Part II: New borders

Judge A. Raymond Randolph wrote for the majority:

Seventeen Chinese citizens currently held at Guantanamo Bay Naval Base, Cuba, brought petitions for writs of habeas corpus. … The question is whether [they] are entitled to an order requiring the [US] government to bring them to the United States and release them here.

This opening paragraph of the decision by the DC Circuit Court of Appeals in February of 2009 introduced a document that dramatically altered the fate of those seventeen men. The men had previously been ordered by a lower court to be freed inside the United States, but the Executive branch appealed, saying the lower court had no such authority. Subsequently, the question that Judge Randolph introduced above was answered: no. No, the seventeen men will not be released into the United States, and unlike Jamal Kiyemba, they can not go home because they fear persecution by the Chinese government. There are thirteen of them now; four were released to Bermuda in June. They wait, still at Guantanamo Bay, for the slow wheels of American justice to make one final revolution as their case heads to the Supreme Court.

Probably about the time Judge Randolph was earning his law degree, Adel Noori was born in a far Western Chinese province called Xinjiang. Xinjiang, which literally translated means “new border,” is home to most of the Muslim Uighur ethnic population, including Noori’s wife and daughter. It is not home to Adel Noori however, because he is one of the men asking to be freed from Guantanamo Bay. Judge Randolph continues:

Sometime before September 11, 2001, petitioners left China and traveled to the Tora Bora mountains in Afghanistan, where they settled in a camp with other Uighurs. … Petitioners fled to Pakistan when U.S. aerial strikes destroyed the Tora Bora camp. … Eventually they were turned over to the U.S. Military, transferred to Guantanamo Bay and detained as “enemy combatants.

Noori went to Kabul, Afghanistan before 9/11. In all likelihood, he was fleeing political persecution in China where, as an outspoken voice of political movements that run contrary to Chinese government policy, he was (and still is) wanted for “political crimes.” So Noori fled, and found himself in Afghanistan when the bombs started falling. As Judge Randolph explains, he then went to Pakistan seeking safety. And so, although their circumstances were dramatically different, Adel Noori and Jamal Kiyemba found themselves in Pakistan for the same reason. Their adopted country of Afghanistan was under attack as the United States sought retribution for an act of terrorism that neither men had anything to do with. Kiyemba and Noori became scapegoats. Like Kiyemba, Noori was handed over to US authorities in exchange for a monetary reward ($7000, according to his lawyer). And like Kiyemba, he was sent to Guantanamo.

Noori and his compatriots didn’t speak the same language as Kiyemba, and it is likely they never even met him. For five years, though, they shared a home, and waited for the bizarre and opaque organs of the US military, executive, and judicial systems to process them. After several years, it was clear to the US government that none of these men were threats to the United States, and that they ought to be released. Lawsuits filed on their behalf sought relief as early as 2005, and because of the similarity of their predicaments, they were consolidated under the Kiyemba umbrella. Thus, when Jamal Kiyemba was released in 2006 (to a country where he was not in danger of persecution), his namesake – Kiyemba v. Bush (later Kiyemba v. Obama) continued its progression through the legal system.

But the Uighur men were stuck. The United States, trying to use 9/11 to justify a war in Iraq, was trading on Americans’ fears. Continued rhetoric about the “dangerous” men at Guantanamo was a political roadblock to releasing even the ones that were known to be innocent. Other countries, not unreasonably, rejected invitations to accept the men, arguing that if they were too dangerous for the US, we had no business trying to export them elsewhere. China, accused of using 9/11 to unjustly label the Uighur independence movement a terrorist organization, would have certainly imprisoned the men if they were released there. Their only true home, Afghanistan, remained a war zone. So they waited.

Then, in 2008, they were freed. The DC District Court, seeing the impossible situation that the United States had created for the men, granted their petition for habeas corpus and directed their release into the United States. An earlier case, Boumediene v. Bush had already set the precedent for detainee habeas rights, and the court seemed to be acting in accordance with that decision. It was the closest thing to old-fashioned Constitutional justice since the war had begun. To many observers, it was a bit of fitting irony that the United States had created for itself a mechanism for importing people who never had any intention of immigration. As the Brennan Center for Justice noted:

They find themselves in their predicament not because they were seeking admission to the United States but because they were forcibly seized and brought to Guantánamo where they have been unlawfully detained for seven years. They are not seeking – nor did they ever seek – to immigrate; they are simply seeking release from their unlawful detention. And they seek that release into the United States because all other options are foreclosed to them.

Unfortunately that justice was short-lived, which brings us back to Judge Randolph. Speaking for the three-judge appellate panel, Randolph explained that no matter how unfair the United States may have been to these prisoners, the Writ of Habeas Corpus is not “compensatory in nature” and that such an unprecedented step as to compel non-citizens to be released onto US soil is entirely inappropriate. The Executive branch, he said, and not the courts, have sole discretion as to who gets to immigrate to the United States. He concluded, “The government has represented that it is continuing diplomatic attempts to find an appropriate country willing to admit petitioners, and we have no reason to doubt that it is doing so. Nor do we have the power to require anything more.”

Adel Noori has seen his share of new borders, but for now those borders remain the narrow boundaries of the Guantanamo prison. Meanwhile, the US government is exploring where the borders of its Executive and Judicial branch powers really are.

Part III: “Trial separation,” will look at the issues that face the President and the Supreme Court in what could be a major separation-of-powers case. There are currently three important questions pending review by the Court (with possibly more to be added on as additional detainee cases pile up), any or all of which could be rendered moot if a suitable relocation scenario is identified by the Executive branch prior to March 2010.

Sources for Part II:

Background information, non-judicial quotation sources, and biographies of the Uighur detainees:

1. “Profiles of Guantanamo Detainees in Need of Safe Haven.” Center for Constitutional Rights. Nov. 2008. 31 Oct. 2009. http://ccrjustice.org/learn-more/reports/profiles-guantanamo-detainees-need-safe-haven.
2. “Adel Noori.” Center for Constitutional Rights. Nov. 2008. 31 Oct. 2009. http://ccrjustice.org/files/Adel%20Noori%20-%202pages_0.pdf.
3. Rosdeitcher, Sidney. “Kiyemba v. Obama: A Mockers of the Rule of Law.” Brennan Center for Justice. 19 Feb. 2009. New York University School of Law. 31 Oct. 2009. http://www.brennancenter.org/blog/archives/kiyemba_v_obama_a_mockery_of_the_rule_of_law/.
4. “China ‘crushing Muslim Uighurs’.” BBC News 12 Apr. 2005. 31 Oct. 2009. http://news.bbc.co.uk/2/hi/asia-pacific/4435135.stm.
5. Miles, Donna. “Bush: Guantanamo Detainees Receiving Humane Treatment.” American Forces Press Service 20 Jun 2005. United States Department of Defense. 31 Oct. 2009. http://www.defenselink.mil/news/newsarticle.aspx?id=16359.

Legal documents:

1. DC District Court’s habeas decision. See In re Guantanamo Bay Detainee Litig., 581 F. Supp. 2d 33 (D.D.C. 2008). 30 Oct. 2009. http://www.scotusblog.com/wp/wp-content/uploads/2009/06/hogan-on-gtmo-returns-6-1-09.pdf.
2. DC Circuit Court of Appeals decision reversing the District Court’s habeas ruling: Kiyemba v. Obama. 555 F.3d 1022 (D.C. Cir. 2009). 30 Oct. 2009. http://pacer.cadc.uscourts.gov/docs/common/opinions/200902/08-5424-1165428.pdf.
3. Petition for Certiorari in the United States Supreme Court: Kiyemba v. Obama. No. 08-1234. 30 Oct. 2009. http://www.scotusblog.com/wp/wp-content/uploads/2009/04/kiyemba-petition-final-4-6-09.pdf.
4. Boumediene v. Bush. 553 U.S. ___ (2008). 30 Oct. 2009. http://www.supremecourtus.gov/opinions/07pdf/06-1195.pdf.

PART I: Jamal Kiyemba’s long journey home

Jamal Kiyemba doesn’t have anything to do with the case coming before the Supreme Court in 2010. He is a free man; he lives in Uganda, and as well as anyone might expect after what he went though, he is apparently leading a normal life there. But his full-circle journey, one that spanned four continents, is necessary prologue to the legal battle that wages on today under his name.

Kiyemba wasn’t your typical enemy combatant. Raised in a Roman Catholic family just outside of Uganda’s capital city of Kampala, Kiyemba studied at Catholic schools until his late teens. In 1988, as future president and habeas petition respondent Barack Obama was visiting his father’s hometown in Kenya, Kiyemba was probably studying at St. Mary’s College in Kisubi in the country next door. The following year, Kiyemba’s father died in a car accident, and a few years after that Kiyemba joined the rest of his family in London. He continued his studies at Catholic schools, ultimately attending university as a pharmacy student. But along with the opportunity that London offered, he also discovered other temptations that face college students. “I loved partying, going out with girls and drinking,” he told the Ugandan paper Sunday Vision in a 2006 interview, “dividing my time between working and studying became increasingly difficult.” Like so many of us did as young students, Kiyemba took a year off from university to find his way.

What he found was Islam. Over the objections of his family, Kiyemba converted to Islam in 1999, renouncing his former lifestyle, religion, and education. He sought out a place where he could be with other Muslims and where he believed it would be “easier to stay faithful to [his] religion.” That place was supposed to be Afghanistan, but after the 9/11 attacks, Kiyemba opted instead for the relative safety of Pakistan, where he joined the Taliban, believing it would help him find solidarity with other Muslims. His plan was to locate a place to settle until the war was over; Afghanistan remained his ultimate goal. Safety was not to be found, however, and later in 2001 Pakistani officials, motivated perhaps by a $5000-per-person reward offered for any suspected Taliban member, captured Kiyemba and handed him over to US authorities. Within a year, Kiyemba was shackled and jailed at Guantanamo Bay where he would remain for the next four years.

According to his 2006 statements, Kiyemba was repeatedly tortured at Guantanamo, witnessed the torture of others, and underwent hours of interrogation every day under grueling conditions. In 2005, he was part of a hunger strike protesting the conditions at Guantanamo. He says he eventually confessed to terrorist activities as a result of the torture and threats by the military guards.

Kiyemba was ultimately released following a Department of Defense Administrative Review Board hearing in early 2006. The US had intended to return him to his country of residence, England, but he was denied entry there and he returned to Uganda in April 2006.

In 2005, as Jamal Kiyemba sat shackled in his cell at Guantanamo, uncertain of whether he would be imprisoned for another day or for the rest of his life, his lawyer filed a petition for habeas corpus challenging his detention as unlawful. The petition itself was only one among many filed on behalf of detainees at the military camp and in that context it is unimportant; Kiyemba was released pursuant to the 2006 ARB hearing and his legal standing evaporated. Because of some procedural detail of the American legal system, however, Jamal Kiyemba’s name remains in the headlines of the highly public legal battle that began as Kiyemba v. Bush and which sits now on the desks of the nine justices of the Supreme Court of the United States under its new name: Kiyemba v. Obama.

Part II: “New borders,” will look at the thirteen Chinese Uighur men who remain imprisoned at Guantanamo Bay and who carry on the Kiyemba legacy. With no viable options for deportation or repatriation, they await a US government separation-of-powers showdown that will determine their fate.

Sources for Part I:

Jamal Kiyemba, biographical details and interviews:

1. Allio, Emily. “Uganda frees Al qaeda suspect.” The New Vision (Uganda) 18 Apr. 2006: 1. 30 Oct. 2009. http://www.newvision.co.ug/D/8/12/493664.
2. “Jamal Abdullah Kiyemba.” Wikipedia, The Free Encyclopedia. 7 Aug 2009, 10:32 UTC. Wikimedia Foundation, Inc. 30 Oct. 2009. http://en.wikipedia.org/wiki/Jamal_Abdullah_Kiyemba.
3. “How I ended up in Guantanamo.” Sunday Vision (Uganda) 2 Apr. 2006: SR. 30 Oct. 2009. http://www.sundayvision.co.ug/detail.php?mainNewsCategoryId=7&newsCategoryId=132&newsId=490641.
4. Lewis, Jason. “I confessed to escape Guantanamo torture.” The Daily Mail 19 Feb. 2006. 30 Oct. 2009. http://www.dailymail.co.uk/news/article-377623/I-confessed-escape-Guantanamo-torture.html.

Legal documents:

1. Jamal Kiyemba’s Petition for Writ of Habeas Corpus: Kiyemba et al v. Bush et al., Case # 1:05-cv-01509-RMU in the U.S. District Court of Washington, DC. 30 Oct. 2009. http://www.pegc.us/archive/Kiyemba/docket.txt.

Caveats/Notes:

• This works for the thickbox effect. I don’t know if will work for other effects.
• Directly editing the PHP files of plugins may cause problems when you update WordPress or the plugin itself. Do so at your own risk.
• The bold tags look great, but I’m not sure how compatible they are; your mileage may vary.
• Successfully tested on Firefox, IE8, Chrome (webkit).

PHP Code: Step 1
Find this code in wp-content/plugins/nextgen-gallery/view/gallery.php (line 38 in unmodified original version 1.3.5):

	
	<?php foreach ($images as $image) : ?>

Add the following code after the lines above:

    <?php
    // BEGIN HACK

      // Case if description present
      if ( strlen($image->description) > 1 )
      {
        $newdesc = "" . $image->alttext .
        "" . " :: " . $image->description;
      } 

      // Case if no description
      else {
        $newdesc = "" . $image->alttext . "";
      }

    // END HACK
    ?>

PHP Code: Step 2

Replace the following line (line 42):

          <a href="<?php echo $image->imageURL ?>"
          title="<?php echo $image->description ?>"
          <?php echo $image->thumbcode ?> >

With this:

          <a href="<?php echo $image->imageURL ?>"
          title="<?php echo $newdesc ?>"
          <?php echo $image->thumbcode ?> >

Explanation:
thickbox.js, a WordPress include, is the javascript that generates the image popup for NextGEN’s thickbox effect. It gets its information from the thumbnail href in the gallery and uses that information to populate picture data in the popup’s caption area beneath the picture. Specifically, the picture’s description is pulled from the title attribute of the image’s a tag which is, in turn, generated in gallery.php by the code above. Unmodified, the code only pulls the description, which you can set in the gallery manager area. By adding this code, you’re prepending the image name to the description and passing that to thickbox.js via the thumbnail title text. If no description is present, only the image title is passed to thickbox.

You can see how the new variable $newdesc can be manipulated to include any other data you want. For example, you could also append exif data and image size by appending $exif['created_timestamp'] and $image->size to $newdesc. To see what information is available to you, add the PHP function <?php var_dump($image) ?> inside the foreach loop and it will output all of the attributes of each image (except exif data; you’re on your own there).

Feel free to share any improvements, limitations, etc. in the comments.

Introduction

Many centuries of history form the foundation of logographic written Chinese. But it is only in the last sixty years that we have seen the bifurcation of that character system, and the debate that inevitably followed, when the Communist government in the late 1950s introduced what would be known as the set of simplified characters, officially eliminating the use of the previous character set (now known as traditional characters) in mainland (People’s Republic of) China. Since many were opposed to this significant change, and because other Chinese-speaking entities continued using traditional characters, the debate over simplified versus traditional characters began immediately and continues today. Now, as modern technology and globalization wield ever more influence over an ancient culture, novel arguments lend further intrigue to an already fascinating political and linguistic question.

First, for those unfamiliar with the bimodal Chinese writing system, here is a brief explanatory example. Below are the two ways to write the characters fei ji (airplane) in China’s traditional and simplified character sets (sometimes incorrectly referred to as alphabets):

Chinese characters are categorized in part by the number of strokes they contain. As you can see, the characters on the left are much more complex: it takes 25 strokes to write “airplane” in traditional Chinese. The characters on the right are simplified characters, in which system only eight strokes are required to write the same word.

The economy of strokes realized by moving from the traditional character set to the simplified has been often cited as a way to boost literacy, the primary argument in favor of using and maintaining the simplified character set since its inception. It is important to note that both character systems are equally capable of representing spoken Chinese and many texts are published in both systems in order to make them accessible to a broader audience.

A Resurgence of Interest

Although the simplified character set has been officially in use — in fact mandated by law — in mainland China for more than fifty years, other Chinese-speaking entities (principally Taiwan and Hong Kong) continue to use the traditional character set, and many feel that the traditional characters are superior for reasons to be explored presently. What appears to have inspired a renewed interest in this debate was the news in December 2008 that Taiwan was seeking world heritage status [1] for the traditional character set. World Heritage status, pursuant to a 1972 UNESCO convention,  means “the identification, protection and preservation of cultural and natural heritage around the world considered to be of outstanding value to humanity” [2]. Approval of this request would put the Chinese traditional character set on the list with such notable items of cultural or natural significance as Australia’s Great Barrier Reef, the Hiroshima Peace Memorial in Japan, and numerous state parks in the USA [3]. The status would carry no official mandate to expand usage of traditional characters, and many speculate that it will not happen without China’s support [4]. But even as a symbolic measure Taiwan’s move has sparked some interesting reactions and opened the eyes of some (like me) who weren’t previously aware of the vast opinion divide on this subject.

Why Simplify?

Simplified characters were formally introduced in the 1950s and ’60s immediately prior to and during the Cultural Revolution, though their evolution dates back much earlier in the century [5], and may have conceptual roots in Chinese calligraphy. The use of simplified characters in mainland China was, according to S. Robert Ramsey’s The Languages of China [6], made official policy pursuant to a speech and publication by Premier Zhou Enlai in 1958 [7] and later formalized in a compendium of simplified characters published in 1964. According to most sources, the reason this policy was pursued was to increase literacy, the fairly obvious argument being that making characters easier to write would make reading and writing more accessible to all people. There is, if not a causal connection between literacy and character simplification, certainly evidence that the communist government has been immensely successful in increasing literacy since the cultural revolution [8, 9, 10].

So, Out With the Old?

The counter-arguments to usage of the simplified character set largely fall into one of three broad categories: (1) simplification destroys or inhibits access to history and culture; (2) simplification diminishes aesthetics and expression; (3) the literacy argument for simplification is rendered moot by technology. There are other arguments against (and for) simplified characters, but most are either highly political or very subtle. Both of those categories are out of the scope of the general overview I am attempting to provide here, so I’ll briefly expand a bit on each of the three arguments above and advise readers interested in the charged political debate or the finer points of the linguistic argument to explore other sources.

Simplification destroys or inhibits access to history and culture. This argument can take one of two forms. One is a generalized political argument alleging that Maoism sought to intentionally destroy all Chinese culture prior to the Cultural Revolution (see, for example, various works by Dr. Kam-yee Law). A more specific statement, and one that can be more readily understood and assessed by non-scholars of Chinese history, might simply state that before the 1950s texts in China were written in traditional characters, and therefore switching to a new character set must necessarily have as a consequence the inability of people educated within the new system to access those prior works.

Simplification diminishes aesthetics and expression. This argument can be applied both at the individual character level and the overall ability of the written language to “[exploit] the full range and expression of the traditional Chinese characters” [11]. Chinese characters express meaning in part using radicals. Simplified characters retain many of the core meaning radicals, but inevitably some were removed in the interest of reducing stroke count. Applied at a broader level, proponents of a return to the traditional character set argue that subtleties in expression, especially in historical works, are inaccessible even if the texts are converted to simplified characters.

Technology renders this argument moot. The newest and perhaps most compelling argument for a return to traditional characters is captured by James Fallows at the Atlantic. Fallows explains how technology, such as computers and mobile phone texting applications, are increasingly leveling the playing field for traditional and simplified characters because they are based on phonetic input rather than written strokes [12]. I can illustrate this concept using the airplane example again: using my computer’s SCIM text input (a program for inputting complex character-based languages) I can just as easily enter the simplified characters 飞机 as I can the traditional characters 飛機. Why? Because in either case I type on my keyboard the letters “fei ji”, which are the pinyin (phonetic) representation of the Chinese word. The difference in “writing” these words, then, is no longer 17 strokes of the pen, but a simple selection of the desired character input method in SCIM; that is, I click on “Simplified” or “Traditional” before I start typing. So all things input-related being equal, Fallows says, we might as well use the traditional characters for the reasons detailed above, and because in Chinese-speaking nations and communities outside of mainland China, that system is already in use.

A Student’s Perspective

In the end, it’s difficult for me — an American beginner in Chinese studies — to choose sides on this issue. A solid argument clearly can be made in favor or either system; conversely, a rationalization for either system is easily applied to whatever political viewpoint you have. For me it seems to be a question of whether to put a premium on cultural preservation or practical accessibility. In some ways, net appreciation for Chinese culture is probably increased by making it more accessible. Yet at some point a more thorough knowledge of China’s expansive and rich history probably does require knowledge of the traditional character system.

Fallows and others advancing the technology-fixes-everything approach overlook something that most students of Chinese can probably immediately recognize: you must be able to read Chinese in order to leverage any character input system (otherwise, how do you know if the character appearing on the screen is the right one?). You can’t learn to read Chinese without memorizing the characters, and you can’t memorize the characters without writing them many many times. If you’re a student learning Chinese, the stroke count is often a good indicator of how many hours of practice it’s going to take you to learn a particular character. So regardless of how sophisticated the technology, there will always be a learning curve and it will be much steeper for the traditional characters. Because of this reality, simplified characters were an easy choice for me as I went into Chinese 101. Now, the more solid my foundation in the language becomes, the more it becomes clear that an ability to read both systems would be of tremendous benefit.

Notes

• Hyperlinks in this article link to information on other websites (such as Wikipedia) where you can learn more about concepts or terms used in the text. They do not represent sourced claims.
• Items with references such as [1] indicate sourced or paraphrased claims such as original research by others. These items are listed below under References and are cited as they would be in a scholarly work. Where possible, these sources also contain hyperlinks, functional as of the date indicated.
• IMAGE CREDIT: The image used at the top is a famous depiction of Zhi Yong’s ‘Eight Laws of Chinese Calligraphy’. The central character is yong (forever). Image scanned from: Hwa, Khoo S., and Nancy Penrose. Behind the Brushstrokes. Hong Kong: Asia 2000, Ltd. 1993. 58.

References

1. “Taiwan to seek world heritage status for complex Chinese characters.” Monsters and Critics 18 Dec. 2008. 1 Apr. 2009  <http://www.monstersandcritics.com…>.
2. “World Heritage.” UNESCO World Heritage Centre. 2009. 17 Mar. 2009 <http://whc.unesco.org/en/about/>.
3. “World Heritage List.” UNESCO World Heritage Centre. 2009. 17 Mar. 2009 <http://whc.unesco.org/en/list>.
4. Shih, Heiu-chuan. “Task force seeks UNESCO status for Chinese writing.” Taipei Times 14 Mar. 2009: 2. 17 Mar. 2009 <http://www.taipeitimes.com…>.
5. “Simplified Chinese characters: Origins and history.” Wikipedia, The Free Encyclopedia 10 Mar. 2009, 12:56 UTC. Wikimedia Foundation, Inc. 17 Mar. 2009 <http://en.wikipedia.org…>.
6. Ramsey, Robert S. The Languages of China. Princeton: Princeton University Press, 1989.
7. Zhou (Chou), Enlai. “Current Tasks of Reforming the Written Language.” Reform of the Chinese Written Language.  Peking: 1958; 2nd edition 1965.
8. Jowett, John A.. “Patterns of literacy in the People’s Republic of China.” GeoJournal 18.4 (1989): 417-427.
9. Ross, H. [Figures on Chinese literacy rates]. United Nations Educational, Scientific, and Cultural Organization. 2 June 2005: 1. 17 Mar. 2009 <http://portal.unesco.org…>.
10. Meng, Hong Wei. “ILI/UNESCO LAP 2nd Experts Meeting: Literacy Assessment Practices (LAP) in Selected Developing Countries. China case study.” Paris, 7-8 Mar. 2002: 4-9. International Literacy Institute. 17 Mar. 2009 <http://www.literacy.org…>.
11. Meng, Hsuan, et al. “The Chinese Language, Ever Evolving.” The New York Times 2 May 2009. 28 May 2009 <http://roomfordebate.blogs.nytimes.com…>.
12. Fallows, James. “Technology as friend of tradition! (Chinese language dept.).” Atlantic Monthly 12 Mar. 2009. 17 Mar. 2009 <http://jamesfallows.theatlantic.com…>.
    

The California Supreme Court, on its website this morning, quietly issued its final opinion on Prop 8 (note: all page numbers cited in this post refer to the linked PDF). Despite the moral injustice that was perpetrated against same-sex couples by the people of California when they passed the initiative last November, the state Supreme Court is not bound to instill reason or wisdom to the land, but to uphold the law and the constitution. Today they did that. The ruling is unfortunate in that it’s another let-down for supporters of marriage equality in California, but an honest review of the entire process leading up to today reveals the Court’s decision as possibly the only thing that wasn’t terribly flawed.

Free and Undivided

It is tragic. The idea that a state government, acting in concert with the will of a majority that was either misled by propaganda or just plain mean, would intentionally take away rights from a minority is unconscionable in modern law and culture. In this country we’ve spent the last 140 years — beginning with the passage of the Fifteenth Amendment — slowly inching our way, legally and socially, away from institutionalized discrimination. Yet today, fresh on the hells of the 41st Memorial Day, a day on which we are impelled by the Army of the Grand Republic’s historic Memorial Day Order to “let no neglect, no ravages of time, testify to the present or to the coming generations that we have forgotten as a people the cost of a free and undivided republic,” the most populous state in our nation has upheld the division between gay and straight, and codified in its constitution the taking of freedom from some of its people.

Warts and All

The real tragedy of Proposition 8 isn’t today’s decision by the Court. If anything, the Court’s 6-1 majority opinion offers a sympathetic voice to the gay rights community and a “don’t mourn, organize” approach for what to do next (more on that presently). The fact is that overturning Prop 8 would undermine California’s entire constitutional process and years of legal precedent (which are painstakingly recounted in the opinion). The fault lies not with the Court, but with two flawed instruments of law: the California voters and the amendment process.

In a system of representative democracy, the people elect representatives to make decisions on their behalf. This process is laden with bribery, corruption, obfuscation, and deception, but does generally speaking have two important advantages: (1) policy-making is done in a somewhat organized and disciplined way, often with explicitly codified checks and balances to protect minority interests; (2) the rule of law is not generally subject to the passing whims of the general public. In contast, direct democracy, which is essentially what California has, subjects virtually any question of policy to a simple majority vote.

Even in deep red Oklahoma, where John McCain won every single county in the 2008 election, an initiative like Prop 8 would face a much more rigorous challenge. That’s because in Oklahoma, like many states, the signature threshold for a ballot initiative is much higher than in California, where a mere 8% of the voting public can place an initiative on the ballot. As the Court points out on page 4 of today’s opinion, this explains why California’s constitution has been amended more than 500 times in only 130 years of statehood (compared to just 27 times for the U.S. Constitution).

The Court further underscores its powerlessness to act against the will of the majority by referencing the broad power that the state’s constitution grants the voters with respect to the scope of changes to the governing document. Specifically, they point out that although some state constitutions allow for revision/amendment by the people, they expressly designate certain sections such as Bills of Rights as being completely off-limits. California’s constitution offers no such safe harbor for any portion of its contents.

Other important legal considerations are carefully addressed by the Court, including the importance of precedent, the protection of the various powers of the branches of government, and the differences between the current position of the California Supreme Court and Supreme Courts of other states recently engaged in legal debates over the constitutionality of pro- or anti-same-sex marriage amendments.

Silver Linings

It won’t come as any consolation to most same-sex couples in California, but today’s decision isn’t without its highlights. The most obvious victory comes in the Court’s unsurprising ruling that any same-sex marriages completed prior to the passage of Prop 8 “remain valid in all respects” (page 135). This is perhaps the most explicit win for equal rights proponents, but some more subtle components of the decision may lay the groundwork for a more meaningful future victory in the state.

Early in the 136-page opinion the Court took pains to clarify its role: “our task,” they said, “… is not to determine whether [Prop 8] is wise or sound as a matter of policy or whether we, as individuals, believe it should be a part of the California Constitution.” They went on to explain the Court’s role as an arbiter of constitutional validity, saying that they are “limited to interpreting and applying the principles and rules embodied in the California Constitution, setting aside our own personal beliefs and values.” (Page 3; all emphasis in original). Then, rather than seeking questionable constitutional grounds for overturning the initiative, which could have upset years of precedent and opened far more dangerous doors, the Court instead did two important things: it strictly upheld precedent and the words of the California constitution, and it stripped the amendment of most of its meaning.

In upholding precedent and not departing from the long history of Supreme Court rulings that reinforce the power and principle of the state’s constitution, the Court strengthened the already well-established doctrine that amendments by the people are beyond judicial reach except in extraordinary circumstances. Their final words in the opinion spelled out the next steps, presumably already under way: “if there is to be a change to the state constitutional rule embodied in [Prop 8], it must ‘find its expression at the ballot box.’” Because the Court upheld a very high bar for overturning voter initiatives via the judicial process, one can assume that if such an “expression at the ballot box” took place it would be afforded the same protection.

Even more important than setting the stage for a successful and lasting amendment to repeal Prop 8, the court defined away virtually all the substance from the constitutional amendment. They said that the amendment reserves “the official designation of the term ‘marriage’ for the union of opposite-sex couples,” (page 7; emphasis in original). In effect, they left only a shell: the word “marriage”. This won’t inspire chants of “free at last,” but it certainly puts Proposition 8 in its place, and makes it clear that it won’t fundamentally change the privileges and immunities under California’s Article 1.

Dissent

Critics, including the lone dissenting voice on the court, Justice Carlos Moreno, liken the Court’s decision to an affirmation of the “separate but equal” doctrine. That would be true but for one important difference: the separate but equal doctrine of early 1900s America protected a system that literally segregated blacks and whites into separate physical locations and provided vastly inferior educational instruction and accomodations for one group. The shaky legal ground that supported separate but equal relied on the flawed assumption that governmental services could be administered separately to two groups of people but somehow still be the same. In contrast, Proposition 8 does not segregate the facilities, government services, rights, or protections afforded to any group by the state. In fact, as detailed above, the Court’s narrow interpretation of the language of Prop 8 effectively requires the court to uphold it because it carries so little weight.

Sanctity

The California Supreme Court today may have done equal rights activists in the state a bigger favor than they realize. Many were looking to the Court as the last bastion of sanity after a vile and bigoted campaign led by mega-churches and right-wing fringe groups succeeded in doing the unthinkable. And though they acted in good faith with their principles, the broad coalition that asked the 7-judge panel for their votes to overturn Prop 8 probably knew that it would take a different kind of vote altogether to make things right. In California, after all, “all political power is inherent in the people” (Article II, Section 1) and those people no doubt have the votes and the determination to make this right in the end, using the legal processes and framework that the constitution spells out and that the Court has pledged to uphold. In the meantime, same-sex couples in California will enjoy all the trappings of marriage, except for the title.

IMAGE CREDIT: the image used at the top is by Diogioscuro, via Flickr.

If you know why you’re reading this already, skip to the code below the fold. Otherwise, here’s some explanation. In a project Work Breakdown Structure (WBS), tasks are organized into major tasks, sub-tasks, sub-sub-tasks, etc. as in the following example which is an actual project plan used by NASA:

1      Build a spaceship

1.1      Read wikipedia article on spaceships to determine required supplies

1.2      Buy spaceship supplies

1.3      Assemble spaceship

1.3.1      Attach top part to middle part

1.3.2      Attach middle part to thruster thingie

1.3.3      Paint spaceship a neat-o color

1.4      Set spaceship upright (facing sky)

2      Fly around in spaceship

3      Discover strange new worlds

4      Return home 

4.1      Point spaceship at Earth

4.2      Land spaceship on Earth

4.3      Park spaceship in designated parking space
 

Instead of sequentially numbering the tasks, we assign subtask numbers to those tasks that roll up under other tasks. Assemble spaceship is a subtask of Build a spaceship so it gets Build a spaceship‘s number (1) plus a subtask number (3, since it’s the third subtask) so its WBS number is 1.3. Attach top part to middle part is a subtask of Assemble spaceship, so it gets 1.3 plus a sub-subtask number (1.3.1), and so on. MS Project also bolds any items with subtasks.

Since this type of WBS or outline numbering functionality isn’t available in Excel, it requires a VBA macro. Free code after the fold.

Update September 8: Here is a sample spreadsheet, complete with the code and a command button, for those who want something ready-to-use. Also, I am pleased to learn that this post was featured on the Daily Dose of Excel blog on June 10.

Update June 1: I discovered (and have added to the code) the most effective trick ever for speeding up Excel macros: Application.ScreenUpdating = False. 

Update April 6: Added “format as text” line into the marco to prevent truncation of tasks ending in 0 (1.10, etc. — thanks Nick!) and fixed minor problem with parent-task formatting.

Notes about the macro:

1. Tested in Excel 2003 and 2007 for Windows.
2. The macro is based on the concept that the indentation of a particular task in column B dictates its WBS “depth” (whether it’s a task, sub-task, sub-sub-task, etc.). WBS numbering will be created in column A:
3. Indenting and “outdenting” is done with this control in Excel
   
4. The macro renumbers everything at once, so after you add this macro to your project’s VB code, create a button or other control that runs the macro.
5. It requires certain formatting. Read all of the formatting assumptions, commented at the top of the macro.

VBA Code:

Sub WBSNumbering

'Renumber tasks on a project plan
'Associate this code with a button or other control on your spreadsheet

'Layout Assumptions:
'Row 1 contains column headings
'Column A contains WBS numbers
'Column B contains Task description, with appropriate indentation
'Some text (here we assume "END OF PROJECT") delimits the end of the task list

    On Error Resume Next

    'Hide page breaks and disable screen updating (speeds up processing)
    Application.ScreenUpdating = False
    ActiveSheet.DisplayPageBreaks = False
    'Format WBS column as text (so zeros are not truncated)
    ActiveSheet.Range("A:A").NumberFormat = "@"
    Dim r As Long                   'Row counter
    Dim depth As Long               'How many "decimal" places for each task
    Dim wbsarray() As Long          'Master array holds counters for each WBS level
    Dim basenum As Long             'Whole number sequencing variable
    Dim wbs As String               'The WBS string for each task
    Dim aloop As Long               'General purpose For/Next loop counter

    r = 2                           'Starting row
    basenum = 0                     'Initialize whole numbers
    ReDim wbsarray(0 To 0) As Long  'Initialize WBS ennumeration array

    'Loop through cells with project tasks and generate WBS
    Do While Cells(r, 2) <> "END OF PROJECT"

        'Ignore empty tasks in column B
        If Cells(r, 2) <> "" Then

           'Skip hidden rows
            If Rows(r).EntireRow.Hidden = False Then

                'Get indentation level of task in col B
                depth = Cells(r, 2).IndentLevel

                'Case if no depth (whole number master task)
                If depth = 0 Then

                    'increment WBS base number
                    basenum = basenum + 1
                    wbs = CStr(basenum)
                    ReDim wbsarray(0 To 0)

                'Case if task has WBS depth (is a subtask, sub-subtask, etc.)
                Else

                    'Resize the WBS array according to current depth
                    ReDim Preserve wbsarray(0 To depth) As Long

                    'Repurpose depth to refer to array size; arrays start at 0
                    depth = depth - 1

                    'Case if this is the first subtask
                    If wbsarray(depth) <> 0 Then

                        wbsarray(depth) = wbsarray(depth) + 1

                    'Case if we are incrementing a subtask
                    Else

                        wbsarray(depth) = 1

                    End If

                    'Only ennumerate WBS as deep as the indentation calls for;
                    'so we clear previous stored values for deeper levels
                    If wbsarray(depth + 1) <> 0 Then
                        For aloop = depth + 1 To UBound(wbsarray)
                            wbsarray(aloop) = 0
                        Next aloop
                    End If

                    'Assign contents of array to WBS string
                    wbs = CStr(basenum)

                    For aloop = 0 To depth
                        wbs = wbs & "." & CStr(wbsarray(aloop))
                    Next aloop

                End If

                'Populate target cell with WBS number
                Cells(r, 1).Value = wbs

                'Get rid of annoying "number stored as text" error
                Cells(r, 1).Errors(xlNumberAsText).Ignore = True

                'Apply text format: next row is deeper than current
                If Cells(r + 1, 2).IndentLevel > Cells(r, 2).IndentLevel Then

                    Cells(r, 1).Font.Bold = True
                    Cells(r, 2).Font.Bold = True
                'Else (next row is same/shallower than current) no format
                Else
                    Cells(r, 1).Font.Bold = False
                    Cells(r, 2).Font.Bold = False
                End If
                'Special formatting for master (whole number) tasks)
                If Cells(r, 2).IndentLevel = 0 Then
                    Cells(r, 1).Font.Bold = True
                    Cells(r, 2).Font.Bold = True
                    'Add whatever other formatting you want here

                End If

            End If

        End If

    'Go to the next row
    r = r + 1

    Loop

End Sub

First, make sure you have activated your mobile phone within Facebook. Follow the instructions at facebook.com/mobile. The process will involve sending a confirmation code to your mobile phone via text message so Facebook can associate your phone number with your account.

Next, make sure you have access to Sprint’s PictureMail application. To do this, login to pictures.sprintpcs.com. You may have to call Sprint to get your username and password if you don’t already know it (their customer service number is 888-788-4727). You should see a login screen that looks something like this:

Click on “Send Picture Mail” on the right and compose a message, with a picture attached, to mobile@facebook.com. Send the message and then check your Facebook account to see if it uploaded. If it did, congratulations – you’ve just tricked Facebook into thinking you uploaded a photo from your mobile phone.

Now the fun part, tricking your Sprint Windows Mobile phone into thinking it can send picture mail too. The application you need, as of December of 2008, is sMMS and it is available at PPCGeeks.com. In this order, do the following:

1. Register for an account at PPCGeeks. Unfortuantely this is the only way to get access to the download links.

2. Visit the sMMS forum page at http://forum.ppcgeeks.com/showthread.php?t=22509.

3. Download the CAB file for the current version of .NET; this is required to run sMMS.

4. Download the CAB file (not the EXE file) for the current version of sMMS.

5. If you have ActiveSync setup and like to use it, follow the instructions on the site and you’re done! If not, email both CAB files to an email address that you can access from your Sprint phone.

6. Download the CAB files to your Sprint phone into the phone’s main memory (not to a storage card). Using the Windows Mobile file browser, locate the .NET CAB file and open it to install the .NET framework.

7. Restart your phone when prompted.

8. Using the Windows Mobile file browser, locate the SMMS CAB file and open it to install sMMS.

9. If you’re using a Treo 700w you might get a wacky error when you first open sMMS. Ignore it and restart sMMS; it should work fine now.

Like any software install on a Windows Mobile phone, there are plenty of opportunities for things to go wrong, but I’ve had really good luck with this program so far. My only complaint is that I never got a confirmation code after I made a donation, so I am stuck with annoying “Please Donate” messages even though I already donated, but I am holding out hope that it will show up eventually. At any rate, a one-time $5 donation is well worth the benefit of having PictureMail.