Hooker readily admits he knows of no case where a Michigan prisoner has had gender reassignment surgery. But in an interview with the Grand Rapids Press, he explained why he thought the legislation was important to Michigan:

“It’s something that’s kind of a common sense thing. I’d much rather be proactive than reactive,” said the Byron Center Republican. “It’s definitely something we want to prevent.”

Equality Michigan, a statewide advocacy group for lesbian, gay, bisexual and transgender rights, quickly condemned Hooker’s proposal. Denise Brogan-Kator, who is herself transgender, issued the following statement on the legislation:

“Representative Hooker’s bill is ill-conceived and is yet another attack on the gay and transgender population of Michigan by this Legislature. To the best of my knowledge, only one other state – Wisconsin – has ever passed such a bill and the federal courts struck it down as unconstitutional. Lawmakers should not be in the business of legislating medical care and should not be substituting its judgment for that of the medical profession in such matters. For Representative Hooker to dance to the tune played by Mr. Glenn, the head of an organization labeled as a hate group by the Southern Law Poverty Center is the very antithesis of the “common-sense” he purports to be exercising. I extend an offer to Mr. Hooker to meet with me and discuss this issue in greater detail.”

The SPLC labeled the national American Family Association an extreme anti-gay hate group last year. Officials there said the label did not necessarily apply to the local affiliates because the organization had not had a chance to review their activities and statements to make such a determination.

And Kator is correct, a similar law pass in 2005 by the Wisconsin legislature was struck down as unconstitutional by the 7th Circuit Court of Appeals in August. The court ruled that gender reassignment surgery is no different than any other kind of medical treatment. “Surely,”, the course said, “had the Wisconsin Legislature passed a law that DOC inmates with cancer must be treated only with therapy and painkillers, this court would have no trouble concluding that the law was unconstitutional.”

Gender identity disorder is a recognized mental health problem and is treated with therapy, hormone replacement therapies and gender reassignment surgery. In addition to those therapies, the transgender person is encouraged to live his or her life as the gender they believe they are, rather than the gender assigned at birth. In fact, gender reassignment surgery is not an option for transgender persons until and if they complete a period of time living publicly and completely as their self-identified gender. Mental health officials have argued that refusing treatment for transgender patients can lead to dire consequences, including suicide.

And Equality Michigan is not the only organization condemning the Hooker legislation. David Holtz, executive director of Progress Michigan, slammed Hooker for not paying attention to job creation.

“Voters want their lawmakers to be spending every available minute working to help businesses create jobs,” said Holtz. “That’s what Tom Hooker should be doing, not trying to find a solution for a problem that doesn’t exist.”

Not every group is opposing the legislation. Gary Glenn, president of the American Family Association of Michigan, says the legislation is important.

“Given that it’s already risen as far as the second highest court in the land in a neighboring state, we agree with Rep. Hooker that it’s prudent to act to protect Michigan taxpayers before it becomes an issue in our prison system,” Glenn said. “It doesn’t make sense to passively let legislators or judges in other states set policy for Michigan taxpayers.”

Glenn points to an 8th Circuit Federal Court of Appeals ruling which ruled state prison system are not obligated to use Medicaid funding to pay for a gender reassignment procedure for a woman transitioning to a male. That ruling was made in 2001.

“As to the 7th Circuit’s decision on Wisconsin’s law, the 8th Circuit U.S. Court of Appeals in 2001 ruled just the opposite, that taxpayers are not obligated to pay for prison sex-change operations,” Glenn said. “Michigan is in the entirely separate and somewhat conservative 6th Circuit, where hopefully we’d get the same result as the 8th rather than the 7th. Eventually, especially because of the conflict between different circuit courts, it appears likely to be decided by the U.S. Supreme Court, but that could be years away.”

Between the Lines Newspaper, a weekly newspaper for the LGBT community, also reported on the story. The newspaper spoke with Russ Marlan, spokesperson for the Michigan Department of Corrections.

Marlan consulted with the chief medical officer who said that MDOC would not provide sex change operations.

But, Marlan added, “if there ever was a circumstance where somebody had a medical need for such a thing, it’s certainly possible and allowable under our health care contract right now.”

Marlan said the chief medical officer knows of a transgender inmate who self-injected silicone into his breasts. The silicone is now leaking into his organs and blood. “There’s a health risk there with what’s happening to him so we’re certainly going to provide treatment for that,” Marlan said. The silicone will be removed from the inmate’s body. The inmate asked for silicone breast implants as a replacement, but the chief medical officer said the inmate will receive a prosthesis to wear instead.

“We provide medically necessary care and we want to keep prisoners healthy,” Marlan said. “It’s good for them, it’s good for their families … when 95 percent of them return to society we want to have them healthy. That helps control our long-term costs as well.”

The MDOC has a full policy related to dealing with prisoners diagnosed with gender identity disorder. That policy says that the disorder “represents serious medical needs which may not be ignored.” The policy lays out how MDOC medical officials are required to diagnose the disorder, as well as how plans dealing with treatment of gender identity disorder. Those actions include individual housing, access to gender appropriate clothing and hormone replacement therapy. Gender reassignment surgeries are identified as a possibility, but only in “extraordinary circumstances.”

Surgical procedures for initiation, advancement, or maintenance of sex reassignment shall not be performed except in extraordinary circumstances as determined by the Chief Medical Officer, and the Director.

It is unknown how Hooker’s legislation will play in the Republican-controlled House and Senate. Both chambers have attempted to move legislation which would limit the rights of LGBT people since taking office in January, including attempts to ban health care benefits for same-sex partners. Michigan Attorney General Bill Schuette is suing to prevent such benefits from being implemented for state workers, claiming in part that the benefits discriminate based on sex.

Julie Nemecek, a transgender activist fired from the conservative Christian Spring Arbor University in Jackson county, also weighed in on the legislation.

“The action of Representative Hooker is the worst kind of pandering. Without bothering to check with the Michigan Department of Corrections or authorities on a condition described by the American Medical Association as a ‘serious medical condition,’ Rep. Hooker is against something that he isn’t sure is happening because the American Family Association says he should be against it,” Nemecek said. “Keeping inmates from necessary psychological and medical care is cruel and unusual punishment. For some diagnosed with gender identity disorder, surgery is a necessary treatment prescribed by a doctor. Even the IRS recognizes this surgery as a legitimate medical expense for those able to pay for it. Courts have increasingly called this kind of legislation unconstitutional. Is there a basis, other than bigotry, to deny a treatment that is less expensive than other covered treatments? Proposed legislation should not be based on the ideas of Gary Glenn’s hate-based organization.”

Following today’s discussion on the ethics of neuro-imaging and genetic testing, tomorrow, from 9 a.m.-1:15 p.m. EST at the St. Regis Hotel in Washington, D.C., the commission will review and discuss its human subjects protection with medical experts, researchers and the public — for those who choose to attend and make comments. The conference will also be live-streaming on the Bioethics.gov site.

It was Susan Reverby, a Wellesley College professor, who came across the unpublished papers while doing research on untreated syphilis. She discovered that Dr. John Cutler, a Public Health Service medical officer, had condoned a study that involved injecting soldiers, prisoners and mental hospital patients with gonorrhea and syphilis, which was funded by a grant from the U.S. National Institute of Health to the Pan American Sanitary Bureau.

A summary of initial findings from the U.S. Department of Health and Humans Services:

The first experiments in Guatemala involved infecting female commercial sex workers with gonorrhea or syphilis, and then allowing them to have unprotected sex with soldiers or prison inmates. When few of these men became infected, the research approach changed to direct inoculation of soldiers, prisoners, and mental hospital patients. Gonorrhea was transmitted by inoculations into the urethra; chancroid by skin injection; and syphilis by a variety of means including skin injection and exposing the foreskin of the penis to infectious material. About 1,500 study subjects were involved. Although institutional officials were aware of the study, the study subjects were not informed of the purpose of the study and did not provide consent. The researchers indicated that they treated the vast majority of persons who contracted gonorrhea and chancroid, and most who contracted syphilis. However, the research suggests that some of the persons infected with syphilis were prescribed only partial treatment or not treated at all. At least one patient died during the experiments, although it is not clear whether the death was from the experiments or from an underlying medical problem. There are inadequate records to determine if the commercial sex workers were treated.

After reviewing the U.S. Public Health Service Sexually Transmitted Diseases Inoculation Study, which details how the patients were treated (and that they gave no consent to these studies), President Obama called on the bioethics commission to oversee a fact-finding investigation into the specifics of the study, seeking the insight and perspectives of international experts (including from Guatemala). The president expects findings and recommendations by September.

Obama has also agreed to work with the Guatemalan government and provide them with all the information uncovered in this investigation.

“While I believe the research community has made tremendous progress in the area of human subjects protection, what took place in Guatemala is a sobering reminder of past abuses,” said Obama in a Nov. 24 memo to Dr. Amy Gutmann, chair of the Presidential Commission for the Study of Bioethical Issues. “It is especially important for the Commission to use its vast expertise spanning the fields of science, policy, ethics, and religious values to carry out this mission. We owe it to the people of Guatemala and future generations of volunteers who participate in medical research.”

Doing its own investigation, the Associated Press dug up 40 similar studies, which included giving hepatitis to mental patients in Connecticut, giving the pandemic flu virus to Maryland prisoners and injecting chronically-ill New Yorkers with cancer. The AP notes that in most cases, the studies did not produce useful results.

But what about immigrant detainees awaiting deportation? The Texas Observer yesterday highlighted an interesting loophole in which immigrant detainees in detention centers are counted in the census. Then, those immigrants are deported, leaving their local or state jurisdiction with more money and political power.

The government will allocate more than $100 million in additional funds to places where immigrants are detained….

More than funding is at stake: The composition of legislative districts, county board districts, and city council districts could be skewed by soon-to-be-deported prisoners. Census data are used on the state and national levels to determine the sizes and shapes of these districts. The inclusion of detainees in the count means fewer eligible voters per elected official in places like Cameron County. It also violates the principle of “proportional representation.”

For decades, the government has included prisoners in the census, regardless of their immigration status. In the past, the impact of immigrant detainees has been slight. This is the first decennial census since the re-organization of immigrantion [sic] agencies and the subsequent boom in immigration detention. Immigration prisons have expanded from 7,500 beds in 1995 to more than 30,000 in 2010. About one-third of the nation’s immigrant detainees are held in Texas…

Until this census, the count had never identified exactly where “group quarters” like prisons are and how many people occupy them. For the first time, this census will let states decide whether to count detainees in local populations. By excluding prisoners, states would get a more accurate population count and would ensure that funds are not distributed according to locations of large detention centers. The amount of federal funding directed to the state would not change.

There’s been debate about where to count prisoners for the census — should they be counted in their home state or as residents of their prisons? Most states don’t allow prisoners to claim residency in the state where they are held. But since 1790, the Census Bureau has counted people using the “usual residency” rule, meaning their residency is where they spend most of their time.

The Prison Policy Initiative, a non-profit, non-partisan organization that documents the impact of prisoners on communities, recently released a report detailing why counting prisoners where they’re held can be damaging to the community as well as unconstitutional.

Unlike U.S. citizens in prisons (who will most likely still reside in the country when they’re released) these immigrant detainees don’t have that option.

As the Texas Observer noted, Texas is home to the largest number of immigrant detainees of any state. There are more than 200  detention facilities in the country, most of which are privately operated. Texas has six ICE-operated detention centers — more than any other state. Arizona and California come in second with three each.

Counting immigrant detainees — and illegal immigrants altogether, for that matter — in these states may strongly impact redistricting and the allotment of congressional seats. While many agree there are flaws in the way the census counts people — especially prisoners and illegal immigrants — some politicians who stand to benefit from these counts are defending the current policy. The Observer writes:

In Washington, there appears to be confusion about the inclusion of immigrant detainees in the census. Congressman Henry Cuellar, a Laredo Democrat, represents a district that includes the 1,900-bed South Texas Detention Center and the 450-bed Laredo Contract Detention Facility. He defended the inclusion of immigrant detainees: “Vitally important funding that supports these facilities relies, in part, on census data.”

As I wrote when the administration first announced it would stop using the term “enemy combatant” in a late Friday afternoon filing in federal court, the Obama Justice Department, while discarding the old terminology and giving a nod to the legitimacy of international law and the role of Congress, basically held on to much the same right of indefinite detention that the Bush administration had pronounced.  Sure, now the president would have to believe that the detainees had a “substantial” connection to al-Qaeda or the Taliban, but the government’s brief provided no definition of “substantial,” and surely Bush officials would have claimed that all those prisoners — “the worst of the worst” as they were fond of calling them (and former Vice President Dick Cheney still does) — were “substantially” assisting al-Qaeda or the Taliban in one way or another.

As Feldman points out, the key will be how the Obama Justice Department starts applying this “new” non-enemy combatant category of detainee when it comes to deciding what to do with these prisoners.

If the new legal arguments actually affect who goes free and who stays in custody, then they will amount to meaningful change. Without real-world effects, though, even the most elegant new legal arguments are nothing but words.

Absolutely.  But Feldman refers only to the 241 prisoners still held at Guantanamo Bay.  There’s also another 600 prisoners who were deemed “enemy combatants” by the Bush administration that are being held at the American detention facility at Bagram air base in Afghanistan. Recall that the Obama administration recently insisted, like the Bush administration, that those detainees do not even have the right to habeas corpus — that is, to challenge their detention in a U.S. court. And the new administration is still hiding critical information about who is being held at the base — which is directly relevant to determining their legal rights.

The Obama administration has surely already proved itself more adept at using legal language to justify its detention policies. As Feldman points out, these were policies created by the last administration and the Obama team is now stuck trying  to deal with the mess they were bequeathed, without letting dangerous people go free. The new administration is also under serious pressure from a host of Republicans who, apparently eager to undermine Obama’s efforts, are loudly proclaiming that closing the Guantanamo prison is a “dangerous” idea.

Still, Obama promised a return to respect for the rule of law, not just in word but in deed. As long as potentially innocent men remain imprisoned without charge or trial — and in the case of Bagram, without the right to challenge their detention or even speak to a lawyer — then the new administration will not have followed through on its promises.

Although the Fourth Amendment of the U.S. Constitution prohibits unreasonable searches and seizures on U.S. soil, Yoo concluded that “[a]lthough the situation is novel … we think that the better view is that the Fourth Amendment would not apply in these circumstances. Thus, for example, we do not think that a military commander carrying out a raid on a terrorist cell would be required to demonstrate probably cause or to obtain a warrant.”

This memo appears to have formed the legal basis for the Bush administration’s domestic warrantless wiretapping program, which at least one federal judge has since concluded was unconstitutional.

Jameel Jaffer, Director of the ACLU National Security Project, reads it as extending beyond the Fourth Amendment, however.

“This takes the position that the Bill of Rights does not constrain the military in its operations inside the United States,” Jaffer told me this afternoon. “The president can disregard the constitution during wartime, not just on foreign battlefields, but inside the United States.  We had not seen a memo saying that before.”

Of the nine memos released today, at least two — this October one written by Yoo, and another written by Bybee regarding extraordinary rendition — were responsive to earlier ACLU requests for OLC memos in the context of ongoing FOIA cases.

But many more memos the ACLU has requested still have not been released.

“There are still dozens of memos being withheld,” said Jaffer. “We’re hoping that this is a first installment.”

While the memos reveal the legal groundwork that was laid for the Bush administration’s conduct in its “war on terror”, much of which appears to have been illegal, they still don’t answer the critical question that many Bush critics want to know.

“The obvious question that’s raised by these memos is, what conduct did the administration authorize on the basis of the legal reasoning in these memos?” Jaffer said.  “That’s a question that has not been adequately answered.”

Update: After further reading of this memo, I have to update it with some more astounding quotes from John Yoo, who insists that not only the Fourth Amendment, but the First Amendment right to free speech may be overridden by the President in wartime:

“First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully,” writes Yoo.  Yoo then reaches back to a 1931 Supreme Court case to support this idea, which said that “’When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.’ . . . No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.”

Now, no one today would argue that an American has a right to publish secret details about U.S. troop movements in Iraq, either; but the First Amendment already accounts for those sorts of exigencies.  For John Yoo to take from that that the President may actually override free speech and press rights that are guaranteed by the First Amendment goes beyond stretching it — it’s just a blatant, and deliberate, misreading of the law.  After all, John Yoo — Harvard and Yale grad, Berkeley Law prof — is no dummy.

In their piece, reporters Karen DeYoung and Peter Finn report that the Bush administration’s files on these prisoners, some picked up six or seven years ago, are a complete mess.

A senior Obama administration official said that information on individual prisoners is “scattered throughout the executive branch” — presumably sitting in file cabinets somewhere among the records of the Defense Department, Department of Homeland Security, CIA and maybe even the FBI.

Although President Obama signed an executive order Thursday to close the Guantanamo Bay prison within one year, the difficulty of tracking down information about the 245 detainees still imprisoned there is sure to pose a major obstacle.

According to The Post, “several former Bush administration officials agreed that the files are incomplete and that no single government entity was charged with pulling together all the facts and the range of options for each prisoner.”

None of this will come as a surprise to lawyers defending prisoners at Guantanamo Bay, who’ve been seeking access to these files for years, with little or no success. In fact, as The Post points out, even the Justice Department lawyers fighting the detainees’ habeas corpus petitions in federal court have begged the judges for more time to respond to the petitions because, as the lawyers said in one recent filing, “the record . . . is not simply a collection of papers sitting in a box at the Defense Department. It is a massive undertaking just to produce the record in this one case.”

As I’ve written before, the Bush administration strongly opposed several court orders to turn over information expeditiously in the habeas cases. Now, it seems, we know why.

In one brief opposing a judge’s order, the Justice Department wrote that “defending these cases requires an intense, inter-agency coordination of efforts. None of the relevant agencies, however, was prepared to handle this volume of habeas cases on an expedited basis.”

I guess that because the Bush administration had insisted for years that it wouldn’t have to — President Bush claimed he could hold all those “enemy combatants” in prison indefinitely — providing some order to their case files wasn’t exactly a priority.

As I explained in my story yesterday, key to the government’s case that it’s entitled to keep holding the men indefinitely is that they were “captured on the battlefield” and are therefore “enemy combatants” whom the U.S. government may hold until it has declared hostilities are over.  The petitioners in the habeas corpus cases heard yesterday, however, were all captured in different countries and sent to the Bagram prison in Afghanistan, where they have remained without charge or access to lawyers for years.  Many prisoners at Bagram claim they’ve been beaten, tortured and humiliated by U.S. authorities. At least two prisoners at Bagram were beaten to death during interrogations.

Bates yesterday ordered the government to provide the following information:

• The number of detainees currently being held in Bagram Prison;
• The number of Bagram detainees who are Afghan citizens; and
• The number of Bagram detainees who were not captured in Afghanistan.

This suggests he’s at least taking a hard look at the government’s claim that the suspected terrorists or terrorist sympathizers imprisoned at Bagram are all battlefield captures. If they’re not, that supports the prisoners’ claims that they’re entitled to the same habeas corpus rights as prisoners at Guantanamo Bay.

Last June, the Supreme Court affirmed that, contrary to the government’s arguments, prisoners at Gitmo are entitled to challenge the legitimacy of their detention in U.S. courts.

Eager to help president Obama close down the prison when he takes over in January — and no doubt hoping to win brownie points with the new American president — British officials are reportedly creating a process for dealing with certain prisoners who could be sent to the U.K., though exactly who would be invited “would be for the home secretary to decide on a case-by-case basis,” according to a Downing Street official quoted by the Times.

Portugal has called on EU member nations to accept some detainees in their countries, and Germany has said it is considering doing so.

As we’ve reported before, some Gitmo detainees, such as the 17 Uighurs and some Yemeni prisoners, have been cleared by the US for release but can’t return to their home countries, where they’d likely face persecution. Although the Bush administration has adamantly refused to allow any of the men to settle in the United States, it has reportedly asked about 100 other countries to take them. Until now, most have refused.