[Eugene Volokh, 11:14 PM]
COULD HAVE BEEN AN EXPENSIVE NAMING DECISION: Matt Bower writes:

Today I saw a photo on the front page of a newspaper. It was of an American soldier in Kuwait, standing guard near an M109A6 155mm self-propelled howitzer. The M109A6 is better known as "Paladin." That got me thinking. Until very recently the Army planned to field a replacement for Paladin, named "Crusader." Yikes!

Imagine the mileage radical Islamist rabble-rousers could've gotten out of that! Or maybe not. But, still . . . yikes.

 
[Eugene Volokh, 7:25 PM]
EQUAL OPPORTUNITY CYNICISM: Reader Dan Carter suggests an important point -- if one is looking for ulterior motives for Bush's stand on the war, why not look as assiduously for the anti-war Democrats' ulterior motives? If they persuade Bush to back down, he looks weak and indecisive, and they have a better chance of winning in 2004. Who knows what other theories we can come up with, if we just assume the worst of our enemies?

     On the other hand -- and I realize that this is a shocking suggestion -- maybe the anti-war Democrats sincerely think that the war would be a bad idea. Maybe Bush likewise honestly believes that the war is a good idea. Maybe to the extent they're thinking of their political futures, they think that if their proposals prove to be good for the country (at least as on a matter of such importance), the voters will suitably reward them.

     Oh, I know, I know, I'm so foolishly naive. Would it help if I called this a conspiracy theory? That there's a conspiracy (known as, but keep this quiet, the Republican Party) that's conspiring to get elected by promoting policies that they think are good, and there's an equally shadowy counterconspiracy that's adopting a similar strategy but with a different set of policies?

     Or maybe, since we actually don't really know what goes on in people's heads, we might save accusations of ulterior motives for those times that we actually have substantial evidence, rather than just generic speculation of the they're-the-other-side-so-they're-evil variety?

 
[Eugene Volokh, 7:09 PM]
VIDEOTAPE: So why not take a friend with a videocamera along when one is going to counterprotest at an anti-war rally? That way if people do try to abuse you, you'll have the evidence, which you can bring, if you'd like, to the police, the university administration, the general media, the student newspaper (the main one or an alternative one), or at least the blogs. Not an original idea, I'm sure, but I think more people ought to do it. (Yes, I know that some goons could try to take or break the videocamera itself; that's always a risk.)

     Of course, anti-war people who fear this sort of abuse in other contexts should do the same -- anyone who attacks peaceful protesters should be punished.

 
[Eugene Volokh, 7:05 PM]
PHOTO OF "PEACE" PROTESTER TRYING TO TAKE PRO-WAR SIGN FROM MY UCLA CORRESPONDENT: Apparently it made the AP wire -- always good to have supporting evidence. Here's the original account of the incident.

UPDATE: My correspondent writes "Nifty . . . . AP is even bigger than Instapundit!" Yes, that's right, there are still a few outlets bigger than InstaPundit -- for now . . . .

 
[Eugene Volokh, 6:55 PM]
A REAL WARBLOG: OK, I know that it might be a complete hoax -- on the Internet, no-one knows you're a dogface -- but it seems to really be written by a reservist who's now Over There. I know there are plenty of such sites, but this is the one I stumbled across, and it seems much worth a look, though at this point more for its perspective on military life than on the war.

 
[Eugene Volokh, 5:54 PM]
WORDS OF WISDOM FROM MY MOTHER: "Other people's children always grow up more quickly."

 
[Eugene Volokh, 5:04 PM]
"ETHICAL CULTURE" AND TAX EXEMPTION FOR RELIGIOUS GROUPS: Many states exempt religious groups from various taxes, though generally alongside other organizations, such as educational and public service groups. The Texas Comptroller's office has interpreted this exemption as applying only to groups that believe in a "God, Gods, or higher power," and thus denied the exemption to the Ethical Society, which tries to spread the Ethical Culture belief system.

     The Texas Court of Appeals just held (yesterday) that this limitation to God/Gods/higher-power-based groups violates the Establishment Clause, and that Ethical Culture does qualify as a religion. For the pretty vague (but perhaps inevitably so) test that the court used, see the opinion, Strayhorn v. Ethical Society of Austin.

 
[Eugene Volokh, 3:04 PM]
WHEN CONSPIRACY THEORIES TAKE YOU TOO FAR: In response to my post yesterday criticizing Kinsley's "Bush's ulterior motive is to enrich his oil company buddies" claim, I got the following e-mail:

However . . . more money for his cronies translates into more campaign contributions, which translates into more advertising time, which translates into more votes. Ergo, this is a very good way for Bush to help his reelection prospects. Or didn't you notice that the Republicans massively outspent the Democrats last time out (like always, due to their greater corporate backing)? Please.

So let me see if I understand the reasoning here:

1. Oil prices increase, the economy is hurt, Bush alienates millions of voters.



2. Bush also presumably alienates those businesses who are hurt by higher oil prices and the economic slowdown that it causes. (I don't have the numbers handy, but my sense is that the oil business provides a small fraction of the total money the Republicans spend on Presidential races.)



3. Bush also gets some extra campaign contributions indirectly flowing from oil businessmen, though given that Republicans have "greater corporate backing" and the oil businessmen are supposedly Bush's "cronies," they'd presumably have backed him quite substantially anyway.

The theory, then, is that whatever mild increase Bush gets in contributions from oil people outweighs the decrease in contributions from other businessmen who are hurt by the high oil prices and -- more importantly -- outweighs the lost millions of actual votes caused by the high gas prices and the bad economy. Pardon me if I don't quite buy that.

     It's great to be a realist, which sometimes means being a cynic, but it's a mistake when one's cynicism leads one into unreality. Elections are about votes. Campaign contributions help buy advertising which can help bring in votes -- but that's a highly unreliable process, which is why many candidates lose even though they outspend their rivals. A bad economy means huge vote losses for the incumbent; no marginal increase (if there would be one) in oil business campaign contributions would be enough to counteract that.

UPDATE: My friend Gary Leff found some helpful figures. Bush raised $125M in private money in 2000, of which a titch under $2M came from oil & gas sources. Doubtless this is a highly rough count -- for instance, perhaps some of it came from related businesses, or who knows what. Still, say this undercounts things by a factor of 3; we'd still find that less than 5% of Bush's campaign contributions came from oil & gas sources. So to increase campaign contributions from these sources by some unknown amount (remember, presumably most of them would keep backing him in 2004 in any event), he'd be willing to alienate the businesses that dislike expensive oil, and millions of voters as well? As my correspondent wrote, "Please."

 
[Eugene Volokh, 2:19 PM]
COLLEGE REPUDIATES COERCION OF STUDENT ANTI-WAR LETTERS: The Foundation for Individual Rights in Education has a press release on this; naturally, one ought to be skeptical of press releases, but I've found FIRE to be quite reliable in the past -- and the college's own account agrees with FIRE's summary:

A Citrus College professor had compelled undergraduate students to write anti-war letters to President George W. Bush [if they wanted to get extra credit] -- penalizing the grades of students who dissented or refused to send the letters. The Citrus College administration, working closely with FIRE, resolved the situation. . . .

FIRE wrote to Citrus College President Louis Zellers on March 4 to alert him that FIRE had been contacted by students in Professor Rosalyn Kahn’s Speech 106 class, a required course at the public college. FIRE received compelling documentation that Kahn had required students, to achieve full credit, to write letters to President George W. Bush “demanding” that he not go to war with Iraq. Several students requested that they be allowed to complete the assignment by expressing their own opinions, which would mean, in some cases, writing letters in support of President Bush’s foreign policy. Kahn told the students that letters supporting the president would not be acceptable and would not receive credit. Several students refused to turn in the assignment and were penalized.

One week later, Kahn again required students to write letters with a specific political viewpoint, this time to California State Senator Jack Scott. Professor Kahn collected the letters from the class and personally delivered them to Scott. The Senator’s office told FIRE that the letters were not solicited. . . .

 
[Eugene Volokh, 12:01 PM]
THE PLEDGE AND JURISDICTION-STRIPPING: As Jacob pointed out yesterday, Tom DeLay threatened that:

Congress could remove federal courts' jurisdiction to rule on the Pledge of Allegiance if the Supreme Court doesn't overturn an appeals court decision that bars children from reciting the Pledge in school.

Congress probably does have the power to strip the Supreme Court of jurisdiction over Pledge cases, under art. III, sec. 2, cl. 2; and, I take it, it may strip lower federal courts of jurisdiction because their jurisdiction (even their existence) are defined by Congress. (There's some controversy about this, but my sense is that Congress may indeed act this way.)

     But just how useful would that be? If the Supreme Court affirms the Ninth Circuit decision (highly unlikely), that decision will be the law of the land. Even if federal courts lose jurisdiction over objections to the Pledge, state courts would still be able to entertain them -- state courts must enforce the U.S. Constitution just as much as federal courts do (that's in art. VI, sec. 2). Most state courts, I think, would feel obligated to follow the Supreme Court's caselaw even if they think it's wrong and if there's no possibility of appeal to the Supreme Court. Perhaps a few courts will buck this traditional understanding -- but that just means that teachers could read the "under God" version in some states but not in others. How good would that be?

     If the Court holds that "under God" is impermissible, and the Congressmen are really upset by that, then they have a simple, traditional solution: Propose an amendment to the states. There's a decent chance that this would happen, and that that the amendment would be ratified. But procedural shenanigans aren't the right way to do this, and they aren't the effective way, either.

 
[Eugene Volokh, 11:06 AM]
THE WAY YOU HAUNT MY DREAMS: Dreamt last night that I was still in law school, and had just gotten a couple of bad grades. Oh no, I thought -- what will this do to my clerkship prospects? To my teaching ambitions? Then I woke up.

     It's been nearly 11 years since I graduated, and I still get a dream like that. Current (or prospective) law students, beware.

 
[Eugene Volokh, 8:14 AM]
CONGRESSMAN CALLS BLOGGER: Howard Coble called Eric Muller about the Japanese internment -- Muller has a brief account of the conversation. No, really.

 
[Eugene Volokh, 7:52 AM]
MEGAN'S LAW: Here's my L.A. Times op-ed from this morning:

Forgive and Forget Sex Offenders? Not a Chance
By Eugene Volokh; Eugene Volokh is a professor at the UCLA School of Law.

Megan's laws, the Supreme Court held Wednesday, are constitutional: The government may require sex offenders to register with the police and may publicize their names and addresses on the Internet. The justices got this right.

The best predictor of someone's future behavior is past behavior. It isn't a perfect predictor; sometimes people do change their ways. But we often have to make decisions based on imperfect information. A state is entitled to conclude that we are better off knowing which of our neighbors are sex offenders, so we can decide for ourselves how cautious to be around them.

Some disagree, saying that the criminals have "paid their debts to society." I've never quite understood this metaphor. Raping someone isn't the same as borrowing money; a debt can be paid, but a sex crime can't be undone.

However, say we accept the metaphor. Someone takes your money; after many years of litigation, he finally pays his debt. Do you just forget about this? Do you treat him as if he'd never injured you? Probably not. Instead, you'll remember what he did and be careful around him in the future.

That's the premise behind Megan's laws. If someone commits a crime, we don't forget what he did even once he's released. In most states, convicted felons may not own guns. They may not vote. They may be barred from certain jobs. And now some convicts must also register and have their crimes (matters of public record) publicized. That's perfectly constitutional.

The same goes for the argument that people deserve "a second chance." A second chance means a second chance to live right, but it necessarily also involves a second chance to rape more people.

Sometimes we might feel that a person really should be released, despite the risk to others. But there's no requirement that the law pull the wool over the public's eyes and hide the person's potential dangerousness.

One lower court decision, which the U.S. Supreme Court reversed, said it's wrong to apply Megan's laws to people who supposedly have been rehabilitated and don't pose a threat for the future. But psychiatrists can't tell for sure who's dangerous and who's not. The question is: May the state Legislature leave it to each of us to decide whether to risk dealing with a convicted sex offender, or must it let psychiatrists decide whether this information should remain hidden? The Supreme Court correctly held that states may leave the choice to us.

The toughest question that the court faced was whether Megan's laws could be applied retroactively to people who committed their crimes before the notification and registration laws were passed.

The Constitution doesn't have a "you may not publicize people's past crimes" clause, but it does have an ex post facto clause, which bars the government from retroactively imposing new criminal punishments. Historically, courts have found that lengthened prison or probation terms couldn't be applied retroactively, but other constraints -- such as employment restrictions, gun possession restrictions and so on -- could be.

The theory is that these constraints are meant to protect society from future misconduct and not to punish past misconduct. This is an imperfect distinction, since many punishments (including imprisonment) are aimed both at punishing past behavior and protecting society in the future. Still, some such distinction is probably necessary, and the precedents certainly support it. The court was probably right to say that registration and notification rules fall on the side of civil restraints, which can be imposed retroactively, rather than criminal punishment, which can't be.

There are plausible policy arguments against Megan's laws. For instance, if community notification makes some released felons unemployable, it might increase the risk that they'll return to a life of crime and maybe even commit more sex crimes because they'll feel that they have little to lose. Or it might make criminals move to more anonymous surroundings, such as bigger cities or other states, thus simply shuffling sex criminals from one place to another. Also, since many sex criminals haven't yet been caught, people might be better off being cautious everywhere, rather than focusing too much on those neighbors who have specific sex offense convictions. And some Megan's laws might just cover too many crimes or might otherwise be more onerous than necessary.

But these are judgment calls that each state is entitled to make on its own. The Constitution does not mandate lenience, forgiveness or forgetfulness.

 
[Eugene Volokh, 5:45 PM]
BUSH AND OIL: Michael Kinsley also reasons that the runup to war increases oil prices, and thus helps Bush's friends in the domestic oil extraction business -- an "ulterior motive" behind Bush's actions:

This oil costs something to extract, but that something is less than $25 [per barrel], or no one would have been extracting it before the war buildup started. So, the extra $15 is a gift from Saddam Hussein and George W. Bush.

I don't believe that President Bush is prosecuting a war against Iraq in order to enrich, or more accurately further enrich, his oil-patch cronies. But we all are happier when we can make our friends happy. All this happiness among his buddies must at least make a man like Bush, who is not plagued by self-doubt or second thoughts in any event, even more confident as he marches forward.

Interesting theory! But here's what's completely omitted from this analysis: Whether or not high oil prices are good for some of Bush's buddies, they're bad for Bush. Voters don't like high oil prices. High oil prices aren't good for the economy, and voters don't like economic trouble. The uncertainty caused by the runup to war seems to be bad for the economy, and voters don't like economic trouble. Bush knows very well what happens to Presidents who in their first term preside over bad economic times, and whose policies can be blamed for fostering these bad economic times.

     So let's see if I understand this correctly: Bush is more concerned about his "cronies" in the oil business making some extra money than about his own re-election. Uh-huh.

 
[Eugene Volokh, 5:38 PM]
NORTH KOREA AND IRAQ: Michael Kinsley in Slate asks a question that I've often heard asked

Why are nuclear weapons in Iraq worth a war but not nuclear weapons in North Korea?

The Administration's "failure to answer [this] question," he says, is one of the things that "is central to [most skeptics'] doubts."

     OK, is this a trick question? Seems to me this chart might help:

Iraq	North Korea
Might have nuclear weapons one day	Probably now has nuclear weapons, which it might use if we attack
If attacked, might shoot some Scuds at Israel, which is quite a distance away	If attacked, might heavily bombard and otherwise attack Seoul, which is a city of over 10 million people, 30 miles from the North Korean border

Why on earth would one think that Iraq and North Korea should somehow be treated the same way?

     Yes, I can understand the risks of attacking Iraq -- maybe Iraq will, for instance, attack either our troops or the U.S. itself with biological and chemical weapon. These are real risks. But the risks of attacking North Korea are much greater. Who knows; maybe we should be attacking North Korea, too, or maybe we should be doing something else. There might well be lots of sound criticisms of the Bush Administration's policies with regard to North Korea.

     But the fact that the Administration is more willing to attack a less dangerous foe than a more dangerous foe is not a sound criticism.

 
[Eugene Volokh, 4:53 PM]
ANOTHER STORY FROM THE ANTI-WAR WALKOUT AT UCLA: This is from David Hackett, a former student of mine:

I was also at the Pro-War counter-protest at UCLA yesterday. I thought our efforts to counter the anti-war rationale went well, although I was surprised by the behavior of some of the anti-war students. After a march around campus which followed the anti-war rally, our large sign with the message "Saddam Loves Walk-Outs" was ripped to shreds by these supposedly peaceful students. I was threatened with physical violence at different points by certain protesters, and other pro-war students were, as well.

The UC police were a virtually non-existent entity, leaving security for the event up to the anti-war organizers themselves. Their force was made up of anti-war students who had little interest in protecting those with opposing viewpoints, and there were a few times where fights could have broken out. The UCPD's response to the rally seemed to be one of acquiescence about First Amendment protections.

Protestors' slogans included tired old Vietnam-era retreads, including "Hey, hey, ho, ho, Bush's War has got to go". Perhaps most perplexing was the chant of "Education not devastation!" How does walking out of class further education, and how does implicit support for Saddam further the end of devastation.

"Well, at least it rhymes," said Larry Elder, when I called in to his show last night. . . .

 
[Eugene Volokh, 4:52 PM]
MEGAN'S LAW: I should have an op-ed on the Court's Megan's Law decisions in tomorrow morning's L.A. Times.

 
[Eugene Volokh, 4:49 PM]
CHILD ONLINE PROTECTION ACT: The U.S. Court of Appeals for the Third Circuit just struck down the Child Online Protection Act (the heir of the Communications Decency Act) yet again. As you may recall, the court struck COPA down on the grounds that "contemporary community standards" isn't a proper test in cyberspace; the Supreme Court reversed and sent the case back down for further consideration; now the Third Circuit has held that the law violates the First Amendment for other reasons.

     I've read the decision, and think that it makes some good points and some not so good ones; unfortunately, I probably won't be able to blog about it for a while. But I can confidently make a prediction: The Supreme Court will agree to hear the case again. No prediction as to how the Court will come out.

 
[Eugene Volokh, 12:59 PM]
BREAKDOWN OF CIVIL ORDER: Just to show that it's not just people named Eugene who entertain these unpleasant thoughts, reader John Carney e-mails the following:

Part of the problem with critics of your proposition regarding the possibility of a break-down of civil order is that they seem to be fixed on "the end of civilization as we know it" scenarios -- large-scale, complete and perhaps permanent dissolutions of the civil order. But nothing like this is required by your argument.

Localized, partial and temporary disorder can create very dangerous situations for the people involved, situations in which the danger posed might plausibly be decreased by having a functioning fire-arm.

Take the 1977 New York blackout, for example. The now infamous power failure led to rioting and widespread looting. More than 1,000 fires were reportedly set. A contemporary New York Post account describes New York as "transformed into a series of seething battlefields." It began with failure of one service (the police, firefighters, hospitals, continued to function even if hampered by the lack of power), was confined to one area, and lasted only a brief time. But if you were where the trouble was, it was potentially very dangerous.

In a blackout caused by an e-bomb, its not hard to imagine that not having one's handgun rendered inoperative might be desirable.

Of course, all your other caveats still apply. But I can't see how your concerns about e-bombs and smart-guns can be completely discounted.

 
[Eugene Volokh, 12:54 PM]
A REPORT FROM ANOTHER DEMONSTRATION: Reader Joe Heigel writes:

Here at Wisconsin-Madison, we actually had a fair-sized group for our anti-anti-war protest yesterday (which I say because I believe it's distinct, and qualitatively different from, a pro-war rally), with our signs saying, "11 September: Never Forget, Never Again; Support the War", "Support our Troops, Support the President, Support the War", and "Support our President...Not Theirs".

The anti-anti-war protest wasn't necessary, though, as the anti-war organizers whom we had here yesterday alienated a good portion of their listenership straightaway. Instead of focusing on what I believe are legitimate arguments against the war (I recognize that the proper arguments against the war can't be made into good soundbites, but longer speeches, as we had here, can focus on legitimate foreign policy and morality concerns), speakers yesterday intimated firstly that the war against Iraq was a ploy by our president to rid the world of Arabs, as he cares only for Caucasians, and, further, that the war was an additional ploy by which to rid the nation of African-Americans, who presumably would be more likely per capita to die in a war (which the statistics no longer bare out), or at the very least to keep them out of higher education, inasmuch as, being statistically poorer than Caucasians, they must enlist in the army after high school.

The predominant chant was, "Hey! Hey! Ho! Ho! This racist war has got to go!", after which probably one-third to one-half of the crowd was lost. Groups such as "Veterans against the War", whom I'm sure proffer up legitimate arguments, were ostensibly turned off as well and left forthwith.

Let this be a lesson, incidentally, for both sides.

 
[Eugene Volokh, 12:16 PM]
RISK OF CIVIL DISORDER: Reader Gene Hoffman, of The Eugene Conspiracy, writes:

Having lived through hurricane Hugo when it hit Charlotte, NC, [I think] people who don't expect civil breakdown are fooling themselves.

Myself and some of my friends do a bit of disaster planning as we live downwind of San Francisco, and about 2 miles from the San Andreas fault. For any Californian to think that civil functions will always be there is to completely ignore geological science. It is not hard at all to imagine a scenario where the Bay Area is without power, telephone, water, and gas for weeks. I've prepared somewhat for that, and I don't care to "share" that with folks unless I choose to. After a major quake I will be wearing my pistol at all times and my wife will have access to our shotgun. I've been there before and it is important. Its awfully hard to call the police when there is no power in the phone network...

Also, as an avid power boater, I want to make a comment on "Smart Gun" technology. Boaters would benefit significantly from electronically controlled ignitions in gas and diesel engines, but they risk lives. When you are 50 miles offshore and the electronics fail you can be killed. Using the dumb engine technology means that you can fix it right there at sea without special tools. I think the life and limb risks make this analogy rather apropos.

I don't necessarily fully endorse all these suggestions -- for instance, whether one wears a pistol outside would turn on how one balances the risk of attack and of arrest, and this may vary from situation to situation -- but the point seems quite sensible.

 
[Eugene Volokh, 12:13 PM]
MALL DROPPING TRESPASSING CHARGES: So ABC News reports; thanks to InstaPundit for the pointer. Makes sense to me -- few businesses want publicity like that.

 
[Eugene Volokh, 11:48 AM]
THINKING ABOUT CIVIL DISORDER: Matthew Yglesias also disagrees with my concerns about the possibility that some time in our life we might live through serious civil disorder, and that we might want to plan ahead for that:

Come on...a civil war [referring to my statement that "Is it really so unthinkable that there might be a civil war -- full-scale, or local -- in the next 50 years in the U.S., as there has been in other democracies, including our own?"]? And having a personal sidearm wouldn't help you under many civil war scenarios. In our historical civil war, for example, the country split into two fairly well-defined subunits which then fought each other in a more-or-less conventional manner. And the sort of gun you'd keep in your house is hardly going to help you if someone starts rolling tanks down the street or dropping bombs on your city. Also note that for Eugene's case to make sense here we would have to be in a scenario where civil war breaks out, fighting is taking place near your house, and an electromagnetic pulse has recently occurred in your neighborhood. The odds of any of these things happening is extremely small and the odds of them all happening are downright miniscule. I would also make the classic gun control point that in case law and order really did suffer a temporary breakdown, having a well-armed populace would make that scenario more rather than less dangerous even if you personally would be better off with a weapon.

     1. It's easy to think of civil war as being limited to battles, when a sidearm won't be that helpful. But of course that's not the whole picture, is it? Civil war is one of the many scenarios I gave for when civil order will break down. Civil war, terrorist attacks, riots, and a variety of other conditions (even natural disasters) leave a trail of devastation, including devastation of the c vil order infrastructure (police response and the like). Outside the battlefield there may be looting, pillage, rape, and butchery, not just by organized units but also by lone fleeing soldiers, and by civilians who see an opportunity while the civil authorities are attending to more pressing business. Look, this stuff happens to a small extent when there are hurricanes and riots -- why wouldn't it happen to a much larger extent when the area is convulsed by more organized rebellion or warfare?

     2. Nor does it make much sense just to multiply the probabilities of civil war / rebellion / terrorism and electromagnetic pulse, as if they were independent. My original post pointed out that electromagnetic pulse bombs seem likely to become a tool of warfare. Over the decades, they, like other weapons, are likely to become cheaper and more widely available; they'll become part of the customary arsenals of rebels and terrorists, precisely because they can disrupt the existing infrastructure. One of the nasty things about organized violence is that it involves a bunch of nastiness happing at once, with different things feeding off each other. A rebellion which uses electromagnetic pulse bombs and thereby causes damage to infrastructure, which causes still more collateral damage (such as civilian plunder) -- quite possibly part of the rebels agenda -- which causes further strain on infrastructure which causes still more risk to unarmed civilians.

     3. The classic response to the classic gun control point about how we'd all be better off if everyone was unarmed also applies here. First, a woman armed with a gun may well be safer against a rapist armed with a gun -- especially if the police aren't going to come help -- than an unarmed woman against an unarmed rapist (though it obviously depends on the people involved). Second, there are 200 million dumb guns in the country. They're not going away. If an electromagnetic pulse destroys my smart gun (because I was so smart and cautious that I traded in my dumb gun for the smart gun), the result won't be unarmed me vs. unarmed attackers. It'll be unarmed me vs. armed attackers.

     Now all this having been said, let me repeat what I said in my original post: "Naturally, this is just one cost that one has to consider, and[,] as I mentioned[,] the benefits of smart guns, if they become highly reliable, are nontrivial." But as I also said in the original post, "I don't think that we can just ignore this cost. We've generally lived our lives in environments of peace and civil order, but there's no guarantee that this will continue." I hope we'll live our lives in peaceful times; I just wouldn't bet that much on it.

 
[Eugene Volokh, 11:31 AM]
A READER'S FIRST PRO-WAR DEMONSTRATION: Reader (and fellow Bruin) Michael Williams reports his experiences -- I pass them along for your information:

So I went to the anti-war protest at UCLA today; this was my first demonstration and I didn't know quite what to expect. I made up a few pro-war signs and handed them out to some like-minded students to hold up with me. I was surprised somewhat, because it wasn't at all hard to find people willing to hold up the pro-war signs (as I thought it might be). I had:

1. "Saddam is Mean" [Volokh says: I hope this was intended to be facetious]
2. "Give War A Chance!"
3. "Peace Through Victory!"
4. "Anti-War = Pro-Murder, Pro-Torture, Pro-Rape"

We also made "Beat it Hippies", which got a pretty good reaction.

I had the opportunity to run up on the stage and hold sign #4 up behind the speaker for about a minute before people started boo-ing and security pulled me off stage. They tried to take my sign too, but I wouldn't let them. Then about half an hour later three other guys and I got back up on the stage (near the back) and wouldn't let their security take us down. They called the police over but I guess the cops decided we weren't doing anything illegal and so they didn't do anything. It was pretty amusing. At that point I got bored and left.

I think sign #4 got the strongest reaction from people, as you can imagine. Several anti-war people got angry, but when I explained to them how the sign was accurate they shut up and walked off. Around a dozen groups and individuals thanked me for being out there, including a lady in a wheelchair who really liked the sign and some construction workers who seemed to hold most of the students in general contempt.

Most of the people there seemed to really dislike Bush for some reason. Some girl tried to convince me that, although Saddam does murder, torture, and rape people, Bush does too. I couldn't quite pin her down on her sources, but she seemed very convinced. I can't substantiate these claims, but if they're true I think that the media should stop covering for Bush.

Overall it was an interesting experience. In practical terms it was a waste of time, but entertaining nevertheless. I was interviewed by
reporters from a few newspapers after I was dragged off the stage the first time, and several photographers took my picture, so if anyone sees me let me know. There were some TV and radio journalists there as well, but I didn't have a chance to talk to any of them. Good stuff.

 
[Eugene Volokh, 11:18 AM]
GETTING LINKS TO INDIVIDUAL POSTS: A reader asked how one can get links to each individual post -- many people know this, but some don't, so I thought I'd mention it:

1. In Explorer, right-click on the red time-stamp at the top of the post, and click on "Copy Shortcut." Then go wherever you want to save the link, and type control-V in order to insert the link.



2. In Netscape, do the same, but the item to click on is labeled "Copy Link Location" rather than "Copy Shortcut."

 
[Eugene Volokh, 9:25 AM]
PLANNING FOR THE FUTURE: CalPundit is highly skeptical about my concerns that we might live through a time (1) of civil disorder (2) during which we'd like to have guns that aren't subject to electronic attack. I wrote:

[J]udging by recent human history, there's reason to think that there's a significant (10%? 20%? who knows?) probability that at least some time in our lives, our homeland will be attacked, possibly with sophisticated anti-electronic weapons, and civil order will break down.

CalPundit responds:

Huh? In the last century our homeland has been attacked only twice, both of them isolated incidents, and while I agree that future terrorist attacks are fairly likely, it seems extremely unlikely that "civil order will break down."

Well, this highlights the basic question -- how do you plan for decades into the future? In 1900, after nearly a century of relative continental peace (since 1815), I don't think many Europeans would have expected the European continent to be devastated in the next 50 years by two world wars costing tens of millions of lives. I don't think many Germans would have expected Nazism, or the slaughter of six million Jews. I don't think many people would have expected that 50 years from then, Russia would be one of the two superpowers.

     I don't think that it's likely that within our lifespans, civil order will break down even temporarily (and I was speaking of temporary breakdowns, since we and our families can be killed in temporary breakdowns as much as in long-term ones). But I don't see how one can confidently assert that this is virtually impossible. Is it really so unthinkable that as technology gets cheaper and more powerful, some terrorist groups will massively bomb the city I live in? Is it really so unthinkable that there might be a civil war -- full-scale, or local -- in the next 50 years in the U.S., as there has been in other democracies, including our own?

     Now one possible answer is that the age of chaos is over, because our democratic institutions are stronger than they were ever before. I hope that's right. But I wouldn't bet my life, or my family's life, on it. And that's why I think it's good to own some nice dumb weapons, just in case some time the smart ones don't work that well -- and that might be the time we most need them.

 
[Eugene Volokh, 8:56 AM]
KCLU (VENTURA COUNTY [88.3] AND SANTA BARBARA COUNTY [102.3]): I'll be on KCLU from 9 to 9:40 Pacific time talking about the Pledge of Allegiance case.

 
[Eugene Volokh, 8:42 AM]
THE NEW YORK MALL INCIDENT AND THE NEW YORK CONSTITUTION: Some people have asked whether the New York Constitution prohibits malls from excluding people based on their speech. As I mentioned in my post yesterday, the U.S. Constitution does not constrain action by private malls, but some states have laws and constitutional provisions that do constrain them; a few states, for instance, have interpreted their state constitutions as not having the same sort of "state action" requirement that the First Amendment has.

     New York, though, is not one of those states. SHAD Alliance v. Smith Haven Mall, 66 N.Y.23d 496 (1985), holds that the New York Constitution's free speech guarantee applies only to state action; that "the nature of property [here, a mall] [does not] transform a private actor into a public one"; and that

Discussion concerning the purportedly unobstructive nature of plaintiffs' activities, the need for expensive channels of communication, and the long and rich tradition of free expression in this State begs the question. Such factors are irrelevant to whether State action is present and whether there has been a constitutional infringement.

Now the opinion does say that the Mall's action in that case was pursuant to a blanket no-handbilling policy; the Mall apparently wasn't discriminating based on the content of speech. But nothing in the logic of the opinion relies on this point -- and if a content-neutral restriction by a private actor is not state action and thus not a violation of the state Constitution, then a content-based restriction wouldn't be, either (even if the restriction in the current case is content-based, rather than based on the T-shirt wearers mode of expression, which supposedly involve approaching people to spread their political views). Judge Jasen's concurrence in SHAD Alliance would have imposed more constraints on actions by private malls; but that's the concurrence, and not the majority (which garnered a majority of the judges even without Judge Jasen's vote). See also Moore v. Suffolk County Police Dep't, 579 N.Y.S.2d 575 (trial court, 1991), holding that an abortion clinic had a right to use the police to exclude protesters from its property in front of its building; People v. Raab, 612 N.Y.S.2d 440 (trial court, 1994), holding the same as to a church's parking lot

 
[Eugene Volokh, 8:25 AM]
HOT NEWS OR HOT AIR? A Russian news agency reports that:

Iraq has dropped bombs hitting 2,500 oil fields that cover a vast area.

According to the IRNA agency, the bombing near Sharjeh resulted in the explosion of an oil refinery near Kirkuk. . . .

I have no idea whether this is indeed true. Thanks to Kevin Connors for the pointer.

UPDATE -- LOOKING MORE LIKE HOT AIR: Kevin Connors writes:

My sources tell me that this story is nowhere to be found on IRNA's Russian language wire, just the English. A story of this magnitude should have been picked up by the majors by now. It's looking more like a hoax. Either that or something like 25 oilwells has turned into 2500 oilfields.

 
[Eugene Volokh, 8:23 AM]
ANOTHER BIN LADEN FAN IN THE U.S. CONGRESS: InstaPundit points to the following amazing quote:

When America "cast off monarchical Britain" in 1776, it involved the help of many religious people who had fled repression in other countries, the 11-term Toledo [congresswoman Marcy Kaptur] said. Among the nontraditional American revolutionaries were the Green Mountain Boys, a patriot militia organized in 1770 in Bennington, Vt., to confront British forces, she said.

"One could say that Osama bin Laden and these non-nation-state fighters with religious purpose are very similar to those kind of atypical revolutionaries that helped to cast off the British crown," Miss Kaptur said.

Well, yes, one could say that. One could say that Adolf Hitler and his nation-state fighters with nonreligious purpose are very similar to those kinds of nationalistic forces that helped defeat him. One could say that the Ku Klux Klan and its non-nation-state fighters with ethnically motivated purpose are very similar to those kinds of atypical rebels that helped to cast off the British crown, too; in fact, the Klansmen said things like that, and others did to. One could say lots of things if one doesn't mind being a moral idiot.

     If you're interested in reaching Rep. Kaptur, her e-mail address is REP.KAPTUR@mail.house.gov; I've e-mailed her office to ask whether there's any explanation for the quote (and of course it's possible that the quote is mistaken, in which case I assume they'll tell me). It would be better, though, if people -- especially Ohioans -- could reach some Ohio politicians whose support or opposition might influence whether Miss Kaptur gets a twelfth term. Presumably, the more they know that people are outraged by Kaptur's comments, the more likely they'll be to try to McKinney her.

UPDATE: Clayton Cramer has a more thorough response to Kaptur's broader claims -- though I'm not sure that they really deserve that thoughtful and careful a response.

 
[Eugene Volokh, 8:05 AM]
THINGS YOU LEARN FROM GOOGLE: That's from the query screen, not actually from any queries -- it's apparently Michelangelo's birthday, which I guessed from today's google logo, though didn't know before.

UPDATE: Reader George Byrd points out that March 6 was also the day the Michelangelo virus wreaked a good deal of havoc, that it's Ed McMahon's birthday, and that there's a joke connecting the two.

 
[Eugene Volokh, 8:04 AM]
"THEY SAY THEY EXPECT AT LEAST ONE [ANTIWAR DEMOCRATIC] LAWMAKER TO INTRODUCE AN IMPEACHMENT RESOLUTION": Yup, that's right, there's apparently talk about some Democrats calling for President Bush to be impeached. As InstaPundit suggests, this would be the height of folly for the Democratic Party, and I assume that it won't happen. But if you're following the issue, you might keep a close eye on one of the brains behind the operation (alongside Ramsey Clark), "Francis A. Boyle, a law professor at the University of Illinois." My chief experience with Prof. Boyle has been seeing some of the e-mail messages that he likes to mass-mail to law professors; one, on June 11, 1997, called for law professors "to prevent[] the appointment of Federalist Society Members to our faculties," not exactly the most professionally ethical suggestion.

 
[Eugene Volokh, 12:34 AM]
THERE'S NO "CORPORATE IRRESPONSIBILITY" EXCEPTION TO THE FIRST AMENDMENT, notwithstanding what this Fox News story seems to suggest:

The family of Michael Hart, a West Virginia man whose killer was featured on a VH1 special last year, is suing the network's parent company for emotional distress.

Hart's mother, Linda Garrett, and sister Misty Hart have filed a suit against Viacom seeking unspecified compensatory and punitive damages, as well as a court order preventing VH1 from re-airing the Music Behind Bars special that featured the music of Michael's killer, among other criminals.

"Our case is alleging that despite repeated requests not to air the show, VH1 went ahead and it did it anyway," said Hart family attorney Liz Thompson. . . .

[W]hether Henthorne was paid or not [which is a contested question] doesn't change the fact that the special caused Hart's family emotional damage, said lawyers.

"A criminal who has harassed this family is being celebrated as someone of merit and it's causing the family to feel more harassed. VH1 is assisting in harassing the family," said Cy Weiner, another attorney representing Hart and Garret. "The victims are sitting there and they have no outlet for their feelings. This is a victim’s rights case, primarily. And it’s an example of corporate irresponsibility." . . .

"Punitive damages means 'VH1, you did a really bad thing. We should punish you' . . . And the idea is punish them where it hurts, which is in their pocketbooks," said Fox News legal analyst Lis Wiehl. "They're also asking for compensatory damages, to be compensated for their out-of-pocket expenses like any psychiatric care they needed or lost work and attorney fees."

Wiehl said she also believes the lawyers have a good case of corporate irresponsibility against VH1. . . .

Uh, nice argument, but I wonder whether that leaves this statement from a 1991 Supreme Court decision that struck down a law that barred criminals from profiting from accounts of their crimes -- a law which, if anything, would have been a much more defensible speech restriction than an attempt to bar innocent third parties from broadcasting material that seems to glorify criminals --

The Board disclaims, as it must, any state interest in suppressing descriptions of crime out of solicitude for the sensibilities of readers. As we have often had occasion to repeat, "[T]he fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection." "If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." The Board thus does not assert any interest in limiting whatever anguish Henry Hill's victims may suffer from reliving their victimization.

Seems pretty dispositive to me, notwithstanding the mantra of "corporate responsibility."

 
[Eugene Volokh, 5:21 PM]
"CONVICTED STALKER NEEDS OK FOR SEX": I can see the reason for this, and it may well be legally permissible -- but it somehow doesn't sound to me like a good idea. Among other things, how is the probation agent to decide when to permit it and when not to? Somehow doesn't seem to be the sort of thing one learns in Probation Agent School.

A Grand Chute man will need permission from his probation agent before dating or becoming involved in a sexual relationship for the next seven years.

The stipulation was made part of probation for Thomas E. Smith, 38, who was sentenced Feb. 17 in Outagamie County Circuit Court on charges of stalking, burglary and bail jumping.

Judge Michael Gage stayed a two-year prison sentence plus two years of extended supervision and instead placed Smith on seven years of probation.

Gage ordered Smith to spend a year in jail with work-release privileges and instructed that he “is not to enter into any dating, intimate or sexual relationship with any person without permission of the (probation) agent.”

Janine Geske, interim dean of the Marquette University Law School and former Wisconsin Supreme Court justice, said Monday that she had not heard of such a condition before.

“You are putting a (probation) agent in a difficult situation,” Geske said. “This is interesting, because it is not a prohibition. He would have to get permission first. I would imagine it would be pretty difficult to enforce.” . . .

Smith was arrested five times in three months, starting with an altercation on the day his girlfriend ordered him out of their Grand Chute residence Sept. 11.

Smith was arrested, posted a $150 cash bond and was ordered not to have contact with the woman. But, within hours of his release he harassed her and was arrested again, according to court documents.

Smith later violated his bond again during incidents between Nov. 12 and Nov. 16 and posted bonds of $500 and $750 to get released from jail.

Another series of incidents Nov. 20 in which he vandalized the woman’s car resulted in a felony stalking charge. Smith was arrested and posted a $1,000 cash bond to get released from jail.

On Nov. 26, the day he was released from jail, he began making phone calls to the woman’s residence. On Nov. 28, Smith made 90 phone calls to her residence, which, according to telephone records, were made at one-minute intervals. . . .

 
[Eugene Volokh, 2:26 PM]
E-BOMBS AND SMART GUNS: Slate reports about e-bombs, which can generate electromagnetic pulse that can fry circuitry:

What of "e-bombs"? . . . E-bombs emit high-energy electromagnetic waves, simulating over a small area the electromagnetic pulse of a nuclear explosion: In theory, they can fry out electronic circuitry. Futurists have been predicting electronic war, and if e-bombs succeed, perhaps that age will arrive. In the futurist vision, pulses from e-bombs cause anything that contains computer chips to wheeze to a halt, winning without widespread devastation and allowing low-cost reconstruction -- just replace the chips! In tests, however, e-bombs have been underwhelming.

This, it turns out, is one of the little-known twists in the debate about "smart guns." Smart guns, in theory, would only be fireable by their authorized owner; this would be done using some technology, likely chip-driven technology -- possibly some radio transponder that reacts to a special ring that the owner wears, or possibly even fingerprint recognition (though that would have been mighty quick and reliable). I don't support laws that mandate smart guns, chiefly because there's no reason to think that such guns will be reliable enough any time soon. But I certainly see the advantage of such guns, as a means of preventing the 100 or so fatal gun accidents and the greater number of nonfatal gun accidents involving kids that happen each year in the U.S. If I had a child, and smart guns were reliable enough, I might well be willing to spend some extra money to get a smart gun instead of my current dumb guns.

     But the concern about electromagnetic pulses -- either from nuclear attacks or, more likely, from "e-bombs" -- puts a different cast on things. Naturally, I don't expect an e-bomb being set off in L.A. any time soon; but I also don't expect a fatal gun accident in my house any time soon, since those are rare events, too. But I do know that there's a nontrivial chance that in my lifetime, there will be some terrorist or military attack on the place that I live. When that happens, there might well be serious social disruption caused by the attack, and extra need for me to be able to protect myself and my family. It would be just the wrong time to be armed with something that used to be a gun but that's now just an expensive lump of metal.

     Naturally, this is just one cost that one has to consider, and as I mentioned the benefits of smart guns, if they become highly reliable, are nontrivial. (That, incidentally, is one reason that I think gun manufacturers have plenty of incentive to develop smart guns on their own, if such development is possible -- there are millions of gun owners out there who aren't likely to buy new guns unless the guns have some cool new feature, and protection against child gun accidents would be one such feature.) Moreover, the cost might be minimizable, for instance if the guns end up being properly shielded (though I understand that creating such shielding is nontrivial, which is one reason that e-bombs are potentially powerful weapons), or if the guns are set up so that when the "smart" technology fails, the result is a working dumb gun rather than an inoperable one.

     But I don't think that we can just ignore this cost. We've generally lived our lives in environments of peace and civil order, but there's no guarantee that this will continue; in fact, judging by recent human history, there's reason to think that there's a significant (10%? 20%? who knows?) probability that at least some time in our lives, our homeland will be attacked, possibly with sophisticated anti-electronic weapons, and civil order will break down. And when that happens, we'll both be in special need of personal defense weapons, and in special need of personal defense weapons that haven't had their innards fried to a crisp.

 
[Eugene Volokh, 1:34 PM]
THE SMOKING GUN ON THE MALL T-SHIRT CASE: The Smoking Gun has the criminal complaint and the affidavit from two mall security people (thanks to reader Matt Thullen for the pointer), which describes both their activity and that of the police officers. If the affidavit is correct, then apparently the arrestees weren't just wearing the T-shirts but were stopping passersby to express their views; that's what led someone to complain to mall security, led mall security to tell the T-shirt-wearers to stop or leave, and then led the police to eventually tell them the same and arrest one of them when he didn't leave. That would make the mall's behavior much less intolerant -- one can debate whether private malls should let their patrons actively proselytize their views to passersby (and not just passively by wearing T-shirts, something that mall visitors often do), but the mall's decision not to allow this is at least within the boundaries of reasonableness.

 
[Eugene Volokh, 9:09 AM]
CHIEF IRAQI SCUD ENGINEER KILLED BY SADDAM TO KEEP HIM FROM TALKING? According to The Telegraph (U.K.),

Western intelligence agencies are investigating claims that Saddam Hussein ordered the murder of a senior Iraqi missile engineer to prevent him passing vital information to United Nations weapons inspectors.

Gen Muhammad Sa'id al-Darraj, who was in charge of Iraq's mobile Scud missiles until three months ago, died 24 hours after talks with Saddam's officials, according to Arab newspaper reports. The officials wanted to discuss how the general would conceal his knowledge if he were called for interview by the UN.

The London-based Al-Zaman newspaper said that Gen al-Darraj told "indignant" relatives shortly before he died that he had been slipped a poisoned drink during the meeting at one of Saddam's presidential palaces. . . .

British Government officials said yesterday that they were still trying to corroborate the report.

UN inspectors held their initial private interviews with Iraqis involved in Saddam's weapons programme - a biologist and a missile expert - on Friday, their first such talks for three weeks.

Last week Britain's ambassador to the UN, Sir Jeremy Greenstock, gave a private briefing to other members of the Security Council on Iraq's continuing efforts to conceal its chemical weapons and nerve gas production from the weapons inspectors, The Telegraph has learnt.

Officials say that Sir Jeremy will reveal more to his senior UN colleagues this week, including sensitive intelligence information, in an effort to boost support for the British and American-backed resolution on Iraq. . . .

If this is true, what it does say to the "no need to get rid of Saddam, we can just use inspectors to contain him" argument?

UPDATE: The Associated Press reports that

[French foreign minister Dominique] De Villepin said he believes the results of inspections "were more and more encouraging," citing the destruction of Iraqi missiles, information being received about biological and chemical agents and interviews with scientists.

Xrlq has more on the juxtaposition of these two stories.

 
[Eugene Volokh, 8:36 AM]
THREE STRIKES: The Court has upheld California's Three Strikes law, which strikes me as the right result (see also here).

 
[Eugene Volokh, 8:16 AM]
MEGAN'S LAW CASES: The Court upheld the challenges -- both Ex Post Facto Clause and Due Process Clause -- to Megan's Laws. My prediction on Nov. 12 was:

Bottom line: The Court will uphold Megan's Laws both against the due process challenge (that's the Second Circuit case) and the Ex Post Facto Clause challenge (the Ninth Circuit case). Confidence level: Very high.

Vote: I'd guess 7-2 for each. Confidence level: Pretty high, if you give me a 2-Justice margin of error! Well, even if you don't, I think it's the likeliest result -- I think two of the liberals will find something wrong on both theories, though I'm not sure which two.

Lineup: This is the toughest one -- I'm sure that Rehnquist, O'Connor, Scalia, Kennedy, and Thomas will vote to uphold both; I suspect that the other two votes to uphold, in both cases, will be Souter and Ginsburg, with Stevens and Breyer being the dissents. Confidence level: Fairly low; this is just a wild guess.

Actual result: The Court upholds both laws, 9-0 for the due process challenge (though with Justices Souter and Ginsburg suggesting that a different sort of challenge to the law might still be viable in the future), and 6-3 (the dissenters being Justices Stevens, Ginsburg, and Breyer) for the Ex Post Facto Clause challenge.

 
[Eugene Volokh, 8:02 AM]
KICKED OUT OF MALL FOR WEARING PEACE T-SHIRT: The article is titled "Lawyer Arrested for Wearing a 'Peace' T-Shirt", though it should more properly be "Lawyer, Told to Leave Mall or Take off 'Peace' T-Shirt, Arrested for Trespassing When He Doesn't Leave" (but of course I realize that would be too long). A few people e-mailed me about it, so I thought I'd briefly blog the following:

1. As best I can tell from the story, the arrest was proper, because a private mall may generally exclude anyone it pleases (unless it's doing so based on race, national origin, or some other criteria, or unless there's a state law that prohibits such exclusions, which isn't the case in most states).



2. Someone suggested that the Shelley v. Kraemer precedent, which held that courts couldn't enforce racially restrictive covenants, likewise bars the law from punishing trespassers when the reason that the private property owner didn't want them there is their race, speech, or what have you, but that doesn't apply for technical reasons that I don't want to bother with here. (The 1960s sit-in cases, which generally set aside trespass convictions of people whom property owners tried to evict based on race, all relied on some government action that was itself racially discriminatory -- or otherwise impermissible -- rather than just on enforcement of entirely racially neutral trespass laws; see Justice Harlan's dissent in Bell v. Maryland, 378 U.S. 226 (1964) for a thorough discussion.)



3. Nonetheless, the mall owner's action seems to be (if the press accounts are correct) distinctly narrow-minded, and worthy of condemnation. The T-shirt involved wasn't rude or insulting; it just expressed a legitimate, decent political viewpoint that the mall owner disagreed with. His property rights may allow him to evict the person, and to use the police if necessary, just as they'd let him evict someone who's wearing a pro-war T-shirt. But our free speech rights allow us to condemn him for his intolerance, and we should do so.

UPDATE: InstaPundit takes a similar view.

FURTHER UPDATE: Some documents made available by The Smoking Gun suggest the facts were considerably more complex than the original press account suggests (I am shocked, shocked that there's oversimplification going on in this establishment!), and that the mall's behavior might be more reasonable than it at first appeared (though again much depends on exactly what happened); see here for more.

 
[Eugene Volokh, 7:38 PM]
MORE INCONCLUSIVE POLLS ON IRAQ: Edward Boyd (Zonitics) cites the following poll:

ABC News/Washington Post Poll. Feb. 26-March 2, 2003. N=1,022 adults nationwide. MoE ± 3 (total sample). Fieldwork by TNS Intersearch.

"The Bush Administration says it will move soon to disarm Iraq and remove Saddam Hussein from power, by war if necessary, working with countries that are willing to assist, even without the support of the United Nations. Overall, do you support or oppose this policy?"

[Support] 59%
[Oppose] 37%
[No Opinion] 4%

Cool, I like that. But if you read further on the same page (at the pollingreport.com site, a great resource), you also see:

CNN/USA Today/Gallup Poll. Latest: Feb. 24-26, 2003. N=1,003 adults nationwide. MoE ± 3. . . .

"As you may know, the U.S., Great Britain, and Spain plan to submit a resolution to the United Nations that says that Iraq is in serious violation of prior UN resolutions that required Iraq to disarm. Do you think the United States should invade Iraq with ground troops only if the UN approves this new resolution, even if the UN does not approve this new resolution, or do you think the United States should not send ground troops to Iraq at all?" Options were rotated

[Only With UN Approval] 40%
[Even Without UN Approval] 38%
[Not At All] 19%
[No Opinion] 3%

So one poll (2/26-3/2) says 59%-37% in favor of war even without U.N. approval; another (2/24-2/26) says 59%-38% against war without U.N. approval.

     So what does this mean? Well, obviously people's reactions are sensitive to the wording of the question, but I think that sort of sensitivity itself shows that people's views on the subject just aren't very firm. A bit over a third of the public supports war without the U.N., a bit over a third of the public opposes it (either altogether or unless the U.N. says yes), and a bit under a third is uncertain.

     Thus, we don't have a settled public opinion even now -- and this means that it's utterly futile to predict how the public would view the war after it takes place. It would be pretty pointless, it seems to me, for Democrats, Republicans, or anyone else to focus much on these polls.

 
[Eugene Volokh, 7:12 PM]
TORTURE: A couple of people e-mailed me to raise the perennial question of when, if ever, torturing a likely terrorist is justified. I don't have anything new to say, but I thought I'd recycle a post of mine from last June, when the issue last came up. Warning: There are more questions than answeres here.

TENTATIVE THOUGHTS ON TORTURE: I've gotten quite a few messages in recent days about my earlier torture post, and I've also been involved in a discussion of the subject on a constitutional law professors' e-mail list. This has given me a chance to think some more about the matter, and generated the following very tentative thoughts:

     1. Risks: Let me say again what I've tried to say before -- there are lots of very good arguments against the use of torture, even in extraordinary circumstances. Once torture is legitimized in foreign wars, it becomes much easier to suggest that it be used for domestic terrorism (leftist, rightist, anti-abortion, environmentalist, etc.), and from then to domestic dissent that some think is related to rebellion. It likewise becomes much easier to use it in normal criminal prosecution ("Isn't the kidnapped little girl's life worth just as much as the lives of those who were saved by the use of torture in [some past incident]?").

     Many people whom I've heard discuss torture have, while focusing on its use as to the hidden-nuclear-bomb scenario, quickly slipped from cases involving the lives of thousands to ones that involve the lives of dozens or even individuals. And if we do have this slippage, then we do risk giving future governments an awful tool to be used, and abused, in lots of situations.

     Now, as the following suggests, I don't think that this is an open-and-shut argument against torture. Sometimes, a vast risk today (a hidden nuclear bomb or smallpox vial) may justify doing things that create risk for tomorrow. But I want to acknowledge up front the serious dangers of employing torture even in extraordinary circumstances. My arguments below are thus more rebuttals to certain arguments against torture, rather than endorsements of torture as such, even in extraordinary cases.

     2. Accuracy of information: Many correspondents have suggested that torture will be ineffective, because people will say anything, including falsehoods, under torture. I think this is a serious concern, but I want to offer a few observations on it.

     a. Plea-bargaining and testifying against coconspirators: To begin with, the concern about false confessions applies in some measure to all threats, whether threats of torture or threats of imprisonment. "If you confess to aggravated assault, we won't prosecute you for attempted murder" may lead an innocent defendant to confess to a crime he didn't commit. "If you testify against your coconspirators, we'll ask the judge to reduce your sentence" may lead a defendant to falsely implicate others.

     Now maybe these practices are themselves suspect. But our legal system has generally taken the view that they are necessary, and that while they pose a risk of false confession or false testimony, that risk is outweighed by their benefit. And at least as to getting testimony against coconspirators, I think that has to be so; otherwise, I think various organized criminal groups would be extremely hard to crack.

     b. Testimony vs. information that leads to evidence: This having been said, it's true that coerced testimony is quite unreliable; and defense counsel are good at pointing out its unreliability: "Ladies and gentlement of the jury -- the person testifying against my client is (1) a confessed criminal who (2) has a strong incentive (the risk of prison, the risk of execution, the risk of torture) to say anything to implicate my client. Why should you believe him?" It may be that testimony coerced through torture is even more unreliable than testimony coerced through the risk of a long prison term, or a death sentence, though I'm not completely sure about that.

     But the risk of unreliability is much less if the coerced statements (again, coerced by torture or by risk of prison or the death penalty) are used to uncover other evidence, such as the location of a bomb, the location of papers that contain details of the plot, the phone lines that can be tapped to get more information, and so on. An exclusionary rule barring the admission of the coerced statements but allowing the admission of the so-called "fruits" of those statements -- the evidence uncovered as a result of them -- would help maximize the accuracy of coerced statements.

     c. Torture practices: In fact, I would assume that -- if torture is indeed found to be permissible -- the torture practices would be set up to maximize the likelihood of accurate information. "Confess or we'll keep beating you" is likely to be an ineffective practice (let's set aside for a moment questions of legitimacy and focus only on effectiveness). "Tell us the location of the bomb / the documents / your coconspirators or we'll keep beating you and if you lie to us and we find out, we'll beat you much harder" may be more effective.

     3. Effectiveness: Which brings up the broader question -- is torture likely to be effective, even if done in the "smartest" possible way?

     a. Relevance to the constitutional question: I think this is an important question, for the constitutional inquiry as well as for the moral one. We do have a constitutional norm against torture, and a wise one. If the argument is "The Constitution must be understood as allowing torture when it's necessary to save thousands of lives," then that argument is powerful only if we have reason to think that the exception will save thousands of lives.

     b. Ignorance: But how do we determine whether torture (or, to be precise, torture conducted using the most effective known torture techniques) will indeed be effective? I really doubt that there are good studies on the subject, for the obvious reasons. Even the anecdotal evidence is likely to be highly skewed, because the great majority of instances of government-sponsored torture are probably kept very quiet.

     c. Wishful thinking: What's more, I suspect that the effectiveness judgments tend to be unusually skewed by wishful thinking, precisely because of lack of serious evidence. Those who want to find torture to be acceptable, perhaps because they think that this war can be won only by being maximally tough, will tend to take the rosiest view of the effectiveness of torture. Those who want to find torture to be unacceptable, on moral or slippery-slope grounds, will tend to assume that it will also be ineffective.

     d. Bottom line, as to effectiveness: So when we're determining how effective torture will be, evidence is of little help, and our intuitions are likely to be highly biased. This having been said, my intuition is that torture can indeed be effective, if properly done, in some circumstances.

     What's more, effectiveness is always a comparative inquiry: If the nuclear bomb / dirty bomb / smallpox vial is hidden in Manhattan, how effective will torture be, together with all the other investigative techniques that will presumably still be operating, as opposed to just the non-torture techniques? It may be that torture is a long shot, but everything else is a long shot, too.

     4. Unconstitutional, but people should do it anyway: Finally, some argue that torture should be unconstitutional and