experience shows that even small steps, even the introducing of some minimal freedoms to a totalitarian regime accelerates the process of building a free society. That’s why we should not be scared by the fact that if in the beginning our demands to Pakistan will be minimal. But it is very important to establish the principle and to come to Pakistan with these demands.

Q: But if you’re saying “take a case by case approach,” it sounds like you’re allowing for some gray area in what otherwise seems like a very black and white approach.

A: Now look...I believe the principle is black and white, but the relative difference...as I said, the fact that Stalin was one of the most awful enemies of freedom in the world doesn’t mean you should not use him as an ally in the struggle against Hitler. But there was a long period of appeasement of Stalin before Hitler and after Hitler, so let’s not repeat this mistake with Pakistan.

(emphasis added).

Conclusion

If Sharansky gave a clear answer as to what must be done and when regarding Pakistan, I missed it. However, Sharansky makes it clear that if Pakistan is not willing to take even small steps in the human rights area, we should not have any strategic cooperation with Pakistan. And at the same time, he concedes that "of course, there are immediate plans for cooperation which you have to follow." And what should we do if a year from now the circumstances which gave rise to the necessity for those "immediate plans" have not changed? What do we do if the only way Pakistan can help us in the war on terror is to maintain the current dictatorship? What do we do if the only way Pakistan can give us that help is by restricting human rights within its own borders? Sharansky gives no help on these questions. Instead, his answers show that implementing his principle requires careful thought, broad understanding and vision, and finesse--all areas in which George W. Bush is woefully deficient.

Sharansky also does not address how his ideas affect what Bush has called his "most solemn duty." Indeed, Sharansky's insistence that if Pakistan does not meet even minimal demands, we should not have strategic relations could very well put this country at greater risk of a terrorist attack. Ah, but then again, we all know that freedom is not free, don't we? The questions Bush has to answer are "Whose freedom?" and "At what price?" Is Bush willing to risk losing American lives through terrorism in order to establish liberty in Pakistan 10 years from now?

The race for Iraqi prime minister

Tonight I heard a report on Public Radio International's "The World" concerning the political wheeling and dealing going on in Iraq, and the report contained something that shocked me. There are now two contenders for prime minister, interim Vice President Ibrahim al-Jaafari and Ahmed Chalabi. How did this happen? Chalabi becoming prime minister could very well be one of the signs of the Apocalypse--and that is only slightly intended to be a joke.

For more reports, check out the New York Times and this AP report.

The BBC and AFP, on the other hand say that the United Iraqi Alliance has chosen Jaafari as its choice for prime minister and say nothing about Chalabi.

Iraq is starting to make the collective plots of all the Dune books look like the collected works of Dr. Seuss.

The (almost) final Iraq election results: what do they mean?

I have been very busy adjusting my tin foil hat, so I will not attempt to fully answer this question in this post, but I will at least start on some answers.

According to Reuters and the AP, the the major Shiite coalition--the United Iraqi Alliance--recieved approximately 48% of the vote. The Kurdish alliance recieved approximately 26%, and the party of interim prime minister Allawi recieved approximately 14%. According to an interactive section on the New York Times website, this translates into 140 out of 275 seats on the the National Assembly for the United Iraqi Alliance, 75 seats for the Kurdish Alliance, and 40 seats for Allawi's party.

The most obvious meaning of these results is that the United Iraqi Alliance does not have a majority and cannot form a ruling government on its own. In other words, the Shiite coalition will have to form a government through alliances with other parties. As explained in the Reuters article, "The national vote was for a 275-member National Assembly that must agree on a president and two vice-presidents by a two-thirds majority. Those three officials will then agree on a prime minister and cabinet, and their choices must be approved by a majority in the assembly."

It is almost tin foil hat time...I will explain this in more detail in a subsequent post, but for now I will give a synopsis. Allawi's party is a secular (as opposed to religious) party and has the backing of the Bush administration. While there are secular elements in the United Iraqi Alliance, it is nonetheless the group approved by the leading Shiite religious clerics, including the highest ranking, Grand Ayatollah Ali al-Sistani. Had the United Iraqi Alliance gained 2/3 of the vote, there was some question as to whether Iraq's government would trend toward some form of theocracy. This is something the Bush administration wants to avoid, particularly since such result could portend closer ties to Iran, which is a Shiite theocracy very much opposed to the U.S. On strictly political and strategic grounds, I share the Bush administration's concern. Although the administration, primarily through Cheney and Rumskull, has said that such a government in Iraq is unlikely, and although Sistani and others have said there would be no such theocracy, there are nonetheless some signs to the contrary. At this point, the only way to make sure that does not happen is to make sure that the United Iraqi Alliance does not have a 2/3 majority.

We are getting closer to tin foil hat time...8.5 millions votes were cast. As noted in Some post-Iraq election analysis, on February 6, the United Iraqi Alliance had 67% (of 3.3 million votes counted at that time). However, none of the votes from the Northern provinces had been counted. Two days later, 4.6 million votes had been counted--including from the North--and the United Iraqi Alliance had just over 50% of the vote and the Kurdish Alliance had 25%. As noted, the final results showed the United Iraqi Alliance with 48% and the Kurdish Alliance with 26%. In other words, the voting in the Northern provinces, 90% of which (according to the New York Times) went to the Kurdish Alliance, kept the United Iraqi Alliance from having a majority.

Now, on the one hand there is nothing significant here, because it seems clear that the United Iraqi Alliance was not going to achieve the 2/3 majority needed to completely control the future government. On the other hand, the fact that the United Iraqi Alliance did not gain a majority of the vote seems to me to have a psychological effect. That party cannot claim to have a national mandate, and it gives the Kurds a great deal of confidence and hope.

And now we come to tin foil hat time...On February 9 I wrote a post entitled Iraq election and delays, which described how the final count was being delayed. After publishing that post, I found several other articles on the subject. One was by James Glanz of the New York Times. Glanz wrote that the Iraqi election commission had on display materials that "included boxes that appeared to have been hastily stuffed with forged ballots, as well as heaps of ballots in sacks and cartons that revealed an apparent attempt to falsify votes on a large scale," and that "all the materials on display on Wednesday came from Nineveh Province, in the north, where Kurds, Arabs, Christians, Turkmen and other groups are in a bitter struggle for power." So, even though no one would say where the disputed ballot boxes came from, all the tainted materials on display came from a Northern province.

Where are Scully and Mulder?

One last thing--the "final" results will not become official until after Wednesday because parties can still "lodge complaints or dispute the results announced" until then (according to the AP).

Final Iraq election results due in hours

The official results of the Iraq election are supposed to be released in 6.5 hours. Analysis will follow...

Correction of an overstatement

In Some post-Iraq election analysis I called the coalition of Shiite parties--the United Iraqi Alliance--"the religious party." That is an overstatement in two ways. First, the United Iraqi Alliance is not a single party. It is made up of several different groups. Second, there are strong secular elements within the Alliance. Dexter Filkins has an article in today's New York Times which discusses the secular aspects within the group.

These facts do not alter my forthcoming analysis, but I nonetheless made a mistake which needed to be corrected.

Iraq election and delays

Final results from the Iraq election were supposed to be released tomorrow. The key word in the previous sentence is "were." The AP's Mariam Fam filed this report this morning:

Iraqi officials said Wednesday that the announcement of final results from landmark national elections will be delayed because the election commission must recount votes from about 300 ballot boxes.

*******

Final results from the Jan. 30 election were to be announced on Thursday. But spokesman Farid Ayar said the deadline would slip due to the need for a recount.

''We don't know when this will finish,'' he said. ''This will lead to a little postponement in announcing the results.''

Ayar would not say where the 300 ballot boxes had come from.

No new partial results have been released since Monday for the voting for the 275-member National Assembly, 18 provincial councils and a regional parliament for the Kurdish self-governing region in the north.

Excuse me while I adjust my tinfoil hat, but this sounds a little suspicious to me. Fam's report provides the basis for my concern. After noting that the Shiite alliance was in the lead, the Kurdish parties were in second place, and the party of interim prime minister Allawi was a distant third, Fam wrote the following:

If that reflects the final lineup it appears unlikely that Allawi, a secular Shiite who favors strong ties to the United States and a tough stand against the insurgents, could emerge as a compromise choice for prime minister when the new assembly convenes by early March.

So, the day before the final results were to be announced (after 10 days of counting votes), it appears that the party that the Bush administration wanted to win has no shot of getting significant power, and there is a need to recount the votes from 300 ballot boxes. The officials who called for the recount have given no reason for it, nor will they say from where the ballot boxes come, and they say there is no way to know when the recount will be finished.

How do you say "Florida" in Arabic?

Some post-Iraq election analysis

In State of the Union Address and the Burning Bush doctrine, I asked if anyone thought that the Bush administration would allow an Islamic party to rise to power in Iraq and then noted that Rumskull had already provided an answer in April 2003: "If you're suggesting, how would we feel about an Iranian-type government with a few clerics running everything in the country, the answer is: That isn't going to happen." The apparent attitude of the Bush administration was concisely stated in the headline from Fox News: "Rumsfeld: Iraqis Can Form Own Gov't, Just Not a Religious One."

What happens if the Iraqis elect a bunch of people from a religious (rather than secular) party? Will the U.S. keep them from truly taking power? If so, that would not exactly be letting people from other countries freely choose a government that reflects their values and culture, now would it?

I ask these questions because of the results to date of the Iraqi election. On February 5, CNN gave this early report: "Early Iraqi poll returns from three key groups of voters show a coalition backed by the nation's top Shiite cleric ahead of the U.S.-backed interim leader and his secular party, according to sources close to the election." The Shiite coalition is the United Iraqi Alliance, and the secular party backed by the the U.S. is led by interim prime minister Ayad Allawi. MSNBC published an article on February 6 which gave some more details:

In figures released by the election commission Friday, more than two-thirds of the 3.3 million votes counted so far went to the (United Iraqi) Alliance. The faction headed by Allawi, a secular Shiite, trailed with about 18 percent, or more than 579,700 votes.

Wow--67% for the religious party to 18% for the secular party favored by the Bush administration. The article did, however, contain a qualifier: "The partial returns were from 10 mostly southern provinces that are predominantly Shiite, and the Alliance had been expected to win big there." The New York Times explained this further in a February 6 article ("Results Show Islamic Parties Surging Ahead in Iraqi Vote") by noting that no results had been released from the provinces north of Baghdad, "where large numbers of Kurds, Sunni Arabs and other groups are expected to do well." In other words, most of the returns were from the south, where the Shiites are a vast majority, so of course the United Iraqi Alliance got most of the votes there.

The February 6 NYT article also included some returns from Baghdad: "On Sunday (February 5), with 40 percent of the polling stations in Baghdad reporting results, the leading three political groups were all Shiite affiliated. Together, they had 583,443 votes out of 921,569 that had been counted." So the Shiites were winning in Baghdad as well as the south.

But what about the north? A February 8 article from the New York Times revealed that

The partial election returns released Monday showed that in Salahuddin Province in the north parties representing Shiites and Kurds, as well as the interim prime minister, Ayad Allawi, a secular Shiite leader, took nearly 50 percent of the vote, with the closest Sunni leader, Sheik Ghazi al-Yawar, Iraq's interim president, taking 13 percent.

*******

The results from the north allowed the main Kurdish political alliance to cut into the strong national lead established in earlier returns by the Shiite alliance that has as its patron the country's most revered Shiite cleric, Grand Ayatollah Ali al-Sistani.

But what about the rest of central Iraq? That's where the Sunni triangle is, and it is the homeland of Saddam Hussein. Surely, the religious Shiite parties would not fare well there. Well, the February 8 NYT article is entitled "Shiites Leading in Hussein's Home Province." This article contains a good deal of information about the present and possible political landscape in Iraq as of February 8, but I will discuss a limited amount in this post. The lead paragraph stated that

The first election returns from the Sunni majority heartland north of Baghdad showed Monday that a low Sunni turnout in Saddam Hussein's home province has given a lead in the voting there to a Shiite political alliance led by the southern clerics who were among Mr. Hussein's most bitter enemies.

This means that the Shiite alliance overwhelmingly won in the south AND looks like it might win the central part of the country as well, meaning that the results in the north are the only ones that have cut into the Shiites' huge lead in the beginning. The February 8 article also gave the percentages as of that date:

With 4.6 million votes now tallied, the Shiite alliance still accounts for just more than 50 percent of the national vote, down from more than 70 percent in initial counts last week. The Kurdish alliance now has 25 percent, and Dr. Allawi, the interim prime minister, 13 percent.

Officials estimate that 8 million Iraqis voted, which means that with over half the votes counted, the religious parties hold an outright majority, and the party backed by the Bush administration is way, way behind.

What I have tried to do in this post is stick to results. I have not addressed all the charges of irregularities in the election, or the fact that many Sunnis did not vote. For now, I just want to point out that, despite Rumskull's opinion, there is a chance that Iraq--through democratic elections--will be ruled by people led by religious clerics. Then we will see just what Bush meant by his Inaugural Address and the State of the Union Address.

Subsequent posts will examine the Sunni issue and the chances of religion and Islamic law becoming the controlling forces in Iraq.

Eureka!

It is 12:33 a.m., and I think I have just figured out the source of George W. Bush's foreign policy doctrines. Now follow me...We all know that Bush is not exactly a big reader. We also know that he thinks of himself as "vision" guy, which makes me think that he gets his info from visual stimulation. And judging from the sound-bite, catch-phrase method in which he presents everything, my guess is that the visual stimulation has to be semi-entertaining and not too taxing on the brain, which leads me to the conclusion that he likes to watch certain kinds of movies. And I am watching what I now believe is the movie on which ol' George decided to base his oh so enlightened world view: "Spies Like Us."

Among other things, the movie has a Star Wars missile defense system and people who think that war is necessary because we have to show our strength and determination in order to preserve the American way of life.

Still, I think George got bored and did not stick around to see all of the movie. If he had seen the end of the movie (and I will apologize now for potentially being sexist), he would have discovered that the missile defense system did not work, and he might have based his world view on Vanessa Angel and Donna Dixon. And that would be a lot more enjoyable than war.

David Kay with advice on Iran

Today's Washington Post has an editorial by David Kay. You remember David Kay, right? He is the man hand-picked by Bush to lead the Iraq Survey Group (ISG), which was the group in charge of the search for Iraq's WMD. And surely you remember what he said about Iraq's WMD, right? If you have forgotten, check out these previous posts: Search for WMD is officially over and The DIA and chemical weapons. If you do not want to read those posts, I will sum up Kay's conclusions: there were no WMD.

The title of his editorial is "Let's Not Make the Same Mistakes in Iran." Kay sees strong similarities between what is going on with Iran now and what happened regarding Iraq and the claims of WMD from the Bush administration:

Vice President Cheney is giving interviews and speeches that paint a stark picture of a soon-to-be-nuclear-armed Iran and declaring that this is something the Bush administration will not tolerate. Iranian exiles are providing the press and governments with a steady stream of new "evidence" concerning Iran's nuclear weapons activities. Secretary of State Condoleezza Rice has warned that Iran will not be allowed to use the cover of civilian nuclear power to acquire nuclear weapons, but says an attack on Iran is "not on the agenda at this point." U.S. allies, while saying they share the concern over Iran's nuclear ambitions, remain determined to pursue diplomacy and say they cannot conceive of any circumstance that would lead them to use military force. And the press is beginning to uncover U.S. moves that seem designed to lay the basis for military action against Iran.

Kay says that there are five steps that must be taken in order to avoid the mistakes that were made in buliding the case that Iraq had WMD. The first step is to accept the fact that Iran has been concealing nuclear activity and "craft a set of tools and transparency measures that so tie Iran's nuclear activities to the larger world of peaceful nuclear activities that any attempt to push ahead on the weapons front would be detectable and very disruptive for Iran." Kay also says that this objective "is reachable." I am not going to purport to speak for Kay, but it sure seems to me that while he is giving advice regarding Iran, he is also saying that a similar approach should have been used in Iraq. Such an interpretation would serve as an indictment of the Bush administration's actions reagarding Iraq, but maybe Kay does not intend such meaning.

The second step is to

acknowledge that dissidents and exiles have their own agenda -- regime change -- and that before being accepted as truth any "evidence" they might supply concerning Iran's nuclear program must be tested and confirmed by other sources. And those other sources should not be, as they often were in the case of Iraq, simply other exiles, or the same information being recycled among intelligence agencies.

(emphasis added). Now this presents better evidence that Kay is also delivering an indictment of the Iraq policy.

The third step is acknowledge the limitations of IAEA (Internation Atomic Energy Agency from the U.N.) inspections, but at the same time appreciate what the IAEA has uncovered and use that information to design inspections that can uncover any other weapons-related activities. Gee--what a concept. You mean weapons inspections can actually produce results so that war is not necessary?

The fourth step gets back to the indictment of the Iraq policy:

Fourth, understand that overheated rhetoric from policymakers and senior administration officials, unsupported by evidence that can stand international scrutiny, undermines the ability of the United State to halt Iran's nuclear activities. Having gone to the Security Council on the basis of flawed evidence to "prove" Iraq's WMD activities, it only invites derision to cite unsubstantiated exile reports to "prove" that Iran is developing nuclear weapons.

Regardless of Kay's intention, this describes just what Bush did in regard to Iraq.

And the description of the fifth step does the same thing:

Fifth, a National Intelligence Estimate as to Iran's nuclear activities should not be a rushed and cooked document used to justify the threat of military action. Now is the time for serious analysis that genuinely tries to pull together all the evidence and analytical skills of the vast U.S. intelligence community to reach the best possible judgment on the status of that program and the gaps in our knowledge. That assessment should not be led by a team that is trying to prove a case for its boss. Now is the time to reach outside the secret brotherhood and pull in respected outsiders to lead the assessment.

(emphasis added). Be careful, Dr. Kay. Bush, Rumskull, Wolfowitz, and Condi are going to tell everyone that you are a back-stabbing freedon-hater like Paul O'Neill and Richard Clarke.

State of the Union Address and the Burning Bush doctrine

I considered calling this post "Details? We don't need no stinking details." Recall that Dan Bartlett, White House counsel, told the Washington Post that the State of the Union Address would offer details as to how the Burning Bush doctrine would be accomplished. After reading the transcript of the State of the Union Address, what I noticed was an utter lack of any such details.

I will quote excerpts from the speech and make comments as I go. The first excerpt was spoken very early in the speech:

Two weeks ago, I stood on the steps of this Capitol and renewed the commitment of our nation to the guiding ideal of liberty for all. This evening I will set forth policies to advance that ideal at home and around the world.

This was a good start...sort of. He did say he would set forth policies, but look at the previous sentence. Bush said that the Inaugural Address was about liberty being a "guiding ideal." This is more evidence that he has backtracked big time from the Burning Bush doctrine in the Inaugural Address (you can also see some relevant excerpts in America's new calling). That speech did not speak of a guiding principle. It expressly said that America would stand with stand with all who are living in tyranny, that America proclaims liberty throughout all the world, and that from now on "it is the policy of the United States to seek and support the growth of democratic movements and institutions in every nation and culture, with the ultimate goal of ending tyranny in our world." That's a lot more than a "guiding principle."

Bush did not return to foreign policy and the Burning Bush doctrine until the latter half of the speech.

In the long-term, the peace we seek will only be achieved by eliminating the conditions that feed radicalism and ideologies of murder. If whole regions of the world remain in despair and grow in hatred, they will be the recruiting grounds for terror, and that terror will stalk America and other free nations for decades. The only force powerful enough to stop the rise of tyranny and terror, and replace hatred with hope, is the force of human freedom. Our enemies know this, and that is why the terrorist Zarqawi recently declared war on what he called the "evil principle" of democracy. And we've declared our own intention: America will stand with the allies of freedom to support democratic movements in the Middle East and beyond, with the ultimate goal of ending tyranny in our world.

I agree with much of what Bush said in this excerpt, but he failed to address the short-term realities that could drastically impair the long-term goal. See, some of the conditions that are feeding radicalism in the Middle East are the invasion and occupation of Iraq. Some of the conditions that are feeding radicalism is the arrogance with which the Bush administration has conducted foreign policy. Also, Iraq has become the recruiting and training ground for terrorists, and that happened because of the invasion and occupation of Iraq. And while human freedom might very well be the only force to stop tyranny, the use of military force tends to grow hatred. As Wes Clark said, "[D]emocracy in the Middle East is unlikely to come at the point of our gun."

Look at this excerpt one more time. Do you see anything different from what Bush said in the Inaugural Address? Do you see any details as to how the Burning Bush doctrine is to be implemented? I do not. Let's move on to the next excerpt.

The United States has no right, no desire, and no intention to impose our form of government on anyone else. That is one of the main differences between us and our enemies. They seek to impose and expand an empire of oppression, in which a tiny group of brutal, self-appointed rulers control every aspect of every life. Our aim is to build and preserve a community of free and independent nations, with governments that answer to their citizens, and reflect their own cultures. And because democracies respect their own people and their neighbors, the advance of freedom will lead to peace.

Once again, this is largely a repeat from the Inaugural Address, and thus I will repeat a criticism I made in America's new calling, but before that, I will talk about George's description of the "empire of oppression" (which is my pick to replace "axis of evil"). While it is true that some countries are ruled by brutal rulers, those rulers generally do not have an empire. They control one country. They have to spend all their time and resources ruling their own countries. Quick--name one dictator that rules more than one country. Furthermore, if these brutal leaders are indeed a "tiny group," why are we worried? Now let's get to the criticism. I termed it the "be careful what you ask for" problem. One of the quotes I used to describe this problem came from the Washington Post: "Autocratic rulers in Saudi Arabia and Pakistan, moreover, would be likely to be replaced by opponents of U.S. policy if free and fair elections were held there today." See, if democracy truly takes hold in some of these countries, chances are good that they will elect governments that are anti-American because that would reflect their cultures and values. I have since found some more evidence of this from another Washington Post article:

But the pace of (democratic) change has been glacial, and many frustrated reformers say the apparent disarray of the U.S. project in Iraq has given autocratic governments an excuse to forgo even the most modest political reforms. Offering a clean-government alternative to administrations rife with corruption, Islamic parties are surging in popularity, a trend that deeply frightens many secular Arabs and dampens their enthusiasm for free elections.

(emphasis added). Does anyone really think that the Bush administration is going to simply allow an Islamic party to rise to power? We're talking about the possibility of another Taliban or theocratic regime like in Iran. Bush is not going to allow that. Rumskull said as much in an interview with the AP in April 2003:

"If you're suggesting, how would we feel about an Iranian-type government with a few clerics running everything in the country, the answer is: That isn't going to happen."

I got the Rumskull quote from the Fox News web site, and the headline read "Rumsfeld: Iraqis Can Form Own Gov't, Just Not a Religious One."

Next excerpt:

That advance (of freedom) has great momentum in our time -- shown by women voting in Afghanistan, and Palestinians choosing a new direction, and the people of Ukraine asserting their democratic rights and electing a president. We are witnessing landmark events in the history of liberty. And in the coming years, we will add to that story.

(emphasis added). Yes, George, but HOW? Where are those details? Perhaps they are in the next excerpt:

The beginnings of reform and democracy in the Palestinian territories are now showing the power of freedom to break old patterns of violence and failure. Tomorrow morning, Secretary of State Rice departs on a trip that will take her to Israel and the West Bank for meetings with Prime Minister Sharon and President Abbas. She will discuss with them how we and our friends can help the Palestinian people end terror and build the institutions of a peaceful, independent, democratic state. To promote this democracy, I will ask Congress for $350 million to support Palestinian political, economic, and security reforms. The goal of two democratic states, Israel and Palestine, living side by side in peace, is within reach -- and America will help them achieve that goal.

(emphasis added). Well say, there are some details there. Condi Rice is going to discuss matters with Sharon and Abbas. This is in line with the "discuss and remind" method described by Bush in his press conference (and discussed in Political buffoonery). I guess that's not much detail after all. But wait--we are going to give $350 million for Palestinian reforms. Seems kind of small compared to the hundreds of billions we have spent on Iraq. Still, that is at least one detail provided by Bush.

Could there be more in the next excerpt?

To promote peace and stability in the broader Middle East, the United States will work with our friends in the region to fight the common threat of terror, while we encourage a higher standard of freedom.

This provides no details whatsoever. Moreover, it fails to address the "What do we do about current relationships?" problem (discussed in America's new calling), which I summarized as follows:

The war on terror does present major problems for Bush's "calling." He said in the Inaugural Address that "My most solemn duty is to protect this nation and its people against further attacks and emerging threats. " So if that is his greatest duty, and if that duty is being fulfilled in part because of help from countries such as Pakistan, Egypt, Saudi Arabia, and Uzbekistan, is Bush going to risk losing that help by trying to establish "democratic movements and institutions" in those countries? If so, is he not meeting his greatest duty?

Ah, but Bush did then address two of those countries:

Hopeful reform is already taking hold in an arc from Morocco to Jordan to Bahrain. The government of Saudi Arabia can demonstrate its leadership in the region by expanding the role of its people in determining their future. And the great and proud nation of Egypt, which showed the way toward peace in the Middle East, can now show the way toward democracy in the Middle East.

This is nothing more than "discussing and reminding" and provides no details about how Bush will help achieve democracy in Saudi Arabia and Egypt. Bush continued to discuss the Middle East:

To promote peace in the broader Middle East, we must confront regimes that continue to harbor terrorists and pursue weapons of mass murder.

Confront them how? Through "discussion and reminding"? Military force does not seem to be an option in the near future because our military is already stretched thin in Iraq, and, as noted above, military force tends to grow the hatred that Bush said must be overcome in order for freedom to rule. Bush did then mention some specifics:

Syria still allows its territory, and parts of Lebanon, to be used by terrorists who seek to destroy every chance of peace in the region. You have passed, and we are applying, the Syrian Accountability Act -- and we expect the Syrian government to end all support for terror and open the door to freedom. (Applause.) Today, Iran remains the world's primary state sponsor of terror -- pursuing nuclear weapons while depriving its people of the freedom they seek and deserve. We are working with European allies to make clear to the Iranian regime that it must give up its uranium enrichment program and any plutonium reprocessing, and end its support for terror. And to the Iranian people, I say tonight: As you stand for your own liberty, America stands with you.

So Bush apparently is going to use the Syrian Accountability Act to get Syria to embrace democracy. I need to devote an entire post to this legislation, but for now I will state four points and ask two questions. The first point is that the Act calls for various economic and political sanctions to be imposed on Syria until it basically 1) ceases all terrorist activities, 2) gets completely out of Lebanon, and 3) does nothing to develop WMD. The second point is that the President (Bush) has complete discretion in deciding what, if any, sanctions will be enforced. The third point is that Talon News (a major right-wing "news organization") reported that

President Bush issued a statement that indicated he construed the law's requirements as tools, not directives limiting the White House's historical prerogatives in shaping foreign policy.

"My approval of the Act does not constitute my adoption of the various statements of policy in the Act as U.S. foreign policy," Bush added.

See, it turns out (as reported in the Washington Post) that Bush was not in favor of the Act. The fourth point is that although Bush declared sanctions against Syria on May 11, 2004, they were not that harsh. From the same Washington Post article:

The practical effect of the new sanctions is mostly symbolic. Diplomatic relations will not be cut, no Syrian flights fly to the United States, and Bush said in his message to Congress that he will waive the sanctions for products such as telecommunications equipment and aircraft parts, in addition to the exemptions for food and medicine.

Thomas Crocker, a partner at Alston & Bird and a sanctions specialist, said the permitted products constitute a large portion of the $200 million in exports from the United States to Syria. Bush justified the continued sale of telecommunications equipment -- such as cellular phones -- as an effort "to promote the free flow of information."

Way to enforce democracy in Syria, George! And here is the question: Didn't the Republicans argue that sanctions against Iraq were ineffective and that was a major reason why we needed to invade? Just curious...

As for Iran, the European Union--especially Britain, France, and Germany--is doing the work right now. Indeed, the BBC reported today that "US Secretary of State Condoleezza Rice says she sees no need to get involved in European efforts to persuade Iran to drop its nuclear programme," even though "European officials have repeatedly asked Washington for closer cooperation in dealing with the programme." Way to make sure we are "working with" our European allies, George!

The last excerpt from the State of the Union Address I will discuss here is as follows:

And the victory of freedom in Iraq will strengthen a new ally in the war on terror, inspire democratic reformers from Damascus to Tehran, bring more hope and progress to a troubled region, and thereby lift a terrible threat from the lives of our children and grandchildren.

It seems that George is saying that spreading democracy and freedom in the Middle East will be done largely through success in Iraq. Arguably, that would be a detail as to how the Burning Bush doctrine will be carried out. Now if he could only give us some details as to how success in Iraq will achieved...

State of the Union Address: Bush and funerals revisited

Background

I did not watch the State of the Union Address last night, but I have since read the transcript of the speech and seen some video highlights. I will write some other posts about the speech, but for now I am going to write about the one thing that really jumped out at me personally. Back in October, I wrote a series of posts about the fact that Bush has not attended one funeral or memorial service for any soldier killed in Iraq. Bush and funerals and hugs--what this series says about Bush is a summary of the entire series. In the series, I discuss seven defenses offered as to why Bush has not attended any such services and what Bush could have done and could still do. Here is the summary for one of the "defenses:"

• Defense 2 (Can't show favoritism and can't address every death.)

The White House claims that Bush does not want to "elevate or diminish" any death and thus Bush will not discuss specific deaths or attend specific funerals because if he does that for one, he has to do it for everybody. First of all, no, he does not. Second, Bush has violated this "all or nothing" defense. As shown in Defense 3, he discussed at length the life and loss of one specific soldier in his speech at Fort Carson and did not mention anybody else by name. Also, as discussed in the previous post, in his Memorial Day speech on May 31, 2004, he specifically mentioned four fallen soldiers by name, but mentioned no others. These actions say the following about Bush: 1) he said one thing and did another; 2) he selectively applied this defense; and 3) this defense is bogus.

I actually got a response from a Bush apologist relevant to this defense:

If the President were to start attending funerals, how would he choose which soldiers were the chosen? Would he stick to the top officials? Would he instead stick with the foot soldiers? Once he had attended one funeral, would he feel the overwhelming need to attend them all?

I believe his decision to respectfully decline funeral invitations is a good one. His attendance would automatically set one soldier as more important than another. Of course, you could say that his attendance would be "symbolic" for all soldiers. Yet, the families will still wonder why he did not choose them. The President has always expressed his sympathy and respect for the noble sacrifices of our men in uniform. His decision to not choose one funeral over another is, I believe, an additional sign of his devotion to our men.

My response was "Not paying his respects in the most solemn, formal way possible is a sign of devotion? Un-freaking-believable."

Here is the summary of another "defense:"

• Defense 4 (Blame it on Clinton.)

The Bush apologists first argue that Clinton did not attend any military funerals, but ignore the facts that he did attend a memorial service for the naval personnel killed in the U.S.S. Cole attack. Bush has not attended even one memorial. Next, Bush claims he was offended by Clinton's "exploitation of public grief for private gain," and Bush's supporters cite the memorial service in Oklahoma City as an example. However, through his campaign ads, Bush exploits deaths from the 9-11 terrorist attacks for his own political gain. Moreover, in doing so, his campaign shows extreme disregard for the 9-11 families. Finally, Bush supporters argue that Clinton's public displays of grief showed a favoring of fund raisers over soldiers, and yet Bush has placed more emphasis on fund raising than the troops, and he has even used them to help his campaign. What all this says about Bush is that 1) he considers fund raising for his reelection a higher priority than the troops or the families of those killed on 9-11, and 2) he is a shameless hypocrite.

I also posted pictures from Bush's campaign website (here, here, and here) showing that Bush was using the troops for his own political purposes.

The hypocrisy in the speech

With all this in mind, here is the portion of the State of the Union Address that jumped out at me:

And we have said farewell to some very good men and women, who died for our freedom, and whose memory this nation will honor forever.

One name we honor is Marine Corps Sergeant Byron Norwood of Pflugerville, Texas, who was killed during the assault on Fallujah. His mom, Janet, sent me a letter and told me how much Byron loved being a Marine, and how proud he was to be on the front line against terror. She wrote, "When Byron was home the last time, I said that I wanted to protect him like I had since he was born. He just hugged me and said, 'You've done your job, Mom. Now it is my turn to protect you.'" Ladies and gentlemen, with grateful hearts, we honor freedom's defenders, and our military families, represented here this evening by Sergeant Norwood's mom and dad, Janet and Bill Norwood.

Allow me to make something perfectly clear. As a general proposition, I do not think it was wrong for Bush to do this. I have no problem with the Norwoods being honored in this way. Their son deserved that, and they deserved it. However, what really pisses me off is the abject hypocrisy Bush's actions reveal.

White House staffers and apologists have said that Bush will not attend a funeral or discuss specific deaths because that would show favoritism, that would elevate or diminish one death, and that families not chosen would "still wonder why he did not choose them." Yet in the State of the Union Address, he did discuss one specific death. He did single out one death among the over 1400. He did exactly what he said he would not do.

And he did so on the biggest stage possible--the State of the Union Address. An article in today's New York Times discusses the interaction between the Norwoods and another guest at the speech, a woman named Safia Taleb al-Suhail, who had just voted in Baghdad in Sunday's election.

But everyone was caught off guard, and the House of Representatives suddenly turned into a bath of emotion, when Mr. Bush introduced the Norwoods.

Ms. Suhail turned to Mrs. Norwood, who was sitting right behind her, and enveloped her in a hard, long hug. The collective eyes of the chamber watered while the president stood ramrod straight, jaw clenched, and watched during one of the longer and louder standing ovations at recent State of the Union addresses.

This was a moving moment. It was genuine and remarkable. However, it took place not at a funeral or memorial service but on national TV during an event that necessarily had the attention of much of the American public. In other words, it took place in a way that produced a tremendous amount of emotion that resulted in a political benefit for Bush. The White House has complained about Clinton using public moments to generate emotion for political purposes, but Clinton never did anything on this scale. Given the White House's penchant and express desire to produce bold, dramatic statements (check out the "White House media magicians" section of George's Aircraft Carrier Carnival), I cannot believe that having the Norwoods at the speech and introducing them was not specifically intended to elicit such emotion. In other words, I believe that the White House intentionally exploited this moment.

Conclusion

In general, I do not have a problem with the Norwoods being singled out. I do not even have a problem with the exploitation factor. However, when such actions directly and blatantly go against excuses given by the White House for Bush's refusal to honor our fallen in the most solemn, meaningful way, it really angers me. I repeat part of my conclusion to Bush and funerals and hugs--what this series says about Bush:

I believe Bush is utterly lacking in the character needed to truly be a leader of any kind, much less President of the United States. Of all the reasons I feel that way (and there are many), the fact that he has not attended one funeral or one memorial service for a soldier killed in Iraq is the #1 reason. As I said before, it is incomprehensible to me that not only has he not attended even one such ceremony, he refuses to do so. This strikes me as cowardly and deeply disrespectful of the lives of the men and women who died serving our nation in a war he ordered.

If Bush can do what he did with the Norwoods, why can he not go to even one funeral or memorial service? Why does he refuse to do so?