http://www.cbsnews.com/stories/2006/11/29/opinion/printable2217618.shtml
Swearing In By The Koran?
Nov. 30, 2006
The U.S. Constitution is a multiculturalist document. Not in all senses, of course: It tries to forge a common national culture as well as tolerating other cultures. But it is indeed multiculturalist in important ways.

We shouldn't forget that when we're tempted to categorically condemn supposedly multiculturalist changes to our constitutional practices.

Consider what Dennis Prager — whose work I often much like — wrote in his most recent column:
Keith Ellison, D-Minn., the first Muslim elected to the United States Congress, has announced that he will not take his oath of office on the Bible, but on the bible of Islam, the Koran.

He should not be allowed to do so — not because of any American hostility to the Koran, but because the act undermines American civilization.

First, it is an act of hubris that perfectly exemplifies multiculturalist activism — my culture trumps America's culture. What Ellison and his Muslim and leftist supporters are saying is that it is of no consequence what America holds as its holiest book; all that matters is what any individual holds to be his holiest book.

Forgive me, but America should not give a hoot what Keith Ellison's favorite book is. Insofar as a member of Congress taking an oath to serve America and uphold its values is concerned, America is interested in only one book, the Bible. If you are incapable of taking an oath on that book, don't serve in Congress. In your personal life, we will fight for your right to prefer any other book. We will even fight for your right to publish cartoons mocking our Bible. But, Mr. Ellison, America, not you, decides on what book its public servants take their oath.

This argument both mistakes the purpose of the oath, and misunderstands the Constitution. In fact, it calls for the violation of some of the Constitution's multiculturalist provisions.

To begin with, the oath is a religious ritual, both in its origins and its use by the devout today. The oath invokes God as a witness to one's promise, as a means of making the promise more weighty on the oathtaker's conscience.

This is why, for instance, the Federal Rules of Evidence, dealing with the related subject of the courtroom oath, state, "Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with the duty to do so."

If you want the oath to be maximally effective, then it is indeed entirely true that "all that matters is what any individual holds to be his holiest book." That book is the one that will most impress the oathtaker's mind with the duty to comply with the oath.

Of course, some might care less about making the oath more effective, and more about using the oath to reinforce traditional American values, in which they include respect for the Bible (the "only ... book" "America is interested in") over other holy books. That, I take it, is part of Prager's argument, especially when he goes on to say, "When all elected officials take their oaths of office with their hands on the very same book, they all affirm that some unifying value system underlies American civilization."

Yet this would literally violate the Constitution's provision that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." For the devout, taking an oath upon a religious book is a religious act. Requiring the performance of a religious act using the holy book of a particular religion is a religious test. If Congress were indeed to take the view that "If you are incapable of taking an oath on that book [the Bible], don't serve in Congress," it would be imposing an unconstitutional religious test.

What's more, the Constitution itself expressly recognizes the oath as a religious act that some may have religious compunctions about performing. The religious-test clause is actually part of a longer sentence: "The Senators and Representatives ... [and other state and federal officials] shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required ..." The option of giving an affirmation rather than oath reflects the judgment — an early multiculturalist judgment — in favor of accommodating members of some denominations (such as Quakers) who read the Bible as generally prohibiting the swearing of oaths.

The affirmation option was thus one tool to make sure that the law didn't exclude people of certain religious groups from office, but rather let them retain their religious culture while participating in American civic life. The religious-test clause was another tool. The Constitution itself — a pretty important part of the "value system underl[ying] American civilization" — expressly makes clear that elected officials need not take oaths of office with their hands on any book.

So the Constitution thus already expressly authorizes people not to swear at all, but to affirm, without reference to God or to a sacred work. Atheists and agnostics are thus protected, as well as members of certain Christian groups. Why would Muslims and others not be equally protected from having to perform a religious ritual that expressly invokes a religion in which they do not believe? Under the Constitution, all of them "are incapable of taking an oath on that book," whether because they are Quakers, atheists, agnostics or Muslims. Yet all remain entirely free to "serve in Congress."

This leaves one milder form of Prager's argument: Ellison shouldn't have to swear on the Bible, but we don't have to offer him a Koran, since he could affirm instead and affirmations don't require any holy book. That's not, I think, Prager's actual argument (which is that "If you are incapable of taking an oath on that book [the Bible], don't serve in Congress" and that all elected officials should "take their oaths of office with their hands on the very same book"). But it might be a fallback.

Yet this too strikes me as a misreading of the American constitutional system. Prager goes on to argue:
Devotees of multiculturalism and political correctness who do not see how damaging to the fabric of American civilization it is to allow Ellison to choose his own book need only imagine a racist elected to Congress. Would they allow him to choose Hitler's "Mein Kampf," the Nazis' bible, for his oath? And if not, why not? On what grounds will those defending Ellison's right to choose his favorite book deny that same right to a racist who is elected to public office?

But the Constitution's judgment is that accommodating religious pluralism (especially as to oaths) doesn't let "my culture trump America's culture." Rather, the legal culture created by the Constitution makes room for many religious cultures, and allows all their adherents to be equal citizens and equal officeholders.

We see this in the Constitution's repeated recognition of affirmations as alternatives to oaths. We also see this in the free-exercise clause, which excludes no religion even though many denominations of that era saw rival denominations' views, and especially the views of Catholics, as deeply wrong and even evil — perhaps not quite as evil as Mein Kampf (which isn't a religious book, and thus not really apposite to the oath debate) but in that general ballpark.

The Supreme Court has long taken the view that the establishment clause and the free-exercise clause generally mandate equal treatment of people without regard to their religions; conservative justices, such as Scalia and Thomas, have agreed.

Letting Christians swear the oath of office, while allowing members of other denominations only to swear what ends up being a mockery of an oath — a religious ceremony appealing to a religious belief system that they do not share — would be such discrimination.

Nor have I seen any evidence that at the time of the framing, the religion clauses would have been interpreted in a way that differs from this consensus. And the text of the establishment clause suggests that the oath should be an oath not just of a federally "establish[ed] religion" (a religion given favored legal treatment by the government), but rather the oath that binds the particular officeholder "to support this Constitution."

Finally, Prager argues that "for all of American history, Jews elected to public office have taken their oath on the Bible, even though they do not believe in the New Testament, and the many secular elected officials have not believed in the Old Testament either."

I can't speak to the common practices of Jewish officeholders, but some quick searches reveal that Linda Lingle, the governor of Hawaii, was sworn in on the Tanakh (more or less the Old Testament); for the reasons I just mentioned, others would have been free to do the same, or to affirm if they preferred.

A Senate Web site reports that Presidents Franklin Pierce and Herbert Hoover (a Quaker) didn't swear at all, but rather affirmed. If a Bible was present (the site is silent on that), it wouldn't have been used as a swearing device. Nixon, also a Quaker, did swear, apparently on two Bibles. This didn't seem to help.

Much folly has been urged in the name of multiculturalism. But this is no reason to dismiss the core notion that a nation should both create a common culture and leave people with the freedom to retain important aspects of other cultures — especially religious cultures.

That notion is deeply American, and expressly enshrined in our Constitution. If it is "political correctness," it is so only in the sense that it's a political notion, and a correct one. It has served us well, even when dealing with religious groups that were once hated and seen as incompatible with American values, such as Catholics.

We ought not blindly accept the legitimacy of other cultures' beliefs. But the Constitution says that we can't demand complete surrender to our majority culture — especially its religious beliefs — either in "personal life" or in public life.

By Eugene Volokh

http://www.cbsnews.com/stories/2006/12/01/tech/printable2221458.shtml
New Rules On Office E-Mail
WASHINGTON, Dec. 1, 2006
(AP) U.S. companies will need to keep track of all the e-mails, instant messages and other electronic documents generated by their employees thanks to new federal rules that go into effect Friday, legal experts say.

The rules, approved by the Supreme Court in April, require companies and other entities involved in federal litigation to produce "electronically stored information" as part of the discovery process, when evidence is shared by both sides before a trial.

The change makes it more important for companies to know what electronic information they have and where. Under the new rules, an information technology employee who routinely copies over a backup computer tape could be committing the equivalent of "virtual shredding," said Alvin F. Lindsay, a partner at Hogan & Hartson LLP and expert on technology and litigation.

James Wright, director of electronic discovery at Halliburton Co., said that large companies are likely to face higher costs from organizing their data to comply with the rules. In addition to e-mail, companies will need to know about things more difficult to track, like digital photos of work sites on employee cell phones and information on removable memory cards, he said.

Both federal and state courts have increasingly been requiring the production of relevant electronic documents during discovery, but the new rules codify the practice, legal experts said.

The rules also require that lawyers provide information about where their clients' electronic data is stored and how accessible it is much earlier in a lawsuit than was previously the case.

There are hundreds of "e-discovery vendors" and these businesses raked in approximately $1.6 billion in 2006, Wright said. That figure could double in 2007, he added.

Another expense will likely stem from the additional time lawyers will have to spend reviewing electronic documents before turning them over to the other side. While the amount of data can be narrowed by electronic searches, some high-paid lawyers will still have to sift through casual e-mails about subjects like "office birthday parties in the pantry" in order to find information relevant to a particular case.

Martha Dawson, a partner at the Seattle-based law firm of Preston Gates & Ellis LLP who specializes in electronic discovery, said the burden of the new rules won't be that great.

Companies will not have to alter how they retain their electronic documents, she said, but will have to do an "inventory of their IT system" in order to know better where the documents are.

The new rules also provide better guidance on how electronic evidence is to be handled in federal litigation, including guidelines on how companies can seek exemptions from providing data that isn't "reasonably accessible," she said. This could actually reduce the burden of electronic discovery, she said.

http://www.cbsnews.com/stories/2006/11/30/terror/printable2221361.shtml
Feds Rate Travelers' Potential For Terror
WASHINGTON, Dec. 1, 2006
(AP) Without their knowledge, millions of Americans and foreigners crossing U.S. borders in the past four years have been assigned scores generated by U.S. government computers rating the risk that the travelers are terrorists or criminals.

The travelers are not allowed to see or directly challenge these risk assessments, which the government intends to keep on file for 40 years.

The government calls the system critical to national security following the Sept. 11, 2001, terrorist attacks. Some privacy advocates call it one of the most intrusive and risky schemes yet mounted in the name of anti-terrorism efforts.

Virtually every person entering and leaving the United States by air, sea or land is scored by the Homeland Security Department's Automated Targeting System, or ATS. The scores are based on ATS' analysis of their travel records and other data, including items such as where they are from, how they paid for tickets, their motor vehicle records, past one-way travel, seating preference and what kind of meal they ordered.

The use of the program on travelers was quietly disclosed earlier this month when the department put a notice detailing ATS in the Federal Register, a fine-print compendium of federal rules. The few civil liberties lawyers who had heard of ATS and even some law enforcement officers said they had thought it was only used to screen cargo.

The Homeland Security Department called the program "one of the most advanced targeting systems in the world" and said the nation's ability to spot criminals and other security threats "would be critically impaired without access to this data."

But to David Sobel, a lawyer at the Electronic Frontier Foundation, a group devoted to civil liberties in cyberspace: "It's probably the most invasive system the government has yet deployed in terms of the number of people affected."

Government officials could not say whether ATS has apprehended any terrorists. Based on all the information available to them, federal agents turn back about 45 foreign criminals a day at U.S. borders, according to Homeland Security's Customs and Border Protection spokesman Bill Anthony. He could not say how many were spotted by ATS.

"Homeland Security ought to focus on the simple things it can do and stop trying to build these overly complex jury-rigged systems," said Barry Steinhardt, an American Civil Liberties Union lawyer, citing problems the agency has had developing a computerized screening system for domestic air travelers.

That data-mining project — now known as Secure Flight — caused a furor two years ago in Congress. Lawmakers barred its implementation until it can pass 10 tests for accuracy and privacy protection.

In comments to the government about ATS, Sobel said, "Some individuals will be denied the right to travel and many the right to travel free of unwarranted interference."

Sobel said in the interview that the government notice also raises the possibility that faulty risk assessments could cost innocent people jobs in shipping or travel, government contracts, licenses or other benefits.

The government notice says some or all of the ATS data about an individual may be shared with state, local and foreign governments for use in hiring decisions and in granting licenses, security clearances, contracts or other benefits. In some cases, the data may be shared with courts, Congress and even private contractors.

"Everybody else can see it, but you can't," Stephen Yale-Loehr, an immigration lawyer who teaches at Cornell Law school, said in an interview.

But Jayson P. Ahern, an assistant commissioner of Customs and Border Protection, said the ATS ratings simply allow agents at the border to pick out people not previously identified by law enforcement as potential terrorists or criminals and send them for additional searches and interviews.

"It does not replace the judgments of officers" in reaching a final decision about a traveler, Ahern said in an interview Thursday.

This targeting system goes beyond traditional watch lists, Ahern said. Border agents compare arrival names with watch lists separately from the ATS analysis.

In a privacy impact assessment posted on its Web site this week, Homeland Security said ATS is aimed at discovering high-risk individuals who "may not have been previously associated with a law enforcement action or otherwise be noted as a person of concern to law enforcement."

Ahern said ATS does this by applying rules derived from the government's knowledge of terrorists and criminals to the passenger's travel records.

Ahern declined to disclose any of the rules, but a Homeland Security document on data-mining gave this innocuous example of a risk assessment rule: "If an individual sponsors more than one fiancee for immigration at the same time, there is likelihood of immigration fraud."

Ahern said ATS was first used to rate the risk posed by travelers in the late 1990s, using personal information about them voluntarily supplied by air and cruise lines.

Ahern said that border agents concentrate on arrivals more than on departures because their resources are limited.

"If this catches one potential terrorist, this is a success," Ahern said.

A post-9/11 law vastly expanded the program, he said. It required airline and cruise companies to begin in 2002 sending the government electronic data in advance on all passengers and crew bound into or out of the country. All these names are put through ATS analysis, Ahern said. In addition, at land border crossings, agents enter license plates and the names of vehicle drivers and passengers, and Amtrak voluntarily supplies passenger data on its trains to and from Canada, he said.

In the Federal Register, the department exempted ATS from many provisions of the Privacy Act designed to protect people from secret, possibly inaccurate government dossiers. As a result, it said travelers cannot learn whether the system has assessed them. Nor can they see the records "for the purpose of contesting the content."

Toby Levin, senior adviser in Homeland Security's Privacy Office, noted that the department pledged to review the exemptions over the next 90 days based on the public comment received. As of Thursday, all 15 public comments received opposed the system outright or criticized its redress procedures.

The Homeland Security privacy impact statement added that "an individual might not be aware of the reason additional scrutiny is taking place, nor should he or she" because that might compromise the ATS' methods.

Nevertheless, Ahern said any traveler who objected to additional searches or interviews could ask to speak to a supervisor to complain. Homeland Security's privacy impact statement said that if asked, border agents would hand complaining passengers a one-page document that describes some, but not all, of the records that agents check and refers complaints to Custom and Border Protection's Customer Satisfaction Unit.

Homeland Security's statement said travelers can use this office to obtain corrections to the underlying data sources that the risk assessment is based on, but not to the risk assessment itself. The risk assessment changes automatically if the source data changes, the statement explained.

"I don't buy that at all," said Jim Malmberg, executive director of American Consumer Credit Education Support Services, a private credit education group. Malmberg said it has been hard for citizens, including members of Congress and even infants, to stop being misidentified as terrorists because their names match those on anti-terrorism watch lists. He noted that while the government plans to keep the risk assessments for 40 years, it doesn't intend to keep all the underlying data they are based on for that long.

Homeland Security, however, is nearing an announcement of a new effort to improve redress programs and the public's awareness of them, according to a department privacy official, who requested anonymity because the formal announcement has not been made.

The department says that 87 million people a year enter the country by air and 309 million enter by land or sea.

http://english.aljazeera.net/NR/exeres/7FBC2CF9-DDF6-46AC-90C4-F0B89ABD7D95.htm
NEWS MIDDLE EAST





UN: Israel breaks border agreement
By Laila El-Haddad at the Rafah crossing

Palestinian access through the Rafah border has
been severely impeded by Israel

A UN report has accused Israel of breaking all provisions in a year-old US-brokered agreement on Gaza's border crossings, as Condoleezza Rice visits the region.

The Agreement on Movement and Access, signed last November after the Israeli disengagement from Gaza, was meant to facilitate the movement of Palestinians and goods in and out of Gaza.

It also promised Palestinian control over the Rafah crossing into Egypt by November 2006, after a transitional year of EU monitoring and Israeli video surveillance.

At the time, the border agreement was hailed by Rice, the US secretary of state, as a breakthrough.

She said the agreement would "give the Palestinian people freedom to move, to trade, to live ordinary lives".

But according to the United Nations Office for the Co-ordination of Humanitarian Affairs (OCHA), Palestinians are worse off than they were a year ago, in terms of their freedom of movement and their overall economic situation.

Restrictions on access

The report said that access restrictions remained at the Gaza crossings.

"The ability of Palestinian residents of the Gaza Strip to access either the West Bank or the outside world remains extremely limited and the flow of commercial trade is negligible.

"The only way anyone will actually pay any attention to our plight is if one of us dies here, and even then I'm not sure the world will care"

Feature: Caught at the crossing

"Movement within the West Bank is also more restricted. There has been no peaceful economic development as envisaged by the AMA but rather a deterioration in the humanitarian situation and an increase in violence overall," the report says.

According to the report, unemployment in Gaza has risen from 33.1 per cent to 41.8 per cent over the course of the year. Rice is expected to bring up implementation of the agreement in discussions with Abbas and Olmert.

Violations

The UN report accuses Israel of violating every provision of the borders agreement to which it signed up, including the operation of the Rafah crossing.

Under the terms of the Agreement on Movement and Access, Israel had agreed to operate the Rafah crossing and other Gaza commercial crossings continuously, and to not close passages because of security incidents unrelated to the crossing itself.

Rafah, which is the only passageway for Gaza's 1.4 million residents, was shut down indefinitely by Israel on June 24 after Palestinian fighters attacked an Israeli military base, killing two soldiers and capturing another.

According to the UN report, it has been open for only 21 days since - 14 per cent of the scheduled operating days. A military document leaked to the Israeli daily Haaretz in August suggested that the continued closure was intended to apply pressure on Gaza residents until progress was made in returning the captured Israeli soldier, Gilad Shalit.

Israeli officials provided no comment on the matter to Al Jazeera despite numerous attempts.

Gateway

The crossing is Gaza's gateway to the world. Without it, patients cannot get medical treatment unavailable in Gaza; students cannot reach universities abroad; family members are separated from each other, and Gaza residents, 85 per cent of whom live in poverty, cannot reach places of work.

As a result of the continuing closure, 1.4 million Palestinians have become hermetically sealed into Gaza, and about 3,200 others remain trapped outside, Palestinian border officials say.

"From a humanitarian point of view, it's a major crisis for these people who are effectively trapped within and outside of Gaza"

David Shearer, head of the United Nations Office for the Co-ordination of Humanitarian Affairs (OCHA)

Use of the passage has been restricted to residents of the Gaza Strip carrying Israeli-issued Palestinian identity documents, despite agreement to allow numerous other categories access.

Non-ID card-holders, such as foreign-passport holders, Palestinian refugees living outside Gaza, or even residents of the West Bank, cannot use the crossing.

The movement of people between the Gaza Strip and the West Bank also remains virtually impossible, the report says, and the two areas have become more isolated from one another than ever before.

Israel had promised to allow convoys to transport Palestinian people and goods between Gaza and the West Bank by the end of 2005, but reneged on the agreement, the OCHA says.

Commercial losses

In addition, Gaza's main commercial crossing - al-Mintar, or Karni - has been closed for more than half the year, it says. An average of 12 lorries a day carring Palestinian goods has been allowed out of Gaza. Israel had promised to raise the number to 400 by the end of this year.

Less than four per cent of the Palestinian harvest was exported as a consequence, and hundreds of tonnes of produce spoiled or was dumped on the local market, crippling the local economy. Palestinian agriculture, one of Gaza's primary sectors, suffered $30m in losses as a result of the closure.

David Shearer, head of the OCHA, said: "Thousands and thousands of people have been stopped from moving - students, medical cases, people who have come to visit families, people returning from holidays ….

"From a humanitarian point of view, it's a major crisis for these people who are effectively trapped within and outside of Gaza."

The OCHA report is available in PDF format - The Agreement on Movement and Access One Year On

http://wafa.ps/english/body.asp?id=8694
DATE: 30/11/2006 TIME :13:38
UN to Send Fact-Finding Mission under Tutu to Gaza

NEW YORK, November 30, 2006 (WAFA) - Former Anglican Archbishop of Cape Town and Nobel Peace Prize laureate Desmond Tutu will head the United Nations Human Rights Council fact-finding mission into Israeli military operations in Gaza established after 19 Palestinian civilians were killed in an attack on the town of Beit Hanoun earlier this month.

A leading figure in the struggle against apartheid, Archbishop Tutu chaired the South African Truth and Reconciliation Commission established in 1995. Israel has said the Beit Hanoun attack was the result of a technical error and apologized, according to the UN News Service.

According to a resolution adopted by the Council on 15 November, the mission is to travel to Beit Hanoun to, among other tasks, "assess the situation of victims, address the needs of survivors, and make recommendations on ways and means to protect Palestinian civilians against further Israeli assaults." It is to report on its progress no later than the middle of December.

At the 15 November special session expressed grave concern "at the continued violation by the occupying Power, Israel, of the human rights of the Palestinian people in the Occupied Palestinian territory" and described the military attacks as "a collective punishment of the civilians."

At the time of the Beit Hanoun attack on 8 November, Secretary-General Kofi Annan voiced his shock, took note of the reported announcement by the Israeli Government of a full investigation into the incident and said he looked forward to its early results.

The UN General Assembly has also set up a fact-finding commission to investigate the killings.

A.D (13:35 P) (11:35 GMT)