Archive | May, 2010

Shedding Light on the AZ Immigration Law

Opinions about AB 1070 — Arizona’s controversial new immigration law — are everywhere. Serious analysis?  Not so much.  Now several professors at the University of Arizona have just posted a preliminary analysis of the billon SSRN. It’s a useful paper, and they are soliciting feedback. […]

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Pollak on Uniquely Israeli Stupidity

Noah Pollak:

Those who sent an elite unit into a hostile confrontation armed with toy weapons made an incredibly stupid decision. And a uniquely Israeli one. In recent memory, Israeli military action has been violent but not decisive, bloody enough to provoke the outrage and condemnation of the world (at this point, a stubbed toe will do), but not enough to actually change facts on the ground (the Hamas and Hezbollah wars being prime examples). These halfhearted wars and battles have earned Israel demerits in world opinion without enough to show in improved strategic position.

I think Israel has been trying to avoid truly decisive, and very bloody, military action in the hope that by containing the situation, time will be on its side, and the strategic situation will change for the better, e.g., the Iranian mullahcracy will be overthrown (seemed plausible last year), the Lebanese government will get the strength to kick out Hezbollah (seemed plausible a few years back), Hamas will collapse, etc. So far, not so good, and the strategic situation has seriously deteriorated in at least two ways: Turkey has gone from an ally to a virtual enemy, and Hezbollah has rearmed itself in Lebanon with much better missiles than it had previously. Actually, three ways: instead of having a clear friend in the White House, Israel has a lukewarm ally.

UPDATE: Further evidence of unique stupidity–IDF: We didn’t sabotage Gaza aid ship in bid to avoid humanitarian crisis. Senior officer hints the IDF disabled the engines of the other five ships in the Gaza aid flotilla, says Marmara was too large and could have been stuck at sea for days.

FURTHER UPDATE: The whole Gaza blockade is an example of this stupidity. Israel claims to be in a state of war with Gaza. But […]

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Kagan “Not a Natural Academic”

The Chicago Tribune reports on the University of Chicago’s refusal to rehire Elena Kagan as a tenured member of its law faculty after her stint in the Clinton White House.

“She’s just not a natural academic, period,” said Richard A. Epstein, a prominent libertarian and longtime professor at the University of Chicago. “She is a natural lawyer, and a facilitator, and a dean.”

“She turned out to be truly great at what she did,” said David Strauss, a U. of C. law professor and one of Kagan’s closest friends on the faculty. If things had gone as she’d planned at the time, he said, “maybe she wouldn’t be where she is now.” . . .

When Kagan decided it was time to return to the U. of C., several faculty members weren’t convinced that she was devoted to academia and planned to spend her career there, recalled Geoffrey Stone, who was provost of the university at the time and who supported her reappointment.

There was no vote to reject her, but there was no offer, either. . . .

In retrospect, Stone believes it was “admirable” what the Chicago faculty did, keeping its focus on scholarship even though it was clear Kagan would probably end up in the corridors of power one day.

“The amazing part is her resilience,” said Stone. “I don’t think this story is about failure. I think it’s about finding one’s niche.”


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Pro-Palestinian “Peace Activists”

Incredibly (and stupidly), Israeli officials believed the protesters’ claims that they were mere humanitarian peace activists with no violent intent (in fairness to both Israel and the protesters, it appears that the violent passengers were on only one of six boats). An embedded reporter with YNet News sets the scene:

Officials estimated that passengers will show slight resistance, and possibly minor violence; for that reason, the operation’s commander decided to bring the helicopter directly above the top deck. …

Navy commandoes slid down to the vessel one by one, yet then the unexpected occurred: The passengers that awaited them on the deck pulled out bats, clubs, and slingshots with glass marbles, assaulting each soldier as he disembarked. The fighters were nabbed one by one and were beaten up badly, yet they attempted to fight back.

However, to their misfortune, they were only equipped with paintball rifles used to disperse minor protests, such as the ones held in Bilin. The paintballs obviously made no impression on the activists, who kept on beating the troops up and even attempted to wrest away their weapons.

One soldier who came to the aid of a comrade was captured by the rioters and sustained severe blows. The commandoes were equipped with handguns but were told they should only use them in the face of life-threatening situations. When they came down from the chopper, they kept on shouting to each other “don’t shoot, don’t shoot,” even though they sustained numerous blows.

The Navy commandoes were prepared to mostly encounter political activists seeking to hold a protest, rather than trained street fighters. The soldiers were told they were to verbally convince activists who offer resistance to give up, and only then use paintballs. They were permitted to use their handguns only under extreme circumstances.



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Maldives: “Islamic Foundation Calls for Death Sentence if Apostate Fails to Repent”

From Minivan News, a Maldivian site:

The Islamic Foundation has called for self-declared apostate Mohamed Nazim to be stripped of his citizenship and sentenced to death if he does not repent and return to Islam.

Nazim claimed he was “Maldivian and not a Muslim” during a public question-and-answer session with Islamic speaker Dr Zakir Naik, the first time a Maldivian has publicly announced he is not a Muslim.

According to the Maldivian constitution all citizens are required to be Muslim, and the country is always described as a “100 percent” Muslim country….

Today the Islamic Foundation of the Maldives issued a press statement calling on judges to give Nazim the opportunity to repent “and if he does not, then sentence him to death as Islamic law and Maldivian law agree.”

“The Islamic Foundation believes that the person who announces apostasy should be punished according to Islamic laws,” the NGO said, warning that Nazim represented “a disturbance to the religious views and the religious bonds that exist with Maldivians.”

“Hereby if this man does not do his penance and come back to the Islamic religion, the Islamic Foundation of the Maldives calls to take the citizenship away from this man as mentioned in the Maldivian constitution.” …

Putting the Mal- into Maldives, consistently with the 14-year-sentence for the two gay men in Malawi (now fortunately pardoned). Thanks to Prof. Howard Friedman (Religion Clause) for the pointer. […]

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Gaza Blockade Violence News You May Have Missed

Reading the news this morning, I got a big dose of he said/she said, with Israeli spokesmen claiming that its naval personnel were attacked with clubs and knives, perhaps even live fire, from one of the “peace activist” boats, and spokesmen for the blockade runners claiming, for example to the New York Times, that they would never, ever, engage in any violence.

So it would be easy enough to miss what I found to be the most relevant information, from the Washington Post:”Short video clips broadcast on various television stations showed demonstrators clubbing the navy personnel with metal bars and showed at least one soldier firing.”

I have my doubts about the wisdom of Israel’s blockade of Gaza, and there was obviously an operational/intelligence failure that led to Israel’s naval commandos having to open fire to defend themselves, giving the other side a propaganda victory. But it does appear that the physical violence started from the other side, which to begin with had the rather unhumanitarian mission of aiding Hamas, and, to the extent there were sincere humanitarian/peace activists involved, allowed themselves to get hijacked by violent Islamic extremists who manned one of the ships.

Net result of the “peace/humanitarian” mission: dead activists, wounded Israeli soldiers, no more humanitarian aid to Gaza than if Israel’s offer to transfer the aid to Gaza from Ashdod had been accepted, and a likely breakdown in the Palestinian-Israeli peace talks that were about to start. Congratulations.

UPDATE: Reuters: “Greta Berlin, a spokeswoman for the Free Gaza Movement that organized the convoy, said: ‘How could the Israeli military attack civilians like this? Do they think that because they can attack Palestinians indiscriminately they can attack anyone?’” Here’s a hint, Ms. Berlin: when you try to run a naval blockade, […]

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Good jazz, free

EJazzNews sends out an email with a free sampler of  jazz every week.  Full tracks, zip file of mp3s, no DRM.  Good stuff, too, by my unadventurous lights.  This week’s, EJN 13, featured several torchy female jazz singers and a scatting male singer that were talented and new to me.  Better than Pandora, which has gotten a bit predictable.  Other samplers featured other styles; not every week will be a hit with all audiences.  So delete the tracks you don’t like, guilt free. […]

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More on the SG’s Brief in U.S. Chamber of Commerce v. Candelaria

Like Stewart, I am interested in the Solicitor General’s decision to file a brief recommending cert in U.S. Chamber of Commerce v. Candelaria.  I recommend readers to his post (and the comment thread), even if I don’t agree with every point.  Here are my initial thoughts on the SG’s filing.

The Supreme Court’s CVSG request put the Administration in an interesting position.  The law in question was signed by then-Governor Janet Napolitano, who is now Secretary of Homeland Security, and therefore responsible for overseeing U.S. immigration policy.  So if the Justice Department is to now argue that the law is preempted, what does that say about the judgment of the nation’s top immigration official?  And if the Justice Department does not argue that the law is preempted, how would that effect potential litigation against Arizona’s new immigration law?  These issues were explored in an LA Times article I blogged about here.

The political calculus is further complicated because many liberal legal types were quite critical of the Bush Administration’s aggressive posture on preemption questions. The Obama Administration, many hoped and expected, would be less aggressive in urging preemption of state regulatory efforts and tort remedies.  Aggressive pro-preemption arguments in Candelaria could be in tension with anti-preemption arguments elsewhere.  Indeed, in another CVSG brief filed on Friday, the SG’s office argued against cert, and against preemption, in Golden Gate Restaurant Association v. County of San Francisco — thereby reversing the Bush Administration’s position below.  Based on my understanding of the case, and a quick read of the brief, this case is at least as cert. worthy as Candelaria. […]

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Sunday Song Lyric

Tomorrow is Memorial Day, so I thought I’d blog “Memorial Day” by James McMurtry off of his critically acclaimed album Childish Things.  It doesn’t focus so much on the reason for the holiday as the dysfunctional dynamics of holiday family get-togethers.  Here’s the chorus:

It’s Memorial Day in America
Everybody’s on the road
Let’s remember our fallen heroes
Y’all be sure and drive slow

Here are the full lyrics and the song. And here’s a list of VC readers’ prior Memorial Day Sunday Song Lyric suggestions. […]

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“Congress Should Reapportion Representatives Only on the Basis of Citizen Populations”

So urges an op-ed published today in the L.A. Times. The op-ed mostly criticizes the counting of illegal aliens in the apportionment, but its actual recommendation is to not count any noncitizens, so that “the votes of citizens in all parts of the country are as nearly equal as possible.” (The op-ed likewise argues that “The reapportionment of today’s static 435 seats according to census results would be a respectable example of representative democracy if each individual included in the count had a vote” — further evidence that the argument is in favor of apportionment by number of citizens, rather than apportionment by number of lawful residents.)

As a matter of first principles, this might be a sensible way to set up a constitutional apportionment mandate. But our current constitution provides a different rule. Here’s what the Fourteenth Amendment says, in relevant part:

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.

“The whole number of persons in each State” strikes me as meaning the whole number of persons in each state — not the number of citizens. Perhaps some creative reinterpretation could lead to reading this as “lawfully in each State,” though I’m skeptical about this. But certainly lawfully resident noncitizens must count within “the whole number of persons in each State.” Reapportioning only on the basis of citizen populations strikes me as unconstitutional, absent a constitutional amendment, which the authors aren’t proposing. (They claim that their reform could be accomplished by statute.)

Incidentally, the very next sentence of the Fourteenth Amendment reads, “But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and […]

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If you like the BP spill, you’ll love cyberwar

BP has had another agonizing failure as it tries to stop the massive oil deep under the Gulf of Mexico. The President, meanwhile, is taking heat for the disaster and his apparent paralysis in the face of crisis. The consequences of the spill are devastating, and compensation is well beyond the resources of BP, even if the whole company is seized.  The crisis deserves to be the  proper focus for every resource the President can bring to bear.  The problem is that, while he’s got resources, none of them really know enough about BP’s business to do anything useful.

So all the President can really offer BP is cheerleading, coffee, and veiled threats of indictment.

If that sounds like schadenfreude, that’s not my intent.  Rather, the BP crisis is giving me a sense of what cyberwar will be like.  If it happens, and I think that’s likely, it will be pretty ugly.  As I say in Skating on Stilts,

“It’s not just that you could lose your life savings. Your country could lose its next war. And not just the way we’re used to losing – where we get tired of being unpopular in some third-world country and go home. I mean losing losing: Attacked at home and forced to give up cherished principles or loyal allies to save ourselves.”

Hostile nations are probably already seeding our privately owned infrastructure with logic bombs and malware designed to shut down critical services — power, telecom, Internet, banks, water and sewage.  Each private company has a private, and unique, network design.  Each private company has a private, and unique, set of defenses and recovery plans.

So when an attack occurs, if it’s successful, some of those defenses will fail.  Some citizens will spend days, weeks, maybe months, without power or […]

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The Solicitor General Lays an Egg

Before the fuss over Arizona’s immigration law, there was a different fuss over a different Arizona immigration law.

Now the first fuss is coming back to haunt the Obama Administration, the professionals in the office of the Solicitor General, and maybe even Elena Kagan.

That first fuss was over the Legal Arizona Workers Act,  a 2006 Arizona statute that (1) imposed state penalties on employers who hire illegal workers and (2) required businesses in Arizona to use E-Verify.  (E-Verify is a federal database that checks the names and Social Security numbers of new hires to make sure they match and thus makes it harder for illegal immigrants to get hired using made-up names and numbers.)

The 2006 Arizona immigration law was challenged as soon as it was enacted, but it was upheld in both the district and appellate courts.  The more recent Arizona immigration law, known as SB 1070, has provoked litigation and a halting boycott of Arizona.

Now the controversy over SB 1070 may affect the fate of the first law, which is in the last stages of litigation.  Last year, the groups challenging the first law as preempted filed a certiorari petition.  The Supreme Court asked for the views of the federal government at the beginning of the term — on November 2, 2009.  The Solicitor General has finally filed its brief, and it asks the Court to grant certiorari and strike down the Arizona law.

Here are my first thoughts on the SG’s filing:

  • The brief is particularly awkward for Secretary Napolitano.  She is the SG’s principal client on this case, since she administers the immigration laws.  And as governor of Arizona, Secretary Napolitano signed the Legal Arizona Workers Act, saying ““Immigration is a federal responsibility, but I signed [the bill] because it is now abundantly
  • […]

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Wouldn’t It Be So Impressive To Be a “Michigan Registered Reporter”?

A couple of people e-mailed me links to this Fox News article, which begins:

Michigan Considers Law to License Journalists

A Michigan lawmaker wants to license reporters to ensure they’re credible and vet them for “good moral character.”

Senator Bruce Patterson is introducing legislation that will regulate reporters much like the state does with hairdressers, auto mechanics and plumbers. Patterson, who also practices constitutional law, says that the general public is being overwhelmed by an increasing number of media outlets–traditional, online and citizen generated–and an even greater amount misinformation.


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Biological Weapons Amnesia

Judith Miller has a striking article on the history of Japanese WWII biological warfare in City Journal.  She interviews a few remaining likely victims of the truly massive biological warfare attacks sponsored by Unit 731 of the Japanese army and describes the “science” that made the weapons possible:

Maruta, or “logs,” as the Japanese scientists dubbed their victims, would be registered, given numbers, and later dragged from their cells through underground tunnels into the testing labs at the compound’s center. Here, Sheldon Harris reported, they would have to eat food laced with one of 31 germs—anthrax-filled chocolate, plague-treated cookies, typhus-infected beer—or be injected directly with deadly pathogens to determine the minimal dose required to sicken or kill them. The “logs” usually lasted only a few weeks. Some were “sacrificed” after unit officials deemed them no longer fit for scientific study. …

I recalled interviewing an elderly Japanese soldier several years earlier who told me that he had performed vivisections, without anesthetic, on naked prisoners. Describing in almost a whisper his revulsion the first time he picked up his scalpel when ordered to do so, he said that he eventually grew accustomed to the “procedure.” But his anguish suggested otherwise.

Equally striking has been the reluctance of Japanese institutions to discuss the evils of biological warfare.

Franzblau has tried for years to introduce a resolution at World Medical Association meetings calling upon doctors to ask Japan to “officially repudiate Unit 731” and to explain “why physicians employed in Unit 731 have never been prosecuted for murder and crimes against humanity.” Each year, his resolution has gone nowhere. “There has never even been a debate,” he complains. The Japanese Medical Association has also remained silent, perhaps because one former president of the JMA was a Unit 731 staff member, as were


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